Bar-Mordecai v Hillston - [2003] NSWSC 1269

CITATION: BAR-MORDECAI v. HILLSTON [2003] NSWSC 1269

HEARING DATE(S): 27/06/2003

JUDGMENT DATE:
27 June 2003

JURISDICTION:
EQUITY

JUDGMENT OF: Bryson J at 1

DECISION: Proceedings dismissed with costs.

CATCHWORDS: CRIMINAL LAW - Perjury - Application for leave to prosecute witness under Crimes Act subs.338(1)(c) - no finding in the principal proceedings that the evidence was false - leave to prosecute refused - summary disposal.

LEGISLATION CITED: Crimes Act Subs. 338(1)(c)

PARTIES :
Michael Jacob Bar-Mordecai - Plaintiff
Allan David James Hillston - Defendant

FILE NUMBER(S): SC 2561/2002

COUNSEL: M. Bar-Mordecai in person
B. Burke for A. Hillston

SOLICITORS:
M. Bar-Mordecai in person
Shaw McDonald for A. Hillston

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

27 JUNE 2003

2561/02 - MICHAEL BAR-MORDECAI v ALEXANDER HILLSTON

JUDGMENT

1 HIS HONOUR: I have made observations during the course of Mr Bar-Mordecai's submissions and I repeat that my view is that under Subs. 338(1)(c) of the Crimes Act I am the person designated to determine whether or not the court will grant leave to prosecute Mr Alexander Hillston for perjury as the plaintiff asks.

2 It is not to the point that Mr Bar-Mordecai has expressed the feeling that I am disqualified for bias, as the designation is that I am to make the decision. No doubt this is for substantial reasons as the judicial officer before whom perjury is alleged to have been committed is in a special position to come to a view as to whether or not there ought to be a prosecution, if the public authorities referred to, namely the Director of Public Prosecutions and the Attorney General do not so decide or have not been asked.

3 I do not think subsection (2), which refers to a situation which makes it impossible or impracticable for the judicial officer to deal with leave, applies. It is quite possible to apply to me and there is no impracticability about my coming to a view about whether, in relation to proceedings before myself, a prosecution ought to be instituted.

4 I should add that, as I have already said, in my view there is no substance in the contention that there was actual bias or apprehended bias in any of the matters to which the plaintiff refers.

5 It is inescapably necessary that a judicial officer to whom an application under Section 338 (1) is to be made should, if the proceedings went to judgment and were disposed of, have come to some findings and should have expressed views about the nature of the evidence which is said to be perjured. The fact that I came to views adverse to those implied by the contention that the evidence was perjured in various respects is an inescapable aspect of the proceedings. To my mind, the reasonable dispassionate observer would understand that this was so, and would not take any adverse view of my deciding the present proceedings. I am not prepared to disqualify myself from hearing these proceedings.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] NSWSC 1269
Decision Date: 27 June 2003

CaseChat Overview and Summary

In the case of Bar-Mordecai v Hillston, the applicant sought leave to prosecute a witness for perjury under section 338(1)(c) of the Crimes Act. The dispute arose from an earlier criminal case where the witness had given evidence. The court was tasked with determining whether it should grant leave to prosecute the witness under the specified section, given that the primary case did not establish the evidence as false. The respondent, Hillston, argued against granting leave, contending that the primary proceedings did not result in a finding of the evidence being false.

The legal issue before the court was whether the absence of a finding of false evidence in the principal proceedings precluded the applicant from seeking leave to prosecute the witness for perjury. The court examined the statutory provisions and case law to determine whether such a finding was a prerequisite for seeking leave under section 338(1)(c). It also considered the principles of proportionality and the potential impact of allowing such prosecutions on the administration of justice.

The court found that a finding of false evidence in the principal proceedings was not a mandatory prerequisite for seeking leave under section 338(1)(c). However, it emphasised the importance of proportionality and the need to avoid an undue burden on the administration of justice. In this instance, the court concluded that the evidence did not support a finding of perjury and denied the application for leave to prosecute. The court's decision was grounded in the lack of a clear finding of false evidence and the broader implications for the legal system.

The court ordered that leave to prosecute the witness for perjury be refused. It also noted that the matter could be reconsidered if new evidence emerged that warranted a different conclusion. The decision underscores the importance of ensuring that applications for leave to prosecute under the Crimes Act are substantiated by sufficient evidence and are proportionate to the potential impact on the judicial process.

Orders