Queen Polena Ii Berezovsky (aka Nelly Vysotskaya) v Director of Public Prosecutions (Commonwealth)

[1995] FCA 211

IN THE FEDERAL COURT OF AUSTRALIA  )Limited Distribution
  )
NEW SOUTH WALES DISTRICT REGISTRY  )     No NG 59 of 1995
  )
GENERAL DIVISION                  )

BETWEEN:     QUEEN POLENA II BEREZOVSKY (aka NELLY VYSOTSKAYA)

Applicant

AND:     DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH)

Respondent

CORAM:    HILL J
PLACE:    SYDNEY
DATED:    3 MARCH 1995

REASONS FOR JUDGMENT

The applicant, Polena Berezovsky, applies to the Court for an order that a decision, said to have been made by the respondent, Director of Public Prosecutions, be reviewed.  The decision is said to be a decision that:

"The child and travel documents be seazured, or to prosecute the applicant." [sic]

The applicant says she is aggrieved by the decision because "the administively charges are wrong" [sic].  The grounds of the application are said to have been set out in a affidavit accompanying it.  In that affidavit Berezovsky says:

"`I reject the charges', utter a forged Commonwealth document, attempt to take child out of Australia without consent.  Informed by member of Australian Federal Police Yarrow, Detective Constable.  2. It
is Munen Djarabee's style: `I never gave such consent'.  3. There is an error of the child's name, Oksana Munerjawabreh.  The correct name is Oksana Munerovia Djavabre. 4. The charges were made since 11 July 1994." [sic]

The reference to Munen Djarabee's "style" is a reference to the applicant's ex-husband and apparently suggests that it is normal conduct on the part of applicant's ex-husband to make allegations which she does not agree with. 
         The application arises out of an incident that appears to have occurred on 11 July 1994 at Sydney Airport.  In the comments that follow I make no findings of fact as such.  The facts narrated are those which have been put in evidence by the respondent and there has been no evidence on the part of the applicant in these proceedings to negate them.
         It seems that the applicant and her daughter were at Sydney Airport at 8.19 am on 11 July 1994.  The applicant had passports, outgoing passenger cards and airline tickets.  She was apparently seeking to leave the country.

She was apprehended through a warning system at the airport because, it is alleged against her, that there was an order of the Family Law Court which prevented her from departing Australia without the permission of the child's father.  It appears that the applicant denied this and said that the police had the wrong people.  The passports presented were a passport in the name of Nelly Vysotskaya, numbered K3094491 and Oksana Djavabre, numbered K3094492.  Both these passports were Australian passports.  The name Nelly Vysotskaya is the applicant's maiden name.  She apparently has subsequently sought to change her name and seeks to have herself known in the name in which the present application has been brought.

She says, in a signed statement although not on oath, that she was travelling in July 1994 with her daughter and never signed any agreement for divorce, access or custody.  In this and in other things she likens herself to "Queen Elizabeth".  Arising out of this incident, charges were laid.

The first is that the applicant had attempted to take from Australia Oksana Djavabre, being a child subject to an order under the Family Law Act 1975, in relation to custody and access, without permission of the other party to the order or the permission of a court of Australia.

The second charge is that on or about 4 July 1994 she uttered, knowing it to be forged, a document deliverable to the Department of Foreign Affairs and Trade, being an Australian passport application in the name of Oksana Djavabre, dated 29 June 1994.  On that application is said to be the signature consenting to it of the child's father.  The forgery is said to relate to that signature.  These charges are scheduled for hearing in the District Court, Downing Centre, on or about 20 March in this year.

The applicant commenced these proceedings without legal representation and was unrepresented in the proceedings before me.  The substance of her complaint is that she was not guilty.  This is what I understand by her saying that she rejects the charges against her.  That may very well be the case, but innocence or guilt of the offence is a matter for the District Court to determine, not a matter which I am charged to decide under the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("ADJR") which, together with s.39B of the Judiciary Act (1903), would seem to be the only basis for the present application.

I raised with the applicant two problems. The first is that a considerable time has now elapsed since the decision complained of without action being taken or explanation given. The second, but fundamentally much more important, is that no ground was raised which would be a ground for judicial review under the provisions of the ADJR Act. I pointed out to her that that Act raises specific grounds, all of which involve error of law. The Act does not permit a review of administrative decision by this Court on the grounds of some factual error.

I suggested that she should seek advice and adjourned the matter for a short time to enable that to occur.  At that time I refused a suggestion that the matter should be adjourned for some further days.  On the matter coming back before me the applicant first raised, as the relevant error, the fact that she had not consented to orders in the Family Court.  That, of course, was a matter she had initially raised but it is a matter of fact and not of law.

She then referred me to a passage from an administrative law textbook which indicates that there is a ground of review that an applicant has not been fully informed. She says that neither before the decision was taken to prosecute her nor in the months that have thereafter followed, has she been fully informed. Events after the decision, even if they were in evidence, are irrelevant for present purposes. The decision which I must make is whether the applicant has established one of the defined kinds of error which are made grounds for review under the provisions of the ADJR Act. The passage relied upon relates to natural justice and no doubt there are occasions when a decision-maker must put matters to a person affected by that decision to enable him or her to reply before a valid decision has been made. The question whether natural justice applies is a question which must be determined by reference to the particular context in which the issue arises.

In the present case, lengthy interviews were held between members of the Australian Federal Police and the applicant.  Transcripts of these interviews were in evidence before me.  It is possible that the applicant did not understand all that was said to her in those interviews.  She has been present today in court with an interpreter, although from my observations of her, her English is not at all poor, although perhaps lacking in technical expressions.

Be that as it may, there is no obligation as a matter of law upon an informant charging a person with an offence to do more than indicate the nature of the offence with which the person is charged.  In the present case much more than that has indeed happened and it is difficult to see how the applicant is not fully aware of all matters of which she has been charged and which ultimately will arise for hearing in the District Court on 20 March.

There is a further difficulty in the way of the review.  The full court of this Court has made it quite clear that, in the ordinary case at least, in the exercise of discretion the Court should not intervene in criminal proceedings taking place in other courts.  I need only refer to the decision of the full court of this Court in Smiles v Commissioner of Taxation (1992) 37 FCR 538. The present does not appear to be a case where abuse of process is indeed alleged, but even if it were the District Court is in as good a position as this Court to ensure that its processes are not abused.

There is also the consideration, as the full court pointed out, that it is undesirable that the criminal process be fragmented by issues being taken separately in this Court and also at trial.  In my view there is no reason that has been made out for this Court becoming involved in the matter at all and to permit a further adjournment of the present proceedings, where clearly the proceedings are ill-conceived and bound to fail, would not be in the interests of justice. In determining what the interests of justice are I must consider not merely the interests of the applicant but also the interests of the State in ensuring that a prosecution proceed.  If Ms Berezovsky is innocent then no doubt she will be able to establish her innocence in those proceedings.

In these circumstances I would dismiss the application and order the applicant to pay the respondent's costs of the application.

I certify that this and the
preceding six (6) pages
are a true copy of the Reasons
for Judgment herein of his Honour
Justice Hill.

Associate:

Date:

Applicant appeared for herself.

Counsel and Solicitors      G. Johnson instructed by

for Respondent:             Department of Public Prosecutions (Cth)

Date of Hearing:            3 March 1995

Date Judgment Delivered:         3 March 1995