Appellant v Respondents

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:

(a) that the learned trial judge erred in finding that the decision of the County Court judge was not affected by jurisdictional error in that it was based on a finding of fact for which there was no probative evidence, and which was contrary to the evidence, and

(b) that the learned trial judge erred in finding that the County Court judge did not deny the appellant procedural fairness in relation to his Honour's finding that the appellant made an accusation of racism.

Application was made at the commencement of the hearing for leave to amend the Notice of Appeal.

9 Mr McArdle QC, who appeared with Mr Harkess of counsel for the respondent, opposed the granting of leave. He submitted that the first ground of the proposed Amended Notice of Appeal was not within the scope of the particulars articulated in the originating motion. The fourth particular of the ground of jurisdictional error was that:

"The trial judge relied on the evidence of Robottom of conversations by the Plaintiff to police which is contrary to the evidence."

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:

"The defendant at Warrnambool on 2.5.02 did obstruct a member of the Police Force, one Peter Nicholls [sic] a member of the Police Force in the execution of his duty."

Particulars of this charge were sought and obtained by counsel for the appellant at the commencement of the appeal to the County Court. They were as follows:

"Appellant prevented Sergeant Nichols from performing his duty to assist licensee to expel Chatfield from Criterion Hotel by -

(iii) Aggressively yelling and arguing with Nichols.

(vi) Challenging Nichols' authority to perform his duty.

(vii) Insisting that Nichols provide an explanation as to why Chatfield was to be expelled.

(viii) Threatening that in order to expel Chatfield Nichols would have to fight with other Aboriginals."

13 There was no dispute that the offence of obstructing police is committed if the acts of the defendant intentionally make it "more difficult for the police to carry out their duties."[3]

14 In his reasons for judgment, the County Court judge found that Sergeant Nichols was "duly executing his duty as a police officer" in attempting to remove Mr Chatfield from the Criterion Hotel, in accordance with a request from the licensee, and that "the appellant was aware of what Sergeant Nichols was attempting to do in the performance of his police duties." Mr Chatfield had some two or more years before been banned from the hotel for life. For most of the intervening period he had been in gaol.

15 The County Court judge then referred to the fact that the evidence was "again ... substantially in conflict." This was a reference to his ruling earlier that day that the appellant was not guilty of riotous behaviour. His Honour continued:

"4. ... I accept that the appellant and Sergeant Nichols did engage in a lengthy conversation concerning the removal of Chatfield from the bar and from the premises. This is consistent with the evidence of a number of the civilian witnesses and Morgan refers to the waving of arms by the appellant in what looked like an argument. Robottom speaks of Geoff Clark saying to the police they would have a hell of a job to get Chatfield out. I find there developed an aggressive argument between the appellant and Nichols as to Chatfield being removed from the hotel premises.

5. As to the evidence of the appellant, there were inconsistencies as to his earlier discussions with Nichols and his knowledge of the reason for the police presence and his knowledge of Chatfield being banned.

6. The appellant's conduct with the police regarding Popeye Harrison at the Grand Hotel, and on being told that Chatfield was barred from the Criterion Hotel and his persistence in allegedly seeking to find out the reason Chatfield was banned, is not consistent with the 'fair enough' attitude at the Grand Hotel.

7. The appellant was at times, evasive in the course of his evidence. Again his purported conduct in persistently querying the police as to the reason for Chatfield being banned, Chatfield being a Koori, is inconsistent with his lack of action in relation to all Koori's [sic] being removed from the Criterion [Grand?] Hotel, particularly when some of them were in his own group and females, who were seeking drinks. [sic]

8. ... [Comment on evidence of a defence witness]

9. I find that the appellant told Nichols that Chatfield was not to be removed from the hotel and he accused Nichols of being racist and discriminatory. I find that by his conduct, there is a clear inference to be drawn that the appellant intended to obstruct the police, being Sergeant Nichols, in performing his duty in removing Chatfield from the hotel as requested by the publican. I make no finding as to the time of that request.

10. Clearly, for a period of time Nichols was prevented from performing his duty, but I do accept that Clark moved away and left Nichols to deal with Chatfield.

11. I make no finding as to the appellant blocking Nichols' approach to Chatfield. Nor do I make any finding as to the allegation of threatening the police to necessarily have to fight 25 Kooris.

12. This incident may well have been avoided if the appellant had not interfered, even though his motives may have originally not involved any intention to obstruct the police ..."

16 As I have said, the learned trial judge dismissed the appellant's application for judicial review of the County Court Judge's decision, and in so doing rejected all of the grounds advanced on behalf of the appellant in support of that application. I turn then to consider the two grounds of appeal from the learned trial judge's decision.

Jurisdictional Error

17 As finally amended, this ground of appeal was that the learned trial judge had erred in finding that the decision of the County Court judge was not affected by jurisdictional error in that it was based on a finding of fact which was contrary to the evidence. The finding of fact in question was that a witness, Mr Robottom, had given evidence that Mr Clark had said "to the police that they would have a hell of a job to get Chatfield out". There was no dispute that, in fact, Mr Robottom, a crowd controller employed at the hotel, had given evidence that when he asked Mr Chatfield to leave the appellant said that Mr Chatfield would be "right" and that he would not "cause any trouble", and that when the licensee subsequently asked Mr Chatfield to leave the appellant said to Mr Chatfield:

"Stand up for your rights mate, you don't have to leave. You've done nothing wrong."

Mr Robottom then said that when Mr Chatfield was again asked to leave, the appellant:

"told us that there were 24 or more of them and if we tried to remove him we'd have a hell of a hard time getting him out."

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]

"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)

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:

"A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion."

26 Ms Mortimer submitted that the County Court judge's finding about Mr Robottom's evidence was one of the few findings made by the County Court judge and that it was critical in his finding that the appellant had obstructed the police. Indeed, Ms Mortimer submitted that his Honour had reached that conclusion by the end of the paragraph in which the reference to Mr Robottom's evidence appeared.

27 I do not consider that this is a fair analysis of his Honour's reasoning. It seems to me that the finding that there had been obstruction of the police was only made when his Honour said in paragraph 10 of his judgment that "clearly, for a period of time Nichols was prevented from performing his duty." Before that, his Honour was still reviewing and considering the evidence. In particular, it seems to me that the critical part of his Honour's reasoning was the comparison he made between the appellant's co-operative conduct at the Grand Hotel and his "persistence in allegedly seeking to find out the reason Chatfield was banned" at the Criterion Hotel. That is, his Honour considered that the appellant obstructed Sergeant Nichols' attempt to remove Mr Chatfield from the Criterion Hotel under the cover of his persistent querying of him as to the reason for Mr Chatfield being banned. I therefore accept the respondent's submission that there were sufficient other factual findings made by the County Court judge which substantiated the charge. I also accept the respondent's submissions that the Robottom evidence could not be regarded as a critical factor link in the "chain of reasoning" leading to the appellant being found guilty. In the circumstances of this case the appropriate metaphor is, as Heerey J said in Fernando v Minister for Immigration and Multicultural Affairs[8]:

"not the chain or the fork in the road, but rather the net. A net does not necessary [sic] fail because one or more of the constituent strands fail. It all depends on how strong their remaining strands are and the size or mass or power of the object which the net is being used to restrain or support."

28 Moreover, it should be noted that in the originating motion when setting out the relevant findings of the County Court judge which formed the basis for the argument that there had been jurisdictional error, no specific mention was made of any finding about Mr Robottom's evidence. Instead, the relevant findings were said to include:

"(i) The Appellant and Sergeant Nicholls [sic] did engage in a lengthy conversation concerning the removal of Chatfield from the bar and from the premises.

(ii) An aggressive argument developed between the Appellant and Nicholls [sic] as to Chatfield being removed from the premises.

(iii) The Appellant told Nicholls [sic] that Chatfield was not to be removed from the hotel."

Ms Mortimer highlighted finding (iii) as being linked to the alleged jurisdictional error concerning Mr Robottom's evidence. However, that finding appeared in his Honour's reasons nearly a full page after the reference to Mr Robottom's evidence, which seems to me to cast serious doubt on the submission that they were somehow linked. Further, reliance by the appellant on this finding in his originating motion is another reason why the appellant's submission, that the only relevant findings in respect of the actus reus were to be found in the first paragraph of the above quotation from the judgment, cannot be correct.

29 Thus, the incorrect reference to Mr Robottom's evidence was not, in my opinion, a critical part of his Honour's conclusion that the appellant was guilty of the offence of obstructing police. Therefore, even making the assumptions as to principle set out above in the appellant's favour, there was no such egregious error in fact finding as to lead to the conclusion that there was jurisdictional error. Accordingly, no error has been shown in the learned trial judge's rejection of the submission that there had been jurisdictional error.

Denial of Procedural Fairness

30 The circumstances giving rise to this ground of appeal were as follows. During the course of his Prasad submission that the appellant should be found not guilty of obstructing police, senior counsel analysed the evidence by going to each of the eight particulars of obstruction. In the course of that submission the following exchange occurred:

"[Counsel]: The second particular, that of accusing Nichols of racism. It's not really, in my respectful submission, a particular of any obstruction.

His Honour: No, you can pass on from that."

Counsel then moved to the third particular. The judge's view about this matter would not have been that surprising to the parties given that, much earlier in the trial, during the submissions concerning the need for particulars of the charge of obstructing police, he had said to senior counsel for the informant that:

"still if you analyse [it], accusing Nichols of racism, that by itself is certainly not obstruct police."

Counsel agreed that it was not, but submitted that it was "part of the whole."

31 The appellant's complaint was that, as has been seen, in paragraph 9 of his reasons for judgment the County Court judge found that the appellant:

"accused Nichols of being racist and discriminatory."

32 It was submitted on behalf of the appellant that this constituted a denial of procedural fairness. It was said that in reliance on the indication given by the County Court judge, senior counsel for the appellant did not call evidence from either the appellant or the other two defence witnesses, each of whom was present at the hotel on the night in question, to refute the evidence of Sergeant Nichols that the appellant had accused him of racism. It was also said that prosecuting counsel did not cross-examine the appellant or the defence witnesses about this topic. Further, it was said that in reliance on the indication by the judge, senior counsel for the appellant also refrained from making any submissions on this topic at the close of evidence.

33 In the originating motion this allegation of procedural unfairness was particularised as follows:

"(iii) The learned trial judge having accepted during the course of submissions by Counsel for the Plaintiff that an allegation of racism was not a proper particular of a charge of obstructing police then relied upon that evidence to find the charge proven."

34 The learned trial judge dealt with this argument in paragraph 27 of his reasons. Having quoted from paragraph 9 of the County Court judge's reasons, the learned trial judge continued as follows:

"It is clear from this passage and the context in which it is found that his Honour was there concerned, not with the acts obstruction, but rather with the intent of Mr Clark. It was merely part of the background facts in which the conduct of Mr Clark was to be assessed. When his Honour indicated that particular (ii) was not properly to be seen as an act of obstruction, he was not saying that the accusation of racism was not relevant for any purpose. His Honour did not therefore deny Mr Clark procedural fairness in accepting the prosecution evidence that he made the accusation of racism any more than he would have done so by receiving evidence of the whole circumstances of the incident including the evidence of the remaining acts particularised. There is no substance in this complaint."[9]

35 Ms Mortimer submitted that procedural fairness required "that a person whose interests are likely to be affected by an exercise of power be given an opportunity to deal with matters adverse to his or her interests that the repository of the power proposes to take into account in exercising the power."[10] In other words, "any person represented at [an] inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision-maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have had that result."[11]

36 There can be no doubt that the requirements of procedural fairness apply to judicial decision-makers as well as administrative decision-makers and that everyone is entitled to a fair trial at which he or she can put his or her case properly before the judge.[12] Thus, if a judicial decision-maker prevented a party from making submissions or leading evidence on a topic that ultimately informed the decision, the rules of procedural fairness would be breached. As Kirby J recognised in Re Ruddock; Ex parte Applicant S154/2002[13]:

"There is no doubt that stopping a party to a hearing from presenting further evidence or argument upon an issue and then deciding the case upon a basis that might have been the subject of such evidence or argument will normally be regarded as unfair. It will usually attract relief from the courts. Similarly, where, although not stopped, an applicant is effectively misled by conduct on the part of the decision-maker, relief may be granted to prevent a procedural unfairness."

37 Counsel for the appellant accepted that, although a breach of the requirements of procedural fairness constituted jurisdictional error[14], not every breach of such requirements at a trial will entitle the aggrieved party to a new trial. In Stead v State Government Insurance Commission[15], the High Court unanimously ordered a new trial in circumstances where a judge of the Supreme Court of South Australia had responded to a submission about the evidence of a medical expert by stating "I don't accept Dr Scanlon on that. You needn't go on as to that", and then in his judgment accepted the evidence of Dr Scanlon on the issue in question. The Court explained when relief might be withheld by giving two different examples:

(a) Where a party at trial was denied the opportunity of making submissions on a question of law and, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.

(b) However, where the denial of procedural fairness affected the entitlement of a party to make submissions on an issue of fact (especially where the issue was whether the evidence of a particular witness should be accepted), it was more difficult for a court of appeal to conclude that compliance with the requirements of natural justice could have made no difference.[16] As the High Court noted:

"it is no easy task for a court of appeal to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome of the trial of an issue of fact."[17]

38 I accept the appellant's submission that the authorities establish that once a breach of procedural fairness is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome[18] and that such a situation will be a rarity.[19] The exception is held in reserve to guard against insignificant, purely formal and immaterial mistakes, and unless the breach can be so classified, the person affected who claims the writ is normally entitled to relief.[20] As Gummow and Heydon JJ noted in Re Ruddock; Ex parte Applicant S154/2002[21]:

"If counsel addressing a judge is stopped in the middle of a submission on a matter of fact, it is safe for counsel to assume that, unless notice to the contrary is given, the submission will be accepted: if the judge later rejects that submission, an appeal will succeed unless it is shown that a properly conducted trial could not possibly have produced a different result."

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:

"What Mr Clark did thereafter, when properly analysed in the light of that knowledge, shows that he did intend to obstruct because everything he did was designed or calculated to prevent Mr Nichols from carrying out his duty to expel Chatfield from the hotel or to make it more difficult for him to do it. The whole purpose behind what Mr Clark was doing was not to diffuse or calm the situation, it was quite to the contrary.

The evidence is overwhelming that amongst other things, Mr Clark said, 'You're not taking Chatfield out, you're not taking him out.' Mr Green heard him saying, 'Tell me fucking why. You're not taking him. It's discrimination, you're racist'."

Shortly thereafter he contrasted the appellant's behaviour at the Grand Hotel earlier in the night with the subject conduct:

"At the Criterion, the attitude of Mr Clark is totally different. It's not 'What's the reason? Fair enough.' It's, 'You're racist', blocking Nichols, pointing the finger at him, yelling at him, being aggressive, insisting that there be reasons given and threatening that the police were not going to take Chatfield out. The evidence of what occurred at the Criterion Hotel of Mr Clark's behaviour and attitude to Sergeant Nichols, in our submission, speaks eloquently that that was the intention of Mr Clark to in fact obstruct Nichols in doing what Nichols intended to do and which Mr Clark knew that that's all he was doing."

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:

"He was accusing you of racism that night, that is the second particular and we agree with that?---Sorry, I don't agree that I was racist that night.

I think you didn't hear my question. He was accusing you of racism? ---Yes.

Which you say of course you weren't; right?---I wasn't."

(Emphasis added)

Obviously all of the above occurred before the exchange during the Prasad submission.

47 In the light of this lack of challenge to the evidence of the accusation of racism, and in the light of the absence of any denial of the accusation of racism, it is hardly surprising that prosecuting counsel did not cross-examine the appellant or the other defence witnesses about this topic. The absence of such cross-examination therefore lends no support, in my opinion, to the suggestion that counsel on both sides understood from the judge's earlier remark that the issue of accusations of racism was irrelevant.

48 It also seems to me that the attack on the learned trial judge's finding that the accusation of racism was contained in a passage in which the judge was "concerned ... with the intent of Mr Clark" and that it was "merely part of the background facts in which the conduct of Mr Clark was to be assessed" wholly fails. To my mind, this was an entirely appropriate way of describing what use the County Court judge had made of the evidence about accusations of racism. As counsel for the appellant was not stopped by the County Court judge from leading evidence from Mr Clark about his intention at the particular time on the night in question, the learned trial judge was correct to reject the submission that there had been a denial of procedural fairness.

49 In the circumstances, it is unnecessary to consider Mr McArdle's further submission that the lack of any complaint to the County Court judge about the so-called denial of procedural fairness by the two experienced defence counsel, either at the conclusion of his Honour stating his reasons for finding the appellant guilty of the obstruction offence or the next morning before the plea and sentence, indicated that at the time there was no concern about the fairness of the hearing.

Orders

50 In my opinion, for the above reasons the appeal should be dismissed with costs.

[1] The Queen v Prasad (1979) 23 SASR 161

[2] [1913] HCA 6; (1913) 15 CLR 549 at 559

[3] Hinchcliffe v Sheldon [1955] 1 WLR 1207

[4] [2004] VSC 106 at [14]

[5] See, for example, Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 358 per Mason CJ

[6] [1995] HCA 58; (1995) 184 CLR 163 at 177-178 and 179-180 per Brennan, Deane, Toohey, Gaudron and McHugh JJ

[7] [1992] FCA 44; (1992) 34 FCR 212 at 220-221 per Black CJ, with whom Spender and Gummow JJ agreed.

[8] [1999] FCA 962 at [26]

[9] [2004] VSC 106 at [27]

[10] Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601; 76 ALJR 966 at [123] per McHugh J, citing Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 628 per Brennan J

[11] Mahon v Air New Zealand [1983] UKPC 29; [1984] AC 808 at 821 per Lord Diplock

[12] Jones v National Coal Board [1957] EWCA Civ 3; [1957] 2 QB 55 at 67 per Denning, Romer and Parker LJJ; Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at 145 per Mason, Wilson, Brennan, Deane and Dawson JJ; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439 at 452 per Brooking JA, with whom Tadgell and Buchanan JJA agreed.

[13] [2003] HCA 60; (2003) 201 ALR 437; 77 ALJR 1909 at [97]

[14] Craig [1995] HCA 58; (1995) 184 CLR 163 at 175-176 per Brennan, Deane, Toohey, Gaudron and McHugh JJ; Muin [2002] HCA 30; (2002) 190 ALR 601; 76 ALJR 966 at [140] per McHugh J

[15] [1986] HCA 54; (1986) 161 CLR 141

[16] Stead [1986] HCA 54; (1986) 161 CLR 141 at 145 per Mason, Wilson, Brennan, Deane and Dawson JJ

[17] Stead [1986] HCA 54; (1986) 161 CLR 141 at 145-146 per Mason, Wilson, Brennan, Deane and Dawson JJ

[18] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [103] per McHugh J. See also Muin [2002] HCA 30; (2002) 190 SLR 601; 76 ALJR 966 at [140] per McHugh J.

[19] Aala [2000] HCA 57; (2000) 204 CLR 82 at [130] per Kirby J

[20] Aala [2000] HCA 57; (2000) 204 CLR 82 at [131] per Kirby J

[21] [2003] HCA 60; (2003) 201 ALR 437; 77 ALJR 1909 at [28]

[22] See Aala [2000] HCA 57; (2000) 204 CLR 82 at [130] per Kirby J

[23] See Aala [2000] HCA 57; (2000) 204 CLR 82 at [103] per McHugh J and Muin [2002] HCA 30; (2002) 190 ALR 601; 76 ALJR 966 at [140] per McHugh J

[24] See Dagli v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 298; (2003) 133 FCR 541 at [90]- [97] (per Lee, Goldberg and Weinberg JJ) and the cases cited therein.