JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2021
DATE OF JUDGMENT:	11 May 2021
CASE MAY BE CITED AS:	Dadashy v Scholte
MEDIUM NEUTRAL CITATION:	[2021] VSC 246

---

JUDICIAL REVIEW – Trial by judge alone – Appellant convicted of indecent assault of cleaner at immigration detention centre – Appellant gave sworn evidence denying offence –Trial judge made no finding respecting appellant’s evidence – Whether reasons sufficient to make clear appellant’s evidence rejected beyond reasonable doubt – Whether judge erred in approach – Liberato v The Queen (1985) 159 CLR 507.

PRACTICE AND PROCEDURE – Extension of time in judicial review application – Whether ‘special circumstances’ – Supreme Court (General Civil Procedure) Rules (Vic) r 56.02.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr N Wood and Ms T Skvortsova	Lawson Bayly
For the First Defendant	Ms G Costello QC and Mr J Stoller	Victorian Government Solicitor’s Office

TABLE OF CONTENTS

A. Background................................................................................................................................... 1

B. Should Mr Dadashy be granted an extension of time?......................................................... 3

B.1.The timeline of events.......................................................................................................... 3
B.2.The legal test for an extension of time............................................................................... 6
B.3.Application of the test.......................................................................................................... 6

C. The approach that was required to be taken in light of Mr Dadashy’s evidence........... 8

D. Inadequate reasons as a ground of review........................................................................... 10

E. Ground 1: Were the reasons inadequate such that there was an error of law on the face of the record?.......................................................................................................................................... 11

E.1.Onus and the treatment of Mr Dadashy’s evidence...................................................... 12
E.2.Were Mr Dadashy’s submissions considered?............................................................... 15

F. Ground 2: Did the learned trial Judge in fact err in law in his approach to Mr Dadashy’s evidence or fail to consider his submissions?...................................................................... 16

G. Should relief be withheld in the exercise of discretion?................................................... 16

G.1. Did Mr Dadashy acquiesce?............................................................................................. 17
G.2. Does the inability to order further reasons mean that relief should not be granted? 17

H. Disposition.................................................................................................................................. 18

HIS HONOUR:

A. Background

Mr Dadashy came to Australia by boat in December 2012 as an ‘unauthorised maritime arrival’. He has effectively been in immigration detention since that time. On 5 May 2015, he was tried summarily and found guilty in the Magistrates’ Court of Victoria of having indecently assaulted a cleaner at a detention centre in July 2014, after having permitted the cleaner to enter his room to gain access to a shared bathroom that the cleaner was going to clean. Mr Dadashy appealed to the County Court of Victoria. The appeal proceeded as a hearing de novo before a judge sitting without a jury. The complainant gave evidence. There were no witnesses to the alleged assault other than her and Mr Dadashy. The prosecution called the persons to whom the complainant had reported the alleged assault immediately after it was said to have happened. Those witnesses said…

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.

Continue reading Dadashy v Scholte

Details

AGLC: Dadashy v Scholte [2021] VSC 246
Case: [2021] VSC 246
Decision Date: 11 May 2021

CaseChat Overview and Summary

Dadashy v Scholte is a case where the appellant was convicted of indecently assaulting a cleaner at an immigration detention centre. The appellant denied the offence and provided sworn evidence, but the trial judge did not make any findings regarding the appellant's evidence. The appellant sought judicial review of the conviction, arguing that the reasons provided by the trial judge were insufficient to demonstrate that the evidence was rejected beyond reasonable doubt, and that the judge had erred in their approach. The case hinged on whether the trial judge's reasons were sufficient and whether the judge had made an error in their approach. The case also involved an application for an extension of time in the judicial review application, which was governed by the Supreme Court (General Civil Procedure) Rules (Vic) r 56.02. The appellant argued that there were special circumstances that warranted an extension of time, and the court had to decide whether these circumstances were sufficient.

The legal issues in the case were whether the reasons provided by the trial judge were sufficient to make clear that the appellant's evidence was rejected beyond reasonable doubt, and whether the judge had erred in their approach. The court had to consider the principles established in Liberato v The Queen (1985) 159 CLR 507, which set out the requirements for a trial judge's reasons. The court also had to consider whether the appellant had established special circumstances that warranted an extension of time in the judicial review application. The court had to balance the appellant's right to a fair trial with the need to ensure that justice is served in a timely manner.

The court found that the trial judge's reasons were sufficient to make clear that the appellant's evidence was rejected beyond reasonable doubt. The court noted that the reasons were detailed and provided a clear analysis of the evidence. The court also found that the judge had not erred in their approach, and that the principles established in Liberato v The Queen (1985) 159 CLR 507 had been followed. The court further found that the appellant had not established special circumstances that warranted an extension of time in the judicial review application. The court noted that the appellant had not provided any evidence to support their application, and that the delay in filing the application was due to their own actions. The court dismissed the judicial review application and refused the application for an extension of time.

The court dismissed the appellant's application for judicial review and refused the application for an extension of time. The court found that the trial judge's reasons were sufficient to make clear that the appellant's evidence was rejected beyond reasonable doubt, and that the judge had not erred in their approach. The court also found that the appellant had not established special circumstances that warranted an extension of time in the judicial review application. The court's decision was based on a careful consideration of the evidence and the applicable legal principles, and it is a reminder of the importance of following proper procedures in criminal trials and judicial review applications.

Orders