Rees v County Court
[2011] VSC 67
•11 March 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 04748 of 2009
| MARK JOHN REES | Plaintiff |
| v | |
| COUNTY COURT & ORS | Defendants |
---
JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 February 2011 | |
DATE OF JUDGMENT: | 11 March 2011 | |
CASE MAY BE CITED AS: | Rees v County Court | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 67 | First Revision: 16 March 2011 |
---
ADMINISTRATIVE LAW – Judicial review – Application for certiorari – Alleged jurisdictional error – Appeal to County Court from Magistrates’ Court – Plaintiff convicted of unlawful possession – Observations as to whether deficient fact-finding by courts of limited jurisdiction in criminal proceedings can be jurisdictional error – Power to review assumed – No jurisdictional error – Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Burnside QC and Mr M Albert | Wisewould Mahony |
| For the Second Defendant | Dr S McNicol | Office of Public Prosecutions |
HIS HONOUR:
Overview
In this application for judicial review of an order made by the County Court in an appeal from the Magistrates’ Court in a criminal proceeding, important and difficult legal issues have been raised about the extent to which, if at all, deficient fact finding by inferior courts in ordinary summary criminal proceedings in Victoria might amount to jurisdictional error. However the plaintiff has not made out the deficiencies he alleges; and the legal issues have not been fully argued. Accordingly it is neither necessary nor appropriate to express concluded views on the legal issues.
The proceedings below and the application for judicial review
The plaintiff, Mr Mark Rees, was charged by Senior Constable Skeet, the second defendant, that on 23 April 2007 he did, without lawful excuse, have in his possession articles, namely spray paint cans, bolt cutters, disposable gloves and a respirator, with the purpose of using them to damage property belonging to another person, contrary to s 199 of the Crimes Act 1958. He was convicted of this offence in the Magistrates’ Court and was sentenced. He appealed against the conviction and sentence to the County Court pursuant to s 83 of the Magistrates’ Court Act 1989 as then in force (“the Act”). In accordance with ss 85 and 86 of the Act, the matter came on for a de novo hearing before His Honour Judge Duggan on 17 December 2008. Mr Rees was convicted afresh and was sentenced to 3 months’ imprisonment to be served by way of an intensive corrections order. There was no avenue of appeal from that conviction.[1]
[1]Appeal is a creature of statute. No statutory provision provides for any further appeal.
Mr Rees now seeks an order in the nature of certiorari under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 to quash the orders made by Judge Duggan. In his amended originating motion, which was filed at the hearing before me by leave, Mr Rees relies on two grounds, expressed as follows:
“1.The finding of His Honour Judge Duggan that the Plaintiff possessed the requisite intention to destroy or damage property was made in the absence of probative evidence, and was against the evidence. The decision was therefore affected by jurisdictional error.
Particulars
a.The Plaintiff was found in possession of spray cans and graffiti magazines.
b.The Plaintiff presented unchallenged evidence that he is an artist by occupation, and was in possession of the aforementioned items for the purpose of painting lawfully commissioned artworks.
c.Photographs of paintings done by the Plaintiff using spray cans were received in evidence.
d.There was no evidence that the Plaintiff had ever used the spray cans to destroy or damage property.
e.His Honour Judge Duggan found that possession of the spray cans and graffiti magazines was sufficient evidence from which to draw an inference of intention to destroy or damage property.
f.The inference was not open on the evidence, and was contrary to the Plaintiff’s unchallenged evidence.
2.The Plaintiff was not afforded procedural fairness, as the finding relating to the intention element of the offence was so unreasonable that no reasonable decision maker could make it.
Particulars
a.The Plaintiff refers to and repeats the particulars set out at paragraph 1.
b.Mere possession is not sufficient to constitute the element of intention in respect of the offence.”
Modification of the grounds of review
At the hearing the plaintiff’s counsel did not press the proposition that unreasonableness (of the kind alleged in ground 2) is a species of procedural unfairness or want of natural justice.[2] Hence ground 2 became instead simply an allegation, based on the same particulars as ground 1, that the decision was so unreasonable that no reasonable person could make it. Like ground 1, this was said to amount to an allegation of jurisdictional error. There is no extant natural justice ground. Nor is there any ground alleging error of law on the face of the record.[3]
[2]See Transcript, p 28.
[3]Compare Easwaralingam v DPP [2010] VSCA 353; Torney v Victoria Legal Aid [2010] VSC 631.
Can deficient fact-finding by the County Court amount to jurisdictional error?
In the written outline of submissions filed on behalf of the plaintiff in advance of the hearing it was asserted, in effect, by his solicitors (who, in the best traditions of the legal profession, were acting for the plaintiff pro bono) that in an appeal from the Magistrates’ Court in a criminal proceeding it would be jurisdictional error on the part of the County Court to make a finding of guilt that was unsupported by any probative evidence. As authority for that proposition the plaintiff’s solicitors cited Australian Broadcasting Tribunal v Bond[4], Craig v South Australia,[5] Clark v Ryan,[6] GTE (Australia) Pty Ltd v Brown,[7] R v Deputy Industrial Injuries Commissioner; ex parte Moore,[8] and Curragh Queensland Mining Limited v Daniel.[9] In response the second defendant (the informant) filed a written outline signed by a Crown Prosecutor in which the plaintiff’s proposition was implicitly accepted. No comment was made on the cases just mentioned.
[4](1990) 170 CLR 321 at 358 per Mason CJ.
[5](1995) 184 CLR 163 at 177.
[6][2005] VSCA 311 at [23].
[7](1986) 14 FCR 309 at 336 per Burchett J.
[8](1965) 1 QB 456 at 488.
[9](1992) 34 FCR 212 at 220-221.
Similarly, it was asserted by the plaintiff’s solicitors in their outline, and implicitly accepted by the Crown Prosecutor in his response, that it would be jurisdictional error for the County Court to make a finding of guilt that was so unreasonable that no reasonable person could make it. The plaintiff’s solicitors cited only one case, Associated Provincial Picture Houses Ltd v Wednesbury Corporation,[10] as authority for that proposition. Again, there was no comment on this case by the Crown Prosecutor in his responding outline.
[10][1948] 1 KB 223.
At the hearing Mr Burnside QC appeared with Mr Albert for the plaintiff. They too were acting pro bono. During discussions I suggested to Mr Burnside that, whether or not either of the abovementioned legal propositions was sound, neither of them was established by the cases cited in the plaintiff’s written outline of submissions. He did not disagree.[11] Bond, Brown, Moore and Daniel all relate principally to judicial review of administrative decisions. They do not deal directly with jurisdictional error by inferior courts. Craig does include observations about jurisdictional error by inferior courts, but it offers no clear support for the plaintiff’s position in this regard.[12] In Clark v Ryan, the Court of Appeal merely assumed in the appellant’s favour, without deciding, that “egregious error” in fact finding by the County Court in an appeal from the Magistrates’ Court in a criminal matter could amount to jurisdictional error. Certain important cases to which I refer in the next paragraph were apparently not cited to the Court of Appeal in Clark v Ryan. Wednesbury was a case concerning the exercise of a statutory discretion by a municipal authority. In Australia, the question whether the concept of “Wednesbury unreasonableness” has any application to judicial review for jurisdictional error in relation to non-discretionary decisions (whether made by administrative bodies or inferior courts) is controversial, to say the least.[13]
[11]Transcript pp 51-54. Neither Mr Burnside QC nor Mr Albert had signed, or been named as authors of, the plaintiff’s written outline of submissions.
[12]See the summary in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 573-574 [71]-[73] of Craig’s explanation of the ambit of jurisdictional error in the case of an inferior court.
[13]See, eg, Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th edition, 2010, [5.75], [6.205]; Minister for Immigration v SZMDS (2010) 240 CLR 611 at 624 [39], 647-648 [128]-[130].
I put to Mr Burnside that the longstanding decision of the High Court in Parisienne Basket Shoes Pty Ltd v Whyte,[14] and cases which have followed Parisienne, might stand in the way of the proposition that factual error (however egregious) by a State inferior court in the course of determining a criminal charge could amount to jurisdictional error. In Parisienne, an appeal from Victoria, it was held that the justices before whom an information came for hearing had jurisdiction to determine whether it was laid within the statutory period or not; that if they made an erroneous decision in doing so, they were still acting within the limits of their jurisdiction; and that, accordingly, prohibition would not lie. Mr Burnside’s attention having then been drawn to certain passages in the recent judgment of the High Court in Kirk v Industrial Court of New South Wales,[15] he submitted that some of the observations which had been made in Parisienne were difficult to reconcile with Kirk and probably should be read down accordingly.[16] At one stage Mr Burnside flirted with the idea of submitting, in reliance on Kirk,[17] that upon judicial review the Supreme Court could step into the shoes of the inferior court and decide the facts and merits of the criminal case de novo for itself,[18] but Mr Burnside ultimately retreated from this.[19] Indeed he conceded at another stage that,[20] so far as any relationship between defective fact-finding and jurisdictional error is concerned, the test applicable to inferior courts could not be stricter than the test applicable to administrative tribunals.[21] That in turn led to a discussion of the subsequent judgment of the High Court in Minister for Immigration and Citizenship v SZMDS.[22] That case concerned a decision of the Refugee Review Tribunal established under the Migration Act 1958 (Cth). The respondent contended that the Tribunal had fallen into jurisdictional error in determining that it was not “satisfied”, for the purposes of s 65 of the Act, that he was a person to whom Australia owed protection obligations. The respondent contended that the Tribunal had reached a certain important factual conclusion by an illogical or irrational process of reasoning. In that context, Gummow A-CJ and Kiefel J held that a decision will be infected with jurisdictional error when a condition precedent to the discharge of an obligation is a state of satisfaction and that state of satisfaction was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. [23] Crennan and Bell JJ expressed themselves similarly, although they added that, in the context of the Tribunal’s decision, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean that the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. [24] They said that “the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings of fact it did make on the material before it”. [25] They also said that a decision “might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn”. [26]
[14](1938) 59 CLR 369.
[15](2010) 239 CLR 531.
[16]Transcript, p 63.
[17](2010) 239 CLR 531, especially at 575 [75]-[76].
[18]Transcript, pp 58-59.
[19]Transcript, p 59, cf p 68.
[20]Transcript, pp 64-65.
[21]See and compare Craig v South Australia (1995) 184 CLR 163 at 176-180.
[22](2010) 240 CLR 611.
[23]Their Honours were in dissent as to the result, but their statements of principle were, at least in large part, similar to those of Crennan and Bell JJ.
[24](2010) 240 CLR 611 at 647-648 [130].
[25]At 648 [133].
[26]At 649-650 [135].
Both Kirk and SZMDS were discussed by J Forrest J in Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria,[27] a decision given on the last working day before the hearing in the present case. His Honour found jurisdictional error in a refusal by a magistrate, in the course of a committal hearing, to set aside a witness summons. The Commissioner had contended that the magistrate’s decision was unsupported by any or any probative evidence and that the magistrate had drawn inferences that were unreasonable, irrational or illogical. J Forrest J proceeded on the basis that the statements of principle by Crennan and Bell JJ in SZMDS were applicable in this context. Applying them, his Honour determined that the magistrate’s decision was lacking an evidentiary foundation and was illogical and should therefore be quashed on the ground of jurisdictional error. (A related ground of error of law on the face of the record also succeeded.)
[27][2011] VSC 3.
In the present case, Mr Burnside ultimately urged me to follow the approach of J Forrest J. He submitted that the recent cases had blurred the distinction which had been drawn in Craig between administrative bodies and courts in relation to jurisdictional error, although he accepted that the law in this area could not be regarded as settled.
On the other hand, Dr McNicol, who appeared as counsel for the second defendant, submitted that Kirk had not brought about such a large departure from Craig as Mr Burnside had suggested. Departing from the implicit concession previously made by the Crown Prosecutor, Dr McNicol submitted that the complaints sought to be made by Mr Rees did not constitute complaints of jurisdictional error. She denied that Judge Duggan had erred at all, but contended that any error of the kind alleged would be an error made within jurisdiction. She submitted that for a court (as distinct from an administrative body) to proceed without evidence or irrationally or illogically is not, of itself, jurisdictional error. She submitted that any such error was not covered by any category of jurisdictional error (for a court) recognised in Craig or even in Kirk. She said that the two errors identified in Kirk were both errors of law, not errors in fact-finding: that the first involved misconstruction of the legislation under which the criminal charge was brought and that the second involved a fundamental departure from the rules of evidence.
I inquired of counsel for both sides whether there was any authority dealing directly with the question whether it was jurisdictional error for an inferior court to find an ordinary criminal charge proven in the absence of any evidence to support the finding or where the finding was reached by illogical or irrational factual reasoning. I was not informed of any such authority.
However, my subsequent researches have revealed that there are two fairly recent Victorian appellate authorities which, subject to any relevant change wrought by Kirk (or perhaps by SZMDS), would compel me to hold that neither errors of the kind alleged to have been made by Judge Duggan nor even fundamental errors of law (save errors as to the jurisdiction of the court) would be jurisdictional errors on the part of a County Court judge in a criminal appeal from the Magistrates’ Court: see Director of Public Prosecutions v Judge Fricke[28] and Coleman v Director of Public Prosecutions.[29] In Coleman,[30] Vincent JA said:
“Obviously, as in the case of any other criminal charge coming before the County Court, all of the elements of the offence involved must be established before a conviction may be recorded or a penalty imposed but generally speaking the jurisdiction of the court to consider the matter is not dependent upon their presence. In my view, it could not be described as ‘an essential condition’ for the existence of jurisdiction to determine whether there had been a breach of the order suspending sentence in the present case that a trafficking offence had been committed. The imposition of a suspended sentence is one of a range of dispositions available to a sentencing judge under the Sentencing Act. The legislation sets out the circumstances under which such a disposition can be made and identifies those which if established would constitute a breach. The judge was clearly empowered to determine whether a breach of the order had been committed.”
[28][1993] 1 VR 369 at 376-377.
[29](2002) 5 VR 393 at 396-398 (Batt JA), at 404-406 (Vincent JA) and at 407 (O’Bryan AJA).
[30]At 402 [29].
In Coleman, Batt JA referred to and relied upon the (pre-Craig) decision of the Court of Appeal of New South Wales in Roos v Director of Public Prosecutions,[31] a corresponding case arising from a sentence imposed by the District Court in an appeal from the Children’s Court, in which the point was made that the sentencing legislation of New South Wales applied to all courts in the State without distinction, including the Supreme Court, whose orders would not be beyond jurisdiction simply because they were beyond statutory power. [32] It was said that statutes of that kind, like the general law itself, did not define the jurisdiction of particular courts; and that “[e]rrors, even serious errors, by so-called inferior courts in applying the general law do not result in loss of jurisdiction”.[33] Similarly, post-Craig, in Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission,[34] the Court of Appeal of New South Wales held that the jurisdiction of the Industrial Relations Commission in Court Session to hear contempt proceedings, being proceedings for an offence against the Act under which the Commission was set up, and to determine whether guilt was established, did not rest upon satisfaction, as a reviewable jurisdictional fact, that the person to be punished was objectively guilty of contempt. Mason P (with whom Spigelman CJ and Handley JA agreed) referred with substantial approval[35] to the academic writings of D M Gordon on the concept of jurisdiction and in particular quoted and treated as substantially correct the following passage from an article written by Gordon in 1929:[36]
“If, therefore, an adjudication has been made by any tribunal that an assault within the statute mentioned has been committed, it is idle, so far as jurisdiction is concerned, to inquire whether the assault actually was committed; the only relevant question is, Was the tribunal that so found the tribunal whose opinion was made the test? So also where any other state of facts that constitute an offence or cause of action has been judicially found. A fortiori the questions whether the evidence before that tribunal was sufficient, or even whether there was any evidence at all, are absolutely irrelevant.
To put the point in perhaps the most striking way — every tribunal with power to investigate an alleged offence is quite within its jurisdiction in finding the accused guilty, however complete his innocence.”
On the other hand I recognise that in Kirk the plurality appeared to be of the view that the general approach of D M Gordon “took insufficient account of the public policy necessity to compel inferior tribunals to observe the law”. [37]
[31](1994) 34 NSWLR 254.
[32]At 263-264, by Handley JA, with whom Powell JA agreed; Sheller JA dissenting.
[33]At 263.
[34](2004) 60 NSWLR 602.
[35]At 615-616.
[36]D M Gordon “The Relation of Facts to Jurisdiction” (1929) 45 Law Quarterly Review 459 at 461-462.
[37]239 CLR at 569-571 [60]-[65], esp at [62]-[64].
In apparent harmony with the abovementioned point made in Roos, the High Court has held, as recently as in 2006, that non-compliance by a plaintiff with a certain generally applicable procedural limitation on the commencement of court proceedings by injured workers, imposed by s 151C of the Workers Compensation Act 1987 (NSW), did not deprive the District Court of jurisdiction to entertain the plaintiff’s claim: see Berowra Holdings Pty Ltd v Gordon.[38] The High Court noted that, in the case of superior courts, acts in excess of jurisdiction cannot be characterised as invalid until quashed or set aside on appeal, whereas that is not necessarily true of inferior courts.[39] Since workers could make claims in a range of courts, the High Court “should not prefer a construction which would result in s 151C having differential application depending upon the court in which proceedings were commenced”.[40] The Court quoted and applied the seminal passage in the judgment of Dixon J in Parisienne[41] to the effect that there is a very strong presumption that the legislature does not intend to make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do exist. Even more recently, in 2008, in Federal Commission of Taxation v Futuris Corp,[42] Gummow, Hayne, Heydon and Crennan JJ referred with apparent approval to the judgment of Dixon J in Parisienne insofar as Dixon J referred to the maintenance of “the clear distinction … between want of jurisdiction and the manner of its exercise”. In the latest edition of their leading text book on Australian administrative law,[43] published just before Kirk, Aronson, Dyer and Groves say by reference to Uniting Church and Berowra, that “[c]ourt findings of ‘guilt’ are obviously within jurisdiction, unless the offence itself is outside the court’s jurisdiction or the court has radically misunderstood the governing law”.[44]
[38](2006) 225 CLR 364.
[39]At 370 [11].
[40]At 370 [12].
[41](1938) 59 CLR 369 at 391.
[42](2008) 237 CLR 146 at 152 [5].
[43]Aronson et al, Judicial Review of Administrative Action, 4th edition, 2009.
[44]Op cit, page 248 footnote 413.
I would not necessarily regard the judgment of J Forrest J in Commissioner of Federal Police v Magistrates Court of Victoria as a judgment to the contrary effect, because the magistrate’s decision in question in that case was made in the course of committal proceedings, which are properly classified as administrative or ministerial, not judicial, in nature.[45]
[45]Grassby v R (1989) 168 CLR 1 at 11 (Dawson J). See also, more generally, Potter v Tural (2000) 2 VR 612 at 617-619 [20] (Batt JA).
Fricke, Coleman, Roos, Uniting Church and Berowra are all cases in the Parisienne line. No case in that line has been expressly overruled by the High Court. Writing extra-judicially about the effect of Kirk, the Chief Justice of New South Wales has observed that in recent years the High Court has rarely overruled earlier decisions. Rather “[t]hey are simply superseded”.[46] Moreover, as his Honour says, the concept of jurisdictional error has now been affirmed as having a central, indeed constitutional, position in Australian administrative law.[47] Nevertheless, as Gummow J has since observed in South Australia v Totani[48], in the present state of authority in the High Court “it is not possible to attempt to mark the metes and bounds of jurisdictional error”.[49]
[46]Hon JJ Spigelman AC, “The centrality of jurisdictional error” (2010) 21 PLR 77 at 81. See also Hon JJ Spigelman AC “Public Law and the Executive” (2010) 34 Aust Bar Review 10, esp at 14-18.
[47]Op. cit.
[48](2010) 271 ALR 662 at 700 [128].
[49]Much the same thing had been said in the plurality judgment in Kirk at [71].
In Kirk itself it was noted that the Court of Appeal had held that, to the extent that any alleged errors by the Industrial Court were based on findings of fact, they did not qualify as jurisdictional errors.[50] Although the grant of special leave to appeal against the decision of the Court of Appeal apparently extended to that aspect of its decision, in the end the High Court did not rule on it.[51] This may explain why, notwithstanding that Roos was cited to the High Court during argument in Kirk,[52] the judgments do not mention it (nor Parisienne nor Berowra nor any other cases of that ilk). Perhaps it was significant in Kirk that the decision in question was made by a specialist court as distinct from an inferior court of general jurisdiction,[53] although it is not clear from the report of Kirk whether the relevant charge under the Occupational Health and Safety Act 1983 (NSW) could have been brought in a different court or not.
[50]Kirk at 546-565, [48] referring to Kirk v Industrial Relations Commission of New South Wales (2008) 173 IR 465 at 474 [38]–[39].
[51]Kirk at 565 [49].
[52]At 542 (footnote 49) and 543 (footnote 55).
[53]See Kirk at 570 [54].
It would seem that, at least since Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (S20),[54] jurisdictional errors do not have to be errors of law. At least in the case of migration tribunals, and, possibly in the case of all administrative tribunals, jurisdictional error may be constituted by illogical or irrational fact-finding of the kind or kinds referred to in SZMDS. However, under the new dispensation, the High Court has not yet squarely considered a case of alleged illogicality or irrationality in the course of fact-finding in the determination of an ordinary criminal charge in an ordinary State court. Whether such an allegation does amount to an allegation of jurisdictional error is not clear on the present state of the authorities.
[54](2003) 198 ALR 59. See Aronson et al, op cit, 269 [4.420]
Assumptions and principles of law to be applied in this case
In the light of the very recent High Court authorities to which I have referred, especially Kirk, and notwithstanding the Parisienne/Coleman/Uniting Church/Berowra line of cases, I will assume in favour of the plaintiff, without deciding, that it would be jurisdictional error for the County Court, in an appeal from the Magistrates’ Court in a criminal matter, to make a finding of guilt that was unsupported by any probative evidence or that was illogical or irrational in the sense or senses discussed in SZMDS.
The expression “sense or senses” in the last paragraph is used deliberately, and the expression “kind or kinds” in the prior paragraph is likewise used deliberately. The “illogicality or irrationality” ground of review referred to in SZMDS seems to be quite new and its scope remains to be fully explored, notwithstanding that it is at least closely related to the well known “Wednesbury unreasonableness” ground. The arrival of the new ground casts very great doubt on any continuing role that Wednesbury unreasonableness might otherwise have had in relation to non-discretionary decision-making of the kind presently in question.[55] Nevertheless, bearing in mind ground 2 of the plaintiff’s originating motion, I will assume in the plaintiff’s favour, without deciding, that it is open to him to allege both “illogicality or irrationality” and “Wednesbury unreasonableness” as separate grounds.[56] On the other hand, I will respectfully adopt the view apparently taken by Crennan and Bell JJ in SZMDS that they are similar allegations, in that the former is “of the same order” as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” (in the sense that it could not be arrived at by a reasonable person). [57]
[55]See Aronson et al, op cit at [5.75]. Compare Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429 at 433 [15].
[56]Compare Aronson et al, loc.cit. And compare SZMDS (2010) 240 CLR 611 at 647-648 [128]-[131] (Crennan and Bell JJ).
[57]240 CLR 611 at 648 [130].
Even in relation to the “new” ground itself, the view has been expressed by the Full Court of the Federal Court[58] and by the Chief Justice of New South Wales (writing extra judicially)[59] that quite distinct approaches were taken in SZMDS by Gummow and Kiefel JJ on the one hand and by Crennan and Bell JJ on the other. The suggestion seems to be that, according to Gummow and Kiefel JJ, jurisdictional error may be manifested by the process of reasoning actually adopted by the decision-maker, without more; whereas, according to Crennan and Bell JJ, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material that was before the decision-maker. That suggested distinction may reflect the well known statement of Mason CJ in Australian Broadcasting Tribunal v Bond[60] that:
“… at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference – in other words, the particular inference is reasonably open – even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place.”
In his article, the Chief Justice of New South Wales said that the difference might be resolved by the High Court in a case on which it was then reserved, on appeal from SZJSS v Minister for Immigration and Citizenship.[61] The judgment subsequently given by the High Court (by a unanimous bench of seven justices) in that matter[62] does not mention, let alone resolve, the suggested difference. However I will, once again, assume everything in favour of the plaintiff, that is to say, I will assume that it would be enough for the plaintiff to show that the County Court’s actual process of reasoning involved irrationality or illogicality, without more.
[58]MZXSA v Minister for Immigration and Citizenship[2010] FCAFC 123 at [43]-[45].
[59]Hon JJ Spigelman AO, ‘Public Law and Executive’ (2010) 34 Aust Bar Review 10 at 17-18.
[60](1990) 170 CLR 321 at 356.
[61][2010] FCAFC 123.
[62]Minister for Immigration and Citizenship v SZJSS [2010] HCA 48.
SZJSS nonetheless shows that the so-called new ground is strictly limited.[63] The respondents’ essential complaint was that the Refugee Review Tribunal had acted illogically or irrationally in giving no weight to certain letters produced by the first respondent and by describing certain evidence given by him as a “baseless tactic”. The Federal Court had upheld both aspects of this complaint. The High Court unanimously reversed the Federal Court’s decision. It said, relevantly:
[63][2010] HCA 48.
“23.General principles governing the limited role of the courts in reviewing administrative error have long been identified. As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, ‘mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions’ is not a sufficient reason for overturning a judicial decision upon a review. Further, Brennan J said in Attorney-General (NSW) v Quin:
‘The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone’.
…
31.The first and second respondents contended that the Tribunal’s treatment of the facts, more particularly the letters, was arbitrary, capricious, irrational and unreasonable, and accordingly was inconsistent with the Tribunal’s statutory duty to review. It was submitted that the Federal Court's findings of irrationality, unreasonableness (without describing it as such) and a constructive failure to exercise jurisdiction were wholly consistent with the accepted principles governing judicial review.
32.The Minister contended that the weight to be accorded to the letters, and the factual matters to which they gave rise, were entirely matters for the Tribunal as they concerned the merits of the application. It was submitted that the Federal Court employed the language of ‘proper, genuine and realistic consideration’ to register the Court's response to a weighing of the evidence with which the Court disagreed. This, it was said, does not amount to jurisdictional error of the kind discussed by this Court in Minister for Immigration and Citizenship v SZMDS.
33.The Minister’s submissions on the letters issue must be accepted as on a fair reading of the whole of the Tribunal’s decision, when the Tribunal said that it gave the letters ‘no weight’ it was referring to the fact that it did not accept the letters as evidencing that the first respondent was in some danger from the Maoists in Kathmandu. This was in large part because of social and political changes which had occurred since the letters were written. The evidence given by the first respondent, including his evidence about the effect of those changes, undermined his claim of political and social activism, thereby contradicting the support which the letters gave to his assertion that Maoists were continuing to pursue him in Kathmandu. The weighing of various pieces of evidence is a matter for the Tribunal.
34.It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it. In referring to ‘any rational, reasonable approach to the evaluation’ and the need for ‘a proper, genuine or realistic evaluation’ of the letters, the Federal Court was registering emphatic disagreement with the Tribunal's assessment of the factual matters to which the letters were relevant. It appears the Federal Court would have weighed the letters differently which seems to suggest that, on the basis of the letters, the Federal Court would have been satisfied that Maoists were pursuing the first respondent in Kathmandu. When employing the formula ‘proper, genuine and realistic evaluation’ in respect of the letters, the Federal Court did not appear to consider that one of the matters against which the Tribunal weighed the letters was the first respondent's evidence of the effects of social and political changes in Nepal.
35.Whether the letters were ‘highly supportive’ or ‘powerfully corroborative’ (as they appeared to the Federal Court) of the first respondent’s claim that Maoists were pursuing him in Kathmandu was a question upon which reasonable minds might come to different conclusions. The Tribunal’s preference for other evidence, including the first respondent's own evidence about numerous matters, including the effect of social and political changes from, and since, 2006, over the evidence of the letters written during the first half of 2006, could not be said to constitute a failure to take into account a relevant consideration as canvassed in Peko-Wallsend or Yusuf’s case. Nor could it be said to be a failure to respond to a substantial argument thereby giving rise to the kind of error identified in Dranichnikov v Minister for Immigration and Multicultural Affairs.
36.The conclusion that the Tribunal erred in giving ‘no weight’ to the letters, with the implication that it should have given different, presumably determinative, weight to them, depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions.
37.Further, the Federal Court’s conclusion that the Tribunal erred in this way did not, in the light of the whole of the evidence, require the further conclusion that the result in the Tribunal was manifestly irrational or unreasonable. Nor did it support a finding of any other failure which might be characterised as jurisdictional error.
38.As to the Tribunal’s use of the expression ‘baseless tactic’ set out above, considered in context, the expression was no more than an indication by the Tribunal that it did not accept the first respondent's evidence that he was at risk of being targeted by Maoists in Kathmandu, as a teacher, particularly as his reference to being a teacher was in response to being alerted to the contradictory effect of his own evidence that people who used to be in hiding from Maoists are now living out in the open. It was for that reason that the Tribunal described the giving of this answer as a ‘tactic’. It is clear from the entirety of the Tribunal's reasons that the Tribunal accepted that the first respondent had been a teacher. What the Tribunal considered ‘baseless’ was the first respondent's claim that being a teacher in Kathmandu would attract the attention of the Maoists.
39.No doubt the Tribunal might have used a simpler expression to convey its evaluation of the answer given by the first respondent to the Tribunal’s query as to why he could not, like his brother, live safely in Kathmandu. Nevertheless, the evaluation of that answer was a matter for the Tribunal. Irrespective of the use of the expression ‘baseless tactic’, the Tribunal did not accept ‘that the [first and second respondents] left Gulmi for Kathmandu, and then for Australia, or seeks [sic] to remain here, because the Maoists were and are searching for them’. Further, the Tribunal was ‘satisfied that both the [first and second respondents] can safely and practically join the rest of their family residing in Kathmandu’. The Federal Court’s disapproval of the Tribunal's use of the expression ‘baseless tactic’ did not reveal that these conclusions had no basis in, or were contrary to, the evidentiary material before the Tribunal.
40.Understood correctly, the Tribunal’s use of the expression ‘baseless tactic’ did not give rise to any jurisdictional error.”
On the assumption that attacks on the fact-finding of the County Court represent available grounds of judicial review in a case like the present, it is in the plaintiff’s favour, and it must be steadily borne in mind, that the proceeding before Judge Duggan was the hearing of a charge of a criminal offence; that the informant carried the burden of proving that the plaintiff was in possession of the items in question for the alleged unlawful purpose; and that the relevant standard of proof was proof beyond reasonable doubt. I would accept, also, the plaintiff’s submission that, the evidence against the plaintiff being circumstantial, it was the duty of the County Court Judge to acquit the plaintiff if there was any reasonable hypothesis consistent with his innocence.[64]
[64]Peacock v The King (1911) 13 CLR 619; Doney v The Queen (1990) 171 CLR 207 at 211.
On the other hand, I accept the second defendant’s submission, based on R v Hillier[65] and the cases there considered, that a circumstantial case is not to be considered piecemeal; that the accumulation of the evidence is to be considered; and that the court must consider the weight which is to be given to the united force of all the circumstances put together. In R v Hillier, this approach was said to be appropriate both at trial and on appeal.[66]
[65](2007) 228 CLR 618, esp at 637-638 [46]-[48].
[66]At 638 [48].
Moreover, it must be recalled that this is not an appeal. It is a proceeding which, if maintainable at all, is confined by the limited scope of the notion of jurisdictional error. The question is not whether the conviction recorded by Judge Duggan was “unsafe and unsatisfactory”.[67] Nor is there any necessary equivalence with a situation where an appeal court is asked to rule that, in a trial before a jury, a submission of no case to answer should have been upheld or an acquittal should have been directed.[68] Final responsibility for deciding the facts of the case rested with Judge Duggan, subject only to the assumed power of this Court to intervene on judicial review for jurisdictional error. On any view, the weight to be given to the various pieces of evidence was a matter entirely for Judge Duggan, not this Court, because it went to the merits of the case: see the passages from SZJSS set out above.
[67]Cf Doney v The Queen ((1990) 171 CLR 207; Libke v The Queen (2007) 230 CLR 559 at 596-597 [112]-[113] (Hayne J).
[68]Compare R v Cengiz [1998] 3 VR 720 at 721-722 (Ormiston JA).
The course of the proceedings before the County Court
Before Judge Duggan both the informant and Mr Rees were represented by counsel. An informal transcript of the hearing has been made by or on behalf of Mr Rees from the DVD recording of the hearing. It is agreed between the parties that the informal transcript is substantially accurate.
It is also common ground that the evidence before the County Court established that on the date alleged the accused was in possession of articles of each of the descriptions contained in the charge, and indeed that on the day in question there were some 250-300 spray paint cans in the garage of the premises occupied by the accused, together with the bolt cutters, the respirator and the disposable gloves. On the other hand, it appears that the spray paint cans were of differing colours and were neatly arranged on the floor of the garage. Certain other articles, apparently relied upon by the Crown to strengthen the inference that the accused had the alleged unlawful purpose, were found, including six graffiti-related magazines, a bag of spray can nibs, an old map of the Melbourne train network and various items of paperwork relating to Hitachi trains. All of these were found in Mr Rees’ bedroom. In addition, some torn up sketches of graffiti tags were found in the kitchen and more were found in the outside rubbish bin.
The prosecutor called only one witness, the informant, Senior Constable Skeet, who had conducted a raid on Mr Rees’ home on the day in question and had found there the articles to which I have referred. He gave oral evidence about those matters and produced various real and documentary exhibits. He said that the premises comprised a one bedroom unit. He was cross-examined by Mr Rees’ counsel. The questions included a suggestion that the unit had had two bedrooms and that the second bedroom had been occupied by someone other than Mr Rees.
Mr Rees gave evidence in his own defence. The main thrust of his evidence was to the effect that he conducted a registered artwork business and had possessed the articles referred to in the charge for legitimate artistic purposes, including the execution of commissioned spray paintings, and he tendered certain exhibits in that regard. However he also said in chief that the unit had been shared with other people; and that there was a second bedroom in which there was a mattress and a cupboard and possibly some clothes. Asked about evidence concerning “a pile of papers which had designs on it” (a reference, apparently, to the torn up sketches of graffiti tags which had been found in the kitchen and in the outside rubbish bin), Mr Rees denied knowledge of what they were and said that he was not involved in producing the designs. Asked what he knew of the “other people living there” in the “share house”, he said that he no longer had anything to do with them; that there was a “friend of an acquaintance I know, staying there for a period” who often had his friends over; that he [Mr Rees] had tried to keep to himself; and that he “did not want anything such [sic] to do with them or their activities”. Under cross-examination Mr Rees named the “friend of an acquaintance” as David James and said that Mr James had moved out temporarily 2-3 nights before the raid. Mr Rees accepted that Mr James was not someone who would “come and hang out” with him in Mr Rees’ room. The next exchange, as transcribed, was as follows:
“[Prosecutor] so its certainly not being suggested that the magazines or paperwork belonged to anyone but you?
[Mr Rees] No.
[Prosecutor] So they were yours?
[No answer recorded].”
As I read the transcript as a whole, the reference in this exchange to the “paperwork” did not include a reference to the torn up graffiti tags (which had not been found in Mr Rees’ bedroom, but in the kitchen and in a rubbish bin outside).
The prosecutor commenced her cross-examination of Mr Rees, and as it proceeded the Judge also asked some questions of him. After a time, the Judge indicated to the prosecutor that no more cross-examination was needed. Then defence counsel said: “No further re examination”. There were no other witnesses for the defence. The Judge asked defence counsel whether he wished to make any submissions of law. He replied that the Crown had needed to prove that Mr Rees had possessed the materials in question for a prohibited purpose; and submitted that the Crown had not presented evidence that the materials were in the accused’s possession for such a purpose; and that there was evidence before the Court that the items were held for alternative purposes, namely painting artwork and business purposes.
His Honour then proceeded to his decision and reasons, which are recorded in the informal transcript as follows:
“In this matter the respondent seeks that I should seek an inference to (sic) the appellant arising out of what was found when his premises was the subject of a raid on the 23rd of April 2007. In the course of cross examination, and to some extent his own evidence, the appellant has suggested that he was not the sole occupant of his premises at the time of the raid. In my opinion he was extraordinarily vague about the identity or existence of any other occupant at the time. In any event, the vast majority of the evidence found at the premises was found in the bedroom, he concedes that he occupied. The question is really whether the material that was admitted by that of the informant (sic), respondent at the occasion of that visit and search of that premises requires me to draw an inference adverse to the appellant that it was in his possession for the purpose of causing damage. A number of the items that have been identified were potentially consistent with his claimed interest in other artwork that I can accept. However in my opinion, the inference to be drawn from the evidence overall is overwhelming, when one combines: the magazines that were found in his room, the apparent topic of those magazines, the number of spray cans that were found in the garage, the number of nibs, which I assume come from used spray cans in the past, the sketches found in the bedroom. Were (sic), despite his denial, were there with the knowledge of the appellant and the material overall, in my opinion the only conclusion is overwhelming. And that is the material was intended for the purpose of causing damage namely graffiti as I call it graffiting, of whatever items the to be the subject of the appellants intent at the time (sic). In my opinion, the appellant gave his evidence in a most un convincing way I found him difficult to accept and in fact do not accept his evidence. In my opinion the inference to be drawn as a whole is as I have said overwhelming. I have no doubt that it was in his possession, I have no doubt that at least in substantial part it was for the purpose of causing damage. Namely the application of those spray paints to items where it was not welcome. And in my opinion the charge is made out.”
A major evidentiary hurdle for the plaintiff at the outset
Insofar as relief is sought on the ground that there was no or no sufficient evidence to support the decision, the plaintiff faces the difficulty, among others, that not all of the evidence that was before the County Court has been placed before me. There were nine items or groups of items marked as exhibits, plus two photographs that were put to the informant by Mr Rees’ counsel and marked for identification, but which were not identified by Mr Rees in his evidence nor even marked or received as exhibits. The exhibits included printouts of internet material related to graffiti on Hitachi trains, six graffiti-related magazines and other papers (including a Melway page) found in Mr Rees’ bedroom, as well as the torn up sketches found in the kitchen and in the rubbish bin. It seems that, by mistake, the exhibits were destroyed in ignorance of the fact that the plaintiff (who was initially self-represented) had commenced this proceeding. Copies of two sets of photographs that had been tendered as exhibits on behalf of the informant have been reproduced and included in the material before me. However the material includes only partial or indirect indications as to the nature and contents of the other exhibits. As unfortunate as all this may be, the fact remains that without the missing exhibits (especially the internet material and the six graffiti-related magazines), I do not have the universe of material that was before the County Court and it becomes very difficult, if not impossible, to form any adverse views about the inferences that were or were not available to be drawn by the County Court.
The plaintiff’s submissions as to the evidence and the facts
Mr Burnside’s submissions concerning the evidence, the inferences and the available findings of fact in this case followed very closely the form of the plaintiff’ written outline of submissions filed in advance of the hearing. The points made may be summarised as follows. The plaintiff presented unchallenged evidence that he is an artist by occupation and was in possession of the spray cans for the purpose of painting lawfully commissioned artwork. Photographs of paintings done by the plaintiff using spray cans were received in evidence. There was no evidence that the plaintiff had ever used the spray cans to destroy or damage property. There was no evidence to support the critical finding in this case that the plaintiff’s purpose in having the spray cans was to use them for the prohibited purpose. The only evidence of purpose was the plaintiff’s unchallenged evidence that he had the spray cans for the purpose of his own artwork, coupled with photographs of examples of his own artwork found at his house. The inescapable conclusion is that the Judge ignored the evidence and made a guess. The charge had two distinct elements, possession and purpose, each of which needed to be proved beyond reasonable doubt. It was not enough that the possession was admitted. The Judge wrongly inferred from the mere fact of possession that the plaintiff had the proscribed purpose. The evidence was entirely circumstantial. The inference drawn by Judge Duggan was simply not available on the evidence. Alternatively the decision is so unreasonable that no reasonable person could make it, in that the inference of purpose was based on the mere fact of possession.
The second defendant’s submissions on the evidence and the facts
Dr McNicol adopted the Crown Prosecutor’s written outline as to the evidence and the facts, as follows. Judge Duggan was not obliged to have a reasonable doubt about the purpose for which hundreds of cans of spray paint were in the plaintiff’s possession merely because the plaintiff gave sworn evidence that they were for legitimate purposes. His Honour had seen the plaintiff give evidence and had been able to determine his demeanour and truthfulness. His Honour had been able to test the veracity of the plaintiff’s evidence against the evidence of the informant and the objective facts contained in the photographs and other exhibits. His Honour’s conclusions as to the veracity of the plaintiff were both open and reasonable in the circumstances of the case. In the absence of (accepted) evidence to the contrary from the plaintiff, his Honour was left with the conclusions that could be drawn from the remaining facts looked at as a whole. Looking at that circumstantial evidence as a whole, it was open to conclude that the paint was in the possession of the plaintiff for the purpose of unlawful graffiti painting. There was evidence to support the conviction. Therefore neither ground is made out.
Was the Judge’s decision unsupported by evidence or irrational or illogical?
Judge Duggan found that the evidence against the plaintiff was overwhelming. However that may be, the plaintiff has not persuaded me that his Honour’s finding as to the plaintiff’s purpose was unsupported by evidence or irrational or illogical in any of the senses referred to in the authorities discussed above.
Very little, if any, of the plaintiff’s evidence was “unchallenged”, save that he had an ABN number.[69] The plaintiff was the accused in a criminal proceeding. The very thing he was accused of was possessing the items in question for the purpose of doing unlawful damage, in particular, by way of unlawful graffiti. This must have been obvious to him. Until the prosecutor’s cross-examination of him was halted, the tenor of her questions had been accusatory.
[69]The material before me does not even include the ABN documentation.
Judge Duggan was entitled to consider that the possession of 250-300 cans of spray paint and a set of bolt cutters, together with six magazines and other literature about graffiti and Hitachi trains and also numerous torn up sketches of graffiti tags, called for an explanation. Mr Rees and his then counsel apparently thought so too. I put to Mr Burnside that the very nature of the items the subject of a charge under s 199 of the Crimes Act 1958 might, even apart from any additional material in the possession of the accused, be important in identifying the accused’s purpose, and that the 250-300 cans of spray paint would be in that category.[70] Mr Burnside replied that, if his client had not given any evidence about a legitimate purpose for having them, he would agree with that reasoning.[71] The plaintiff did give evidence, but his evidence as a whole (save as to one or two uncontroversial matters) was simply not accepted. Even if his evidence had truly been uncontradicted, the court would not necessarily have been obliged to accept it.[72] Some evidence of its own nature cannot very well be contradicted.[73] Evidence of subjective purpose may be so regarded. Further, no judge or tribunal is bound to accept evidence which is in itself inherently improbable and unreasonable or which is hesitating, shuffling, inconclusive and unconvincing.[74] Here Judge Duggan was plainly unimpressed with Mr Rees as a witness. He thought that Mr Rees lacked credibility. He based that in part on what he regarded as Mr Rees’ vagueness about “the identity or existence of any other occupant at the time”. Mr Burnside criticised the Judge for this, because Mr Rees had actually named Mr David James. But Mr Rees only did so under cross-examination and gave no other details about him, save to say that he was the friend of an acquaintance. In any event, Mr Rees had suggested that more than one other person had been living in the unit, but he named no others. The Judge was entitled to regard the testimony on these matters as important enough to go to Mr Rees’ credibility, in circumstances where all the sketches of graffiti tags had been found in places other than Mr Rees’ bedroom and where Mr Rees and his counsel apparently wished to suggest that others had been responsible for them. Whether the Judge could have gone further and used Mr Rees’ vagueness on this topic as evidence of consciousness of guilt (as Dr McNicol submitted) need not be considered, because Judge Duggan did not purport to use it in that way.
[70]Transcript p 17.
[71]Ibid.
[72]Taylor v Ellis [1956] VLR 457 at 464-465.
[73]Ibid.
[74]Hardy v Gillette [1976] VR 392 at 396-397.
In any event, Mr Rees’ evidence about his allegedly legitimate spray painting was hardly compelling. Having read the informal transcript carefully, I am satisfied that Mr Rees claimed to have done only two commissioned spray-painted artworks in his entire “career”. I would infer that the two photographs that were marked for identification but not made exhibits (and not included in the material before me) were photographs of Mr Rees’ two claimed commissioned jobs. It is not clear when they were done. I cannot ascertain the size of them, or how many cans of spray paint might have been used on them.
Mr Burnside’s submission that there was no evidence that the plaintiff had ever used spray cans for illegal graffiti runs into the response that any prior illegal graffiti discovered to have been done by Mr Rees would probably have been the subject of a prior prosecution and conviction, and so could not be led against him on this occasion.
Contrary to the particulars attached to the grounds of the originating motion, and contrary to submissions he had made earlier, Mr Burnside acknowledged, after some discussion, that Judge Duggan “had some evidence of purpose”, though Mr Burnside immediately went on to submit that it was not enough by any means to justify finding beyond reasonable doubt.[75] In my view, Judge Duggan clearly had some evidence of purpose. Indeed he had at least very substantial evidence of purpose. Depending on what was in the missing exhibits, he may have had considerably more again. The weight of that evidence was entirely a matter for the Judge. His Honour was entitled to arrive at the view that its weight was such that any hypothesis consistent with innocence was not a reasonable hypothesis. Contrary to Mr Burnside’s submissions in reply, the upholding of Judge Duggan’s decision does not depend on mere speculation as to the facts.
[75]Transcript, 64.
A belated further complaint
In the course of the argument Mr Burnside took me to the Judge’s sentencing remarks, during which His Honour said that he took an unsympathetic attitude towards people “who engage in what I suspect you engaged in”. Mr Burnside submitted that this indicated that the Judge had merely suspected, and had not duly found, that Mr Rees had had the proscribed purpose. However, read in the context of the balance of the sentencing remarks and the entirety of the proceedings (including His Honour’s remarks upon finding the charge proved) I consider that His Honour was intending to convey not only that he was sure that Mr Rees possessed the items in question for the proscribed purpose, but also that he suspected that Mr Rees was an extremely frequent maker of unlawful graffiti. I put this view to Mr Burnside. He made no application to amend the originating motion so as to allege (for the first time) that the Judge had applied the wrong legal test in this (or any other) respect.
Conclusion
Accordingly, the proceeding will be dismissed. I will hear counsel as to costs.
22
24
0