Exner v Howe

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0119

BYRON EXNER	Applicant
v
PAUL HOWE VIC POLICE	First Respondent
COUNTY COURT OF VICTORIA	Second Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	21 May 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 101
JUDGMENT APPEALED FROM:	[2023] VSC 603 (Keogh J)

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ADMINISTRATIVE LAW – Judicial review – Applicant convicted of 2 charges of trespass contrary to s 9(1)(e) of the Summary Offences Act 1966 – Applicant sought judicial review of convictions – Judicial review proceeding devoid of merit – Judicial review proceeding dismissed – Application for leave to appeal dismissal of judicial review proceeding – Proposed appeal having no prospect of success – Application for leave to appeal totally without merit – Application for leave to appeal refused.

Supreme Court Act 1986, ss 14C and 14D.

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Counsel
Applicant:		Unrepresented
First Respondent:		Ms S Clancy
Second Respondent:		No appearance
Applicant:
First Respondent:	Ms A Hogan, Solicitor for Public Prosecutions
Second Respondent:	No appearance

BEACH JA:

Between 2009 and 2017, Byron Exner (‘the applicant’) was in an intimate relationship with a person I will refer to as ‘the complainant’. There are two children of the relationship. The relationship ended acrimoniously. At various times after the relationship ended, the complainant obtained family violence intervention orders against the applicant.
In March 2020, the applicant was charged with two offences under s 9(1)(e) of the Summary Offences Act 1966: namely, that he entered a private place without authority or excuse. The charges alleged that on 21 and 24 December 2019, the applicant entered the rear yard of the complainant’s home ‘without express or implied authority from the owner or any lawful excuse’. At the same time as he was charged with these offences, the applicant was charged with the offence of stalking under s 21A(1) of the Crimes Act 1958, and three charges of contravening a family violence intervention order.
On 23 April 2021, the applicant was found guilty of the two trespass charges and two of the three charges of contravening a family violence intervention order. The magistrate sentenced the applicant to a total effective term of imprisonment of 4 months and declared that 129 days of that sentence had already been served as pre-sentence detention.
The applicant appealed to the County Court on both the conviction and sentence. The appeal was heard by Judge Riddell (‘the primary judge’) on 14 and 15 July 2022. The applicant was represented by solicitor and counsel.
At the commencement of the appeal, the prosecution withdrew the two charges of contravening a family violence intervention order. The prosecution case consisted of the evidence of the complainant; an agreed statement of facts; screenshots of what were said to be text messages sent between the applicant and the complainant; and the applicant’s record of interview, conducted by the informant on 9 March 2020. The applicant did not call or give any evidence.
At the conclusion of the evidence, the primary judge delivered detailed reasons for convicting, and convicted, the applicant of the two charges of trespass.[1] Her Honour resentenced the applicant to a total effective sentence of 37 days’ imprisonment. It was again declared that the applicant had in fact already served 129 days of pre-sentence detention.
[1]Exner v Howe (Unreported, County Court of Victoria, Judge Riddell, 15 July 2022) (‘Primary Reasons’).
On 1 September 2022, the applicant filed an originating motion for judicial review. In the originating motion, the applicant asserted, amongst other things, that evidence given by the complainant was false; one of the text messages relied upon by the County Court was not a text message, but a note on the applicant’s phone; CCTV footage which had been tendered was false; evidence relied upon by the court was both false and wrongly interpreted; and various documents (including the complainant’s social security records and copies of the applicant’s tax returns) would prove the falsity of the complainant’s evidence. That said, the ground relied upon for judicial review was expressed as follows:
The judgment was made without proper examination and consideration of the evidence presented to the court. As a result a ruling and judgment was based on false and misleading evidence given under oath by the complainant. I seek a review to determine a finding of not guilty or rehearing.
The judicial review proceeding was heard in the Trial Division of the Supreme Court on 6 October 2023 by Keogh J (‘the review judge’). The applicant appeared in person. On 12 October 2023, his Honour dismissed the proceeding.[2]
[2]Exner v Howe [2023] VSC 603 (‘Review Reasons’).
On 13 November 2023, the applicant filed an application for leave to appeal to this Court. The proposed grounds of appeal, as set out in that document, are somewhat incoherent, albeit they make the following points:
(1)‘The Victorian legal system makes mistakes’.
(2)‘Victorian police procedure and policy is not law’.
(3)The applicant’s matter was investigated and processed by an inexperienced police officer; and the applicant was arrested, interviewed, charged and remanded in custody due to his lack of experience.
(4)There were avenues of enquiry presented to the informant from a statement he took from the complainant. These were not pursued ‘but police policy and procedure required it and the law demanded it’.
(5)The current system allows a person to make false allegations without evidence and which lead to an arrest, interview and charge ‘under the pretext or suggestion of Family Violence’.
(6)Before a person can be charged and punished for an offence, evidence must be gathered and appropriately dealt with. This did not happen in this case.
Amongst the text of the applicant’s proposed grounds of appeal is a statement:
All I want is JUSTICE not revenge.
At the same time as he filed his application for leave to appeal, the applicant filed a written case in support of his application. The written case could not be described as conventional. Rather than identifying alleged errors and advancing argument in support of particular grounds of appeal, the written case is a mixture of assertions of fact and propositions contesting the accuracy or correctness of particular statements in the Review Reasons. For example, in the written case, the applicant appears to dispute that he was in an intimate relationship with the complainant from 2009 to 2017. He variously appears to assert that:
•he had a brief relationship with the complainant in late 2009 and early 2010, and a ‘one-night stand’ in 2014, otherwise attempting ‘to maintain a friendship’ with the complainant;[3] alternatively
•he was in an intimate relationship with the complainant from 2009 to 2014, remaining friends until 2016.[4]
[3]Paragraph [1] of the applicant’s written case.
[4]Ibid, paragraph [14].
In another statement in the written case, the applicant asserted:
I did not enter the premises as a trespasser, I went there with good intentions, it was a social visit on the 21^st of December 2019.[5]
[5]Ibid, paragraph [15].
In addition to statements of the kind referred to above, the written case concluded with paragraphs referring to something called (in block capitals) a ‘reasonable mans (sic) theory’. The primary judge’s finding of fact regarding the complainant’s evidence and various paragraphs of the Review Reasons are said to be:
Total contradiction with application of a REASONABLE MANS THEORY (sic).
The written cases finished with the sentence, ‘It can be proven that [the complainant’s] accusations were false if a fair and proper investigation and court proceedings had accrued’.
Pursuant to r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), the Registrar of the Court of Appeal has referred the application for leave to appeal to a single Judge of Appeal for it to be considered and dealt with under r 64.15. Upon the Registrar’s referral, I considered that it was neither necessary nor desirable to have an oral hearing of the application.[6]
[6]See rr 64.15(2) and (5) of the Rules, and s 14D(1) of the Supreme Court Act 1986.

Section 9 of the Summary Offences Act

Section 9 of the Summary Offences Act relevantly provides:
(1) Any person who —
…
(e)without express or implied authority given by the owner or occupier … or without any other lawful excuse, wilfully enters any private place … , unless for a legitimate purpose;
…
shall be guilty of an offence.
Penalty:25 penalty units or imprisonment for six months.
…
(1C)Without limiting paragraph (e) of subsection (1), examples of circumstances in which a person does not have express or implied authority to enter a place are —
(a)the person enters that place after having been previously warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or
(b)the person enters that place despite being then warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier;
…
and the person has no other lawful excuse for entering that place.

Primary Reasons

After setting out the relevant parts of s 9 of the Summary Offences Act, the primary judge noted that what was alleged against the applicant was that he ‘twice attended the property occupied by his former partner’. Her Honour then said:
The issue is whether he did so wilfully as a trespasser or with express or implied permission to enter, and, if he did attend without permission, whether the prosecution have established that he did not have a lawful excuse or legitimate purpose for his attendance.
As part of a detailed description and summary of the evidence, her Honour referred to the complainant’s evidence of having told the applicant, in person, by phone, and by text, that she did not want him at her premises.
In the course of the Primary Reasons, the primary judge set out the texts relied upon by the prosecution; described the CCTV footage which showed the applicant at the complainant’s premises on both 21 and 24 December 2019; referred to the complainant’s denials in cross-examination that she had not revoked permission she had previously given the applicant to ‘come to [her] house … to pick up [the children]’; and considered, and set out, a number of the applicant’s answers in his record of interview.
The primary judge’s reasons for convicting the applicant are a model of clarity and detail. They repay the reading of them. Having noted the elements of the offence with which the applicant was charged, and having observed that the issues in the case were factual matters for her to determine, the primary judge said:
I am satisfied on the basis of the 14 September 2017 text message that [the complainant] gave limited permission to the accused to attend at the property for the purpose of picking up the children. I am satisfied that her intention was not to include a right to come onto the property for that purpose. She makes plain by her comments, ‘Don’t step foot inside my house’, ‘Don’t put your head inside my house’, ‘I don’t want to see or hear you’, that there is a limit on that permission.
Although a common sense approach would suggest picking up the girls would involve attending in the street or in the driveway and no more, I accept that the permission to ‘come to my house’ may have been open to interpretation. However, I am satisfied on [the complainant’s] evidence that on occasions between early to mid-2017 and October 2017, when the accused had attended at the house for the purpose of seeing his daughters, the visits had ended badly. As a result, [the complainant] had not only told the accused that she did not want him at the house but made efforts to ensure the accused did not attend at her house.
When making arrangements for him to see the children, she told him she did not want him at her house and would then meet him in a public setting. This was a demonstration of her desire that he not attend and, in that way, also communicated to him the lack of permission to do so. In my view, her desire to limit his attendance at her premises was reiterated by her obtaining an intervention order in December 2017 which positively prohibited him from being within 100 metres of the property.
I accept [the complainant’s] evidence that she had told the accused a number of times, in person and on the phone prior to October 2017, that she did not want him at her house. I found [the complainant] to be a matter-of-fact witness who was both truthful and reliable, and I accept her evidence on that point. At no time between then and December 2019 had the position changed. In fact, [the complainant] stated in evidence that the state of the relationship was worse as at the December 2019 period. That animosity is apparent from the accused’s own behaviour in the car on the day in the lead-up to his attendance at the premises.
…
For completeness, I note that any authority to collect personal belongings was limited to a two-week window in 2017 and was long expired. For clarity, I find beyond reasonable doubt that there was no express or implied authority given by [the complainant] for Mr Exner to attend the property as at December 2019. I am satisfied beyond reasonable doubt that any earlier limited permission to do so had been revoked by [the complainant] a long time prior. In my view, the factual circumstances here are of the kind contemplated by s 9(1C)(a), namely that he was previously warned not to enter.
Turning to the accused’s state of knowledge, I am satisfied that he was aware he had no authority to be present on the property. I reach that point of satisfaction on the basis, firstly, of the communications made to him, secondly, on the basis of what he said in his record of interview. In particular when asked whether he would be welcome at the premises, he said: ‘As far as [the complainant] goes, no, no.’
I do not accept the argument that saying he would not be welcome is not an acknowledgement of the lack of permission to attend. In my view, when read in context, that is what he is acknowledging. The accused also reiterated a number of times that he knew [the complainant] was not at the house at the time he attended, which in my view supports my interpretation of his comments that he knew he would not be welcomed by her if she was present, that he did not have her permission to be there.
At no time during the interview did he say he had permission to attend or protest when the informant put to him that he should not be there. For example, when the informant said: ‘But if you knew that you weren’t supposed to be at the address, why did you go there?’ He answered: ‘To give them the cards.’
At the very least, I find the accused is reckless as to any authority to attend, that is, he believed that it was probable, not simply possible, that he had no right or authority to enter onto the premises.
In the interview, he said, in answer to the question, ‘So why did you go there that day?’:
I went there to see if I could see my girls. I wasn’t thinking about court orders. I wasn’t thinking about — you know, all I was thinking about is wanting to see my little girls.
I am satisfied he knew it was probable that he had no right to enter onto the premises but did so regardless.
Turning to consideration of whether the prosecution have proven that the accused had no other lawful excuse for being at the premises or legitimate purpose for his attendance, I must endeavour to give meaning to both of those phrases, though there may be at least some overlap. A lawful excuse connotes a legal reason for being present. Some examples were given in the High Court decision of Barker v The Queen, such as a paramount right to possession, some other statutory or common law right of entry, or involuntary and inevitable accident.
‘A legitimate purpose’ is a broader term. Looking at the various online dictionaries, it means an acceptable reason or conforming to or being in accordance with recognised or acceptable rules or standards, being valid or justifiable. The reason proffered by the accused in his record of interview is twofold: primarily, that he is attending on both occasions to see his daughters, including on the first occasion to give them the cards, secondly, to see what property of his was at the premises.
The accused contradicts himself a number of times in the record of interview, saying on the one hand he wanted to see the children and on the other that all he wanted to do was deliver the cards, at other times that he wanted to see what property was there. Those are not legal reasons or lawful excuses for being present. Nor, in my view, are they legitimate purposes, even taking that term broadly.[7]
[7]Primary Reasons, T 91.32–T 96.1.
Her Honour then made a number of further observations about the applicant’s conduct, before finally concluding that she was satisfied that the prosecution had proven beyond reasonable doubt that the applicant had no lawful excuse or legitimate purpose for being on the complainant’s premises, and that the two charges had thus been proved.

Review Reasons

In the course of setting out the procedural history, a summary of the primary judge’s reasons and the applicant’s submissions in the judicial review proceeding, the review judge identified the applicant’s arguments and submissions as follows:
(1)Critical evidence given by the complainant, and relied upon by the prosecution, was false and should not have been acted on by the primary judge.
(2)The alleged text message sent by the complainant on 14 September 2017 was false. Its lack of authenticity was obvious on its face and, despite the lack of any challenge by his counsel during the hearing before the primary judge, it should not have been accepted by her Honour as evidence of a text message sent by the complainant to the applicant.
(3)The CCTV footage allegedly showing the applicant at the complainant’s premises on 21 and 24 December 2019, despite its tender by consent before the primary judge, should not have been admitted into evidence. The footage had not been obtained by the informant direct from a hard drive, but was downloaded, doctored and false. The CCTV footage ‘was in extreme slow motion and there was a significant difference in clarity between the footage and still shot images’; the footage had been doctored, in that the dates had been changed; and ‘there was no accurate continuity of the evidence’.
(4)The primary judge was wrong to admit the applicant’s record of interview into evidence, without the attendance of the informant to prove the document. Moreover, her Honour was wrong to construe the content of the interview as an acknowledgment by him that he did not have permission to attend the complainant’s premises.
(5)The investigation by the informant and the prosecution of the charges was inadequate in important respects.
(6)The applicant’s lawyers who appeared before the primary judge did not follow the applicant’s instructions and were incompetent.[8]
[8]Review Reasons, [4], [19], [27]–[29].
In what might be described as an understatement, the review judge commenced his analysis by saying that it was very difficult to understand the logic of the applicant’s challenge to the primary judge’s decision.[9] In the hearing before his Honour, notwithstanding the challenge the applicant sought to make to the admission of the CCTV footage showing him at the complainant’s premises on 21 and 24 December 2019, the applicant accepted that he was in fact so present at those premises on those days. Indeed, he could hardly do otherwise in relation to 21 December 2019 when the applicant left two cards for his children inside the back door of the applicant’s home (a matter which he also admitted in his record of interview).
[9]Ibid [30].

Having observed the difficulty in the logic of the applicant’s position in the review proceeding, the review judge noted the following exchange which he had with the applicant during the course of the hearing:
On the basis of that evidence, how could the trial judge have come to any other conclusion but that you didn’t have authority to attend the premises?---Because I went to the premises to actually seek permission to be at the premises, but there was no-one home.[10]
[10]Ibid.
In the Review Reasons, the review judge dealt with, and rejected, each of the applicant’s arguments and submissions.[11] It is not necessary to set out the detail of what his Honour said. In summary, the review judge:
•noted that the applicant did not object to the tender before the primary judge of the September text exhibit, the CCTV footage or the record of interview;
•noted that there was no challenge by the applicant before the primary judge to the authenticity of any of these exhibits;
•observed that the record of interview was tendered after counsel appearing for the applicant reached a specific agreement with the prosecutor that it could be tendered without the need for the informant attending and giving evidence;
•noted that the applicant’s counsel at the hearing before the primary judge relied on the September text exhibit to demonstrate that, at that time (September 2017), the complainant had consented to the applicant attending her premises for the purpose of collecting their children; and
•concluded that, in any event, the primary judge placed little (if any) reliance on the September 2017 text exhibit — there being ample evidence supporting the primary judge’s conclusion that the complainant had not given any express or implied authority to the applicant to attend her premises as at December 2019.[12]
[11]Ibid [33]–[45].
[12]Ibid [34], [35], [38].
After rejecting the applicant’s remaining arguments, the judge noted that the applicant was bound by the forensic decisions made by his counsel in the conduct of the appeal before the primary judge, including counsel’s failure to make any complaint about the deficiencies or otherwise in the conduct of the investigation by the informant. As to this latter argument, the judge said that, in any event, even if the argument had been made by the applicant’s counsel before the primary judge, ‘it would have been without basis’.[13]
[13]Ibid [45].

Consideration

Sometimes, following a trial, it is possible to identify grounds upon which a proceeding for judicial review might have some prospect of success (however remote). The present proceeding, however, is not such a case. The judicial review proceeding was, for the reasons given by the review judge, totally devoid of merit. Each of the applicant’s arguments made during the course of it were foredoomed to fail for the reasons given by the review judge. It follows that an appeal to this Court from the orders of the review judge has no prospect of success.
More fundamentally, a detailed examination of both the conduct of the appeal before the primary judge, and the primary judge’s reasons, discloses no possible basis upon which the applicant could have been granted judicial review of the primary judge’s decision. The applicant’s arguments in support of his application for judicial review (both before the review judge and in this Court) do not provide any basis upon which he could succeed in overturning the primary judge’s decision. Indeed, when one examines all of the evidence called before the primary judge, it is very difficult (if not impossible) to see how her Honour could have arrived at any conclusion other than that the applicant was guilty of the offences for which he was charged.
While the applicant might now have complaints about the way in which his lawyers conducted the appeal before the primary judge, that is no basis upon which he could successfully seek to have his convictions set aside.
In any event, even if the appeal had been conducted in a way the applicant now says that he would have wished for it to be conducted, there is no basis upon which one might conclude that a different outcome might have been achieved. The evidence of the complainant alone well justified a conclusion, beyond reasonable doubt, that the applicant was guilty of breaching s 9(1)(e) of the Summary Offences Act on 21 and 24 December 2019 when he attended her home without authority, lawful excuse or a legitimate purpose.
Moreover, there is nothing to suggest that any more detailed investigation by the informant and the prosecution might have led to some different result. Broad assertions of the kind referred to in [9] to [14] above are entirely unpersuasive and do not provide any basis upon which this Court might overturn the findings or conclusions of either of the courts below in circumstances where no materially relevant error has been identified, much less established.
The applicant’s proposed appeal having no prospects of success, leave to appeal must be refused.[14] For the above reasons, in addition to refusing the applicant’s application for leave to appeal, I have determined that the application is ‘totally without merit’ within the meaning of s 14D(3) of the Supreme Court Act 1986.[15]
[14]See s 14C of the Supreme Court Act 1986.
[15]By reason of s 14D(3), the determination that the application for leave to appeal is totally without merit precludes the applicant from any right to apply to have the dismissal of his application for leave to appeal set aside or varied.

Conclusion

The application for leave to appeal will be refused.
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[2024] VSCA 101

21 May 2024