Stark (a pseudonym) v Hillam (a pseudonym)

[2022] ACTSC 101

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Stark (a pseudonym) v Hillam (a pseudonym)

Citation:

[2022] ACTSC 101

Hearing Date(s):

21 April 2022

DecisionDate:

21 April 2022

Before:

McCallum CJ

Decision:

The application is refused.

Catchwords:

APPEAL — General Principles  — Appeal of orders under Family Violence Act  — Application for hearing of appeal by Full Court  — Whether appeal involves a collateral attack on a decision of a Supreme Court judge

Legislation Cited:

Family Violence Act 2016 (ACT), s 93

Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 111(2)

Supreme Court Act 1933 (ACT), ss 13, 68C

Human Rights Act 2004 (ACT)

Parties:

“Jim Stark” (a pseudonym) ( Applicant)

“Josie Hillam” (a pseudonym) ( Respondent)

Representation:

Counsel

H Selby ( Applicant)

S Whybrow ( Respondent)

Solicitors

Armstrong Legal ( Respondent)

File Number(s):

CA 38 of 2021

Decision under appeal: 

Court/Tribunal:             Magistrates Court

Before:  Magistrate Stewart

Date of Decision:          7 October 2021

Court File Number(s):   FVO 377/2020

McCALLUM CJ:

1. These are proceedings on appeal from the Magistrates Court exercising jurisdiction under the Family Violence Act 2016 (ACT). Because of the nature of the issues in the proceedings, orders were made by consent shortly after the commencement of the appeal pursuant to s 111(2) of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) prohibiting identification of either party. In those circumstances they are referred to by the pseudonyms “Jim Stark” as applicant and “Josie Hillam” as respondent.

1. In the proceedings in the Magistrates Court, each party sought an order against the other under the Family Violence Act. The Magistrate dismissed Mr Stark’s application and ordered him to pay Ms Hillam’s costs. That decision was given ex tempore at the conclusion of the hearing. Ms Hillam’s application was granted after his Honour reserved his decision for some little time. Again, there was an order that Mr Stark pay Ms Hillam’s costs.

1. The proceedings under the Family Violence Act followed criminal proceedings against Mr Stark in which he was tried by judge alone for five sexual offences alleged to have been committed against Ms Hillam. The criminal proceedings were determined at the conclusion of the hearing by Loukas-Karlsson J and resulted in the applicant being acquitted of all five counts. Her Honour reserved her reasons for entering those verdicts.  Those reasons have now been published.

1. The applications for orders under the Family Violence Act were heard after the date of publication of the reasons of Loukas-Karlsson J but it appears that it was not until an adjourned date that the Magistrate received or indicated that he had obtained the judgment of Loukas-Karlsson J in the criminal proceedings. In very brief summary, the applicant contends that the appeal against the decision of the Magistrate granting Ms Hillam’s application under the Family Violence Act is vitiated or liable to be set aside by reason of the fact that the Magistrate wrongly had regard to statements made by Loukas-Karlsson J in her Honour’s reserved judgment.

1. For that reason by application in the proceedings filed 15 March 2022, the applicant seeks an order pursuant to s 13 of the Supreme Court Act 1933 (ACT) that the appeal be listed before a Full Court.

1. An appeal from a decision of a Magistrate under the Family Violence Act would ordinarily be heard by the Supreme Court, as evidently assumed by s 93 of the Act. It may be accepted, however, that the Court has power under s 13 of the Supreme Court Act to order that the jurisdiction of the Court in that matter shall be exercised by the Full Court.

1. The principal reason argued by Mr Selby on behalf of the applicant for having the matter determined by the Full Court is that, although the appeal is against the order of the Magistrate, it will necessarily entail a collateral attack on the reasons of Loukas-Karlsson J. If I have understood the submissions correctly, there are two aspects of that consideration. One is the fact that, if the matter is heard by the Court constituted by a single judge, that will involve the unseemly exercise of that judge passing judgment on the reasons for decision of another judge of the Court. Secondly, it was submitted that the proceedings are concerned with an issue of considerable public importance, namely, the proper approach when criminal proceedings are determined by judge alone in this Court to the publication of reasons, having regard to considerations such as the presumption of innocence and the entitlement of an accused person to enjoy his or her reputation without unlawful attack; a right protected by the Human Rights Act 2004 (ACT).

1. There may be an issue as to the relevance of the Human Rights Act to a judgment of the Court, having regard to the fact that judgments enjoy absolute privilege and so, even if defamatory, could not be said “unlawfully” to damage a person’s reputation, the lawfulness arising from the fact of publication on an occasion of absolute privilege.  The first issue raises perhaps a more significant question, namely, to what extent a judge who has heard a criminal charge sitting without a jury should explore issues extraneous to the task of determining whether the guilt of the accused has been proved beyond reasonable doubt in written reasons published for all the world to see.

1. The applicant contends that is what has occurred here and that he has no remedy against the judgment in support of the acquittal, other than through the collateral attack proposed, openly so, to be undertaken in the appeal. While I accept that that is a matter of public interest and public importance and properly one the subject of consideration by a Full Court, there are several factors in the present case which militate against granting the order sought and I have concluded that it should not be granted.

1. The first is that the nature of the appeal in the Family Violence proceedings is, in effect, a determination, whether it be described as a rehearing or a hearing de novo, but a determination requiring the appellate court to undertake its own assessment of the evidence before the Magistrate as well as any additional evidence sought to be relied upon in the appeal. Whilst it is not unheard of for a full court to undertake such an exercise, and indeed it is sometimes required to do so (for example in criminal appeals resting on a ground of unsupportable verdict), it is more convenient for such an exercise to be undertaken by a judge sitting alone. No doubt that was a factor to which parliament had regard when conferring the right of appeal constituting the appeal as one to be heard by a single judge.

1. Secondly, while this is not an issue that was explored in the submissions of the parties, there may be complications and therefore inconvenience arising from the apparent duplication between first having the appeal heard and determined by the Court constituted as a Full Court and then having that decision amenable to appeal from the Full Court to the Court of Appeal. That may in turn require the Court to convene a bench of five for any appeal. It is unknown at this stage which party might need or want to avail itself of any right of appeal but that is an additional inconvenience potentially arising from the order sought.

1. The third consideration is that I am by no means persuaded that the appeal will indeed involve a collateral attack on the reasons of Loukas-Karlsson J, at least not of the kind suggested in the submissions today. The central premise of the submissions was that the Magistrate failed to undertake his own assessment of the evidence before him but instead merely adopted her Honour’s reasons. Mr Whybrow, who appears for the respondent, took me to a passage of the Magistrate’s judgment which indicates that in fact his Honour did record his independent assessment of the evidence. Separately, but probably related to that point, the passage of the judgment of Loukas-Karlsson J said to demonstrate the error in the Magistrate’s reliance upon her Honour’s judgment involved statements to the effect that the prosecution may arguably have succeeded if the standard of proof were on the balance of probabilities.

1. However, her Honour did not impute guilt, even on the balance of probabilities, to the applicant but said only that the prosecution may arguably have succeeded and expressly declined to make a determination on that question. That is the kind of remark that might be found in the reasoning of any determination of guilt in a criminal case, as evidenced by the common direction by a judge in a case with a jury that it is not enough if they are satisfied of any element on the balance of probabilities, they must be satisfied beyond reasonable doubt. I would understand that paragraph of her Honour’s judgment merely to be an incantation of that principle. I say that without pre-empting the determination of that question in the substantive appeal and only to explain my reasons for declining to order that the matter be heard by a Full Court.

1. Finally, even if a single judge hearing the appeal considers it necessary to discuss the reasons for decision of Loukas-Karlsson J, that is not unheard of. For example, in an application for bail or a stay of a criminal proceeding pending appeal, the judge determining that application is often called upon to make some assessment of the merits of the appeal which, in a determination by judge alone, not uncommonly requires discussion of the quality of the judge’s reasons or the extent to which they comply with section 68C of the Supreme Court Act.

1. For those reasons, the application is refused.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for  Judgment of her Honour Chief Justice McCallum

Associate:

Date: 4 May 2022