Bartel v Victorian Police Legal Unit
[2001] VSC 134
•27 April 2001
| Do Not Send for Reporting | ||
| SUPREME COURT OF VICTORIA AT MELBOURNE | Not Restricted | |
| COMMON LAW DIVISION | ||
PRACTICE COURT
No. 5441 of 2001
| PAUL ANTHONY BARTEL | Plaintiff |
| v | |
| VICTORIAN POLICE LEGAL UNIT | Defendant |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 April 2001 |
DATE OF JUDGMENT: | 27 April 2001 |
CASE MAY BE CITED AS: | Bartel v Victorian Police Legal Unit |
MEDIUM NEUTRAL CITATION: | [2001]VSC 134 |
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Listening Devices Act 1969, application by convicted person for order that there be confirmation or otherwise of issue of warrant under Act during period nominated and that a copy of such warrant be provided – appeal against conviction dismissed by Court of Appeal – no proceeding before this court other than present application – application dismissed.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | In person | -- |
| For the Defendant | Sergeant W. Elston in person | -- |
HIS HONOUR:
The proceeding before the court this morning in the matter of Paul Anthony Bartel as plaintiff and Victorian Police Legal Unit as defendant is a summons taken out by Bartel and returnable before the court this morning, seeking orders (1) that there be confirmation as to the existence or otherwise of a warrant issued pursuant to the Listening Devices Act 1969 in relation to the plaintiff during the period 1 November to 28 November 1997, and (2) that a copy of any such warrant be provided to the plaintiff.
In an affidavit sworn by the plaintiff on 19 April 2001 he has deposed that he was wrongfully charged and subsequently convicted, based on false testimony obtained illegally by a civilian authorising use of listening devices under s.4A(1) of the Listening Devices Act. He has deposed that he wished to clear his name and have belongings replaced and losses suffered by him restored. There is a further affidavit sworn by the plaintiff relevant to the matter as sworn by him on 19 April this year. That affidavit is more in the form of matters argumentative and in the nature of submissions rather than deposing as to specific facts.
Before hearing this matter, and seeing that the subject of the matter was, that the plaintiff sought to clear his name from a conviction, I caused to have made a search as to whether any other proceedings had been taken by the plaintiff. It appears that on 18 May 2000 the plaintiff made application for leave to appeal to the Court of Appeal, which application was refused that day.
From the judgment of the Chief Justice in that matter (unreported, R. v. Bartel, 18 May 2000), and from that of which the court has been informed by Bartel this morning, it appears that on 23 March 1998, at the County Court at Shepparton, the plaintiff was charged on two counts of threatening to kill police. To the first count he pleaded not guilty and a verdict of not guilty was entered by the court with respect to that count. As to the second count, it appears that the plaintiff pleaded guilty and on that day the trial judge remanded the plaintiff in custody for psychiatric examination and report.
While in custody the plaintiff sought leave of the trial judge to change his plea of guilty to not guilty. The plaintiff has informed the court that the subject of that matter came before the trial judge on numerous occasions. Finally, the trial judge refused leave to the plaintiff to change his plea. He was convicted and sentenced to be imprisoned for a period of time. Having regard to the period of time that the plaintiff had served in custody, relevant to the matter on which he was convicted, the plaintiff was then released from custody. The plaintiff made application to the Court of Appeal seeking leave to appeal against his conviction. That matter, as I have referred to, was heard and determined by the Court of Appeal on 18 May 2000. On the hearing and determination of that appeal, it appears that the application was dismissed.
The plaintiff informs the court that he has now sought special leave to appeal to the High Court. He informs the court that that matter is still pending and is yet to be heard.
This morning before the court, Sergeant Elston appeared. He informed the court that he was a police officer with the Special Projects Unit of the Police Force of Victoria. Sergeant Elston stated to the court that from investigations that had been made it appeared that no warrant under the Listening Devices Act 1969 was issued in respect of Bartel as relevant to the matter on which he was convicted. He informed the court that there was a person Brown who had had a conversation with Bartel relevant to the matter on which he was convicted, and that conversation was recorded by that person wearing that which he understood to be a micro-cassette recorder. Sergeant Elston further informed the court that although there was a body in the Victorian Police Force who advised police officers as to relevant legal matters, there was no such body separate as such or which had corporate standing.
As I have said, the plaintiff this day seeks an order that the respondent confirm the existence or otherwise of a warrant being issued, and seeking a copy of that warrant if it existed.
It has been held by the High Court in Ousley v. The Queen (1997) 192 C.L.R. 69 that the issue of a warrant under the provisions of the Listening Devices Act 1969 is an administrative matter, not a judicial act, hence its validity is open to collateral review by a judge on the trial of an accused. In the matters before the court, I am not aware as to whether there was at any stage an application made to the trial judge to challenge by way of collateral review the validity of any warrant relevant to the charge on which Bartel was convicted.
In my view, there being no other proceeding presently before the court, relevant to this matter, as at present, it does not permit a judge of this court to make orders of the nature now sought by the plaintiff. There is no proceeding, as I understand it, now pending before this court. The proceeding by which the plaintiff sought leave to appeal to the Court of Appeal against his conviction has been refused and the plaintiff now has sought special leave to appeal to the High Court. It further appears that the probability is that there is no corporate body such as the Victorian Police Legal Unit, but rather it is a unit of the Victorian Police.
In my view, in the matters now before the court, notwithstanding that which has been stated by Sergeant Elston, there is no proper basis for the court to make any order requiring any person to confirm the existence or otherwise of any warrant issued pursuant to the Listening Devices Act in relation to the plaintiff during the period 1 November 1997 to 28 November 1997.
The next order sought by the plaintiff cannot be made unless the first order is made.
In my view, as there is no proceeding pending before this court, relevant to the plaintiff's conviction, other than the present application it is not appropriate on this application for the court to make any order of the nature sought by the plaintiff.
Accordingly, I formally order that the summons of the plaintiff returnable before the court this day be dismissed.
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