El-Saeidy v McAnulty

[2016] NSWSC 340

Supreme Court

New South Wales

Medium Neutral Citation:	El-Saeidy v McAnulty [2016] NSWSC 340
Hearing dates:	30 March 2016
Date of orders:	31 March 2016
Decision date:	31 March 2016
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Application dismissed
Catchwords:	PROCEDURE – civil procedure – interlocutory application for stay of Local Court proceedings pending determination of proceedings in this Court – where Supreme Court proceedings include an application for the Local Court magistrate to disqualify himself – whether application involves fragmentation of part-heard criminal proceedings – whether stay warranted
Legislation Cited:	Crimes (Appeal and Review) Act 2001
Cases Cited:	Andrews v Ardler [2012] NSWSC 845 El-Saeidy v Prowse [2016] NSWSC 46
Category:	Procedural and other rulings
Parties:	Fawzi El-Saeidy (Plaintiff) Shane McAnulty (First Defendant)
Representation:	Solicitors: Brett Thomson (Defendants)
File Number(s):	2016/78142
Publication restriction:	Nil

Judgment

1. HIS HONOUR: By his amended summons seeking leave to appeal filed on 14 March 2016, Mr El-Saeidy challenges certain orders said to have been made by Magistrate McAnulty in criminal proceedings currently on foot against him in the Local Court at Liverpool. Some brief background is necessary to explain the proceedings in this Court.

2. Background

3. Mr El-Saeidy is the defendant in criminal proceedings in the Local Court. They were originally commenced before Magistrate Prowse but Mr El-Saeidy successfully applied to Garling J for his removal from the proceedings: see El-Saeidy v Prowse [2016] NSWSC 46. Although the precise details of those proceedings are not in terms explained on the evidence before me, it appears from the transcript of the proceedings before Magistrate McAnulty on 10, 11 and 12 February 2016 that Mr El-Saeidy is being prosecuted in respect of alleged contraventions by him of apprehended personal violence orders. It is apparent that the proceedings are strenuously defended and that the allegations are contested.

4. In the course of those proceedings, which are currently part-heard and at present scheduled to resume on 4 April 2016 with an estimate of five more days, Mr El-Saeidy applied to have the learned magistrate recuse himself for actual or apprehended bias. The learned magistrate has also made decisions and rulings on evidence and procedure that Mr El-Saeidy contends have fundamentally compromised or imperilled his chances of a fair trial.

5. The proceedings in this Court have quite unsurprisingly not yet been allocated a date for hearing. The substance of what Mr El-Saeidy seeks in this Court is that his appeal be allowed and that certain of his Honour’s orders be quashed. In advance of the determination of his principal claims for relief, Mr El-Saeidy seeks a series of further orders on an urgent basis in terms of his notice of motion filed in court before me today. The orders sought are relevantly as follows:

1. An order that hearing of the Local Court matters 2015/207567, 2015/275429, 2014/35205 and 2014/351220 in [sic, on] 4 April 2016, 5 April 2016, 6 April 2016, 7 April 2016 and 8 April 2016 at Liverpool Court be stayed until determination of the substantive proceedings in the Supreme Court.

2. In the alternative to order 1, an order prohibiting [the defendants] from taking any steps to further hear or determine any of the matters [referred to in order 1] until determination of the substantive proceedings [in this Court].

Consideration

6. Mr El-Saeidy in effect contends that the Local Court proceedings should be interrupted so that his complaints about how the learned magistrate is hearing those matters can be determined as a preliminary matter before the proceedings are finally decided. The basis upon which he wishes to do so is presumably to be found in his supporting affidavits sworn respectively 11 March 2016 and 30 March 2016. I say “presumably” because, except to the extent that I have been able to identify the general substance of his complaints, Mr El-Saeidy’s affidavits are very long indeed and are not focussed upon the elucidation of his complaints with any high degree of precision.

7. I raised with Mr El-Saeidy at the outset the problem that he was attempting or seeking to fragment the criminal proceedings and that the usual and preferred course would be for him to permit them to run their course after which his present complaints, and potentially any further complaints that he might assemble between now and the conclusion of the proceedings, could be challenged simultaneously. Mr El-Saeidy was unattracted to that approach, presumably and from his lay perspective understandably, upon the basis that he has himself formed the concluded view that his Honour has made up his mind and not favourably to Mr El-Saeidy.

8. Mr Thomson, who appeared for the defendants, drew my attention to some helpful passages in Andrews v Ardler [2012] NSWSC 845 at [50]-[51] as follows:

“[50] The High Court has also said in R v Iorlano; Ex parte Attorney-General (Cth) [1983] HCA 43; (1983) 151 CLR 678 at p 680:

‘[I]t is highly undesirable to interrupt the ordinary course of criminal proceedings by applications for leave to appeal or prerogative relief for the purpose of challenging rulings on questions of admissibility of evidence.’

[51] In Gedeon v Commissioner of the New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 the plurality said at [23]:

‘With respect to the exercise of the power to make the declaratory orders now sought by the applicants, authority in this Court affirms an important general principle. This is that power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings. The fragmentation of the criminal process is to be actively discouraged.’ (footnotes omitted)”

9. Although the subject matter before Button J in that case was not identical to the present circumstances, the principles to which his Honour referred apply here.

10. Expressed in simple terms, except in the clearest case in which some fundamental impediment to the continuation of the proceedings according to law could be identified, it is preferable that criminal proceedings run their course. As Button J later observed in Andrews v Ardler at [55]-[56]

“[55] A major concern that Courts have in refusing to grant declarations in situations where the criminal process has already begun is to allow the criminal process to function in its own statutory context. In other words, where there is already a comprehensive statutory appeal and review mechanism in place, as is the case here, the Courts are reluctant to exercise their discretion to issue a declaration: see, for example, Hill v Green [1999] NSWCA 477; (1999) 48 NSWLR 161 at [163].

[56] The review of these cases leads me to the conclusion that, whilst this Court has a discretion to issue a declaration in relation to criminal proceedings in the Local Court, it would require ‘most exceptional’ circumstances.”

11. If the prosecutions are, or if any one of them is, successful, Mr El-Saeidy will undoubtedly have an appeal as of right against either his conviction or sentence or both to the District Court of New South Wales: see s 11 Crimes (Appeal and Review) Act 2001. That right necessarily operates as a protection for him in the event that the perceived injustices that Mr El-Saeidy is concerned to expose now can ultimately be demonstrated to be real. However, even with the benefit of the evidence upon which Mr El-Saeidy relies, and his very helpful and sincere protestations concerning the Local Court proceedings so far, I am not satisfied that they should be stayed or interrupted mid-course. This is not a case that is similar to the circumstances investigated by Garling J when his Honour concluded at [11] that “the balance of convenience and the interests of justice are best served by this Court first hearing and determining the question of the correctness of the decision of [Magistrate Prowse] … before the balance of the proceedings are determined in the Local Court”.

12. In the events that occurred, all of the criminal matters in the Local Court recommenced afresh before Magistrate McAnulty on 10 February 2016. On 12 February 2016, Mr El-Saeidy approached Rothman J who made the following orders in the proceedings with which Garling J had been concerned in this Court:

1. Order that the proceedings not be concluded without a further opportunity for Mr El-Saeidy to obtain legal representation and instruct them appropriately and to have available witnesses that he desires.

2. The evidence that has been adduced thus far be the subject of further cross-examination once such legal representation is available.

3. In the alternative to the foregoing, the matter proceed from the beginning before the Local Court as properly constituted.

13. Rothman J was of course dealing with Mr El-Saeidy’s complaints about Magistrate Prowse. So much is apparent from the title and number of the proceedings in which his Honour’s judgment dated 12 February 2016 was published. As anticipated by his Honour’s orders, the matters had in fact recommenced “from the beginning” before Magistrate McAnulty as referred to earlier. In my opinion, these matters should continue to finality before him as presently constituted. It is of course to be expected that Magistrate McAnulty will attend to and determine any application that Mr El-Saeidy might make before him when the matter resumes on 4 April 2016 in the light of, and having regard to, those orders made by Rothman J on 12 February 2016.

Order

14. It is sufficient to order that Mr El-Saeidy’s application is dismissed.

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Decision last updated: 01 April 2016