Sedrak v Carney

[1999] FCA 1644

FEDERAL COURT OF AUSTRALIA

Sedrak v Carney [1999] FCA 1644

ADMINISTRATIVE LAW – judicial review – decision of a magistrate in committal proceedings – perjury – whether knowingly giving false testimony – natural justice – right of private informant to address the Court after cross-examination by way of explanation

Crimes Act 1914 (Cth) s 35
Magistrates’ Court Act 1989 (Vic) Sch 5

Forsyth v Rodda (1988) 38 A Crim R 50 referred to
Thorp v Abbotto (1992) 34 FCR 366 referred to
R v Courtney (1856) 7 Cox CC 111 referred to
R v Mayhew (1834) 6 Car & P 315 referred to

KHAIRY AMIN SEDRAK v MARGARET ANN CARNEY AND DANUTA ALINA SEDRAK AND J F FITZGERALD
V 495 OF 1999

BRANSON, WEINBERG & DOWSETT JJ
26 NOVEMBER 1999
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 495 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

KHAIRY AMIN SEDRAK
Appellant

AND:

MARGARET ANN CARNEY
First Respondent

DANUTA ALINA SEDRAK
Second Respondent

J F FITZGERALD
Third Respondent

JUDGES:

BRANSON, WEINBERG & DOWSETT JJ

DATE OF ORDER:

26 NOVEMBER 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.        The appellant pay the respondents’ costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 495 OF 1999

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

KHAIRY AMIN SEDRAK
Appellant

AND:

MARGARET ANN CARNEY
First Respondent

DANUTA ALINA SEDRAK
Second Respondent

J F FITZGERALD
Third Respondent

JUDGES:	BRANSON, WEINBERG & DOWSETT JJ
DATE:	26 NOVEMBER 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

THE COURT

1. This is an appeal from a decision of Kenny J given on 6 August 1999.  The following extract from her Honour’s reasons for judgment explains the nature of the proceedings in question:

   On 6 November 1998, the applicant, Mr Khairy Amin Sedrak, filed an application for an order of review, pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth), in respect of a decision made by the third respondent (“the magistrate”) on 24 September 1998, to dismiss charges brought by Mr Sedrak, as private informant, against his former wife (Ms Danuta Alina Sedrak) and her solicitor (Ms Margaret Anne Carney). The charges against Ms Sedrak alleged that she had knowingly given false testimony, contrary to s 35 of the Crimes Act 1914 (Cth), in two affidavits sworn by her in proceedings in the Family Court of Australia between her and Mr Sedrak. Ms Sedrak swore the affidavits in question on 2 January 1997 and on 24 March 1997 respectively. The charges against Ms Carney included that she too had knowingly given false testimony, contrary to s 35 of the Crimes Act 1914 (Cth), in affidavits sworn by her on 22 July 1997 and 15 October 1997 (and in exhibits thereto) in the same proceedings. There was a further charge against Ms Carney that, contrary to s 10 of the Wrongs Act 1958 (Vic), she had maliciously published a defamatory libel in a letter written by her to the Director of Victoria Legal Aid on 15 October 1997 (and which was exhibited to her affidavit of 15 October 1997). After a committal hearing over two days, the learned magistrate found that the evidence was not of sufficient weight to support a conviction on any of the charges against either Ms Sedrak or Ms Carney. Accordingly, his Worship discharged both defendants on all charges brought against them. His Worship also awarded costs against Mr Sedrak, in the sum of $1,550 in the proceeding against Ms Sedrak and in the sum of $2,500 in the proceeding against Ms Carey.

   By two notices of motion dated 4 December 1998, the first and second respondents seek an order that the proceeding in this Court be dismissed upon the grounds that (1) there is no reasonable cause of action; or (2) the proceeding is frivolous or vexatious.  …  At the hearing of the motion, Mr Sedrak appeared in person, and Ms Carney and Ms Sedrak appeared by counsel.  The magistrate informed the Court that he did not wish to take an active part in the proceeding and would abide the decision of the Court.

2. The appellant and Ms Sedrak were married in Egypt in January 1984.  Since late 1996, they have been engaged in proceedings in the Family Court concerning the children of the marriage.  Ms Sedrak also commenced proceedings in the Magistrates’ Court seeking what is described as an “intervention order” against the appellant.  The appellant has been convicted of a number of offences against her, including assault with a weapon, unlawful assault and recklessly causing injury.  He appealed against those convictions but abandoned the appeal.  He subsequently laid charges in the Magistrates’ Court as outlined above.

3. In the proceedings before Kenny J, the appellant sought review of the magistrate’s decision on the grounds:

   (1)      that a breach of the rules of natural justice occurred in connection with the making of the decision;

   (2)      that procedures that were required by law to be observed in connection with the making of the decision were not observed;

   (3)      that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made including:

   (a)taking an irrelevant consideration into account in the exercise of a power;

   (b)failing to take a relevant consideration into account in the exercise of a power; and

   (c)an exercise of a discretionary power without regard to the nature of the offence;

   (4)       that the decision involved an error of law.

4. Although Kenny J referred to the dismissal of the libel charge in her reasons for judgment, that decision was not a subject of the application for review.  Indeed, in the notice of appeal, the appellant asserts that her Honour’s reference to it vitiates her judgment.  This is obviously incorrect.  In any event, it seems unlikely that proceedings in connection with an offence against state law can be the subject of review in this Court.  The appellant has not sought relief in respect of that charge and clearly does not wish to claim it in these proceedings.

5. The appellant’s affidavit, sworn in support of the application for review, and his argument on appeal suggest the following grounds of concern arising out of the magistrate’s decision:

   ·That he took into account matters of credit in weighing the evidence;

   ·That the appellant was not given an appropriate opportunity to present his case, particularly on the issues of knowledge of falsity and corroboration; and

   ·That the magistrate was biased, apparently an elaboration of the criticism of the magistrate’s approach to weight.

6. The appellant makes a number of criticisms of her Honour’s approach to his application for review, including:

   ·That her Honour misunderstood the appellant’s criticisms of the magistrate’s decision;

   ·That her Honour wrongly entertained the applications to dismiss the proceedings for review; and

   ·That her Honour wrongly took account of the history of proceedings in the Family Court.

7. Because of the diffuse nature of the appellant’s criticisms of proceedings to date, we will first consider the proceedings before the magistrate and the way in which he dealt with the various charges.  The conduct of committal proceedings in Victoria appears to differ somewhat from that of similar proceedings in other states.  Section 56 of the Magistrates Court Act 1989 (Vic) provides that a committal proceeding must be conducted in accordance with Sch 5 to the Act. Kenny J quoted the relevant provision as follows:

   After the evidence for the prosecution is conducted the Court must –

   (a)if in its opinion the evidence is not of sufficient weight to support a conviction for any indictable offence, order the defendant to be discharged.

8. The meaning of a similar provision was considered by Wilcox J in Forsyth v Rodda (1988) 38 A Crim R 50, where his Honour said:

   I think that the amendments to s 59 were addressed to a different problem altogether.  As appears from the Attorney-General’s speech … there was a perception that people were sometimes committed for trial upon evidence so weak that the prospect of a conviction was minimal, but with a significant strain on the persons involved in the trial and a cost to the community.  The test of ‘sufficient weight’ was designed to allow magistrates to stop those cases at a preliminary stage.  For that purpose the magistrate was empowered to make some assessment of credibility and to consider the strength of the prosecution case, put at its highest.  But I do not think that it was intended, in a case where the prosecution case was credible and – upon one view of the facts – demonstrated a strong case against the accused, that magistrates should decline to commit for trial just because – on another view of the facts – the proper course for the jury would be to acquit.

9. This Court adopted that view in Thorp v Abbotto (1992) 34 FCR 366 at 370-372 (per Lockhart J, O’Loughlin J concurring) and at 380-381 (per Gummow J). At p 378 Gummow J observed that:

   We were told by counsel that the practice in Victoria has been to treat as applicable to the current legislation what was said by Wilcox J in Forsyth v Rodda in relation to the legislation in its earlier form.  We were also told that there was no other authority of direct assistance in construing the words ‘sufficient weight’. 

10. In considering the case, the magistrate undertook a detailed examination of the various allegations of perjury made against Ms Sedrak and Ms Carney.  He observed that there were major issues of credibility arising out of numerous and lengthy proceedings in the Family Court and elsewhere.  He then considered a number of the “assignments”, a word used by the appellant to describe particulars of the alleged perjuries, concluding that the appellant sought to identify as perjury all aspects of the affidavits sworn by the two women which were arguably inaccurate on his view of the facts.  The magistrate sought carefully to identify inferences consistent with innocence in respect of various of the alleged acts of perjury.  He concluded that a properly instructed jury could not convict on any count.  We observe that the various “assignments” in connection with each “count” probably rendered them bad for duplicity, but it is not necessary to take that matter further. 

11. Section 35 of the Crimes Act 1914 (Cth) (the “Crimes Act”) provides:

    (1)Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter, material in that proceeding, shall be guilty of an indictable offence.

    Penalty:Imprisonment for 5 years.

    (2)For the purpose of this section it is immaterial whether the testimony was given on oath or not on oath, or was given orally or in writing, or whether the court or tribunal to which it was given was properly constituted or was held in the proper place, or whether the person who gave the testimony was a competent witness or not, or whether the testimony was admissible or not.

12. The thrust of the offence of perjury is the making of a false statement, knowing it to be false.  Many people make false statements, but very often, the context will exclude any possibility that the statement was known to be false.  A statement which can be easily and indisputably demonstrated as wrong is unlikely to have been made knowingly, particularly if the inaccuracy is likely to be  known to other parties to the proceedings in question.  When the matter is of little or no significance in the proceedings, it is also unlikely that a person will knowingly lie about it.   It will always be difficult to show that a statement which is really an opinion was untrue, let alone that it was known to be untrue.

13. Two other points should be made concerning a charge of perjury.  The first is that the question of materiality is for the judge.  See R v Courtney (1856) 7 Cox CC 111.  Thus it may properly be considered at committal.  Secondly, the issue of falsity must be corroborated.  This was required at common law.  See R v Mayhew (1834) 6 Car & P 315. Mayhew also demonstrates that corroboration may be available from a document, without a second witness.  The magistrate’s consideration of the charges and her Honour’s conclusions concerning the application for review must be seen in the context of these observations.  We turn to consider the various allegations of perjury.

    Ms Sedrak

14. The case against Ms Sedrak can best be understood by reference to the affidavit of Robyn Greensill and the exhibits thereto.  Exhibit RAG 6 is the “hand-up brief” in the matter.  In other words, it contains the case against her.  There were two charges, the first arising out of an affidavit sworn on 2 January 1997, with seven “assignments”, and the second arising out of an affidavit sworn on 25 March 1997 with one “assignment”.  The affidavit of 2 January 1997 appears to have been filed in connection with proceedings for interim custody, access and a restraining order against the appellant.  An order dealing with these matters was made on 7 February.  The affidavit of 25 March 1997 seems to relate to an application for an order that the appellant bear half of the cost of supervision during access periods.  In considering the allegations, we will also have regard to the cross-examination of the witnesses.

    Count 1

15. Assignment 1 alleges that Ms Sedrak falsely swore that:

    Since migrating to Australia the husband and I have travelled to Egypt twice to visit his relatives.  Each time we took the children. 

16. The appellant challenges the accuracy of that statement, saying that they travelled to Egypt and Poland “to visit our relatives three times”.  Whilst Ms Sedrak speaks of trips to Egypt, the appellant speaks of trips to Egypt and Poland.  She speaks of trips to Egypt “to visit his (ie the appellant’s) relatives”; the appellant speaks of visits to “our relatives”.  Since Ms Sedrak was born in Poland and the appellant in Egypt, it seems likely that she was simply identifying visits to his family in Egypt.  That she may have omitted a reference to one or more trips to Poland to visit her relations is hardly perjury and in any event, unlikely to be material.  We suspect that the materiality of the issue may have related to a perceived risk that the appellant might take the children out of the jurisdiction.

17. Assignment 2 relates to an allegation by Ms Sedrak that:

    Throughout my marriage to the husband I have been primarily responsible for the care of the children.  I have prepared their food and given it to them, bathed them, dressed them, taken them to the doctor when necessary and attended to their schooling.  I have also played an active role in their religious development.

18. The appellant says that this is incorrect, the basis for that assertion (apart from the appellant’s evidence) being a letter from a medical practitioner (Dr Dawes) dated 23 December 1996 which states:

    Mrs Sedrak seldom attended the clinic and if any of her children were unwell they were almost always bought (sic) by her husband.

19. The medical practice in question appears to have been one involving five practitioners.  It seems that in any event, the writer was not speaking from her own knowledge.  Further, there is at least a possibility that the family attended one or more other practices.  In any event, the question is one of opinion.  It is highly unlikely that the factual circumstances necessary to establish the inaccuracy of the statement could be proven to the requisite standard, let alone that it could be shown that the second respondent made the statement knowing it to be false.  Further, as the magistrate observed, Ms Sedrak may have meant that she took the children when the appellant could not do so.  She did not assert that he had never taken them to the doctor.  At AB 262-4, the cross-examination of Dr Dawes highlighted a number of these issues.  The charge could not succeed.

20. The allegation in assignment 3 is that Ms Sedrak falsely asserted that the appellant had refused work offered him by the Commonwealth Employment Service.  The appellant denies this, but there is no corroborating evidence.  He makes reference to “CES correspondences” but that material does not appear to be in the brief.  There is some suggestion that a subpoena had not been answered.  The absence of corroboration was the aspect of the matter which most concerned the magistrate.  (See AB 313.)  In any event, in the absence of evidence of  his dealings with the “CES”, it is difficult to see how falsity could be demonstrated, let alone Ms Sedrak’s knowledge of such falsity.

21. In assignment 4 the appellant alleges that Ms Sedrak falsely asserted that “The husband considered child-rearing to be my responsibility, primarily”.  He denies that this was so.  The statement is very much one of opinion.  There could be no possibility of a conviction based on this statement. 

22. In assignment 5, the appellant alleges that Ms Sedrak falsely asserted that he had taken only a minor role in attending to the practical matters of caring for children.  Again, this is too much a matter of opinion to ground a prosecution for perjury.

23. In assignment 6 the appellant complains that a medical report, said to be attached to the affidavit, was not attached.  Clearly, the probable explanation is that it was omitted by oversight.  That probability is so high that no conviction would be possible.  In any event, if the exhibit is not there, its absence must be obvious.  The overall effect of the affidavit would not be false.  Further, the matter cannot possibly be material.

24. In assignment 7, the appellant complains that Ms Sedrak asserted in par 15 of her affidavit that he had not allowed enough money for food for the family.  He denies this.  Again, it is too much a matter of opinion to ground a perjury charge.

    Count 2

25. In respect of the affidavit sworn on 25 March 1997, the appellant complains that in par 9, Ms Sedrak alleged that:

    Since December 1996 there have been numerous hearings in the Family Court regarding arrangements for the children.  I have been involved in hearings on the 7th January 1997, the 23rd January 1997, the 7th February 1997 and the 25th February.  As well, I have been involved in a hearing for an Intervention Order at Ringwood Magistrates Court.  I was granted an Intervention Order against the husband for an indefinite period. 

26. The appellant’s complaint appears to be that on one or more of those days, the hearing was adjourned or that Ms Sedrak did not attend.  The word “involved” is broad enough to include both circumstances. 

27. We consider that it would have been perverse for the magistrate to have concluded that any jury, properly directed as to the law, could have convicted on either count, or on any of the individual “assignments”.

    Ms Carney

28. The relevant material is largely to be found in ex PAC 7 to the affidavit of Philip Andrew Curtis.  The first count of perjury arises out of an affidavit sworn on 15 October 1997, including nine assignments.  The second count relates to an affidavit sworn on 22 July 1997, including ten assignments.  Both affidavits appear to have been filed in connection with applications to restrain the appellant from commencing further proceedings in the Family Court.

    Count 1

29. In par 4 of her affidavit of 15 October 1997, Ms Carney swore:

    Recently the Ringwood office of Victoria Legal Aid requested a report from us on the excessive litigation in the Sedrak matter.  Attached to this Affidavit and marked “A” is a copy of the report prepared for Victoria Legal Aid.  It sets out in some detail the history of litigation to date.  It seems to me that the Husband has embarked on a campaign to wear down his Wife and to deplete the resources available to her from Victoria Legal Aid.  He is fully cognisant of the fact that these are limited.

1. Exhibit A describes the history of the matter by reference to events listed by date.  All of the “assignments” included in count 1 arise out of this exhibit.  Assignments 1 and 2 deal with the entry in ex A for 12 February 1997.  It is as follows:

   Welfare Report submitted by Ilana Katz of Family Court Counselling Service.  In Welfare Report mention is made of the husband’s admissions regarding violence.  In the conclusion of the Welfare Report there is mention of not only physical abuse by the husband towards the wife and children but “a level of control and a loss of personal freedom which would seem quite extreme”.  The husband did not allow the wife to leave the family home unless he accompanied her.  He controlled her finances, her Medicare card etc etc.

2. In assignment 1, it is alleged that Ms Carney’s reference to “admissions regarding violence” in the welfare report is false.  The appellant denies that any such admissions are referred to in the report.  The report is exhibited to Ms Greensill’s affidavit, filed in connection with Ms Sedrak’s motion.  It is dated  11 February 1997 and states:

   While Mr Sedrak denies beating his wife and children to the degree that they are alleging, he does not deny some acts of violence, and he does not deny the level of control he has exercised, which in the counsellor’s assessment appears to have been quite excessive.

   Clearly, Ms Carney’s allegation was not false.

3. Assignment 2 concerns the sentence “He controlled her finances, her Medicare card etc etc”.  The appellant asserts that Ms Carney meant to convey that such factual matters were expressly dealt with in the report.  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.  At AB 267, in cross-examination of the appellant, it appears that such an allegation was made in an affidavit by Ms Sedrak sworn on 19 February 1998.  Although the affidavit is dated after Ms Carney’s affidavit of 15 October 1997, it would be surprising if this allegation had not been raised earlier in her instructions.  Even if the words were intended to mean that these factual matters were referred to in the welfare report, it would be probable that Ms Carney had unintentionally conflated the content of the report with her instructions.  In any event, it is fairly clear that both Ms Katz, the author of the report, and Ms Carney could only have acquired such information from Ms Sedrak.  In that context, it was immaterial whether the allegation was in the report or not.  It was relevant only that Ms Carney was asserting that Ms Sedrak alleged such conduct by the appellant.  This charge (assignment 2) could not succeed.

4. Assignment 3 relates to an allegation in the entry for 11 March 1997 which asserts:

   Form 8 and Affidavit in support filed by husband.  Form 8 seeks cross-examination of Ilana Katz (perjury by Counsellor is alleged by husband) and seeks an Order that he be able to direct the children’s representative to do something.  Hearing set down for 1/4/97.  Husband’s Form 8 is marked “filed on insistence”.  Presumably Registry staff at Family Court have made this notation.

5. In the Form 8 in question, the appellant sought to cross-examine Ms Katz and alleged perjury against Ms Sedrak, but no express allegation of perjury was made against Ms Katz.  It is very likely that Ms Carney assumed that the intended cross-examination would be designed to disclose falsity in Ms Katz’s report, her view perhaps being coloured by the allegation of perjury against Ms Sedrak.  On 21 October 1997 Brown J restrained the appellant from filing any further application in the Family Court without leave of a Judge.  In her Honour’s reasons at AB 98-9, she observed that she understood that the appellant wanted Ms Katz to be dealt with for perjury, associating this with the Form 8 of 11 March 1997.  It may be that this view was based upon Ms Carney’s affidavit of 15 October, but if so, it seems that the appellant did not contradict the allegation in the proceedings before Brown J.  It is therefore difficult to see how a jury could conclude that Ms Carney knew on 15 October that he had not made such an accusation.  Further, the materiality of the allegation is doubtful. 

6. In assignment 4 the appellant complains of an allegation in the entry for 21 February 1997 as follows:

   Children’s representative files a Form 8 seeking an adjournment of the Contempt proceedings to 5/5/97.  The children’s representative writes a letter to the wife’s solicitors and the husband indicating his concern about the frequency of litigation in the Sedrak matter.  The tenor of the letter is that the husband is too active as regards litigation and correspondence.  The children’s representative refers to 4 letter having been received by him from Mr Sedrak in a very short space of time.

7. The appellant’s complaint is that the “children’s representative” had written three, not four letters.  This appears to be a reference to an affidavit by Timothy John Mulvany, sworn on 21 February 1997, in which he deposes to receiving three letters from the appellant on 17 February 1997.  The discrepancy between three and four is unlikely to have been material in the proceedings.  In any event, it would be impossible to infer that this misstatement was made with actual knowledge of its falsity.  There would have been no point in so doing.

8. Assignment 5 relates to an assertion in the entry for 25 March 1997 as follows:

   Affidavit sworn by wife regarding the strain and cost of the excessive litigious of the husband.  Wife also pointed out that husband was defaulting on Orders made on 7/2/97 regarding payment by him for the cost of the supervision of contact.  Affidavit supported Form 8 in which Orders were sought regarding the husband’s payment of supervision costs and regarding restraining the husband from bringing any further proceedings in the Family Court for 6 months (unless he had leave of the Court to do so or the written consent of the children’s representative).

9. The reference appears to be to an affidavit by Ms Sedrak dated 25 March 1997.  An order had been made on 7 February 1997, allowing the husband to have access to the children on a supervised basis.  He was to meet the costs of supervision.  The order is exhibited to Ms Greensill’s affidavit.  In her affidavit, Ms Sedrak complained that she was meeting the cost of such supervision and that she had asked her husband to contribute half, which he had done in respect of one visit.  In par 8 of the affidavit, she indicated a wish to have “the husband’s commitment to meeting half of the cost of supervision made formal”.  The assertion that Ms Sedrak had alleged a failure by the appellant to comply with the order of 7 February in respect of the cost of supervision may have been inaccurate, but only slightly so.  Given the purpose of the affidavit of 15 October, no jury could infer that Ms Carney had deliberately sworn a false affidavit.  Any such inaccuracy was also immaterial.

10. Assignment 6 complains of the entry for 1 May 1997 as follows:

    Notice of Appeal to the Full Court filed by husband.  In essence, the husband sought reversal of His Honour Justice Kay’s decision on 2/4/97 that his Application for Orders in connection with the children’s education and religion observance be dismissed.  The husband also sought to cross-examine Ilana Katz, Family Court Counsellor and to cross-examine the wife in connection with an affidavit she filed on the 7/1/97.

11. The appellant alleges “No dismissal was for this application”.  The allegation makes no sense and should not have been entertained.  It seems, however, that there was  a hearing on 2 April 1997 in which Kay J dismissed an application by the appellant for Ms Sedrak to be dealt with for contempt.  The appellant asked that an application concerning the education and religion of the children also be dealt with at that time, but this was refused.  Given the purpose of the affidavit of 15 October, the precise nature of the proceedings was not material.  In any event, the issues referred to in the note for 1 May 1997 were all discussed at the hearing.  The possibility of honest mistake could not be excluded to the requisite standard.  The matter was dealt with in cross-examination at AB 278-281.

12. Assignment 7 alleges that Ms Carney stated falsely in the entry for 20 May 1997:

    Hearing to settle the index to the appeal book. 

13. There apparently was no hearing on that date.  In cross-examination of the appellant, it was put that the hearing actually occurred on 25 June 1997.  In ex A, the entry for 20 May appears after that for 19 June and before an entry for 20 June.  The probability of error is obvious.  Further, the date of the hearing was quite immaterial to the proceedings in connection with which the affidavit was sworn.  It is also, once again, impossible to infer an intention to give false evidence. 

14. Assignment 8 relates to the entry for 21 July 1997 as follows:

    Form 8 and Affidavit in support filed by Tim Mulvany. In essence, the children’s representative sought an Order pursuant to Section 118 of the Family Law Act restraining the husband from instituting further proceedings in the Family Court save for those already in place on the grounds that he was a vexatious litigant. Attendance by husband and children’s representative. Wife did not attend. Letter sent by wife’s solicitors on her behalf on 4/7/97 explaining her non-attendance. Court urged to restrain Mr Sedrak from instituting unnecessary proceedings.

15. The appellant asserts that there was no hearing on that date.  In cross-examination it was suggested that the last four lines of the entry for 21 July ought to have been at the end of the previous entry for 4 July.  This seems probable.  In any event, the only assertion of falsity is that there was no hearing on 21 July.  That was not material in the proceedings in which the affidavit was sworn.

16. Assignment 9 refers to the entry for 17 September 1997 as follows:

    Attendance at Family Court in connection with Full Court Appeal made by Husband.  Wife attended without legal representation.  Husband and children’s representative also attended.

17. It is alleged that “No appeal process was on that date”.  In cross-examination, the appellant agreed that there was a hearing on that day, although it did not relate to the appeal process.  In the circumstances, the subject matter was not material.  In any event, it is impossible to suspect deliberate falsehood.

18. It is clear that none of the “assignments” relating to the first count is capable of establishing perjury.

    Count 2

19. The second count arises out of an affidavit sworn by Ms Carney on 22 July 1997.  This affidavit was also filed in support of an application to restrain the appellant from commencing proceedings.  There are another ten “assignments” relating to this count.  The sequence of numbering follows on from count 1.

20. Assignment 10 refers to par 2 of the affidavit in which Ms Carney states:

    Since Family Court proceedings for parenting orders began in December 1996 there have been thirteen Family Court hearings on the matter.

21. The appellant asserts that there had been seven.  A perusal of ex A suggests hearings in the Family Court on the following dates:

    ·17 December 1996;

    ·7 January 1997;

    ·23 January 1997;

    ·7 February 1997;

    ·25 March 1997;

    ·1 April 1997;

    ·2 April 1997;

    ·19 June 1997;

    ·20 May 1997 (possibly June);

    ·4 July 1997 (matter adjourned);

    ·21 July 1997.

22. There were other appearances after Ms Carney swore her affidavit on 22 July 1997.  Prior to that date, there had also been  appearances on 31 January 1997 in the Magistrates’ Court and on 15 April in the County Court.  This indicates ten appearances in the Family Court and two other appearances.  It is impossible to imagine any reason why Ms Carney would have deliberately and falsely represented that there had been thirteen appearances, rather than ten or even seven.  There is also the likelihood that she inadvertently included the two non-Family Court appearances.  The apparent error in the entry for 21 July, to which we have previously referred, might also have created the impression of a further appearance. 

23. It is most unlikely that the mere number of appearances would have been material for the purposes of the application in question.  Although the precise nature of the proceedings on each occasion would also not have been material, some enquiry as to the reason for each hearing would have been necessary, otherwise the court would have been at risk of treating the appellant as a vexatious litigant in circumstances in which he had only responded to his wife’s applications or prosecuted entirely valid claims of his own.  Obviously enough, Ms Carney would have been aware that the appellant would appear and would be able to contradict her.  There would have been no point in deliberately giving false evidence.  The probability of honest error is very high.

24. Assignment 11 refers to an allegation made by Ms Carney in a letter sent by her on 4 July 1997, which is exhibited to her affidavit of 22 July 1997.  In the first paragraph she refers to a hearing which allegedly occurred on 31 January 1997.  This appears to have been the day on which the intervention order was made in the Magistrates’ Court, rather than a date on which there were proceeding in the Family Court.  There is no evidence to show that this was a deliberate lie.  It is easy to understand how such an error could occur.  No jury could convict.  Similar comments relate to assignment 12 (which concerns the same paragraph of the letter of 4 July, referring to a hearing on 30 April 1997) to assignment 13 (which concerns an alleged hearing on 25 March 1997) to assignment 14 (which concerns an alleged hearing on 5 May 1997) and to assignment 15 (which concerns a hearing which allegedly occurred on 25 June 1997).  It seems that in each case, there was to have been a hearing on the stipulated date, but it was adjourned.  See AB 293-301.

25. Assignments 16, 17 and 18 relate to a passage on p 1 of the letter of 4 July as follows:

    As well as the hearings actually held, there have been attempts by Mr Sedrak to have hearings on other dates.  As well, his brother and sister-in-law have attempted to have yet another hearing.  Through adjournments and consolidations we have just managed to keep hearings to date to twelve.

26. In his supporting statement the appellant says that these assertions were incorrect.  The asserted error appears to be that such attempts were not designed to secure hearings in addition to those actually held.  There is otherwise no evidence as to why it is said that these statements constitute perjury.  The matter involves elements of opinion and comment.  No jury could properly convict in respect of these matters.

27. Assignment 19 asserts that in par 2 of the letter of 4 July, Ms Carney falsely asserted that: “Mrs Sedrak is not generating this litigation nor is the children’s representative”.  There is no evidence that this is false and in any event, it contains substantial elements of opinion.  It is not a proper basis for a charge of perjury.

28. None of the assignments relating to the second count of perjury is capable of supporting such a charge. 

29. We turn now to the specific complaints made by the appellant concerning the proceedings before the magistrate.  As to the complaint that the magistrate took into account issues of credit in weighing the evidence, this criticism appears to be based upon a misunderstanding of the obligation placed upon the magistrate, possibly because of a mistaken belief that the practice in other jurisdictions also prevailed in Victoria.  As we have demonstrated, the magistrate was obliged to weigh the evidence.  Whilst he would not have been entitled to reach final conclusions as to credibility and to determine the committal proceedings upon the basis of those conclusions, he was obliged to consider issues of credibility in the course of weighing the evidence.  As far as we can see, he merely identified the fact that issues of credibility would be of substantial importance in this case and that there would be a real probability that the jury would consider the appellant’s motivation in bringing the prosecutions, having regard to the bitter relationship between him and his wife.  In any event, for the reasons which we have already given, dismissal of the charges was inevitable, even if the evidence led by the appellant were accepted at face value.  The allegations were themselves patently lacking in any substance as bases for charges of perjury.

30. The second criticism was that the appellant was not given an appropriate opportunity to present his case, particularly on the issues of knowledge of falsity and corroboration. It is true that in the course of the hearing, the magistrate made it clear that the appellant was not entitled to conduct the proceedings as he wished. However this must be understood in the context of those proceedings. It seems that they were conducted as a so-called “hand-up brief” pursuant to Schedule 5. The effect of cll 5, 6 and 7 of the Schedule appears to be that the informant (in this case the appellant) is obliged to provide all of the material upon which he proposes to rely in support of the charges in advance of the hearing. The entitlement to lead further evidence and to cross-examine is regulated by Pt 5 of the Schedule. Clause 15 provides that supplementary evidence may only be given by leave of the Court.

31. The appellant’s complaint appears to be that he was not permitted to explain to the magistrate how, in his view, the evidence and certain documents fitted together to prove his case.  At p 306 the magistrate said, at the conclusion of his evidence:

    You have a right now to say things that arise out of your cross-examination.  I indicate clearly to you I am not going to let you parade through all the material at this stage but I will listen to you if you want to say something about some of the things that you have been asked but as I say that is not an invitation to you to start going through the material, going through your further and better particulars and going through the exhibits, ok, because even if you had a lawyer here, you would not be able to do that, do you understand?  What would you like to say?

32. The record indicates that “Discussion ensued”, that “The witness withdrew” and that again, “Discussion ensued”.  The expression “The witness withdrew” is used in the transcript to indicate that a witness had finished giving evidence.  In the appellant’s case, we do not understand it to mean that he left the courtroom.  It is reasonable to infer that in the course of the ensuing discussion, he had the opportunity to make further comments.  It appears that at the beginning of the appellant’s evidence, the magistrate made considerable efforts to take him through his material with a view to identifying the case which he wished to establish.  This appears at AB 177-196.  These were committal proceedings, largely in written form.  He thus had an opportunity to explain his case in advance of his own cross-examination and was subsequently allowed to make further observations as to the subject matter of that cross-examination.  He was also allowed to re-examine the other witnesses.

33. Although it is not clear from the record whether, and to what extent he made submissions after the completion of all of the evidence, it can hardly be asserted that he was not given an opportunity to put his case.  The magistrate went to great trouble to ensure that this was done.  This was not a case in which substantial material emerged in the course of the hearing, upon which he may have wished to comment.  If anything, the oral evidence, comprising cross-examination of various witnesses, detracted from his case rather than added to it.  In the circumstances it is impossible to accept his assertion that he was not given an opportunity to put his case.  The real point is that he did not have one. 

1. Thirdly, it is submitted that the magistrate was biased, although as we have observed, this appears really to be an elaboration of the criticism that he considered the weight attributable to the evidence.  On the view which we have taken of the evidence, this did not matter because the evidence, taken at face value, was not sufficient to ground prosecutions for perjury.  In any event, we can see nothing in the material which would indicate bias on the part of the magistrate.

2. Turning to the appellant’s specific criticisms of the decision of Kenny J, we find no support for the assertion that she misunderstood his criticisms of the magistrate’s decision.  We consider that she fully understood the difficulties which the appellant faced in presenting his case.  As to the submission that she erred in entertaining the application to dismiss the review proceedings, we cannot agree.  It is clear to us that those proceedings were without proper foundation, frivolous and vexatious, and therefore appropriately disposed of summarily.  As to the submission that her Honour wrongly took account of proceedings in the Family Court, we are unable to see any validity in that criticism.  Some reference to proceedings in the Family Court was inevitable, simply because the allegations of perjury arose out of those proceedings.  That fact would not detract from their seriousness in an appropriate case.  However, in this case, many of the alleged acts of perjury could have been easily resolved in the course of the Family Court proceedings, and would have been more appropriately so resolved.  There is, in our view, little doubt that in the Magistrates’ Court and in this Court, the appellant has been seeking unjustifiably to extend the litigation between himself and his wife, but we are unable to conclude that her Honour’s decision to dismiss the relevant applications was in any way prompted by the fact that the matters had been previously ventilated in the Family Court. 

3. Although we may not have dealt precisely with every subtle nuance of the argument advanced by the appellant, we are satisfied that we have dealt with the main themes.  We have carefully considered the material from his point of view and can see no good ground for criticism of the judgment.  The fact that Kenny J and the Court have dealt with this case on its merits should not be understood as indicating a departure from the approach prescribed by the High Court in Yates v Wilson (1989) 168 CLR 339, that it is generally undesirable that the criminal process be fragmented by applications for judicial review. The appeal should be dismissed with costs.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Weinberg and Dowsett.

Associate:

Dated:             26 November 1999

Counsel for the Appellant:	The Appellant appeared In Person.
Counsel for the First Respondent:	Mr A Rodbard-Bean
Solicitor for the First Respondent:	Moores Legal
Counsel for the Second Respondent:	Mr D Brustman
Solicitor for the Second Respondent:	Victorian Legal Aid
Date of Hearing:	12 November 1999
Date of Judgment:	26 November 1999