El-Saeidy v Ryan
[2018] NSWSC 73
•05 February 2018
Supreme Court
New South Wales
Medium Neutral Citation: El-Saeidy v Ryan [2018] NSWSC 73 Hearing dates: 5 February 2018 Date of orders: 05 February 2018 Decision date: 05 February 2018 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) Vacate all present listings of these proceedings in this court.
(2) Stand over the notice of motion filed 23 October 2017 until Thursday, 12 July 2018 at 9.00am before a Registrar.
(3) Liberty to apply on 14 days’ notice.
(4) Costs of today will be reserved.Catchwords: SUMMARY CHARGES – Local Court – attempt to invoke supervisory jurisdiction – stay previously refused – Local Court proceedings progressing – defendants seek summary dismissal – adjournment application – Court and parties’ resources should not be applied to matter while proceedings continuing in Local Court – adjournment granted Legislation Cited: Crimes (Appeal and Review) Act 2001 Cases Cited: El-Saeidy v Ryan (No 2) (Supreme Court (NSW), Fagan J, 28 September 2017, unreported) Category: Procedural and other rulings Parties: Fawzi El-Saeidy (Plaintiff)
Hamish Ryan (First Defendant)
Michele Cragg (Second Defendant)
Tara Conaghan (Third Defendant)
Marissa Peek (Fourth Defendant)
Alexander Ionita (Ninth Defendant)
New South Wales Attorney General (Tenth Defendant)Representation: Counsel:
Solicitors:
No Appearance (Plaintiff)
C Gardiner (1-4, 9 & 10 Defendants)
In person (Plaintiff)
Crown Solicitor’s Office (Defendants)
File Number(s): 2017/223081
EX TEMPORE Judgment
-
Returnable today is a notice of motion filed on behalf of the first, second, third, fourth, ninth and tenth defendants seeking the summary dismissal of these proceedings. The notice of motion was listed with an estimate of one day. It was the second time the matter had been listed. The first listing in December 2017 was adjourned on the application of the plaintiff who sought time to obtain legal representation. As I understand it, this date was fixed to suit his convenience. However, this morning the Court was contacted by the plaintiff who indicated that he is in hospital and cannot attend. The fact that he was hospitalised was verified by my associate who spoke to a nurse at the hospital. Accordingly, the plaintiff seeks an adjournment of the notice of motion. Partly for that reason and partly for the reasons that I will now outline, I will adjourn the notice of motion.
-
In 2016, seven charges were laid against the plaintiff. Four of the charges are assault occasioning actual bodily harm and three are “backup” assault charges. It is unnecessary to describe the charges in any detail other than to note that they are vigorously defended, so much so that the plaintiff contends that some of the photographic evidence relied upon by the police has been fabricated.
-
Proceedings in the Local Court progressed through an interlocutory stage in early 2017. There were a number of attempts by the plaintiff to subpoena material from the Commissioner of Police which in some respects was successful and in other respects was not.
-
From the limited materials that are on the court file, it appears that the substantive hearing of the charges commenced on 24 July 2017, although much of that day appears to have been taken up with an application for the presiding Magistrate to disqualify himself. The hearing continued on 25 July 2017. Again, although it is not clear, it does appear that there was at least another further hearing day in December 2017.
-
I have been advised from the Bar table that the point has been reached that the prosecution case has closed, but the matter has been adjourned pending the resolution of some difficulties that the plaintiff has experienced in obtaining Legal Aid, and thus, legal representation.
-
On or about 21 July 2017, the plaintiff filed a summons in this Court seeking a vast number of declaratory and other orders concerning the proceedings in the Local Court. An amended summons was filed on 14 September 2017.
-
The amended summons purported to appeal, or otherwise sought leave to appeal, from a number of decisions made by both the Magistrate who was hearing the charges against the plaintiff as well as various interlocutory decisions, including decisions concerning the subpoenas to which I have referred.
-
The orders sought included orders in the nature of prohibition against the presiding Magistrate on the grounds of apprehended bias, declarations concerning the quality of the evidence presented by the police, and declarations about the conduct of various witnesses. Much of the summons is entirely misconceived.
-
At some point, the plaintiff applied for an expedited hearing of his summons. The matter was heard by Fagan J on 27 September 2017 (El-Saeidy v Ryan (No 2) (Supreme Court (NSW), Fagan J, 28 September 2017, unreported) (“El-Saeidy (No 2)”). At the hearing of that application, the plaintiff also sought a stay of the proceedings in the Local Court. As part of the consideration of whether expedition would be granted, his Honour considered the relative strength of the claims for relief sought by the plaintiff in some detail. His Honour concluded that they were relatively weak (El-Saeidy (No 2) at [30] to [33]).
-
Amongst other matters, his Honour noted that "everything" or just about everything that the plaintiff "wishes to agitate under the summons may be made the subject of an appeal either to the District Court or to this Court in the event he is convicted" (El-Saeidy (No 2) [36.4]). In stating this, his Honour was referring to the extensive scheme for appeals from convictions entered in the Local Court provided for by Part 3 and Part 5 of the Crimes (Appeal and Review) Act 2001. Without traversing that scheme in any detail, it provides a comprehensive means of appealing findings of fact and law to the District Court and to this Court, although generally the latter is conditioned by grant of leave in respect of interlocutory matters and questions of fact.
-
Ultimately, Fagan J refused the application for expedition and refused the application for a stay (El-Saeidy (No 2) at [37]). At the risk of stating the obvious, the effect of refusing the stay was that there was no impediment to the Local Court continuing to hear and determine the charges against the plaintiff as it in fact has done.
-
The plaintiff’s application for expedition and a stay was vigorously opposed by the first, second, third, fourth, ninth and tenth defendants who brought this motion (the “active defendants”). The first defendant is the informant; the second and third defendants are police witnesses; the fourth defendant is a police prosecutor, as is the ninth defendant, and the tenth defendant is the Attorney General who has intervened. (The fifth to eighth defendants are two magistrates and the Local Court.) After Fagan J’s decision, the active defendants then filed this notice of motion. In one sense, it is curious for them to have done so in that, having opposed expedition and thus an early hearing date for the summons, their motion seeks to bring on a determination of the plaintiffs' claims but with the defendants bearing an onus of demonstrating that they are hopeless. If the matter had proceeded to a final hearing the plaintiff would have had to demonstrate that he is entitled to succeed.
-
That said, from the Bar table I was advised that proceedings are consuming significant resources because of the number of directions hearings and what is said to be the plaintiff's inability to finalise his case and all of his material.
-
Obviously there is considerable strength in the defendants' motions for various reasons, including that the plaintiff’s amended summons seeks relief against two defendants who are witnesses in the Local Court and as such have witness immunity, that a significant number of the claims for relief concern matters that are exclusively questions of fact for the Local Court, and that overall, the summons seeks to, or at least has the effect of, fragmenting the administration of criminal justice. That said, the task of demonstrating that at least so much of the summons that seeks prohibition on the grounds of apprehended bias is one that would require some detailed consideration.
-
However, with the matter progressing in the Local Court as it is, and the fact that a stay has previously been refused, then it seems inherently likely that by the simple effluxion of time these proceedings will become otiose such that the parties’ and the Court's resources should not be devoted to further considering them unless very good reason is shown. This is so because when the Local Court delivers verdicts on the charges against the plaintiff the proceedings will inevitably then be futile. If the plaintiff was to be acquitted then there would be no utility in the proceedings in this form continuing. If he was to be convicted then all of his substantive complaints could then be taken up one way or another in a proper form via the statutory scheme for appeals.
-
In those circumstances, I think the appropriate course is to grant an adjournment for a significant period to allow the proceedings in the Local Court to run their course. Not only should the motion be adjourned but all existing directions hearings should be vacated and the matter stood over to a date well into the future.
-
While it would be a matter for either a Registrar or another judge who may hear the matter, it seems to me that good reason would need to be shown as to why the matter should be re-agitated prior to the delivery of a verdict in the Local Court.
-
Accordingly, the orders I will make are:
(1) Vacate all present listings of these proceedings in this court.
(2) Stand over the notice of motion filed 23 October 2017 until Thursday, 12 July 2018 at 9.00am before a Registrar.
(3) Liberty to apply on 14 days’ notice.
(4) Costs of today will be reserved.
**********
Decision last updated: 09 February 2018
0
0
1