Stefanovski v County Court of Victoria & Anor
[2000] VSC 417
•18 October 2000
| SUPREME COURT OF VICTORIA | |
| COMMON LAW DIVISION | Not Restricted |
No. 4903 of 1999
| ELVIS STEFANOVSKI | Plaintiff |
| v | |
| COUNTY COURT OF VICTORIA and SGT. DARREN MURPHY | Defendants |
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JUDGE: | Gillard J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 and 13 September 2000 | |
DATE OF JUDGMENT: | 18 October 2000 | |
CASE MAY BE CITED AS: | Stefanovski v County Court of Victoria & Anor | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 417 | |
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Judicial Review - convictions in Magistrates' Court appealed to County Court – allegations of bias, failure to call witnesses and wrongful refreshing of memory of witness – principles to apply on Judicial Review – no bias established – no error in not calling witnesses – Judicial Review and miscarriage of justice – whether remedy available.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr D. Perkins | Kuek & Associates |
| For the 1st Defendant | No appearance | Victorian Government Solicitor |
| For the 2nd Defendant | Mr P. Moran | Peter Wood, Solicitor for Public Prosecutions |
HIS HONOUR:
This is the return of a summons in a proceeding instituted by originating motion seeking judicial review of a decision of His Honour Judge Hanlon of the County Court of Victoria, pursuant to Order 56 of the Rules of Court. The learned County Court Judge heard appeals from orders made by a Magistrate convicting the plaintiff of five offences, and His Honour dismissed the appeals.
Parties
The plaintiff, Elvis Stefanovski ("the plaintiff") at all relevant times resided in Barry Road, Thomastown. The first defendant, the County Court of Victoria, is joined as required by Rule 56.01(3) representing His Honour Judge Hanlon. An appearance was filed on behalf of the first defendant but in accordance with the usual practice, it did not participate in the proceeding and informed the court it would abide the result.
The second defendant, Darren Murphy ("informant"), is a sergeant in the Victoria Police Force and was the informant in the charges brought against the plaintiff.
Proceeding in Magistrates' Court
On 1 January 1992, some time after midnight, some 30 to 35 youths were congregating outside a house in Barry Road, Thomastown. Some four to five police vehicles arrived at the scene. An altercation took place between the plaintiff and the informant which involved other members of the force.
On 1 January 1992 the plaintiff was charged by the informant with two charges of assaulting police, three charges of resisting police in the execution of their duty, one charge of throwing a missile and one charge of leaving litter in a public place.
The charges came on for hearing in the Preston Magistrates' Court and on 4 August 1993 the plaintiff was convicted of one charge of assaulting police, three charges of resisting police and one charge of throwing and leaving litter in a public place. He was fined an aggregate fine of $1,000 pursuant to s.51 of the Sentencing Act 1991.
The plaintiff commenced judicial review proceedings in respect to the decision which were heard in this court and later in the Full Court. He was unsuccessful. He applied for special leave to the High Court of Australia which was refused in 1996. The plaintiff then applied for leave to extent time to appeal to the County Court which was granted.
County Court Appeal
The plaintiff lodged his notice of appeal on 8 February 1996 and on two occasions his appeal was aborted due to circumstances beyond his control.
The hearing of the County Court appeal commenced before His Honour Judge Hanlon on 7 December 1998. It concluded on 17 December 1998. The parties were represented by counsel. The sergeant and another member of the force gave evidence for the prosecution and the plaintiff and a number of witnesses gave evidence for the defence.
The learned judge reserved his decision and on 27 January 1999 he found the charges were proven and dismissed the appeal.
His Honour, pursuant to s.80 of the Magistrates' Court Act 1989 set aside the orders made in the Magistrates' Court and then made the same orders. I was informed by counsel that it was believed he affirmed the penalty. The plaintiff has not produced a copy of the formal orders made by the County Court as required by Rule 56.01(5). Counsel's attention was drawn to the paragraph and the court required an affidavit be filed to account for the non‑production of the order. No affidavit has been filed and the court is precluded by the paragraph from granting any relief in the nature of certiorari.
The learned judge gave oral reasons.
Unfortunately, the reasons for judgment were not recorded in any way and what is before this court are the notes of the plaintiff's solicitor. They are incomplete, in parts unintelligible and it is difficult to fully understand what His Honour said.
The plaintiff issued his originating motion on 29 March 1999. He did not issue the summons until 4 August 1999 and more importantly, did not swear his affidavit until 15 October 1999.
This dilatory conduct of the plaintiff's legal representatives was raised with counsel but no explanation was given as to why it took so long for an affidavit to be sworn. Whilst counsel for the informant did not complain, a delay of ten months since the hearing made it extremely difficult for the informant to provide a meaningful answering affidavit. In my opinion it is undesirable for a plaintiff to take so long to file and serve the affidavit which has the effect of making it difficult for the person in opposition to file a meaningful affidavit because of the passage of time.
Whilst permission was given to the plaintiff, as the appellant before His Honour Judge Hanlon to record the proceeding on the fourth day of the hearing, the recording was not made available to the informant.
In support of the application for judicial review, the plaintiff swore an affidavit on 14 October 1999. The sergeant swore an affidavit in opposition on 7 December 1999.
As I have said, on 10 December 1998 the Judge granted permission to the plaintiff to record the proceeding. A transcript of the tape recording has been produced to this court. It is incomplete and in parts difficult to follow.
Judicial Review
There is no right of appeal from a decision of a County Court judge hearing an appeal from a Magistrates' Court except a limited right of appeal where the penalty is increased on appeal involving imprisonment (see Magistrates' Court Act 1989, s.91).
Accordingly, the only avenue open to the plaintiff to challenge the decision is by way of common law judicial review.
The common law jurisdiction of this court to review decisions of inferior courts is subject to the procedure set out in Order 56 of the Rules of Court.
The jurisdiction of the court to review decisions of inferior courts and tribunals is limited.
The jurisdiction is supervisory and does not entitle this court to canvass matters that it would on an appeal. In a judicial review the court is exercising its common law jurisdiction. The jurisdiction is different to an appeal.
The judicial review procedure is concerned with the legality of what was done by the court or Tribunal, and is not concerned with the merits of the decision under review. This is to be contrasted with an appeal, where the question usually is whether the decision is right or wrong, whereas the question on a judicial review is whether the decision is in accordance with the law.
Judicial review is concerned with the legality of the procedure leading to the decision and is not concerned with whether the decision was fair or correct.
Order 56 is concerned with procedure. It abolishes the remedies in the nature of the old prerogative writs but nevertheless preserves the jurisdiction of the court to make prerogative writ-type orders. It is clear that the Rules do not affect the common law jurisdiction of the court, and it is equally clear that this court has jurisdiction to make an order in the form similar to the old prerogative writ of certiorari, namely, quashing the decision under review.
The scope of the jurisdiction was recently discussed by the High Court in Craig v South Australia (1994) 184 CLR 163 at 175-76. In a joint judgment the court said:
"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal, or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of an impugned order or decision upon one or more of a number of distinct established grounds: most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, or fraud, and error of law on the face of the record. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to 'the record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."
(Emphasis added).
In Chief Constable of North Wales Police v Evans (1982) 1 WLR 1155, Lord Brightman at p.1173 said –
"Judicial review is concerned, not with the decision, but with the decision making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."
In R v District Court; ex parte White (1966) 116 CLR 644 Windeyer J said at p.655 –
"We do not sit in this court to weigh the evidence and decide whether or not the applicant should be exempt from military service. That decision has been committed by Parliament to a magistrate, with an appeal to a court of review constituted by a District Court or Supreme Court Judge. The court of review has given its decision. Parliament has said that its decision is 'final and conclusive'. It is not for us to say whether it was right or wrong. Nevertheless the applicant seeking to bring the case before us, alleging an error of law which it is claimed entitles him to an order either for certiorari or prohibition …
I am not disposed to a narrow view of the scope of either certiorari or prohibition or of the power of this court to use these writs and also mandamus to ensure that administrative tribunals exercising functions under Commonwealth law proceed according to law and keep within the law. But we must not use these writs to give an appeal on the facts."
(Emphasis added).
In my opinion the words of Sir Victor Windeyer are apposite to the present case. Mr Stefanovski had a right of appeal to the County Court Judge from an adverse decision made by a Magistrates' Court. Parliament has entrusted his appeal to a County Court Judge. He has no right of appeal thereafter. His only avenue open to him is to establish that the learned County Court Judge made an error in the decision making process or there is some other recognised ground justifying the exercise of the supervisory jurisdiction of this court.
The High Court in Craig's case, supra, at p.176 identified the most important established grounds, namely, jurisdictional error, failing to observe some applicable requirement of procedural fairness, fraud and error of law on the face of the record.
But the court is not concerned with the correctness of the decision by the learned judge whether it be questions of fact or law.
This is made clear by what Lord Reid said in Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC 147 at 171 when he listed the types of grounds which would render a decision a nullity. His Lordship said –
"It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some other matter which, under the provision setting it up, it had no right to take into account. I do not intend this list to be exhaustive. But if it decides the question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly. … If it is entitled to enter on the inquiry and does not do any of those things which I have mentioned in the course of the proceedings, then its decision is equally valid whether it is right or wrong subject only to the power of the court in certain circumstances to correct an error of law."
(Emphasis added).
This court is not concerned to examine whether in fact the judge made the right decision, whether he misapplied some principle of law, but is concerned to ensure that he acted within jurisdiction and that in performing his decision making process he complied with the law.
The limited nature of the jurisdiction was stated by the High Court in Craig's case, supra, at pp.176 et seq where the court drew a distinction between tribunals and inferior courts. After giving examples of jurisdictional error the court said at pp.179-180 –
"In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available, and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely on determining such a question will not ordinarily involve jurisdictional error."
It is to be observed that the High Court was guarded in stating the principles as general propositions. However, the observations are indeed compelling in a motion such as the present. The rationale for the supervisory jurisdiction is that inferior courts must in exercising their decision making process, act within jurisdiction and in accordance with the law and principles of procedural fairness. But the supervisory jurisdiction is not an appeal.
Sometimes there is controversy about what constitutes the record. The Rules do require, as did the common law, the production of the record. Whilst no record has been produced the evidence is that the County Court dismissed the plaintiff's appeal and made orders of conviction and penalty. There is no difficulty in determining what the orders are, which is the subject of the review but the failure of the plaintiff to comply with Rule 56.01(5) precludes the granting of any relief in the nature of certiorari if he was entitled to it.
I refer to what the High Court said in Craig's case, and emphasise that the jurisdiction is not appellate and it does not enable this court to substitute for the decision made, a decision which this court thinks should have been made.
Although the plaintiff seeks an order "in the nature of certiorari quashing the decision, and orders of the first defendant and quashing the conviction", he also seeks further or other relief and it is clear from his grounds that he is not confining his attack upon the order dismissing the appeal to an error on the face of the record.
Where the attack is made on grounds other than an error on the face of the record then the court can take into account any relevant material placed before it subject, of course, to rules of procedure and evidence.
The plaintiff swore an affidavit and annexed to it six exhibits. One of the exhibits is the transcript of the recorded evidence which I have already indicated is incomplete and in parts difficult to understand.
Rule 56.01(4) of the Rules of Court obliges the plaintiff to state the grounds upon which the relief is sought. The originating motion sets out the grounds relied upon by the plaintiff.
The grounds for relief are –
"1.The plaintiff was denied natural justice in that the conduct of the learned trial judge gives rise to an apprehension of bias on his part.
2.The plaintiff suffered a fundamental miscarriage of justice in that the prosecution failed to call all relevant and/or material witnesses.
3.The defence was irreparably prejudiced by having to call witnesses whom the prosecution wrongly refused to call.
4.The learned trial judge erred in treating as irrelevant and thereby failed to find as a fact whether or not the plaintiff was assaulted by the police.
5.The learned trial judge erred in refusing and/or failing to take into account and draw an adverse inference from the fact that the police witnesses impermissibly refreshed their recollection without leave.
6.The learned trial judge continually intervened in the proceeding in a manner which demonstrated pre-judgment and/or hostility to the plaintiff.
7.The learned trial judge's injudicious and unjudicial reference to people who were with the plaintiff as a 'mob' made a fair trial impossible and removed the appearance of a fair trial."
In considering the grounds it is appropriate that the question of alleged bias asserted in ground 1 be considered with grounds 6 and 7.
Apprehended Bias – Grounds 1, 6 and 7
The allegation against the learned judge is that he was guilty of apprehended bias. There is no suggestion that he was affected by actual bias.
Whether the allegation is actual or apprehended, it reflects upon the integrity and conduct of the judge. Before such an allegation is made, it is incumbent upon the person making it, that full and due consideration be given to the issue and a decision made to raise the issue only where there is substance in the allegation. Too often in this day and age practitioners make allegations of perceived bias against judicial officers which are devoid of substance.
It follows that any allegation of bias should be supported by detailed and specific grounds of complaint which are supported by the evidence.
Grounds 1 and 6 are expressed in general terms and do not identify any conduct by the learned judge which demonstrated bias on his part.
During the course of submissions on the first day of the hearing in this court, the court drew attention to the lack of any particularity concerning the allegations raised in grounds 1 and 6 and impressed upon Mr Perkins of counsel for the plaintiff the necessity to identify the conduct of the learned judged which demonstrated apprehended bias.
As the allegations made against the learned judge constitute an alleged breach of the rules of natural justice, this court was entitled to consider all evidentiary material placed before it. A consideration of the plaintiff's affidavit in support of his proceeding, did not enlighten the court as to the alleged conduct of the learned judge which supported the assertions made in grounds 1 and 6.
Mr Perkins informed the court that the plaintiff relied upon the matter raised in ground 7 as conduct which amounted to the apprehension of bias on the part of the learned judge.
It is convenient to deal with ground 7 first in respect to the allegation of perceived bias.
According to the plaintiff's affidavit the reference by the judge to "a mob" occurred after an exchange between Bench and Bar concerning the informant calling certain witnesses.
It is necessary to go back in time and briefly summarise the circumstances of the alleged offences.
On 1 January 1992 in the early hours of the morning there was some 30 to 35 youths outside a house in Barry Road, Thomastown and some four or five police vehicles and up to ten members of the police force were present. An altercation took place involving the plaintiff and a number of members of the force and he was subsequently conveyed to a police station and charged with a number of offences. The plaintiff suffered injuries in the course of the altercation and when released from the police station attended a local hospital.
At the outset of the appeal Mr Moran of counsel who appeared for the informant, informed the court of his intention to call two police witnesses. The appeal was a re-hearing de novo and hence the informant was required to adduce his evidence first. Mr Moran stated that other police witnesses and civilian witnesses would be made available for the defence to call but that two police witnesses, Sergeant Hart and Constable Fellowes were not to be called. The informant was cross‑examined as to the absence of the two police witnesses and evidence was given that Sergeant Hart was in hospital and Constable Fellowes was no longer in the force and could not be located.
Mr Perkins objected to the prosecution only calling two witnesses and requested the judge to rule that the informant had an obligation to call other witnesses. His Honour stated that he could not make any ruling until he had heard the facts and heard some of the evidence.
After the luncheon adjournment on the first day, Mr Perkins informed the court that the prosecution had a number of witnesses outside the court. Mr Moran on behalf of the informant stated that he had told Mr Perkins that the witnesses were outside the court and could be called by the defence. Mr Perkins asserted that the informant should be formally asked why the witnesses were not to be called. In response to this invitation, Mr Moran stated that the witnesses would not usefully add to the evidence to be given by the police witnesses. Mr Perkins stated that he had not received the statements of those witnesses and the statements held by the informant were handed over. The statements were made by Mr Nevovski on 22 May 1992, Mr Trajkovski on 22 May 1992 and Mr Burmeski on 17 May 1992.
Mr Perkins submitted that on the authorities the Crown was obliged to call all relevant eyewitnesses.
In making a reference to the Crown, Mr Perkins was wrong. The Crown was not involved in either the proceeding in the Magistrates' Court or the appeal to the County Court. The informant in the Magistrates' Court was a member of the police force. In laying the charges and prosecuting the plaintiff he was performing his duty as a member of the police force. There is a distinction between a summary proceeding where a police officer lays an information and the prosecution of a criminal trial before a jury. The distinction is made by Dixon J in Munday v Gill (1930) 44 CLR 38 at 86 where His Honour said –
"There is, however, a great distinction in history, in substance and in present practice between summary proceedings and trial upon indictment. Proceedings upon indictment, presentment or ex officio information are pleas of the Crown. A prosecution for an offence punishable summary is a proceeding between subject and subject."
After stating that the Crown was obliged to call all relevant eyewitnesses the judge stated that he would need time to look at the statements to see if they added anything to the case. He read the statements with the consent of counsel for the parties.
The learned judge asked Mr Perkins what was the relevance of the statements to the case. Mr Perkins informed His Honour that the witnesses were able to give evidence of some of the circumstances of the night in question and then according to the plaintiff's affidavit the following occurred –
"28. The judge then remarked and the notes of my solicitor record, 'What, the fact that a mob is yelling out' to which my barrister objected to the term 'mob'. The judge then said and the notes of my solicitor record, 'Crowd, mob, herd, congregation, I don't care what the collective name is, is that fact consistent with the police acting unlawfully' to which my barrister replied 'Yes'."
The judge then requested that the cross‑examination of the informant continue.
Mr Perkins on behalf of the plaintiff submits that the reference by the judge to "a mob" was inappropriate, unjudicial and led to the inference that a fair trial was impossible. That in the circumstances, the trial judge was antagonistic to the plaintiff's cause and had pre‑judged the matter and that this would have been obvious to the reasonable bystander.
The exchange occurred on the first day of the appeal which occupied nine hearing days.
Mr Perkins after this court had reserved its decision, forwarded some 206 references to the use of the word "mob" in cases in England and elsewhere.
I do not find that the references are of any assistance in the present matter. The word "mob" is defined in the Shorter Oxford English Dictionary as meaning, inter alia – "the disorderly and riotous part of the population, the rabble; a tumultuous crowd bent on lawlessness."
It is noted in the same work published in 1950 that in Australia it means "without disparaging implication, a crowd."
Mr Moran submits that taken in context the use of the word "mob" by His Honour was an entirely appropriate and an apt description of the assembly of youths who were present at the time when the altercation occurred between the plaintiff and the informant.
Evidence had been given before the learned judge by the informant that there were some 30 to 35 youths present, that the police were attempting to quieten the youths, that there was a continual barrage of abuse from the youths and that he, namely, the informant, was concerned that the police would be overrun by the youths.
Prior to making the observation the judge read the three statements. The statements were adduced in evidence in this court.
In the statement of Mr Trajkovski appears the following –
"Further down Victoria Drive there was a party going on and people from that party came over to where we were and joined us. There were a lot of other people there from houses in the area. A couple of the people from the party were drunk and they and other people were carrying beer.
I can remember police cars arriving. One came, then another, and then they left. Before these cars left the people from the party started throwing bottles at them and then they left. Then a whole bunch of them came. … "
After referring to the altercation involving the plaintiff Mr Trajkovski went on to say this –
"There was a lot of people around at the time and they were screaming out and abusing the police and saying … 'Let him go. Let him go.' Some of the group from further down the road were abusing the police saying … 'Let him go, pig' and other rude things."
Given the context in which the learned judge made the statement in my opinion it was a proper and apt description of the collection of youths at the scene to call them collectively "a mob".
But if I was wrong in that conclusion, in my opinion the statements made by the learned judge could not be viewed as showing pre‑judgment or that a fair trial was impossible or "removed the appearance of a fair trial". The principles to apply on an application for disqualification for perceived bias have been discussed often in many cases in recent years. In the most recent case the High Court summarised the principles.
In Brian Godfrey Johnson v Kathleen Johnson (2000) HCA 48, delivered on 7 September 2000 Gleeson CJ, Gaudron, McHughes, Gummow and Hayne JJ stated the following at p.3 et seq –
"It has been established by a series of decisions of this court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of pre-judgment) is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
…
The hypothetical reasonable observer of the judge's conduct is postulated in order to emphasise that the test is objective, is founded in the need for public confidence in the judiciary, and is not based purely upon the assessment by some judges of the capacity or performance of their colleagues. At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require (the judge) to discard the irrelevant, the immaterial and the prejudicial.'
Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. … Judges at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate pre‑judgment."
(Emphasis added).
I am quite satisfied in the context of this case bearing in mind that the exchange took place in the afternoon of the first day's hearing and that the trial lasted some nine days that a fair minded lay observer would not reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge had to decide by referring to the crowd which was present as "a mob".
Ground 7 is not made out and further, when considered in context, the expression was appropriate and the assertion that the use of the word "mob", "made a fair trial impossible and removed the appearance of a fair trial" has no substance.
In response to the court's insistence that the plaintiff identify the conduct of the learned judge which showed an apprehension of bias or pre-judgment and/or hostility to the plaintiff, Mr Perkins referred to a number of matters which he submitted led to the conclusion of perceived bias.
The first matter relied upon concerned the failure to call Constable Fellowes by the informant. However the evidence given before the learned judge was that the constable was no longer in the police force and the police were unable to locate him. The complaint made in respect to the learned judge was that he did not refer to this fact in his reasons for judgment. In my opinion the learned judge accepted the explanation for the absence of the witness and it was unnecessary for him to make any reference to it in his reasons for judgment.
The second matter was that the police had not properly investigated the incident by failing to interview some of those who were present at the time, the explanation being given that the informant did not take the names and addresses of youths present "as it would have led to a more violent confrontation". Again it is put that the learned judge should have made reference to this as reflecting upon the informant's case. In my opinion there is no substance in this assertion either. The judge obviously accepted the explanation. In the totality of the evidence revealed in the affidavit, what the informant did was entirely appropriate.
The third matter concerns the statement by the judge of "a mob". I have already considered this matter.
Mr Perkins then emphasised that on 11 December 1999 at the commencement of the hearing he made application that the judge disqualify himself on the grounds of bias and the application was dismissed. The plaintiff's affidavit does not state the basis for the application. In my opinion the fact of making the application and its rejection does not in the circumstances provide any evidence of perceived bias.
The next matter relied upon concerned an observation by the judge in the course of the informant's counsel cross-examining Mr Nevkovski who was called by the plaintiff. It was clear from the plaintiff's affidavit of the evidence that Mr Nevkovski had very little memory of the events. It was in that context that the judge asked if there was any point in further cross‑examining the witness. No further questions were asked and the witness was not re-examined. Again an application was made soon after this observation that the judge disqualify himself but the application was dismissed. In the context of what took place, in my opinion clearly the judge was right in adopting that course.
The final two matters concerned evidence of Mr Burmeski and Mr Albert Bongiorno who gave evidence for the defence and the complaint is made that the learned judge made no reference to their evidence.
The mere fact that the judge made no reference to their evidence does not mean that he ignored their evidence. But on any view it could not be said that it indicated bias on behalf of the learned judge.
None of the matters relied upon by Mr Perkins either singly or collectively lead to the conclusion that the learned trial judge was guilty of apprehended bias.
In my opinion the complaints made of the learned judge which have been identified by Mr Perkins lack substance.
It follows that in my opinion the plaintiff has not established that the learned judge was guilty of apprehended bias and in my opinion the matters relied upon by Mr Perkins provide no support whatsoever for such an allegation.
The plaintiff has failed to establish grounds 1, 6 and 7.
Failure to call Witnesses – Grounds 2 and 3
I have already summarised the circumstances concerning the informant's counsel informing the court that he proposed to call two police witnesses and that the three witnesses who had given statements to the Internal Investigation Unit would be made available to be called by the defence if desired. It is apparent that a complaint was made against the police which was investigated by the Victorian Police Internal Investigations Department. The three statements were made as a result of that investigation and were made some four and a half months after the altercation.
Mr Perkins objected to the prosecution only calling two witnesses and requested the Judge to rule that the Crown had to call the other witnesses. His Honour said he could not make any ruling until he had heard the facts and heard some of the evidence.
After receiving the three statements on the afternoon of the first day's hearing, Mr Perkins submitted on the authorities that the Crown was obliged to call all relevant eye witnesses. The judge read the statements. Discussion took place between counsel and the learned Judge and His Honour then requested cross‑examination of the informant continue.
Two members of the police force were called, namely, the informant and Senior Constable Callaghan. The prosecution closed its case on the appeal and Mr Perkins made a submission that it was unfair for the prosecution to call only two witnesses when it was known to the court that there were other witnesses who were eyewitnesses and had relevant evidence to give. Mr Perkins asked that the proceeding be stayed or alternatively dismissed on the basis that it was an abuse of process.
His Honour refused the application. The application was misconceived.
Mr Perkins called witnesses who had not been called by the prosecutor. They were Mr Dimce Trajkovski, Mr Robert Nevkovski, and Mr Tony Burmeski. In addition, the plaintiff's mother, Mrs Maria Stefanovski was called as a witness. Other witnesses who were called were Mr Alberto Bongiorno, Mr Robert Vasilevski, and Mr Anthony Bongiorno. The plaintiff then gave evidence.
In considering this ground I again emphasise that I am not sitting on an appeal but hearing and determining a judicial review of the County Court appeal proceeding.
The two grounds concerning failure to call witnesses raise three questions for consideration and determination. They are –
(i)What is the obligation of the informant and counsel prosecuting on his behalf, to call relevant witnesses in the prosecution case in a summary criminal proceeding?
(ii)Was there a miscarriage of justice as a result of the informant not calling the three witnesses who had provided statements?
(iii)Can an order be made in a judicial review proceeding setting aside the conviction because of the failure by the prosecution to call witnesses which in the circumstances amounts to a miscarriage of justice?
The High Court in R v Apostilides (1984) 154 CLR 563 considered the authorities concerning the duty of a Crown Prosecutor and at p.575 the court summarised the general propositions which were applicable in the conduct of a criminal trial in Australia. The Judges said –
"1.The Crown Prosecutor alone bears the responsibility of deciding
whether a person will be called as a witness for the Crown.2.The trial judge may but is not obliged to question the prosecutor in order to discover the reasons which lead the prosecutor to decline to call a particular person. He is not called upon to adjudicate the sufficiency of those reasons.
3.Whilst at the close of the Crown case the trial judge may properly invite the prosecutor to reconsider such a decision and to have regard to the implications as then appear to the judge at that stage of the proceedings, he cannot direct the prosecutor to call a particular witness."
Those observations were made in relation to a prosecutor acting on behalf of the Crown in a trial before a jury.
This proceeding was a summary proceeding between subject and subject and counsel appearing for the informant was not acting for the Crown. The cases concerning a prosecutor's duty to call material witnesses have all been cases concerning a trial before a jury. See R v Lucas (1973) VR 693, Whitehorn v The Queen (1983) 152 CLR 657; R v Apostilides, supra, Tran v Magistrates' Court of Victoria (1998) 4 VR 294, R v Armstrong (1998) 4 VR 533.
Mr Moran appearing for the informant before this court did not submit that the same principles which had been established in relation to a Crown prosecutor do not apply to an informant in a summary criminal proceeding. The court did raise the question with Mr Moran and he submitted that the same principles apply. For present purposes I will proceed on that basis.
The learned Justices in R v Apostilides, supra, went on to say that it would be only in the most exceptional circumstances that a trial judge would call a person to give evidence and further, that a decision not to call a particular person would only constitute a ground for setting aside a conviction if "when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice." (Emphases added).
It is clear from the statements made by the High Court that the authority of a trial judge to interfere with a decision made by the prosecutor is indeed limited. On any view the trial judge cannot require the prosecutor to call a witness.
This is made quite clear by what Their Honours said at the bottom of p.575 –
"We have not attempted in our first proposition to deal exhaustively with the responsibility of the prosecutor. The description of that responsibility, which we have cited from Richardson, emphasises that the prosecutor's role in this regard is a lonely one, the nature of which is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system. It is not only a lonely responsibility but also a heavy one."
(Emphasis added).
What the learned Judge did on the appeal which was a re-hearing de novo of the original charges, was in accordance with the law and the plaintiff has not demonstrated any error on the part of the Judge. He could not, in the circumstances, have done anything else.
Whether or not the prosecution, in this case the informant, should call a particular witness was a matter for the informant and his advisers.
This raises the first important question, namely, what was the obligation of the informant and his counsel in the present proceeding?
In Richardson v The Queen (1974) 131 CLR 116, three men were accused of assaulting a police officer in the Australian Capital Territory.
The policeman was travelling home from work by car when he was overtaken by a car driven by Mr Ryan who had a girl named Dawn Gardener and another male in his vehicle. Mr Ryan proceeded to cut off the policeman's vehicle, did it on a number of occasions and the policeman followed Mr Ryan's car to obtain the registration number. However, unknown to the policeman, another car containing friends of Mr Ryan followed and after all the vehicles stopped, Mr Ryan assaulted the policeman as did his friends. At the trial it emerged that Dawn Gardener was an eyewitness but the Crown did not call her as a Crown witness but informed the accused's legal representatives she was present and available to be called.
The three men were convicted and applied for leave to appeal to the High Court on the ground that the Crown was under a duty to call as a witness any person who could testify to the circumstances and that a breach of the duty entitled a convicted person to a new trial.
It is noted that there is some similarity between the facts in that case and the present in that the victim was a member of the police force and the female witness was a friend of the accused.
It was submitted that the Crown was under a duty to call as its witness any person who could testify to the circumstances giving rise to the offence charged.
The High Court did not accept that there was such a duty.
Barwick CJ, McTiernan and Mason JJ at p.119 said –
"Any discussion of the role of the Crown Prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called he may be required in a particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross‑examination by the Crown, to mention but a few.
What is important is that it is for the prosecutor to decide in the particular case what are the relevant factors and, in the light of those factors, to determine the course which would ensure a proper presentation of the Crown case conformably with the dictates of fairness to the accused. It was in this sense that it has been said that the prosecutor has a discretion as to what witnesses will be called for the prosecution. But to say this is not to give the prosecutor's decision the same character as the exercise of a judicial discretion or the exercise of a discretionary power or to make his decision reviewable in the same manner as those decisions are reviewable. In the context the word 'discretion' signifies no more than that the prosecutor is called upon to make a personal judgment, bearing in mind the responsibility which we have already mentioned."
(Emphasis added).
Their Honours went on to note that there have been observations made such as by Lord Hewart C.J. in R v Harris to the effect –
"In criminal cases the prosecution is bound to call all the material witnesses before the court, even though they given inconsistent accounts, in order that the whole of the facts may be before the jury."
But went on to note that the Privy Council observed that these observations could not have been intended to negative the well established right of the prosecutor to exercise his discretion as to who to call.
Their Honours referred to the remarks of Fullagar J in Ziems v Prothonotary of the Supreme Court of New South Wales and then Their Honours had this to say –
"With this statement we would agree, (the obligation to call all witnesses) but so as to avoid any misapprehension we would wish to make two observations about it. First, it should be understood in the sense that it proffers advice to the prosecutor as to how he should approach his task and not as a rule of law formulating a duty owed by the prosecutor to the accused. Secondly, there is room for some debate as to what is meant by the opening words of the statement and it should not be read as inhibiting the discretion which the prosecutor has not to call in the Crown case an eyewitness if he judges that there is sufficient reason for not calling him, as, for example, where he concludes that the witness is not a credible and truthful witness. In this event the prosecutor will ensure that the accused is given the opportunity to call the witness."
(Emphases added).
Their Honours stated that the only ground for setting aside a conviction and granting a new trial where a particular witness is not called by the Crown is in circumstances where "it constitutes misconduct which, when viewed against the conduct of the trial taken as a whole, gives rise to a miscarriage of justice." (Emphasis added).
The High Court refused to interfere in Richardson and at p.122 stated a number of reasons for so concluding.
"In the present case there is no basis on which it can be held that the Crown prosecutor was guilty of misconduct or that any misconduct on his part gave rise to a miscarriage of justice. Miss Gardener's evidence before the magistrate seems to have been unsatisfactory to have justified the conclusion, if justification be needed, that she was not a credible or reliable witness. Moreover, she was an associate of the accused, in particular of Colin Dickinson, and there was evidence from the principal Crown witness that she encouraged the accused in their vicious and unprovoked assault. No dictate of fairness to the accused could properly require that she be called as a Crown witness, free from cross‑examination by the Crown. Proper presentation of the Crown case required that she be called, if at all, by the defence. There was therefore no basis for any criticism of the Crown prosecutor."
(Emphases added).
It follows from what the High Court said in Richardson and Apostilides that there is no rule which requires a Crown prosecutor to call all witnesses and that the Crown prosecutor alone bears the responsibility for deciding whether a person will be called as a witness for the Crown. However a failure in certain circumstances may amount to a miscarriage of justice which would in an appeal result in the verdict and judgment being quashed and usually a retrial.
That brings me now to the second question, namely, was there a miscarriage of justice by reason of the failure to call the three witnesses?
The High Court made it clear in R v Apostilides at p.575 that the failure to call a particular person as a witness "will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice."
The question of miscarriage of justice must be viewed "against the conduct of the trial taken as a whole". Although some of the cases concentrate on whether the prosecutor has made an error of judgment, in my respectful opinion, the real question is whether there has been a miscarriage of justice. The prosecutor may have acted from the best motives, reasonably and honestly but if the accused has suffered a miscarriage of justice by the failure of the informant to call the witnesses in his case, the reasonable conduct of the informant and his advisers cannot affect the result.
Mr Perkins on behalf of the plaintiff submitted that in this case the three eyewitnesses who had given statements to the Internal Investigation Department of the Victoria Police should have been called as witnesses for the prosecution and accordingly there had been a miscarriage of justice.
A number of cases have established that the failure to call an important witness in the Crown case has resulted in the defence having to call the witness and thereby being denied the opportunity to cross‑examine the witness. It has been held in some cases that that constitutes a miscarriage of justice.
In Shaw (1999) 57 A Crim R 425 the Full Court of this State set aside a conviction, inter alia, because of the failure to call an eyewitness. The witness gave a statement to the police and she was named as a witness to be called at the committal but she was not included on the presentment as one of the witnesses to be called. The prosecutor informed the court at the outset of the trial that he thought the witness would be an unreliable witness.
She was an eyewitness and her evidence was relevant to the defence of self defence.
Murphy J was of the opinion that the Crown Prosecutor ought to have called her and in his view the prosecutor acted unfairly in making the decision.
At p.437 His Honour said:
"The Prosecutor's decision concerning Goyen singled her out and obliged the defendant to call her as a witness for the defence, and to allow the prosecutor to cross‑examine her. This prejudiced the applicant in the conduct of his defence. In my opinion, a substantial miscarriage of justice resulted."
The question whether there has been a miscarriage of justice must depend upon all the circumstances taking into account the trial as a whole.
The phrase "miscarriage of justice" is well known to the law and ever since its introduction in the Criminal Appeal Act 1907 of the UK (see s.4) has been the subject of much judicial discussion. That Act dealt with the powers of the English Court of Criminal Appeal to allow an appeal against conviction on three specified grounds one of which was a miscarriage of justice. The power to set aside a conviction was subject to a proviso to the effect that a court may dismiss the appeal "if no substantial miscarriage of justice has actually occurred" even though the court was of the opinion that there was a miscarriage of justice.
Each of the Australian States has adopted a common form of legislation based on the English Act. In Victoria see s.568 of the Crimes Act 1958.
The present application is not an appeal but a judicial review. Further, the power in the legislation is entrusted to the Court of Appeal in this State. But having said that the discussion of the phrase in the context of the legislation and its application to an appeal from a jury verdict provides some guidance to the court on a judicial review.
In considering the phrase in the present proceeding, it is important to note that first, the criminal trial was a summary proceeding before a judge sitting alone and secondly, that the learned judge gave reasons which enables the court to make an assessment of the impact on the trial's outcome of the calling of the witnesses by the defence and not the informant. In a jury trial the court is left to make an educated assessment of the likely impact of the failure by the Crown to call witnesses, on the jury's deliberation.
The fact that it is a summary proceeding means that the general rule that all witnesses listed on the indictment or called at the committal, being called at the trial, does not apply.
In Mraz v The Queen (1955) 93 CLR 493, Fullagar J at p.514 referring to the proviso in the legislation stated that it ought to be read "in the light of the long tradition of the English criminal law that every accused person is entitled to a trial in which the relevant law is correctly explained to the jury and the rules of procedure and evidence are strictly followed. If there is any failure in any of these respects, and the appellant may thereby have lost a chance which was fairly open to him of being acquitted, there is, in the eye of the law, a miscarriage of justice." (Emphasis added).
It is observed that the emphasis is on the accused losing "a chance which was fairly open to him of being acquitted".
In Ratten v The Queen (1974) 131 CLR 510, Barwick CJ at p.516 set out instances of a miscarriage of justice one of which was "where the appellant has not had a fair trial." His Honour went on to say "but it may be that even where there have been irregularities at the trial there may be no miscarriage of justice if the court forms the opinion that no jury of reasonable men, properly instructed and alive to their responsibilities, would fail on the evidence to convict the accused."
It is noted that the emphasis is on the view formed by the court that a jury of reasonable men would have convicted the accused despite the alleged irregularities.
Those latter observations must be considered in the light of the judge's reasons in the present proceeding.
In Whitehorn v The Queen (1983) 152 CLR 657 some members of the High Court considered the issues of failure to call a witness and miscarriage of justice. Dawson J considered the issues.
At the outset His Honour referred to the general rule that it is up to the Crown prosecutor to make the decision as to who is to be called as witnesses in the prosecution case. As His Honour said, the prosecutor cannot be compelled to call a witness "although his failure to call witnesses who ought be called may constitute misconduct and may result in a miscarriage of justice which will constitute a ground for setting aside a conviction and granting a new trial." – ibid at p.674.
His Honour then indicated that there is guidance in the cases for what constitutes the material witness and he said –
"All available witnesses should be called whose evidence is necessary to unfold the narrative and give a complete account of the events upon which the prosecution is based. In general, these witnesses will include eyewitnesses of any events which go to prove the elements of the crime charged and will include witnesses notwithstanding that they give accounts inconsistent with the Crown case. However, a prosecutor is not bound to call a witness, even an eyewitness, whose evidence he judges to be unreliable, untrustworthy or otherwise incapable of belief. And if the number of witnesses available for the proof of some matter is such that in the circumstances it would be unnecessarily repetitious to call them all, then a selection may be made."
(Emphasis added).
At p.679 Dawson J stated the function of the Crown prosecutor "is ultimately to assist in the attainment of justice between the Crown and the accused. In this respect the Crown Prosecutor may have added responsibilities in comparison with other counsel but it does not mean that his is a detached or disinterested role in the trial process".
His Honour then quoted what Barwick CJ said in Ratten v The Queen, supra at p.517 –
"It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross‑examination shall be asked; always, of course, subject to the rules of evidence fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law."
It is said that the failure to call the three witnesses meant that the defence had to call them and was deprived of the opportunity to cross-examine each witness which it is said would have assisted the plaintiff's case.
Counsel for the informant told the court that the reason why the witnesses were not called was because they could add very little to the police witnesses' versions and it must follow would have been repetitious. That is a factor which Dawson J accepted was a good and proper reason for not calling all witnesses.
But there are other features of this case that cannot be overlooked in determining whether there has been a miscarriage of justice and in making that assessment the interests of the informant cannot be ignored. In referring to the "interests of the informant", I am emphasising the interest of the public in the attainment of justice.
First, the three witnesses all provided statements some months after the events as a result of a complaint by the plaintiff to the Police Commissioner. The statements were not prepared as part of an ongoing criminal investigation. Although criticism was made by Mr Perkins that the police did not properly investigate the alleged offences at the time I am satisfied that the police were acting properly by not seeking to take statements at the scene from an unruly mob of individuals. Indeed the evidence demonstrates that events could have got out of hand that night because of the large number of young people and the effect of alcohol on some of them.
Secondly, the three witnesses were friends or acquaintances of the plaintiff and would be expected to be sympathetic to his cause and in addition available to confer with his counsel prior to giving evidence.
Thirdly, the informant arranged for the witnesses to be present at court.
Fourthly, the plaintiff has taken civil proceedings against the informant and other members of the force.
Fifthly, the three witnesses were called as witnesses by the defence and due to the passage of time were unable to give much evidence on the important issue of whether the plaintiff had in fact assaulted the informant and resisted arrest.
Sixthly, a perusal of the statements of each of the witnesses shows that none of them address the question whether the plaintiff actually assaulted any member of the police force. The statements are mainly concerned with the police manhandling the plaintiff.
The case brought by the informant was that the plaintiff had in fact assaulted the informant by poking his finger into his chest.
When the plaintiff poked his index finger onto the informant's chest the latter stepped back and another officer took hold of the plaintiff's left arm and at that stage the plaintiff starting thrashing his arms around striking police officers. He was told to stop and a struggle took place thereafter.
None of the statements address that particular issue but concentrate on the manhandling of the plaintiff by members of the police force. Indeed the length of the trial can be put down to that fact that much time was spent at trial, more concerned about police assaulting the plaintiff rather than the real issue in the case.
In giving evidence each of the witnesses were uncertain or vague about the incident in which the plaintiff allegedly pushed his index finger into the chest of the informant.
In the incomplete note of the reasons for judgment it appears that His Honour was of the opinion that the three witnesses did not add anything of relevance. His Honour said –
"Having heard the witnesses, Mr Perkins called, I do not believe they did add anything of relevance.
In part they struck me as witnesses who were doing their best to recall events that took place so long ago … so long ago."
In my opinion there was not a miscarriage of justice in the decision made by the informant's counsel not to call the three witnesses in question and in considering the totality of the trial in my opinion the plaintiff was not deprived of a chance which was fairly open to him of being acquitted by that decision. Further, I think taking into account the totality of the evidence and the reasons for judgment given by the learned judge that the decision reached was clearly open on the evidence and there is no suggestion that the decision was perverse.
That brings me to the final question whether it is open on a judicial review for the court to quash the conviction if the court was of the view that there had been a miscarriage of justice by the failure to call a witness by the prosecution.
It is unnecessary for the court to determine this question because of the finding that no miscarriage of justice occurred but the question was discussed and it is appropriate to briefly consider it.
As a general proposition the supervisory jurisdiction is concerned with the decision making process. In this case a County Court Judge acting as judge and tribunal of fact. In the light of the High Court decision of R v Apostilides, supra, no criticism can be directed at the judge in handling the question of calling the witnesses. The matter was raised by counsel for the plaintiff but it is clear that His Honour could not require the prosecution to call the witnesses. Further, no application was made by either party to the judge that he call the witnesses. Indeed, the power to do so is indeed limited. See Apostilides, supra.
In those circumstances, bearing in mind that the judge has not made any error in relation to the conduct of the proceeding or the decision making process, on what basis is it open to this court to set aside the conviction?
In Richardson v The Queen, supra, Barwick CJ, McTiernan and Mason JJ at p.119 said this in respect to the prosecutor's discretion as to what witnesses are to be called for the prosecution –
"But to say this is not to give the prosecutor's decision the same character as the exercise of a judicial discretion or the exercise of a discretionary power or to make his decision reviewable in the same manner as those discretions are reviewable."
In Whitehorn v The Queen (1983) 152 CLR 657 the High Court was concerned with a case where a person was charged with the indecent assault of a seven year old girl and the only evidence called by the prosecution was the signed record of interview containing a confession. The prosecutor gave as a reason for not calling the child that she would not be any use as a witness and she would not have been capable of giving evidence. It appears that the girl had made a complaint some three or four months after it was alleged to have occurred. She identified the perpetrator by the name of "Skinnyguts" and three witnesses said that that was not the nickname of the accused but it referred to the child's father.
At p.665 Deane J, referring to the standards of fairness and detachment which should be observed by the Crown in calling witnesses went on to say this -
"The requirements of those standards are not, however, directly enforceable at the suit of the accused or anyone else by prerogative writ, judicial order or action for damages."
The above dicta tend to the conclusion that the failure to call witnesses by the prosecution which amount to a miscarriage of justice cannot be rectified by an order on judicial review.
In R v Leyland Justices, ex parte Hawthorn (1979) QB 283 the driver of one of two cars involved in a collision was prosecuted and convicted for careless driving. The police had in fact taken statements from two witnesses but the witnesses were not called and more importantly their existence was not disclosed to the defence. Later, his insurer obtained the police report and ascertained the existence of the two witnesses.
The driver successfully applied for an order of certiorari to quash the conviction.
Lord Widgery CJ after observing that certiorari in respect of a breach of the rules of natural justice is primarily a remedy sought on account of an error of the tribunal and there was no error of this tribunal went on to state –
"However, if fraud, collusion, perjury and such like matters not affecting the tribunal themselves justify an application for certiorari to quash the conviction, if all those matters are to have that effect, then we cannot say that the failure of the prosecution which in this case has prevented the tribunal from giving the defendant a fair trial should not rank in the same category."
Although his Lordship stated that there had been a clear denial of natural justice, on a proper analysis of the reasoning of the court it was clear that the decision was based upon the fact of the wrongdoing by the police in failing to inform the defendant of the witness statements.
It follows that if something is done in the nature of fraud, collusion, perjury or the like which prevents a defendant from having a fair trial then a prerogative writ remedy is available to quash the conviction.
In R v Home Secretary, ex parte L. Al-Mehdowi (1990) 1 AC 876 the House of Lords was concerned with a situation where again there was no wrongdoing on behalf of the tribunal but an applicant had been denied a hearing because of the failure of his advisers to inform him of the date of the hearing.
The House of Lords held that a litigant who has been deprived of the opportunity of having his case heard because of the default of his own advisers to whom he had entrusted the conduct of his case had no ground of complaint in law that he had been the victim of a procedural impropriety or that natural justice had been denied to him.
Lord Bridge at p.896 referred to the decision in ex parte Hawthorn and although he agreed with the result, questioned whether it was correctly classified as a case of breach of rules of natural justice or procedural impropriety. He equated the result as based upon a suppression of relevant evidence analogous to fraud, collusion and perjury as being the basis for the relief granted.
In Clarkson v DPP (1990) VR 745 Mr Clarkson sought by way of judicial review to quash a conviction in a County Court trial in circumstances where the Crown Prosecutor had in his possession relevant material which was of importance to the defence and despite the applicant's request was not produced to him at trial. The Full Court had to consider the situation in circumstances where the originating motion was struck out. The court held that Mr Clarkson had an arguable case and his originating motion should not have been dismissed. Reference was made to the case of ex parte Hawthorn.
It is clear that the common law supervisory jurisdiction of this court is concerned with the decision making process. There is no basis for suggesting that the learned County Court judge made an error in respect to the question of the Crown calling the additional witnesses.
If there had been a miscarriage of justice then the error occurred as a result of the decision made by the informant and his legal advisers. The observations made by the High Court in Richardson v The Queen and Whitehorn v The Queen stated above that the decision by the prosecutor to not call witnesses was not reviewable does not in my opinion answer the question that I have to decide. Clearly it would not be open to review the prosecutor's decision but the issue here is whether the defendant in the criminal proceeding has suffered a miscarriage of justice as a result of that decision and whether that miscarriage of justice is a basis for this court quashing the decision.
As I have stated above, the focus is on the effect of the decision upon the fairness of the trial.
The prerogative writ jurisdiction is an ancient one and in my opinion it is strongly arguable that if the court came to the opinion that there had been a miscarriage of justice by reason of the prosecutor's decision then the common law would intervene and quash the decision because the end result would be that the trial was unfair.
My decision is provisional only and it is not necessary for the final determination of this proceeding. It is supported by a recent decision of the House of Lords.
In Regina v Criminal Injuries Compensation Board, ex parte A (1999) 2 AC 330 the applicant applied to the Criminal Injuries Compensation Board for compensation claiming that in the course of a burglary at her house she had been assaulted, raped and buggered. The allegation of rape and buggery occurred some three days after she had first complained about the burglary and she was examined by a police doctor. The doctor reported that her findings were consistent with the allegation of buggery but neither confirmed nor excluded vaginal intercourse. Before the compensation board no evidence was called of the police doctor's report and a police witness asserted "the doctor could only see trauma to the back passage – the applicant had haemorrhoids". The board rejected the claim concluding the medical evidence gave no assistance.
In the House of Lords it was held that in the absence of the police doctor's report and as a result of the police officer's evidence the board had in a crucial respect been led to proceed on wrong evidence and did not have the true facts before it. Whilst the court stated that in the ordinary case it was for the applicant to produce the evidence to put before the board and there was no onus on the board or the police to obtain it or the board to adjourn the case for further investigation if the applicant had requested to do so, nevertheless on the facts and in the light of the importance of the police co-operating with the board in obtaining evidence there had been unfairness and a breach of rules of natural justice.
This case goes some way further than the Hawthorn case or the House of Lords case concerning the failure to tell the applicant about the hearing.
The decision was put on the basis that there had been unfairness in the conduct of the proceeding. No criticism was made of the board itself and there was no suggestion that it had done anything wrong.
Lord Slynn of Hadley at p.347 summarised the reasoning as follows –
"I consider therefore, on the special facts of this case in the light of the importance of the role of the police in co-operating with the board in the obtaining of evidence, that there was unfairness in the failure to put the doctor's evidence before the board and if necessary to grant an adjournment for that purpose. I do not think it possible to say here that justice was done or seen to be done."
(Emphasis added).
The House of Lords quashed the decision and remitted the matter to the board for re‑consideration.
That case does support the proposition that if there had been a miscarriage of justice resulting from the failure by the informant to call a necessary witness, then the court would intervene and quash the decision.
Trial judge treating as irrelevant the question of whether the plaintiff was assaulted by the police.
It is difficult to understand this ground. As I understood the submissions of counsel, it was contended that the trial judge treated as irrelevant the question whether the plaintiff was assaulted by the police and accordingly failed to find as a fact that he was assaulted by the police and hence was in error.
When submitted in that way, this raises a question appropriate for appeal but not on a judicial review.
But in any event, in my opinion no error has been demonstrated on the part of the learned trial judge. Mr Perkins was unable to point to any reference in the material that the judge did treat as irrelevant the question of whether the plaintiff was assaulted by the police.
Clearly in his reasons for judgment he did make mention of the fact that the plaintiff was struck by members of the police force. But as an issue it was unnecessary for him to decide whether or not it constituted an assault.
As was clearly apparent to the learned trial judge and this court on a consideration of the material, much of the time of this hearing before the trial judge was concerned with issues which clearly were relevant to the civil proceeding brought by the plaintiff. Whilst it is accepted that the events surrounding the circumstances of the charges brought by the informant against the plaintiff would be relevant to the charges, the question whether the plaintiff was actually assaulted by the police was irrelevant to the charges.
I reject that ground.
Police witnesses refreshing their memory
The question of a police witness refreshing his memory from his statement prior to giving evidence was addressed by the plaintiff in his affidavit. He swore –
"42. … Mr Callaghan said that he read his statement three days' ago and it was a brief read through. The purpose for reading the statement was to reinforce his recollection and that it is normal practice.
43. Mr Perkins made an objection that the witness had improperly refreshed his memory, that if a witness wishes to refer to a document to refresh memory that is to occur under the supervision of the court; that it is a corollary of the rule that a witness is not to refresh memory except by leave of the judge. The learned judge said that that principle was new to him and that he would need some authority. Mr Perkins said that he accepted that it is a widespread practice that occurs. Following the lunch break, my barrister told the learned judge that he had reviewed some authorities and did not wish to press the objection."
The fact that Mr Perkins did not press the objection and hence the learned judge did not have to make a ruling means that there can be no possible attack by the plaintiff as to the decision making process. The fact was no decision was made because the objection was withdrawn.
But in any event the objection had no substance and was bordering on the ridiculous.
Any witness may refresh his memory from any source outside court to enable him to give evidence in court. His evidence which he gives in court is the product of his memory of the circumstances and events. His memory may be prompted by any source including another witness's statement, a discussion with another witness or indeed reading a newspaper which referred to a relevant matter.
There is nothing wrong with this practice. Indeed, if he does refresh his memory outside court from notes, the cross-examining counsel may call for the notes and examine them without making them evidence and cross-examine the witness on the notes used to refresh his memory. See R v Harrison (1966) VR 72. However, if opposing counsel cross-examines outside the part used to refresh the memory then counsel will be obliged to tender the document if so requested. See R v Britton (1987) 1 WLR 539.
Mr Perkins was unable to refer to any authority which supported his unusual submission and in my view there is none.
This ground fails.
Conclusion
In my opinion the plaintiff has failed to establish any of his grounds for relief set out in the originating motion and accordingly it should be dismissed with costs.
After preparing the reasons the court received an affidavit from the plaintiff's solicitors producing a true copy of the order of the County Court judge. The very late production of the order has no effect upon the orders the court proposes to make.
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