Grivas v Victoria Police
[2019] VSC 795
•4 December 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 01638
| JASON BRIAN DIMITROS GRIVAS | Plaintiff |
| v | |
| VICTORIA POLICE - MICHELLE BELAJ | First Defendant |
| – and – | |
| COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 23 August 2019 |
DATE OF JUDGMENT: | 4 December 2019 |
CASE MAY BE CITED AS: | Grivas v Victoria Police |
MEDIUM NEUTRAL CITATION: | [2019] VSC 795 |
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JUDICIAL REVIEW — Application to set aside order striking out appeal because of non-appearance — Whether failure to have regard to relevant considerations — Whether denial of procedural fairness — Whether bad faith — Grounds not established — Proceeding dismissed — Criminal Procedure Act 2009 s 267(3).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Self-represented | |
| For the First Defendant | Mr C Carr | Solicitor for Public Prosecutions |
HIS HONOUR:
The plaintiff seeks judicial review of an order made by a County Court judge on 23 July 2018 refusing to set aside an earlier order of 28 June 2018 striking out his appeal for failure to appear.[1] His appeal had been against his conviction and fine of $500 at the Magistrates’ Court on 19 December 2017 for breach of s 9(1)(d) of the Summary Offences Act 1966. The offence was wilfully trespass in a public place, namely La Trobe University.
[1]At his request, the plaintiff was permitted to conduct his case by telephone from Western Australia, where he is residing. At the commencement of the hearing, the plaintiff sought an adjournment and a suppression order both of which I refused for reasons that I then gave.
The grounds on which the plaintiff relies are:
1. The grounds of relevant considerations have not been observed.
2.The grounds and principles of natural justice or procedural fairness have not been observed.
3.The grounds that administrative actions that appear on their face to be proper is that of ‘bad faith’. In other words, the decision was affected by corruption, bribery, dishonesty or similar malpractice;
4. Any other grounds the Court deems fit, or appropriate.
Background
The plaintiff first appealed against his sentence, but was later given leave to appeal against conviction. By email of 9 April 2018 to the County Court Registry, he requested the adjournment of his appeal which was initially listed for hearing on 13 April. He provided a medical certificate, which stated that he continued to suffer from injuries received in February, which had impaired his physical and cognitive abilities and made him feel unfit for the hearing later that week. This adjournment was granted.
The appeal was listed for mention on 22 June 2018 and the prosecution gave notice of an application for adjournment, but later withdrew it. A hearing date for 27 June 2018 was then set.
On 26 June 2018, the plaintiff sent an email to the County Court requesting the adjournment of his appeal and providing a medical certificate of that date. It stated that he was experiencing an exacerbation of his medical condition. He had developed a significant skin rash and been prescribed an antibiotic to treat it and was also experiencing flu–like symptoms. The certificate stated that he should be permitted to adjourn his pending court case to a future date.
The 27 June hearing
On 27 June 2018, the appeal was listed and called. The plaintiff appeared in person and sought an adjournment, but the Judge refused it. At 2.15pm the hearing of the appeal commenced with a prosecution witness giving evidence and exhibits being tendered. The plaintiff cross-examined the witness extensively. Upon the completion of that witness’s evidence, the plaintiff requested a short recess as he said that he was not feeling well and he had a ‘nasty infection’, which was affecting him ‘at the moment mentally’. Her Honour granted the adjournment, but stated that she would continue the matter the following day at 10:00am, and referring to the medical certificate sent to the Court the previous day, stated, ‘… if there is any ongoing illness, I will not accept a certificate like that. I expect the doctor to be available to be cross–examined.’
The 28 June hearing
The following day, 28 June 2018, the appeal was called on part–heard. The plaintiff was called outside court at 10:05am but he did not appear. Her Honour struck out the appeal for non–attendance stating:
Mr Grivas has been warned in relation to tardiness. This is not the first occasion where he has been late, absent or otherwise. The appeal is stuck out for non-attendance.
At about 10:33am the plaintiff attended at the County Court Registry and filed an application to set aside the order striking out the appeal for failure to appear. The reasons stated were: ‘Medical circumstances and grounds and I was on time. I was told 10:30am.’
The 23 July hearing
The application to set aside the striking out order was listed for hearing on 23 July 2018. The day before, the plaintiff sent an email to the County Court stating that he had had a collapsing episode on 28 June 2018 and referred to a medical certificate dated 29 June 2018, which stated:
This is to certify that Mr Jason Grivas is suffering from folliculitis, which is a skin infection usually caused by staphylococcus organisms. He has been prescribed the antibiotic Distaph to treat this. He has also had recent flu like symptoms which had him prone to collapsing episodes during this week. Currently he is recovering but still has a mild temperature and corryzal symptoms.
When the application was heard on 23 July 2018, the plaintiff gave the following evidence.[2] He collapsed on the morning of 28 June 2018 after having a shower at his temporary residence near his family’s home. He was suffering a severe infection and flu-like symptoms and was still suffering from them on 23 July. He referred to the medical certificate of 29 June 2018 and said that he had not been able to obtain an appointment to see his doctor on 28 June the day of his collapse and he did not think of going to hospital.
[2]Transcript of Proceedings, Director of Public Prosecutions v Jason Grivas (County Court of Victoria, AP 18-0064, 23 July2018), 5-12 (‘T’).
He gave different accounts of the time at which he understood the part heard hearing of his appeal was due to recommence on 28 June. He initially agreed that the appeal was adjourned until 10.00 am. However, he also mentioned 9:30am and finally 10:30am. He said that on 28 June he was still feeling unwell and a little bit all over the place. He said that when he collapsed he was disoriented and had issues with his memory and cognition. At 10:30am, after sitting in the courtroom and then approaching the ‘front counter’, he was told that the matter had continued and that he had missed it, so he applied for a rehearing. As mentioned, in his application for rehearing, he gave as his reasons for non-attendance, ‘medical circumstances and grounds’ and that he was on time as he had been told that the hearing would recommence at 10:30am. He gave uncertain evidence about whether he was in the courtroom at about 10:00am, at one point he said that he was in the courtroom observing.[3]
[3]T 7.
The parties then made submissions. The plaintiff that he would like to apologise and was feeling extremely unwell as he also had been on 28 June. He said that he felt victimised and found the process very intimidating.
Counsel for the prosecution opposed the application and said that the plaintiff had given a variety of versions as to the time at which he attended court on 28 June when it had been clear that the matter was adjourned to 10:00am. The medical certificate did not support his assertion that he collapsed on 28 June 2018.
Counsel referred to other occasions in the Magistrates’ Court where he had failed to attend on time. He had sought to have the hearing on 27 June adjourned, but that was not agreed, so he had attended Court on that day.
The Judge adjourned the appeal for a short time to consider her decision. Upon resuming, the plaintiff requested that a lawyer be appointed for him and said that the prosecution had become malicious and that he had not been given ample time given that he was then too physically unwell to provide responses to any type of questioning. He said that he had been misled. Her Honour explained the purpose of cross-examination to him. He then said he had not been given the opportunity to fully describe certain events that he would say had occurred and that he had been asked malicious questions by the prosecutor to ‘indict guilt [rather] than obviously let’s say find out’. The Judge stated that she would give him a further opportunity to go back into the witness box and seek to say whatever it was that he said was missing.
He did so and in the further evidence, he described the prosecution as malicious and pointed out that he had a good reputation. He said that on 28 June he had been completely disoriented and still was and that he had been recovering from a major physical illness. He had been under a lot of stress and strain, that had affected his memory and cognition. He also said that if he was given an opportunity for rehearing, he would tell the Court that what had occurred, including that he had been robbed of possessions when studying at La Trobe University.
The reasons for decision
Her Honour then refused the plaintiff’s application and gave the following reasons:
The matter before me is an application to set aside an order striking out an appeal. The appeal, the subject of the application, was struck out on 28 June 2018 in circumstances where the applicant failed to appear as per the adjournment order made the previous day. I note that the applicant had on 27 June 2018 sought to have the matter adjourned. That adjournment was refused by this court and the matter proceeded. Evidence was called and the appellant cross-examined a witness. Neither by his conduct nor presentation in my view was any issue raised as to his state of health or ability to continue with the matter. Mr Grivas was in court on 26 June 2018[4] when the matter was adjourned. He was fully aware as to the time and even the court number he was required to attend prior to the court rising for the afternoon.
Mr Grivas then failed to attend as required. Witnesses were present for the respondent and ready to proceed. Mr Grivas had made no contact with this court. The matter was called on at least two separate occasions. Mr Grivas has given evidence that the reason for his non-attendance was that he had collapsed that morning and that nevertheless he arrived at court it seems believing, according to his evidence that the matter was to commence at 10.30.
Firstly, I have great difficulty accepting his evidence as to the asserted collapse. He claimed he became unconscious. However, he did not attend a hospital. He did not even attend a general practitioner that day. He produced a medical certificate from the following day 29 June and that medical certificate does not refer to a collapse the previous day, which I find surprising at best. It seems that the doctor was told that there had been some issue as regards collapse in that week but it was vague at best. I simply find it unbelievable that it would not have been the subject of both medical attendance and the subject in the medical certificate had Mr Grivas conveyed to the doctor that he had become unconscious the previous day.
Secondly, I do not accept Mr Grivas was confused as to the time. The reality is it seems, that Mr Grivas sought to frustrate that hearing with a view to forcing an adjournment in circumstances where he had been refused an adjournment the previous day. I am not satisfied that Mr Grivas’s failure to appear was not due to his fault or neglect. Indeed, it seems it was calculated to achieve the adjournment that he had been refused the previous day. The application to set aside the order striking out the appeal is refused.
[4]Probably intended as a reference to 27 June 2018.
The Supreme Court proceeding
Evidence
The solicitor for the first defendant made an affidavit setting out the background to the proceeding.
The plaintiff made many affidavits, most of which went to allegations of misconduct against those associated with his prosecution. In those affidavits, the plaintiff attacked the statements and evidence that the Victoria Police produced to the Magistrates’ Court. He alleged that various witnesses made perjured statements in that proceeding. He contended that there was a conspiracy to frame him and that parties to the proceeding had taken improper legal action and committed unlawful acts to harass and subdue him and had damaged his character.
He argued that illegally and improperly obtained evidence should have been excluded from the Magistrates’ Court proceeding. He complained that some of the witness statements were made on a date after the listing of offences in the Magistrates’ Court and he alleged that there were other deficiencies in the witness statements.
He also alleged procedural malpractice, in that the Office of Public Prosecutions and Victoria Police had failed to recognise the procedures and statutes under the ‘Australian Criminal Law’ and failed to comply with the rules of evidence. He said that the Office of Public Prosecutions had failed to examine the evidence and consent to a directions hearing or mention and had failed to examine the statements in response to his correspondence about their deficiencies. They had consistently hindered and obstructed him in obtaining documents or other things required for the court proceeding.
He relied on the Medical Practice Act 1994 which, on his contention, meant that a medical certificate was, in the absence of evidence to the contrary, proof of the matters stated in it. However, the provision on which he relied did appear to relate to medical certificates and in any event has been repealed.
The plaintiff denied that he committed the offence of trespass for which he had been convicted at La Trobe University on 4 July 2016 and stated that he attended nearby the University, but not on its campus, to look for a lost or stolen wallet containing student identification, cash money and photocopy cards. He denied that La Trobe University had issued a warning off notice to him on 30 September 2015 or that any relevant La Trobe University security incident reports were made that day. Accordingly, he argued that the charges should have been dismissed or struck out.
He said that he had been an undergraduate student who was casually employed and volunteered for La Trobe University.
Analysis
Consideration of the plaintiff’s affidavits
I read the plaintiff’s affidavits and considered his submissions concerning them. Most of them do not deal with the point that I have to decide. The only issue before me is whether the County Court Judge made a jurisdictional error in refusing to set aside the order striking out his appeal. It is not my task, and I have no power to inquire into, most of the matters that the plaintiff raised that I have summarised above.
My task therefore is to consider the grounds of the plaintiff’s application.
Consideration of the plaintiff’s grounds
Her Honour had to apply the discretion contained in s 267(3) of the Criminal Procedure Act 2009 (‘the Act’), which states:
(3)The court, at any time, may set aside an order striking out an appeal because of the failure of the appellant to appear, if the appellant satisfies the court that the failure to appear was not due to fault or neglect on the part of the appellant.
The plaintiff’s proceeding in this Court is not an appeal, but seeks judicial review. He must therefore establish that her Honour made a jurisdictional error or an error of law on the face of the record, being an error described in his grounds.
Ground one
The first ground of appeal advanced by the plaintiff was that relevant considerations were not observed by the Judge.
I do not consider that Her Honour failed to have regard to relevant considerations in making her decision. Rather, she referred to the terms of the Act and applied its provisions. She made two findings. First that she had great difficulty accepting his evidence as to the asserted collapse and secondly that she was not satisfied that his failure to appear was not due to his fault or neglect. These were findings of fact which were open to her Honour on the evidence. Where there is some evidence to support a finding of fact, it does not constitute an error of law[5] or a jurisdictional error.
[5]S v Crimes Compensation Tribunal [1998] 1 VR 83, 91 (Phillips JA); Hoser v Department of Sustainability and Environment [2014] VSCA 206; (2014) 203 LGERA 96, [29] (Redlich, Tate and Santamaria JJA).
Ground two
The plaintiff’s second ground was that the grounds and principles of natural justice or procedural fairness had not been observed at the hearing of 23 July 2018.
The plaintiff submitted that he was not given a reasonable opportunity to be heard or to present his case. He made allegations of bias against the Judge and the prosecutor, and said that the Court failed to take account of the fact that he was not able to obtain legal representation or be eligible for legal representation. He said that the court proceedings were not governed by the strict rules about the presentation of evidence, meaning that they had not been observed. The Judge and prosecutor asked inappropriate questions during cross-examination and did not allow him to represent himself.
However, as the Court of Appeal stated in Roberts v Harkness,[6] the question is whether the plaintiff, as an unrepresented person, was given a reasonable opportunity to advance his case and to be informed of and respond to the opposing case. It is clear from the plaintiff’s completion of the application form that sought the setting aside of the strike out order and from his evidence and submissions at the hearing of 23 July 2019, that he knew the matters that he had to address.
[6]Roberts v Harkness (2018) 57 VR 334, 356 [53] (Maxwell P, Beach and Niall JJA).
Upon the resumption of the hearing after her Honour had adjourned to consider her decision, she gave the plaintiff a further opportunity to give evidence. She thereby gave him, as a self-represented litigant, an additional opportunity to present his case. Her Honour was not obliged to obtain legal representation for him, particularly not when the request was made at the end of the hearing and in view of the history of the proceedings in which the plaintiff represented himself.
Her Honour’s finding that the plaintiff did not have a legitimate reason for failing to attend court at 10:00am on 28 June 2018 was principally based on her assessment of him. She had seen how he had conducted himself on 27 June 2018 and how he had cross-examined a witness, she told him that the proceedings would recommence at 10:00am on 28 June 2018 and the nature of the medical evidence that she would require if he sought an adjournment. She told him that his doctor would have to be available for cross–examination.
The plaintiff had apparently attended court at 10:00am on 27 June. His medical certificate of 29 June did not disclose a condition which necessarily prevented him from attending court at 10:00am on 28 June 2018. Instead he attended after the part-heard had been called and struck out.
While different approaches might have been taken to the plaintiff’s failure to appear on 28 June 2018, there was no denial of natural justice or procedural fairness in the hearing of 23 July 2018. The task that her Honour had to carry out has to be kept in mind. Section 267(3) of the Act gave her Honour a discretion to set aside the striking out order if she was satisfied that the plaintiff’s failure was not due to fault or neglect on his part. After giving him a reasonable opportunity to present his case, her Honour was not so satisfied. She was entitled to take into account the evidence before her, that she had told him that the commencement time on 28 June was 10:00am and had told him what medical evidence he would need to produce if he sought a further adjournment. She had great difficulty in accepting his evidence as to the asserted collapse and did not accept that he was confused as to time. She considered that his failure to appear was calculated to achieve the adjournment that he had been refused the previous day.
Ground three
The third ground has no substance. The plaintiff presented no evidence of bad faith. The allegations on which this ground is apparently based appear to be more connected with the wider matters that the plaintiff raised, but have no connection with the subject matter of this judicial review proceeding.
Ground four
The plaintiff did not raise any other grounds of relevance to his judicial review application.
Conclusion
The proceeding is dismissed.
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