Haque v State of Victoria

[2013] VSCA 332

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0144
S APCI 2013 0145

DR ZAHIDUL HAQUE

v

STATE OF VICTORIA & ORS

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JUDGES:	OSBORN and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 November 2013
DATE OF JUDGMENT:	22 November 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 332
JUDGMENT APPEALED FROM:	[2013] VCC 1035, County Court of Victoria, Judge Smith, 27 August 2013

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PRACTICE AND PROCEDURE - Applications for extensions of time to serve notices of appeal - Application granted in respect of one proceeding - Proposed appeal in second proceeding lacking any reasonable prospects of success - Application refused in respect of second proceeding on ground of futility.

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APPEARANCES:	Counsel	Solicitors
The Applicant appeared in person
For the 1st Respondent	Mr R I Gipp	Victorian Government Solicitor
For the 2nd to 4th Respondents	Mr P J Lawrie	Moray & Agnew

OSBORN JA:

1. I will invite Beach JA to deliver the first judgment.

BEACH JA:

1. Dr Zahidul Haque, the applicant, was the unsuccessful plaintiff in two County Court proceedings heard and determined earlier this year. Both proceedings were dismissed. The applicant wishes to appeal the dismissal of each proceeding. However, he did not file and serve notices of appeal within the time provided by s 74(2) of the County Court Act 1958.

1. On 1 November 2013, this Court heard the applicant’s applications for extensions of time within which to serve notices of appeal in relation to each County Court proceeding.  The relevant background to these applications is set out in our reasons published on that day.[1] 

   [1]Haque v State of Victoria & Ors [2013] VSCA 316.

1. The respondents’ principal ground of objection to the applications for extensions of time was that any appeal from the trial judge’s orders did not enjoy any reasonable prospects of success.  Accordingly, the respondents submitted that granting extensions of time would be futile. 

1. At the time these applications were first heard, the applicant wished to rely upon a 45 page proposed notice of appeal.  This proposed notice of appeal was manifestly defective for the reasons we gave in our earlier judgment on 1 November.  However, because the then proposed notice of appeal was so defective, we were unable to conclude that any appeal from the trial judge’s orders did not have any reasonable prospect of success.  In the circumstances, we directed the applicant to file and serve proposed notices of appeal for each proceeding, which proposed notices of appeal were required to comply with the Rules.  Specifically we said that such notices of appeal should set out in short form the precise complaints the applicant makes in respect of each judgment below, and should comply with the

authorities to which we referred in our reasons of 1 November 2013.  Additionally, we adjourned the applications for extensions of time for further argument today.

1. The applicant has now served a proposed notice of appeal in respect of each of the County Court proceedings. While these proposed notices are much shorter than, and an improvement on, the original proposed notice of appeal, both of the new proposed notices may fairly be described as discursive, prolix and (again) non-compliant with s 74(2B) of the County Court Act 1958 and r 64.05 of the Supreme Court (General Civil Procedure) Rules 2005 in that they fail to state specifically and concisely the grounds of complaint.

The first County Court proceeding

1. In the first County Court proceeding, the applicant claimed damages from the State of Victoria in respect of three causes of action:  false imprisonment, battery and defamation.  The events giving rise to these alleged causes of action occurred when the plaintiff was arrested in La Trobe Street Melbourne on 9 August 2009 and placed in handcuffs. 

1. The applicant wishes to make complaint about the dismissal of his claim in respect of each of these causes of action.  His proposed notice of appeal deals with, amongst other things, whether the learned trial judge wrongly imposed an onus upon him in relation to the false imprisonment and battery claims.  As we said on 1 November 2013, it is arguable from the judgment below that the trial judge may have wrongly imposed an onus with respect to the reasonableness of the use of handcuffs upon the applicant (the facts underlying the battery claim).

1. The applicant now also submits that his Honour may have wrongly imposed an onus upon him of establishing that his arrest was unlawful.  At paragraph [94] of the reasons below, his Honour said:

I conclude that Dr Haque has not discharged the onus of proving that his arrest and detention on 9 August 2009 was unlawful. 

1. However, in respect of the false imprisonment claim relating to 9 August 2009, at paragraph [85], his Honour said:

The burden of establishing imprisonment is on Dr Haque.  It was conceded by the first defendant that he had been imprisoned.  The onus then lies on the defendant to prove justification for so imprisoning him.  The defendant submits, and I accept, that the grounds for arresting and detaining Dr Haque on 9 August 2009 were lawful in that the officers in question were acting on the basis of an outstanding warrant of apprehension.

1. The applicant submits that from paragraph [94] of the reasons, it can be established that his Honour imposed an onus of proving that the arrest and detention was unlawful on the applicant,[2] whereas the first respondent submits that the passage at paragraph [85] shows that the onus was correctly applied.

   [2]See further, paragraph [84] of his Honour’s reasons.

1. It may be that any apparent discrepancy in his Honour’s reasons can be reconciled by observing that, in context, at paragraph [94] his Honour was doing no more than saying that the applicant had failed to establish the cause of action of false imprisonment.[3]  However, I am not so certain of this that I am prepared to conclude on a summary basis that the applicant has no reasonable prospects of success in respect of this issue.  The point is, in my view, at least, arguable.

   [3]But cf paragraph [84].

1. Similarly, for the reasons we gave on 1 November 2013, I think the applicant has sufficient prospects of success in relation to the battery and defamation causes of action so as to permit him to appeal (absent any other relevant matter that might militate against a favourable exercise of discretion).  Specifically, in my view, the applicant has not insignificant prospects of establishing that the onus in relation to the reasonableness of the use of handcuffs was wrongly imposed upon him.  Further, if the applicant could establish that this onus was wrongly imposed upon him, the first respondent may fail to establish that the imposition of the handcuffs on the applicant was reasonable.  In those circumstances, the applicant might establish (in addition to battery) that placing him in handcuffs conveyed the defamatory imputation that he had behaved in such a way as to make it reasonable to place him in handcuffs.  Whether the first respondent could justify any such imputation would then be arguable.

1. In the circumstances, I would grant the application for an extension of time within which to file the current proposed notice of appeal in relation to the first County Court proceeding.  While the proposed notice of appeal remains defective, I think the points raised in it are sufficiently clear to allow it to be filed.  Further, I do not think that anything would be gained by continuing to debate its form with the applicant. 

The second County Court proceeding

1. My view is different with respect to the second County Court proceeding.  In the second County Court proceeding, the applicant claimed damages in respect of two causes of action:  malicious prosecution and false imprisonment.  The malicious prosecution cause of action related to a prosecution commenced against the applicant on 26 August 2008.  The false imprisonment claim related to an arrest of the applicant on 12 February 2010.

1. Like the proposed notice of appeal in relation to the first County Court proceeding, the proposed notice of appeal in relation to the second County Court proceeding is prolix, discursive and does not comply with s 74(2B) or r 64.05. Additionally, there are paragraphs in it that appear to relate to the arrest on 9 August 2009 – which arrest, while relevant to the first County Court proceeding, is not relevant in respect of the second County Court proceeding.

1. Unlike the first County Court proceeding, there are no issues of onus which the applicant can reasonably point to in relation to the causes of action covered by the second County Court proceeding.  That said, the applicant has substantially repeated paragraphs 1.1 to 1.10 of his proposed notice of appeal in respect of the first County Court proceeding, as paragraphs 2.1 to 2.10 of his proposed notice of appeal in respect of the second County Court proceeding.  One might assume from this repetition that the applicant wishes to argue that the statement in paragraph [94] of his Honour’s reasons, dealing with the lawfulness of the applicant’s arrest on 9 August 2009, has some relevance to his Honour’s reasoning in respect of the applicant’s complaints about his arrest and detention on 12 February 2010.  However, there would be nothing in such an argument (if in fact the applicant seeks to make it).  Any such argument fails to properly understand the structure of his Honour’s reasons and the underlying factual basis upon which his Honour dealt with the claims made by the applicant in respect of his arrest and detention on 12 February 2010.

1. Turning now to the malicious prosecution cause of action, in my opinion, the applicant’s proposed appeal in relation to this cause of action has no reasonable prospects of success.  In order to succeed in his claim for malicious prosecution, the applicant had to establish, amongst other things, that Constable Bennett was actuated by malice.  This he did not do.

1. Having heard the relevant witnesses (and in particular Constable Bennett), the learned trial judge concluded that the applicant had failed to establish that Constable Natalie Bennett acted maliciously.  In my view, there is no reasonable prospect of the applicant overturning his Honour’s conclusion that the applicant had failed to establish that Constable Bennett was actuated by some improper purpose in laying and proceeding with charges against the applicant.[4]  While (as his Honour noted) some people may have been surprised that the prosecution was commenced and continued,[5] there was nothing in the evidence to suggest any improper motive on the part of Constable Bennett. She had consulted her superiors, and the final decision regarding authorization was made by another (Acting Sergeant Pugh).[6]  Further, Constable Bennett gave evidence and was cross-examined before his Honour.  In her evidence she denied she was actuated by malice.  His Honour accepted that denial.  The lack of any unrelated dealings or issues between the applicant and Constable Bennett tells against a finding that his Honour’s conclusion on the question of malice was ‘glaringly improbable’ or the like.[7]  Indeed, in my respectful view, his Honour’s conclusions on malice are plainly correct.

   [4]cf A v New South Wales (2007) 230 CLR 500, 530-32 [88]-[95] (Gleeson CJ, Gummow, Kirby, Hayne, Haydon and Crennan JJ).

   [5]Reasons [60].

   [6]Reasons [38].

   [7]Cf Fox v Percy [2003] 214 CLR 118, 128 [29] (Gleeson CJ, Gummow and Kirby JJ).

1. Similarly, there is nothing in the material that suggests the applicant has any reasonable prospects of overturning his Honour’s conclusions in relation to the applicant’s arrest on 12 February 2010 and the applicant’s subsequent detention on that day.  The proposed notice of appeal in respect of this cause of action appears to overlook the actual chronology of events that occurred on 12 February 2010.  The applicant appears to assert that there were two reasons (both of which he seeks to attack, using arguments that have no reasonable prospects of success) for his arrest and conveyance to the police station on that day.  His Honour’s reasons, which were well supported by the evidence, disclose to the contrary: the applicant was initially arrested in relation to a complaint he drove a motor vehicle at a person;[8] and while he was at the police station a previously issued warrant about which the applicant makes complaint) was executed, before the applicant was bailed and released.  The applicant’s claims at trial in respect of his arrest and detention on 12 February 2010 were manifestly hopeless.  The same must be said of the applicant’s prospects of success on any appeal in respect of these claims.

   [8]The applicant was subsequently charged with one count of reckless conduct endangering a person, convicted and sentenced in the County Court to a Community Corrections Order for 12 months. An application by him for leave to appeal against conviction and sentence was refused by this Court (Priest JA), and an application by him for special leave was refused by the High Court on 9 October 2013: Zahidul Haque v The Queen [2013] HCASL 156.

1. That said, I will deal with two complaints the applicant appears to make in relation to the dismissal of the 12 February 2010 false imprisonment cause of action.  In paragraph 2.18 of the proposed notice of appeal dealing with this cause of action, the applicant asserts that the trial judge was wrong to conclude at paragraph [128] that the arresting police officers disclosed the reasons for his arrest on 12 February 2010 before arresting the applicant.  The applicant asserts that the ‘leading arresting police officer’, Constable Tsianakas, did not disclose the reasons for arrest before arresting the applicant.  References to the transcript are then given.  However, the references do not bear out the assertion.  Indeed, in his evidence-in-chief, Constable Tsianakas, when asked what words of arrest were used on the day in question said:

I told him [the applicant] that he’s under arrest for an incident that occurred on 5 November 2009 for driving at a male on the street, and then I gave him the actual arrest saying that he’s not obliged to say or do anything but anything you say or do may be given as evidence.[9]

His Honour was perfectly entitled to accept this evidence.  Further, this evidence well supported his Honour’s statement in paragraph [128] that the arresting officers ‘did make clear to Dr Haque that he was being arrested in relation to the allegations brought by Mr Alamgirr that he had driven his motor vehicle at him the previous November’.  This complaint made by the applicant is thus without merit.

[9]T 857.14-T 857.21.

1. In paragraph 2.19 of the proposed notice of appeal dealing with the 12 February 2010 false imprisonment cause of action, the applicant again incorrectly asserts that he was wrongly arrested on 12 February 2010 ‘for two reasons’.  Paragraph 2.19 then goes on:

The trial judge does not give any explanation in his written reasons for judgment of the applicant‘s main argument;  eg as the theft charges were withdrawn, whilst the applicant was arrested two times.  Crimes Act 1958, s 461(1) states that, “an arrest be taken to be unlawful where it subsequently appears or is found that the person apprehended did not commit the offence alleged”.

1. The problems with this argument are manifest. However, it is sufficient for present purposes to simply note that s 461(1) of the Crimes Act in fact provides:

Where an apprehension is made under a belief on reasonable grounds in accordance with the provisions of s 458 or s 459 the apprehension shall not cease to be lawful or be taken to be unlawful where it subsequently appears or is found that the person apprehended did not commit the offence alleged.[10]

[10]Further, while the theft charge was withdrawn, as I have already noted (footnote 8 above), the applicant was in fact subsequently convicted in relation to the reckless endangerment charge.

1. In short, s 461(1) of the Crimes Act in fact says the opposite of what the applicant contends.  This complaint is thus also without merit.  In my view, there

was no error (and nothing that suggest error) in his Honour’s fact finding in relation to the second County Court proceeding. Further, there is nothing to suggest any possible misapplication of legal principle to the facts as found by his Honour in relation to the second County Court proceeding.  Nothing in the applicant’s proposed notice of appeal in respect of the second County Court proceeding causes me to think there is any arguable error in relation to his Honour’s treatment of the claims of malicious prosecution or for false imprisonment alleged to have occurred on 12 February 2010.  In the circumstances, I accept that it would be futile to permit the applicant the extension of time he seeks in order to prosecute an appeal in relation to the second Count Court proceeding.

Conclusion

1. I would grant the applicant the extension of time he seeks to file and serve the proposed notice of appeal dated 13 November 2013 in relation to the first County Court proceeding.  I would dismiss the application for an extension of time in respect of the second County Court proceeding.

OSBORN JA:

1. I agree.

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