Harkness v Roberts
[2023] VSC 10
•20 January 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 04343
| ZENAAN HARKNESS | Plaintiff |
| v | |
| PAUL ROBERTS | Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 December 2022 |
DATE OF JUDGMENT: | 20 January 2023 |
CASE MAY BE CITED AS: | Harkness v Roberts |
MEDIUM NEUTRAL CITATION: | [2023] VSC 10 |
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ADMINISTRATIVE LAW - Application for declaration conferring jurisdiction on County Court to hear appeal – Plaintiff convicted of traffic offences in Magistrates’ Court – Plaintiff appealed to the Supreme Court on a question of law – Appeal ultimately dismissed by Court of Appeal – Plaintiff then sought to appeal convictions to County Court – Criminal Procedure Act 2009 (Vic), s 273 provides that a person who appeals to the Supreme Court on a question of law ‘abandons finally and conclusively’ any right to appeal to County Court in relation to that proceeding – County Court appeal struck out for want of jurisdiction – Whether the Supreme Court can confer jurisdiction on County Court despite statute plainly barring further right of appeal – Whether Plaintiff’s appeal to the Supreme Court on a question of law ought to be considered an application for judicial review – Interpretation of Criminal Procedure Act 2009 (Vic), s 273 in accordance with Charter of Human Rights and Responsibilities Act 2006 (Vic), s 32(1) – Proceeding dismissed – Criminal Procedure Act 2009 (Vic), ss 254, 272(1), 273; Charter of Human Rights and Responsibilities Act 2006 (Vic), s 32(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Mr D Glynn | Abbey Hogan, Solicitor for Public Prosecutions |
HER HONOUR:
On 17 June 2016, Zenaan Harkness appeared before the Magistrates’ Court of Victoria at Seymour for a contested hearing of seven traffic offences – four charges of unlicensed driving, two charges of driving an unregistered vehicle, and one charge of failing to comply with a notice requiring the surrender of a motor vehicle. Mr Harkness had previously filed a statement objecting to the jurisdiction of the Magistrates’ Court.
At the start of the hearing, the magistrate told Mr Harkness that she would dismiss his objection to jurisdiction. His subsequent disruptive and disrespectful behaviour caused the magistrate to have him excluded from the courtroom. The hearing proceeded in his absence, and he was convicted of six of the charges.[1] The magistrate imposed fines of $350 for each offence of unlicensed driving, $750 for each offence of driving an unregistered vehicle, and $500 for the offence of failing to comply with the surrender vehicle notice. The aggregate amount of the fines imposed was $3,050.
[1]The seventh, a charge of unlicensed driving, was dismissed because the prosecution led no evidence.
On 7 July 2016, Mr Harkness filed a notice of appeal in this Court, against the orders of the Magistrates’ Court made on 17 June 2016. His appeal was brought under s 272(1) of the Criminal Procedure Act 2009 (Vic), which provides for an appeal to the Supreme Court on a question of law from a final order of the Magistrates’ Court in a criminal proceeding. A number of the questions of law set out in the notice of appeal concerned Mr Harkness’ contention that he had been denied a fair hearing at the Magistrates’ Court.
Mr Harkness’ appeal succeeded at first instance,[2] but was ultimately dismissed by the Court of Appeal on 29 August 2018.[3] The Court of Appeal held that the magistrate had not denied Mr Harkness procedural fairness and had given him a reasonable opportunity to present his case.[4] It also held that there was no tenable basis for his objection to jurisdiction, meaning that any breach of procedural fairness would not have been material and would not have entitled him to any relief.[5] Mr Harkness’ application for special leave to appeal to the High Court was dismissed on 5 December 2018.[6]
[2]Harkness v Roberts; Kyriazis v County Court of Victoria (No 2) [2017] VSC 646 (Harkness and Kyriazis). The judgment of Bell J at first instance determined both Mr Harkness’ appeal and a separate proceeding brought by Vasilios Kyriazis, seeking judicial review of orders made against him by a judge of the County Court on appeal from the Magistrates’ Court, convicting him without penalty of two traffic offences. Both proceedings concerned self-represented litigants who claimed not to have received a fair hearing in the court below.
[3]Roberts v Harkness (2018) 57 VR 334.
[4]Roberts v Harkness, [58]-[61], [66].
[5]Roberts v Harkness, [62]-[67].
[6]Harkness v Roberts [2018] HCASL 372.
On 29 August 2018, the same day that the Court of Appeal dismissed his appeal, Mr Harkness filed a notice of appeal to the County Court against the orders of the Magistrates’ Court made on 17 June 2016. The appeal was brought under s 254 of the Criminal Procedure Act.
The prosecution applied to strike out the appeal, on the basis that the County Court had no jurisdiction to hear it. The basis for that application was s 273 of the Criminal Procedure Act, which provides that a person who appeals under Pt 6.2 to the Supreme Court on a question of law ‘abandons finally and conclusively’ any right to appeal to the County Court in relation to the same proceeding.
The parties filed written submissions in relation to the County Court’s jurisdiction, and Judge Mullaly heard oral argument on 11 December 2018. His Honour gave his decision on 25 February 2019, with oral reasons that were later transcribed. His Honour held that the words of s 273 are clear, and not open to the interpretation that Mr Harkness sought to give them. The judge said that the legislation allows for a choice between an appeal on a question of law to the Supreme Court, or an appeal to the County Court. The judge said further that Mr Harkness chose to appeal on a question of law to the Supreme Court, thereby abandoning finally and conclusively any other rights of appeal under the Criminal Procedure Act – including an appeal to the County Court. Accordingly, his Honour ordered that the appeal be struck out for want of jurisdiction.
Some months later, on 23 September 2019, Mr Harkness commenced this proceeding in the Supreme Court. He did so by filing an originating motion seeking a declaration to the effect that the County Court has jurisdiction to hear his appeal, notwithstanding s 273 of the Criminal Procedure Act and Judge Mullaly’s decision of 25 February 2019. Mr Harkness did not seek judicial review, under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), of the County Court order striking out the appeal, and did not seek to have that order quashed or set aside.[7]
[7]There is a 60 day time limit for commencing a proceeding under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), which can be extended only in special circumstances: see r 56.02. The time limit had expired well before Mr Harkness commenced this proceeding.
When he commenced this proceeding, Mr Harkness gave notice of questions of law under the Charter of Human Rights and Responsibilities Act 2006 (Vic), in accordance with s 35 of the Charter. Neither the Attorney-General nor the Victorian Equal Opportunity and Human Rights Commission intervened in relation to those questions.
Mr Harkness also sought a stay of the orders of the Magistrates’ Court made on 17 June 2016. That application was dismissed by Judicial Registrar Clayton on 13 November 2019.
The proceeding was initially listed for trial on 15 October 2020. At that time, almost all hearings in the Supreme Court were being conducted remotely by audio-visual link, due to the COVID-19 pandemic. Mr Harkness sought an adjournment of the trial, due to his strong preference for an in person hearing. While his adjournment application was refused, the trial could not proceed due to judicial unavailability. It was ultimately relisted and heard in person on 15 December 2022.
For the reasons that follow, the proceeding must be dismissed.
Criminal Procedure Act – relevant provisions
The Criminal Procedure Act was enacted by the Parliament of Victoria in 2009 in order to provide ‘one integrated set of criminal procedure laws’.[8] The first of the purposes set out in s 1 is ‘to clarify, simplify and consolidate the laws relating to criminal procedure in the Magistrates' Court, the County Court and the Supreme Court’.
[8]Victoria, Parliamentary Debates, Legislative Assembly, 4 December 2008, 4982 (Rob Hulls, Attorney-General).
Chapter 6 of the Criminal Procedure Act provides for appeals and cases stated, as follows:
(a) Part 6.1 – Appeal from Magistrates’ Court to County Court;
(b) Part 6.2 – Appeal from Magistrates’ Court to Supreme Court on a question of law;
(c) Part 6.3 – Appeal and case stated from County Court or Trial Division of Supreme Court to Court of Appeal; and
(d) Part 6.4 – Second or subsequent appeal to Court of Appeal.
Part 6.1 has four divisions. Division 1 deals with appeals by an offender, and is relevant here. Divisions 2 and 3 provide for appeals by the Director of Public Prosecutions, against sentence and for failure to fulfil an undertaking, which are not relevant here. Division 4 contains procedural provisions.
Within Pt 6.1, Div 1, s 254 provides a right of appeal for a person convicted of a criminal offence in the Magistrates’ Court, as follows:
Right of appeal
(1) Subject to subsection (2), a person convicted of an offence by the Magistrates' Court in a criminal proceeding conducted in accordance with Part 3.3 may appeal to the County Court against—
(a) the conviction and sentence imposed by the court; or
(b) sentence alone.
Note
See the definitions of conviction and sentence in section 3.
(2) If the Magistrates' Court was constituted by the Chief Magistrate who is a dual commission holder, the appeal is to be made to the Court of Appeal.
Section 255(1) provides that an appeal under s 254 is commenced by filing a notice of appeal with a registrar of the Magistrates’ Court within 28 days after the day on which the sentence of the Magistrates’ Court is imposed. A notice of appeal filed after the end of the 28 day appeal period is deemed to be an application for leave to appeal.[9] The County Court may grant leave to appeal if it considers that the failure to file a notice of appeal within time was due to exceptional circumstances, and is satisfied that the respondent’s case would not be materially prejudiced because of the delay.[10]
[9]Criminal Procedure Act 2009 (Vic), s 263(1).
[10]Criminal Procedure Act, s 263(2).
An appeal under s 254 must be conducted as a rehearing.[11] On the hearing of the appeal, the County Court must set aside the sentence of the Magistrates’ Court and may impose any sentence which the court considers appropriate and which the Magistrates’ Court imposed or could have imposed.[12]
[11]Criminal Procedure Act, s 256(1).
[12]Criminal Procedure Act, s 256(2).
Part 6.2 has only two sections, ss 272 and 273.
Section 272 provides for an appeal to this Court on a question of law, relevantly:
Appeal to Supreme Court on a question of law
(1) A party to a criminal proceeding (other than a committal proceeding) in the Magistrates' Court may appeal to the Supreme Court on a question of law, from a final order of the Magistrates' Court in that proceeding.
…
(3) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of the Supreme Court within 28 days after the day on which the order complained of was made.
…
Section 273 provides:
Appeal on question of law precludes appeal to County Court
If a person appeals under this Part to the Supreme Court on a question of law, that person abandons finally and conclusively any right under this or any other Act to appeal to the County Court in relation to that proceeding.
Supreme Court’s jurisdiction to make declarations
At the trial of this proceeding, Mr Harkness accepted that s 273 of the Criminal Procedure Act could not be clearer, and that the County Court did not have jurisdiction to hear his appeal. He took no issue with Judge Mullaly’s ruling and did not seek an order that it be quashed or set aside.
Rather, Mr Harkness sought a declaration conferring jurisdiction on the County Court. He submitted that the Supreme Court has power to make such an order, under s 85 of the Constitution Act 1975 (Vic) and s 33ZF of the Supreme Court Act 1986 (Vic), notwithstanding s 273 of the Criminal Procedure Act. I understood him to argue that the Supreme Court’s power to make a declaration conferring jurisdiction on the County Court arose from its power to interpret legislation.
I am unable to accept this submission. The Supreme Court’s power to make declarations is undoubtedly broad,[13] but it does not extend to amending legislation to change the plain meaning of a statutory provision or conferring new jurisdiction on an inferior court or tribunal. The Court’s power to grant declaratory relief is ‘confined by the considerations which mark out the boundaries of judicial power’.[14] For that reason, a declaration ‘must be directed to the determination of legal controversies’.[15]
[13]Supreme Court Act 1986 (Vic), s 36. Section 33ZF, which was relied on by Mr Harkness, applies only to group proceedings brought under Pt 4A of the Supreme Court Act.
[14]Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ).
[15]Ainsworth, 582 (Mason CJ, Dawson, Toohey and Gaudron JJ).
The interpretation of legislation by the Supreme Court – or any other court – involves ascertaining the meaning of the words actually used by Parliament, and does not extend to judicial legislation.[16] Contrary to Mr Harkness’ submission, the Court cannot alter the plain meaning of legislation by way of a declaratory judgment. To do so would be to cross the boundaries of judicial power into the domain of the legislature.
[16]R v Young (1999) 46 NSWLR 681, [5]-[35] (Spigelman CJ); Taylor v Owners – Strata Plan No 11564 (2014) 253 CLR 531, [38] (French CJ, Crennan and Bell JJ).
While the Supreme Court can grant declaratory relief to determine a legal controversy between the parties, in this case there is no legal controversy. Mr Harkness accepts that the effect of s 273 of the Criminal Procedure Act is that the County Court does not have jurisdiction to hear his appeal under s 272.
Interaction between rights of appeal and judicial review
A key contention made by Mr Harkness in this proceeding was that his initial challenge to the orders of the Magistrates’ Court should have been brought as a judicial review proceeding under Order 56 of the Rules, and not as an appeal on a question of law under s 272 of the Criminal Procedure Act. Had he brought a judicial review proceeding instead of an appeal, he would not have finally and conclusively abandoned his right to appeal to the County Court under s 254 of the Criminal Procedure Act.
There are at least three reasons why this contention cannot succeed.
First, it is well established that judicial review should not be used as an alternative to a statutory right of appeal. Unless there are exceptional circumstances, a litigant should not raise a question of law in a judicial review proceeding where the litigant has a statutory right of appeal – in this case, under s 272 of the Criminal Procedure Act.[17] If Mr Harkness had chosen to bring a judicial review proceeding rather than appeal under s 272, he would have encountered this argument. If he had made out his case for relief, the relief would likely have been refused on discretionary grounds.[18]
[17]Kuek v Victoria Legal Aid (2001) 3 VR 289, [16]-[17]; Victorian WorkCover Authority v BSA Ltd [2017] VSCA 276, [10]; Glenister v Wayne Horne Earthmoving Pty Ltd [2018] VSC 390, [45].
[18]This consideration did not apply to the judicial review proceeding brought by Mr Kyriazis that was also determined in Harkness and Kyriazis, because there is no statutory right of appeal from an order of the County Court on an appeal from the Magistrates’ Court.
Second, Mr Harkness tried to draw a distinction between questions of law and questions of procedure. He said that his grievance with the Magistrates’ Court’s orders of 17 June 2016 was purely procedural and did not involve a question of law, and so an appeal under s 272 was the wrong avenue. However, a complaint of procedural unfairness does involve a question of law, just as a denial of procedural fairness amounts to an error of law. Mr Harkness chose the correct procedure for ventilating his complaint that he did not receive a fair hearing in the Magistrates’ Court. There was no issue before Bell J or the Court of Appeal that s 272 was the appropriate procedure.[19]
[19]Harkness and Kyriazis, [2], [34]; Roberts v Harkness, [6], [21].
Third, Mr Harkness overlooked the 28 day time limit for commencing an appeal under s 254 of the Criminal Procedure Act. Even if he had pursued his complaint of procedural unfairness in a judicial review proceeding, this time limit had well and truly expired by the time of the Court of Appeal’s decision in August 2018. After the expiry of the time limit, there is no longer a ‘right’ of appeal under s 254. An appeal lodged out of time is deemed to be an application for leave to appeal. The County Court can only grant leave if it is satisfied both that the failure to file a notice of appeal within time was due to exceptional circumstances, and that the respondent’s case would not be materially prejudiced because of the delay.[20] These would have been significant hurdles for Mr Harkness to clear.
[20]See, eg, Cao v Collister [2022] VSC 36.
In summary, Mr Harkness was correct to choose to appeal on a question of law under s 272 of the Criminal Procedure Act. A judicial review proceeding was not a better alternative, and pursuing that alternative would not have preserved Mr Harkness’ right of appeal under s 254 of the Criminal Procedure Act.
Compatibility with Charter rights
Mr Harkness urged me to interpret s 273 of the Criminal Procedure Act compatibly with his human rights under the Charter. He relied on a number of those rights, in particular the fair hearing right in s 24(1), several of the criminal procedure rights in s 25(2),[21] and the right in s 25(4) for a person convicted of a criminal offence to have the conviction and any sentence reviewed by a higher court in accordance with law. These rights, in particular s 24(1), reflect the recognition by the common law and various international human rights instruments that a person charged with a criminal offence should receive a fair hearing.[22]
[21]Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 25(2)(d), (g), (h).
[22]See, eg, Dietrich v R (1992) 177 CLR 292; International Covenant on Civil and Political Rights, art 14(1); Universal Declaration of Human Rights, art 10. Mr Harkness also referred me to the New King James Bible, Matthew 18:15-17, which is consistent with the right of review by a higher court in s 25(4) of the Charter.
Section 32(1) of the Charter provides that, so far as is possible consistent with its purpose, a statutory provision should be interpreted in a way that is compatible with human rights. Where a provision is capable of more than one meaning, it should be given the meaning that ‘best accords with the human right in question’.[23] However, s 32(1) of the Charter does not enable a court to give a provision a meaning that it could not have reached using ordinary principles of statutory interpretation.[24] Section 32(1) has no effect on a provision that has only one possible meaning.
[23]Slaveski v Smith (2012) 34 VR 206, [24], [45].
[24]Slaveski, [24].
Section 273 of the Criminal Procedure Act is such a provision. As Mr Harkness agreed, its meaning could not be clearer. The purpose of the provision is to require a convicted person to make an irrevocable choice between two possible avenues of appeal. There is no way to interpret the words used to mean anything other than that a person who appeals on a question of law under s 272 foregoes any right of appeal to the County Court.
The statement of compatibility for the Criminal Procedure Act confirms that there was a deliberate legislative choice to provide two mutually exclusive rights of appeal from the Magistrates’ Court in a criminal proceeding. Introducing the Criminal Procedure Bill 2008, the Attorney-General tabled a statement of compatibility under s 28 of the Charter, which noted the various human rights that were engaged by the Bill. In relation to the right of review by a higher court in s 25(4) of the Charter, the statement of compatibility said that ‘the bill provides comprehensive appeal rights to the County Court from the Magistrates Court against conviction and sentence on a de novo basis’.[25] An accused ‘can choose instead to appeal on a question of law to the Supreme Court from the Magistrates Court’, a right of appeal that provides an avenue for the accused who wishes to have a legal error corrected rather than the case reheard.[26]
[25]Victoria, Parliamentary Debates, Legislative Assembly, 4 December 2008, 4979 (Rob Hulls, Attorney-General).
[26]Ibid.
For completeness, I do not consider the plain meaning of s 273 to be incompatible with the Charter rights relied on by Mr Harkness, in particular s 25(4). The Criminal Procedure Act confers two alternative rights of appeal on a person convicted of a criminal offence in the Magistrates’ Court. Section 273 merely requires a person to elect between those alternatives.
Disposition
For those reasons, the Court cannot grant the relief sought by Mr Harkness.
I should add that I would not have made the declaration that he sought, even if I had the power to do so. I do not agree with Mr Harkness that he has never been heard in relation to the charges that brought him before the Magistrates’ Court at Seymour on 17 June 2016. On that day, he attended a contested hearing in relation to those charges. Instead of calling evidence and making submissions about conviction and sentence, he used the occasion to contest the jurisdiction of the Magistrates’ Court on grounds that lacked any legal foundation. When that did not succeed, Mr Harkness persistently engaged in disruptive and disrespectful behaviour that led to his exclusion from the courtroom. His subsequent contrition and apology are commendable, but do not change what occurred on that day.
Following his conviction and sentence, Mr Harkness could have appealed to the County Court. Had he done so, there would have been a rehearing of the charges, in the presence of Mr Harkness. He would have been able to call witnesses and make submissions in relation to conviction and sentence. He chose instead to appeal on a question of law under s 272 of the Criminal Procedure Act. He commenced that appeal having read and understood the effect of s 273.
The law provided Mr Harkness with opportunities to be heard and reheard in relation to the charges. He chose not to take those opportunities, as he was entitled to do. Having made those choices, fairness does not require that he should have any further hearing or right of appeal.
The proceeding must be dismissed. I will hear the parties on the question of the costs of the proceeding.
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