Sedrak v Carney & Anor, Sedrak v Sedrak & Anor

[2002] HCATrans 174

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M83 of 1999

B e t w e e n -

KHAIRY AMIN SEDRAK

Applicant

and

MARGARET ANNE CARNEY and MR J.F. FITZGERALD (MAGISTRATE)

Respondents

Office of the Registry
  Melbourne  No M86 of 1999

B e t w e e n -

KHAIRY AMIN SEDRAK

Applicant

and

DANUTA ALINA SEDRAK
D.K. REYNOLDS ‑ MAGISTRATE

Respondents

Applications for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 3 MAY 2002, AT 11.35 AM

Copyright in the High Court of Australia

_________________

MR K.A. SEDRAK appeared in person.

MR A.P. RODBARD-BEAN:   If the Court pleases, I appear for the first respondent only in M83.  I do not make any appearance in M86.  (instructed by Moores

McHUGH J:   Yes.  I have a certificate from the Registrar in which she states that she has been informed by the Victorian Government Solicitor, the solicitor for the second respondent, that the second respondent will submit to any order of the Court save as to costs.

In matter M86 of 1999, the Registrar certifies that she has been informed by the first respondent that the first 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 second respondent that the second respondent will submit to any order of the Court save as to costs.

Now, would you start please, Mr Sedrak.

MR SEDRAK:   Yes.  The issue in this one which need the High Court say that whatever the case of unrepresented private prosecutor, the magistrate role is administrative or judicial.  Who corrects the magistrate in committal hearing in case he or she has not applied the correct test or has not abided with the authorities or has not apply natural justice rules or was comprehensive bias or has interpreted a law wrongly or did mistake in law or has fallen into judicial error?  What is the right of unrepresented private prosecutor to present his case?

You know that in the committal hearing usually the DPP Department is the decision party.  If he not agree with the magistrate decision, he can go to the upper court and to continue.  But what if there is private prosecutor?  If the private prosecutor did not agree about discharge the other party, then the matter is finished because he cannot initiate the matter in another court.  This is issue which is not in any authorities and in Victoria they take the side that they not intervene in any case from committal hearing and what if this which I said, who corrects the magistrate if he did these things.  In the case of private prosecutor, this is no case for that at all.  For that we need very urgent that the High Court give us a say about this issue and in ‑ ‑ ‑

McHUGH J:   There is no difference between a private prosecutor and the Crown.

MR SEDRAK:   Yes, there is difference because I cannot go to the higher court if I am not agreeable to the decision of the magistrate.

McHUGH J:   But neither can the Crown.

MR SEDRAK:   No, he can make ex officio - I do not know the pronunciation of that.

McHUGH J:   Indictment?

MR SEDRAK:   Yes, to the other court.

McHUGH J:   Ex officio?

MR SEDRAK:   Yes, if he want to.  This is difference, big difference, and all judges ‑ ‑ ‑

McHUGH J:   You can always apply for an ex officio indictment.

MR SEDRAK:   As an individual, no.

McHUGH J:   There is nothing to stop you asking the Attorney-General.

MR SEDRAK:   Yes, but if they not help me even the police in that matter and I was between Victorian Police and the Federal Police, they everyone said no, this was in Federal Court, then  it is Federal Police and the Federal Police said “No, this was happened in Victoria” and for that I take the matter in my hand and I started this because what has the solicitor the right to make 25 errors in two documents to the court and sworn documents and after that can claim that they were honest mistakes?  How stop this one?  Ninety per cent of affidavits which I know is wrong and false and nobody can stop them like that.  They have to stop them, otherwise the people cannot trust the court system because I who is the victim of these perjuries or defamation and I who knows exactly what is the truth and I proved the falsity of hundreds of false sworn statements.  But the problem, they said, just not in this case, only in one defamation, but because the other gone to the Federal Court, but in the same Magistrate Court was, I proved 25 false sworn statements, but after that they said you did not prove the other elements of perjuries.  I know the other elements of perjury is wilfully and…..but how I prove that if it is only they ask me questions and they did not give me chance to speak freely as public prosecutor can do.  If I am not private prosecutor and if I am represented, my representative can drive me what we have to say, what we did not have to say.  But if only I can prove by this method, which is administrative, give me only to give documents, I can prove the falsity.

McHUGH J:   No, but I think you may have misunderstood what the magistrate was saying to you.  All the magistrate was saying to you is that when you were in the witness box as a witness, you could only give your evidence as a witness, but once your evidence finished, then you could go back to the Bar table and make any submissions that you ‑ ‑ ‑

MR SEDRAK:   No, this is the problem.  He did not now allow me any submission more than if something happen from my answer ‑ ‑ ‑

McHUGH J:   From your cross‑examination.

MR SEDRAK:   Yes, and the cross‑examination was for questions not related to the matter at all.

McHUGH J:   But the magistrate is strictly right.  In re-examination, all any witness can do is give evidence explaining answers in cross‑examination or answers to questions in cross‑examination.

MR SEDRAK:   I did and I proved there is a falsity, but how I proved that this was wilfully, not by honest mistakes and ‑ ‑ ‑

McHUGH J:   Yes, but, Mr Sedrak, one thing that you have to understand is that we do not sit here as a general Court of Appeal and particularly over magistrates in committal proceedings.  This Court can only hear about 70 cases a year.  There are 100,000 or more cases heard every year in Australia and there has to be something very special about a case before we will give leave.

MR SEDRAK:   Then the special I said it is not in the authorities my case at all.

McHUGH J:   That does not make it special.

MR SEDRAK:   No, how we stop this situation?  I said answer me how I prove the wilfully with only cross‑examination?  Then every criminal has a core element like killing, for example.  The killing if we find the person in the time of crime and with some traces, then enough to commit him to the crime.  The same, I asked that if it is perjury it is enough that I prove the falsity and it is up to trial and up to jury to decide that it is wilfully or not.  This is my issue.

McHUGH J:   Yes.

MR SEDRAK:   But we return to this special case because it is not perjury, it is defamation.  Defamation if proved - libel defamation - if prove that there is defamation in a document and by Ms Carney and it is not required from me to prove the truth or falsity of this one.  There is law in Victoria and it is this law has two parts.  Anyhow, it is false or truth has punishment, but the punishment is different if it is truth or false.  But it is not required from me except I give that the statement was and published.  This issue is required from me.  Then it is complete and has to commit the accused to the other.  Then this is wrong interpretation for the law for that is the wrong understanding of the law is an error of law or not.  This is the issue in this M83.

McHUGH J:   There are other problems, you are out of time.  But quite apart from that, the mere fact that there is an error of law is not necessarily a reason why we grant special leave.

MR SEDRAK:   Because all the other courts in Victoria said we did not intervene in the committal hearing because if the person is innocent he can prove his innocence in the higher court.  But I am not the accused person, I am the prosecutor.  How I go to the other – the superior court.  I mean the other step?  How I do?  But the Supreme Court in Victoria dismissed my application, not because they not convinced, but because they said we are from that date we are not dealing with the matter of committal hearing and they give all the time two examples of that cases.  They say if not, then you have to go to the other and prove your innocence.  But I am not the accused person who I will be innocent or not in the other court.  I cannot go there to initiate the matter again. 

Another thing is also the magistrate had to abide that he has to take the side of the prosecutor, the evidence of the prosecutor.  I give many cases that they have to take the side of the prosecutor evidence, whatever the jury will accept it or not, it is not the magistrate’s role to jump to conclusions that the jury will not accept it.  But if I give evidence and my evidence in the perjury is a falsity of the statement, my evidence in that libel is the defamation statement, then it is enough to commit that individual.

McHUGH J:   That is not right because in Victoria there is a special provision in the legislation which says that the magistrate has to consider whether or not a reasonable jury would convict.

MR SEDRAK:   Yes, but now ‑ ‑ ‑

McHUGH J:   You misunderstand those cases.

MR SEDRAK:   I said that it is for the case for the accused person who want to appeal against his committal to the other court.  For that they do not want it to intervene.  But if he go away, there is no problem in that, but if he committed to trial, then he wanted to appeal to the Supreme Court and the Supreme Court says “No, we are not intervening in that matter and you have to prove your innocence in the trial”.  But in my case is different, I am not the accused.

McHUGH J:   I know, but, Mr Sedrak, the magistrate said that a jury properly directed on the law and facts could not reasonably convict the respondents, so he dismissed the application.  Now, the Victoria courts hold that that is what is called an administrative error and that you cannot get relief under Order 56. 

MR SEDRAK:   Yes.

McHUGH J:   It does not matter whether ‑ ‑ ‑

MR SEDRAK:   I said that the magistrate can say this statement, but who stop him, who correct him?

McHUGH J:   As President Truman used to say, the buck has to stop with somebody and in these matters it stops with the magistrate.  If you have a complaint against the magistrate, you have to make it to whoever oversees him, but the Supreme Court has no jurisdiction.

MR SEDRAK:   Yes, I understand that, that we have to go to them but we not jump the Supreme Court, then I know ‑ I went to the Supreme Court.  I know that we have to go the step of Supreme Court until the end.  They said that, even other cases, will be 96 they said that, but because I have to go for this procedure, that I can appeal after.

But the problem now, how we stop the perjuries in the affidavits that is mentioned?  This is issue which must be addressed and have not to think that is easy issue.  It is important issue.  Believe me, 90 per cent of the

affidavits is wrong, is false and they used this situation in Victoria to do that and I am five years my children suffering from that.  I lost everything for that and everything you have to right wrong accusation and you have to be accused by domestic violence and not truth and you cannot talk to ‑ ‑ ‑

HAYNE J:   Mr Sedrak, all that may or may not be true, I leave it aside, so should you.  You accused people of crime.

MR SEDRAK:   Yes.

HAYNE J:   The magistrate said no jury reasonably acting would convict them.  Why should they be subject to a second prosecution at the hands of a private individual?

MR SEDRAK:   Because, your Honour, there is 25 minimum statements and enough  ‑ ‑ ‑

McHUGH J:   Yes, but those 25 are dealt with in another matter in the Federal Court and the Federal Court is ‑ ‑ ‑

MR SEDRAK:   There is defamation and the defamation nobody denied it and I proved how it is published.  This is the matter of the end of the matter.  There must be…...  If I go tomorrow to do private, what is called a civil case, maybe I win that case because was a defamation really and is a problem that – in that moment I was not to think about compensation, I think about stopping people to make perjuries and statements that did not degenerate them too when in the Family Court, that these persons - this is which I against, but if I got a civil case, they will not tell me that I am not ‑ ‑ ‑

McHUGH J:    Yes.  Well, your time is up, Mr Sedrak, in this matter, thank you.  The Court does not need to hear you, Mr Rodbard‑Bean.

In these matters, M83 and M86 of 1999, we are of opinion that there is no reason to doubt the correctness of the decisions of the courts against whose orders the applications for special leave are sought.  Accordingly, the applications for special leave to appeal are dismissed.

AT 11.59 AM THE MATTERS WERE CONCLUDED