Young v County Court of Victoria

[2002] VSC 43

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4072 of 2002

PAUL C YOUNG	Plaintiff
V
COUNTY COURT OF VICTORIA AND DIRECTOR OF PUBLIC PROSECUTIONS	Defendants

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JUDGE:	Bongiorno J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2002
DATE OF JUDGMENT:	27 February 2002
CASE MAY BE CITED AS:	Young v County Court of Victoria & Director of Public Prosecutions
MEDIUM NEUTRAL CITATION:	[2002] VSC43

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Judicial review – Review of County Court Judge on trial on indictment – Fragmentation of the criminal process – Order 56 Rules of Civil Procedure

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the 1st Defendant	Did not appear
For the 2nd Defendant	Mr. D. O’Doherty	Public Prosecutions

HIS HONOUR:

1. On the trial of this originating motion on 27 February 2002 the plaintiff appeared in person, there was no appearance for the County Court and the Director of Public Prosecutions was represented by Mr D O’Doherty of counsel.  At the end of the plaintiff’s argument I did not call upon the defendant and proceeded to deliver an ex tempore judgment in the expectation that this judgment would be recorded by Court Recording Services Pty Ltd in the ordinary course.  On 28 February 2002 my associate was informed by Court Recording Services Pty Ltd that, due to a technical malfunction, the delivery of my judgment had not in fact been recorded so that a verbatim transcript of it cannot be produced.  What follows does not purport to be the judgment I delivered on 27 February but rather a summary of my reasons for judgment compiled on 28 February 2002.  At the time of compiling this summary my order dismissing the plaintiff’s Originating Motion will not have been authenticated.

1. Upon the proceeding being called on the plaintiff sought an adjournment on the ground that he was not legally represented.  Having regard to the nature of the proceeding, the relief sought and the fact that he had been refused legal aid such that he had little prospect of obtaining legal representation I refused the application whilst advising him that I would ensure that his rights were fully protected as he appeared in person.

1. This proceeding was instituted by way of originating motion issued 14 January 2002 in which prerogative relief in the nature of mandamus and or a stay of proceedings was sought of a presentment filed in the County Court Against him.  The motion was supported by three affidavits sworn 14 January 2002, 18 February 2002 and 21 February2002 respectively.  Each of those affidavits was sworn by the plaintiff. 

1. The substance of the plaintiff’s complaint arises from the refusal of His Honour Judge Robertson in the County Court on 21 December 2001 to permit him to change a plea of guilty which he had entered upon being arraigned before His Honour Judge Kimm on 29 October 2001.  The presentment to which he pleaded alleged one count of armed robbery.  His Honour gave a written ruling which forms part of the transcript of the proceedings before him which are an exhibit to one of Mr Young’s affidavits.  I have read that ruling.  Mr Young’s principal complaint against His Honour seems to be that His Honour was biased against him and did not afford him natural justice in deciding his application, although Mr Young did not express himself in those terms.

1. It appears that after Judge Robertson refused Mr Young’s application he remanded him on bail to 7 February 2002; presumably for plea and sentence although this is somewhat unclear from the material.  I infer from the fact that Mr Young appeared personally before me on 27 February that the hearing on 7 February 2002 had been vacated. 

1. At the outset of the argument I asked Mr Young to confine his argument to the question as to whether this Court should deal with his application having regard to the fact that the issue of civil proceedings in this Court, whilst he was awaiting plea and sentence in the County Court, constituted an unjustified fragmentation of the criminal process to the detriment of the proper administration of justice.  I explained to Mr Young that for this Court to entertain an application such as that which he was making there needed to be circumstances variously described in the cases as “most exceptional”, “special” or giving rise to “some special reason”.  Having thus had the law explained to him Mr Young was able to argue that if this Court did not intervene to prevent Judge Robertson sentencing him in the near future he would probably be sent to gaol thus denying him the justice to which he claimed to be entitled and which he would have received had Judge Robertson not refused his application to change his plea.

1. In support of his argument Mr Young expounded what he said was the law concerning this matter and submitted that this Court ought to hear his complaint and prevent his being sentenced. 

1. I did not permit Mr Young to address me on the merits of his application (i.e. as to Judge Robertson’s alleged bias or other deficiencies he said had occurred in the County Court) nor on the many other matters he wished to raise and to which reference is made in the affidavits to which I have referred.  It seemed to me that unless he could satisfy the criteria for permitting the criminal process to be fragmented at this point for the purpose of correcting the error which he says was made in the County Court his application should be dismissed so that the criminal law could take its course and he could be sentenced.  He would then have all his relevant rights of appeal, both as to conviction and sentence preserved.

1. At the end of Mr Young’s argument I did not call upon Mr O’Doherty for the Crown as Mr Young had not made out a case for the intervention of this Court.

1. I then delivered an oral ex tempore judgment in which I reviewed the matters referred to above and made reference to a number of decided cases including Sankey v Whitlam[1], Cain v Glass (No 2)[2] and Anderson v Attorney General[3].  As an aid memoire with respect to the law relating to the fragmentation of the criminal process I used a passage from my judgment in Atlas v DPP[4].

   [1]1978 142 CLR 1

   [2]1985 3 NSWLR 230

   [3]1987 10 NSWLR 198

   [4](2001) 3 VR 211 at 215

1. For the reasons which I set out at length in Atlas it is extremely important that the criminal process, once initiated, be permitted to run to its conclusion without interference from a superior Court in which civil process has been initiated, save in the sort of circumstances referred to in the cases to which I have referred.  The appeal process exists to ensure that any error made by a primary judge in the course of the criminal process can be corrected in the Court of Appeal.  In the instant case, if Mr  Young wishes to challenge the correctness of Judge Robertson’s ruling on his application to change his plea, or the legality of any sentence imposed by Judge Robertson subsequently, then he can do so in the ordinary way by appeal to the criminal division of the Court of Appeal.  Absent exceptional circumstances this Court should not intervene.

1. If, as appears to have been the case, Mr  Young was able to have his sentencing by the County Court adjourned to enable this proceeding to be completed, such adjournment should not have been granted.  The criminal process should not have been interrupted.  It should now proceed to a conclusion without further interruption.

1. I concluded my judgment by dismissing the originating motion and making no order as to costs.

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