Ex Parte

[2021] WASC 232

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   EX PARTE DE-ABREU [2021] WASC 232

CORAM:   ARCHER J

HEARD:   24 JUNE 2021

DELIVERED          :   15 JULY 2021

PUBLISHED           :   15 JULY 2021

FILE NO/S:   CIV 1149 of 2020

EX PARTE

JADE DE-ABREU

Plaintiff

Catchwords:

Leave to file an application seeking certiorari - Supervisory jurisdiction over completed criminal trial - Alleged perjury - Prior appeal against conviction - Abuse of process

Legislation:

District Court of Western Australia Act 1969 (WA), s 80, s 81

Result:

Leave to file the application refused

Category:    B

Representation:

Counsel:

Plaintiff : In Person

Solicitors:

Plaintiff : In Person

Case(s) referred to in decision(s):

Colonial Bank of Australasia v Willan [1874] LR 5 PC 417

De-Abreu v The State of Western Australia [2020] WASCA 145

H T v R [2019] HCA 40

R v Foster; Ex parte Isaacs [1941] VLR 77

Re Birmingham DCJ; Ex parte Agapis [2014] WASCA 197

Re Judge Ackland; Ex parte Love (1989) 1 WAR 562

Re Judge Hammond; Ex parte Roddan (1996) 17 WAR 50

Santos v Director of Public Prosecutions (WA) [2016] WASCA 230

ARCHER J:

Overview

1. Mr De-Abreu sought to file two applications for judicial review.

2. The Acting Principal Registrar determined that, pursuant to O 67 r 5 of the Rules of theSupreme Court 1971 (WA), the applications could not be filed without leave of a judge of the court. That is, the Acting Principal Registrar was of the view that the applications were an abuse of the process of the court or frivolous or vexatious proceedings. Mr De-Abreu was told he needed to file a notice of motion and a supporting affidavit seeking leave to file the applications.

3. After that time, there was considerable correspondence between Mr De‑Abreu and the court.  There was also a directions hearing before Le Miere J.

4. Mr De-Abreu has now filed documents that, taking into account the fact that he is self-represented, can be treated as a notice of motion and a sufficiently compliant affidavit.

5. The first of Mr De-Abreu's proposed judicial review applications, in CIV 1975 of 2019, sought review of a decision of 'Acacia Prison, Western Australia, Neil McReith and SMT' in relation to separate confinement in Golf Block Detention Unit Acacia Prison exceeding 30 days.  In a hearing on 24 June 2021, I gave Mr De-Abreu leave to file this application.

6. I refused Mr De-Abreu leave to file the other proposed judicial review application (the Certiorari Application) and said I would provide my reasons later.  What follows are my reasons. 

7. The purported respondents to this application are stated to be the District Court of Western Australia, his Honour District Court Judge Eaton and 28 others.

8. Mr De-Abreu seeks certiorari to quash the decision and order made in the District Court on 13 August 2015.  That was the date upon which Mr De-Abreu was sentenced, following his convictions on 25 March 2015 of numerous serious sexual offences.

9. It is apparent, however, from the named respondents and from the proposed writ that he attached to his application, that Mr De-Abreu is actually seeking to quash the convictions.

10. In separate proceedings, Mr De-Abreu also sought to appeal against his convictions.  His appeal was dismissed on 16 September 2020 (Appeal Decision).[1]

    [1] De-Abreu v The State of Western Australia [2020] WASCA 145.

11. The circumstances of Mr De-Abreu's offending, the trial and his convictions are set out in the Appeal Decision.  It is unnecessary to repeat them.  I simply note here that the convictions followed verdicts of guilty by the jury in relation to all charges relating to one complainant 'F' and one charge relating to the other complainant 'S'.

12. Under O 56 r 2(4) of the Rules of theSupreme Court (and the definition of limitation period in r 1), an application for judicial review must be filed within six months of the decision.  The convictions were recorded on 25 March 2015.  The Certiorari Application was filed on 27 February 2019, over three years out of time.  Mr De-Abreu accordingly requires leave to proceed.

13. The following issues arise:

    1.Is the proposed application an abuse of the process of the court?

    2.If it is not an abuse, should leave be granted to proceed with the proposed application, given it was made outside of the limitation period?

Is it an abuse?

The legal principles

1. In Re Birmingham DCJ; Ex parte Agapis,[2] the Court of Appeal discussed the limitations on the Supreme Court's power to grant certiorari in relation to judgments or orders of District Court judges in their criminal jurisdiction.  The following emerges from the judgment:

   1.At common law, a writ of certiorari does not, subject perhaps to some anomalous exceptions, go to a superior court.

   2.In its criminal jurisdiction, the District Court is a superior court of record.

   3.The availability of certiorari is capable of being modified by statute.

   4.It has been so modified in respect of the District Court, by s 80 and s 81 of the District Court of Western Australia Act 1969 (WA) (the Act). 

   [2] Re Birmingham DCJ; Ex parte Agapis [2014] WASCA 197 [11] - [18].

2. Section 80 of the Act provides:

   No judgment or order of a District Court judge, nor any proceedings brought before him or pending in the Court, shall be removed by appeal, motion, certiorari or otherwise into any other court, except in the manner and according to the provisions of this Act.

3. Section 81 is the only provision in the Act under which certiorari may issue against a District Court judge. It permits the Supreme Court to remove into it by writ of certiorari 'any cause, matter or proceeding pending in the [District] Court' if it considers it desirable that the cause, matter or proceeding be tried in the Supreme Court.

4. Plainly, by its terms, s 81 only applies to pending matters.

5. The Court of Appeal in Ex parte Agapis noted that observations made in Re Judge Hammond; Ex parte Roddan[3] 'suggested that notwithstanding s 80 and s 81 of the Act, the Supreme Court may have a supervisory jurisdiction by way of certiorari in respect of the District Court's criminal jurisdiction in the case of absence or excess of jurisdiction, and possibly where the exercise of jurisdiction was procured by fraud'.[4] 

   [3] Re Judge Hammond; Ex parte Roddan (1996) 17 WAR 50, 56.

   [4] Ex parte Agapis [18].

6. The court in Ex parte Agapis said there was nothing to suggest an absence or excess of jurisdiction in the case before it.  In relation to the possible supervisory jurisdiction where the exercise of jurisdiction was procured by fraud, the court noted that Mr Agapis (the appellant) sought to rely on alleged perjury by prosecution witnesses.[5] 

Can perjury ground the supervisory jurisdiction?

[5] Ex parte Agapis [19].

1. Mr Agapis' reliance on alleged perjury was likely due to remarks made in Ex parte Roddan, the case noted by the Court of Appeal in Ex parte Agapis. 

2. In Ex parte Roddan,[6] Malcolm CJ, with whom Kennedy and Murray JJ agreed, discussed the scope of the supervisory jurisdiction.  Malcom CJ noted 'the possibility that certiorari could be available where the exercise of jurisdiction was procured by fraud, such as where a decision of an inferior tribunal was obtained by perjured evidence'.

   [6] Ex parte Roddan, 56.

3. In the course of the discussion, Malcolm CJ cited with approval various statements made by Brinsden J in Re Judge Ackland; Ex parte Love.[7]

   [7] Re Judge Ackland; Ex parte Love (1989) 1 WAR 562. See also Mazza JA in Santos v Director of Public Prosecutions (WA) [2016] WASCA 230 [7].

4. In Ex parte Love, the applicant was seeking certiorari to quash convictions against him. After discussing the provisions of the Act and various authorities, Brinsden J said that certiorari could not lie against an order of a District Court judge 'except perhaps' where there was a manifest defect of jurisdiction to make the order, or manifest fraud in the party procuring the order.[8]

   [8] Ex parte Love, 565 - 567, citing R v Foster; Ex parte Isaacs [1941] VLR 77 and Colonial Bank of Australasia v Willan [1874] LR 5 PC 417.

5. Although not one of the statements quoted in Ex parte Roddan, Brinsden J also said:[9]

   In relation to the [possible ground of manifest fraud] it is to be noted that the ground is 'manifest fraud in the party procuring it', the 'it' referring to an order sought to be quashed.  Judge Ackland did not procure the conviction.  All he did was to record the conviction following the jury having found the applicant guilty.

   [9] Ex parte Love, 567.

6. In Ex parte Agapis, the Court of Appeal said that, given the circumstances of the case, it was not necessary to consider the effect of perjury in this context.  This was because the allegations were in substance simply a reiteration of allegations advanced by the appellant in his appeal against conviction and rejected by the Court of Appeal.  The court said the allegations could not be run again 'under the guise of an application for a writ of certiorari'.[10]

   [10] Ex parte Agapis [20].

7. As will be seen, it is similarly unnecessary in this case.

The facts

No pending matters

1. The criminal proceedings concerning Mr De-Abreu are no longer pending before the District Court. They were completed in 2015 with the recording of the convictions and sentencing by Eaton DCJ. Accordingly, there is no matter pending before the District Court, so certiorari under s 81 of the Act is unavailable.

2. Therefore, the only possible basis upon which I could have the power to grant certiorari is through the supervisory jurisdiction left open by the Court of Appeal in Ex parte Agapis.  Assuming, without deciding, that such a supervisory jurisdiction remains, I could only grant certiorari if there was an absence or excess of jurisdiction, and possibly where the exercise of jurisdiction was procured by fraud.

The proposed grounds[11]

[11] Pages 7 - 8 of the attachment to the application (Attachment).

1. Attached to Mr De-Abreu's proposed application is a paginated document titled 'Writ of certiorari'. 

2. Mr De-Abreu's first ground asserts that he did not receive 'full and frank disclosure of all evidence that was to be led against him at trial'. 

3. The second ground asserts that the District Court did not follow 'due process' to ensure that full and frank disclosure was provided to him and did not ensure collateral, relevant and exculpatory evidence was included in the trial.  It is not suggested that there was 'collateral, relevant and exculpatory evidence' that was excluded by the trial judge.  Rather, Mr De-Abreu appears to be asserting that, had there been proper disclosure, such material would have emerged.

4. The grounds then assert that:

   (a)various people, including the trial judge, failed to follow due process to ensure that full and frank disclosure was provided to Mr De-Abreu;

   (b)various other people failed to follow due process to investigate the failure of the others to ensure that full and frank disclosure was provided to Mr De-Abreu; and

   (c)the investigation was perverse because of:

   (i)the constant grooming of witness statements that improved the case against him; and

   (ii)the two complainants knew each other and may have colluded with each other or the police to build a case against him.

Mr De-Abreu's arguments

1. Although not expressed in the grounds, it appears that Mr De‑Abreu's primary complaint is that there was 'a denial of procedural fairness due to non-disclosure, collusion and the failure to call witnesses that would assist' him.[12]

   [12] Page 8 of the Attachment.

2. As I have noted, the decisions sought to be challenged are the decisions of the trial judge to enter judgments of convictions.  Despite this, the only direct complaint against the trial judge is that '[a]s soon as it was alleged that the applicant had not receive[ed] full and frank disclosure the judge should have made reasonable inquiries to ensure the laws of disclosure had been followed'.[13]  I would interpret this as an allegation that the trial judge failed to accord procedural fairness[14] to Mr De‑Abreu, in failing to make reasonable inquiries to ensure the laws of disclosure had been followed once it was alleged that proper disclosure had not been given.

   [13] Page 11 of the Attachment.

   [14] See H T v R [2019] HCA 40 [17].

3. The only other complaint that relates to the trial judge is Mr De‑Abreu's assertion that the prosecution ought to have been stayed until the alleged inadequate disclosure and the risk of collusion 'had been reviewed'.[15]  Mr De-Abreu does not contend that the trial judge was asked to exercise this jurisdiction, although he does claim to have asked his lawyer to raise it.[16]

   [15] Page 11 of the Attachment.

   [16] ts 24 June 2021, page 33.

4. The last few of Mr De-Abreu's grounds raise an allegation that there may have been perjury by the complainants.  If the approach taken by Brinsden J is followed, this could not ground certiorari, as the alleged fraud was not committed by the trial judge.  However, the Court of Appeal in Ex parte Agapis appears to have left open the possibility that perjury by the complainants could ground certiorari. 

Analysis

Disclosure

1. In the Appeal Decision, the court noted that Mr De-Abreu had made allegations of inadequate disclosure during the trial, but his lawyer had not.[17]  The court rejected Mr De-Abreu's allegations that the State had failed to comply with its duty of disclosure.  It found there was no merit in his complaint.[18]

Alleged perjury and risk of collusion

[17] Appeal Decision [75] - [76].

[18] Appeal Decision [73(1)], [74] - [79].

1. By the jury verdicts, the jury plainly were satisfied beyond reasonable doubt of the truthfulness and accuracy of F's evidence and, in relation to count 3, S's evidence.

2. The Court of Appeal rejected Mr De-Abreu's appeal, including his ground that the verdicts were unreasonable or could not be supported by the evidence. 

3. The court said it did not have a reasonable doubt as to Mr De‑Abreu's guilt in relation to the complainant F.[19]

   [19] Appeal Decision [264].

4. The court did accept Mr De-Abreu should not have been convicted of the single count in relation to S upon which he was found guilty, as there was no evidence which could establish that the injuries she had were suffered during his assault on her on the relevant date.  The court was, however, satisfied that the jury must have been satisfied of all the facts that proved that the appellant was guilty of an offence of common assault committed in a circumstance of aggravation.  Specifically, it was satisfied that the jury must have been satisfied that the appellant assaulted S and that, at the time of the assault, the appellant was in a family and domestic relationship with her.[20]

   [20] Appeal Decision [243], [247].

5. Mr De-Abreu also alleged in the appeal that the complainants colluded with each other to falsely accuse him of the offences.  He also alleged collusion between the police and the complainants.[21] 

   [21] Appeal Decision [83].

6. The Court of Appeal said that the evidence adduced at trial fell well short of supporting any allegation of collusion between the complainants to falsely accuse the appellant of the alleged offences.  The court noted that defence counsel conceded that there was no evidence of collusion between the two complainants.[22]

   [22] Appeal Decision [85].

7. The Court of Appeal also said that there was no evidence that the investigating police officers colluded with the complainants to make false allegations against the appellant.[23]

   [23] Appeal Decision [87].

8. The appeal was dismissed. 

Conclusion

1. Mr De-Abreu has raised nothing of substance in the materials he filed in relation to the Certiorari Application or in his oral submissions that was not rejected by the Court of Appeal or which he could not have raised in his appeal.  In particular, Mr De-Abreu's allegations in relation to disclosure and the risk of collusion are in substance a reiteration of arguments that were expressly rejected by the Court of Appeal in dismissing his appeal. 

2. There is nothing to suggest an absence or excess of jurisdiction in the recording of Mr De-Abreu's convictions or in his sentencing.  Nor is there anything to suggest that any exercise of jurisdiction was procured by fraud.  Accordingly, even if there is the supervisory jurisdiction left open by the Court of Appeal in Ex parte Agapis, nothing has been identified that is capable of enlivening it.

3. In my view, by the Certiorari Application, Mr De-Abreu is seeking to launch a second challenge against the verdicts.

4. I consider that the Certiorari Application is a collateral attack on the convictions and is an abuse of process.

5. Therefore, leave to file the Certiorari Application is refused.

6. I further note that, even if I had considered that leave should be given to file the proposed application, I would have refused leave to proceed with it due to the delay.

The delay - a further reason

1. As noted earlier, the Certiorari Application was filed over three years out of time.  Mr De-Abreu accordingly requires leave to proceed.

2. Mr De-Abreu said that the delay had been caused by various matters.  These included:

   1.significant injuries he said he had sustained in 2013 which continued to affect him;

   2.the time it took him to learn that he could seek a judicial review; and

   3.difficulties in progressing matters due to being in custody.

3. In my view, that is an inadequate explanation for such a lengthy delay.

4. The power to extend time is one to be exercised in the interests of justice.  In my opinion, it would not be in the interests of justice for this matter to proceed. 

5. The Certiorari Application seeks to attack the convictions in circumstances where Mr De-Abreu's appeal against his convictions was dismissed.  The delay is very long and inadequately explained.

6. For these reasons, I refused leave to proceed.

Post-script

1. On 12 July 2021, the court registry received a letter from Mr De-Abreu dated 28 June 2021.  In that letter, Mr De-Abreu claimed he had not been advised that the hearing on 24 June 2021 would deal with both of his applications for leave to file applications for judicial review.  He claimed he was not prepared for it to deal with his Certiorari Application and did not have the necessary paperwork to answer the questions he was asked.  He said he needed a separate directions hearing to deal with his Certiorari Application.

2. Having reviewed materials on the court file, I am satisfied that Mr De‑Abreu was advised that both matters had been listed for hearing on 24 June 2021.

3. I also observe that Mr De-Abreu was advised by the court on 13 March 2019 that his Certiorari Application would not be accepted for filing and that if he wished to seek leave to file it, he would need to file a notice of motion and an affidavit in support.  Subsequently, Mr De‑Abreu filed two affidavits which purported to be in support of his Certiorari Application.[24]  Neither added anything of substance to the 'Writ' attached to his Certiorari Application.  The 'Writ' itself included extensive submissions in support of the proposed grounds.

   [24] See documents tilted as affidavits of Mr De-Abreu, one dated 2 April 2019 (received 31 May 2019), and the other dated 2 July 2019 (filed 5 August 2019).

   I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

   AG

   Research Associate to the Honourable Justice Archer

   15 JULY 2021