Sedrak v Carney

[2002] HCATrans 175

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M134 of 1999

B e t w e e n -

KHAIRY AMIN SEDRAK

Applicant

and

MARGARET ANNE CARNEY, DANUTA ALINA SEDRAK and J.F. FITZGERALD (MAGISTRATE)

Respondents

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 MAY 2002, AT 11.59 AM

Copyright in the High Court of Australia

MR K.A. SEDRAK appeared in person.

MR A. RODBARD‑BEAN:   I appear for the first respondent, your Honour.  (instructed by Moores)

McHUGH J:   The Court has a certificate from the Deputy Registrar in which she says that she has been informed by the second respondent that the second respondent will abide by any decision of the Court, save as to costs, and, further, that she has been informed by the Victorian Government Solicitor, the solicitor for the third respondent, that the third respondent will submit to any order of the Court, save as to costs.  Yes, Mr Sedrak.

MR SEDRAK:   This matter was the same magistrate for perjury cases.

McHUGH J:   Yes.

MR SEDRAK:   And in the Federal Court there is different from the Supreme Court that they not have the attitude from the beginning to dismiss the matter because they are not have the jurisdiction of them.  They have a Act for that matter but it happens that the respondent applied for anti‑application.  I forget the name, okay.  Anti‑application means they want to dismiss my application because of forgeries and vexations and the matter is studied by her Honour Kenny and has this, some error which I put that she repeats what is good, the magistrate.  She repeat about the natural justice that - the magistrate gave me a chance to speak and it is wrong because I am and I give in my application and I give the lines.  If you want, I read it again, that he said, “I will not let you to speak about anything outside the cross‑examination”.

McHUGH J:   Yes.

MR SEDRAK:   And I consider this is the same, that how I prove the wilfully and corruption theirs is sworn statement but I prove the position by the commentary – the documents.  It is not by witness or something.  They cannot – nobody can – against this…..then it is proved that a falsity is falsity but it is called – there his Honour mistakes and two affidavit their solicitor 25 errors is – they wanted to say that it falsity and one of them which is – I give as example because all of them I prove, but one of them it was – there is one – this is very extreme – that the magistrate and her Honour, after, they agreed about that.

McHUGH J:   But, you see, what the Full Court of the Federal Court pointed out was that you proceeded by way of a hand‑up brief and clauses 5, 6 and 7 of the schedule required you, in advance, to put forward the case that you relied on.  Now, you either had a case or you did not have a case in the hand‑up brief.  Now, your witnesses were cross‑examined, you were cross‑examined and the magistrate came to the view that there was no case and the Full Court went through what you called “assignments” and they came to the view that there was no substance in your case.

MR SEDRAK:   Yes, but for that I said how not if there is 100 assignment of falsity means that 100 statement false and enough, one false statement to accuse the person with perjury, not…..proved all but after I proved the falsity they say that is not – I did not cover the other elements of perjury which is wilfully that they know that it is wrong or they intentionally to do that.  I said, “How I do that?”  They prevented me to make the link between.  I give the documents and I did not make in a speech how to link them and how I give them.

I give them in the witness box only but I wanted to link the matter together to show that is wilful.  Many documents I did not use for using – for proving the falsity because I wanted these documents to prove the wilful but I need some speech, free speech, to do that and I give, if you read my – there is one extreme, one extreme that something will happen next year.  It was be confused and to put in affidavit in this year.  How that everybody agree about that?  That they want give reason to make this perjuries and they said that the solicitor is confused between something will be written next year and they have not written in next year in another affidavit but how is go to this one.  For that I have got to find this one.  Here:

in Assignment 2 concerning the same affidavit, a jury might consider there is room for a misreading of the particulars concerning –

you see that in page 62, about paragraph 3 or the heading 3, “Assignment 2 for Ms Carney”.  That affidavit was written in February, 12 February 1997.

McHUGH J:   Yes, 11 February it was, was it not?  11 February 1997?

MR SEDRAK:   Yes.

McHUGH J:   Yes.

MR SEDRAK:   And the magistrate and her Honour say that was confusion between this and will be written in another affidavit in February 98.  How that we are going there?  How that solicitor is confused and to put something in 97 as instruction for her client for something that will be written in 98 and there will be accepted.  How the solicitor – why we go to the solicitor if they make 25 errors in one statement and how that happen?  How you agree about that?  The solicitor make 25 errors in two affidavits and if it is wrong to have to stop her client to put wrong things in there.

McHUGH J:   Yes, but look at the explanation at page 35 the Full Court gave of that particular.  At page 35 of the application book the court says:

The sentence is equally consistent with its being an elaboration upon the earlier extract from the report, the elaboration itself being based on Ms Carney’s instructions from Ms Sedrak.

MR SEDRAK:   But 97 until will be 98 and if it is instruction this – many funny things like that.  They say in the report before in heading 2, “Assignment”.  Also they said:

“…In welfare Report mention . . . He controlled her finances, her Medicare card –

and in the report not anything from…..

McHUGH J:   Yes, but then on page 36 the Full Court said:

Even if the words were intended to mean that these factual matters were referred to in the welfare report, it would probable that ‑ ‑ ‑

MR SEDRAK:   Yes, for that I am here because they repeated what they said without interaction with my ‑ ‑ ‑

McHUGH J:   But the Full Court said:

that Ms Carney had unintentionally conflated the content of the report with her instructions.

Perjury is a very serious charge.  People make mistakes.

MR SEDRAK:   But 25?  There are 25 perjuries in ‑ ‑ ‑

McHUGH J:   You say there are 25 perjuries but the court went through the various things and they pointed out that there were not these errors.

MR SEDRAK:   Yes, and this is why I am here because the difficulties in there I have to prove.  If I prove the things by documents and not by a witness or something.

McHUGH J:   Yes.  But, Mr Sedrak, as I mentioned to you in the previous matter, there is no special leave point in this case.

MR SEDRAK:   This is special leave that the private prosecutor have to be the right to speak freely after, have distinguish between his role as witness and in his role as prosecutor and they gave him the chance to prove the wilfully.  This is one thing, and the other thing is that how he take this for other if there is a lot of the things and I said in every criminal there is a core element like killing.  They commit the person for killing because he was in that theatre of killing in that time they take it but not mean that he guilty, but the same.  The falsity, also.  I prove the falsity it is enough to commit this people to the higher trial and if they innocent, they will prove their innocence but ‑ ‑ ‑

McHUGH J:   This Court never hesitates to intervene when it thinks that there is a real case for special leave and there has been some miscarriage of injustice in some way.  Your case has been examined by a magistrate and rejected.  It was reviewed by a judge of the Federal Court and rejected.  It was examined again by the Full Court of the Federal Court and rejected.  Now, under any system of justice surely you have had what Australians call “a fair crack of the whip”.  You cannot expect this Court’s time to be taken up hearing a case like this.  There is nothing special about this, Mr Sedrak.

MR SEDRAK:   No, because we need a special issue about the private prosecutor how to do because this is rarely in the authorities.  I cannot find any.  I read 500 of them but I cannot find this case in any case.  Then, how the private prosecutor to deal in the matter of committal hearing, how he is right – how who stop this, the magistrate to do the things and if all - they say he said that this statement that no jury and so on but who make the decision?  Then there is many authorities say, and I gave in my – I do not know you read my things or not?

McHUGH J:   Yes, I spent a lot of my time in the last couple of days reading all the material in your cases.

MR SEDRAK:   Because I give many authorities that say that the magistrate have to put the prosecutor evidence as a priority.

McHUGH J:   No, they do not say ‑ you rely on Wentworth v Rogers.  I was counsel in that case back in New South Wales 20 years ago and it does not help you because you have the special provision in the Magistrates Courts Act in section 56 that says:

proceeding must be conducted in accordance with Schedule 5 -

and paragraph (a) of the schedule says that if the magistrate is of the :

opinion the evidence is not of sufficient weight to support a conviction for any indictable offence –

then he has to:

order the defendant to be discharged -

and that is what happened here.  The magistrate thought that your evidence was not of sufficient weight.

MR SEDRAK:   But if this weight is not – is right?

McHUGH J:   Well, there is nothing can be done ‑ ‑ ‑

MR SEDRAK:   If I give – handed it – not one – before I read many cases they committed persons for one perjury – not 100.  If I – there is another affidavit, not this one only, there is another affidavit, they continue in lying for because the situation.  For that I want that the High Court to help us to stop this lying because if this will be the cycle again, and again, again.  In another affidavit which is not here, or another one, 80 false statement.  How we stop this?  Then I want to help you – want your help for that matter.  What for is if the High Court not do that?  How is it in protecting the legal system which is not to issue in public interest because everybody here know that the affidavit only – signing and so on and writing anything and you cannot prove or you prove, it is honest mistakes and so on then it happens that one.  Honest mistake, maybe one and you have to prove it is honest, but not 25 documents through the solicitor.

Is not this issue not in public interest to stop the lying in affidavits and is it protection of individual from false and allegation and defamation by the solicitor, not considered public interest?  This is public interest.  See, I come to here for that.  I lost my hairs for that because I am not accepted in justice.

McHUGH J:   But, look we will have to deal with it in your other matter but the real reason you lost the custody application was because Judge Joske found that you had assaulted your wife and assaulted your children.

MR SEDRAK:   Yes, but for that I said all false, no real proof of that.

McHUGH J:   Well, subsequently, were you not convicted of those offences and did you not abandon your appeal in relation to them?

MR SEDRAK:   Yes, for that I have some reasons because they – for 28 days they threatened me to do that.  Two days, and if they bring me for, what is called, the president of the lawyer here or something ‑ ‑ ‑

McHUGH J:   Yes.

MR SEDRAK:    ‑ ‑ ‑ to convince me about that and I was naive a little bit in that time too because I regret to do that.  I regret many things but we could not prove from the beginning – I think it is no one proves that.  I read and see and so on that criminal charges have to be without doubt at all, but how the magistrate, without any witnesses or anything and I do not know how to start in Supreme Court.  I wanted to give appeal.  They said, “No”, and now I know that you start in Supreme Court by affidavits but I did not know at that time.

McHUGH J:   Yes.  Well, Mr Sedrak, I am afraid your time is up in this matter.

MR SEDRAK:   Yes, but I say that is it not in the interests of the people to stop the lying in affidavits and I know, and you told me that Joske takes me in custody because I argued then from this perjury which I complain about, which I said.

McHUGH J:   Yes, again, the Court does not need to hear you, Mr Rodbard‑Bean.

The decision of the Full Court in this matter is not attended by sufficient doubt.  There is nothing in the case, in our view, that would warrant the grant of special leave.  The application is dismissed with costs.

AT 12.20 PM THE MATTER WAS CONCLUDED