Daher v Bell
[2020] VSC 346
•12 June 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 05935
| MOUKTAR DAHER | Plaintiff |
| v | |
| RYAN BELL (VICTORIA POLICE) | First Defendant |
| COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | Derham AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 May 2020 |
DATE OF JUDGMENT: | 12 June 2020 |
CASE MAY BE CITED AS: | Daher v Bell |
MEDIUM NEUTRAL CITATION: | [2020] VSC 346 |
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JUDICIAL REVIEW – Order 56 of the Supreme Court (General Civil Procedure) Rules2015 (Vic)– Application for extension of time within which to commence judicial review proceedings – Special circumstances required – Period of delay, reason for delay, strength of case for judicial review, justice to both parties and the public interest in the finality of litigation to be taken into account in determining if special circumstances made out – Lazarevic v Victoria Police [2015] VSC 13; Lazarevic v Victoria Police [2014] VSC 497; Glass (a pseudonym) v Chief Examiner & Ors (2015) 50 VR 577; Richards v Victorian Magistrates Court (No 2) [2018] VSC 226.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | NA | Self-Represented |
| For the First Defendant | Mr A Castle | Office of Public Prosecutions |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Plaintiff self-represented.................................................................................................................. 2
Background......................................................................................................................................... 4
The grounds for relief....................................................................................................................... 5
Extending time- special circumstances.......................................................................................... 7
Submissions and consideration.................................................................................................... 10
Period of Delay............................................................................................................................ 10
Reason for delay............................................................................................................................... 12
Plaintiff’s prospects of success...................................................................................................... 15
Conclusions....................................................................................................................................... 25
HIS HONOUR:
Introduction
The Plaintiff requires an extension of time to commence this judicial review application pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) in respect of the hearing and determination of County Court Appeal AP-17-3028 on 16 April 2018.
The proceeding was commenced by originating motion filed on 30 December 2019. The time limit for commencement of an application for judicial review of an order of a Judge of the County Court (as is this case) under Order 56 is sixty days ‘after the date when grounds for the grant of relief or remedy claimed first arose’. In this case, time started running when the order was made on 16 April 2018. The relief claimed in the originating motion was stated as follows:
I seek to do a Judicial review of the order of Judge Wraight made on the 16/04/2018 case# H11162921. The order was fine of the sum of $1000 without conviction (copy of the order is attached).
In the originating motion, the plaintiff sought an extension of time under r 56.02 of the Rules relying on the special circumstances set out in his affidavit made on 19 November 2019 and filed on 30 December 2019.[1]
[1]The affidavit appears not to be properly made because the jurat does not make clear whether he swore on his oath or affirmed the affidavit. No point was taken regarding the sufficiency of the affidavit and in light of my conclusions it is of no significance to the application.
The summons for directions required by r 56.04(3) of the Rules was filed at the same time as the originating motion and came on for hearing before a Judicial Registrar on two occasions, 19 February and 26 March 2020. Orders were made on each occasion for the filing of an amended origination motion specifying the relief or remedy sought in accordance with r 5.05 of the Rules, for the filing of written outlines of submissions and for the hearing of the application for an extension of time. The plaintiff declined to file an amended originating motion at all and failed to file a written outline of submissions by the time fixed. On 9 April 2020 he emailed both the Court and the Office of Public Prosecutions, who represent the first defendant, stating that the affidavit he had filed explained the reasons for judicial review. A numbered series of reasons then followed which do not directly relate to the hearing and determination of the County Court Appeal on 16 April 2018. Later, not long before the hearing on 20 and 25 May 2020, the plaintiff filed two documents each described as a ‘written case’ for the plaintiff.
The first defendant (whom I shall call the ‘defendant’)[2] accepts that a defect or omission in the originating motion should not in itself bar the plaintiff from advancing this proceeding. However, he submitted that the defects need be rectified by filing, with the leave of the Court, an amended originating motion. In the circumstances of this case, I will not require an amended originating motion to be filed. It is obvious that the plaintiff seeks an order in the nature of certiorari to quash the order below and to have the matter remitted to the County Court to be re-heard and determined according to law.
[2]The second defendant notified the Court that it does not intend to take an active role in the proceeding and will abide by the decision of the Supreme Court, in accordance with the principles in R v Australian Broadcasting Tribunal, ex parte Hardiman & Ors (1980) 144 CLR 13, 35.
The plaintiff’s appeal to the County Court was under Part 6.1 of the Criminal Procedure Act 2009 (Vic) (‘CPA’).The County Court heard and determined the appeal in its appellate jurisdiction. There is no further right of appeal. The rights of appeal contained in Part 6.3 of the CPA apply to matters heard by the County Court in its original jurisdiction (see s 274 of that Act). The only avenue of redress from a conviction in the County Court in its appellate jurisdiction is judicial review.[3]
[3]Ta v Thompson [2012] VSC 446 [30], fn 20.
Plaintiff self-represented
The plaintiff represented himself in commencing the application and at the hearing. I wish to note at the outset the principles which guide the hearing and determination of proceedings which involve a person who is self-represented.
It is the duty of the Court in relation to represented and unrepresented litigants alike to ensure that a hearing or trial is conducted fairly and in accordance with law. Procedural fairness is ‘an essential attribute of a court’s procedure’. What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case. The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. The assistance must be proportionate in the circumstances — it must ensure a fair trial and not afford an advantage to the self-represented litigant.
In the decision of the Court of Appeal in Roberts v Harkness,[4] which was applied in Doughty-Cowell v Kyriazis,[5] the Court made it clear that a litigant must have a reasonable opportunity of presenting his case. What amounts to a reasonable opportunity of presenting a case depends on the circumstances of the case, including the nature of the decision to be made, the nature and complexity of the issues in dispute, the nature and complexity of the submissions which the party wishes to advance, the significance to that party of an adverse decision (‘what is at stake’) and the competing demands on the time and resources of the court or tribunal.[6]
[4](2018) 57 VR 334 (‘Roberts’)..
[5][2018] VSCA 216 [63]-[64].
[6]Roberts (n 4) 337-55 [8]-[49].
I have sought to apply these principles in this case. In particular I explained to the plaintiff at the hearing[7] that the Court’s jurisdiction under Order 56 is supervisory and does not entitle the Court to canvass matters that it would on an appeal. In a judicial review, the Court is concerned with the legality of what was done by the court or tribunal below, and is not concerned with the merits of the decision under review.
Background[8]
[7]The plaintiff appeared in person in Court whilst the Lawyer for the defendant appeared by video link. I was satisfied that the technical requirements in s 42G of the Evidence (Miscellaneous Provisions) Act 1958 (‘Act’) were met and that all parties consented to the making of a direction under s 42E(1) of the Act enabling the defendant to appear and make submissions by audio visual link.
[8]This account is drawn from the affidavits made by the plaintiff on 19 November 2019 (‘plaintiff’s first affidavit’) and 13 March 2020 (‘plaintiff’s second affidavit’) and the affidavit of Michael Petrowski, a solicitor employed by the Office of Public Prosecutions, made on 8 April 2020 (‘Petrowski Affidavit’), and the exhibits to those affidavits.
It can be seen from the extract from the originating motion set out above ([2]) that the order which I am required to review was made by a Judge of the County Court of Victoria on 16 April 2018. That order was made on an appeal from a conviction of unlawful assault in the Magistrates Court of Victoria heard on 9 November 2017.
There were three charges laid against the plaintiff on 20 April 2017 arising out of an incident that occurred on 3 April 2017, one for criminal damage and another for wilful damage, each to a mobile telephone belonging to Fani Mohammed (‘Fani’ or ‘Ms Mohamed’)[9] and one charge of unlawful assault of Ms Mohamed pursuant to s 23 of the Summary Offences Act 1966 (Vic). At the hearing before the Magistrate Counsel appeared on behalf of the plaintiff pursuant to s 357 of the CPA to cross-examine the informant, Ms Mohamed, on the plaintiff’s behalf, who was otherwise self-represented. The Magistrate dismissed the criminal and unlawful damage counts. The plaintiff pleaded not guilty to the unlawful assault charge but was convicted and fined $1000.00.
[9]Mohammed is the spelling used in the Charge and Summons. In the transcript of the hearing she is described as Fani Mohamed. In the statement made by the informant annexed to the Charge and Summons her name is spelt Mohamed. In the Charge and Summons and the final orders in both the Magistrates’ Court and County Court the plaintiff is described as ‘Deher Mouktar ’ rather than ‘Daher’ Mouktar. That spelling ‘Deher’ is said by the plaintiff to be a spelling error.
By Notice of Appeal dated 17 November 2017, the plaintiff appealed against the conviction of unlawful assault.[10] The return date was 7 December 2017. When the appeal was called that day the plaintiff failed to appear and the appeal was struck out. On 11 December 2017 the Plaintiff filed an ‘Application to Set Aside Order Striking Out Appeal for Failure to Appear’. The stated reasons are ‘Not guilty. The police gave a wrong date because I lost paperwork. I didn't [illegible] the date.’ The Application was listed for hearing on 21 December 2017 when a Judge of the County Court reinstated the appeal and listed it for hearing on 16 April 2018 as a one day contested appeal against conviction. Maddie Carroll of Emma Turnbull Lawyers Pty Ltd was present and gave advice to the plaintiff. An order was made under s 357 of the CPA for the funding of legal representation to cross examine the informant who had been declared a protected witnesses. At the hearing of the appeal Counsel appeared on behalf of the plaintiff to cross-examine the protected witness, Ms Mohamed.
[10]That appeal was under s 254 of the CPA and is an appeal by way of rehearing: see s 256(1) CPA. On the hearing of the appeal the County Court, as the case requires, must set aside the sentence of the Magistrates’ Court and may impose any sentence the Magistrates’ Court could have imposed and may exercise any power the Magistrates’ Court could have exercised: see s 256(2) CPA.
The defendant has filed an affidavit which exhibits the essential documents, most of which were not produced by the plaintiff, including the charge and summons in the Magistrates Court of Victoria at Melbourne, 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 a transcript of the County Court hearing on 16 April 2018 which includes the County Court judge’s reasons.[11] These documents are ‘the record’ for the purposes of a judicial review of the order below. Some of the material exhibited to the plaintiff’s affidavits do not constitute the record and were not before the County Court Judge, in particular documents from Department of Immigration and Border Control said to support allegations of fraud against Fani Mohamed and her brother, Mohammed Cabdulle (‘Mr Cabdulle’).
[11]Petrowski Affidavit (n 8).
At the time of his arrest the plaintiff declined to make a statement to the police. However, in the course of giving evidence, the plaintiff made repeated references to his ‘statement’. This statement was identified as a document which the plaintiff had written out and declared on 4 May 2017, and had been ‘acknowledged’ by Constable D Rayment on that day. This statement was not adduced in evidence at the hearing of the appeal or handed up. It was produced by the defendant as an exhibit to the affidavit of Michael Petrowski.[12]
[12]Ibid Exhibit OPP-7.
The grounds for relief
It is a little difficult to summarise the grounds for relief. It is best that I quote them first, as set out in the originating motion, and when assessing them further below distil from them what they amount to having regard to the evidence given at the appeal hearing and the plaintiff’s submissions:[13]
[13]I have made some corrections to the typing and spelling.
(a) First Ground: The judge incorrectly relied upon the then 16 years old Mohamud’s witness who is the brother of my ex-wife.[14]
[14]The reference to ‘Mohamud’ is to Mr Cabdulle.
(b) Second Ground: The judge preferred Mohamud’s evidence only on the basis of him swearing on the Quran contrary to the law.
(c) Third Ground: Hon. Judge Wraight relied upon the witnessing of the 16 years old brother of Fani. Her brother Mohamud was under total care and supervision of Fani. He was sponsored by Fani to come to Australia only about a year before the incident, so he cannot be expected to go against his sister who is also his sponsor and guardian.
(d) Fourth Ground: The police report shows that Fani did not have any visible injuries at the time while I had. I explain more in the affidavit.
(e) Fifth Ground: My barrister did not ask Fani about the contradicting statements that Fani gave about how the argument started on the day of the incident. In her initial interview with the police it indicates that the argument started after she found out that I was cheating on her over a photo she saw on my phone and the same with the police application but in the appeal hearing at the county she said that the argument was over fines and a car she believes that I bought for my partner. My barrister requested from the Judge to get Fani again to the witness box as she would like to ask about this crucial contradictions. But unfortunately the judge refused and said that it won’t make any difference.
(f) Sixth Ground: The Judge said ‘Both Fani and Mouktar chose not to swear on the Quran without any consequences morally to them’ and he also said ‘If I accept what Mr. Abdul saw and heard, then in my view in that alone the charge is made out. Mr. Abdul has no hesitation swearing on the Quran and he is of Muslim fate.’ I have Audio Transcript which I can provide if required because I cannot afford the cost of the written transcript for that reason I have attached to my application a fee waiver application.
Extending time- special circumstances[15]
There is a considerable range of authorities on what needs to be shown in order to establish special circumstances under r 56.02(3) of the Rules.[16] The rule’s negative expression is relevant to an understanding of the authorities, it provides:
(3)The Court shall not extend the time fixed by paragraph (1) except in special circumstances.
[16]They include Denysenko v Dessau, (1996) 2 VR 221 (‘Denysenko’); Prencipe v Nisselle[1999] VSC 137; Kay v Legal Profession Tribunal [2000] VSC 460; Lednar v Magistrates’ Court (2000) 117 A Crim R 396 (‘Lednar’), 408-12 [122]-[150] ; Carra v Hamilton, (2001) 3 VR 114 (‘Cara’); Mann v Medical Practitioners Board of Victoria [2004] VSCA 148 (‘Mann’); Somerville Retail Services Pty Ltd v Vi [2008] VSC 196, [42]-[44]; Goodman v Victorian Civil and Administrative Tribunal and Ors (2011) 34 VAR 151 (‘Goodman’), 157-8[28]-[29]; Balmer and Associates v VLA [2012] VSC 536; Lazarevic 2014 (n 15) (affirmed on appeal in Lazarevic 2015 (n 15), applied in Richards v Victorian Magistrates Court (No 2) [2018] VSC 226); Glass (a pseudonym) v Chief Examiner & Ors (2015) 50 VR 577 (‘Glass’).
The expression ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition.[17] Whether circumstances are special depends upon the context in which they occur. This does not mean that the circumstances must be unique; but they must have a particular quality of unusualness that permits them to be described as special.[18]
[17]Re Beadle and Director‑General of Social Security (1984) 6 ALD 1, (‘Re Beadle’) 3 (Toohey J). An appeal from that decision was dismissed by the Full Court of the Federal Court of Australia in Beadle v Director General of Social Security(1985) 60 ALR 225; see also Goodman (n 16) 157 [28].
[18]Re Beadle (n 17) 3, (Toohey J); see also Mann (n 16); Lednar (n 16) 408-12 [122]-[150]; Carra (n 16) 119-20 [24].
In Mann v Medical Practitioners Board of Victoria[19] at first instance, Osborne J expressed the view that it was not appropriate to seek to define the meaning of the phrase ‘special circumstances’. The phrase is deliberately flexible and designed to encompass cases that might not easily be anticipated by more prescriptive words. His decision was upheld on appeal and no error of principle in his reasoning was discerned.[20]
[19](n 16) [18].
[20]Mann (n 16) [72] (Hansen AJA).
The requirement that the plaintiff show ‘special circumstances’ requires that he make out circumstances that are not ‘general in character’,[21] but something exceeding ‘that which is usual or common’.[22]
[21]Ibid [68] (Hansen AJA) (Chernov and Nettle JJA agreeing at [5]and [8] respectively).
[22]Ibid [70] (Hansen AJA).
It is clear from the wording of the sub-rule (and the authorities) that the special circumstances are not confined to the failure to commence the proceeding within the prescribed period of 60 days.[23] The terms of the rule may be contrasted with other provisions requiring particular reasons for an extension of time. For example, s 109(5) of the Magistrates’ Court Act 1989 (Vic) provides for an extension of time to appeal, but only if ‘the failure to institute the appeal within the period referred to in sub-section (2)(a) was due to exceptional circumstances’. This sub-section was considered by McDonald J in Schwerin v Equal Opportunity Board[24] and His Honour held that it was necessary for an appellant to establish that a failure to institute an appeal within time was due to exceptional circumstances and it was not sufficient to establish exceptional circumstances generally with respect to the appeal.[25]
[23]Mann (n 16)[57], [72] (Hansen AJA); Lednar (n 16) 410 [140]-[143] cf. Denysenko (n 16) 224.
[24](1994) 2 VR 279.
[25]Cited in Lednar (n 16) 140 [139].
The language of the requirement in r 56.02(3) is significantly different. It is general language precluding the Court extending time ‘except in special circumstances’. This expression has been said to be ‘discouraging rather than encouraging’ because of its negative expression.[26]
[26]Carra (n 16) 119-20 [24].
The authorities establish that:
(a) The rule requires the Court to be objectively satisfied that special circumstances exist;[27]
[27]Mann v Medical Practitioners Board of Victoria [2002] VSC 256 (‘Mann 2002’), [18], approved in Mann (n 16).
(b) The existence of special circumstances is to be determined by reference to all the circumstances of a case;[28]
[28]Ibid [19], approved in Mann (n 16).
(c) The factors relevant to the exercise of the discretion under Rule 56.03(2) 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;[29]
[29]A manifest excess of jurisdiction might in some cases amount to special circumstances: Mann 2002 9n 27) [19], approved in Mann (n 16). Since the introduction of the Civil Procedure Act 2010 (Vic), Part 4.4, it seems to me that this question should be cast in terms of whether the plaintiff has a real prospect of success.
(iv) the justice to both parties, including the prejudice to the parties; and
(v) the public interest in the finality of litigation.[30]
[30]Mann (n 16) [57]-[58], [72] (Hansen AJA); Lednar (n 16) 410 [137], [142]-[143]; Young v The County Court [2005] VSC 311, [17]; Goodman (n 16) [29].
It is important to be aware of the way in which an arguable case, or a case that is not arguable, may be taken into account. The fact that the plaintiff may demonstrate an error below, or other grounds for judicial review, does not automatically result in there being ‘special circumstances’, for if that were so there would be little practical point to the time limit contained in the Rule.[31] On the other hand, where it is clear that a plaintiff’s grounds are not arguable, or he has no real prospects of success, there will ordinarily be no point in extending the time and therefore no special circumstances exist. In short, as the Court of Appeal observed in Glass (a pseudonym) v Chief Examiner & Ors:[32]
If the case is unmeritorious, then it would be futile to grant an extension. The stronger the case, the more weight that might be accorded to that factor. Whilst it is not necessary nor desirable to examine the merits in too much detail, the strength of the case should be sufficiently apparent from the review undertaken to enable the judge or associate judge to give the appropriate weight to it. In some situations all that might be said is that the case is arguable. In other cases, it may be more than arguable. Even if the case is a strong one, other factors may outweigh the merits such that overall it cannot be said that there are special circumstances justifying the extension.[33]
[31]Mann 2002 (n 27) 157-8 [19], approved in Mann (n 16).
[32](n 16).
[33]Ibid 595-6 [71].
Last, when seeking to apply the reasoning in other cases, it is important to note that the circumstances of each case dictate the factors to be taken into account in determining whether or not the applicant for an extension of time has established that there are special circumstances justifying the extension.[34]
[34]Mann (n 16); Glass (n 16) 595-6 [71];
Submissions and consideration
The submissions made by the plaintiff were contained in both his affidavits and his so called ‘written case’.[35] As is common with self-represented litigants, they only address the relevant matters incidentally, buried in a mass of interesting but legally irrelevant complaints largely directed to grounds supporting the proposition that he is innocent of the charge found proven in the appeal. Moreover matters that might amount to an argument for an order in the nature of certiorari are mixed up with matters that might be put on an appeal but which are not relevant to an application for judicial review. Doing the best I can, I summarise the various matters relevant to an extension of time under the following headings. I include the submissions of both the plaintiff and defendant and my consideration of them under each heading.
[35]Plaintiff’s first and second affidavits (n 8); Written case documents filed 20 and 25 May 2020, which I refer to as the ‘Plaintiff’s Written Case’ in these footnotes.
Period of Delay
The appeal was heard and the resulting order was made on 16 April 2018, so the 60 days for the making of an application under Order 56 expired on Monday 15 June 2018. From 16 April 2018 to the date of the filing of the originating motion on 30 December 2019 a total of 1 year, 7 months and 13 days have elapsed.
The defendant accepts that allowance may be made for the fact that the plaintiff is self-represented and had difficulties in drafting documents which could be accepted for filing. The plaintiff produced email correspondence with the Supreme Court Registry commencing on 27 November 2019 concerning defects in his filed documents. The defendant accepts that the period between 26 November 2019 and 30 December 2019, should not be counted as part of the period of the delay to be considered by the court.
The plaintiff maintained in submissions in Court before me on 25 May 2020 that he commenced the process of attempting to make an application to this Court in late 2018 and consulted the self-represented litigant co-ordinators for assistance. He found it very hard to make the application. He maintained in his oral submissions that it took over a year to prepare and file his application. The matter that motivated him to appeal was the discovery that he still had a criminal history notwithstanding that no conviction was entered against him and this affected his ability to gain remunerative employment. In other words, he misunderstood the meaning and effect of the finding of guilt without recording a conviction.
The evidence he adduced included an email form the Taxi Services Commission (as it then was) dated 3 September 2018 acknowledging that he lodged a commercial passenger vehicle driver accreditation application and that the TSC had submitted it to the Australian Criminal Intelligence Commission for the purpose of conducting a National Police History Check. The email went on to say:
(a) that National Police History check would be used to assess the suitability of the applicant to hold a driver accreditation.
(b) The TSC would send a copy of the results by mail.
No results were exhibited to the plaintiff’s affidavits, but he stated that the police check showed that he had a criminal record,[36] presumably that the charge was found proved and he was fined without any conviction. He also refers to a Police History Check in relation to an application for a job as an IT engineer, to which I refer below, but does not identify when that took place.[37]
[36]Plaintiff’s second affidavit (n 8) 2 [9].
[37]Plaintiff’s first affidavit (n 8) 1 [3].
The suggestion that he began the process of preparing his application by seeking assistance from the self-represented litigants’ coordinator in late 2018 is not supported by the evidence the plaintiff adduces. It was asserted by the plaintiff from the bar table. I have made inquiries of the co-ordinators who keep records of those who seek their assistance and the records show the plaintiff first approached the co-ordinators for assistance on 1 November 2019 when he was referred to Justice Connect for assistance.
I am unable to accept the uncorroborated assertions that he started the process of attempting to review the decision of the County Court in late 2018. The only period that is in any way confirmed by anything written is in the period over which the email correspondence with the Court Registry extends, which is the period between 26 November 2019 and 30 December 2019.[38]
[38]Plaintiff’s first affidavit (n 8) Exhibit 3.
Moreover, even if the plaintiff did approach this Court for assistance in late 2018, and it is not recorded, it remains the case that the delay since the expiry of the 60 day period on 15 June 2018 is still lengthy, amounting to between 3 and 5 months. The reasons for this delay then become important to the existence of special circumstances.
Reason for delay
As I have said, the reason for the delay in making the application is because the plaintiff misunderstood the meaning and effect of the finding of guilt without recording a conviction. In this regard, he states that he understood that ‘no conviction’ meant he was found not guilty. He says his lawyer assured him that it was a good outcome. In addition to the Police History Check referred to by the Taxi Services Commission, in his first affidavit the plaintiff said:[39]
2.The decision came with no conviction but with $1000 fine. My understanding was that no conviction means not guilty I asked my lawyer and I was assured that it is a good outcome.
3.Until my understanding of the county courts trial and decision complexity; I never took issues seriously simply because I did not commit act of violence. When I tried to apply for a job in my field as IT Engineer that requires police check I knew the decision was not as I thought and as was explained to me.
4.I did not get good explanation from my barrister at the end of the hearing plus the decision was complicated and unclear to make immediate decision to appeal it.
5.I am fronting a fully prepared and funded crew by my own thus I at least have to have sufficient time to prepare and to present myself in proper way to ensure I understand every step of the process and also to seek legal advice whenever possible.
6.For the above reasons I am requesting for extension of time due to special circumstances.
[39]Ibid 1-2 [2]-[6].
In the plaintiff’s second affidavit, he made the following comments on the judicial review process:[40]
The instructions are complicated and time consuming. Comments and instructions by Redcrest reviewers contradict. Regardless of that I continued doing my best until finally accepted when I involved the Justice Minister.(exb 4).
[40](n 8) 2 [11].
The reference to the Justice Minister is to a letter he wrote to the Attorney-General on 11 December 2019 complaining about the difficulty of the process of applying for judicial review, amongst other things. There is no evidence of any response. It seems likely that the plaintiff believed his letter to the Attorney-General had some effect, but that is neither evidenced nor likely.
In the plaintiff’s second affidavit, he repeated what he said about misunderstanding the meaning of no conviction being entered against him, and also maintained he was misled by the barrister representing him at the appeal about that.
The defendant submitted that:
(a) the plaintiff has failed to provide documents or other evidence which provides an adequate explanation for the extended delay in commencing this proceeding; and
(b) the fact that a finding of guilt without the recording of a conviction will be recorded in a criminal history is not a special circumstance.
I am not satisfied that the misunderstanding of the import of the result of the appeal leading to considerable delay in launching this application is a factor that, with the other circumstances, establishes special circumstances that justifies the extension of time. Although the barrister who was provided by Victoria Legal Aid pursuant to s 357 of the CPA was engaged for the purposes of undertaking the cross-examination of the Ms Mohamed as a protected witness, the evidence, particularly the transcript of the appeal hearing, shows she in fact undertook the representation of the plaintiff throughout the hearing.
I am prepared to accept that, as person unfamiliar with Australian law, he genuinely misunderstood the meaning and effect of the decision of the Judge not to enter a conviction for the offence charged of unlawful assault. But that is a matter that is entirely subjective and personal to him. He alone misunderstood the effect of the order. He suggests his Barrister mislead him, but that is mere assertion and is not supported by what he says she told him. There is nothing out of the ordinary for a lay person not to understand the effect of a charge being found proved but there being no conviction entered. The fact that a finding of guilt without entry of a conviction will be recorded in a criminal history is also not out of the ordinary and does not, in my view, constitute a special circumstance within the meaning of the Rule.
However, the proposition that he equated the ‘no conviction’ decision with a ‘not guilty’ finding beggars belief. The plaintiff was present in Court during the hearing of the appeal and cannot have been mistaken at the County Court Judge’s meaning when, at the end of the ex tempore reasons given he 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 appellant with his arm around her neck and that she was screaming and he told her to let him go and he did, and it’s on that basis that I find the charge proven.[41]
[41]Transcript of Proceeding, 16 April 2018,51-2. This was exhibited to the Petrowski Affidavit (n 8) as Exhibit OPP-6. I will refer to this exhibit as ‘Transcript of Proceeding’.
There is no evidence of any action taken by the plaintiff to understand the effect of the appeal, especially in the circumstances that he has repeatedly maintained that Ms Mohamed attacked him, not that he attacked Ms Mohamed, and that she and Mr Cabdulle lied to the Magistrate and to the Judge.
Plaintiff’s prospects of success
The defendant succinctly and accurately summarised the law applicable to a consideration of the merits of the plaintiffs case, that is his prospects of success in any judicial review if the time is extended, in the following way:
(a) This Court’s jurisdiction on judicial review is not to decide the case for itself, but rather to ensure that the decision-maker is kept within the boundaries of the lawful exercise of the decision-maker’s power.[42]
[42]Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24,40-41 (Mason J).
(b) The relief which is usually available is an order in the nature of certiorari. That permits this Court to quash the decision of the County Court on the basis of, inter alia and relevantly for present purposes, jurisdictional error, error of law on the face of the record, or a failure to observe procedural fairness.[43]
[43]Craig v South Australia (1995) 184 CLR 163 (‘Craig’),175-6.
(c) There is no rigid taxonomy of jurisdictional error.[44] However, such error exists when a Court ‘mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist.’[45] Making a decision that is outside the limits of the functions and powers conferred on the Court, or doing something that the Court lacks power to do, constitutes jurisdictional error.[46] On the other hand, incorrectly deciding something which the Court is authorised to decide is not jurisdictional error.[47]
(d) When assessing whether there is an error of law on the face of the record, it is necessary to identify the record. For the purposes of an appeal to the County Court, the record is normally comprised of the charge and summons, certified extract of the decision of the Magistrates’ Court, notice of appeal, notice of the decision of the County Court, and the County Court judge’s reasons.[48] Where other material is included by implication in the reasons given by the Judge, or it is necessary to have regard to other material in order to comprehend those reasons, that other material may be included in the record.[49]
(e) If an order in the nature of certiorari were to be granted quashing the order of the County Court Judge, it would leave the orders of the Magistrates’ Court on foot.[50] The appeal would then have to be determined afresh before the County Court.
[44]Kirk v Industrial Court (2010) 239 CLR 531 (‘Kirk’), 574 [73] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ).
[45]Craig (n 43) 177.
[46]Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 (‘Ex parte Aala’), 140-1 [162] (Hayne J), cited with approval in Kirk (n 44) 571-2[66] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ).
[47]Ex parte Aala (n 46) 140-1[162] (Hayne J), cited with approval in Kirk (n 44) 571-2 [66] (French CJ, Gummow, Hayne, Crennan, Kiefel, and Bell JJ).
[48]Hoe v Vella [2009] VSC 600, [47].
[49]O'Connor v County Court of Victoria (2014) 67 MVR 66, 74 [30].
[50]Hastings v Brennan [2005] VSC 269, [4]–[5].
The record of the decision below is confined. The record comprises 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 includes the County Court judge’s reasons for decision. The defendant submitted that only that part of the transcript containing the Judge’s reasons is properly a part of the record. I disagree. The ex‑tempore reasons make clear that the transcript itself contains matters necessary to be read to understand his reasons.
The identification of the record is important because the plaintiff suggests that Ms Mohamed and Mr Cabdulle have engaged in fraudulent conduct in relation to the migration to Australia of Mr Cabdulle and others. He produces exhibits to his first affidavit in support of the allegations. They were never adduced in evidence or put or referred to in any way in the County Court hearing on 16 April 2018. They are not a part of the record of the hearing below, and cannot be taken into account in the assessment of the merits of the plaintiff’s case.
I have set out above ([16]) the grounds of review stated by the plaintiff. In my view, the defendant accurately summarised these grounds, and I adopt that summary. They amount to the following:
(a) The first and third grounds are an allegation that the 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 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 had.
(d) The fifth ground alleges that the plaintiff’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.
In relation to the first and third grounds, Mr Cabdulle was called by the prosecution as a witness to the alleged assault. His evidence, removing for the present less important details, was that:
(a) He was 16 at the time of the incident and 17 at the time of the hearing of the appeal. He was sleeping at his sister’s apartment in Collingwood. Also present in the apartment were his little brother and Ms Mohamed’s four children Avta Samir, Ilias, Amun and Abdul Lahi. The last three of whom were the children of the plaintiff. The youngest child was about 15 months old.
(b) He was in his room when he was called by Ilias who told him something that led him to go into Ms Mohamed’s bedroom. He saw the plaintiff 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 plaintiff to let her go. He told the plaintiff to let her go and he did so.
(c) He related that she called the police and that her clothes were ripped.
(d) In cross- examination, Mr Cabdulle confirmed that Ms Mohamed sponsored his move to Australia and that he was financially dependent on her. He denied that he was protecting his sister or had made his statement at her direction. The scenario that Ms Mohamed had attacked the plaintiff was put to Mr Cabdulle who answered “No”. There was no re-examination.
In relation to the second and sixth grounds, the reasons of the Judge that I have partly set out above at [42] show that he did not give greater credence to the evidence of Mr Cabdulle because he swore on the Koran, as he said ‘I don’t take any view about that’, referring to the choice to swear or to affirm.
In relation to the fourth ground, the plaintiff exhibited to his first affidavit photographs of injuries that he maintained he suffered as a result of being attacked by Ms Mohamed, and that her police statement revealed no injuries to her. But this is not a matter that shows a ground of review. The Judge rested his decision on the evidence of Mr Cabdulle rather than the evidence of Ms Mohamed. Nevertheless, it was put to Ms Mohamed that she attacked the plaintiff, and she responded, in substance, that she weighed 45 kilos, was pregnant and had her child on her hip, so how could she attack a man?
In relation to the fifth ground, the plaintiff submitted that in her initial interview with the police Ms Mohamed said that their argument started after she found out that the plaintiff was cheating on her over a photo she saw on his phone, but in the appeal hearing she said that the argument was over fines and a car she believes that the plaintiff bought for his current partner. The plaintiff’s barrister requested that the Judge recall Ms Mohamed to the witness box to ask about this contradiction. But the Judge refused and said that it will not make any difference.
The first thing to note is that the statement put forward by the plaintiff as Ms Mohamed’s statement to the Police is in fact a brief statement in support of a Family Violence Protection Order and does not purport to be a statement of evidence by Ms Mohamed.[51] That document does not seem to have been put to Ms Mohamed and does not seem to have been in evidence in the appeal, and may not be a part of the record of the proceeding.
[51]Plaintiff’s first affidavit (n 8) [11]; Exhibit 2; Petrowski Affidavit (n 8), 3 [7]; Exhibit OPP-1.
Related to this ground is the submission by the plaintiff that Counsel representing him at the appeal hearing was not adequately briefed. He complained that he did not have the opportunity of giving Counsel instructions. He said in his written submission that when he met the solicitor engaged by Legal Aid Victoria at her office he was promised a meeting with the barrister to be held prior to the hearing so that he could give proper instructions. That did not happen.[52] The result he submitted was that his Counsel did not have enough knowledge of his case and let the prosecution get away with presenting evidence that was misleading and contained contradictions. These included the alleged failure to cross-examine about prior inconsistent statements and in relation to the absence of any visible injuries to Ms Mohamed,[53] compared with his own injuries arising from the incident.
[52]Plaintiff’s Written Case, 18 May 2020, 2 [4].
[53]An attachment to his written submission included an application to the Magistrate’s Court for a Family Violence Intervention Order which revealed no visible injuries to Ms Mohamed ‘at this point’: Plaintiff’s Written Case, 18 May 2020; Attachment 6.
The defendant submitted that the failure to cross-examine Ms Mohamed regarding the inconsistency between her so called police statement and her evidence in chief, and the unsuccessful application to recall Ms Mohamed for further cross-examination about the prior inconsistent statement, has not occasioned a miscarriage of justice.
It is clear in my view that the defendant is correct and that the circumstance does not give rise to any error on the part of the Judge. What happened was that Ms Mohamed gave her evidence by audio-visual link from another room. In her evidence in chief she gave the following evidence:[54]
[54]Transcript of Proceeding (n 41), 12.
MS MORKOS: At approximately 8 am – I’m sorry I withdraw that Your Honour. Can you tell the court what happened that morning?---At that morning I talked to him, the car he bought his partner and I talked to him you used it – he bought 40,000 for that car I talked to him, he’s using my car and you buy 40,000 car for your other partner, that’s where the discussions start. And he brought me for my car 18,000 fine.
So you had a – when you say discussion – I withdraw that Your Honour. So you talked about the car and him buying a car for his other partner?---Yes.
And you spoke about him driving your car and you said something about there being $18,000 worth of fines on your car? ---Yes.
Who put those fines on your car?---Him.
And that was part of the discussion you were having with him that morning?---Yes.
What happened after you said that to him about putting the fines on your car?---He said I will pay for that, no problem and he said it’s not a big deal.
What happened after you had that discussion?---I told him to leave my house.
After you told him to leave your house what happened then?---He was very angry, he ask me – he told me bad words.
The evidence in chief then addresses in some detail the assault, including that the plaintiff slapped her across the face, that she dropped her baby after the plaintiff put his arm around her neck and choked her, and that he punched her on the back.
In cross-examination there are a number of relevant exchanges The first exchange shows, contrary to the submission by the plaintiff that his instructions were not relayed to Counsel carrying out the cross-examination, that quite extensive instructions must have been given. The following exchanges occurred:[55]
[55]Transcript of Proceeding (n 41) 17-9.
MS WATERS: So Ms Mohamed, just to clarify, Mouktar came around the night of 2 April last year, didn’t he?---Can you repeat again please?
Mouktar, your ex-partner, he came around on the night of 2 April last year?---Yes.
You had called him because Ilia was sick, that’s one of your children that you share with Mouktar, yes?---No, my children wasn’t sick.
So you deny that you called Mouktar to say that Ilia needed to be taken to the emergency department that night?---No.
I suggest that did occur and when Mouktar got to your house Ilia was asleep?---He wasn’t sick.
I’d suggest that Mouktar has turned up to your house and Ilia was asleep, so it was decided that you wouldn’t take him to the emergency department that night?---That’s not right, that’s not correct.
It was agreed that Mouktar would stay the night that night, wasn’t it?---Yes.
And you wanted Mouktar to stay in your room that night, didn’t you?---That’s his room he usually come.
In your room?---Yes.
But you weren’t together at that stage, were you?---Yes, he usually come, even his clothes is there - was there, and he usually comes to that room.
Okay, but I suggest on that night Mouktar didn’t want to sleep in your room that night?---We don’t have any other room, that’s only three bedroom we have.
You tried to kiss Mouktar that night on the couch, didn’t you? ---No, I don’t - - -Kiss.
Pardon?---That’s not my culture even to kiss a man.
But Mouktar had declined you, didn’t he?---No, that’s not right, how come he was usually force me for sexual because that’s how I have the children.
Then the cross-examination deals with matters that could only have been put on instructions given by the plaintiff as to the cause of the argument leading to the assault:[56]
[56]Transcript of Proceeding (n 41), 19.
I want to take you to the morning of 3 April, you’ve given a statement to police about this matter, haven’t you? ---Yes. (emphasis added)
Today you’ve given evidence that you found a photo of a car that Mouktar gave his other partner, correct?---Yes, him and his partner was in the car, the photo, they were together in the photo in the car. The car he bought for her.
Yes, so to clarify, you’ve seen a photo his other partner and him on his phone?---Yes.
And he has said that this is his girlfriend, hasn’t he?---His other wife, and he has children with her.
Yes. That was what was started the argument, isn’t it? ---It didn’t start the problem, the problem started because I knew he had other wife before me and he has another wife, but the problem it started the car he bought for her, 40,000. (emphasis added)
And you were jealous that he bought this car for her?---I wasn’t jealous buying for her the car but I was – he was using me, because he’s using my car. That’s what the discussion is started, you’re using me.
All right, I suggest that you were jealous of the relationship that he was having with her?---I wasn’t jealous because I knew he has other wives, he has – I’m number three.
I suggest you were jealous that he’d bought her this car and that’s what started the argument?---No, I wasn’t jealous that he bought the car, the argument is about the fine, 18,000.
This extract, with particular attention to the passages emphasised, shows that Counsel for the plaintiff was putting to Ms Mahomed her instructions that there was inconsistency between the statement made to the police and the evidence given at the hearing of the appeal. After the cross-examination of Ms Mohamed concluded, and there was no re-examination, Ms Mohamed withdrew and there was a short adjournment whilst Mr Cabdulle was set up at the remote location to give his evidence. Before he was sworn Counsel for the plaintiff made application to recall Ms Mohamed for further cross-examination:[57]
[57]Transcript of Proceeding, (n 41) 20-2.
MS WATERS: Your Honour, I apologise, it may be that I’m seeking to have the complainant recalled in the interests of Browne v Dunn essentially. I’m not sure if it was clear enough that it was put to her that in her statement there was no mention of this car, it was in her statement, she – the complainant raises it was the appellant and his girlfriend, this caused an argument. I want to make it clear that she’s now changed her statement and added additional information where she originally said it was just the photo.
……
HIS HONOUR: All right. Well, I try hard not to intervene but you didn’t go – I mean she gave evidence about the problem, you were asking her about the problem with the fact that he had bought the car for his other partner or wife and that she was jealous about that. But the evidence she gave there was two cars. One was in relation to that, that there was a photo about that but the second was really in relation to a car that he had bought her that he had run up $18,000 worth of fines on there. Now that’s clear in my head what the difference is between those two. You didn’t put anything to her about the difference or the fact that there was two or anything like that, but that - - -
MS WATERS: No, I didn’t Your Honour, it was perhaps because I’m sticking to - - -
HIS HONOUR: But you put your case that it was more – I mean your defence, if I can put it that way, is that she attacked him as a result of jealousies over the car and the woman herself.
MS WATERS: Yes.
HIS HONOUR: So that’s pretty clear to me. I mean I’m not troubled by you not clarifying that but if you think it’s of any great moment.
MS WATERS: What would be – I’d be clarifying is that the differences, she’s giving different evidence now.
HIS HONOUR: Well that’s not a Brown v Dunn point, it’s more whether – if there’s a Brown v Dunn point where you should have put something and Ms Morkos is not going to raise it with me as an issue that I can direct myself on in relation to a Brown v Dunn type warning that’s fine.
MS MORKOS: No, Your Honour.
HIS HONOUR: I mean I won’t think anything about it against your client. But if you’ve simply not put things you want to put well - - -
MS WATERS: Not that I – yes, Your Honour, I hear Your Honour. May I quickly speak to my client?
HIS HONOUR: Yes.
MS WATERS: I take the matter no further, Your Honour, thank you.
This is not all the material relevant to issues of whether the decision in Browne v Dunn[58] had been properly followed by Counsel for the plaintiff, so that as a matter of fairness Ms Mohamed had the opportunity to explain matters that the plaintiff intended to contradict or where it was intended to discredit her.[59] But it is the critical part of the cross-examination relevant to the fifth ground for relief.
[58](1893) 6 R 67 (HL).
[59]In MWJ v R (2005) 80 ALJR 329 the High Court confirmed that the rule, with qualifications, applied to criminal cases. The most important qualification is that the Court must consider the nature and course of proceedings in evaluating the consequences of a failure to cross-examine on a point on which the party relies and that application of the rule must not displace the prosecution’s burden of proof.
If the conduct of Counsel were a ground for an order in the nature of certiorari, on the material before me I would find that it was not made out. But it seems tolerably clear that so far as concerns the content of the procedural fairness ground for relief that it is no ground for relief that the plaintiff has been deprived of his opportunity of being properly heard because of the default of his lawyers,[60] unless the tribunal or judge was at fault for the matter complained about. There is no suggestion, nor is there any basis for finding, that the Judge was at fault for any failure of procedural fairness or breach of the hearing rule.
[60]R v Secretary of State for the Home Department; Ex Parte Al-Mehdawi (1990) 1 AC 876, 898; Ex Parte Aala (n 46) 97 [33](fn 72); SBA Foods Pty Ltd v Victorian Workcover Authority [2001] VSC 276, [278]-[283];
The learned Judge relied only on the evidence of Mr Cabdulle in finding the charge of unlawful assault proved (see [42] above). None of the criticisms of the conduct of the hearing raised by the plaintiff affect the conclusion reached by the Judge, save for the proposition that the Judge accepted the evidence because Mr Cabdulle made his oath on the Koran. I have already pointed out that is a misconstruction of what the Judge said. All the other matters provide no basis for an order in the nature of certiorari. The grounds for the proposed judicial review proceeding are not reasonably arguable and the plaintiff does not have a real prospect of success.
Further, the defendant submits that he will be prejudiced by the extended delay of a proceeding which, if the time were extended and the order of the County Court were quashed, would result in the matter being reheard afresh about three years after the County Court hearing and four years after the date of the offending on 3 April 2017. There is a real risk, it seems to me, that another hearing of the appeal will be another 12 months off assuming the judicial review were able to be heard this year. 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.
Conclusions
For the reasons given above, I conclude that there are no special circumstances warranting an extension of time for the plaintiff’s commencement of this proceeding.
I will therefore order that:
(a) The application to extend the time within which the plaintiff may commence this proceeding is refused;
(b) The proceeding is dismissed;
(c) The plaintiff shall pay the defendant’s costs.
---
I have adapted this section from my decision in Lazarevic v Victoria Police [2014]
VSC 497,(‘Lazarevic 2014’) [29]-[36]; approved in Lazarevic v Victoria Police [2015] VSC 13 (‘Lazarevic 2015’).
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