Appellant v Respondents

Appellant v Respondents - [2005] VSCA 311 - VSCA 2005 case summary — Zoe

[5]

3 This is an appeal from an order made by a judge of the Trial Division dismissing the appellant's application for judicial review of a decision of a judge of the County Court of Victoria, sitting in its criminal appellate jurisdiction at Warrnambool.

The Background

4 Following certain incidents at the Criterion Hotel in Warrnambool late on the night of 2 May 2002, the appellant, Geoffrey Clark, was charged with 19 offences. The appellant and other members of the local Aboriginal community had been celebrating the fact that, earlier that day, at the Warrnambool race meeting one of the races had been named in honour of Alice Clark, the grandmother of the appellant and a respected Aboriginal elder.

5 Only five of the 19 charges were proceeded with at the hearing on 28 March 2003 before the Magistrates' Court of Victoria sitting at Warrnambool. The appellant was convicted of two charges, obstructing police contrary to s.52(1) of the Summary Offences Act 1966 and acting in a riotous manner contrary to s.17(d) of the same Act. The remaining three charges were dismissed.

6 The appellant appealed to the County Court of Victoria pursuant to s.83 of the Magistrates' Court Act 1989. On 3 December 2003, at the end of the prosecution case, the learned County Court judge accepted part of the Prasad[1] submission made by defence counsel and found the appellant not guilty of the charge of riotous behaviour. After hearing evidence from the appellant and two other witnesses, the judge found the appellant guilty of the charge of obstructing police. He was convicted and fined $750.

7 By an originating motion filed on 12 February 2004 pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 1986 the appellant sought an order in the nature of certiorari quashing the order of the County Court judge made on 4 December 2003 on three grounds - jurisdictional error, error of law on the face of the record and denial of procedural fairness. Each of the three grounds was particularised in four different ways. The application was heard on 2 April 2004. On 7 April 2004 the learned trial judge dismissed the application.

8 There were four grounds of appeal in the appellant's Notice of Appeal dated 21 April 2004. However, by a proposed Amended Notice of Appeal, which was exhibited to an affidavit of Mark Andrew Yorston sworn 12 October 2005, the grounds were reduced to two:

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Mr McArdle pointed out that the proposed amended ground alleged "no probative evidence, and which was contrary to the evidence." He submitted that the two expressions were different. "No probative evidence" merely required the superior court to determine whether there was some factual basis which would have permitted the inferior court to embark on its judicial determination exercise and whether any inferences drawn were reasonably open to it, whereas "contrary to the evidence" called for a qualitative assessment of the evidence received by the County Court judge in making his determination. Mr McArdle therefore submitted that the appellant had not invoked the supervisory jurisdiction of the Supreme Court to determine whether the County Court judge fell into jurisdictional error on the "no probative evidence" ground.

10 In response, Mrs Mortimer SC, who appeared with Ms Orr of counsel on behalf of the appellant, indicated that the appellant was content to delete the words "for which there was no probative evidence, and" from the first ground in the proposed Amended Notice of Appeal as she submitted that in this context the two expressions meant the same thing. On this basis, the respondent no longer opposed the Court giving the appellant leave to rely on what became the Further Amended Notice of Appeal.

11 There is, in any event, a long history of the courts recognising that there is a difference between a submission that a finding was against the evidence and a submission that a finding was against the weight of the evidence. Griffith, C.J. so found in Mount Bischoff Tin Mining Company, Registered v Mount Bischoff Extended Tin Mining Company, No Liability[2], where the relevant statute prohibited a new trial being granted on the ground that the jury verdict was against the weight of the evidence. His Honour held that where there was no evidence of the existence of a relevant fact, a finding that the fact existed was one made against the evidence and not against the weight of the evidence. As the matter was not fully argued, given the agreement to delete the words to which objection was taken, I shall assume, without deciding, that a ground of review that a finding was "contrary to the evidence" is the same as saying that it was one made "against the evidence."

The Obstructing Police Conviction

12 The precise wording of the charge of which the appellant was convicted was that:

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Subsequently, the police arrived. However, Mr Robottom's evidence was that he did not hear anything said by the appellant when the police were there as he had taken a few steps back "to let them do their job" and he could not hear what was said over the music and other people talking. It was therefore submitted on behalf of the appellant that the finding that the appellant uttered the words in question to the police was contrary to Mr Robottom's evidence because there was no such evidence.

18 In his reasons for judgment, the learned trial judge dismissed the contention that the County Court judge had made a finding contrary to the evidence, on the basis that "this is not a jurisdictional error."[4]

19 On behalf of the appellant Ms Mortimer submitted that the courts have long accepted that an absence of evidence to sustain a finding or inference of fact gives rise to an error of law.[5] She submitted that in the context of decisions made by administrative decision-makers, the courts have held that an absence of evidence to sustain a finding or inference of fact can constitute jurisdictional error on the part of the decision-maker. Jurisdictional error will be made out where the finding of fact that is unsupported by the evidence is critical (or material) to the decision-maker's task, or where the decision can be said to be "based upon" that fact. The absence of evidence to sustain such a factual finding undermines the authority of the decision-maker to reach the decision he or she has purported to reach, and jurisdictional error results.

20 Similarly, Ms Mortimer submitted, the absence of evidence to sustain a factual finding made by a court undermines the authority of a judge to make the decision he or she has purported to reach. It was submitted that where an inferior court does something that it lacks authority to do (even while it is acting wholly within the general area of its jurisdiction), it too falls into jurisdictional error. In support of this proposition Ms Mortimer referred the Court to the well known passages from the joint judgment of the High Court of Australia in Craig v South Australia:[6]

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"An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its function or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction, if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.

...

... 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 in determining such a question will not ordinarily involve jurisdictional error." (Citations omitted)

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21 Ms Mortimer submitted that the authority of a judge of the County Court of Victoria adjudicating on an appeal against a conviction imposed in the Magistrates' Court of Victoria to find the charge against the appellant proven rested on the judge making particular critical (or material) factual findings. She submitted that if a judge made such a finding in circumstances where the finding was contrary to the evidence in the sense of being wholly unsupported by the evidence, the authority of the judge to find the charge against the appellant proven was affected, and affected in a way that deprived the Court of its authority to find the charge proven.

22 Ms Mortimer submitted that although the High Court said in Craig that demonstrable mistake by a court (as opposed to an administrative tribunal) in the identification, formulation and determination of relevant issues and questions would not normally constitute jurisdictional error, the rationale for that statement was expressed to be based largely on factors that had no application in this case. She argued that the High Court had relied heavily on the availability of an appeal as a mechanism by which such mistakes, when made by a court, could be identified and corrected. In this case, there was no right of appeal from the decision of the County Court judge. Therefore, it was submitted, the principle enunciated in Craig, that an inferior court that does something it lacks authority to do falls into jurisdictional error, applied.

23 However, Ms Mortimer frankly conceded that none of the examples given by the High Court in Craig were apposite to this case. She also frankly conceded that she was not able to refer to a case in which a factual error by a judge, such as she submitted had here occurred, had resulted in certiorari being granted. Nevertheless, she submitted that the decision in Craig supported the proposition that where a particularly egregious and critical error of fact was made there could be a finding of jurisdictional error. It was submitted that, although the High Court had not found jurisdictional error on the part of the District Court judge in Craig, the High Court had not criticised the examination by the Full Court of the Supreme Court of South Australia of whether or not the trial judge's findings were supported by the evidence. Thus, it was submitted, in an appropriate case where there was no evidence to support the critical finding of fact, there could be jurisdictional error. Given the view I have reached about the decision of the County Court judge, I shall assume, without deciding, that Craig can be read as providing some authority for this proposition.

24 The particular critical or material facts in this case were the facts constituting the actus reus and the mens rea of the offence of obstructing police, which needed to be proved beyond reasonable doubt.

25 The concept of critical facts was discussed by Black CJ in Curragh Queensland Mining Ltd v Daniel[7] as follows:

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39 Ms Mortimer submitted that what she asserted was the denial of natural justice in this case could not be said to be an "insignificant", "purely formal" or "immaterial" mistake[22] and that this Court could not be "confident that the breach could not have affected the outcome"[23] of the proceedings before the County Court judge. It was submitted that the direction by his Honour to senior counsel for the appellant to "pass on" from the issue of the alleged accusation of racism was misleading, unfair and (in the light of his Honour's subsequent findings) impermissible. Counsel described it as a representation to counsel for the appellant (and prosecuting counsel) that the judge would not rely on evidence suggesting that such an accusation had been made, which his Honour then went on to do.

40 Ms Mortimer further submitted that it is not necessary for a litigant who asserts that he or she has been misled or denied an opportunity to run his or her case in a particular way to produce evidence as to the different course that would have been taken had he or she not been misled or denied such an opportunity.[24] She submitted that it was clear that had the County Court judge ruled that "accusing Nichols of racism" was a proper particular of the charge of obstructing police, or, at the very least, refrained from halting counsel's submissions on this topic, evidence may have been given on the appellant's behalf that was directed to refuting the allegation that such an accusation was made, and/or further submissions would have been made about the appropriateness of such an accusation as a particular of an obstruction charge. She submitted that had such evidence been called or such submissions been made, the County Court judge may have been persuaded that no such accusation was in fact made. She pointed out that in a context where the County Court judge characterised the evidence of the police witnesses as substantially in conflict with the evidence of the civilian witnesses, such evidence may have also cast doubt on the credibility of the entirety of the evidence given by Sergeant Nichols, leading to a finding by his Honour that none of the particulars of the charge were supported by the evidence.

41 Finally, it was submitted that it was no answer to the clear breach of procedural fairness in this case to assert (as the learned trial judge did) that the County Court judge's finding that the appellant had accused Sergeant Nichols of racism was "merely part of the background facts in which the conduct was to be assessed" or that it was contained in a passage in which the judge was "concerned" with the "intent" of the appellant. It was submitted that on the authorities cited above, once a breach of procedural fairness was proved, relief should be granted.

42 In my opinion, a careful consideration of what occurred at the hearing of the appeal to the County Court establishes that there was no breach of procedural fairness. The first point to note is that the relevant exchange took place in the course of the Prasad submission. Counsel put to the judge, and his Honour apparently accepted, that the accusation of racism was not "a particular of any obstruction." That is all. I do not consider that this exchange supports the submission that his Honour represented to counsel for the appellant that he "would not rely on evidence suggesting that such an accusation had been made." His Honour did not say that and in the context in which the exchange took place it was not a reasonable inference for counsel to draw. I therefore reject the appellant's submission that this case was on all fours with Stead.

43 This conclusion is made clearer by looking at what occurred during the rest of the Prasad submission after the exchange between the appellant's counsel and the judge. Senior counsel for the informant in his responding submission twice referred to the evidence that the appellant had accused Sergeant Nichols of racism. First, counsel submitted that the appellant was aware of what Sergeant Nichols was intending to do:

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44 These references to accusations of racism were not objected to or even mentioned by senior counsel for the appellant in his reply in the Prasad submission. Nor did the judge say that they were irrelevant. And yet, if the appellant's argument on this appeal is correct, both his Honour and counsel for the appellant would have been of the view that such evidence was not to be relied on in any way.

45 Therefore it seems to me that if counsel for the appellant in the County Court appeal (neither of whom appeared in this appeal) did construe his Honour's comment during the Prasad submission as a statement that he would not rely on evidence suggesting that a racist accusation had been made, they were mistaken in doing so. As discussed above this was not what his Honour said. If, as Ms Mortimer submitted, the appellant's counsel were left with the impression that the allegation of racism need not be dealt with, then this misapprehension cannot be blamed on his Honour. Clearly, such evidence was still relevant to the question of intent and as to credit. Further, I do not consider that prosecuting counsel were under the same misapprehension. On this basis, there was no breach of procedural fairness.

46 Further, I do not agree with the submission that it is clear that, but for his Honour's indication, evidence may have been given on the appellant's behalf that was directed to refuting the allegation that such an accusation was made. As counsel for the appellant stated in their written outline of submissions, evidence denying that the accusation of racism was made may have cast doubt on the credibility of the evidence given by Sergeant Nichols and the other police officers Owen, Green, Fitzgerald and Carr (who talked only of an accusation of discrimination), thus leading to a finding that there had been no obstruction by the appellant. It is therefore somewhat surprising at first glance that such evidence was not led from the appellant, regardless of the view taken as to what the judge had meant to convey by his indication in the Prasad submission to pass on to the next particular. However, when the evidence, in particular the cross-examination, of each of these witnesses is read in full, it appears to me that no issue was joined about the appellant accusing Sergeant Nichols of racism and discrimination. Despite lengthy and forceful questioning, it was not put to any of the assisting officers in cross-examination that their evidence about the appellant making such an accusation was incorrect. Moreover, in cross-examination of Sergeant Nichols, senior counsel appeared to accept that such an accusation had been made:

At a glance

Court

Decision date

Before

Source

Judgment (59 paragraphs)

Parties

Cases Cited (11)