FB v Paule
[2022] ACTCA 9
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | FB v Paule |
Citation: | [2022] ACTCA 9 |
Hearing Date(s): | 16 March 2022 |
DecisionDate: | 16 March 2022 |
Before: | Elkaim J |
Decision: | The appeal filed on 14 September 2021 is dismissed. |
Catchwords: | CRIMINAL LAW – APPEAL – application to dismiss incoherent case |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5472, 5604 Supreme Court Act 1933 (ACT) s 37J |
Parties: | C Paule ( Applicant) FB ( Respondent) |
Representation: | Counsel K McCann ( Applicant) Self-represented ( Respondent) |
| Solicitors ACT Director of Public Prosecutions ( Applicant) Self-represented ( Respondent) | |
File Number(s): | ACTCA 46 of 2021 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court of Appeal Before: Mossop J Date of Decision: 13 September 2021 Case Title: FB v Paule Citation: [2021] ACTSC 213 |
Elkaim J
In this matter I am sitting as a single judge of appeal pursuant to s 37J of the Supreme Court Act 1933.
On 17 November 2020 Magistrate Taylor convicted the respondent of the offence of damaging property contrary to s 403(1) of the Criminal Code 2002. The magistrate acquitted the respondent of a separate charge of making a threat to kill.
The respondent appealed from his conviction. The appeal was decided by Mossop J on 13 September 2021 (FB v Paule [2021] ACTSC 213). The appeal was dismissed.
On 28 September 2021 the respondent filed a notice of appeal from the orders made by Mossop J.
On 14 December 2021 the applicant filed an application in proceeding seeking an order that the appeal be struck out as incompetent. This application was amended on 11 February 2022. Under the amended application the applicant requests an order that the appeal be dismissed pursuant to r 5604 of the Court Procedures Rules 2006.
The respondent did not appear at today’s hearing. I am satisfied that he was served with the application and related documents and was aware of the hearing date. In fact he was in court on 16 February 2022 when today’s date was set. In addition the applicant recently emailed the respondent an extra copy of the relevant documents. Normally I would adjourn the matter to give him a chance to appear. However in this case the application is so overwhelming that I think it appropriate to proceed.
The applicant relies on two subrules of r 5604, namely (c) and (b). Although the order under subrule (b) is put forward as an alternative, in my view it is directly applicable and justifies the order sought.
Rule 5604(b) permits a single judge to dismiss an appeal because “the notice of appeal does not contain any coherent or arguable ground of appeal”.
To describe the notice of appeal as incoherent is to give it a compliment it does not deserve. Here are some excerpts from the notice of appeal and grounds of appeal:
No justice rather conflict of known international conflict of interest
Court order my appeal was dismissed unfairly evidently with no investigations and based his decision on a conflict of interest ignoring all hard evidence were giving before Judge Taylor the matter caused the appeal, judge David after reading and absorbing each of his points after reading all my fallowing (sic) comments to his point will appear so clear how much of conflict and constitution contradicts and how a judge can only view ons (sic) sided of a story and judge clearly an innocent citizen please read my submitted story to confirm evidently my claim. Please read to the end find out how our constitution can be suddenly change to favour two evidently corrupted police officers and how all evidence kept hidden to this point Dismissing my appeal and that was all of it.
…
So I was not only subliminally concluded rather blatantly and in court as well by DPP Lucero covering Serbatio by magistrate Taylor please read day one and day two cross examinations consented by Judge David And Sign by Judge Abraham what a consequences blatant not subliminal I can also conclude the blatant match of interest between the two DPP Lucero whom to be Italian and Sergeants Serbatio whom also to be Italian and siding each other on victim’s life my self then some how my judges would also from international conflict I am Muslim from my name (FB) and Judge DAVID and Judge ABRAHAM which is the Jewish virgin of (F) the Muslim name won’t need intelligent to understand why the whole world can understand the result of such conflict of interest no further investigation was taken in consideration rather the continuation of the two officers fabricated report and the step son whom proven lire (sic) throughout evidently the cross examination And evidently my religion was used against me in my case and surely I will prove my innocence in the court of appeal also Ex Partner happened to be a Muslim and again was denied to say the truth because she had to put her cover up before she went out of the house by the consent of Judge Taylor.
…
I am a Muslim and my ex and whole incident are Muslim family and Mr Abraham and judge David are both Jewish and it is international conflict not today conflict between both party and surely the one with power will vanish the one without power regardless the facts and that is what is call conflicts of interest.
The respondent is self-represented. He must be given a degree of latitude to cater for this circumstance. But the applicant is entitled to know what the appeal is about. The applicant could have no clue of the case it has to meet based on the notice of appeal.
It might be thought harsh to dismiss an appeal brought by a self-represented litigant. But it must be remembered that there has already been an appeal, to Mossop J, which was given careful consideration and was productive of comprehensive reasons.
If the respondent does have a valid grievance arising from either the decision of the magistrate or that of Mossop J, that grievance cannot be discerned from the notice of appeal or the submissions filed on 10 February 2022, apparently in support of his appeal.
I am satisfied that r 5604(b) applies and that the appeal must be dismissed.
Finally I would like to emphasise what I, together with Anderson J, said in ZA v Director-General, Community Services Directorate (No 4) [2022] ACTCA 6 at [33], to the effect that appeals from appeals can frequently be a “waste of time and resources” and should be subjected to a leave requirement.
I make the following orders:
(a) The appeal filed on 14 September 2021 is dismissed.
(b) The Registrar is directed to email a copy of decision to the Respondent.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
Amendments
16 March 2022 Deletion of “at” Paragraph: [5]
Replace “Procedure” with “Procedures” Paragraph: [5]
18 March 2022 Replace “to” with “two” Paragraph: [7]
Replace “respondent” with “applicant”. Paragraph: [10]
Replace “respondent” with “applicant”. Paragraph: [10]
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