Gilfillan v County Court of Victoria

[2001] VSC 360

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6350 of 2000

SIMON TIMOTHY GILFILLAN	Plaintiff
v
THE COUNTY COURT OF VICTORIA	Firstnamed Defendant
and
JOHN GERARD LEE	Secondnamed Defendant

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JUDGE:	NATHAN, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 SEPTEMBER 2001
DATE OF JUDGMENT:	13 SEPTEMBER 2001
CASE MAY BE CITED AS:	GILFILLAN v. COUNTY COURT OF VICTORIA & ANOR.
MEDIUM NEUTRAL CITATION:	[2001] VSC 360

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CATCHWORDS:      Ostensible and actual bias - County Court appeal judge acted as investigator and prosecutor - Procedural unfairness and denial of natural justice. – Mendacious submission irrelevant - Conviction quashed no remission for re-hearing.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. P. Billings	Jack Sher & Associates
For the Secondnamed Defendant	Mr. G. Thomas	Mr. A. Castle Office of Public Prosecutions

HIS HONOUR:

1. This matter is the return of an originating motion seeking Declarations that the trial Judge failed to deliver natural justice, was procedurally unfair and ostensibly biased against the interests of the plaintiff.  Relief in the nature of certiorari quashing the conviction is sought.

1. Identification of the parties is required. Gilfillan was the driver of a car at Colac on 12 December 1998. He was apprehended by a police member, Lee, the secondnamed defendant. It is alleged by Lee, that Gilfillan refused to submit to a breath analysis test under the provisions of the Road Safety Act 1986.

1. The second defendant, Judge Pilgrim is a judge of the County Court of this State.  He sat on the appeal against the decision of a magistrate at Colac which had convicted Gilfillan of the offence.

1. Mr Billings for Gilfillan said that the ostensible bias, procedural unfairness and denial of natural justice displayed by Judge Pilgrim arose from the following broad classes of events.  Firstly, he conducted his own investigation into the circumstances surrounding the commission of the offence.  Secondly, he cured the defects in a Crown case of his own motion and volition.  Thirdly, that he denied Gilfillan the chance of acquittal or indeed the acquittal to which he was entitled.  Fourthly, that he caused the Crown case to be re-opened, without notice thereof to Mr Gilfillan.  And finally, that even at the re-opened hearing, Judge Pilgrim did not produce the computer printout notices, to which he had gained access, and which had the effect of curing the Crown case.

1. All of these, and any one of them, would establish the plaintiff's case if substantiated.  Unfortunately, as I will go on to find, each and every one of them is.  Prior to doing so I must spell out the chronology of events in order to make this case more readily comprehensible.

1. On 12 December 1998, Gilfillan was apprehended whilst driving. Immediately following his apprehension, and when conveyed to the Colac Police Station, he refused to undergo a breath analysis as required by the Road Safety Act s.49 and s.55. Fortunately there is no need for me to detail the facts and circumstances surrounding this refusal.

1. On 31 May 1999, at the Magistrates' Court at Colac, Gilfillan was convicted by Wilson, M, of the offence of refusing to submit to a breath analysis and fined $750 with a four year suspension. Immediately a notice of appeal was lodged. On 27 August 2000 at the County Court at Geelong, before Judge Pilgrim, the appeal came on for hearing. It was heard de novo. It is important to now note one of the submissions made by counsel for Gilfillan, which is central to the dispatch of this case. That is, that the charge and summons form delivered to Gilfillan at the time or shortly after the alleged refusal to submit to the test, was dated 12 December 1998, and that the summons was issued by a prescribed person under the terms of the Road Safety Act. It is not contested that 12 December 1998 was a Saturday.

1. Accordingly, not a day on which the offices of the Magistrates' Court was open for business.  There is a statutory requirement that a charge and summons be filed within seven days of its making (Magistrates Court Act S30).  It was submitted that as the alleged date of filing was a Saturday, which could not possibly be correct, there could be no certainty as to whether the requirement to have filed the charge and summons had occurred within seven days of the commission of the offence.

1. I think it pertinent to observe that this point is tendentious and without merit, but that comments are irrelevant when it comes to the dispatch of this case. Much has been said by the Court of Appeal in respect of meretricious points made under the terms of the Road Safety Act. I am of course bound by the decision of Sher v. The Director of Public Prosecutions (on behalf of Darren Van Veen) unreported, 9 August 2001, where the catchwords accurately reflect the purport of the judgment of Mr Justice Brooking. Namely, that sundry technical points were rightly rejected by the primary judge, and slaying the hydra of technicality in drink driving cases.

1. It was said that the Road Traffic Act had given rise to a minor legal industry, wherein technical, obtuse and meritless points were taken in respect of the legislation, leading to the hydra of drink driving cases.

1. I return to the chronology and continue with a summation of the hearing before Judge Pilgrim.  Submissions were made as to who could be a prescribed person.

1. As I have said, the court file which was produced before the Magistrate and was also apparently available to Judge Pilgrim, displayed that the charge and summons was filed on 12 December, which was a Saturday.  As I have noted, Mr Billings submitted there was no evidence before the court that the date of filing therefore was within seven days of the offence, or that Mr Lee was a prescribed person.

1. In respect of this submission, the prosecutor indicated there were presumptions of regularity and so forth but in any event, that if there were any difficulties about the filing date or the prescribed person, he would seek leave to re-open the case.  That invitation was not accepted by Judge Pilgrim, who then reserved his decision.  Because of the reservation, it must be inferred the Judge needed to consider this submission.

1. On 30 May counsel for the plaintiff were informed that His Honour Judge Pilgrim would deliver judgment on 5 June.  On that day the matter came on for hearing.  It is uncontested that Judge Pilgrim then said in open court that the case should be re-opened and he intended to let that happen, although it must be said that no application to do so was then forthcoming from the prosecutor.  Nor was any notice thereof, of any kind, given to the defendant.

1. The Judge said words to the effect that, unlike most judges, he had experience in the Magistrates' Court, knew the procedure, and had obtained a copy of the computer printout of the record of filing from the Magistrates' Court at Colac, which showed that the charge and summons was filed on 14 December 1998. This was clearly within the seven day period required by the Magistrates' Court Act. He indicated that the submission as to time, was a good one.

1. He also said there were other matters, such as the identity of the instrument and to whether or not there was evidence that the informant was a prescribed person, and accordingly he would allow the prosecution to re-open the case.  This course was objected to by counsel for Mr Gilfillan.  He stated that he had been caught unawares, that the Judge appeared to have made up his mind to allow the prosecution to re-open the case even after the close of submissions, and that the exceptional circumstances which the law required to be displayed to do so, were not present.

1. Counsel for Mr Gilfillan also submitted that as he had made his submissions, if they were correct he was entitled to the benefit of an acquittal and would not now proceed.  Counsel for Mr Gilfillan observed that the prosecution witnesses, Mr Lee and another, were there present in court and that they must have been apprised of the fact they would be needed.  Hence, any application to re-open the case was not only likely to be made, but would be bound to succeed.  As subsequent events established, this fear was perfectly well founded.

1. Counsel for Mr Gilfillan also submitted that the Judge had acted as a prosecutor and investigator and that accordingly he had stepped outside the proper ambit of the judicial function.  What then happened was that the Judge called on the prosecutor to produce the police witnesses.  Counsel for Mr Gilfillan declined to cross-examine or participate in the hearing any further, submitting that if he were to do so, it could appear he was submitting to a jurisdiction wrongly being exercised.

1. Finally, I observe that the papers reveal that the prosecution had been informed by the Judge's Associate that the Judge required the further witnesses to be called when the case came on for hearing on 5 June.  When this case came on before me and the matter of ostensible bias was raised, I required that further ground to be specifically pleaded and notified to Judge Pilgrim.  That was done.  There has been no response to the amended notice of motion. 

1. And so the matter comes on for dispatch before me.  The law relating to the display of ostensible bias was canvassed and re-stated in R v. Vakuata, handily reported in Vol. 87 A.L.R. 632. That is, where the actions would be likely to raise reasonable apprehension in a fairminded observer without knowledge of the law nor awareness of the judicial process, that bias might exist, then indeed the law will be so satisfied. The consequences of that bias, ostensible or otherwise, are to vitiate the proceedings.

1. There is no doubt that the facts reveal Judge Pilgrim displayed bias.  He became an investigator and a prosecutor for the Crown.  As a result of his own researches and enquiries, he made good the defect which he had indicated existed in the evidence.  He therefore deprived the defendant of the acquittal to which he might have been entitled.

1. Furthermore, as to matters of procedure, the activities of the Judge's Associate, which it must be presumed were initiated at the request of the Judge himself, displayed both procedural unfairness and bias as against the interests of the defendant.  The Associate must have told the prosecution to have its witnesses available and be ready for the case to be re-opened.  The Associate did not, on the affidavit evidence, tell the defendant of this intent.  Therefore, Mr Gilfillan's counsel was ambushed and deprived of procedural fairness.  When the case came on for what was purportedly judgment, it in fact became a further hearing of evidence generated by the Judge.

1. The Judge made it plain that he had available to him the computer printout from the Magistrates' Court at Colac.  It was not produced in court.  It was not available for examination by Mr Gilfillan's counsel, and yet it was the instrument upon which the Judge went on to find against Mr Gilfillan.

1. He had standing against him, documentary material obtained by the Judge and not produced to the defendant.  This is a sad lapse and it gives me no pleasure to recite the fact.  Procedurally, the defendant, or any defendant, is entitled to be apprised as the case proceeds of the material upon which the Crown relies.  This was simply not done in this case and the procedural unfairness was both manifest and reprehensible.

1. It is a requirement of the rules of natural justice that a defendant be made aware of the charge and what he is required to answer.  In this case, the Judge's intervention, in effect, made regular that which was irregularly delivered to Gilfillan as to the date of filing.  The effect was to deprive him of the chance of acquittal.  The rules of natural justice were offended and unfortunately very significantly so.

1. Furthermore, Mr Gilfillan, when he thought he was attending a case to hear judgment, had the case re-opened without notice, and in a way utterly prejudicial to his interests.  It is clear that the Judge had determined to re-open the case prior to hearing the matter on 5 June.  This is a matter of pre-judgment which is not merely procedurally unfair, but is grossly offensive to the rules requiring fair and unbiased adjudication.  The matter of whether the case should be re-opened or otherwise had simply been pre-judged.  It follows from all this that the Judge displayed both ostensible and actual bias against the interests of the defendant. 

1. For all the above reasons the conviction must be quashed.

1. The issue now arises as to what I should do, whether to remit the case for re-hearing before another judge or simply quash the conviction and terminate all further litigation in respect of the initial summons.  I have decided I must simply quash the conviction and not remit the case.  I do so for the following reasons: the rules requiring procedural fairness were breached, and the exercise of natural justice and an unbiased hearing were breached in the most aggressive and unfortunate way.

1. The charge itself is not a serious one on the calendar of criminal offences.  Despite the dubious and mendacious nature of the submission initially made as to time, which in my view was meritless, the fact is that the Judge's handling of the matter thereafter became the matter of complaint.  Very grievous and justified complaints they are.

1. It is now almost four years since the commission of the alleged offence and time is running against the interests of prosecution.  Moreover, and more importantly, the defendant was denied the acquittal to which the Judge had indicated, and certainly his subsequent behaviour substantiates, the defendant was entitled.

1. The Judge having made good the deficiencies in the Crown case as a result of his own enquiries, relied on unproduced material, and then re-opened a case without notice to the defendant.  All this goes to establish this is not a case for re-hearing, and Mr Gilfillan is entitled to have the conviction quashed.  I so order.  I make the declaration sought in the notice of motion.  I quash the conviction.

1. I shall hear counsel as to costs.

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