Es v Larkam
[2018] ACTSC 99
•7 March 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ES v Larkam |
Citation: | [2018] ACTSC 99 |
Hearing Date: | 7 March 2018 |
DecisionDate: | 7 March 2018 |
Before: | Murrell CJ |
Decision: | Appeal dismissed. Orders of the Magistrate confirmed. |
Catchwords: | APPEAL AND NEW TRAIL – APPEAL – GENERAL PRINCIPLES – Appeal from Magistrates Court – Driving offences – application for adjournment – application for recusal – allegation of apprehended bias on the basis that judge had previously decided care matters relating to appellant’s children – application to dismiss appeal for want of prosecution |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5191(3)(b) |
Cases Cited: | ES and Anor v The Director-General of the Community Services Directorate (No 2) [2016] ACTSC 7 |
Parties: | ES (Appellant) Phillip John Larkam (First Respondent) Adele Austin (Second Respondent) |
Representation: | Counsel No appearance (Appellant) Mr D Sahu Kahn (Respondents) |
| Solicitors No appearance (Appellant) ACT Director of Public Prosecutions (Respondents) | |
File Number: | SCA 61 of 2015 |
Decision under appeal: | Court/Tribunal: ACTMC Before: Magistrate Campbell Date of Decision: 21 May 2015 Case Title: R v ES Court File Numbers: CC14/6008; CC14/9712 |
MUREELL CJ:
This is an application to dismiss an appeal for want of prosecution under r 5191(3)(b) of the Court Procedures Rules2006 (ACT).
In October 2014, the appellant pleaded guilty to two offences in the Magistrates Court:
(a)driving with a prescribed drug in his blood on 29 July 2013; and
(b)driving with a prescribed drug in his oral fluid on 18 August 2014.
On 31 July 2015, he lodged a notice of appeal. The appeal raised several grounds. First, the appellant had wished to plead not guilty in the Magistrates Court, but a legal aid lawyer had entered pleas of guilty on his behalf. Second, the appellant maintained that, in October 2014, he had been unfit to plead. Third, he said that he wished to plead not guilty to the driving offences because of the absence of medical evidence from any hospital about the presence of substances in his blood and oral fluid. He maintained that, despite the existence of a certificate, no blood had been taken from him by the hospital.
On 25 August 2015, Burns J granted the appellant leave to appeal out of time.
The appeal was listed for hearing almost two years ago, on 15 April 2016.
On 13 April 2016, Mr Sabharwal of counsel appeared for the appellant. He requested that I order a Forensic Mental Health Report on the issue of fitness to plead. I made the order.
On 12 May 2016, Dr Anthony Baker provided a letter to the Court. The letter stated that a report could not be prepared without further information. The difficulty was communicated to the appellant. Since May 2016, the Court has received no further information that would assist in the preparation of a mental health report.
In June 2017, the lawyer who had acted for the appellant gave notice that he was no longer acting.
In August 2017, the Court sent a letter to the appellant advising him that if, by 25 August 2017, he did not make a written request to have the matter re-listed, it would be dismissed for want of prosecution.
On 16 August 2017, the appellant responded. He asked that the matter be re-listed, and objected to the notice of solicitor no longer acting.
On 27 October 2017, when the matter was re-listed, the appellant said that he wished to call an expert witness regarding nurses and pathology. The request related to the taking of blood that was the foundation of at least one of the charges before the Court.
I directed that the Crown file and serve material relating to the two charges by 17 November 2017, and that the appellant file and serve evidence of any expert witnesses by 28 February 2018. The parties were advised that evidence that had not been served would not be allowed. The matter was listed for further directions on 5 March 2018.
On 27 October 2017, the appellant indicated that he wished me to recuse myself on the basis of apprehended bias. Previously, I had determined two applications relating to care proceedings involving the appellant’s children. I adjourned the issue of recusal to be dealt with alongside the appeal.
On 22 February 2018, the Court was advised by the appellant's wife that she and her husband were overseas "in an International Judicial court process against Australia."
On 2 March 2018, the appellant emailed the Court, the Magistrates Court and a number of others, advising that he and his family were overseas until after 25 May 2018, and asking that all legal proceedings in the ACT be adjourned until after that time. In the correspondence, the appellant said that he did not wish to divulge his location because of fears for his safety, and that of his family. He accused the Court of "illegal misconduct."
On 5 March 2018, the matter was adjourned to this morning.
The Court received a further email in the early hours of this morning, advising that the appellant had a support person at a disability support service, and requesting that that person be notified of any date to which the proceedings were adjourned and provided with a copy of the transcript of proceedings.
There are therefore three matters before the Court today. The first concerns the question of adjournment. The second concerns the issue of recusal. The third concerns the issue of dismissal for want of prosecution.
The appellant was called three times this morning but made no appearance in Court.
Application for recusal
On 27 October 2017, the appellant made an oral application requesting that I recuse myself because I determined the matters of ES and Anor v The Director-General of the Community Services Directorate (No 2) [2016] ACTSC 7 and ES (No 2) v Director-General of the Community Services Directorate [2016] ACTCA 61.
The first matter was an application requesting orders for the emergency recovery and location of the appellant's children and orders "revoking" interim orders made by the Children's Court. I examined the reasons of the Children's Court for making the orders the subject of the application, and concluded at [46]:
There is no material error in the reasons...Given the uncontested material before the [Children’s] Court, the Court was entitled to exercise its discretion in the manner in which it did; indeed, it is difficult to see how it could have taken a different approach.
The appellant has not indicated the basis upon which he contends that, as a result of that decision, a person who was aware of the relevant circumstances may perceive that I was biased.
The second decision concerned an urgent application for an order staying orders made by Burns J in relation to one of the appellant's children. The application also sought an expedition of an appeal against the orders made by Burns J. In [10] of that decision, I said the following:
Without expressing any view about the merits of the appeal against the orders of Burns J, or about the propriety of the Director-General's conduct, I am of the firm view that there is no utility to this Court granting a stay of Burns J's order or expediting the appeal for the following reasons…
Thereafter, I gave three reasons explaining why I declined the relief that was sought.
In the absence of any explanation as to why that decision would cause anybody to apprehend bias on my part and particularly in the context that I expressly declined to express a view about the merits of the appeal, I cannot identify any reason for concern about bias.
I decline the application to recuse myself.
Application for adjournment
The appellant applies for an adjournment on the basis that he is at an undisclosed location (which appears to be overseas) and will not be returning for two and a half months.
This appeal was originally listed for hearing in April 2016, almost two years ago. The appellant was directed to file and serve any expert evidence by February 2018. Nothing has been filed. The subject charges relate to 2013 and 2014; the substantive matters are old matters. They are relatively minor matters.
The appeals have been languishing in this Court since July 2015, when the original appeal was filed. The appellant has been afforded every opportunity to advance the matter. He appears to have voluntarily left the jurisdiction. He has not instructed a lawyer to appear on his behalf today.
In these circumstances, the public interest in having matters resolved expeditiously is far greater than that of the appellant in continuing to delay the matter with no end in sight.
The application for adjournment is refused.
Application to dismiss matter for want of prosecution
As will be apparent from the above chronology, there has been almost no attempt to prosecute the matter since July 2015, when the appeal was lodged. On a few occasions, the appellant has appeared either himself or through a legal representative and vaguely indicated the grounds that he wishes to pursue. However, he has put before the Court nothing of any substance in support of those grounds. In those circumstances, it is important that the Court finalise the matter and not allow it to drift for an indeterminate period.
The appeal is dismissed.
The orders of the Magistrates Court are confirmed. In relation to the fines and other monetary orders made by the Magistrates Court, the appellant is allowed one month from today to pay.
| I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 19 April 2018 |
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