Daher v Bell
[2021] VSCA 192
•29 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0059
| MOUKTAR DAHER | Applicant |
| v | |
| RYAN BELL (VIC POLICE) | First Respondent |
| and | |
| COUNTY COURT MELBOURNE | Second Respondent |
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| JUDGES: | KYROU, KAYE and KENNEDY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 June 2021 |
| DATE OF JUDGMENT: | 29 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 192 |
| JUDGMENT APPEALED FROM: | [2020] VSC 346 (Derham AsJ) |
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JUDICIAL REVIEW – Application for leave to appeal refusal to extend time within which to commence proceeding – Whether special circumstances exist to justify extension – Supreme Court (General Civil Procedure) Rules 2015 r 56.02 – Where applicant self-represented – Whether associate justice conducted fair hearing – Dietrich v The Queen (1992) 177 CLR 292 considered – No unfairness – Whether associate justice failed to consider matters relevant to delay – No error established – Leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the First Respondent | Ms E Ruddle QC | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Second Respondent | No appearance |
KYROU JA
KAYE JA
KENNEDY JA:
The applicant seeks leave to appeal from orders of an associate justice made on 12 June 2020. By those orders, the associate justice refused to extend the time within which the applicant could commence an application for judicial review in respect of an order of a judge of the County Court.[1]
[1]Ryan Bell (Vic Police) was named as a first respondent, and the County Court Melbourne was named as a second respondent to this proceeding. However, given that the County Court did not take an active role in the proceeding, we will refer to the first respondent as the ‘respondent’ in these reasons.
For reasons expressed below, we have determined that leave to appeal will be refused.
Factual background[2]
[2]The factual matters below are largely taken from the associate justice’s reasons: Daher v Bell [2020] VSC 346 (‘Reasons’).
This proceeding relates to an incident which occurred on 3 April 2017 between the applicant and his former partner (‘Ms Mohamed’). Three charges were laid against the applicant in relation to this incident. Two charges concerned damage to property, and the third charge was for an unlawful assault of Ms Mohamed.
On 9 November 2017, a magistrate dismissed the property charges, but convicted the applicant of the unlawful assault charge, and imposed a fine of $1000. The applicant was represented by counsel at this hearing.
By notice of appeal dated 17 November 2017, the applicant appealed against the conviction to the County Court.
A hearing of the appeal subsequently took place on 16 April 2018.[3] At that hearing counsel attended to cross-examine Ms Mohamed (a protected witness), pursuant to court order.[4] In the result, however, counsel undertook the representation of the applicant throughout the hearing (including by advancing submissions on sentence).
[3]The appeal was initially struck out by reason of the applicant’s non-appearance on 7 December 2017. However, the appeal was later reinstated by order of 21 December 2017.
[4]This was pursuant to the order of 21 December 2017, made under s 357 of the Criminal Procedure Act 2009, which required Victoria Legal Aid to provide legal representation for the purpose of cross-examination of a protected witness.
On 16 April 2018, the County Court judge found the charge proven and made an order for the imposition of a fine of $1000, but without conviction. The County Court judge particularly relied upon the evidence of Ms Mohamed’s brother (‘Mr Cabdulle’), who was a witness to the alleged assault. At the end of his ex tempore reasons, his Honour said:
At the end of the day while the details of the altercation are uncertain, if I accept what Mr Cabdulle saw occurred then in my view on that alone the charge is made out on that observation alone, and I do accept his evidence. He came across as frank and straightforward and while it was entirely personal choice on any witness to swear on the Koran or not, and I don’t take any view about that, because here a point has been made of it Mr Cabdulle had no hesitation in swearing on the Koran and he is also of Muslim faith. I am satisfied beyond reasonable doubt that the assault charge is made out but limited to the facts of what Mr Cabdulle observed. That is that he saw the [applicant] with his arm around [Ms Mohamed’s] neck and that she was screaming and he told [him] to let [her] go and he did, and it’s on that basis that I find the charge proven.
Some 20 and a half months later, on 30 December 2019, the applicant filed an originating motion seeking judicial review in respect of the County Court order. He drafted the court documents himself and was self-represented before the associate justice.
The relief claimed in the originating motion was as follows:
I seek to do a Judicial review of the order of [the County Court judge] made on the 16/04/2018 … The order was [a] fine of the sum of $1000 without conviction …
Given the applicant sought to file his originating motion well after the time of 60 days after the date of the County Court judge’s order, the applicant required, and sought, an extension of time under r 56.02 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’).[5] He relied on ‘special circumstances’ as set out in an affidavit made on 19 November 2019 (and filed on 30 December 2019). He later made and filed a second affidavit on 13 March 2020.
[5]Rule 56.02(1) of the Rules provides that a proceeding under Order 56 shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose. Rule 56.02(2) provides that where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding. Rule 56.03(3) provides that the Court shall not extend the time fixed by paragraph (1) except in special circumstances.
The matter was listed for hearing before a judicial registrar on two occasions, 19 February 2020, and 26 March 2020. Orders were made on each occasion for the filing of an amended originating motion in accordance with r 5.05 of the Rules (specifying the relief sought), and for written outlines of submissions. No amended originating motion was filed, nor were submissions filed by the time fixed. However, on 20 and 25 May 2020, the applicant filed two documents described as a ‘written case for the applicant/appellant’.
As indicated already, the associate justice refused the application for an extension of time, and thereby dismissed the proceeding.
Associate justice’s reasons
The associate justice commenced by correctly setting out the principles guiding the hearing and determination of proceedings which involve a self-represented litigant.[6]
[6]Reasons [7]–[10].
After recording the general background,[7] his Honour also correctly set out the principles applying to extension of time applications under r 56.02.[8] In so doing he noted that r 56.02(3) made provision for a ‘negative expression’ as follows:
(3)The Court shall not extend the time fixed by paragraph (1) except in special circumstances.
[7]Ibid [11]–[15].
[8]Ibid [17]–[25], adapted from his Honour’s decision in Lazarevic v Victoria Police [2014] VSC 497; approved in Lazarevic v Victoria Police [2015] VSC 13.
His Honour cited, in particular, the decision of this Court in Mann v Medical Practitioners Board of Victoria,[9] and concluded that the authorities established that:
[9][2004] VSCA 148.
(a) The rule requires the Court to be objectively satisfied that special circumstances exist;
(b) The existence of special circumstances is to be determined by reference to all the circumstances of a case;
(c) The factors relevant to the exercise of the discretion under Rule [56.02(3)] include, but are not limited to:
(i) the period of the delay;
(ii) the reason for the delay;
(iii) whether the plaintiff has an arguable case;
(iv) the justice to both parties, including the prejudice to the parties; and
(v) the public interest in the finality of litigation.[10]
[10]Reasons [23] (citations omitted).
Insofar as prospects of success were concerned, his Honour observed that the fact that a plaintiff might demonstrate error did not automatically result in there being ‘special circumstances’. However, if it was clear that a plaintiff’s grounds were not arguable, there would ordinarily be no point in extending the time.[11]
[11]Ibid [24], citing Glass (a pseudonym) v Chief Examiner (2015) 50 VR 577; [2015] VSCA 127.
His Honour then considered each of the relevant factors that he had identified in more detail.
In considering, first, the period of delay, his Honour recorded the concession by the respondent that the period between 26 November 2019 and 30 December 2019 should not be counted as part of the period of delay. This reflected the fact that the applicant had produced email correspondence with the Supreme Court registry concerning defects in his filed documents which dated from 27 November 2019.
However, there was no evidence of correspondence with the Court prior to 27 November 2019. His Honour thereby rejected the applicant’s uncorroborated assertions that he had started the process of attempting to review the County Court judge’s decision in late 2018.[12] Even if the applicant approached the Court for assistance in late 2018, the delay from the expiry of the 60 day period (on 15 June 2018) remained ‘lengthy’ (three to five months).[13]
[12]Ibid [33].
[13]Ibid [34].
In respect of the reason for the delay, the applicant submitted that he had understood that ‘no conviction’ meant that he was found not guilty, and that his lawyer had assured him that it was a good outcome. However, he subsequently discovered that he still had a criminal history (notwithstanding that no conviction was entered) which affected his ability to gain remunerative employment.
His Honour was not satisfied that the misunderstanding of the import of the result of the appeal to the County Court was a factor that, with the other circumstances, established special circumstances that justified the extension of time.[14] While his Honour accepted that the applicant genuinely misunderstood the County Court judge’s decision,[15] the suggestion that the applicant’s barrister misled him was mere assertion and not supported by what he said she told him.[16] The applicant’s misunderstanding was not ‘out of the ordinary’.[17] The fact that a finding of guilt without conviction will be recorded in a criminal history was also not ‘out of the ordinary’. His Honour also considered that the proposition that the applicant equated ‘no conviction’ with a ‘not guilty’ finding ‘beggars belief’ in the light of the clear statements made at the end of the ex tempore reasons by the County Court judge.[18] There was also no evidence of any action taken by the applicant to understand the effect of the appeal.[19]
[14]Ibid [40].
[15]Ibid [41].
[16]Ibid [41].
[17]Ibid [41].
[18]Ibid [42].
[19]Ibid [43].
In considering the applicant’s prospects of success, the associate justice adopted the general principles applicable to judicial review which had been outlined by the respondent.[20] He also expressly excluded various exhibits[21] which were never adduced in evidence in the County Court, and were thereby not part of the ‘record’ for the purposes of judicial review.[22]
[20]Ibid [44].
[21]The applicant produced several exhibits, which he claimed supported allegations of fraudulent conduct by Ms Mohamed and Mr Cabdulle, in a migration context: Reasons [46].
[22]His Honour stated that, for the purposes of assessing whether there is error of law on the face of the record, the ‘record’ comprised the charge and summons, the certified extracts of the decision of the Magistrates’ Court, the notice of appeal to the County Court, the notice of the decision of the County Court, and the transcript of the County Court hearing, which included the County Court judge’s reasons for decision: Reasons [45].
His Honour further adopted the respondent’s summary of the applicant’s grounds as follows:
(a) The first and third grounds are an allegation that the [County Court] Judge erred in relying upon the evidence of Ms Mohamed’s brother, whose name from the transcript is Mohammed Cabdulle, because he was Ms Mohamed’s brother, was only aged 16 years at the time of the incident and Ms Mohamed was also his immigration sponsor and guardian.
(b) The second and sixth grounds allege the [County Court] Judge only relied upon the evidence of Mr Cabdulle because he took an oath on the Koran.
(c) The fourth ground alleges the police report shows that Ms Mohamed did not have any visible injuries at the time [while he did].
(d) The fifth ground alleges that the [applicant’s] counsel failed to cross-examine Ms Mohamed about prior inconsistent statements and then requested leave to further cross-examine Ms Mohamed and that leave was refused.[23]
[23]Reasons [47].
In relation to the first and third grounds, the associate justice carefully outlined the key parts of the evidence of Mr Cabdulle before the County Court judge. This included the following evidence:
… he saw the [applicant] with his arm around Ms Mohamed’s neck holding her back against the wall and she was holding the baby. He heard her screaming and telling the [applicant] to let her go. He told the [applicant] to let her go and he did so.
He related that she called the police and that her clothes were ripped.[24]
[24]Ibid [48(b)–(c)].
His Honour also recorded that, in cross-examination, Mr Cabdulle confirmed that Ms Mohamed sponsored his move to Australia and that he was financially dependent on her. However, he denied that he was protecting Ms Mohamed, or that he made his statement at her direction. Mr Cabdulle also rejected the suggestion that Ms Mohamed had attacked the applicant, saying ‘No’.[25]
[25]Ibid [48(d)].
In relation to the second and sixth grounds, his Honour considered that the County Court judge did not give greater credence to Mr Cabdulle’s evidence because he swore on the Koran, as the County Court judge said ‘I don’t take any view about that’.[26]
[26]Ibid [49].
In relation to the fourth ground, his Honour noted that the County Court judge had rested his decision on the evidence of Mr Cabdulle, rather than Ms Mohamed. In cross-examination, Ms Mohamed also denied that she could have attacked the applicant given her small stature, and that she was pregnant, and holding a small child at the time.[27]
[27]Ibid [50].
The fifth ground concerned an alleged prior inconsistent statement by Ms Mohamed. The applicant suggested that Ms Mohamed had originally said, in an interview with police, that the argument (which led to the incident on 3 November 2017) started after she found out that the applicant was cheating when she saw a photograph on his phone, whereas at the hearing she claimed that it was because he had caused some $18,000 worth of fines to be incurred in relation to her car. The applicant highlighted that the County Court judge refused leave for the applicant’s barrister to recall Ms Mohamed and question her about this contradiction.
The associate justice, first, noted that the alleged inconsistent statement relied upon was not contained in a statement of evidence by Ms Mohamed, but in a brief statement related to a Family Violence Protection Order. It did not appear to be in evidence in the County Court, it was not put to Ms Mohamed, and it may not have been a part of the record of the proceeding.[28] In any event, the cross-examination dealt with matters that could only have been put on instructions given by the applicant.[29] Further, the applicant’s counsel did put the alleged inconsistency (between Ms Mohamed’s oral evidence and the statement she allegedly made to police) to Ms Mohamed.[30] Hence, if the conduct of counsel was a ground for an order in the nature of certiorari his Honour would find that it was not made out.[31]
[28]Ibid [52].
[29]Ibid [57]–[58]. Though not included as a ground of review, it appears that the applicant made a general submission below that counsel representing him was ‘not adequately briefed’ and that he did not have the opportunity to give counsel instructions: Reasons [53].
[30]Reasons [59]. Ms Mohamed sought to explain that the photograph she saw showed the applicant and one of his other wives (whom she already knew about) in a car that he bought for this other woman. She further stated that she was not jealous, but rather the argument was about the fines he had run up in respect of her car, that he still used.
[31]Reasons [61].
However, the associate justice considered that the procedural fairness ground, based on the conduct of the applicant’s lawyers, was not a basis for relief unless the judge was at fault.[32] In that respect, the transcript suggested that it was the applicant’s counsel who withdrew the application to recall Ms Mohamed.[33] The associate justice therefore concluded that there was no basis for a finding that the County Court judge was at fault for any failure of procedural fairness or breach of the hearing rule.[34]
[32]Ibid [61].
[33]Ibid [59].
[34]Ibid [61].
More significantly, given that the County Court judge relied only on the evidence of Mr Cabdulle, none of the criticisms of the conduct of the hearing affected the decision of the County Court judge.[35] The associate justice thus accepted the respondent’s submission that the alleged failure to cross-examine Ms Mohamed concerning the alleged inconsistency, and the application for her recall, did not occasion a miscarriage of justice.[36]
[35]Ibid [62]. The second and sixth grounds, concerning Mr Cabdulle’s oath on the Koran, were excluded from this observation, but they had already been dealt with.
[36]Reasons [55].
The associate justice thereby found that each of the grounds was not reasonably arguable, and that the applicant did not have a real prospect of success.[37]
[37]Ibid [62].
Lastly, the associate justice noted the respondent’s submission that he would be prejudiced by the extended delay.[38] If the applicant succeeded, his Honour considered there to be a real risk that another hearing of the appeal in the County Court would be a further 12 months away. His Honour stated:
The right of appeal and the right to judicial review are circumscribed by time limits to ensure the public interest that cases can be finalised and not remain in abeyance indefinitely. The grant of an extension of the time within which to launch this judicial review will, in these circumstances, bring the administration of justice into disrepute.[39]
[38]Ibid [63].
[39]Ibid [63].
The associate justice thereby concluded that there were no special circumstances warranting an extension of time.[40]
[40]Ibid [64].
Proposed grounds of appeal
The applicant was self-represented before us. He relied on the following proposed grounds:
1. [The associate justice] failed to consider access to justice and the rule of law elements.
2. [The associate justice] failed to conduct [a] fair trial.
3. [The associate justice] did not consider the time wasted by [RedCrest] reviewers and their conflicting comments.
4. [The associate justice did not consider] articles of the international convention on civil and political right[s] (ICCPR).
5. [The associate justice] failed to consider the [applicant’s] confusion … with the understanding of the legal term non-conviction apparently due to misleading by [the applicant’s] legal aid barrister that also contributed to the delay of appealing or requesting judicial review.
6. [The associate justice] did not give sufficient [weight] and failed to consider the fact that under no circumstances should the possibility of injustice be allowed to take hold when it can be prevented.
Applicant’s submissions[41]
[41]The applicant’s submissions in support of his proposed grounds were not easy to identify. However, this summary is particularly derived from the ‘Written case for the applicant/appellant’ dated 23 June 2020; the applicant’s ‘Further submission’ dated 27 September 2020; the applicant’s draft summary filed 8 July 2020; the further written submissions received on 11 June 2021; and the oral submissions made on 17 June 2021.
As to the first proposed ground, the applicant submitted that the legal system must make reasonable allowances for self-represented litigants. He submitted that the difficulty he faced should have been understood by registry officers at the Court, who could easily have fixed the little details at their end. He also placed reliance on the High Court decision of Dietrich v The Queen.[42]
[42](1992) 177 CLR 292; [1992] HCA 57 (‘Dietrich’).
In oral submissions he emphasised the difficulties that he experienced obtaining transcript and audio recordings of proceedings. He claimed that it took some ‘one to two months’ to obtain a transcript. He also emphasised that he did not have the transcript in front of him at the hearing before the associate justice.
As to the second proposed ground, the applicant submitted that the big gap in representation made the hearing before the associate justice unfair. His Honour should have known this, and ensured that the applicant was placed on as close to an equal footing as possible with the respondent.
The applicant also complained about the treatment of Mr Cabdulle’s evidence. He submitted that the characterisation of that evidence as ‘independent’ was wrong given that Mr Cabdulle was Ms Mohamed’s brother, and was sponsored by her. He also suggested that the County Court judge (wrongly) placed significance on the fact that Mr Cabdulle swore on the Koran as demonstrated by the following statements:
Something was made by both parties of the fact that the two main players in this, both being practising Muslims, did not swear on the Koran and that both did so in order to not offend their faith but be able to lie effectively without any consequence morally to them. However, the Crown called an independent witness, if anything is to be made of that point, who did swear on the Koran.[43]
[43]Emphasis added. The applicant emphasised the italicised part of this extract.
As to the third proposed ground, the applicant submitted that the office of the Supreme Court and the RedCrest reviewers had contributed to the delay. He had started the process in late 2018, needed to wait for an audio transcript, and then struggled to have his application documents accepted for filing. He maintained that he was ‘very frustrated’ with this delay.
As to the fourth proposed ground, the applicant cited arts 14(3), 14(5), 14(6), and 14(7) of the International Convention on Civil and Political Rights (‘the ICCPR’).[44] He again focused on his lack of representation at various stages in the proceedings.
[44]Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
As to the fifth proposed ground, the applicant submitted that he (personally) was not given an opportunity to cross-examine the respondent or Mr Cabdulle. Rather, this was undertaken by his lawyer, who had not co-ordinated with him about what questions to ask. He also (again) claimed that he was misled by the barrister about the meaning of ‘non-conviction’, and understood that it meant ‘not guilty’.
The applicant’s sixth proposed ground did not appear to be an independent ground, but rather was a general submission that injustice has serious consequences. In oral submissions he suggested that the ground reflected his view that he had ‘not done’ the crime.
Shortly prior to the hearing of the appeal, the applicant also sought to adduce various correspondence with the County Court concerning his access to audio recordings, transcript and court files. However, this largely appeared to relate to separate proceedings concerning intervention orders.[45] He also purported to adduce five affidavits into evidence[46] which were not in evidence before the associate justice wherein the applicant included complaints about the making of intervention orders, and maintained that he did not commit the assault.
[45]County Court proceedings AP-20-0226 and AP-20-0227.
[46]The affidavit of Ryan Bell affirmed 16 August 2020; the affidavit of the applicant affirmed 17 September 2020; the affidavit of the applicant sworn 5 October 2020; the affidavit of the applicant affirmed 1 February 2021; and the affidavit of Jemal Abdelrehim affirmed 1 February 2021.
Analysis
Preliminary
Although we have read all the material filed by the applicant, any evidence which was not before the associate justice may not be relied upon on this application.[47] In any event, such material did not advance the proposed grounds, went well beyond the ‘record’, and was not admissible on the judicial review application.[48]
[47]See r 64.13(1)(b) of the Rules. No application was made to adduce this further evidence in accordance with rr 64.13(2)–(3).
[48]See Chandra v Webber (2010) 187 FCR 31, 43 [40]; [2010] FCA 705.
In reviewing the decision of the associate justice to refuse an extension of time, the applicant seeks leave to appeal a discretionary judgment.[49] The matter therefore falls to be determined in accordance with the principles in House v The King.[50] For the applicant to succeed, we must be satisfied that some error has been made in exercising the discretion. This may only be demonstrated if the associate justice acted upon a wrong principle, allowed extraneous or irrelevant matters to guide him, mistook the facts, or failed to take into account a relevant consideration. Alternatively, error may be demonstrated if the result is unreasonable or plainly unjust.[51]
Proposed ground 1: Alleged failure to consider access to justice and rule of law
[49]Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [30].
[50](1936) 55 CLR 499; [1936] HCA 40.
[51]Ibid 505.
Insofar as the applicant complained about his self-represented status, the applicant had the benefit of representation at the Magistrates’ Court, and also at the County Court. He had no right of further representation on judicial review. Even in a criminal proceeding an accused does not have a common law right to be legally represented at public expense.[52]
[52]Dietrich (1992) 177 CLR 292, 297–8, 311, 330, 356, 364; [1992] HCA 57. See also Slaveski v Smith (2012) 34 VR 206, 220–1 [52]–[53]; [2012] VSCA 25.
Insofar as Dietrich is relied upon, the majority of the High Court held that, in order to ensure a fair hearing, a court has power to adjourn, postpone or stay a criminal prosecution of a serious offence until legal representation is available for an indigent accused who has been unable to obtain legal representation through no fault of his or her own.[53] However, the principle in Dietrich applies only to serious criminal cases. It does not apply to civil proceedings.[54] Hence, the principle in Dietrich did not apply to the judicial review proceeding before the associate justice. Moreover, even if the principle applied, the Court would grant a stay only, which would not be of assistance as the applicant was the party who was claiming relief.
[53]Dietrich (1992) 177 CLR 292, 315; [1992] HCA 57.
[54]New South Wales v Canellis (1994) 181 CLR 309, 328; [1994] HCA 51. See also Russell v Eaton [2020] VSCA 249, [98]–[104].
As explained above, the associate justice also set out in detail the correct principles which guide the hearing and determination of proceedings involving a person who is self-represented.[55] Having read the reasons and the transcript of the hearing before the associate justice, we are satisfied that the applicant was given ample opportunity to present his case in accordance with these principles. Thus, the associate justice:
[55]Reasons [7]–[10].
·did not require the filing of an amended originating motion despite omissions therein;[56]
·explained the nature of the judicial review jurisdiction, highlighting that the Court was not entitled to canvass matters that it would on an appeal (which the applicant said that he understood);
·explained that certain evidence was not relevant or admissible in the judicial review hearing;
·generally explained the relevant matters to be considered on an extension of time application;
·ensured that the applicant had received relevant material from the respondent, and had been given a sufficient opportunity to read it; and
·ensured that the applicant was given many opportunities to address the relevant matters, including by clarifying the applicant’s case, and by explaining some of the critical issues in the case.
[56]See Reasons [5].
The applicant did not appear to have a copy of the County Court transcript immediately, and physically, accessible at the hearing. However, the respondent had provided him with a copy of the transcript more than a month in advance of the hearing. In fact the respondent took it upon himself to adduce the relevant documents constituting the entire ‘record’ (though this would normally be undertaken by the applicant) by way of affidavit (and court book). Further, when the associate justice was apprised of the fact that the applicant did not have the transcript at the hearing, he read the relevant passage of the transcript to the applicant. In particular, he read the section which recorded that the County Court judge accepted the evidence of Mr Cabdulle who was ‘frank and straight-forward’, and that he had not taken ‘any view’ about the fact that the evidence of Mr Cabdulle was sworn on the Koran. The associate justice thereby ensured that the applicant was on notice of the critical basis for the decision,[57] and no error is demonstrated.
[57]See Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576, 591–2.
Proposed ground 1 is not established.
Proposed ground 2: Alleged failure to conduct a fair trial
Insofar as the applicant complained about the treatment of the evidence of Mr Cabdulle, the characterisation of that evidence as ‘independent’ evinced no error in circumstances where Mr Cabdulle was not one of the ‘two main players’ (as fairly described by the County Court judge). As to Mr Cabdulle’s oath on the Koran, the County Court judge’s remarks that ‘if anything is to be made of that point’ are clearly referable to the fact that both parties had sought to make a point about the significance of swearing on the Koran. We otherwise agree with the associate justice that the County Court judge ultimately took ‘no view’ about the swearing (which was ‘entirely personal’) as indicated already. Rather, the County Court judge accepted the evidence of Mr Cabdulle because he was ‘frank and straightforward’.
There was otherwise no failure to conduct a fair trial. To the contrary, for reasons given above, the associate justice provided extensive opportunities to the applicant to present his case.
Proposed ground 3: Alleged failure to consider time wasted by RedCrest reviewers
The associate justice expressly considered the time spent correcting defects in the filed documents, and found, consistent with the respondent’s concession, that that period was not to be counted as part of the delay.[58]
[58]Reasons [28], [33].
His Honour also expressly considered the applicant’s claim that he commenced the process of attempting to make an application in late 2018.[59] However, he found that, even if the applicant did approach the Court for assistance in late 2018, the delay of three to five months was still lengthy.[60]
[59]Ibid [29]–[33].
[60]Ibid [34].
Accordingly, there was no failure to ‘consider’ the time spent with RedCrest reviewers. Moreover, the findings made by the associate justice were both open and appropriate.
Proposed ground 4: Alleged failure to consider the ICCPR
The cited articles of the ICCPR are not part of Victorian domestic law,[61] such that they cannot be directly relied upon in this Court.[62]
[61]Although some are reflected in the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’). This includes the right to a fair hearing under s 24; rights in criminal proceedings under s 25 (which are similar in effect to the minimum guarantees stated in art 14(3) of the ICCPR), and a right not to be tried or punished more than once for an offence under s 26. However, the applicant did not directly rely on the Charter or give appropriate notice to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission under s 35(1) of the Charter.
[62]Dietrich (1992) 177 CLR 292, 305. See also Minister for Immigration and Ethic Affairs v Teoh (1995) 183 CLR 273, 286–7.
In any event, the article apparently relied upon was art 14(3), given that none of the other provisions related to the proposed grounds on this application.[63] However, art 14(3) provides for certain minimum guarantees for a person ‘in the determination of any criminal charge against him’, including as to legal assistance. It has no application to a (civil) judicial review proceeding. Rather, as indicated already, there is no general right to representation in civil proceedings.
Proposed ground 5: Alleged failure to consider applicant’s confusion with the term ‘non-conviction’
[63]Article 14(5) provides for a convicted person to have a right to have his conviction and sentence reviewed by a higher tribunal (which has already occurred by reason of the County Court hearing). Article 14(6) provides for compensation in certain circumstances where a person’s conviction has been reversed, or a person has been pardoned. Article 14(7) provides that no one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted.
The associate justice expressly considered, and accepted, that there was some confusion about the meaning of the County Court judge’s decision, but found that it was nothing out of the ordinary (or special) for a lay person not to understand the effect of a charge being found proved, but there being no conviction entered. He otherwise rejected the suggestion that the applicant’s barrister misled the applicant, and correctly found that this was mere assertion unsupported by evidence (and not even supported by what the applicant alleged was said by the barrister — ie that it was a ‘good outcome’). His Honour was also correct to reject the claim that the applicant could think ‘no conviction’ meant ‘not guilty’ having regard to the clear ex tempore reasons given by the County Court judge.
The associate justice thereby expressly considered the applicant’s claimed confusion following his appeal, but ultimately found that it did not establish ‘special circumstances’.
There was no error in this approach.
Proposed ground 6: Alleged failure to consider ‘possibility of injustice’
It was unclear precisely what was meant by this proposed ground. However, insofar as it amounted to an attempt to complain about the result in the County Court it amounted to a complaint about the merits which is not a valid ground for the relief sought in this proceeding.
Conclusion
For the foregoing reasons, the applicant has failed to establish any error by the associate justice in refusing an extension of time within which to commence an application for judicial review of the order of the County Court judge.More particularly, we are not satisfied that the decision was unreasonable or plainly unjust. Nor did the associate justice act upon a wrong principle, allow irrelevant matters to guide him, mistake the facts, or fail to take into account a relevant consideration.
Rather, we consider that the associate justice correctly applied the principles governing self-represented litigants, and provided ample opportunities to the applicant to make his application. Given the inadequate explanation for the lengthy delay and the very low prospects of success, the ultimate decision by the associate justice was not only open, but also appropriate.
Leave to appeal will be refused.
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