Dadashy v Scholte

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 05476

MOHAMMAD DADASHY	Plaintiff
v
CONSTABLE MELISSA SCHOLTE	First Defendant
COUNTY COURT VICTORIA	Second Defendant

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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

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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.

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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 that the plaintiff was visibly distressed when she reported the alleged assault. Mr Dadashy denied, on oath, that the assault occurred. No argument was put of consent or of mistaken identity. Rather, Mr Dadashy swore that the assault simply did not happen, and indeed denied that he had permitted the complainant to enter his room or that they had been in his room together at all. He did not call any other evidence.

Only one of the complainant or Mr Dadashy could be telling the truth. No motive was established or suggested for which the complainant might have been giving false evidence. It was suggested to Mr Dadashy, but he denied, that he was denying the assault because he knew that if he was found guilty it would affect his prospects of obtaining a visa. On 15 October 2015, Mr Dadashy was found guilty by the County Court. On 18 December 2015, he was sentenced to a fine of $1,750.

There was no right of appeal from that decision.[1] However, the decision was subject to judicial review under ord 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). Rule 56.02(1) required that a proceeding for judicial review be commenced within 60 days. Rule 3.02(1) allows the Court to extend this time, but r 56.02(3) provides that the Court shall not extend time except in ‘special circumstances’. Mr Dadashy did not commence this proceeding, in which he seeks judicial review of the County Court’s decision and an extension of time, until 2 December 2019. The application was supported by an affidavit sworn by Mr Dadashy. He was not cross-examined. The first defendant, Constable Scholte, was the informant below. The second defendant, the County Court of Victoria, wrote to the Court advising that it did not intend to take an active role in the proceeding and that it would abide the decision of the Court.[2]
[1]Section 274 of the Criminal Procedure Act 2009 (Vic) grants a person convicted of an offence by an ‘originating court’ the right to appeal against conviction in the Court of Appeal. Section 3 defines ‘originating court’ as the County Court in its original jurisdiction or the Trial Division of the Supreme Court in its original jurisdiction. There is no provision granting a right to appeal from a de novo appeal in the County Court other than against sentence, and even then only in certain circumstances provided for in s 283.
[2]See R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35–6 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).

Mr Dadashy contended that the reasons provided were inadequate in that they do not allow the reader to ascertain whether or not the learned Judge made an error of law. If so, there is an error of law on the face of the record. Alternatively, he contended that the reasons positively show that the learned Judge failed to consider his evidence or counsel’s arguments, and that his Honour applied the wrong legal onus. If so, his Honour committed jurisdictional error.

In both grounds, Mr Dadashy’s argument focused on the way the reasons treated, or failed to treat, the fact that he had given sworn evidence that he had not assaulted the complainant. The relevant part of his Honour’s reasons were as follows:

In my view significantly [the complainant] immediately complained to a fellow cleaner and to her supervisor and management about what had happened. She was greatly distressed and upset within mere minutes of the alleged incident. For his part Mr Dadashy gave sworn evidence denying any contact with [the complainant] on the relevant day.
I found [the complainant] to be an honest and credible witness. Despite puttage to the contrary her credibility was in no undermined by any established motive to falsify an allegation of sexual abuse. She was exposed to cross-examination and to the extent that there were any discrepancies between her evidence, her police statement and her description of what had occurred to other people I consider those discrepancies were essentially minor and partially explained by the immediate effect of the offending on the complainant and the passage of time.
A number of submissions were advanced by counsel for the appellant, Ms Beech. It is unnecessary to recite those submissions in any detail. I have considered them carefully and I am in no way persuaded that the credibility of the complainant in this case has been undermined or tarnished in any meaningful way. In those circumstances I find the charge of indecent assault proven.

B. Should Mr Dadashy be granted an extension of time?
B.1. The timeline of events

Mr Dadashy, who immediately after the trial was without legal assistance, made some prompt attempts to initiate a review of his conviction:

(a) On 19 January 2016, he emailed the Magistrates’ Court and the County Court seeking a copy of the transcript so that he could appeal. The Magistrates’ Court replied, indicating that there was no transcript, and asked whether he wanted a copy of the audio recording instead. The County Court indicated that there was no transcript but that it would forward the request to the Court registry.

(b) On 21 January 2016, Mr Dadashy emailed the registry of the Court of Appeal of the Supreme Court of Victoria, advising that he was ‘applying for an Appeal of a criminal conviction’, and apparently attaching various forms including an application for an extension of time and a ‘notice of application for leave’. These documents were not in evidence before me. The registry responded and indicated that the documents could not be filed, referred Mr Dadashy to s 283 of the Criminal Procedure Act 2009 which limited the right to appeal to the Court of Appeal to cases where the County Court had imposed a term of imprisonment, and suggested that Mr Dadashy seek legal advice. The registry also suggested that, if he wanted information relating to an appeal to the trial division rather than to the Court of Appeal, he contact the self-represented litigants co-ordinator.

(c) On 22 January 2016, the trial Judge’s associate replied (to Mr Dadashy’s 19 January 2016 email) indicating that his Honour had granted him access to the file to inspect or copy, but advising that this had to be done at the registry. Mr Dadashy replied indicating that he could not attend to do that because he was in immigration detention. His Honour’s associate then replied, advising that he could send a lawyer or a third party with written authority to inspect and copy it on his behalf. Mr Dadashy had no one to help him in this way.[3]
[3]Mr Dadashy swore to this in his affidavit filed in support of his application.

(d)
On 25 January 2016, Mr Dadashy emailed the self-represented litigants

co-ordinator, asking for assistance. The email was replied to by the criminal registry of the Supreme Court. The reply referred Mr Dadashy to the Court’s relevant website, and suggested that he seek legal advice from Victoria Legal Aid or a referral from the Law Institute of Victoria.

(e) In March 2016, Mr Dadashy sought assistance from Victoria Legal Aid, but was told that it could not help, because the conviction had not resulted in a term of imprisonment.[4]

[4]The documents tendered are consistent with Mr Dadashy’s communications with Legal Aid concerning his immigration matters, rather than his wish to appeal his conviction. However, Mr Dadashy swore in his affidavit that he was told by Legal Aid that it could not help for that reason, and, as he was not cross-examined, I have accepted the evidence in his affidavit.

Three years and nine months then passed until Mr Dadashy commenced this proceeding on 2 December 2019. Throughout this time Mr Dadashy remained in detention. During this time, Mr Dadashy pursued his claim for recognition as a refugee and sought relevant visas. Relevant events include the following:

(a) On 27 January 2016, Mr Dadashy was transferred to Christmas Island, and stayed there until 21 June 2018 when he was transferred to a hospital. He says, and I accept, that his mental health deteriorated very significantly during his time on Christmas Island and thereafter.

(b) On 20 April 2016, the Minister ‘raised the bar’ that had previously prevented him, as an unlawful maritime arrival who had arrived in Australia on 20 December 2012, from applying for a Safe Haven Enterprise Visa (‘SHEV’).

(c) On 22 June 2016, he applied for a SHEV. He was assisted in this application by the Refugee Advice and Casework Service.

(d) On 30 June 2016, the Minister indicated that he would not consider intervening under s 195A of the Migration Act 1958 to give Mr Dadashy a bridging visa. The briefing note set out Mr Dadashy’s record while in detention, including the fact that he had been found guilty of the charge the subject of this proceeding. It also referred to two other occasions when Mr Dadashy had been accused of assaulting other detainees but where charges had not been laid.

(e) On 7 September 2016, a delegate of the Minister refused Mr Dadashy’s application for a SHEV.

(f) On 29 November 2016, the Immigration Assessment Authority determined that Mr Dadashy did not have a well-founded fear of persecution and thus that he did not meet the requirements to be recognised as a refugee. It affirmed the decision of the delegate of the Minister to deny Mr Dadashy a SHEV.

(g) On 1 January 2017, Mr Dadashy applied to the Federal Circuit Court for judicial review of the decision of the Immigration Assessment Authority. On 8 June 2017, his application was dismissed by the Federal Circuit Court. Mr Dadashy then appealed to a single judge of the Federal Court. On 22 June 2018, that appeal was dismissed.

(h) In late 2019, another detainee, with whom Mr Dadashy had become friends, read the paperwork in his case. Mr Dadashy has limited ability to read and write in English. Mr Dadashy then requested that the Minister exercise his power to allow Mr Dadashy to apply again for a SHEV. The reason put forward, identified with the help of the other detainee, was that the Immigration Assessment Authority had formed its view based on a mistranslation of a document. A ‘corrected’ translation was provided. As at the hearing of this proceeding, the Minister had not made a decision on this request.

The other detainee also helped Mr Dadashy with the application that he filed in this Court on 2 December 2019. Mr Dadashy says, and I accept, that he would have been unable to understand the process or to file relevant documents without the other detainee’s help.

B.2. The legal test for an extension of time

As noted above, r 56.02(1) provides that the Court shall not extend time for the commencing of a proceeding under ord 56 except in special circumstances. In reality, this means that not only must it be in the interests of justice that time be extended, which would be the case in any ordinary application to extend time under the Rules, but an additional requirement that there be ‘special circumstances’ must also be met. Although the phrase ‘special circumstances’ is deliberately flexible, it requires that there be some feature or features of the application for an extension of time that take it outside the realm of the ‘usual or common’.[5]
[5]Mann v Medical Practitioners Board of Victoria (2004) 21 VAR 429, 450 [70] (Hansen AJA, Chernov and Nettle JJA agreeing).

B.3. Application of the test

In this case, Mr Dadashy:

·had little ability to read or write English;
·had little knowledge of the legal system;
·initially sought to appeal his conviction but was unable to do so due to his lack of legal knowledge;
·was throughout the relevant period in immigration detention and thus faced considerable difficulties in accessing any legal advice or legal files;
·had had his request for legal aid refused; and
·suffered from mental health issues associated with his detention.

These matters take this case out of the usual or common and together constitute ‘special circumstances’. They also go to the issue of whether, in all the circumstances of the case, time should be extended. In my view, it should be.

I am conscious that the time-period under consideration is long, and that extending time to allow an application to be brought carries with it the risk of compromising the public interest in the finality of litigation. It also carries with it the potential to cause further distress to the complainant, in the event that the conviction is set aside.[6] In addition, if the prosecution choose to call her, the quality of the evidence that the complainant and the other witnesses would be able to give would also likely be compromised due to the effluxion of time. Alternatively, if the prosecution choose not to call the complainant to give evidence for the third time, the public interest in prosecuting persons who, there is good reason to think, may have committed a criminal offence, would also be compromised. But these factors are to be weighed against not only the matters set out in para 10 above, which adequately explain the delay, but also the facts that:
[6]I note, though, that the first defendant did not lead evidence on this point.

(a) The application relates to the conviction for a criminal offence. There is a public interest in ensuring that persons whose convictions are unsafe are able to have those convictions set aside, and accordingly that they be permitted to bring applications in which they contend for that result where there is a realistic prospect of success;

(b) The application has realistic prospects of success; and

(c) The existence of the conviction will likely and significantly detrimentally affect Mr Dadashy’s prospects of obtaining a visa which, if obtained, would permit him lawfully to leave immigration detention. This is because, in the event that the Minister does permit Mr Dadashy to make a second application for a SHEV, Mr Dadashy says, and I accept, that the fact that he has a conviction for an indecent assault materially reduces his prospects of:

(i) obtaining a bridging visa; or

(ii) obtaining a SHEV, even if he is found to be a genuine refugee, because he will likely fail the ‘character test’. I note that s 501(6)(aa)(i) of the Migration Act 1958 (Cth) provides that a person does not pass the character test if that person has been convicted of an offence that was committed while that person was in immigration detention.

Weighing all these factors, in my judgment there are special circumstances in this case and the interests of justice warrant the granting to Mr Dadashy of an extension of time.

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

As noted above, there were no independent witnesses to the alleged offence. The complainant swore that Mr Dadashy had assaulted her, and he swore that he had not and in fact had not had anything to do with her on that day. One of them must be wrong. In these circumstances, it has been recognised that a jury hearing the case might decide the case by deciding which of the two versions was more probable. Accordingly, there is a risk that the jury might decide such a case on the ‘balance of probabilities’; the jury might convict simply because it finds the complainant’s evidence more persuasive than the accused’s, or even simply because it does not accept the accused’s evidence. The legally required approach, though, remains that the jury consider whether, in light of all the evidence, the offence is proved beyond reasonable doubt. This approach allows for the possibility that a complainant might be thought to be truthful, or an accused untruthful, but that there may still be reasonable doubt as to guilt.

For this reason, a judge charging a jury in such a case must give what has come to be known as a ‘Liberato’ direction, after Liberato v The Queen.[7] In that case, the Court said:

When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question: who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issues which it bears the onus of proving. The jury must be told that, even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue.[8]

[7](1985) 159 CLR 507.

[8]Ibid 515 (Brennan J, Deane J agreeing).

The direction has been refined in the Criminal Charge Book published by the Judicial College of Victoria as follows:

In this case, there is a clear conflict between the evidence of [prosecution witness] and the evidence of [defence witness].
It is not necessary for you to accept [defence witness’s] evidence in order to find the accused ‘not guilty’. In keeping with the requirement that the prosecution must prove their case beyond reasonable doubt, you must acquit [the accused] if [defence witness’s] evidence gives rise to a reasonable doubt.
This is the case even if you prefer the evidence of [prosecution witness] to the evidence of [defence witness]. It is not sufficient for you merely to find the prosecution case to be preferable to the defence case. Before you can convict [the accused], you must be satisfied that the prosecution have proven their case beyond reasonable doubt.
So even if you do not think [defence witness] is telling the truth, but are unsure where the truth lies, you must find the accused "not guilty".
In fact, even if you are convinced that [defence witness’s] evidence is not true, it is not the case that you must convict [the accused]. In such circumstances, you should put [defence witness’s] evidence to one side, and ask yourself whether the prosecution have proved the accused’s guilt beyond reasonable doubt on the basis of the evidence you do accept.[9]

[9]< type="1">

The High Court reformulated the direction, in terms not dissimilar to those set out above, in De Silva v The Queen, as follows:

[I]t is preferable that a Liberato direction be framed along the following lines: (i) if you believe the accused’s evidence (if you believe the accused’s account in his or her interview with the police) you must acquit; (ii) if you do not accept that evidence (account) but you consider that it might be true, you must acquit; and (iii) if you do not believe the accused’s evidence (if you do not believe the accused’s account in his or her interview with the police) you should put that evidence (account) to one side. The question will remain: has the prosecution, on the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?[10]

[10](2019) 375 ALR 1, 5 [12] (Kiefel CJ, Bell, Gageler and Gordon JJ) (citations omitted).

Associated with this analysis is the requirement that the issue as to whether an offence is proved beyond reasonable doubt must be determined in light of all the evidence. This means that where a complainant and an accused give conflicting evidence, the truthfulness and reliability of each must be assessed in light of the conflicting evidence of the other. It would be wrong to look at the evidence of a complainant in isolation, determine to accept it, and then, for that reason, reject the evidence of the accused as it were as a matter of logic, and conclude the offence proved beyond reasonable doubt. This approach could have the accused rightly ask why his or her evidence was not considered first. This problem is obviated if, rather than an accused’s evidence being excluded because it is contrary to the complainant’s, the question is asked whether, notwithstanding the apparent truthfulness and reliability of the complainant’s evidence, the accused’s evidence raises a reasonable doubt as to guilt.

For present purposes, the important point is that it would have been wrong had the learned Judge decided the case by applying an onus less than that the offence be proved ‘beyond reasonable doubt’, and that the prospect of that occurring is enlivened in circumstances where the case may be seen as ‘word against word’. Put another way, it would have been wrong to have found Mr Dadashy guilty of the offence if:

(a) his evidence raised a reasonable doubt, even if the complainant’s evidence were more persuasive than his; or

(b) the only reason for finding that his evidence did not raise a reasonable doubt was that it conflicted with the complainant’s evidence.

D. Inadequate reasons as a ground of review

It now seems settled that a Court is ordinarily required to give reasons as an incident of the judicial process.[11] Further, the reasons given are part of the ‘record’,[12] so if the reasons reveal that the Court has erred in law in reaching its decision, the decision may be set aside on the grounds that there is an ‘error of law of the face of the record’.[13] Of course, if the reasons reveal jurisdictional error, the decision may be set aside on that basis, too.
[11]R v Arnold [1999] 1 VR 179, 181 [8] (Phillips JA, Winneke P and Kenny JA agreeing); Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1, 30–1 [99] (Charles, Buchanan and Chernov JJA); Makeham v Sheppard [2020] VSCA 242, [34]–[36], [58] (Priest JA, Kyrou and Weinberg JJA agreeing); Wainohu v New South Wales (2011) 243 CLR 181, 192 [6], 208–9 [44], 213–15 [54]–[58], 219 [68] (French CJ and Kiefel J), 225 [92], 228–9 [103]–[105], 229–30 [108]–[109] (Gummow, Hayne, Crennan and Bell JJ). Cf Perkins v County Court of Victoria (2000) 2 VR 246, 270–1 [55]–[56] (Buchanan JA, Phillips and Charles JJA agreeing).
[12]Administrative Law Act 1978 (Vic) s 10.
[13]Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 492 [26] (French CJ, Crennan, Bell, Gageler and Keane JJ).

It follows that the reasons have to be sufficient to ascertain whether or not there has been an error of law. If they are not, they have not fulfilled one of the purposes for which they are required. The failure to provide adequate reasons is then itself an error of law. A court hearing an appeal from that decision may set aside the decision on that basis.[14] But because the obligation to provide adequate reasons applies even when there is no statutory right of appeal,[15] the decision may also be quashed for that reason in an application for judicial review.[16] Indeed, counsel for the first defendant properly accepted as much.
[14]Pettitt v Dunkley [1971] 1 NSWLR 376, 388 (Moffitt JA); Sun Alliance Insurance Ltd v Massoud [1989] VR 8, 18 (Gray J); Dornan v Riordan (1990) 24 FCR 564, 573 (Sweeney, Davies and Burchett JJ); Commissioner of State Revenue v Anderson (2004) 22 VAR 181, 191 [33] (Nettle J); Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 492 [26] (French CJ, Crennan, Bell, Gageler and Keane JJ).
[15]Wainohu v New South Wales (2011) 243 CLR 181, 214 [55] (French CJ and Kiefel J), quoting with approval from Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 386 (Mahoney JA); Ta v Thompson (2013) 46 VR 10, 17 [35]–36], 19 [43] (Osborn JA), 25 [77] (Priest JA); R v Arnold [1999] 1 VR 179, 181–2 [8] (Phillips JA).
[16]Ta v Thompson (2013) 46 VR 10, 15 [25], 17 [36], 22 [62] (Osborn JA), 25 [77] (Priest JA).

Perkins v County Court of Victoria suggests that a want of reasons may amount to an error of law only where the absence of reasons would frustrate an appeal and that there is no ‘all-embracing’ principle that a failure to state reasons or adequate reasons constitutes an error of law.[17] However, if this decision means that a judicial decision may not be quashed in a judicial review proceeding on the grounds that the reasons are inadequate, then in my view it does not survive: the broad statements of principle set out in Fletcher Constructions v Lines MacFarlane (No 2);[18] Ta v Thompson,[19] where it was accepted in a judicial review proceeding that a decision could be quashed if the reasons were inadequate; or the unqualified description in Makeham v Sheppard of ‘the duty attaching to every judicial officer to provide adequate reasons for decision’.[20]

E. Ground 1: Were the reasons inadequate such that there was an error of law on the face of the record?
E.1. Onus and the treatment of Mr Dadashy’s evidence

[17](2000) 2 VR 246, 270–1 [56] (Buchanan JA, Phillips and Charles JJA agreeing). Although the Court determined, in any event, that the reasons were adequate — as to which see 272–3 [62].

[18](2002) 6 VR 1.

[19](2013) 46 VR 10, 15 [25], 17 [36], 22 [62] (Osborn JA), 25 [77] (Priest JA).

[20][2020] VSCA 242, [35] (Priest JA).

The correct legal approach is set out in Part C above. The reasons will be inadequate if they do not permit the reader to ascertain whether or not the correct legal approach has been followed. What is required will otherwise depend on the particular circumstance of each case and rules of general application are unsafe. That said, it would be an unusual case where a judge who has found a person guilty of a criminal offence, when that person had given sworn evidence denying having committed the offence, did not give some reasons for which that sworn evidence was rejected or did not raise a reasonable doubt as to that person’s guilt. Although dissenting as to the result, Nettle J said in DL v The Queen:

Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other. Similarly, while a judge is not required to deal with every argument and issue that might arise in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law.[21]

[21](2018) 266 CLR 1, 44–5 [131] (citations omitted) (emphasis added).

Mr Dadashy relied on Douglass v The Queen.[22] In that case, Mr Douglass was convicted of an aggravated indecent assault on his granddaughter, when the only evidence against him was that given by his granddaughter. The granddaughter was only three years old when the alleged offences occurred, her version of events had varied in significant ways, and she only implicated her grandfather as a result of leading questions after she had initially volunteered information to the contrary. Mr Douglass gave evidence and denied the allegations. The trial judge noted that Mr Douglass had given sworn evidence denying the allegations, and said that there was nothing in his demeanour that ‘assists the prosecution’. The trial judge accepted the granddaughter’s evidence, which, clearly enough, was incompatible with Mr Douglass’ evidence, and found Mr Douglass guilty. However, the trial Judge did not expressly reject Mr Douglass’ evidence, or give any reasons for which he found it unpersuasive. The High Court set the conviction aside, and said:

To dismiss [Mr Douglass’] complaint respecting the sufficiency of the reasons on the footing that the judge’s acceptance of [the granddaughter’s] evidence necessarily carried with it rejection of his evidence was to overlook that the judge’s acceptance of [the granddaughter] as truthful was not inconsistent with the existence of a reasonable doubt as to guilt. Even if the judge was not persuaded by [Mr Douglass’] evidence, he could not convict unless satisfied that it was not reasonably possibly true.[23]
… In this case, the failure to record any finding respecting [Mr Douglass’] evidence left as one possibility that the judge simply preferred [the granddaughter’s] evidence and proceeded to convict upon it applying a standard less than proof beyond reasonable doubt. The absence of reasons sufficient to exclude that possibility constituted legal error.[24]

[22](2012) 86 ALJR 1086.

[23]Liberato v The Queen (1985) 159 CLR 507, 515 (Brennan J) (citation in original).

[24]Douglass v The Queen (2012) 86 ALJR 1086, 1089–90 [13]–[14] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).

The first defendant contended that, if the reasons are read fairly, the proper inference to draw is that his Honour was satisfied beyond reasonable doubt that Mr Dadashy’s evidence was untrue and that he was also satisfied beyond reasonable doubt that the complainant’s evidence was true. I accept that if this were the trial Judge’s reasoning process, then the conviction would be safe.

Each case will turn on its own facts and it is important not to elevate a factual finding in one case into a principle of general application. The problems that existed with the granddaughter’s evidence in Douglass v R do not affect the complainant’s evidence in this case. Rather, the complainant was an adult, made a contemporaneous complaint, was seen to have been distressed immediately afterwards, and had given a reasonably consistent version of events. However, there are some similarities in the way the trial judges reasoned in Douglass v R and this case, in that in this case the learned trial Judge also:

(a) accepted and acted upon the complainant’s evidence to convict the accused, which evidence was inconsistent with the accused’s evidence; but

(b) did not ascribe any reason for which he rejected the accused’s evidence, or otherwise express any concerns about it other than, by implication, its conflict with the complainant’s evidence.

In the circumstances of this case, I suspect that the learned trial Judge did direct himself correctly in accordance with the Liberato principles. However, that suspicion is informed by the fact that this was an experienced Judge who might be expected not to make the fundamental error of failing to consider Mr Dadashy’s sworn denials when considering whether the complainant’s evidence established his guilt beyond reasonable doubt, or by treating the issue as one of choosing between the complainant’s evidence or Mr Dadashy’s evidence, and thus potentially applying the wrong onus. But suspicion informed in this way is not enough. In my judgment, the reasons do not establish whether or not the learned trial Judge did direct himself correctly, and they are therefore defective, notwithstanding his Honour’s acknowledgment that Mr Dadashy gave evidence denying the alleged offence. The absence of any further reference to Mr Dadashy’s evidence or any explanation as to why it was rejected, and the focus exclusively on the evidence of the complainant, prior to expressing the conclusion that the matter was proved beyond reasonable doubt, mean that the reasons prevent me, as the reviewing judge, from determining whether or not the learned trial Judge in fact:

(a) properly applied the Liberato principles by satisfying himself that Mr Dadashy’s evidence did not give rise to a reasonable doubt notwithstanding his acceptance of the complainant; or

(b) considered Mr Dadashy’s evidence as part of the process of determining whether or not to accept the complainant’s evidence.

Therefore, there was error of law on the face of the record, and, subject to the discretionary matters referred to in Part G below, Mr Dadashy is entitled to relief.

E.2. Were Mr Dadashy’s submissions considered?

Mr Dadashy also submitted that the reasons were inadequate as they did not show whether or not the learned trial judge considered the submissions that were put on his behalf that related to the credibility of his evidence, and that had the learned trial Judge not done so, then this would amount to procedural unfairness which was an error of law.

Mr Dadashy’s counsel, in her final address to the learned trial Judge, submitted that he ought acquit Mr Dadashy for four reasons, namely:

(a) There were inconsistencies in the detail between what the complainant had reported at the time, and what she now said had happened to her, and this was a reason for rejecting the complainant’s account;

(b) The complainant was otherwise not credible, including because of alleged illogicalities in her evidence;

(c) The investigation was inadequate because evidence was not led from other detainees who might have heard the complainant call out for help, if that is what she had done; and

(d) In the context of her having asked his Honour to give himself a Liberato direction, Mr Dadashy gave a consistent account, made appropriate concessions, gave evidence that was not contradicted by any independent evidence, and did not ‘gild the lily’. In those circumstances, it was submitted, there was no reason to reject his evidence, or at least it should raise a reasonable doubt as to his guilt.

The first two submissions, and arguably also the third, dealt in substance with the complainant’s credibility. The last dealt with Mr Dadashy’s credibility (and raised a legal issue). In the third paragraph of his Honour’s reasons set out in para 5 above, his Honour said that he had considered counsel’s submissions, but then immediately followed that assertion with a finding only in respect of the complaint’s credibility.

The first defendant submitted that the learned trial Judge’s assertion that he had given careful consideration to the submissions should be accepted. Accordingly, she submitted that it should be inferred that his Honour gave careful consideration to the fact that he had to be satisfied beyond reasonable doubt that Mr Dadashy’s evidence was not true before finding him guilty and that in doing so he had regard to what Mr Dadashy’s counsel had submitted.

I do not agree. The absence of any reasons explicitly dealing with the way Mr Dadashy presented, and how he gave his evidence, raises uncertainty about whether or not the learned trial Judge in fact turned his mind to the issue of how Mr Dadashy presented and to the submissions put by his counsel. It allows for the possibility that his Honour did not do so. For this reason, too, I consider that his Honour’s reasons are inadequate. In light of the way in which the case was defended, his Honour, with respect, was obliged to make some reference to the manner in which Mr Dadashy gave his evidence, so as to demonstrate that he had turned his mind to that issue.

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?

For the reasons set out above, I consider that the reasons are insufficient as they do not allow me to determine whether or not the learned trial judge erred in law. But I am not prepared to infer that his Honour did err in law. This is, in essence, because the reasons do not demonstrate error, but rather allow for the possibility of error. It follows that I do not find this ground of appeal established.

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

Notwithstanding my conclusion that the conviction is liable to be quashed, the decision to grant relief remains discretionary. The first defendant submitted that I ought withhold relief because:

(a) Mr Dadashy could have asked, but did not ask, for further reasons at the conclusion of the hearing; and

(b) The appropriate order would have been an order in the nature of mandamus requiring the County Court judge to give further reasons, and, due to Mr Dadashy’s delay, that was now no longer possible.

G.1. Did Mr Dadashy acquiesce?

This is not a case where counsel for Mr Dadashy acquiesced in the learned trial Judge deciding the case without making explicit findings in relation to the reliability of his evidence. This distinguishes it from the situation that arose in Ta v Thompson.[25] Further, in my judgment, the issues are sufficiently complex such that it would not be fair to Mr Dadashy to deny him a remedy on the basis that his counsel should have identified the error in the reasons immediately on hearing them and sought further reasons from his Honour at the time. That situation would arise, in my view, only in the clearest and simplest of cases of inadequate reasons.

G.2. Does the inability to order further reasons mean that relief should not be granted?

[25](2013) 46 VR 10.

I accept that an order in the nature of mandamus requiring the learned trial Judge to give further reasons is now no longer possible. Not only would it be inappropriate to make such an order given the effluxion of time, but his Honour has since retired.

However, this is not sufficient reason for me to withhold relief or refuse to extend time. There would have been a good argument in any event that an order requiring further reasons would have been an inappropriate remedy even if the proceeding had been brought promptly and the trial Judge had not retired. This is due to the potential perception that a trial judge being directed to give further reasons may add reasons to justify the conclusion reached, rather than reasons that truly reflect his or her actual reasoning process.[26] Counsel for the first defendant frankly acknowledged that they were not aware of any other criminal cases where it has been concluded that the reasons were inadequate and the relief was to remit the matter for further reasons, rather than for rehearing.
[26]Cf, eg, Body Corporate Strata Plan No 4166 v Stirling Properties Ltd (No 2) [1984] VR 903, 912 (Ormiston J).

In the circumstances, I do not propose to withhold relief on discretionary grounds.

H. Disposition

For the above reasons, and subject to hearing the parties on the precise form of orders, I will order that:

(a) The time within which the plaintiff was required to commence this proceeding be extended to 2 December 2019;

(b) The conviction recorded by the County Court of Victoria in Case No. E14308438 be quashed, and that the proceeding be remitted to the County Court of Victoria for rehearing.

I will also hear the parties on the question of costs.

[2021] VSC 246

11 May 2021