Ewins v Ablett

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 03537

CLINTON JOHN EWINS	Plaintiff
v
STEPHEN ABLETT & ANOR (according to the attached schedule)	Defendants

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JUDGE:	Tsalamandris J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February, 29 March, 3 April 2023 (last written submission received 11 April 2023)
DATE OF JUDGMENT:	19 May 2023
CASE MAY BE CITED AS:	Ewins v Ablett
MEDIUM NEUTRAL CITATION:	[2023] VSC 261

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ADMINISTRATIVE LAW – Judicial review – Application for judicial review of decision of County Court on appeal from Magistrates’ Court – Plaintiff convicted of one charge of aggravated assault – Application to rely on additional documents – Order 56 – Relief sought in the form of certiorari – Whether error of law or denial of procedural fairness – Whether inadequate reasons – Application dismissed – Supreme Court (General Civil Procedure) Rules 2015, O 56 – Criminal Procedure Act 2009 (Vic) – Craig v South Australia (1995) 184 CLR 163 – Kirk v Industrial Relations Commission (2010) 239 CLR 531 – Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia & Anor (2012) 249 CLR 398 – Conway v The Queen (2002) 209 CLR 203 – O’Connor v County Court of Victoria & Anor (2014) 67 MVR 66 – Goldbergv Walter [2009] VSC 260 – R v Farquharson (2009) 26 VR 410 – Anile v The Queen [2018] VSCA 235 – Roberts v The Queen [2020] VSCA 277 – Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1 – Ta v Thompson [2013] VSCA 344.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Perkins, solicitor
For the First Defendant	Ms R Harper	Office of Public Prosecutions
For the Second defendant	No appearance

HER HONOUR:

Introduction

The plaintiff, Mr Ewins, seeks judicial review of a County Court decision on appeal, in which he was convicted of one charge (the charge) of aggravated assault upon the complainant. The plaintiff’s application is made pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules). The first defendant to the proceedings is the informant to the charge, Senior Constable Stephen Ablett.

By way of originating motion, the plaintiff seeks the following relief:

(a) An order in the nature of certiorari to quash the decision of his Honour Judge M Bourke of the County Court (the judge) that the plaintiff was guilty of the charge;

(b) A declaration that the County Court appeal was not in conformity with the plaintiff’s statutory right to a rehearing de novo; and

(c) A declaration that the judge’s reasons were materially insufficient and did not fulfil the court’s obligation to provide reasons pursuant to the Administrative Law Act 1978 (Vic).

The matter was originally listed for hearing on 17 February 2023. Prior to this, the parties had exchanged written submissions in accordance with the court’s timetabling orders. In those submissions, the plaintiff made complaints about the adequacy of the judge’s reasons, however there was no specific ground of review pleaded in relation to the purported inadequacy. At hearing, I identified this omission. In response, the plaintiff sought leave to amend his originating motion so as to include inadequacy of reasons as an additional ground of review. The Office of Public Prosecutions (the OPP), acting on behalf of the first defendant, opposed the amendment but indicated that if the amendment was to be allowed it was not (at that time) in a position to make submissions in response.

In considering the plaintiff’s application for leave to amend his originating motion, I noted that the prayer for relief in the originating motion sought a declaration that the reasons were materially insufficient, and that the substance of the proposed new ground had been raised in the plaintiff’s written submissions dated 13 December 2022. I therefore granted the plaintiff leave to amend his originating motion to include the additional ground and adjourned the matter for a short period to enable the first defendant to prepare submissions in respect of the plaintiff’s claim that the judge’s reasons were inadequate.[1]
[1]I also reserved the costs of the adjournment (at the time of hearing I indicated that I would subsequently consider who was to pay the first defendant’s costs and on what basis).

On the same day, I also raised my concern as to the expansive nature of the materials which the plaintiff sought to rely, which had not been before the judge. I expressed a preliminary view that, as this was an application for judicial review of an appeal of an inferior court, the supervisory nature of the application was such that the material before the court would ordinarily be confined to ‘the record’ of the lower court. The first defendant supported such an approach in this application. However, the plaintiff opposed the material before me being confined in that way, and referred me to two decisions which he submitted supported the admission of material beyond the record.[2] Given the matter was to be adjourned, I suggested that the parties use the additional time to provide written submissions as to what should constitute the record for the purpose of the application, and whether materials that would not ordinarily form part of the record should be considered for the purpose of the application.
[2]These were the decisions of R v Leyland; ex parte Hawthorn [1979] QB 283; and Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142. I note that the decision cited of SZFDE was later appealed to the High Court.

The hearing of this proceeding resumed on 29 March. After considering written submissions[3] and hearing briefly from the parties, I ruled that in considering this application for judicial review, I would only have regard to material on the record. I then indicated that, in this proceeding, the record would comprise the charge and summons, a certified extract of the decision of the Magistrates’ Court, the notice of appeal, the notice of the decision of the County Court, the County Court judge’s reasons, together with the transcript of the County Court appeal and exhibits tendered at that hearing. I indicated that I would provide reasons for this ruling in my judgment. I do so at paragraphs [59]-[64] below.
[3]The plaintiff’s written submissions dated 6 March 2023, and the first defendant’s submissions dated 14 March 2023.

The plaintiff’s amended originating motion[4] contained 14 grounds of review. As best I understand it,[5] the plaintiff’s grounds can be summarised as follows:
[4]The draft version of this document was provided to chambers on 17 February 2023. However, the amended originating motion was not filed until 14 May 2023.
[5]Unfortunately, the grounds of review relied upon by the plaintiff were confusing, poorly expressed and many of them overlapped with each other. In addition, I considered the plaintiff’s submissions were convoluted, and contained large amounts of irrelevant material (and authorities), none of which was clearly conveyed or particularly helpful to my determination of this application. On the first day of hearing, I expressed these concerns to the plaintiff and invited him to consider whether to amend the grounds accordingly, however, he ultimately did not do so. I have therefore considered and analysed the plaintiff’s submissions in the way which best fit logically within the grounds summarised above.

(a) the judge erred by refusing to order disclosure of documents which the plaintiff sought;[6]
[6]Grounds 1 and 5.

(b) the prosecution withheld materials concerning the complainant generally and concealed relevant facts;[7]
[7]Grounds 3, 6 and 7.

(c) the prosecution failed to provide some or all documents relating to a visit by Victoria police to the plaintiff’s home on 22 May 2021 (the 22 May visit);[8]
[8]Ground 4.

(d) the judge acted contrary to the requirements of s 256 of the Criminal ProcedureAct 2009 (Vic), and the plaintiff was not properly informed when he agreed to a method of trial other than a de novo hearing;[9]
[9]Grounds 2, 8 and 9.

(e) the judge erred in failing to accept the photographic evidence of the complainant taken the day following the assault as being exculpatory;[10]

(f) the judge failed to provide adequate reasons;[11] and

(g) justice was not done, nor was it seen to have been done.[12]

[10]Grounds 11-13.

[11]Ground 14.

[12]Ground 10.

The first defendant disputed each of the grounds and submitted that the plaintiff’s application was without merit. He submitted the judge’s conduct at the hearing was unimpeachable. His Honour conducted the hearing in accordance with a course that the parties suggested and agreed to. The appeal was fair and did not involve any of the defects asserted. The first defendant submitted that the documents which the plaintiff alleged ought to have been disclosed, were not in the possession of the prosecution or informant, and were of no relevance to the allegations in the police brief. Further, it was submitted that the prosecution’s duty of disclosure did not extend as far as the plaintiff asserted.

For the reasons that follow, I am not satisfied that there was any error of law or a denial of procedural fairness by the judge in his conviction of the plaintiff as alleged. The appeal was properly conducted as a de novo hearing. I am satisfied that his Honour’s reasons were adequate. Accordingly, the plaintiff’s application for judicial review must be dismissed.

Background

The plaintiff, at the time of the assault, was in a relationship with the complainant. Together, they had a daughter (the child).

The incident, the subject of the charges, occurred on 10 February 2018. The complainant described the assault upon her as involving at least one punch to the right side of her face by the plaintiff whilst he was driving a car in Swan Hill.

The first defendant brought four charges against the plaintiff in respect of that incident.

The Magistrates’ Court proceeding

On 12 June 2020, after a six-day contested hearing, a magistrate convicted the plaintiff of one charge of aggravated assault of a female contrary to s 24(1) of the Summary Offences Act 1966 (Vic), and sentenced him to a twelve month Community Corrections Order (CCO). He was acquitted of the other three charges.

The County Court appeal

The plaintiff appealed the conviction to the County Court of Victoria[13] and the appeal commenced before Judge Carmody in Bendigo on 22 March 2021. On 26 March 2021, after several days of evidence, Judge Carmody recused himself and the hearing was aborted (the terminated appeal).
[13]Criminal Procedure Act2009 (Vic) s 254.

The appeal was subsequently relisted in Shepparton and proceeded before the judge from 15-22 July 2021, by way of a hearing de novo.

At the commencement of the appeal, the parties proposed to the judge that evidence recorded in the terminated appeal (the pre-recorded evidence) be replayed before the judge, in lieu of calling those witnesses again. As this was agreed to by both parties, and the judge accepted this as an appropriate course, the appeal proceeded in that way. There was only one additional witness called to give evidence in the appeal (in addition to the pre-recorded evidence), Senior Constable Joel Lloyd, the corroborator to the charge.

The circumstances of the 22 May visit were raised as a preliminary issue by the plaintiff’s solicitor advocate before the judge. The 22 May visit was said to have involved a visit to the plaintiff’s home by two police officers from the Swan Hill family violence intervention unit.[14] The plaintiff’s solicitor submitted to the judge that the 22 May visit was ‘inexplicable unless it [was] related to the investigation’ of the charge. He later said that it was ‘probably’ related to the charge.
[14]I note that no affidavit material was provided to the judge in relation to the 22 May visit, and the communications passing between the plaintiff’s solicitor and the OPP in respect of any documents relating to this visit. The parties informed the judge of the matters referred to at [17] to [20] from the bar table, and no objection was taken to that course.

The plaintiff’s solicitor indicated to the judge that on 3 June 2022 he had emailed the OPP and sought documents and any audio recordings pertaining to the 22 May visit.

In response to the 3 June 2022 email, the OPP sought advice from a senior Crown prosecutor as to whether the prosecution was obliged to enquire as to, and actively pursue, documents pertaining to that visit. The judge was told the advice had been that there was no obligation on the OPP to actively seek such material. Further, that if the matter was to be agitated at hearing, it should be dealt with via subpoena as the two police officers who made the visit were not witnesses in the appeal. Accordingly, consistent with that advice, the OPP informed the plaintiff’s solicitor that if he still sought the documents, he should do so directly with the police via a subpoena.

The plaintiff’s solicitor accepted that he had received this response from the OPP on 9 June 2022, however, as he disagreed with the advice, he wrote again and repeated his submission that such documents were ‘squarely within the obligation of disclosure’ and that it should not be for him to subpoena the Chief Commissioner of Police.

Having heard from the parties in respect of the above, the judge stated that:

It seems to me the only efficient and available way of testing that is to subpoena the documents, get them to court, and then probably I’ll be able to look at them and make a ruling on it. I can’t see any other way of doing it.[15]

[15]Transcript of proceedings, Ewins v Director of Public Prosecutions (County Court of Victoria, AP-20-0934, Judge Bourke, 15 July 2021) 10.7-12.

A short service subpoena was subsequently issued. On 22 July 2022, the judge reviewed the documents produced under the subpoena so as to consider whether there was a legitimate forensic purpose that justified their release. The judge thereafter permitted the release of one email pertaining to the arrangements made for the 22 May visit, but otherwise he did not release the documents produced under the subpoena. The judge stated that what was said by the complainant three years after the charge (which led to the 22 May visit), did not meet the test of legitimate forensic purpose. Thus, his Honour did not release any further documents produced under the subpoena.

The pre-recorded evidence was played to the judge and included the evidence of the complainant, as well as Senior Constable Ashley Johnson,[16] and the first defendant.
[16]Note that Senior Constable Johnson was also referred to in the evidence by her maiden name, Taverner.

The complainant gave evidence that she was assaulted in the car after she did not respond to questions the plaintiff asked of her. The complainant’s evidence was that, whilst the plaintiff was driving, he punched her in the right side of her face.

The complainant was cross-examined over the course of three days. It was put to her that the allegation was ‘a pack of lies’. The complainant was also challenged in respect of the date of the assault, the nature and extent of the assault, whether she knew her mother had reported the assault to police, her delay in making a statement about the assault and whether she had been reluctant to do so, her prior criminal history, the custody arrangements for her two older children, the previous loss of two unborn children, her mental health and prescription medications, as well as her consumption of alcohol and drugs.

The complainant was also cross-examined in respect of a prior charge brought against the plaintiff, relating to an assault alleged to have occurred upon her in Marong (the Marong incident). The plaintiff was acquitted of that charge. It was put to the complainant that a police report subsequently noted that she had told the police the incident had not happened, and that ‘she may have mental health issues that are untreated.’ The complainant stated that she could not recall making such statements to police.

Johnson also gave evidence and was cross-examined as to what occurred on 12 February 2018 when she attended upon the home of the plaintiff and complainant, and the circumstances in which she subsequently observed ’bruising and swelling’ on the complainant’s right eye whilst at the Department of Health and Human Services (DHHS) office. Johnson also evidence as to how she came to take photographs of the complainant’s face on a mobile phone belonging to the DHHS.

The first defendant gave evidence and explained that he took over the investigation of the allegation of assault in April 2018. At the time he gave evidence,[17] the first defendant was a member of the criminal investigation unit, based in Swan Hill. However, he said that at the time of the assault, he was stationed in the Swan Hill family violence intervention unit.
[17]That being on 25 March 2021.

Lloyd also gave evidence in the appeal. His evidence was that he worked in the Swan Hill family violence intervention unit, and had accompanied Johnson[18] to the plaintiff’s home on 12 February 2018.
[18]See (n 16).

The plaintiff did not give evidence in the appeal.

Numerous exhibits were tendered, including photographs of the complainant taken after the assault. Exhibit 1 was a photograph of the complainant, taken by the plaintiff on 11 February 2018 (11 February photograph). Exhibit A was three photographs taken of the complainant on the DHHS phone on 12 February 2018 (12 February photographs).

The plaintiff emphasised to the judge that following the Magistrates’ Court proceedings and prior to the commencement of the terminated appeal, in response to written requests by the plaintiff, the OPP provided a document which the plaintiff’s solicitor referred to as the ‘Homestead 2018 document’, which was tendered as evidence in the appeal. The Homestead 2018 document contained briefing notes, emails and photographs regarding the assault. The plaintiff submitted that this document ‘exposed an extremely high probability of the existence of other undisclosed but relevant documents’.

Judge’s reasons

In his Honour’s reasons for verdict delivered on 26 July 2021, the judge noted that the plaintiff’s defence to the proceedings was that the complainant had not given a truthful and reliable account of the alleged assault, as she was motivated to provide a false account in order to obtain sole custody of the child. Further, it was noted the defence had alleged that the police assisted the complainant in seeking to obtain custody of the child, by being deficient in the investigations of the complaint, including an alleged failure to take possession of, and forensically examine, the 11 February photograph.

The judge found that the evidence did not support such a motive on the part of the complainant. His Honour accepted evidence that the DHHS personnel accompanied police to the home of the plaintiff and complainant on 12 February 2018. The judge concluded that police were present on that day to assist DHHS personnel as there had been a report of domestic violence, which appeared to have been made by the complainant’s mother. The judge found the attendance by DHHS was related to the welfare of the child. Further, his Honour found that the report made to DHHS by the complainant’s mother was ‘not part of a plan between the complainant and her [mother].’ The judge found that an agreement was reached at the home that the plaintiff, complainant, and the child would go to the DHHS office at Swan Hill. It was noted that whilst there, DHHS and a police officer drew attention to a ‘perceived sign of injury on the complainant’s face’ and thereafter, the complainant alleged the assault on 10 February. The 12 February photographs were taken at this time.

The judge found that those events on 12 February 2018 were not orchestrated by the complainant nor did she ‘opportunistically make a false complaint for the reasons put’. The judge expressly rejected the alleged motive of the complainant to lie.

The judge considered the evidence of the complainant contained some inconsistencies, such as the number of punches. However, his Honour stated that these should be considered in the context of the passing of over three years, the traumatic circumstances the complainant described, and a prolonged and combative cross-examination, which extended over a number of days. The judge considered that the complainant ‘fundamentally consistently maintained her position over this cross-examination.’

The judge also noted that the complainant had been cross-examined about an inconsistent comment she made to police following the Marong incident. His Honour stated that, in cross-examination, the complainant told police ‘nothing happened because she was frightened of the [plaintiff].’

The judge noted that the complainant’s evidence needed to be carefully scrutinised, including as to whether there was any support or other evidence consistent with her account. In considering the veracity of her account, the judge referred to the 12 February photographs, which his Honour accepted showed signs of injury, specifically bruising and swelling. The judge also considered the sequence of circumstances that led to the 12 February photographs being taken, and the evidence of Johnson in respect of her observations of the injury, supported the complainant’s evidence.

In respect of the 12 February photographs, the judge then stated that:

My scrutiny and assessment of these images lead me to a concluded view that the photographs show particularly swelling on the right side of the face, consistent with being struck in the way the complainant has described. Discolouration (for example, consistent with bruising) is suggested, but more difficult to conclude upon because of the quality of image.

In respect of the 11 February photograph, the judge rejected the plaintiff’s submission that this photograph conclusively showed no sign of injury. His Honour found, after carefully examining the hard copy and digital image, that:

… the image neither to show sign of injury, nor discount that. It is in that sense (to use the word I did in discussion with counsel) “neutral”. It does not compromise, detract from or impact on the evidentiary effect of the 12 February images taken the next day at the DHHS office.

His Honour noted there had been cross-examination of police witnesses as to alleged deficiencies in the investigation of the matter, including that the investigators had not taken possession of, or forensically examined the 11 February photograph. The judge also noted that during an adjournment of the part-heard Magistrates’ Court hearing (which lasted several months) there was a visit by police to the plaintiff’s home. The judge then stated that, after hearing further evidence about the role of the family violence intervention unit, and police engagement with the plaintiff over time, his Honour did not consider there to be anything sinister in the police conduct.

In conclusion, the judge stated that:

I see the evidence of the sequence of events on 12 February, that of [Johnson’s] observation of injury and what the consequent photographs taken at the DHHS office show to be evidence significantly and independently supportive of the complainant’s account of the assault on 10 February. I do so having heard and considered the submissions by defence to me about the [11 and 12 February photographs] and what interpretation I should make of them.

Having considered all of the evidence, his Honour stated he was satisfied beyond reasonable doubt of the assault and found the plaintiff guilty of the offence.

Thereafter, his Honour imposed a 12-month CCO with the usual terms, with an additional condition that the plaintiff perform 150 hours of community work.

Plaintiff’s application to rely upon additional documents

By way of an affidavit in support of this application sworn on 15 June 2022, the plaintiff sought to rely upon additional documents which had not been before the judge, but which he submitted were relevant to his grounds of review.

These documents were as follows:

(i) Documents relating to the complainant’s reliability, but not disclosed by the first defendant (complainant documents not disclosed); and

(ii) Correspondence between the plaintiff’s solicitor and the judge’s chambers after conviction (post-conviction correspondence).

First, in the plaintiff’s written submissions, he stated that between the time of the terminated appeal and the conclusion of the hearing before the judge, ‘facts and circumstances [including documents] arose which came to the knowledge and attention of state authorities concerning [the complainant] which those authorities should have disclosed’.

In his affidavit, the plaintiff asserted that there had been an emergency protection application issued on behalf of the Department of Families, Fairness and Housing[19] in the Children’s Court on 18 May 2021 in relation to the child (following contact by the complainant with the Mallee Domestic Violence Service on 22 April 2021), involving material allegations of neglect against the complainant and the plaintiff (although he stated he was only notified of this protection application during the 22 May visit). The plaintiff also stated it was his understanding that the child was placed with a case worker who was also a sworn police officer.
[19]The former DHHS portfolios of Child Protection, Prevention of Family Violence, Housing and Disability moved to the Department of Families, Fairness and Housing on 1 February 2021.

In his affidavit the plaintiff also attested to matters which he said he was made aware of after the appeal, including an assertion that on 26 April 2021, the complainant sought admission to the Mildura Hospital for her mental health, and that as at 4 May 2021, the complainant had admitted to having used methamphetamines for months.

The plaintiff sought to rely upon documents relevant to the matters detailed in the two paragraphs above in this proceeding. The plaintiff claimed that these documents ought have been disclosed to him prior to the appeal, as they were relevant to the complainant’s reliability.

Second, the plaintiff asserted that he should be permitted to rely upon correspondence passing between his solicitor and the judge’s chambers, after the oral reasons had been delivered in court. Such correspondence was said to have included a request by the plaintiff for clarification of the judge’s reasons. It was put that such a request is contemplated under the Administrative Law Act,[20] as well as at common law. The plaintiff submitted that the judge’s refusal to grant him this request justified the admission of the correspondence to which it related. He submitted that this correspondence was relevant to his ground of review alleging a failure by the judge to provide adequate reasons.
[20]Administrative Law Act 1978 (Vic) s 8.

In support of the admission of such documents, the plaintiff relied upon the High Court decision of Craig v South Australia,[21] where, in respect of the scope of certiorari, it was said that:

Certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal…it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and ‘error of law on the face of the record’. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the ‘record’ of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.[22]

[21](1995) 184 CLR 163.

[22]Ibid 175-6.

The plaintiff submitted that, as he was alleging unfairness on multiple grounds, in accordance with Craig, he ought not be confined to the record and I should permit him to rely upon the additional documents. Further, the plaintiff submitted that I should adopt a broad approach interpretation of fraud (referred to as a ground of review in Craig) and notwithstanding none of his grounds of review expressly alleged fraud, I should find that the tenor of the first defendant and OPP’s conduct in respect of the investigation and prosecution of the plaintiff constituted ‘process corruption fraud’. It was submitted that the non-disclosure of these documents, resulted in surprise to the plaintiff, which he claimed was a species of fraud.[23] In those circumstances, it was put that I should admit the complainant documents not disclosed.
[23]In support of this proposition, the plaintiff referred to Conway v The Queen (2002) 209 CLR 203 which cited a decision of R v Whitehouse and Tench (1852) Dears 1 at 3; 169 ER 611 at 612 (see description of Conway at [113] below).

In support of his claim to admit these additional documents, the plaintiff contended that fraud does not need to be on the part of the decision maker or a party to the proceeding.[24]
[24]See (n 2).

The plaintiff also submitted that the historical circumstances relating to the charge were relevant to the court’s consideration as to what documents should be before it in this application.[25]
[25]Kirk v Industrial Relations Commission (2010) 239 CLR 531; Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia & Anor (2012) 249 CLR 398.

In the event that I was not satisfied that the grounds of review justified me considering material beyond that which was on the court record, the plaintiff submitted that the record should include:

(a) the judgment convicting the plaintiff;

(b) the transcripts of evidence and the recordings on which they are based;

(c) the exhibits in the appeal; and

(d) the post-conviction correspondence.

The first defendant accepted that where other material is included by implication in the reasons given by the judge, or where it is necessary to have regard to other material in order to comprehend those reasons, that other material may be included in the record.[26] The first defendant therefore submitted that the record in this application should comprise of the following documents:
[26]O’Connor v County Court of Victoria & Anor (2014) 67 MVR 66, 74 [30].

(a) The charge and summons;

(b) The certified extract of the decision of the Magistrates’ Court;

(c) The notice of appeal;

(d) The transcript of the hearing;

(e) The exhibits tendered at the hearing;

(f) The notice of the decision of the County Court; and

(g) The judge’s reasons.

The first defendant otherwise objected to the admission of the complainant material not disclosed. Further, the first defendant submitted that the post-conviction correspondence was irrelevant to this judicial review.

Analysis

As I ruled at the commencement of the hearing, in order to determine the plaintiff’s application I do not consider it necessary to go beyond the record. The plaintiff’s attempt to enable the admission of additional evidence not before the judge cannot succeed. In merely referring to phrases such as ‘unfair’, ‘natural justice’, and ‘due process’ in his articulation of the grounds of review (and alleging surprise as a species of fraud in his oral submissions), the plaintiff did not automatically justify the expansion of the material to be before this court. If this was permitted, without a preliminary consideration of the merits of those grounds, this would make a mockery of the long standing authorities to which the plaintiff referred, including Craig.

As is apparent from my analysis of the 14 grounds of review (set out below), I am not satisfied that any of these grounds justify consideration of matters which became known to the plaintiff after the judge’s reasons were delivered. There is no evidence before me that the OPP or first defendant knew of such matters. As discussed below, the duty of disclosure does not extend to any knowledge of, or documents held by, other police officers, or employees of the child protection authority.[27]
[27]Initially under the DHHS, and then later the Department of Families, Fairness and Housing.

The decisions of R v Leyland[28] and Minister for Immigration and Multicultural Affairs v SZFDE[29] are not on par with this application. In Leyland, the investigating police officers failed to disclose relevant witness statements which they had obtained after a motor vehicle accident. It was held that the defendant was deprived of his right to be notified of material witnesses known to the police, which resulted in a clear denial of natural justice and the grant of relief in the nature of certiorari. In respect of SZFDE, a fraud committed by an applicant’s migration agent was held to act as a fraud upon the tribunal. Here, for the reasons explained below, I make no finding of fraud, and thus these cases are of no relevance to my consideration as to whether the proposed additional documents referred to in [46(i)] should be before me.
[28]Ex parte Hawthorn [1979] QB 283; [1979] 1 All ER 209.
[29][2006] FCAFC 142.

Further, the decisions of Kirk and Public Service Association of South Australia do not support the plaintiff’s application to admit these additional documents. In considering those authorities it was not apparent to me what, if any, additional material was admitted and considered by the superior court in the subsequent judicial review.

Therefore, having considered the plaintiff’s grounds of review and the submissions of both parties, I was not satisfied that there was a proper basis upon which to expand the material before me, given this application involves a supervisory review of an inferior court’s decision.

In addition, I reject the plaintiff’s submission that the post-conviction correspondence should also be before me. I am not presently persuaded that s 8 of the Administrative Law Act applies to a court of law.[30] Irrespective of this, the judge provided reasons for verdict and no suggestion was made by the plaintiff that the published reasons did not accord with the oral reasons delivered by the judge. Therefore, there is no basis upon which to justify the post-conviction correspondence as constituting part of the record.

Jurisdiction and principles relevant to an application for certiorari in respect of an inferior court’s appeal

[30]Trevor Boiler Engineering Company Pty Ltd v Morley (1983) 1 VR 716, 718-21; Redflex Limited v South of the Rif Pty Ltd (Unreported, Beach J, 18 August 1997); Ta v Thompson (2013) 46 VR 10, 22 [60].

An appeal against a conviction of a summary offence imposed in the Magistrates’ Court is made pursuant to s 254 of the Criminal Procedure Act. The appeal is heard by the County Court, as part of its appellate jurisdiction and it is an appeal de novo.[31]
[31]DPP v Fricke [1993] 1 VR 369, 374; Grabski v Beier [2020] VSC 156, [11].

There is no right to appeal a conviction from the County Court following a de novo appeal. The only avenue available to a plaintiff seeking to challenge a conviction in the County Court in its appellate jurisdiction is a judicial review in accordance with the procedures set out in Order 56 of the Rules.[32] The jurisdiction is supervisory such that the court is only concerned with the legality of what was done by the court below.[33] The function of the court is not to re-decide the case before the judge on the merits, nor to conduct an appeal in the broad sense.[34]
[32]Gurappaji v Tonkin (2015) 45 VR 324, 332-3 [23].
[33]Ibid [24].
[34]Dover v Doyle (2012) 34 VR 295, [12]; AAA v County Court of Victoria [2023] VSC 13, [30].

The High Court decision in Craig set out the principles relevant to such an application. These were helpfully summarised by the majority of the High Court in Kirk as follows:

First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error “if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist” (emphasis added). Secondly, the Court pointed out that jurisdictional error “is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers” (emphasis added). (The reference to “theoretical limits” should not distract attention from the need to focus upon the limits of the body’s functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court’s functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court said of this last example that “the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern”.[35]

[35]Kirk (n 25) 573-4, [72].

In Kirk, the High Court considered an appeal against convictions in the New South Wales Industrial Court for offences under the Occupational Health and Safety Act 1983 (NSW). In allowing the appeal, the majority was satisfied that the Industrial Court fell into error in its construction of the legislation and its failure to comply with rules of evidence. Both were held to be jurisdictional errors, which justified the grant of the relief in the nature of certiorari. In obiter, the majority, after noting the reasoning in Craig, stated there was no ‘rigid taxonomy’[36] or marked ‘boundaries’[37] of what constitutes jurisdictional error by an inferior court.
[36]Kirk (n 25) [73].
[37]Ibid.

In O’Connor v County Court (Vic),[38] Kaye J in an application for judicial review following a conviction in the county Court in its appellate jurisdiction, observed that:

The authorities are replete with the salutary warning that, in an application for certiorari, the court should bear in mind that the proceedings are not an appellate procedure enabling a general judicial review of the findings of fact by the lower court. In particular, in order to succeed, the plaintiff must establish a material error of law by the judge on the face of the record…[39]

[38]O’Connor (n 26).

[39]Ibid 76 [37].

In this application, save for ground 14 which relates to inadequate reasons, none of the plaintiff’s grounds of review appear to be legitimate grounds of jurisdictional error of an inferior court. Certainly, none are analogous to the types of errors identified in Craig or Kirk.

The plaintiff submitted that the correct approach to this application was for me to consider the matter independently, and referred me to the High Court in Dansie v The Queen.[40] However, I note that case was not one of judicial review, but rather an appeal from the Court of Criminal Appeal, and thus does not assist me in determining this current application.
[40](2022) 96 ALJR 728.

Grounds of review

As previously explained,[41] the plaintiff’s grounds of review fall under seven general categories of complaint. In determining this application, I propose to deal with each of the grounds to see if any of them are made out, before considering (if they are made out) whether or not they constitute legitimate grounds for relief under O 56.[42]
[41]Above at [7].
[42]As was the approach taken by Beach J (as his Honour then was) in Goldbergv Walter [2009] VSC 260, [15].

(a) The judge erred by refusing to order disclosure of documents which the plaintiff sought
Ground 1
By refusing on the first day of the appeal hearing to order disclosure as requested or at all, the judge erred in law or alternatively his discretion miscarried in such a way as to render the trial process unfair.
Ground 5
The failure of the judge to require prosecuting authorities to provide some or all of the documents with respect to the May 22 visit and the circumstances which brought that visit about was unfair and prejudicial to the plaintiff.

The plaintiff submitted that it was not reasonable for the judge to refuse his request for an order that the prosecution disclose all relevant documents. He submitted that the judge’s suggestion of a subpoena was not a workable option and missed the gravity of what he alleged had been said by police during the May 22 visit. The plaintiff submitted that it should have been patently obvious to the judge that material pertaining to this visit was, potentially, of fundamental importance. In those circumstances, it was said that this should have been the subject of an order for disclosure.

The plaintiff submitted that the judge was obliged to make the order, and it was not a matter of discretion. In the alternative the plaintiff submitted that, even if it did involve judicial discretion, then the importance of the documents being disclosed was such that a refusal to order disclosure was an unreasonable exercise of that discretion.

In reply, the OPP submitted that the judge granted leave for the plaintiff to issue a subpoena, and that is what then occurred. The OPP submitted there was no basis to complain about the judge’s response to the plaintiff’s request for documents relating to the May 22 visit in circumstances where the prosecution denied having any such documents in its possession.

Analysis

There was no error by the judge in refusing to order disclosure of the documents alleged to have related to the 22 May visit. Having been informed the prosecution did not have the documents, it was reasonable for the judge to take the course he did, that is, to permit a short service subpoena.

As indicated at paragraph [22], after the subpoenaed documents were delivered to the court, the judge reviewed them, and ruled that he would release one document (that being an email chain detailing the arrangements for the May 22 visit). The judge ruled that the other documents should not be released given the visit to the plaintiff occurred three years after the charge the subject of the appeal, and there was no legitimate forensic purpose in providing access to any further documents.

There is no valid basis for the plaintiff to complain about the judge’s refusal to order disclosure, nor for him to allege that the judge’s exercise of discretion miscarried and resulted in an unfair trial. Therefore, ground 1 fails.

As to the complaint that the judge erred for failing to require the prosecution to provide such documents, I find that in circumstances where the prosecution denied having possession of such documents, this ground of review must also fail. As stated above, the judge sensibly suggested that that if such documents were not with the prosecution, then the process for the plaintiff to access such documents was through the service of a subpoena on Victoria police. In view of this, it was reasonable for the judge to refuse to require the prosecution to provide documents which it had stated were not in its possession. No error has been demonstrated and therefore ground 5 also fails.

(b)The prosecution withheld materials concerning the complainant generally and concealed relevant facts
Ground 3
The withholding by the prosecution of evidence or information favourable to the defence and material to determination of the case against the plaintiff according to law, was extremely prejudicial to the plaintiff and was contrary to due process and in breach of the rules of natural justice.
Ground 6
The Crown through its investigative personnel and agencies including police and child protection authorities failed in respect of relevant or potentially relevant facts to provide disclosure, but instead concealed relevant facts, and prevented disclosure by the investigative authorities.
Ground 7
The trial of the appeal was so tainted by the failure of obligations of disclosure by investigative authorities as to render a fair trial impossible; and the process of trial of the appeal was contrary to law and a total failure of due process.

These grounds of review all focus on the plaintiff’s primary complaint in this application – that the prosecution breached its ongoing duty of disclosure,[43] and this resulted in the plaintiff being denied a fair appeal.
[43]The plaintiff cited Arico v The Queen [2021] VSCA 353 , [25]. This decision of Pedley JR was subsequently appealed, see [2022] VSCA 35. The appeal related to a request for documents from a person who had filed a second application for leave to appeal against conviction (on the basis that his right to a fair trial was subverted by the fact that his solicitor was a police informer). The OPP provided some documents sought by the applicant, but refused to provide others. On appeal, the Beach JA was satisfied that there was a legitimate forensic purpose for seeking production of the documents and ordered that they be provided under s 317 of the Criminal Procedure Act.

The plaintiff alleged that from the time of the terminated appeal until the time of the hearing before the judge, events occurred in respect of the complainant (including removal of the child from her custody), which were relevant to the reliability of the complainant’s evidence. It was put that the police and the child protection authority were State instruments and that information known to them at the time of the appeal should have been disclosed by the prosecution. Further the plaintiff submitted that, had such information been disclosed by the prosecution, it could have changed the course of the hearing and outcome of the appeal.

The plaintiff submitted that it did not matter how many degrees of separation such officers were from the informant, documents were positively withheld by the police during that period which were favourable to the defence. As I understood this submission, what any member of the police knew about the complainant during this period was enough to constitute knowledge of a relevant matter which was required to be disclosed by the prosecution. The plaintiff further submitted that this was particularly so in circumstances where the first defendant was originally from the Swan Hill family violence intervention unit. I note the plaintiff also submitted that if there was no actual knowledge of such matters, OPP was obliged to obtain such information.

Throughout the course of this judicial review (including in respect of many of the subsequent grounds), the plaintiff repeatedly submitted that the prosecution, acting on behalf of the State, was required to disclose material known to the State regarding the complainant.

The plaintiff’s solicitor articulated it in this way:

The non-disclosure of facts in this case is another part or iteration of the ongoing process corruption which has affected the entire course of the criminal proceedings in this case. The short-sightedly, self-serving non-disclosure on the part of authorities was an inseparable element of their tactic of ignoring the law, the plaintiff's human and legal rights, ensuring he was at their mercy, and ostracising him from his [child].

However, despite being given the opportunity to do so, the plaintiff was not able to take me to any authority in support of his contention that the duty of disclosure extended to all State entities.

The plaintiff submitted that the material held by police and the child protection authority was rationally probative of a fact in issue, as it had the potential to impact upon the reliability of the complainant’s evidence. He submitted that the relevant test was ‘not whether it would have made a difference [to the outcome of the trial], but whether it could have.’

The plaintiff also contended that his subsequent discovery of the complainant documents not disclosed had resulted in surprise to him, and that this was a species of the wider category of fraud.[44] Whilst the plaintiff conceded there had been no actual fraud on the part of the OPP or informant, he contended there was ‘process corruption fraud’ in the failure to disclose such documents. As I understood his submission, this alleged fraud placed him at a disadvantage, and as a consequence the trial was unfair.
[44]See (n 2) above.

In reply, whilst accepting the duty of disclosure was ongoing, the OPP maintained that it had not breached this duty either prior to or during the appeal.

The OPP submitted that there was no basis for the plaintiff to allege that the prosecution failed to comply with its ongoing duty of disclosure. Further, there was no authority cited by the plaintiff to support his claim that the prosecution’s disclosure requirements extended to it obtaining materials held by any person within Victoria police or any other State government department or agency. It was said that such a submission was without foundation and that the criminal justice system would ‘grind to a halt’ if the prosecution were required to contact every conceivable department.

Further, it was put that matters pertaining to the child protection authority are confidential, and would only be accessible under subpoena and if relevant to the charge.

Analysis

So as to determine these related grounds of review, it is first necessary to briefly describe the duty of disclosure, and then determine whether, as the plaintiff alleges, this duty was breached in the appeal.

The obligation of disclosure in criminal proceedings rests with the prosecution. It requires the prosecution to disclose all relevant material which may assist the defence, and a failure to do so can result in a miscarriage of justice.[45] The duty exists at common law,[46] and is also required pursuant to s 416 of the Criminal Procedure Act.[47] It is described as the ‘golden rule,’[48] to ensure that the accused has a fair trial.
[45]R v Farquharson (2009) 26 VR 410, [210]; Roberts v The Queen [2020] VSCA 277, [127].
[46]Mallard v The Queen (2005) 224 CLR 125, 133 [17].
[47]See also the Policy of Director of Public Prosecutions for Victoria, dated 24 January 2022, Chapter 2, [15]-[19].
[48]R v H [2004] 2 AC 134, 147 [14]; approved in Roberts (n 45) [127].

In accordance with this duty, the prosecution must disclose all material which either:

(a) can be seen on a sensible appraisal to be relevant, or even possibly relevant, to an issue in the case;[49] or

(b) could hold out a real (as opposed to fanciful) prospect of providing a lead towards exculpatory evidence.[50]

[49]Anile v The Queen [2018] VSCA 235.

[50]Ibid [130]; Farquharson (n 45) [213].

The duty also expressly extends to matters affecting the assessment of the credibility and reliability of Crown witnesses.[51]
[51]Roberts (n 45) [128].

The duty to disclose is not limited to documents in the possession of the prosecution, but in an appropriate case, extends to material which it should obtain by making enquiries.[52]
[52]Anile (n 49) [130]; AJ v The Queen (2011) 32 VR 614, [220].

Disclosure should occur prior to trial, and is intended to provide the accused with documents, which may, legitimately, assist the defence case.[53]
[53]Anile (n 49) [131].

The duty is ongoing,[54] and is owed to the Court, not an accused person.[55] It is described as ‘an aspect of the prosecutor’s function to assist in the attainment of justice between the Crown and the accused.’[56]
[54]Roberts (n 45) [127].
[55]Anile (n 49) [130] (citation omitted); Roberts (n 45) [127] (citations omitted).
[56]Roberts (n 45), [127]; citing Nguyen v The Queen (2020) 94 ALJR 686, 695 [37].

In R v Farquharson[57] the Court of Appeal considered whether, in the context of a murder trial, the prosecution ought to have disclosed that indictable charges were pending in respect of one of its witnesses, Mr King. In considering whether the duty of disclosure extended in this way, it was noted that the ‘pre-condition for prosecution disclosure is, of course, that the material is in the possession of, or the information is known by, the prosecution.’[58] In Farquharson, the police officer who had interviewed Mr King as to his involvement in a fight at a hotel had told the informant that a brief would be submitted in respect of that fight, although it had not yet been determined what charges (if any) would be laid. The prosecution submitted that the information about Mr King was not sufficiently relevant to an issue in the case, however, the Court held that it was rationally probative and should have been disclosed.[59]
[57]Farquharson (n 45).
[58]Ibid [211].
[59]Ibid [218].

In Anile v The Queen,[60] the prosecution failed to disclose a bundle of documents relevant to a potential defence witness, and which contained potential exculpatory evidence, until well after the prosecution case had closed. The prosecution admitted that such material had been available to the prosecution for the best part of six months prior to the trial.[61] The Court of Appeal accepted that if this material had been disclosed prior to trial, the accused may not have called a particular witness, who had turned out to be ‘disastrous’ for the defence. The Court stated that it was irrelevant that some of the material may not have been of assistance to the defence, and much of it might have been harmful.[62] The Court held there was no justification for not disclosing the material until well into the trial (and after the defence had announced its course),[63] and the failure to do so justified a new trial.
[60]Anile (n 49).
[61]Ibid [69].
[62]Ibid [138].
[63]Ibid [140].

In Roberts v The Queen[64] the Court of Appeal considered an application for a retrial, on the basis that non-disclosure of relevant material to the accused resulted in a substantial miscarriage of justice in the accused’s murder trial. The parties to the appeal agreed that an initial statement made by a police officer four hours after a co-worker had been shot and killed ought to have been disclosed. Further, the Court accepted that the police officer had fabricated a contemporaneous statement some 10 months after the murder took place (which he purported to be the initial statement), and which failed to disclose relevant matters. It was not disputed that this constituted non-disclosure of material evidence which should have been disclosed. The Court held that as it could not be satisfied that the non-disclosure did not make a difference to the outcome of the trial, the convictions should be quashed and a new trial was ordered.[65]
[64]Roberts (n 45).
[65]Ibid [18(d)].

These authorities demonstrate the significance of the prosecution’s duty of disclosure, and the consequences which can flow when it has been breached. However, none of these decisions are comparable with the way in which the plaintiff’s appeal proceeded. There is a clear distinction between the prosecution’s failures to disclose material in Farquharson, Roberts, and Anile, and the alleged failure by the prosecution to disclose documents to the plaintiff in this case. There is no evidence before me that the first defendant had knowledge of the May 22 visit (or that the complainant documents were not disclosed). To the contrary, the OPP directly stated that it had no additional documents in its possession, and thus it suggested the plaintiff issue a subpoena.

The plaintiff, in his written submissions, complained that the first defendant’s solicitor’s affidavit[66] did not deny having such documents at the time of the appeal. However, as the plaintiff had not adduced any evidence to support his contention that the documents were with the prosecution, there is nothing for the first defendant to rebut. Further, there is no basis to infer that the OPP or first defendant withheld documents from the plaintiff.
[66]Affidavit of Rachel Fitzpatrick affirmed 20 October 2022, which exhibited documents relevant to this application, including transcript from the appeal.

The plaintiff has failed to cite any authority for the breadth of the duty of disclosure extending so as to require an informant to make enquiries with others within the police force, or to other State entities, including the child protection authority.

In respect of the May 22 visit, I am not satisfied that the prosecution, prior to the appeal being heard, was obliged to investigate matters pertaining to that visit. Having been alerted to this visit through correspondence from the plaintiff’s solicitor on 3 June 2021, on the face of it, there was nothing to suggest why it would be related to the charge, an incident which had occurred three years before. Therefore, I am not persuaded there was any basis to require the prosecution to actively seek documents which related to this visit. The OPP appropriately informed the plaintiff that if he wanted to access such records, he was able to issue a subpoena in respect of such documents.

Therefore, in considering the plaintiff’s grounds of review, and the aforementioned authorities, I am not satisfied that the prosecution breached its duty of disclosure, and grounds 3, 6 and 7 must fail.

(c) The prosecution failed to provide some or all documents relating to the May 22 visit
Ground 4
The failure of prosecuting authorities to provide some or all of the documents with respect to the May 22 visit and the circumstances which brought that visit about was underhand, unfair and prejudicial to the plaintiff.

The plaintiff repeated his submissions in respect of non-disclosure of documents relating to the 22 May visit, and alleged that this failure was unfair and prejudicial to him. The plaintiff submitted that I should accept that the first defendant had knowledge as to what was occurring with other police officers, including those in the ‘same chain of command’, being the Swan Hill family violence intervention unit.

Analysis

As I have stated previously, I am not satisfied that there was a non-disclosure by the first defendant or prosecution.

Further, I note that at the time of the appeal, the first defendant worked in the Swan Hill criminal investigation unit, not the Swan Hill family violence intervention unit. Save for a geographical proximity, there is no evidence to support the plaintiff’s claim that police officers from both units were in the same chain of command.

Again, as previously stated, the judge inspected the documents produced under the subpoena in respect of the May 22 visit and ruled that such documents had no legitimate forensic purpose (described as ‘relevance’) to the charge the subject of the appeal.

The plaintiff’s complaint that the circumstances which brought about the May 22 visit were underhand, unfair or prejudicial to the plaintiff, is confusing and irrelevant to my determination of this appeal.

For these reasons, ground 4 must therefore fail.

(d)The judge acted contrary to the requirements of s 256 of the Criminal Procedure Act 2009 in that the plaintiff was not properly informed and thus agreed to a method of trial other than a de novo hearing.
Ground 2
The failure to provide material details known to the State concerning the complainant, unfairly took advantage of the defence agreeing to an alteration in the process of rehearing de novo and destroyed the integrity of the trial process.
Ground 8
The denial of material information prior to the appeal hearing concealed from the plaintiff that his non-binding agreement to a method of trial before the judge other than the rehearing de novo to which he was entitled by law may work an injustice on him; and his agreement to that course was not properly informed and was therefore vitiated
Ground 9
The plaintiff was unlawfully or unfairly denied a hearing in which the first defendant, as the informant, starts again and has to make out his case and call his witnesses; and further the procedure adopted by the judge was, at least in the absence of informed consent by the Plaintiff, contrary to the requirements of s. 256 of the Criminal Procedure Act and in consequence unlawful and a denial of due process.

In short, the plaintiff contends that s 256 of the Criminal Procedure Act required his appeal to be heard as a rehearing de novo, and that as he was not provided with documents which he said ought to have been disclosed, he was not able to give informed consent to the proposed course of replaying pre-recorded evidence from the terminated appeal. The plaintiff submitted the consequence of this was that he was denied a genuine rehearing of the matter.

The plaintiff maintained that when he subsequently learned of matters which he claimed were relevant to the complainant’s reliability, he was ‘surprised’. In support of his submission that his ‘surprise’ gave rise to an order for certiorari, the plaintiff referred me to the High Court decision in Conway v The Queen.[67] In that case, the Court was required to consider whether to order a retrial, following the appellant’s conviction of murder. The appellant claimed that the jury had been misdirected in how to use corroborating evidence given by co-offenders. In considering the appeal, the High Court recognised that a verdict in a criminal jury trial might be set aside if it appeared the conviction had been improperly obtained. Several grounds were then identified including, relevant to this application (but not alleged to have arisen in the circumstances of Conway), whether the accused was taken by surprise in the trial.[68] In this application, the plaintiff submitted his surprise had arisen subsequent to the determination of his appeal and, as this was attributable to the prosecution’s failure to disclose, I should be satisfied of the errors as alleged and order relief in the form of certiorari.
[67](2002) 209 CLR 203.
[68]Ibid [16].

In reply, the OPP urged me to reject the notion there had been any unfairness to the plaintiff in respect of the manner in which the appeal was heard. The OPP submitted the hearing proceeded in accordance with what was expected and required in a de novo appeal. No evidence from the Magistrates Court hearing was replayed and, instead, by consent the parties agreed to the replaying of the pre-recorded evidence given in the terminated appeal. The plaintiff was represented by the same solicitor advocate at both hearings, which were conducted a short time apart. It was put there could be no basis to allege that the integrity of the trial had been compromised, and the OPP denied any ‘trickery or surprise.’

Analysis

These three grounds of review are predicated on my acceptance that the prosecution failed in its duty of disclosure. As I have rejected that notion, it follows that I am not satisfied that there was unfairness to the plaintiff in him agreeing to the replaying of evidence from the terminated appeal. That was a sensible course, which the parties, by agreement, proposed to the judge.

The plaintiff was entitled to, and received, a rehearing de novo. The evidence was not confined to the evidence placed before the Magistrate. The pre-recorded evidence from the terminated appeal was played in open court, and some further oral evidence (from Lloyd) was given. In addition, the plaintiff was able to issue a subpoena in respect of the May 22 visit, with such documents being delivered to the Court during the trial (and the judge ruling there was no legitimate forensic purpose in almost all of those documents). The appeal was, as it was required to be, a new trial.

The plaintiff’s suggestion that he was surprised to learn of certain matters after the appeal, and further that this justified a retrial, is misguided for a number of reasons. First, the decision in Conway was an appeal following a jury trial, and was not a judicial review of an inferior court’s decision. Second, in Conway, the reference to an accused being taken by surprise was obiter, and the authorities provided in respect of the proposition were historical.[69] It is not clear from the brief reference to surprise in Conway whether, in justifying a retrial, it would be relevant if the surprise was caused by the act or omission of a non-party. In such circumstances, I am not assisted by the plaintiff’s reference to Conway in my determination of his application.
[69]R v Whitehouse and Tench (1852) Dears 1 at 3 [169 ER 611 at 612]; Blackstone, Commentaries on the Laws of England, (1768), vol 3 at 387; Chitty, A Practical Treatise on the Criminal Law, 2nd ed (1826), vol 1 at 654; Archbold’s Pleading and Evidence in Criminal Cases, 21st ed (1893) at 207; see R v Fowler and Sexton (1821) 4 B & Ald 273 [106 ER 937].

I am not satisfied that there was any unfairness to the plaintiff arising from the manner in which the appeal was heard. There is nothing to support the plaintiff’s claim that the integrity of the trial process was not maintained. I am satisfied the hearing of the appeal accorded with the requirements of s 256 of the Criminal Procedure Act. Grounds 2, 8 and 9 must fail.

(e) The judge erred in failing to accept the photographic evidence of the complainant taken the day following the assault as exculpatory.
Ground 11
The 11 February photograph constituted positive and objective evidence that the complainant at that time exhibited no bruising or marks or anything else consistent with the allegation of assault the previous day; within the forensic milieu of the evidence provided by the prosecution it was incumbent on the judge to treat that photograph not merely as a compelling factor consistent with the plaintiff’s innocence, but also to treat it raising rational and compelling doubt about the evidence of the complainant.
Ground 12
The failure to deal according to law with the evidence constituted by the 11 February photograph, and the failure to give that evidence proper weight led to a failure of due process, a miscarriage of justice, and to justice not being done or being seen to be done.
Ground 13
In the complete absence of any or any articulated basis to refrain from giving full force and evidentiary effect to the 11 February photograph, the decision finding the plaintiff guilty was perverse and resulted in justice not being done or being seen to be done.

In summary, the plaintiff submitted that the judge’s treatment of the 11 February photograph as ‘neutral’ was an error of law.

The plaintiff contended that, to the contrary, the 11 February photograph was consistent with his innocence and the judge’s failure to take this into account was an error of law. The plaintiff submitted that the judge’s treatment of the 11 February photograph as neutral had the effect of removing ‘the benefit of an objective and clear basis’ upon which the plaintiff should not be convicted.

In support of the plaintiff’s submission that it was ‘an error of law to treat evidence as neutral in a criminal trial’, he referred me to the decisions of Adams v R[70] and R v Ke.[71]
[70][2018] NSWCCA 303, [100]-[101].
[71][2021] NSWCCA 119, [64], [118].

Further, it was said that as the incident occurred on 10 February 2018, the complainant had failed to provide an explanation as to why the 11 February photograph (taken the following day) did not show an injury to her face, consistent with her allegations.

The OPP submitted that these grounds were attempts at merits review, and there was no proper basis to contend that the way in which the judge dealt with the photograph, was in error. Further, the judge was not required to consider one piece of evidence in isolation, and instead was required to consider all of the evidence in his determination of whether evidence was sufficient to prove the offence beyond reasonable doubt.

Finally, the OPP submitted that, the judge was entitled to categorise evidence as he wished and there was no error of law in him describing the 11 February photograph as neutral.

Analysis

The plaintiff’s complaint that the judge failed to deal with the 11 February photo in accordance with law is an improper attempt at a merits review. It was for the judge as the finder of fact to consider and assess this evidence and determine its weight, if any.

The 11 February photograph is not exculpatory in the way the plaintiff asserts. The lighting in the photo and distance of the complainant from the lens limits an ability to confidently assess the complainant’s face at that time, and positively determine that there was no bruising, or marks on her face, so as to exclude the possibility of an assault having occurred the previous day. It was open to the judge and in accordance with the weight of the evidence to characterise the 11 February photograph as ‘neutral’. In no way could it be described as a solid obstacle to conviction.

The judge accepted the complainant’s account and held that the evidence of Johnson, together with the photographs taken on 12 February, were ‘significantly and independently’ supportive of the complainant’s account of the assault. These findings were reasonably open to the judge. The plaintiff has failed to satisfy me that the judge’s finding in respect of the 11 February photograph was perverse and resulted in justice not being done.

The decisions of Adams and Ke were concerned with the use of the term ‘neutral’ in describing evidence placed before a jury in a criminal trial. However, neither case supports the plaintiff’s claim that it was an error of law for the judge, as the fact finder in the appeal, to describe the 11 February photograph as neutral evidence. It was open to the primary judge to consider that the photograph neither corroborated the complainant’s evidence, nor did it corroborate the plaintiff’s denial of the assault. Having described the photograph in that way, the primary judge then considered the whole of the evidence and was satisfied beyond reasonable doubt that the charge was made out. This was clearly within the limits of the valid exercise of his Honour’s power. There is no basis for the plaintiff to contend that justice was not done (or seen to be done) with respect to the manner in which the judge evaluated this piece of evidence, including his description of the photograph as neutral.

For those reasons, grounds 11-13 fail.

(f) The judge failed to provide adequate reasons
Ground 14
The judge was under a legal duty to provide proper and adequate reasons for the decision to convict the plaintiff but the judge failed to carry out that duty as required by law or at all.

The plaintiff made numerous complaints in respect of the adequacy of the judge’s reasons. The plaintiff’s submissions were as follows:

(i) There were multiple aspects of the evidence which went to the complainant’s reliability, and which ought to have been addressed by the judge, but were not. The complainant gave equivocal evidence as to the date of the incident; she had a number of prior convictions; she had prior involvement with the child protection authority, and expressed views as to the outcome of previous court proceedings, which reflected poorly on her attitude towards the justice system; she conceded her memory at times was poor, and could not recall specific matters; she gave inconsistent evidence as to who she believed had called the police in respect of the incident; and she was reluctant to promptly make a statement regarding the incident. Further, these matters were objective and rational evidence that went to the complainant’s reliability, which needed to be assessed and addressed by the judge.

(ii) The similarity between the previous alleged offence relating to the Marong incident, and the charge the subject of the appeal, was a matter that ought to have been dealt with by the judge, given that the complainant later denied that the Marong incident had occurred.

(iii) The judge failed to adequately address the evidence which went to the first defendant’s ‘inadequacies in his investigation’ of the incident. The concessions made by the first defendant in cross-examination told a tale of the police not being prepared to investigate something which was exculpatory. There was enough rational and logical evidence on the failings by the investigating police officers, which required the judge to expressly deal with this in his reasons.

Further, the judge’s reasons were to the effect that the ‘family violence police were just doing their job’, and this was not adequately explained given the issues in the case before him.

(iv) The 11 February photograph was of crucial significance to the plaintiff’s defence, yet the judge failed to provide adequate reasons as to why he did not consider it to be exculpatory.

(v) Finally, in respect of the 12 February photographs, the judge ought to have expressly considered the circumstances in which these came into existence and the evidence surrounding that. The photographs were said to have been taken by Johnson in Swan Hill, after the police and DHHS staff had visited the plaintiff and complainant at their home, and who had then allowed them to travel together in their own car into Swan Hill. It was said that the police permitting the plaintiff and complainant to travel together was inconsistent with obvious injury to the complainant’s face, and this required consideration and explanation by the judge. The plaintiff contended that Johnson was a ‘discredited witness’, and that she was ‘lying’ when she said that she took the 12 February photographs.

In view of the above matters, it was put that the judge’s reasons were inadequate as his Honour impermissibly ‘swept things under the carpet.’

The plaintiff submitted that, in his reasons, the judge was obliged to deal with the issues raised by both parties, and his failure to do constituted an error of law.[72]
[72]Sun Alliance v Massoud [1989] VR 8; the plaintiff also relied in DL v The Queen (2018) 266 CLR 1; Denham v Consolidated Herd Improvement [2014] VSC 520; Pham v Legal Services Commissioner [2016] VSCA 256.

In reply, the OPP submitted that the judge’s reasons provided a thorough explanation of the verdict arrived at by his Honour. It was said that the judge expressly rejected the alleged motive to lie on the part of the complainant. The judge acknowledged the need for the complainant’s evidence to be ‘carefully scrutinised’. Having done so, the judge stated there was support for her evidence. After noting the differing arguments from each party as to the photographic evidence, the judge found that the evidence was ‘significantly and independently supportive of the complainant’s account of the assault’.

The OPP submitted that the reasons were not only adequate, but detailed and comprehensive. Further, the OPP submitted that his Honour did not have to refer explicitly to every matter he took into account, and nor was he required to deal with every matter the complainant was cross-examined on. It was suggested that it would be ‘difficult to imagine’ what more the judge could have done in light of the fulsome reasons provided.

Analysis

A judge has an obligation to provide reasons for judgment. The judge did so, however the plaintiff contends that such reasons were inadequate and in turn amounted to an error of law.

In Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2),[73] the Court of Appeal identified four purposes underlying the judicial obligation to give reasons. In short, these can be summarised as follows:
[73](2002) 6 VR 1.

(a) to enable a superior court to determine if the decision of the inferior court contains an error of law or appealable error;

(b) to provide the foundation for the acceptability of the decision by the parties and the public, and to avoid leaving the losing party with a sense of injustice;

(c) to promote judicial accountability by guarding against an unconsidered or impulsive decision; and

(d) to enable practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.[74]

[74]Ibid 31, [100] (citations omitted).

In support of his claim that the judge’s reasons were inadequate, the plaintiff relied upon the Full Court decision in Sun Alliance Insurance Ltd v Massoud.[75]In Massoud, the court considered an appeal from a civil judge in the County Court, where it was claimed that the reasons provided were inadequate. In the lead judgment given by Gray J, his Honour stated that, in a case from which an appeal lies (in contrast to the judge’s decision which is the subject of this application) the adequacy of reasons will depend upon the circumstances of the case.[76] However, such reasons will be inadequate if either an appeal court is unable to ascertain the reasoning upon which the decision is based; or if justice is not seen to have been done through the provision of such reasons.[77]
[75][1989] VR 8.
[76]Ibid 18.
[77]Ibid.

More relevant to an application of this kind is the Court of Appeal decision in Ta v Thompson.[78] This case involved an appeal by a plaintiff in respect of a conviction in the Magistrates’ Court of possession of heroin, which had been found at his premises. The plaintiff sought judicial review of his subsequent appeal to the County Court in respect of the conviction. Upon dismissal of the plaintiff’s application for judicial review by Whelan J (as his Honour then was), the plaintiff appealed to the Court of Appeal. The issue on appeal was whether the County Court judge’s reasons were so inadequate as to demonstrate an error of law. The majority[79] held that the reasons were adequate, and the appeal was dismissed.
[78][2013] VSCA 344.
[79]Priest JA in dissent.

In Ta, Osborne JA (with whom Beach JA agreed) stated that:

… this was a final decision of the type which attracted the obligation to state reasons, and in order to be meaningful the obligation must at least have extended to a requirement that the court state the grounds of its decision.[80]

[80]Ibid [32].

Further, his Honour stated:

…the statement of the grounds of a decision of this type facilitates effective judicial review and the protection of a party’s rights to see whether a decision was made in accordance with law.
Conversely, there are good reasons for concluding that the obligation to give reasons did not go as far as that which is imposed where a decision is subject to an appeal by way of rehearing but was limited to that ordinarily imposed when a decision is subject to an appeal on questions of law only.

Most obviously, the very fact that there is no right of appeal from the County Court judge’s decision supports this limitation. Secondly, the fact that the proceeding constituted a rehearing of a summary prosecution also tends to support this view. Thirdly, there is no authority requiring the imposition of a higher standard.
For present purposes it may thus be accepted that the County Court judge’s obligation extended to identifying the grounds or basis of her decision in the same way as such an obligation is regarded as a necessary corollary to a right of appeal on questions of law.[81]

[81]Ibid [33]-[36].

The Court in Ta went on to endorse the reasoning of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd,[82] as to the duty to provide reasons for a decision in respect of a finding of fact, from which no appeal lies:[83]

An erroneous or perverse finding of fact raises no question of law and cannot be challenged by way of appeal. What is decisive is that his Honour's judgment reveals the ground for, although not the detailed reasoning in support of, his finding of fact. But that is enough in a case where no appeal lies against the finding of fact.[84]

[82](1987) 10 NSWLR 247.

[83]Ta (n 78) [37].

[84]Soulemezis (n 82) 282 (citations omitted).

In conclusion, Osborn JA stated that:

…the decision of the County Court was not subject to a right of further appeal. It was necessary that the reasons be adequate to enable this Court exercising powers of judicial review to see whether the decision involved an error of law but not to provide a basis for an appeal by way of rehearing. Thus the reasons needed to explain the process of reasoning of the County Court judge and to state the grounds of the decision sufficiently to enable the Court to see whether the judge’s decision did or did not involve an error of law. Her Honour’s judgment met these requirements.[85]

[85]Ta (n 78) [62].

The present case is similar to Ta, in that the judge was required to decide the plaintiff’s appeal as a hearing de novo, from which there is no further right of appeal. As in Ta, I too am satisfied that the judge’s reasons were sufficient to enable me to determine that his decision did not involve any errors of law.

It is clear from the reasons that the judge considered the whole of the evidence and was satisfied beyond reasonable doubt of each of the elements that made up the offence charged. The judge acknowledged the plaintiff’s claim that the complainant was motivated to provide a false account in respect of the assault, and he explained his reasons for rejecting that defence.

As previously referred to, a key issue in the appeal was the complainant’s reliability. The judge clearly identified some inconsistencies in her evidence, offered explanations for those inconsistencies, and then provided the reason why he accepted her account of the assault. The judge was not required to expressly deal with the multitude of matters arising out of the complainant’s cross-examination, including those matters referred to in sub-paragraphs [130(i) and (ii)] above.

The judge noted the plaintiff’s complaints as to the conduct of police in their investigation of the assault, and their subsequent involvement with the plaintiff (including at the May 22 visit), but concluded nothing sinister had occurred. Whilst the plaintiff is aggrieved in respect of that finding, there is no basis upon which to contend the judge’s reasons on this issue were deficient.

Similarly, I conclude that the judge’s reasons in relation to the photographs of 11 and 12 February were also adequate. The plaintiff’s criticism as to the judge’s reasoning in respect of the these photographs is without foundation.

The judge’s reasons were sufficient for me to determine that there was no error of law in his determination of the appeal, and he validly exercised the power given to him under the Criminal Procedure Act.

The plaintiff has failed to satisfy me that the judge’s reasons were so inadequate as to demonstrate an error of law. Ground 14 also fails.

(g) Justice was not done, nor was it seen to have been done.
Ground 10
Justice was not only not done, but was positively and affirmatively seen not to have been done.

The plaintiff referred to a historical quote by Lord McMillan, approved by the Court of Appeal in Fletcher Construction:

…the main object of a reasoned judgment “is not only to do but to seem to do justice”.[86]

[86]“The Writing of Judgments” (1948) 26 Canadian Bar Review 491, cited and approved in Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1, 31 at [100].

The plaintiff asserted that given the allegations he had otherwise made in this matter, this ground ‘spoke for itself’.

The OPP submitted that none of the grounds justified a finding that the judge exceeded his power. It was put that I should readily find that justice was seen to be done, and was positively and affirmatively done.

Analysis

There can be no challenge to what Lord McMillan (and no doubt many others) said about the need for justice to be done, and for it to seem and seen to have been done.

The fundamental need for justice being done in a criminal trial was described by the Court of Appeal in Anile as follows:

…the central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law. Another way of putting this is that an accused person has the right not to be tried unfairly.

It cannot be legitimately contended that justice was not done in the hearing and determination of the appeal.

Save for a general observation that ground 10 is vague and non-specific, for the reasons given above, I am satisfied that a reasoned judgment was given, and that justice was done by the judge, and would be seen to be done by an objective bystander. There is no need to provide further reasons as to why this ground of review must also fail.

Conclusions

For the reasons given, the plaintiff’s claim must fail.[87] I will hear from the parties as to the precise form of orders to give effect to these reasons, and as to costs.
[87]In the plaintiff’s written submissions in reply dated 16 February 2023 he made additional complaints which were beyond the scope of this judicial review, including an allegation that the judge erred in his sentencing considerations, and a claim the child’s removal was illegal and breached human rights legislation. It was not appropriate or necessary for me to deal with such allegations, save to note them here for the sake of completion.

SCHEDULE OF PARTIES

S ECI 2022 00063

BETWEEN:

CLINTON JOHN EWINS Plaintiff

- and -

STEPHEN ABLETT First Defendant

THE COUNTY COURT OF VICTORIA Second Defendant

CLINTON JOHN EWINS	Plaintiff
- and -
STEPHEN ABLETT	First Defendant
THE COUNTY COURT OF VICTORIA	Second Defendant

[2023] VSC 261

19 May 2023