Holt v The King

[2023] VSCA 165

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0114

MICHAEL THOMAS HOLT	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST and NIALL JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	12 July 2023
DATE OF JUDGMENT:	12 July 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 165
JUDGMENT APPEALED FROM:	DPP (Cth) v Holt (Unreported, County Court of Victoria, 3 July 2023, Deputy Chief Judge Sexton)

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CRIMINAL LAW – Interlocutory appeal – Application to review of refusal to certify – Indictment for contravening a proceeding suppression order – Application for adjournment – Application refused.

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Counsel
Applicant:		No appearance
Respondent:		Ms K Breckweg
Solicitors
Applicant:	Unrepresented
Respondent:	Commonwealth Director of Public Prosecutions

PRIEST JA
NAILL JA:

1. The applicant sought an adjournment of the proceeding in this Court. That application is refused.

2. By an email dated 6 July 2023 from the Court’s Registry to the applicant (and others) he was advised that ‘in-person hearings will be the default position for all substantive hearings’ in this Court, but that ‘the default position may be departed from if the circumstances warrant’.

3. By an email from the applicant dated 7 July 2023, the applicant sought permission to appear at today’s hearing by WebEx. His reasons — as contained in the email to the Registry — are not persuasive. They were as follows:

   1.My eldest daughter, age 23, has been ill for the past week with hot and cold flushes, a rash all over her body, headaches and swelling in her limbs. She spent Wednesday in Hospital undergoing tests but the doctors still have not worked out what the problem is. She will return to hospital today as the problem is getting worse. She is alone in the house with no one to look after her and my wife and I are very worried about her health. I have attached a video she sent us yesterday. Please excuse her language. She is obviously in pain.

   2.We planned to stay one week in Melbourne for the County Court trial, but now circumstances have changed and we are waiting for the hearing on my Interlocutory appeal in the Supreme Court. Staying here any longer will put a severe strain on our finances, as I depend only on my Veteran's service and disability pension. I cannot afford to stay in Melbourne another week.

   3.My wife must return to work on Monday, July 10, as we depend on her salary to augment my pension.

   4.We are booked to fly back to the Sunshine Coast on Sunday morning, July 9.

4. The applicant then sent another email to the Registry, dated 10 July 2023, which (among other things) contained the following:

   TAKE NOTE: I have been unable to raise the money needed to travel to Melbourne and stay for as long as my appeal hearing is in progress.

   By claim of right that necessity overrules Rules, and as the prosecutors have also applied to appear by video link I request the same courtesy. If you choose to ignore the 78B notice under the Judiciary Act 1903, I request again that I be allowed to appear on Wednesday 12 July 2023 by Webex video link. If the court continues to demand my personal appearance, order the State of Victoria to pay my return airfares from Queensland, and pay for my accommodation for as long as the hearing continues.

   I also question the jurisdiction of the prosecution. Are they state bound, or Commonwealth bound, and please advise their powers and jurisdiction?

5. By an email that same day, 10 July 2023, an officer of the Registry replied as follows:

   The Court has again considered your request to appear by Webex and has refused to grant you permission to appear remotely.

   You are expected to attend the hearing of your application on 12 July 2023 in person. If you do not attend the hearing on 12 July 2023, the matter will be dealt with in your absence.

6. Later that same day, the applicant replied by email in the following terms:

   I live in Queensland and I am at home now. I have already explained that I am a Vietnam veteran pensioner on a limited income. I cannot afford to just jump on a plane at your whim, when it is perfectly reasonable for me to appear by video, just as I have done over the last two years in the County Court.

   It is unconstitutional to hear my appeal and give a judgement without my presence. Please explain why the court continues to insist that I appear in person. Is there a valid reason for this decision, which will severely inconvenience me?

   Please put the reasons for your decision in writing so that I can appeal it in the High Court.

7. Presently, the applicant is on bail to appear at the County Court for trial. He has previously refused to answer his bail in that Court — claiming that the County Court is without jurisdiction to try him — leading to a warrant being issued for his arrest. Having failed to persuade Deputy Chief Judge Sexton that the County Court has no jurisdiction, the applicant sought to invoke the jurisdiction of this Court. In those circumstances, it is incumbent upon him to abide by this Court’s practice and procedure.

8. The applicant was advised that the Court required his personal attendance. His response was that he ‘cannot afford to jump on a plane at [the Court’s] whim’. Ignoring the discourtesy evident in that response, the Court is of the view that the efficient disposition of the proceeding in this Court required the applicant’s personal attendance. No good reason has been demonstrated to depart from the usual practice. Indeed, in circumstances in which, by an interlocutory appeal, he seeks to invoke the jurisdiction of this Court, the applicant should be present and amenable to the Court’s jurisdiction.

9. When considering whether to grant an adjournment, the touchstone must always be what the interests of justice require. The interests of justice require the Court not only to consider the interests of the applicant, but also those of the prosecution in having the charge against the applicant disposed of without inordinate delay, and the interests of the courts in not having their business unduly disrupted. Perusal of the written material upon which the applicant seeks to rely — his notice, dated 4 July 2023, and accompanying affidavit, together with his undated ‘speech’ (‘Speech I will give if the Court of Appeal will listen’) — demonstrates that his application to this Court is completely bereft of merit. In those circumstances, the interests of justice demand refusal of the adjournment sought by the applicant.

10. The application for adjournment is refused accordingly.

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