Fleet v District Court of NSW

[2000] HCATrans 255

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S197 of 1999

B e t w e e n -

DR ROBERT FLEET

Applicant

and

DISTRICT COURT OF NEW SOUTH WALES

First Respondent

ROYAL SOCIETY FOR PREVENTION OF CRUELTY TO ANIMALS

Second Respondent

LOUISE MARY PARKER

Third Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 JUNE 2000, AT 3.56 PM

Copyright in the High Court of Australia

_____________________

MR R. FLEET appeared in person.

GLEESON CJ:   Dr Fleet, there is a certificate from the Registrar saying she has been notified by the first respondent, that is the District Court, that that respondent will submit to any order of the Court save as to costs.

MR P.J. O’DONNELL:   May it please your Honours, I appear for the second and third respondents. (instructed by Smyth & Mallam)

GLEESON CJ:   Yes, Dr Fleet.

MR FLEET:   Just bear with me for just a moment.  I will say good afternoon, your Honours, and I will say thank you for considering my application.  I respectfully would like to draw your attention to page 3 in the applicant’s summary of argument, that is page 103 in the application book and I draw your attention to – it would be around about line 23, “The Applicant appeals”.  My application for leave, or special leave to appeal to the High Court of Australia is:

from some aspects of the Supreme Court of New South Wales Court of Appeal judgment (including Orders 2(a), 2(b) and 3) given on 8th October, 1999 and some adjudication rulings in relation to the…..Court of Appeal proceedings on 27th April 1999, 30th April 1999, 9th August 1999 and the 26th August 1999.

I just emphasise that the alleged 27A offence is not part of my appeal to the High Court.  The Court of Appeal has already dealt with this and you may be aware there is orders 4 and 5 – that is nothing to do with my appeal to you.  In other words, I am not appealing against the Court of Appeal order in relation to the alleged 27A offence.  The Court of Appeal have already ruled this aspect in my favour by way of order 4.

In the bundles of materials that I have supplied to the Judges, I supplied copies of the legislation.  It was section 65 and section 69 of the Supreme Court Act.  I just

draw your attention to that.  My legal action to the Court of Appeal was via a summons, in particular an amended summons, and via an affidavit.  And in the amended summons I will draw your attention to – I am just finding it in the application book at page 23, that was point (1).

In relation to my appeal to the High Court, I respectfully would like to draw the Court’s attention to the following examples – there is number one, I am talking at lines 10 to 15 on page 1 of my amended summons dated 20 November 1998.

GLEESON CJ:   Can I just get it clear before we go any further. You enjoyed a substantial measure of success in the Court of Appeal, but the aspect of the Court of Appeal’s decision of which you complain is their decision to remit to the District Court the proceedings against you under section 6(1)?

CALLINAN J:   The charge of cruelty, is that right?

MR FLEET:   What I am saying to you – that I was not allowed - with respect, your Honours, I was not allowed to present my case completely.

GLEESON CJ:   I understand that, but I am looking at the bottom line.

MR FLEET:   Sure.

GLEESON CJ:   The bottom line of all this is that you complain that the Court of Appeal remitted the section 6(1) charge to the District Court. You would like to produce the result that both charges against you are finished?

MR FLEET:   That is correct.

GLEESON CJ:   I just wanted to understand that.

MR FLEET:   Sure. That is right. So, I am looking at the alleged section 6(1) charge in the Prevention of Cruelty to Animals Act 1979. But if I had been allowed to present my case in an adequate and complete manner, there was two possible roads that one could go down. One was to get the whole lot – my first priority, or preference, was to get the whole lot quashed at the Supreme Court level. But there is the possibility that if they were not in agreement with me on that point, there is another road to go down via a new trial. But in not being allowed to present my case in an adequate and complete manner, there is a lot of issues pertaining to the Local Court matter where I submit to you that a denial of procedural fairness occurred there at that original ‑ ‑ ‑

CALLINAN J:   I apologise for interrupting you, but could I just ask you this: have you been supplied with any particulars of the section 6(1) charge at any stage?

MR FLEET:   There was a New South Wales Police Service fax sheet, if that is what you mean.

CALLINAN J:   No, I am thinking particularly about what the Court of Appeal said at pages 48 and 49, in which I took the Court of Appeal to be quite critical of the prosecuting authorities in laying the charge in the form in which it had been laid.

MR FLEET:   No.  Nobody has mentioned anything to me.  I have not received anything since the Court of Appeal, the judgment on 8 October, and I have not received anything.

CALLINAN J:   Mr O’Donnell, is it intended to continue to prosecute this charge?

MR O’DONNELL:   On my present instructions, your Honour, it is.

CALLINAN J:   I am sorry, Dr Fleet, but I just want to make sure what the controversy is.  Is it intended to give any particulars?

MR O’DONNELL:   Yes, it is, your Honour.  I can indicate they have not yet been given.

CALLINAN J:   But it is intended to continue with this, notwithstanding what the Court of Appeal said?

MR O’DONNELL:   Yes, notwithstanding what the Court of Appeal said in its judgment and I am certainly aware of the comments that were made, your Honour.

CALLINAN J:   Sorry, that is all I need to know.

MR O’DONNELL:   Those who instruct me do tell me that the matter is to proceed.

GLEESON CJ:   Yes, Dr Fleet.

MR FLEET:   I know that I only have a certain amount of time, your Honours, and what I am trying to say is that I do not believe I will be able to fit everything into the 20 minutes.  One of the main aspects – if I can draw your attention to - it was lines 10 to 15 on page 1 of my amended summons dated 20 November 1998 to the Court of Appeal.  That was in the application book on page 23.  I can also take you to another part of the application book at page 31.  But what I am trying to get at is, that it is the judgment delivered by District Court Judge Karpin.

It is nice to get the orders quashed, but it goes further.  I perceive the judgment to include the reasons for the decision, the decision and the orders.  I want the whole lot quashed.  I believe that it is wrong for it to stand and I have in my submission today to you, if I can just – I was going to make a submission on issue 6 in the application book.

CALLINAN J:   But not one of her Honour’s orders stands, is that not right?  There is a stay, I know it is a stay ‑ ‑ ‑

GLEESON CJ:   Dr Fleet, a Court of Appeal cannot quash reasons for judgment.  A Court of Appeal could only quash a decision.

CALLINAN J:   And so far as her decision is concerned, you seem to have had 100 per cent success.  Not one of her orders either remains on foot or is enforceable.  You have a stay in respect of the 27A proceedings and everything else is gone.  Everything she ordered is gone.

MR FLEET:   But, your Honours, if I can take you to - the principles of natural justice include the right to be judged by an unbiased tribunal or court.  I submit that there has been an apprehension of bias or actual bias by District Court Judge Karpin against myself.  And I requested on 10 September 1998 for District Court Judge Karpin to disqualify herself immediately from any further participation in the case.  On that particular day, she refused to disqualify herself.

GLEESON CJ:   We are going to give you an extension of time for five minutes because you have been interrupted and because I want to explain something to you that you do not seem to understand, and I want you to listen carefully.

The Court of Appeal had jurisdiction which it exercised to quash the orders made by Judge Karpin.  The Court of Appeal had no jurisdiction to obliterate her reasons for judgment.  As Omar Khayyam said, “The moving finger writes and, having writ, moves on.  Not all thy piety nor wit can lure it back to cancel half a line, nor all thy tears wash out a word of it.”  There is nothing the Court of Appeal could have done to expunge the reasons of Judge Karpin.  The Court of Appeal had the power to expunge her decision, and that is what they did.  If your complaint is that you want to get rid of Judge Karpin’s reasons, that cannot happen.

MR FLEET:   If I may respectfully say, your Honour, it is the judgment, including the reasons for decision and the orders.  It is my understanding that the Court of Appeal only quashed the orders.  That was my understanding.

GLEESON CJ:   That is what I am trying to explain to you.

MR FLEET:   But the decision ‑ ‑ ‑

GLEESON CJ:   No.  The reasons she gave for her decision cannot be obliterated.  The Court of Appeal had no power to say, “Burn that piece of paper”.

MR FLEET:   Again, if I may say, it is riddled with – I hope that you do not mind me saying it is riddled with – it is a litany of lies, or relevant ‑ ‑ ‑

CALLINAN J:   But the Court of Appeal obviously regarded her Honour’s reasons as unsatisfactory.  They are heavily criticised by the Court of Appeal and, accordingly, all of the orders that she made were reversed, so that one would not read her reasons in a vacuum.  They have been criticised effectively - judicially criticised by the Court of Appeal.

MR FLEET:   I am thankful for that.

CALLINAN J:   What the Chief Justice is telling you is, you are really asking us to do something that neither the Court of Appeal could do nor can we do.  We just cannot do it.  You are really asking for something that cannot be done.  Do you understand that?  I know you are unhappy about it, doctor.

MR FLEET:   I hear where you are coming from.  I was very aggrieved.  But if I can say, in Livesey’s Case – Livesey v The New South Wales Bar Association in 1983 ‑ ‑ ‑

CALLINAN J:   We are familiar with that case and a lot of other cases to the same effect, but if you would just listen to me.

MR FLEET:   Sure.

CALLINAN J:   We cannot do what you are asking us to do, any more than the Court of Appeal could do.  It just cannot be done as a matter of law.

MR FLEET:   May I respectfully - did you read Reverend Alan Jackson’s affidavit dated 4 November 1999?  I know it is not in the application book but that is important in the case to you.

CALLINAN J:   It does not matter what that affidavit says.  We cannot do what you are asking us to do.  We just cannot do it.  As a matter of law, we cannot do it.  It is futile for you to ask us to do something we cannot do.  I know you do not like it, but it cannot be done.

MR FLEET:   There are so many – in issue 4, for an example – I say in a respectful way, President Mason made a ruling on Tuesday, 27 April 1999 last year, and then the first hearing date was on that Friday, 30 April 1999, and he refused me leave.  I needed witnesses via subpoena, for an example, to present my case in an adequate and complete manner.  So I needed that evidence – that was pertaining to – I do not mean the whole re‑running of the case, but I mean just pertaining to the ‑ ‑ ‑

CALLINAN J:   You have all the relief that it was possible for the Court of Appeal to give you.  The Court of Appeal did not have power or jurisdiction to give you more than you got.

MR FLEET:   If I could present the case to you that, if we go back to the source, meaning the Local Court hearing at Blacktown Local Court on 2 October 1997 – what I wanted to present to you, there was certain, say, situations there which were a denial of procedural fairness at that source. Now, that flowed through to the District Court and, in my opinion, through to the Court of Appeal. So, under section 23 of the Supreme Court Act, it would have been – again, if I may suggest to you that it would have been possible for the Court of Appeal, having jurisdiction over the whole of New South Wales, could have gone back to the Local Court hearing on that day that I mentioned, 2 October 1997, and that denial of procedural fairness at the source, at that Local Court hearing.

If I may just take you through to – the example I wanted to say to you - this is one of the examples, not the only example – on this day – I am taking you back now to the Blacktown Local Court to the hearing on 2 October 1997.  There were eight statements that were served or given to Mr Packer and myself on that particular day at Blacktown Local Court.  Now, some of those statements came to the defence just prior to the court hearing on that day and some statements apparently came during the hearing on that day.  For example, the RSPCA statements apparently came to the defence during the hearing.  And I may I respectfully draw the Court’s attention to lines 39 to 41 on page 3 and lines 1 to 4 on page 4 of the Blacktown Local Court transcript dated 2 October 1997.  That would be in the bundle of materials that I gave before to the Judges.

Now, I submit that it was a relatively very short period of time during the hearing on that day that was available to Mr Packer for him to read all the statements.  I was with Mr Packer during the time.  He needed my input and I submit that I was not - and I hope that you will believe me on this point, and it is true, it was not physically possible for me to even read, understand and analyse all these statements at that time – it was a relatively very short period of time and the hearing had already formally commenced.  So - let alone to help prepare one’s case in an adequate and complete manner.  In other words, it was not a reasonable opportunity to prepare my case before being called on to present it, and I submit that a breach of the rules of natural justice occurred in relation to my case at Blacktown Local Court on 2 October 1997, and that is one aspect.  I have given you the case Reg v Thames Magistrates’ Court 1974.

There was another instance on that same day.  There was a breach of the Evidence Act on that particular day, and if I can just take you to that aspect - in particular, section 33, “Evidence given by police officers” - of the Evidence Act 1995. And the RSPCA inspector, Inspector Dymond, was sworn in and examined in Blacktown Local Court to give oral evidence in court. And he was allowed to read a statement, of which his particular statement came to us during the court hearing on that day. I have put the first page of that statement in those bundle of materials for you, coming in under “Other Material”. But it says his full name is Graeme William Dymond, he is a special constable. He is sworn in as Graeme Kenneth Dymond. He is allowed to then read this document to the court as evidence going on to the court record. Now, if I can take you to section 33 of the Evidence Act that I just mentioned at subsection (2)(c):

Evidence may not be so given unless:

(c) a copy of the statement had been given to the person charged or to his or her lawyer a reasonable time before the hearing of the evidence for the prosecution.

I am taking Inspector Dymond to be the equivalent of a police officer because he states that he is a special constable, and if we come in under section 103 of the Police Offences Act 1901 New South Wales – and I have supplied that in the bundle of materials to you – that he has the equivalent status of the police officer. So, I am saying that coming in via section 33 there has been a breach of the Evidence Act.  We have not been allowed – when I say “we”, prior to that hearing, on 28 August 1997, I had tried for a relatively very long time to try and achieve legal representation.  That was via pro bono.  And I eventually was able to – Dr Greg Woods, QC at that time - I know he has moved on from that but he was a criminal law barrister at the time, and he agreed to go in to represent me.  I approached the court on 28 August 1997 with the available dates and may I ‑ ‑ ‑

GLEESON CJ:   Yes, you have another five minutes.

MR FLEET:   So, Dr Greg Woods, QC had a number of available dates, so I appeared in court but he did not appear on that day.  The number of available dates for Dr Greg Woods, QC, were supplied to me; however, he could not appear on 2 October 1997 because he had already had another case on that day and naturally he cannot be in two places at once.  So, I tried to get them to switch the date to another time, bearing in mind this was an application for AVOs and the opposing party, the Blacktown Local Court, put it on the same day as 2 October.  I was essentially left without – they ruled that they would not allow me to move it from 2 October 1997, so I was left without legal representation and it was due to Reverend Geoff Stephenson who, just prior to 2 October 1997, managed to get somebody to just come in and speak.  So, essentially, again, the case was not presented in an adequate and complete manner.

I was effectively left without legal representation on 28 August 1997.  And there were breaches in the Evidence Act and the denial of natural justice on 2 October 1997 at the Blacktown Local Court, as I have mentioned – all those statements coming in on the day of the hearing and some during the hearing and the breach of the Evidence Act, which I have mentioned.  I do not believe it was – I believe it was a denial of natural justice and/or a denial of procedural fairness on that day.

I believe that either under the court’s inherent jurisdiction or that section 23 of the Supreme Court Act 1970, that the Court of Appeal would have the jurisdiction to go back and deal with this matter at the Blacktown Local Court. But they took it out of my hands when I went on the first hearing day on 30 April last year, that is the first hearing date for the Court of Appeal hearing, and I started to address the court and it was just taken out of my hand. I was not allowed to present that case in an adequate and complete manner. I was not allowed to address the court. And they chose to go down a different path. I did not want to upset anybody. I wanted to fit in with how the court wanted to do it, and I stand by what I said. But still, some of the issues were not only not addressed, but I was not allowed to present them, and I think there is a valid grievance.

And I hear what your Honours said earlier on but they still had the jurisdiction to go back to that Blacktown Local Court.  It should have been quashed there, the whole charge should have been quashed.  If I take you to – this is the matter to the High Court now – in issue 12 regarding the abuse of process, I believe that that goes back to the Blacktown Local Court matter, bearing in mind I had AVOs out against two of the police officers who broke and entered into my home without reasonable probable cause and without a warrant.

GLEESON CJ:   Now, can I ask you a question before you conclude.  In the event that you fail in this application, have you any reason to offer as to

why you should not be ordered to pay the costs of the second and third opponents?  I notice that you got an order for costs against them in the Court of Appeal.

MR FLEET:   I think it would be gravely – there is already a grave injustice in it.  I am innocent in relation to these charges and I say that in a genuine, honest manner, and to think that those people can make money - looking on the negative side, if you were to dismiss this and order costs against me, that means they are already telling their lies and the fabrication of evidence that has gone on, and it would be a further grave injustice.  And I respectfully ask that costs be not – I do not know how I would ever meet them ‑ ‑ ‑

GLEESON CJ:   Thank you, Dr Fleet.  Take a seat.

CALLINAN J:   Mr O’Donnell, just speaking for myself and only for myself perhaps, your client will give anxious consideration to whether any more expense and public time should be expended on the demise of Jason perhaps.

MR O’DONNELL:   I think that is so, your Honour, yes.

GLEESON CJ:   Yes.  Take a seat, Mr O’Donnell.

Having read the written arguments advanced on the part of the applicant and listened to his oral argument, it is difficult to resist the conclusion that in large measure this application has resulted from a misunderstanding on his part of the nature of the jurisdiction and the powers available to the Court of Appeal.  In particular, he appears to confuse a judgment and reasons for judgment and to be under the misapprehension that it was open to the Court of Appeal, in some way, to expunge or obliterate the reasons for decision of Judge Karpin.  The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter.  The application is refused with costs.

We will adjourn.

AT 4.26 PM THE MATTER WAS CONCLUDED