DPP v Sarosi

[2001] VSCA 216

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 5590 of 1999

GEORGE SAROSI	Appellant
v.
THE DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGES:	BROOKING, ORMISTON and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 November 2001
DATE OF JUDGMENT:	26 November 2001
MEDIUM NEUTRAL CITATION:	[2001] VSCA 216

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SUMMARY OFFENCES - Carpark incident - Magistrate dismissing charges, without notice and before prosecution case closed - Procedural fairness denied - Judge's decision ordering re‑hearing not attended with doubt - Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C.M. Maxwell Q.C. with Mr D. Hancock	Access Law
For the Respondent	Mr C.J. Ryan	Solicitor for Office of Public Prosecutions

BROOKING, J.A.: 

1. As long ago as August 1996 George Sarosi was charged with hindering a member of the Police Force and with assaulting him in the course of the same incident in a hotel carpark.  During the hearing in February, March and April 1999 he was represented by Mr Perkins of counsel, instructed by Mr Gabriel Kuek, who then practised under the name Kuek & Associates and now practises under the name Access Law.

1. The case was supposed to last one day.  But all day long the noise of battle rolled for 28 sitting days or thereabouts, until the prosecution case had been closed, the magistrate dismissed both charges.

1. It is scandalous that a case of this kind should be so conducted by the defendant's lawyers that after five or six weeks the prosecution case is still in progress - if the word "progress" can be used in these circumstances.

1. Having referred to the morass which the hearing in the Magistrates' Court had become, the judge continued, still dealing with the way the defence had been conducted below:

"The litany of the improprieties which attended the proceedings in the Magistrates' Court does not end there.  Issues of credit were raised at every juncture, and pursued without any regard for the proper limits upon such investigation.  The use of notes to refresh the memory of a witness was the basis for attacks which generated much heat and little light.  Points of law were taken where none existed.  Substantive hearing turned into voir dire and back again.  All over an incident in a hotel car park which began and ended within a matter of minutes.  Such was the constant barrage of vacuous, rambling and almost unintelligible submissions that, not surprisingly, the prosecutor and the magistrate lost all sense of direction."

1. That judge was Harper, J., an appeal by the Director of Public Prosecutions on behalf of the informant having been allowed on 10 March 2000 and the case having been sent back for rehearing by a different magistrate.

1. Mr Kuek had, in the meantime, claimed that the huge sum of $81,000 should be paid by the informant for the costs of the hearing in the Magistrates' Court. 

1. Mr Sarosi has appealed against the order of Harper, J.  He now recognises that he needs leave to appeal.

1. Two errors have been imputed to the judge which raise points not taken below.  The first of them complains that it has not been shown that the informant wished to appeal or that the appeal was brought on his behalf.  This submission, that some evidence is required of that, accepts that the point is curable by evidence, and Mr Maxwell, who has done his utmost to support the insupportable, accepted in the end that the point could not be raised before us.  I should say that in any event I would not have upheld the point, even if it had been taken below.

1. The second point not taken below, and this is one not affected by evidence, is that the orders of dismissal of the charges were not final because the magistrate did not deal finally with the question of costs.  I think it is quite plain that the orders of dismissal were final orders in the necessary sense.

1. Other grounds complained that the judge erred in concerning himself with questions of credibility and fact.  I think it is unnecessary to consider these criticisms of his Honour's reasoning.  For the essential basis of his decision is that the magistrate denied procedural fairness to the informant by dismissing the charges without notice that she was considering doing so, and without hearing the whole of the evidence for the prosecution.

1. In my view the judge's decision that the magistrate had erred in law in what she did is not attended with sufficient doubt to warrant the grant of leave to appeal.  By "in what she did" I mean her act in dismissing the charges without notice to the informant and at a stage when the informant's case had not been closed.  The informant was not given the opportunity to be heard on the question of whether the

charges should be dismissed.  Moreover, the magistrate made her order without having heard the balance of the evidence for the prosecution.

1. I hope that we shall not see another case like this, but I am not at all sure that we shall not.

1. In my view the application for leave to appeal should be dismissed with costs and the appeal should be dismissed as incompetent with costs.

ORMISTON, J.A.: 

1. I entirely agree.

CHERNOV, J.A.: 

1. I agree.

BROOKING, J.A.: 

1. The application for leave to appeal is dismissed with costs.  The appeal is dismissed as incompetent with costs.

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