Caska v The Director General Department of Transport

[2001] NSWSC 205

CITATION:	Caska v The Director General of the New South Wales Department of Transport [2001] NSWSC 205
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 30026/00
HEARING DATE(S):	5/03/01, 6/03/01
JUDGMENT DATE:	28 March 2001
PARTIES :	Michael Ferdinand Caska - Plaintiff The Director General of the New South Wales Department of Transport - Defendant
JUDGMENT OF:	Simpson J

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	Z2965 219/97
LOWER COURT JUDICIAL OFFICER :	Mr V D Kearney

COUNSEL :	Plaintiff in person Mr M W Hadley - Defendant
SOLICITORS:	Corrs Chambers Westgarth - Defendant
CATCHWORDS:	Order- the nature of certiorari - Supreme Court Act 1970, s 69 - Passenger Transport Act 1990, ss 11,12,14,52,53 - suspension and cancellation of authority - appeal to Local Court - allegation of indecency - no error in law - no denial of natural justice - no evidence of bias - summons dismissed.
LEGISLATION CITED:	Supreme Court Act 1970 Passenger Transport Act 1990
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Azzopardi v Tasman UERB Industries Limited (1985) 4 NSWLR 139 at 155 New Broadcasting Limited v Australian Broadcasting Tribunal (1987) 73 ALR 420 Ziems v Prothonotary of Supreme Court of NSW (1957) 97 CLR 279 Re Davis (1947) 75 CLR 409
DECISION:	Summons dismissed with costs.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Administrative Law List

SIMPSON J

28 March 2001

Michael Ferdinand CASKA v THE DIRECTOR GENERAL OF THE NEW SOUTH WALES DEPARTMENT OF TRANSPORT

Judgment

HER HONOUR :

1 In these proceedings the plaintiff, Michael Ferdinand Caska, seeks an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970. He has named the Director General of the Department of Transport (to whom I will refer as the Director General) as the first defendant. The second defendant is a magistrate of the Local Court, Mr Kearney. He has entered a submitting appearance.

Procedural history

2    In 1995 Mr Caska held an authority issued under s 12 of the Passenger Transport Act 1990 (“the Act”), authorising him to drive a taxi cab. By letter dated 10 May 1995, acting under s 14 of the Act the Director General suspended the authority. Exercising his rights under s 52 of the Act, Mr Caska appealed against the suspension to the Local Court. On 3 November, again acting under s 14, the Director General cancelled Mr Caska’s authority. Mr Caska also appealed against the cancellation. On 20 February 1997, Mr Kearney upheld the decision of the Director General to cancel the authority. It is this decision of Mr Kearney to uphold the cancellation that Mr Caska seeks to have quashed by an order in the nature of certiorari. It is implicit that, should he be successful in that application, he would also seek to have the suspension quashed.

3    The basis for the suspension was stated in the letter of 10 May as:

“…on the night of 14 April 1995 at about 8 pm, whilst driving a public passenger vehicle, (taxi cab T3189) on the Cahill Expressway Sydney, you were seen by the hirers of the taxi cab to be masturbating.”

4    The Director General advised Mr Caska of the cancellation of his authority by letter of 3 November. In this letter the Director General re-stated the allegation of masturbation, and added:

“During the course of that journey you refused to set down the passengers when requested to do so and you made inappropriate comments to the passengers including:
a) ‘pretty young things’;
b) ‘getting up to mischief’;
c) ‘playing up’;
d) ‘we have to look for pretty girls like you’; and
e) ‘we have to mind your sexy little legs’.”

5    In each letter the Director General (through his delegate) asserted that Mr Caska was, by reason of the allegations, not a person of good repute or a fit and proper person to be the driver of a public passenger vehicle in accordance with the relevant statutory provisions.

6    During the course of the proceedings, both in the Local Court and in this court, the allegation that Mr Caska had masturbated was sometimes referred to as an allegation of indecency.

7 It is convenient here to set out the relevant provisions of the Act, as they stood at all relevant times. Significant amendment, not presently material, has since taken place.

Authorities
11(1) A person who drives a public passenger vehicle is guilty of an offence unless the person is the holder of an appropriate authority under this Division.
Maximum penalty: 100 penalty units
(2) The purpose of an authority under this Division is to attest:
(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle; and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:
(i) in accordance with the conditions under which a public passenger service is operated; and
(ii) in accordance with law and custom.
(3) The regulations may create categories or grades of authority.
Criteria and procedure
12(1) Having regard to the purpose of an authority, the Director General may grant authorities to persons applying for them.
(2) Applicants must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant.
(3) Procedures for the purposes of this section may be settled by the Director-General, subject to any provision in that behalf made by the regulations.
Variation, suspension or cancellation of authority
14 Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person’s authority.

Appeals
52(1) Any person whose application under Part 2 has been refused, or whose accreditation or authority has been varied, suspended or cancelled, may appeal to the Local Court.

(2) …


(3) …

(4) …

(5) …

(6) …

Conduct of appeals
53(1) The Director-General is entitled to answer an appeal under this Division.

(2) In deciding an appeal, it is the duty of the Court, having regard to this Act and the regulations, the circumstances of the case and the public interest, to declare the decision that the Director-General ought to have made in the matter, and to determine the appeal accordingly.

(3) Nothing in subsection (2) precludes the Court from hearing evidence of any fact or circumstance alleged to have been unknown to the Director-General at the material time.
(4) The decision of the Court in the matter is final, and in cases where the appeal is allowed, it is the duty of the Director-General to give effect to that decision.

8 Mr Caska has at all times represented himself, and has been responsible for preparing and drafting all documentation associated with the application. Accordingly, at the commencement of the hearing, I sought to ascertain the statutory basis of his application to this court. This he identified as s 69 of the Supreme Court Act. He limited the relief claimed to an order of the kind already identified, that is, an order in the nature of certiorari. It is pertinent here to note that although Mr Caska appeared as a litigant in person, he does in fact hold a legal qualification.

Certiorari

9 For the purposes of this case, the principles relating to the grant of an order in the nature of certiorari are not in doubt. An order will be made only where error is established on the face of the record. By s 69 (4) of the Supreme Court Act, the face of the record includes the reasons expressed by the court for its ultimate determination.

The application

10    Mr Caska commenced these proceedings by summons filed on 18 March 1997. He filed an amended summons on 27 June 2000. That is a lengthy document, which omitting formal parts, extends to 23 hand-written pages. In it Mr Caska purports to assert numerous errors of law. In fact, what he seeks in the summons is a declaration that, in forty-nine particularised respects, the magistrate erred in law. Many of these particulars have sub paragraphs, further particularising the asserted errors.

11    The amended summons is, as Mr Caska himself acknowledged in the course of argument, repetitive. That is something of an understatement. For example, in six separate particulars, Mr Caska seeks declarations that the magistrate was in error in failing, at the close of the evidence for the Director-General, to determine that there was no evidence to support the allegation of indecency; in failing, at that time, to determine that there was no sufficient evidence to support that allegation; and in failing at the same time, to determine that there was no probative evidence to support the allegation; in another three paragraphs, he seeks similar declarations of error in law by the failure of the magistrate to make the same determinations at the close of all of the evidence. In due course I will seek to distil the errors of law asserted by Mr Caska in the oral argument he directed to his claim.

12    Mr Caska supported his claim by filing numerous affidavits. He took a rather unusual course in the filing of his evidence. In a succession of affidavits he annexed the evidence of various witnesses. That is, the evidence of individual witnesses was annexed to separate affidavits. It is clear to me that the entire transcript of the proceedings is not before me.

13    Also by way of annexures to affidavits, Mr Caska has presented various statements, reports, references or testimonials which found their way into evidence.

Background

14    The events that precipitated the cancellation of Mr Caska’s authority to drive a taxi took place on the evening of 14 April 1995. That was Good Friday. Mr Caska was driving his taxi in Cremorne. He was hired by two young women, Nina Campbell, and her friend, who sought and was granted anonymity and was identified in the public transcript only as witness A. The two women sat in the back of the taxi. Witness A sat directly behind Mr Caska, Ms Campbell sat in the middle of the rear seat. They asked to be taken across the Harbour Bridge to the Hard Rock Café in Crown Street, East Sydney. To this point, there was no dispute. According to the evidence of the two passengers, at an early stage Mr Caska made a suggestive, possibly offensive, remark to them. Witness A recalled this as

“Do you sexy little girls have something big planned this evening?”
Ms Campbell recounted it as:

“You pretty young girls, looking for a big night out” or
“”having a good night out”.

Shortly after, having passed through the toll gates at the northern end of the Harbour Bridge, both passengers observed Mr Caska to be behaving in a peculiar manner. Witness A described his behaviour in the following way:

“The driver in front of me his head began to wobble, initially I thought he was dancing to the music on the radio as he was sort of humming as well…
He was certainly making a noise. I basically became worried because at this stage we were in lane 8 going across the Harbour Bridge, which is a very narrow lane with boundaries on either side, as we were coming off the Harbour Bridge the wobbling had continued and I then thought that possibly he was having a fit or a seizure or something like that…”

15    She said that his head was moving both up and down and from side to side, “sort of wobbling about”, and his shoulders were moving as well. She considered his driving to be quite erratic and described Mr Caska’s movements as “an erratic jerking about”.

16    Ms Campbell described what she saw as:

“The driver was making strange contortions with his face and also like shaking his head and shoulders, like spasm, sort of shaking.”

She said that the movement of his face did not appear like an involuntary twitch or the ordinary movement of facial muscles.

17    Ms Campbell was asked to describe the facial movements and said:

“His mouth appeared to be in a sort of crooked smile situation. His eyes were sort of, there was nothing, you know, he wasn’t rolling his eyes or anything.”

18    She said that Mr Caska’s upper shoulders were just moving slightly, she thought due to the head moving, and he was mumbling. This behaviour continued during the whole journey across the Harbour Bridge. As the vehicle came to the end of the bridge it turned into the Cahill Expressway and Ms Campbell noticed that Mr Caska’s left hand was in his lap, above his crutch, with the fingers pointing downwards. Initially she thought that he was scratching, but then saw that he continued to move his hand in an up and down direction. She said this was not just one or two movements but continuous and constant. About every two seconds his hand moved up and down from the body, the movements being about fifteen or twenty centimetres. For a time the movements became more rapid, the facial movements ceased, but the mumbling sound continued. Ms Campbell formed the view that Mr Caska was masturbating. She was unable to say whether his fingers were inside or outside the tracksuit pants he was wearing. As the taxi drew up at a set of traffic lights at the exit of the Cahill Expressway she smelt, and recognised the smell of, semen.

19    Ms Campbell then saw Mr Caska reach down onto the floor of the vehicle and retrieve a green pencil case which he put on his lap. This concerned her, as she thought that he may have had some sort of weapon. Witness A attempted to open the door in order to leave the taxi but the door was locked. She recalled Mr Caska saying;

“You can’t get out that side, that’s locked, we’ve got to protect pretty little legs like yours.”

20    Mr Campbell recalled this as;

“You pretty young things and little sexy legs.”

21    Ms Campbell opened the door on her side of the taxi, and gave witness A twenty dollars which witness A handed to the driver. The passengers left without waiting for the change that was due.

22    Both noted the telephone number of the taxi company and they telephoned the company immediately to report what had occurred.

23    On 10 May 1995 Mr Allan Wilkinson, Regional Manager of the Department of Transport, notified Mr Caska of the allegation of indecency made by the passengers. He made no mention of the allegations of offensive or inappropriate remarks. He advised Mr Caska that, because of the serious nature of the complaint, the Department considered him not a person of good repute or a fit and proper person to be the driver of a public passenger vehicle and that his authority was, accordingly, suspended. Mr Caska was given until 17 May to show cause why his authority should not be cancelled.

24    There followed a great deal of correspondence, mostly, it seems, directed by Mr Caska, or his supporters, to the Department. This correspondence was put before me in the present proceedings as an exhibit to an affidavit sworn by Louise Anne Cantrill, the solicitor handling the matter on behalf of the Director General. The same material was in evidence in the Local Court. The exhibit extends to two lever arch folders, but there is much duplication in the material. Mr Caska made no objection to my receiving it, although he observed that some parts of the material, at the back of volume 2, were irrelevant to the present application. This is correct and I have disregarded that material.

25 Mr Caska lodged an appeal under s 52 of the Act against the decision to suspend his authority.

26 On 3 November 1995 another Regional Manager, this time Mr Brian Scarfe, wrote again to Mr Caska, referring to the earlier notice. He advised that, after considering the material forwarded to him, the Department had decided, pursuant to s 14 of the Act, to cancel the authority.

27    Mr Scarfe noted the pending appeal against the suspension decision and invited Mr Caska to amend the appeal to encompass the decision to cancel the authority, so that all matters could be dealt with together. It appears that Mr Caska saw the sense in this suggestion and the appeal was amended accordingly.

The hearing of the appeal in the Local Court

28    The appeal came on for hearing before Mr Kearney. It proceeded over thirteen (non consecutive) days, between July 1995 and February 1997. Witness A and Ms Campbell gave evidence, called on behalf of the Director General. They were the only witnesses called on his behalf. They gave evidence on 13 November 1995 and 9 February 1996 respectively. They were extensively cross-examined by Mr Caska. He challenged their evidence that they could observe from the back seat what he was doing in the front seat. The remainder of the hearing was taken up with the evidence presented by Mr Caska. The case he advanced had a number of components. First, he denied masturbating. He claimed to have had a skin infection called intertriga that caused itchiness that in turn caused him (sometimes involuntarily) to scratch, on occasions vigorously. He claimed that this was the most plausible explanation for the physical movements the passengers had observed. He produced medical evidence about this condition.

29    Two dermatologists, Drs Cooper and Willsteed, gave evidence that the condition had been diagnosed on 9 August 1995 and was present in the groin area and on the insides of the upper thigh. The symptoms of the disease were perspiration and inflammation, and would be aggravated by overweight, wearing tight or synthetic clothing, remaining in a sedentary position, and fatigue. All of these were applicable to Mr Caska.

30    A second component of Mr Caska’s case involved a factual dispute in relation to Ms Campbell’s evidence that she had smelt semen. In cross-examination by Mr Caska Ms Campbell described the semen as having a foul odour. Mr Caska produced witnesses with medical qualifications who gave evidence that semen (in general) is odourless. His brother, a medical practitioner, gave evidence of conducting a “semen odour test” specifically related to Mr Caska. The effect of his evidence was that semen deliberately ejaculated by Mr Caska for the purpose of the test was odourless.

31    The third component of Mr Caska’s case was presented to the court through a series of witnesses, who, in effect, attested to Mr Caska’s good character. Many gave their evidence, initially at least, in the form of statements. Many expressed their disbelief of the allegations or otherwise commented on the ability or otherwise of the passengers to observe from the back seat what Mr Caska was doing in the front. Although this evidence was arguably inadmissible, Mr Kearney, sensibly in my opinion, did not reject it, but treated its content as a matter of weight.

The judgment

32 Mr Kearney delivered judgment orally on 20 February 1997. He referred to the relevant statutory provisions, these being ss 11, 14, 52 and 53 of the Act. He noted the communications between the parties prior to the appeal, and identified the particulars on which the Director General relied on the question of Mr Caska’s fitness to hold an authority to drive. These included the allegations that Mr Caska had made the inappropriate remarks referred to in the letter of cancellation of 3 November.

33    Mr Kearney directed himself that, having regard to the seriousness of the allegation and the potentially severe consequences for Mr Caska, the appropriate standard of proof was that stated in Briginshaw v Briginshaw (1938) 60 CLR 336. He recognised that the Director General had conceded (as he conceded in this court) that Mr Caska was a person of good repute. He correctly directed himself that the central question for his determination was whether Mr Caska was a fit and proper person to be the driver of a public passenger vehicle. This statement of the test was drawn directly from s 11(2). He considered that the resolution of that question, in turn, depended upon resolution of two factual issues: first, whether Mr Caska had committed the act of indecency alleged; and secondly, whether he had made inappropriate comments.

34    If it were not proved that Mr Caska had committed the act of indecency but had made inappropriate comments, a subsidiary question would arise as to whether the making of those comments was such as to render him not a fit and proper person to hold the authority. Having regard to the manner in which Mr Caska put his argument in this court, it will be necessary to consider below the proper consequences of the findings of fact in relation to these two matters.

35    Mr Kearney referred in some detail to the evidence that had been given, summarising the evidence of a each witness. He then returned to consider the evidence of the two passengers, with particular reference to whether they had been shaken in cross-examination. He concluded that they had not. He was not satisfied to the requisite standard that Mr Caska had masturbated to the point of ejaculation but he concluded that the act of masturbation had been proved to that standard. He then turned, very briefly, to the allegations of inappropriate remarks and held:

“Whilst there is not evidence to establish that each of the expressions complained of were indeed made use of by [Mr Caska], there is evidence which the court accepts that there was overall, inappropriate comment as set out in the formal evidence produced to the Court.”

The argument advanced on the present application

36    The oral argument presented by Mr Caska asserted error of law in the judgment in the following respects:-

(i) that there was no (or no probative or no sufficient) evidence to support the factual allegations;
(ii) error in the construction of s 11(2) of the Act;

(iii) failure to apply the appropriate (Briginshaw) standard of proof;
(iv) denial of natural justice;
(v) bias.

It will be necessary to deal with each of these in turn.

(i) No evidence

37    Whether there is any evidence of a particular fact is a matter of law: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Whether the evidence is sufficient to establish the fact is itself a question of fact: see Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 155, and the cases there cited. To assert, as Mr Caska does, that there is no probative evidence of a fact is no more than an alternative way of challenging the sufficiency of the evidence. It is a question of fact.

38    Once there is evidence of a fact, whether that evidence is sufficient, or has probative value, or is to be accepted or given weight, is a matter for the tribunal of fact, in this case the magistrate. It cannot be reviewed under the guise of an error of law. The only question this court can review is whether there was evidence, which, if accepted, would establish that Mr Caska committed the act of indecency, or made the remarks attributed to him. It is important to bear these principles in mind. It is only if there is no evidence of a fact that certiorari will lie.

39    Notwithstanding the extensive argument that was directed by Mr Caska to this aspect of the application, it can be disposed of very quickly. I have already referred to the evidence given by the two passengers of the act of masturbation. Plainly, there was evidence to support the allegation. It was open to the magistrate to accept that evidence, as he did. It does not advance Mr Caska’s case to argue that the evidence was not, or was insufficiently, probative or was otherwise insufficient. Cross-examination of the two passengers did not result in any retreat by either of them from the assertions they had made. The question whether that evidence was to be accepted or not was quintessentially one for the magistrate and he made no error in accepting it. There is no error in the conclusion that he reached on the indecency allegations. That is the end of the challenge to the finding of fact concerning the act of indecency.

40    As to the allegation of inappropriate remarks, Mr Kearney did not specify which remarks he found had been made. This may have created a difficulty if the indecency allegation had not been proved and he had relied on the findings of fact in relation to inappropriate comments to support his decision to uphold the cancellation of the authority. But, since the allegation of indecency was proved, the question of the inappropriate remarks can be put to one side, so far as this aspect of the argument is concerned.

41    The first basis of the application must therefore fail.

(ii) Construction of s 11(2)

42 By s 11(2)(a) the holder of an authority is required to have two attributes: he/she is to be considered “to be of good repute” and “in all other respects a fit and proper person to be the driver of a public passenger vehicle”. The magistrate was conscious of the concession that Mr Caska’s “good repute” was not challenged and was not in issue. The question he correctly identified for himself was whether he was “in all other respects a fit and proper person to be the driver of a public passenger vehicle”. He in fact enunciated this test explicitly.

43 It was not completely easy to understand Mr Caska’s argument in this respect. On one occasion he expressly conceded that a person who masturbated whilst driving a taxi was not a fit and proper person for the purposes of s 11(2). In my opinion this concession was clearly correct. At another point, he appeared to make the submission that even a person who did conduct himself in that way was not necessarily unfit, or, put another way, it was not necessarily appropriate that the authority of such a person be cancelled, and that alternative actions could be considered.

44 Although the magistrate did not expressly say so, I infer that he took the view that, if that allegation against Mr Caska was proved, then he was not a fit and proper person to be the driver of a public passenger vehicle, and the appropriate course of action was to cancel the authority. In my view this was correct. In saying this, I recognise that there may conceivably be circumstances in which some explanation is produced for the conduct adequate to warrant a different result, but this could only be so in exceptional circumstances. The fact that Mr Caska maintains his denial of the conduct necessarily entails that he has produced no such explanation. The magistrate was, accordingly, not in error in his approach to s 11(2).

45    Mr Caska advanced a subsidiary argument concerning the findings of fact in relation to the allegations of “inappropriate remarks”. He relied upon a decision of the Administrative Appeals Tribunal (“AAT”) in New Broadcasting Limited v Australian Broadcasting Tribunal (1987) 73 ALR 420. That was a case in which the Australian Broadcasting Tribunal (“the ABT”) had imposed, as a condition of the grant of a licence under the Broadcasting and Television Act 1941 (Cth), a condition that a particular person cease to be a member of the board of directors of the licence holder. The reason for the condition was that the director had failed, in six years, to file personal income tax returns. He had been prosecuted, convicted and fined. In the AAT Davies J removed the condition. The legislation required the ABT to refuse to renew a licence, inter alia, if it was satisfied that the licensee was no longer a fit and proper person to hold the licence. The only circumstance affecting the fitness or propriety of the licensee company was the involvement of the director. Davies J considered various authorities in relation to fitness and propriety, a recurrent phrase in legislation governing the issue of licences, authorities or certificates to perform certain functions or undertake certain roles. He referred to Ziems v Prothonotary of Supreme Court of NSW (1957) 97 CLR 279 and ReDavis (1947) 75 CLR 409, both of which were concerned with the fitness of individuals to practise as barristers. He concluded that the director’s failure to file tax returns was:

“not of such a nature or so serious as to lead to the conclusion that a company, having had him as its chairman … is not a fit and proper person to hold a broadcasting licence”.

46    It is, perhaps, unfortunate that his Honour introduced his consideration of the licence condition with the following sentence:

“I turn now to Mr Treasure’s peccadillos.”

47    I say this is unfortunate because Mr Caska seized upon this passage and adopted it. He argued that his propensity, if that is what it was, for making “inappropriate remarks” was no more than a peccadillo not warranting the cancellation of his licence.

48    If the finding that Mr Caska had made the inappropriate remarks stood alone, without the finding of indecency, there would be an argument as to whether it warranted cancellation of his authority, or for which, possibly, some lesser action such as suspension or variation or even counselling, would have been adequate. In saying this, I am not to be taken as accepting that cancellation would not be appropriate. The position is not as clear cut as is the position given the finding of indecency. Mr Caska seemed not to appreciate the offensiveness of remarks of the kind attributed to him, nor the humiliation and intimidation experienced by young women the subject of sexual innuendo, by persons known or unknown to them. I for myself would not describe a propensity to making sexually offensive remarks to young women as a mere peccadillo. But it is true, as I have already observed, that the situation would not be as clear cut as is the finding of indecent conduct.

49    In any view, this discussion is academic because of the finding of indecency. I mention it because it was a significant aspect of Mr Caska’s argument.

50 I am satisfied that no error has been demonstrated in relation to the construction of s 11(2).

(iii) Failure to apply the Briginshaw standard of proof

51    In the argument directed to this ground of the application, Mr Caska acknowledged that the magistrate expressly stated his intention to apply the Briginshaw standard of proof, but contended that he could not have done so or he would not have reached the conclusion that he did. Mr Caska argued that, on the evidence, it was not possible for the magistrate to have been persuaded to the requisite standard that he had behaved as alleged. He pointed to some factual matters, such as evidence that he was driving in fast moving traffic at the time on a busy Friday night and argued, therefore, that it was unlikely that he had done what was alleged against him. This was no more than a reprise of the factual argument that he had put to the magistrate, but which did not find favour with him.

52    In this context, Mr Caska further criticised the magistrate for not controlling the Director General’s witnesses and not requiring sufficient precision in their evidence. The transcript does not support these criticisms. A fair reading of the transcript shows that the witnesses gave their evidence concisely and clearly. There was no failure to control or exert discipline upon the witnesses in relation to the manner of their giving evidence.

53    There was no failure to apply the appropriate standard of proof.

(iv) Denial of natural justice

54    The essence of the criticisms in this regard is that the magistrate failed to take appropriate or necessary steps to ensure that witnesses Mr Caska sought to have called did in fact give evidence. The issue arose on 24 October 1996. This was the seventh day of hearing. By this time Drs Ruthven, Finley-McNeil and John Caska had already given evidence. Drs Cooper and Willsteed gave evidence on that day. 24 and 25 October had been set aside for the hearing. Mr Caska applied for an adjournment in order to recall Drs Finley-McNeil and John Caska and certain lay witnesses who included Peter Cody and Colin Campbell. He said that he had attempted to serve a subpoena on Dr Finley-McNeil, giving him six weeks’ notice, but that the doctor had said he needed at least two to three months’ notice.

55    The magistrate disclosed that a telephone message had been received from a Peter Cody. Mr Cody was a taxi driving colleague of Mr Caska. The message relayed by the magistrate was that Mr Cody had been served with a subpoena at 10.45 pm the previous day when he was on his way to work on night shift. He said that he was unable to attend court because he had been working all night and in any event he felt that his evidence would not be of assistance to either party.

56    There were other persons identified by Mr Caska as persons he wished to call as witnesses. The transcript is not completely clear about the identities of all the witnesses Mr Caska sought to have available or the issues to which their evidence would be directed. It does appear that the lay witnesses, at least, were intended as character witnesses. In relation to one proposed witness there was a message that no conduct money had been provided with the subpoena that had been served upon her.

57    In the result the magistrate did not accede to Mr Caska’s request for adjournment, and this, essentially, is the basis of the present complaint. Mr Caska has submitted, not only that the adjournment should have been granted, but that the magistrate should have taken additional steps of his own volition to ensure the attendance at court of the witnesses he wished to call. In this respect he made submissions concerning his own lack of funds and inability to ensure their attendance.

58    The argument must be rejected. It is not for a judicial officer to conduct a party’s case. To do so would compromise judicial impartiality.

59    The other difficulty faced by Mr Caska in relation to this aspect of his argument is that, on 14 June, Mr Kearney had expressly advised Mr Caska of the importance of ensuring the attendance of any witnesses from whom he wished to adduce evidence on 24 and 25 October. He stated his intention, so far as it was possible, to hear the matter to conclusion on those two days. He explicitly warned Mr Caska that he may well have difficulty in any adjournment he sought on those days.

60    The grant or refusal of adjournment is essentially a discretionary matter, subject to review only on established principles. Not only was Mr Caska fully informed, four months earlier of the need to have his witnesses available but, in any event, there was nothing put before me to support a conclusion that any material evidence was denied to the court.

61    I am satisfied that there was no denial of natural justice either in the refusal to grant the adjournment sought, or in the failure of the magistrate to take any additional steps to secure the attendance of witnesses for Mr Caska. No error of law is demonstrated.

(v) Bias

62    The submissions made by Mr Caska in relation to his complaint that the magistrate exhibited bias really depended upon his complaint about the result. He did not point to any fact or piece of evidence from which it could be seen or inferred that there was any actual or apprehended bias on the part of the magistrate. Rather, he worked backwards from the findings of fact which were adverse to him, and contended that those findings could only have been made by a person who did not bring an impartial mind to bear on the factual and legal issues. In other words, from the adverse findings of fact Mr Caska would seek to infer bias.

63    This reasoning is impermissible. Indeed, a reading of the transcript that has been put in evidence before me establishes clearly that the magistrate exhibited enormous patience and fairness in the conduct of the proceedings. That an appeal involving the determination of the narrow factual issues that were involved in this case could extend over thirteen days, the huge majority of it being taken up with Mr Caska’s evidence and his own submissions, demonstrates beyond doubt that he was given every opportunity to put everything he wished to put, both by way of evidence and by way of argument.

64    Moreover, the judgement itself discloses a proper appraisal of the evidence. Nowhere is this more plain than in Mr Kearney’s finding that he was not satisfied to the requisite standard that ejaculation had occurred, even though he was satisfied that masturbation had.

65    The accusation of bias is rejected.

66    No error of law has been demonstrated the result is that the summons must be dismissed with costs.

**********

Last Modified: 04/30/2001