Draoui v District Court of South Australia & Anor - [2011] SASC 11

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application for Judicial Review)
DRAOUI v DISTRICT COURT OF SOUTH AUSTRALIA & ANOR
[2011] SASC 11
Reasons for Decision of The Honourable Justice Kelly
11 February 2011
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE - APPLICATIONS
Application for permission to proceed with judicial review - applicant sought judicial review of a District Court judge's decision to refuse to disqualify himself from hearing an application for revocation of a supervision order - applicant argued that an apprehension of bias arose because the judge had previously refused to revoke the supervision and ordered that no further application could be made for 18 months.
Held: Application adjourned - application premature - application adjourned for a sufficient period to enable the substantive proceedings in the District Court to be determined.
Criminal Law Consolidation Act 1935 (SA) s 269H, s 269M, s 269O, s 269P, s 269Q, s 269R, s 269T; Mental Health Act 1993 (SA); Supreme Court Civil Rules 2006 (SA) r 200(1), referred to.

DRAOUI v DISTRICT COURT OF SOUTH AUSTRALIA & ANOR
[2011] SASC 11
Ruling: Application for Permission to Proceed with Judicial Review
KELLY J.

The applicant, Abdou Khalil Nassar Draoui, has filed an interlocutory application seeking permission in accordance with r 200(1) of the Supreme Court Civil Rules 2006 (SA) to proceed with an application seeking orders in the nature of certiorari to quash a decision made by a District Court judge on 19 November 2010. On that date the District Court judge refused an application by Mr Draoui to disqualify himself on the basis of apprehended bias from hearing an application filed by Mr Draoui under s 269P of the Criminal Law Consolidation Act 1935 (SA) (the Act). That application was for the revocation of a supervision order made on 27 September 2007.
An understanding of the history of this matter is important to the issue whether permission to proceed with this application should be granted at this stage. The relevant background is set out in two earlier decisions of this Court; R v Draoui (2008) 101 SASR 267 at 270 – 272 per Sulan J, and Draoui v District Court of South Australia & Anor [2010] SASC 151 at [5] – [6] per David J.
The key events in the history of this matter are set out below:[1]
[1] For the purpose of summarising the history I have gratefully adopted the summary by David J of events which occurred up to and including 12 November 2009.
·10 April 2000 - 2 May 2002:
The applicant was alleged to have committed 84 offences related to fraud.
·20 November 2006:
The judge found the applicant was unfit to stand trial on the charges, pursuant to s 269H of the Act.
·15 March 2007:
The judge, satisfied that the objective elements of the offences were made out, ordered the applicant be liable to supervision, pursuant to s 269M of the Act.
·27 September 2007:
Pursuant to s 269O(1)(b)(ii) of the Act, the judge made a supervision order in relation to the applicant and set a time limit of 10 years for the order, pursuant to s 269O(2) of the Act.
·26 November 2008:
The applicant filed an application to revoke the supervision order, pursuant to s 269P of the Act. The hearing was scheduled for 28 July 2009, but vacated as the applicant’s counsel was not available. The hearing was rescheduled for 12 November 2009.
·12 August 2009:
The applicant filed an application for variation of the supervision order to be allowed to travel overseas. The judge refused the application on 14 August 2009.
·11 November 2009:
The applicant requested a directions hearing. The matter was subsequently called on and Mr Mancini (counsel for the applicant) invited the judge to consider disqualifying himself. The judge refused the invitation. Mr Mancini verbally advised the court that he would no longer be pursuing the application for revocation of the supervision order.
·12 November 2009:
The hearing of the matter proceeded, despite the withdrawal of the application the preceding day. The judge subsequently refused the application to revoke the supervision order, and ordered that no further application could be made to vary or revoke the order for a period of 18 months, pursuant to s 269P(2) of the Act.
The orders made by the District Court judge on 12 November 2009 were the subject of an application for judicial review in this Court.
·28 May 2010:
David J quashed the orders made on 12 November 2009 on two grounds, first, that the judge fell into jurisdictional error by determining an application was not before him as it had already been withdrawn, and second, that the applicant was not afforded procedural fairness because he was not given an opportunity to be heard prior to the making of the orders on 12 November 2009.
·8 June 2010:
The applicant filed an application to revoke the supervision order made by the District Court judge on 27 September 2007.
·23 June 2010:
Counsel for the applicant foreshadowed a formal application that the judge disqualify himself from hearing the application.
·22 July 2010:
The applicant filed an application seeking an order that the District Court judge disqualify himself from hearing the application for revocation of the supervision order filed on 8 June 2010. The ground on which the applicant relied was said to be for apprehended bias.
·26 August 2010:
The application for disqualification of the judge was heard.
·19 November 2010:
The applicant’s application for disqualification was refused.
On 24 December 2010 the applicant filed an application in this Court for judicial review of the order made by the District Court judge on 19 November 2010.
It can be seen from the history that this is the third time the applicant has requested the District Court judge to disqualify himself from hearing an application brought by him under the provisions of s 269P of the Act. On each occasion the applicant has relied on the ground of apprehended bias.
The applicant complains that the appearance of prejudgment in the earlier proceedings concerning the same issue and the same enquiry creates an appearance of apprehended bias. Counsel for the applicant clarified that what he meant by “the earlier proceedings” was the proceedings which took place before the District Court judge on 12 November 2009. Those proceedings were the subject of the applicant’s judicial review application in Draoui v District Court of South Australia & Anor. In that case David J held that the applicant had effectively withdrawn the application which the District Court judge proceeded to hear and determine on that date, and the District Court judge thereby committed jurisdictional error by asserting jurisdiction on an application which was not before him. His Honour also upheld a second complaint that the applicant had not been afforded procedural fairness in any event as the judge proceeded to hear and determine the application, before, in David J’s view, giving the applicant an opportunity to be heard or make submissions.
Although it was not necessary to the decision, David J rejected a third ground of judicial review that the judge ought to have been disqualified on the ground of apprehended bias on the basis of his prior dealing with the matter, in particular by making the original supervision order in 2007, by refusing an application to vary the supervision order by permitting the applicant to travel overseas in 2009 and by not disqualifying himself when asked to do so at a previous directions hearing on 11 November 2009. In dismissing that ground David J noted that the judge’s prior involvement did not require him to make any findings about the credibility of the applicant and in light of his previous involvement it was sensible for him to hear the application for variation.
In this Court counsel for the applicant submitted that the appearance of prejudgment in the proceedings on 12 November 2009 concerned the same issue and the same enquiry as the current application and therefore creates an appearance of apprehended bias. The second defendant opposed the granting of permission at this stage.
It is important to understand the nature of the proceedings in which the applicant has been involved in the District Court and the statutory scheme prescribed by the Parliament for the disposition of persons declared liable to supervision under the relevant provisions of the Act.
In respect of persons declared liable to supervision by reason of some mental impairment, a court, under the statutory scheme, may make a supervision order or release that person unconditionally. If a court makes a supervision order then a limiting term must be fixed. At the end of that limiting term the supervision order automatically lapses.
At any time during the currency of the limiting term a number of interested parties, including the Crown, the defendant, the Parole Board, the Public Advocate or any other person with a proper interest in the matter, are empowered to bring an application before the court to vary or revoke the supervision order.
If the court refuses an application which is brought by or on behalf of a defendant either for variation or revocation, then by virtue of the statute the defendant cannot make another application until a period of at least six months, or such greater or lesser period as the court refusing the application may direct.
By virtue of s 269Q of the Act the Minister responsible for the administration of the Mental Health Act 1993 (SA) must submit to the court annual reports reporting the treatment which the defendant has undergone since the last report and any changes in the prognosis of the defendant’s condition and the treatment planned for managing that condition.
By virtue of s 269R of the Act the Crown must provide to the court a report containing the views of the next of kin of the defendant and the victim or victims of the defendant’s conduct.
Section 269T of the Act sets out the matters which the court must have regard to when determining any application. Importantly s 269T provides that the court cannot release a defendant or significantly reduce the degree of supervision to which the defendant is subject, unless the court has done a number of things including:
(a)considered at least three reports, each prepared by a different psychiatrist or other appropriate expert who has personally examined the defendant;
(b)considered the report most recently submitted to the court by the Minister for Mental Health;
(c)considered the report on the attitudes of the victims and the next of kin; and finally,
(d)unless the court is satisfied that the next of kin or the victims of the defendant’s conduct have been given reasonable notice of the proceedings.
It is immediately apparent that the statutory scheme contemplates the court’s ongoing involvement in relation to persons in respect of whom a supervision order has been made. The court is assisted by the various expert reports which must be obtained, however during the currency of any limiting term fixed it is the court’s responsibility to determine any application for variation or revocation made on behalf of a defendant or any other interested person.
Given the court’s ongoing role in relation to the monitoring of the supervision order it is hardly surprising that it is the practice of the court registry when an application to vary or revoke a supervision order is received, to first check the availability of the judicial officer who made the original supervision order.
While the orders necessary to obtain the three mandatory expert reports required under the provisions of s 269T(2)(a) of the Act are usually made by an arraignment judge, it is however the usual practice to set down the matter for hearing before the judge who made the original order, unless that judge is for some reason unavailable.
It is apparent that this practice has been adopted with respect to each of the applications brought by the current applicant under the provisions of s 269P of the Act.
It seems to me that against that statutory background and the history, it would be artificial to regard the latest application brought by the applicant on 8 June 2010 as a quite separate matter completely divorced from the previous proceedings.
As Mr Niarchos pointed out in submissions, applications of this nature, that is, applications under s 269P of the Act, are not without complications. They require a careful process of ordering of the mandatory reports required under s 269T of the Act. There may be further supplementary reports required or even oral evidence necessary from the experts who provide those reports. All of this means that it may take some time to complete the necessary process in respect of any application made under s 269P of the Act.
In respect of the applicant, I note it is now almost three and a half years since the District Court judge made the original supervision order. Apart from the application to travel overseas in August 2009, which application the judge rejected, neither of the applications for variation or revocation previously filed by the applicant have proceeded to hearing and determination. This is not the fault of anyone. Indeed, as the history shows it was the applicant himself who withdrew the first application.
Nevertheless in light of the statutory scheme and the history of this matter since the supervision order was made in September 2007, I am of the view that the application for disqualification of the judge at this stage is premature.
This Court does not have the benefit of any considered reasons by the judge after a hearing when all of the relevant material has been considered and both parties have been heard. This Court should exercise restraint and not interfere in proceedings at an interlocutory stage unless the appearance of bias is patent. It is not appropriate or necessary at this stage to engage in any detailed analysis or discussion of the issues which might arise for consideration if the applicant wishes to pursue the application at a later stage, however I do not accept that it has been so clearly established here that the point has been reached where a fair‑minded observer might think that the judge might not bring an impartial and unprejudiced mind to the issues before him.
For these reasons I consider that the interests of justice will best be served if the current application before this Court is adjourned for a sufficient period to enable the applicant’s application under s 269P of the Act to be heard and determined by the judge without any further delays.
For that purpose I make the following orders:
1The application for permission to proceed with the application for judicial review is adjourned for a period of six months or such later date as might be necessary to enable the substantive proceedings in the District Court to be determined.
2The application under s 269P of the Act filed on 8 June 2010 is remitted to the District Court judge to hear and determine.
3This application will be listed for mention only on 11 August 2011 at 9.15am.