The applicant applies pursuant to s 14(2) of the Vexatious Proceedings Act 2008 (NSW) for leave to appeal to the District Court against her conviction in the Local Court at Coffs Harbour on 29 October 2018 on a charge of common assault and two charges of stalk and intimidate within intent to cause fear of physical harm. She filed a notice of appeal on the day of her conviction without having first obtained the leave of this Court. On 28 November 2018 orders were made in the District Court dismissing the appeal and confirming all orders of the Magistrate on the ground that leave had not been obtained.
In Attorney General in and for the State of New South Wales v Klewer (No 3) [2010] NSWSC 9 Harrison J ordered on 5 February 2010, pursuant to s 84 of the Supreme Court Act 1970 (NSW):
1. … that the defendant shall not, without the leave of the Court, institute any legal proceedings in any court.
2. … that any legal proceedings instituted by the defendant before the making of order (1) shall not be continued without the leave of the Court.
An appeal against these orders was dismissed on 29 September 2010: Klewer v Attorney General in and for the State of New South Wales [2010] NSWCA 219. The Vexatious Proceedings Act came into force on 1 December 2008. Section 84 of the Supreme Court Act was thereby repealed. However, the proceedings in which Harrison J made the above orders had been instituted before the commencement of the Vexatious Proceedings Act and were pending when it came into force. Accordingly, the Attorney General's application could be continued and dealt with as if s 84 of the Supreme Court Act had not been repealed: Vexatious Proceedings Act, sch 1, cl 3(1). The orders of Harrison J, upheld by the Court of Appeal, are taken to be (and to have effect as if they were) "vexatious proceedings orders" made by this Court under the Vexatious Proceedings Act. His Honour's orders are to the same effect as orders that may be made under subss 8(7)(a) and (b) of the Vexatious Proceedings Act.
In support of her application for leave under s 14 of the Vexatious Proceedings Act neither the applicant's summons nor her supporting affidavit sworn 3 December 2018 states any grievance with the hearing that was accorded to her in the Local Court or with the learned Magistrate's reasons for convicting her. Pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) a defendant may appeal to the District Court as of right against conviction or sentence or both. Pursuant to ss 17, 18 and 19 such an appeal is, in general but subject to exceptions, conducted by way of rehearing on the evidence given in the Local Court. The applicant is therefore not required to formulate grounds of appeal. But for the purposes of the present application, this Court would expect to see some explanation of the basis upon which she contends that there is a prospect of there being a different outcome upon rehearing of the matter in the District Court.
In the absence of any such explanation it has been necessary to review the transcript of proceedings before the learned Magistrate, Mr Gibson LCM, on 8 and 9 August 2018. The prosecution led evidence that in 2017 the applicant managed two residential units at Pacific Bay Resort at Coffs Harbour. The units were owned by her son, Robert Klewer. At the date of the alleged offences, 29 September 2017, Michael Roberts had been renting and occupying Unit 1110 for 12 months. Yvette Smith had been in the adjoining unit, 1109, for a week. She said she had paid a bond of $900 in respect of her tenancy.
Yvette Smith gave evidence that on 29 September 2017 whilst she was still in bed at 5:30 am she heard the front door of her unit being unlocked with a key and found the applicant standing over her, beside the bed. The applicant pulled the sheets off, dragged Ms Smith partly out of bed by the arm and screamed, "Get out of my house". The applicant sat down on a chair in the room and said, "I'm having a sleep. I'm high off my head on cocaine". The applicant was holding a mobile phone. Ms Smith snatched it, opened the back door of the unit and threw the phone out in the hope that the applicant would go after it and leave the room. However the applicant did not leave. She stood inside the back doorway and called out to Michael Roberts in the unit next door, "Michael, Michael, come and help me".
Ms Smith's evidence was that the applicant then turned back into the room and picked up a green candle in a glass jar that was standing on a table. She said words the effect that if Ms Smith did not get out of the unit the applicant was going to smash the candle over her head. Then the applicant put the candle back down and went out through the back door to find her phone. Ms Smith remained in the room and closed the back door behind the applicant. It was a sliding glass door. Later Ms Smith saw further actions of the applicant through it. Ms Smith said that the applicant went next door to the patio outside Michael Roberts' unit, picked up a white rock and threatened Mr Roberts with it.
Ms Smith's evidence of the applicant pulling the bedsheets off her and pulling her partly out of bed by her right arm was the basis of sequence 1, a charge of common assault. The evidence of the applicant threatening to strike Ms Smith with the green candle in a glass jar formed the basis of sequence 3, stalk and intimidate with intent to cause fear of physical harm. The raising of the white rock and threatening Michael Roberts with it constituted sequence 5, a second count of stalk and intimidate with intent to cause fear of physical harm.
Ms Smith's evidence in chief concerned events within a very narrow compass and occupied only five pages of transcript. The applicant appeared in person. She cross-examined Ms Smith over 65 pages of transcript. The cross examination was rambling, often irrelevant, at times scandalous and frequently argumentative. The learned Magistrate exhibited great patience and forbearance in endeavouring to keep the applicant within the rules of evidence and on the subject of the charges brought against her. Frequently his Honour had to remonstrate with the applicant for shouting at the witness. Many pages of the transcript record his Honour's attempts to explain to the applicant the limits of questioning and how she might go about her cross-examination within the rules of evidence and procedure. The transcript shows that applicant was beyond guidance and almost uncontrollable. In the whole 65 pages of cross-examination I have found no concession or contradiction elicited from the witness nor any effective challenge to her credit or reliability.
Michael Roberts gave evidence that he was woken at about 5:30 am by his daughter saying that something was going on outside. He heard the applicant "yelling out saying 'help, Michael, help'". He went out onto the patio at the rear of his unit and saw the applicant trying to seize something out of Ms Smith's hand, which he thought was a phone. He then saw the applicant walk off a little way and she appeared to be making a phone call. She told Michael Roberts to go away as what was occurring had nothing to do with him. He went back inside his unit and closed the rear sliding screen door behind him. The applicant held up a rock and said, "You're going to fucking get it next". It was a white rock about the size of his fist.
Michael Roberts' evidence in chief occupied 6½ pages and the applicant cross-examined him over 12½ pages, mostly in the form of bare accusation that what he said was "a bunch of lies", that he was testifying out of spite because he had received eviction notices (which he said were in dispute before a tribunal), that he had been peddling drugs and was a drug user and had threatened to withhold future rent. The witness rejected the attacks upon his credit and was not moved from his account of relevant events. A number of the applicant's purported questions were in fact rambling presentations of her own account of events. As with the cross-examination of Ms Smith, the learned Magistrate patiently endeavoured to keep the cross-examination relevant, admissible and orderly.
Senior Constable Phillis gave evidence that he attended the Pacific Bay Resort on 29 September 2017 in response to a radio broadcast at 5:52 am. The informant for that broadcast was the applicant who had reported to police by phone that Yvette Smith had assaulted her and that the applicant was attempting to effect an eviction. At 6:01 am there was a further broadcast in relation to a call for police attendance from Ms Smith, alleging that she had been dragged out of bed and threatened with a candlestick. The officer attended Unit 1109 and took a notebook statement from Ms Smith substantially to the effect of the evidence she gave in the proceedings. The applicant was not at the Resort at this time. Senior Constable Phillis returned to the police station in response to a radio broadcast that the applicant had arrived there. Upon his return to the station the officer arrested the applicant and cautioned her. She took part in an electronically recorded interview that was tendered and replayed in court.
The applicant asserted to the Magistrate that during the course of her interview Senior Constable Phillis had stood behind her and yelled at her, saying "You threatened to kill her, didn't you". This was put to the officer and he denied it. During the playing of the recorded interview the applicant took up a great deal of time asserting that it was incomplete and that the passage in which she had been intimidated by Senior Constable Phillis had either not been recorded or had been eliminated. The learned Magistrate found no evidence of this and described the recording as "seamless". As with the other witnesses, the applicant's cross-examination of the officer was protracted by irrelevance, argument with the witness and efforts by the presiding Magistrate to assist the applicant to formulate her questions for admissibility.
The prosecution called Graham Smith, Yvette Smith's father, to prove that he had provided $500 towards Ms Smith's bond for the rent of Unit 1109. The applicant's son, Robert Klewer, was called and leave was granted under s 38 of the Evidence Act 1998 (NSW) for him to be cross-examined concerning a receipt that he appeared to have signed, issued to Ms Smith to acknowledge that a bond of $900 had been paid. He disavowed the signature. The learned Magistrate made the observation that Robert Klewer appeared to be mentally impaired in some degree. The applicant said that he was taking medication.
The applicant gave evidence in her own defence. She admitted that she had used her key to enter Unit 1109 very early in the morning while Ms Smith was still in bed. She said that she told Ms Smith she was trespassing and that she had to leave. The applicant said Ms Smith got up very quickly and hit her, with a "glaze in her eyes" that caused the applicant think she was psychotic. Ms Smith hit her on the arm and scratched her face while the applicant, holding her phone, raised her arm to protect herself. She said that Ms Smith took the phone and threw it onto the concrete outside. According to the applicant, while she was seated in a chair Ms Smith was "towering over" her. The applicant picked up the candle and said, "I'm going to have to defend myself with this if you hit me again", then threw the candle on the ground. The applicant said she then ran out of the room and saw Michael Roberts outside. She said to him, "Michael, I'll see you tonight for rent", to which he replied "Lucy, she's not paying and I'm not paying either". The prosecutor cross-examined the applicant, putting to her the account of events as given by the prosecution witnesses. The applicant rejected that account.
His Honour heard submissions from the applicant and then gave reasons for his decision, on 9 August 2018 at T 191-200. At T 192 his Honour set out the elements of each of the offences charged and directed himself with respect to the burden and standard of proof. At T 193 the learned Magistrate referred to the applicant's argumentative approach to questioning the witnesses and her attempts to put inadmissible assertions to them. He said that he would put that conduct to one side and draw "no adverse inference from any matter outside her evidence and the record of interview that she provided". Further observations by the learned Magistrate showed that he made every reasonable allowance for the irregularities and deficiencies that had arisen from the circumstance that the applicant was representing herself.
In evaluating the credibility and motivations of the witnesses his Honour took into account that from prior to 29 September 2017 Michael Roberts had faced charges of intimidation of Robert Klewer and that he had been given formal notices to quit Unit 1110. His Honour found that "in all likelihood" Ms Smith owed to the applicant $300 in respect of her occupancy of Unit 1109 and that the failure to pay this amount was "fuelling the incident".
His Honour summarised the evidence of the applicant commencing at T 196. At T 197 he gave this assessment:
I have had the opportunity to consider the evidence of Ms Klewer and her demeanour in court. I have considered carefully, not only the way that she gave evidence, but also the way that she answered the questions of the prosecutor. One of the matters I take into account is that she was clearly argumentative with the prosecutor. She appeared to be exaggerating her evidence. She was adamant that she wanted to give evidence about the fact that Ms Smith was on ice and that this was all over Facebook and it was a deliberate attempt, in my view, a calculated attempt to run down the character of Ms Smith.
His Honour continued at T 197-199 to list a series of improbabilities in the applicant's evidence which caused him to reject it. The learned Magistrate found that the applicant's assertion about Senior Constable Phillis having threatened her during her interview was:
a complete fabrication by Ms Klewer and, in my view, it affects her credibility to the extent that it is not possible to delineate what is the truth and what is a lie in her evidence, and I would completely reject her account.
At T 199 his Honour considered "hallmarks of truth" that he found in the evidence of Ms Smith. Making due allowance for points that reflected on her credit the learned Magistrate nevertheless accepted her. At T 200 his Honour said:
I have absolutely no doubt that Ms Klewer acted in the way that Ms Smith has set out by dragging her out of bed, committing a common assault against her and then by threatening her with a candle and it was done in desperation because Ms Klewer wanted her out of the house. I accept beyond reasonable doubt the evidence of Mr Roberts corroborated by Ms Smith that [the applicant] also picked up a rock and threatened him with [it] in the way that he said.
At the conclusion of the hearing on 9 August 2018 his Honour found the applicant guilty of each of the three charges. The proceedings were adjourned for sentence to 12 September 2018. The sentence hearing was adjourned again to 29 October 2018, on which date his Honour sentenced the applicant to 8 months imprisonment to be served by way intensive correction in the community, under the supervision of a Community Corrections officer.
When the applicant's appeal was dismissed on 28 November 2018, in the absence of leave under the Vexatious Proceedings Act, the 28 day time limit prescribed in s 11 of the Crimes (Appeal and Review) Act had expired. The applicant was therefore already out of time to appeal to the District Court, unless this Court's leave could be granted with retrospective effect and unless the dismissed appeal could on that basis be reinstated. The District Court has power under s 13 to extend time for appeal but only if an application is made in that behalf within three months of the relevant orders. The three months expired on 28 January 2019.
The applicant's solicitor filed her summons under the Vexatious Proceedings Act in this Court on 12 December 2018. The Registry appointed a return date of 31 January 2019. By letter of 30 January 2019, emailed to the solicitor, the Registrar gave notice that submissions in support of the application would have to be filed by 12 February 2019. No submissions were received. Neither the applicant nor her solicitor at any time asked that the application be expedited to enable a grant of leave before expiry of the three months within which she would have to seek from the District Court extension of time for an appeal. If this Court concluded that leave under the Vexatious Proceedings Act ought otherwise to be granted, these timing issues would have to be resolved. They might preclude the applicant from appealing her conviction and sentence, in any event. However, in view of the Court's decision on the substantive leave question, the time limit difficulties do not arise.
There is not the slightest indication in the record of proceedings in the Local Court of any reason why a different result might be reached if the charges should be reheard in the District Court on the same evidence. Nor can I identify any evidentiary, legal or procedural defect in the way the charges were considered and determined. The applicant has had in the Local Court a full, even generous, opportunity to challenge the prosecution evidence and to present her own version of events. Her unreasonable, irrelevant and at times scandalous conduct in the course of that hearing is a clear indication that an appeal to the District Court would be protracted, disrupted and discursive. As noted at [4] above, the applicant has not specified any complaint about the hearing before the Magistrate or advanced any basis upon which she would contend upon a rehearing that any of the charges was not proved. Nothing more appears in relation to this application than that the applicant would like to have the charges reheard on the same evidence.
No justification has been shown for granting the relief sought. The application for leave is refused.
[2]
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Decision last updated: 10 May 2019
Parties
Applicant/Plaintiff:
Attorney General in and for the State of New South Wales