Singh v NSW Police

[2020] NSWSC 1214

Supreme Court

New South Wales

Medium Neutral Citation:

Singh v NSW Police [2020] NSWSC 1214

Hearing dates:

7 September 2020

Date of orders:

7 September 2020

Decision date:

07 September 2020

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(1)   Leave to appeal is refused.

(2)   The plaintiff's summons is dismissed.

(3)   I order the plaintiff to pay the defendant's costs of the summons.

Catchwords:

CRIME — Appeal and review — Appeal from Local Court to Supreme Court — By person against whom an interlocutory order is made with leave on a question of law alone — whether leave should be granted

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW), ss 53, 54

Criminal Procedure Act 1986 (NSW), s 194

Inclosed Land Protection Act 1901 (NSW)

Supreme Court Rules, r 51B.6

Category:

Principal judgment

Parties:

Tirath Singh (Applicant)
NSW Police (Defendant)

Representation:

Solicitors:
Makinson d’Apice Lawyers (Defendant)
Plaintiff (self-represented)

File Number(s):

2020/247508

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Local Court

Date of Decision:

16 July 2020

Before:

Magistrate Giles

File Number(s):

2020/247508

REVISED EX TEMPORE Judgment

1. By way of a summons filed on 24 August 2020, Tirath Singh (“the plaintiff”) seeks orders against the defendant, named as NSW Police.

2. As set out in the relief claimed, the plaintiff seeks leave to appeal from a decision of a magistrate of the Local Court pursuant to s 53 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Review Act”).

3. The plaintiff then seeks the following further orders:

1. an order that the charges against him be summarily dismissed;

2. an order that the bail condition be cancelled, although in his oral submissions he said that he wished to have it varied;

3. an order that the trial set for 9 September 2020 be vacated, and

4. costs.

4. The plaintiff identifies 29 grounds of appeal and then identifies 10 further reasons as to why leave to appeal should be granted.

5. I will set out the background to the proceedings by way of summary. The proceedings arise out of the plaintiff being banned from attending his local place of worship, being a Sikh temple at Penrith. The plaintiff relies on his own affidavit, sworn 2 September 2020.

6. The plaintiff appears in person. Mr Deards, solicitor, appears for the defendant.

7. The exhibits to the plaintiff's affidavit run to 78 pages. Those documents are relevant to the application as the plaintiff wishes to pursue it.

8. Mr Deards did not object to the affidavit although he reserved the position should the plaintiff seek to rely on further material or expand upon the basis of his application outside what Mr Deards understood it to be.

Background to the Proceedings

9. In or around 2007 or 2008, a Sikh temple was established at Penrith. At least on the evidence presented by the plaintiff, the plaintiff became the chief priest in the temple and was intimately involved in the temple and the worship undertaken in the temple up until sometime in 2019.

10. As far as I can gather from the material relied upon by the plaintiff, at some stage in or before 2019 an issue arose between the plaintiff and other persons involved in the temple as to the conduct and role of the plaintiff at the temple. The plaintiff says that he has been the senior head priest at the temple up to 2019 and was a member of the Sikh Association. It seems that there was a form of election undertaken by the Sikh Association of Australia and that issues arose between the plaintiff and the Sikh Association into his roles and responsibilities in the Sikh Association and at the temple.

11. I am in receipt of a letter from Preet Singh Dhaliwal, under the letterhead of the Sikh Association of Australia in Penrith, dated 7 November 2019. Mr Dhaliwal signs that letter as President of the Sikh Association of Australia.

12. In the letter, there is reference to the conduct of the plaintiff at the Penrith Sikh Temple on 27 October 2019. It is suggested that the plaintiff took the stage and started addressing the gathering, despite instructions not to do so and that his conduct cause disruption to the smooth running of the religious function. It is said that the plaintiff said he would take over the stage no matter what happens.

13. The plaintiff disputes these matters but the import of the letter is that it purported to be a notice banning the plaintiff's entry into the Sikh Temple for any purpose at all.

14. It is apparent that prior to issuing the letter, the Sikh Association had approached the Police. Subsequent to this letter purporting to ban the plaintiff from attending the temple, the plaintiff was charged with two offences under the Inclosed Land Protection Act 1901 (NSW), that is, that on 18 January 2020 and 9 February 2020 he did without lawful excuse enter into the enclosed lands, in essence, at the temple at Penrith, without the consent of Mr Dhaliwal, who is said to be the person in charge of the inclosed lands.

15. The plaintiff says that he is not guilty of the charges against him. He says that Mr Dhaliwal had no power or authority to ban him from the temple. He says that there is no law that permits him to be banned from the temple as it is his place of worship. He says he has made inquiries of what he describes in his correspondence as the constitution and it is not permissible for the Association (which I understand he says would be considered attached to the organisation in India) to ban him. He wishes to raise a number of issues relating to the authority of the Sikh Association of Australia Penrith, the authority of Mr Dhaliwal and general issues relating to what he says is his absolute freedom of religion and right to attend his chosen place of worship.

16. The matter comes before this Court because the plaintiff previously filed a motion in the Local Court seeking that the charges against him be dismissed. As he said in oral submissions today, he has previously written to the Police and the Sikh Association of Australia Penrith asking that the charges against him be dismissed and he has not received any or any adequate response.

17. This apparently led to him filing a motion to have the charges dismissed. Further, subsequent to the laying of the charges against him, he was granted conditional bail on the basis that the sole bail condition is that he not attend the premises from which he had been banned.

18. The matter came before Magistrate Giles on 16 July 2020. Magistrate Giles declined to make the orders sought in the motion although it is not apparent that there was any real discussion about the merits of the motion. That may be because, as his Honour endeavoured to explain to the plaintiff, these were not matters which the magistrate could simply dismiss without any proper hearing. As he said, he declined to countermand the banning order of the Sikh Association based on the information before him.

19. Having not been successful before the learned magistrate and the hearing of the matter being delayed in the Local Court (either for reasons associated with COVID-19 or at the request of the plaintiff, I am not sure which) the plaintiff then decided to file the summons in this Court which is returnable before me today.

Determination

20. As I endeavoured to explain to the plaintiff (as he is representing himself) there are a number of difficulties with his application to the Supreme Court.

21. The plaintiff pursues the appeal pursuant to s 53(3) of the Review Act. He says he is a person against whom an interlocutory order has been made by the Local Court in relation to him in summary proceedings. As set out in s 53(3), such a person may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone and only by leave of the Supreme Court.

22. The defendant opposes the orders sought on a number of grounds. In particular, the defendant says the appeal is incompetent. The defendant says that:

1. The plaintiff does not identify any order of the Court from which he is appealing.

2. He does not identify how any particular interlocutory order was infected by an error of law.

3. If the plaintiff summons is to be construed as an appeal from a decision of the Local Court not to dismiss the charges against him, then such orders would not be interlocutory orders.

4. To the extent that part of the orders sought that extended the orders sought include a variation of a bail determination, that is not an order within the meaning of s 53(3).

5. Finally, the defendant submits that the plaintiff requires leave to pursue the appeal. The material date for the subject appeal within the meaning of r 51B.6(1) of the Supreme Court Rules was 6 July 2020. The plaintiff was required to file his summons seeking leave to appeal prior to 13 August 2020. He did not do so.

23. In my view, there is merit in the defendant's submissions.

24. Whilst I have power to grant leave and extend time in certain circumstances, I would not do so in this case because there remain some fundamental problems with the application being pursued by the plaintiff.

25. First and foremost, the plaintiff's application before the Local Court was really an application to have the charges against him dismissed without any proper hearing of the charges. The plaintiff did not identify the basis on which the learned magistrate might make such orders in those circumstances, and does not identify today the basis on which the learned magistrate should have made such orders.

26. Section 194 of the Criminal Procedure Act 1986 (NSW) provides that, if an accused person pleads not guilty to a charge, the Court must proceed to hear and determine the matter. As set out in s 194(2), the Court must hear the prosecutor, any witnesses, and other evidence of the prosecutor, and must hear the accused person, any witnesses, and other evidence of the accused person.

27. The basis of the plaintiff’s application before the learned magistrate was really three fold, being:

1. the plaintiff had not received proper particulars of the charges against him, and had written to the police and the Sikh Association asking that the charges against him be dismissed (without a response satisfactory to him);

2. there was no power on the part of the Sikh Association to ban him from attending his place of worship; and

3. he says that he had a lawful excuse for being on the premises and thus that the charges against him are misplaced.

28. As for the first ground of the application in the Local Court, there was no basis on which the magistrate could have simply dismissed the charges against him on those grounds. As I explained to the plaintiff today, if he was unhappy about the information which had been provided to him, he could now be assured that the Police had provided to him all the material on which it intended to rely for the purposes of the charges against him. Further, charges are not dismissed just because the person against whom the charges have been laid writes to the Police and asks for them to be dismissed.

29. As for the second grounds, they are grounds on which the plaintiff may rely if he wishes to on the hearing of the charges against him. They do not provide any basis for a form of summary dismissal without hearing.

30. Again, as I explained to the plaintiff today, if he wishes to obtain evidence to the effect that he was entitled to be on the premises at the time he was there, that is on the two dates which are the subject of the charges, he may obtain that evidence. If he wishes to challenge the authority of the Mr Dhaliwal and the Sikh Association to prevent his entry into the temple, he may challenge that when the charges in the Local Court are heard. However, again as I pointed out to the plaintiff, the Police will no doubt wish to adduce evidence, and he can adduce evidence, on a full hearing of the matter.

31. The matter is listed on 9 September 2020 for hearing. It is a matter for the plaintiff either to defend the charges against him on that date, or make any application he wishes to adjourn the hearing so that he may in turn obtain further evidence, if he considers that he should be obtaining further evidence. It is not the function of the Supreme Court to advise the plaintiff as to how he should conduct the proceedings in the Local Court, and whether he should be obtaining further evidence or defending the charges.

32. As I said, if he wishes to raise all of the issues of substance which he has included in his summons and about which he has spoken today, the appropriate forum to do so is on the hearing in the Local Court, rather than in the Supreme Court. Indeed, for the benefit of the plaintiff, it might be said that, bearing in mind his concerns about being unable to attend his place of worship, the most expeditious way of dealing with that problem would perhaps be the finalisation of the proceedings in the Local Court, where he could adduce whatever evidence he wished to adduce on what he describes as the main issues.

33. It is not apparent that the learned magistrate actually made any orders. He appears to have merely informed the plaintiff as to "the best way to go". That is not a criticism of the magistrate.

34. In the end:

1. the appeal was not filed within the time required;

2. there does not appear to be any orders from which the plaintiff is seeking relief;

3. there is no basis on which I could make orders varying the bail conditions in the way suggested by the plaintiff or as sought in the summons;

4. the plaintiff has not demonstrated any error of law unless, of course, he is really suggesting that in some way the magistrate simply failed to deal with his arguments.

35. In the circumstances, leave to appeal is refused.

36. The plaintiff's summons is dismissed.

37. The defendant seeks costs in accordance with s 54(3) the Review Act. The plaintiff was afforded an opportunity to indicate any basis on which I should not make a costs order. He said he wished to pay by instalments. I indicated to him that was something he could discuss with the solicitors for the defendant.

38. I have dismissed the application for leave to appeal. In my view, there was no merit in the application. I order the plaintiff to pay the defendant's costs of the summons.

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Decision last updated: 08 September 2020