Slattery Thompson (solicitors for the Applicant on 02 June & 26 July 2021 after which the Applicant was self-represented)
Director of Public Prosecutions (NSW) (Crown)
File Number(s): 2016/00178780, 2016/00205238 & 2016/00323816
[2]
Introduction
These are proceedings concerning Mr Fawzi El-Saeidy. The proceedings have been in the District Court for a number of years.
[3]
The History of the Proceedings
According to my file notes the matter was first before me on 23 November 2018 from which day the proceedings were adjourned to 7 December 2018 for mention to allow the Crown appearing at the time to view material produced on subpoena issued at the instance of Mr El-Saeidy. Access was granted to material that was produced and the appellant, as he was then known, was to appear in person on the next occasion. Thereafter there have been multiple occasions when these appeals and applications in respect of the appeals have been before me at the District Court sitting at Parramatta and in Sydney.
Regardless of efforts to have the matter brought to finality with representatives from the office of the Director of Public Prosecutions having to change throughout the history of the matter, the appellant was at no time according to what was put to the court, in a position to proceed and have the matters determined. On each occasion when the matter was set down for hearing there was a reason offered why the matter could not continue and the matter was adjourned to ensure that Mr El Saeidy was not denied procedural fairness and would have opportunity to present his arguments and the material upon which he wanted to rely in the conduct of the appeals.
In the course of the appearances there were applications for the appellant, as he was then known, to adduce fresh evidence. These included the opportunity to have his daughter brought to court to face further examination and cross-examination. The proceedings were conducted pursuant to the Crimes (Appeal and Review) Act 2001, of which s 18 and s 19 were respectively engaged.
At a point along this lengthy path the appellant took his complaints about decisions I had made to the Court of Appeal where he ventilated his concerns as they were at that time. The relief that he sought was not granted. I announced at the time of this ex tempore judgement that I would refer to the Court of Appeal decision as I continued through these reasons for publication: El Saeidy v Director of Public Prosecutions (NSW) [2019] NSWCA 289; El-Saeidy v Director of Public Prosecutions (NSW) (No 2) [2019] NSWCA 297. Basten JA provided a comprehensive judgement including the procedural history up until that time, the proceedings in the Court of Appeal, the six grounds of appeal provided in the summons, procedural issues enlivened in the application and dealt with the points of complaint regarding the decisions I had made up to that point in the proceedings, which were not at that time at the point of a final determination in the District Court.
Part of the complaint made was with regard to my decision not to recuse myself from determining the appeals. The orders in the Court of Appeal were announced on 28 November 2019 by Basten JA with the agreement of the other members of the court:
"Orders
The Court orders:
Direct that the first defendant be identified as Director of Public Prosecutions (NSW).
Dismiss the proceedings in this Court.
Order that the applicant pay the costs of the Director of Public Prosecutions (NSW) in this Court.
LEEMING JA: I agree with Basten JA. Interlocutory applications alleging jurisdictional error by the District Court exercising its appellate jurisdiction are apt to fail in all save truly exceptional of circumstances. Even in such circumstances, they need to be brought promptly, not - as in the present case - months after the conclusion of a multi-day hearing, and when judgment is imminent.
PAYNE JA: I agree with Basten JA's reasons which reflect my own for joining in the orders made on 28 November".
On other occasions Mr El-Saeidy sought to challenge the decisions of other judges of this court before whom these appeals were initially listed. These challenges were also in the Court of Appeal: El Saeidy v Director of Public Prosecutions (NSW) [2017] NSWCCA 211 in respect of rulings by Colefax SC DCJ: El-Saeidy v Director of Public Prosecutions [2018] NSWCA 127 in respect of rulings by Delaney ADCJ.
The matter was set down for hearing before me over two days commencing on 23 April 2020.
Before that day, on 11 March 2020, an email was received from Mr El-Saeidy by my Associate with a copy to Mr Peter Livers, solicitor, who was then representing the appellant and Ms Emma Blizard the Crown Prosecutor who had responsibility for the presentation of the matter on behalf of the Director of Public Prosecutions. In this discursive email Mr El-Saeidy relied upon letters from Peter Livers of 20 February 2020 and 9 March 2020 and prior correspondence that he had written to my Associate. He requested the matters to be relisted on a suitable date according to Mr Livers' letter dated 9 March 2020 and requested that the listing on 18 March 2020 be vacated.
He continued that he objected to me listing the matter for hearing on 18 March 2020 as it was not suitable to the solicitor, and noted that I unilaterally vacated the hearing to that date (from 13 March 2020) and relisted it to 18 March 2020 without asking if it was suitable to his side of the litigation.
I was then reminded that I must abide by the rules of procedural fairness. There was then a submission made with regard to the common law and the requirement for procedural fairness, fundamental to the administration of justice, and that this required it was said, that I relist the matter to a suitable date. I was reminded that it was not a private business of mine to run according to my misconduct and that I must conduct the matters according to the law. I was reminded that I had sworn a judicial oath, that I had vacated the hearing twice in that year on my own and that he co-operated with those decisions.
I interpolate here and I do recall that there were occasions where I was compelled to vacate the hearing. At the moment I do not recall precisely why but there were an array of issues that were burdening me at the time, including a commitment to overseas travel, health issues, and my role as the list judge at Parramatta, which had an enormous workload that impacted upon the opportunity I had to spend the time required for the final determination of these appeals.
The email continued with a litany of complaints with representations that he was innocent and never hit his daughter with any stick on her arm and that she had never had any trouble with him at all.
It is unnecessary for me to proceed through this in all its detail at this point other than to observe that his representations are consistent with someone fixated upon the fact that he was prosecuted, he unsuccessfully defended the charges in the Local Court, and was unsuccessful in resisting that and a domestic violence order.
In response to that letter my Associate wrote to Mr Livers by email and to Ms Blizard in the following terms on 12 March 2020:
"To accommodate Mr Livers his Honour has relisted the matter to 23 and 24 April 2020 at 10 at Sydney Downing Centre. The matter is listed for those two days for final hearing and judgement. There will be no further delays or adjournment applications considered. I note that those dates are dates which Mr Livers has provided to me as days on which he is available to attend court. Ms Blizard is excused so long as there is someone from her office present."
Mr Livers wrote on 21 April 2020:
"Our client hereby requests that the matter listed for hearing on 23 and 24 April 2020 be vacated to enable our client to appear in person. Due to the virus court restrictions and so that the court must decide our client's interlocutory applications, to access subpoena material and to cross-examine witnesses and adduce fresh evidence including conference confessions of, [I will use the letter A, to represent the appellant's daughter]. In the matter 2016/323816 the she was not assaulted at all and no incident took place and this evidence was not available when the matter was heard in the Local Court. And to file a further notice of motion in respect of a false document in relation to our client's mobile which snatched from his hand by police officer Wani on 6 July 2016 without his permission at his home and it was served upon our client on 1 February 2020 by Ms Blizard, before the final hearing is commenced. Our client hereby request sound recording to correct the current incorrect and manipulated transcripts of the dates before his Honour Judge Bennett District Court judge.
Our client has requested the sound recording since July 2019.
We refer to our client email of 11 March 2020.
Our client is not able to attend in person on 23 April because of another court matter."
Although this purports to be from Mr Peter Livers of Slattery Thompson, I would be most surprised if Mr Livers crafted that text. I have had the benefit of Mr Livers appearing in my court on a number of occasions. Although he does speak softly, the only criticism I would make of his style of advocacy, he is articulate and is competent in the English language and its grammatical forms and I would not expect him to express himself thus in any written communication. The only conclusion I could draw is that this was something written by Mr El-Saeidy forwarded to Mr Livers to enable him to transmit it in its entirety from his email to my Associate. In response to that, on 21 April 2020 my Associate wrote to Mr Livers:
"The matter remains listed on 23 April 2020, his Honour will stand the matter in the list until 12 noon to accommodate the appellant's Local Court matters, he may attend his District Court matters in person."
There was a further email on the same date a few minutes after that,
"Dear Mr Livers, if it is more convenient for you to attend in person then you may do that as well."
Thus the matter was allocated 23 and 24 April 2020 for the hearing of all applications, the taking of whatever evidence might be relevant to those applications and for submissions to determine the appeals.
The appellant did not appear on 23 April 2020. The transcript of the proceedings on that day has been provided. I have not listened to the electronic recording of the transcript. I am informed that that task has been performed by others and that the transcript reflects what was said in the recording of the matter.
On this occasion Ms Evans, who is appearing in the matter today for the DPP, appeared via AVL. Mr Livers appeared by telephone. There was an interpreter present to assist the appellant. There were steps required to ensure that Ms Evans could communicate with me. I confirmed that Mr Livers was on his car phone. I then continued at page 1 line 28,
"The matter was listed today for the opportunity for Mr El-Saeidy to complete submissions and for me then to give my decision after I have heard what he had to say, but he is not here at the moment.
"Do you know where he is?
Livers: Your Honour he rang at 9 o'clock this morning and he said that he was involved in another matter and that he - I believe it was in the city, in a city court and that he wanted, as you know, an adjournment and that he wanted an interpreter present and he wanted to appear in person in court.
His Honour: Yes well he was in the Downing Centre complex this morning. I'm going to call some evidence from an interpreter who I understand went up to the Local Court to speak with him. Will you come forward please Madam Interpreter?"
I interpolate here that at that stage I had enquires made to confirm what matter Mr El-Saeidy had in the Local Court and I was told by way of information from JusticeLink that he had a matter for mention before a magistrate arising from a subsequent prosecution, the details of which I do not know and which are not relevant.
The interpreter, who was waiting with the court for Mr El-Saeidy to appear, accommodated my request and went to the Local Court to see what was happening in those proceedings to ascertain when the appellant might be available to continue in these proceedings. I called the interpreter, Ms Linda Dannoun, and her evidence appears at p 2. Mr Livers remained on the telephone to hear what she said.
The evidence was as follows at line 5 page two, questions by me:
"Q. Could you tell me your full name Madam interpreter?"
[She provided that information.]
"Q. I might get you to come back to this microphone here because I can hear you a bit better and we'll make sure what you are telling me is recorded and I might get you to repeat your name and spell it for me so that I've got a note."
She attended to that. I confirmed that she was from Multicultural New South Wales. I then said at line 16:
"Q. Now you were retained today to come in and assist the appellant Mr El-Saeidy in these appeals?
A. Yes.
Q. You have been here since what time?
A. Before 9.30 from about 9.15.
Q. Now I think while we were waiting to assemble the court you went to the Local Court, a magistrate's court?
A. Yes.
Q. Did you see Mr El-Saeidy there?
A. Yes I did.
Q. Did you speak with him?
A. Yes I did.
Q. Was that before or after the magistrate's matter was dealt with?
A. Before.
Q. Can you tell me what he said about his intentions?
A. I introduced myself and told him I was downstairs in the District Court for his matter, and he said to me in English, 'I can't speak to you' and he shoo-d me away with his hand, and then the court officer came over and saw that I was speaking with him and asked me if I was the interpreter. And I said yes I was the interpreter for his District Court matter. I just wanted to know what was going on with this matter because we were all waiting downstairs. And he said, 'Okay, we're going to deal with it next' and he showed me on the court list, then I pointed out which matter it was and Mr El‑Saeidy said, 'You have nothing to do with this matter, just go'.
Q. And did you stay in the magistrate's court until that matter was concluded?
A. No I didn't.
Q. You returned here?
A. Yes.
Q. That was in the Downing Centre?
A. Yes in court 4.5.
Q. Do you remember the magistrate's name?
A. No I don't."
HIS HONOUR: Mr Livers, you're representing the appellant?
LIVERS: Yes.
HIS HONOUR: Do you wish to ask the interpreter questions?
LIVERS: No your Honour."
The witness withdrew.
"HIS HONOUR: Mr Livers, so do you have an application now?
LIVERS: Yes your Honour, at 9 o'clock I was asked to - he rang and said - the client said to ask for an adjournment because he was involved in a Local Court matter and he was not available.
HIS HONOUR: Well there were some communications between Mr El-Saeidy and my chambers about which I've got some concern but in any event they were communications by him to my associate and in the course of those exchanges I know my associate advised him that the matter was listed to proceed today. The matter in the Local Court was for mention and he was to attend the court and the matter was to proceed and he's apparently taken it upon himself to depart the magistrate's court to not come to the District Court to continue these appeals.
LIVERS: Yes your Honour, I'm not involved in that matter and I'm not aware of it - I'm aware that it's on but I didn't know it was listed for mention or hearing or what.
HIS HONOUR: It's listed for mention and it's being dealt with and he was due here but he's apparently left the court. Now in those circumstances what application do you have?
LIVERS: I can only go by the instructions I was given at 9 o'clock this morning your Honour I haven't spoken to him since.
HIS HONOUR: The application was to adjourn. The application to adjourn is refused. What is the next course you wish to take?
LIVERS: I don't have any instructions to make any further oral submissions on his behalf.
HIS HONOUR: There's just one thing I want to clarify before I go to complete the matter. I have a letter that came through to my associate and it's on the letterhead of Slattery Thompson with your name Peter Livers LLB appearing beneath that, is that the firm you are a principal in?
LIVERS: Yes your Honour yes.
HIS HONOUR: You're located first floor 8-10 Clarke Street, Earlwood, New South Wales?
LIVERS: Yes your Honour.
HIS HONOUR: This letter has the date 26 March 2020. A copy was sent to the Crown Ms Blizard and to Ms Evans who appears here for the Crown today and it has a signature across the words yours faithfully Slattery Thompson. Are you able to tell me were you the author of that letter?
LIVERS: Your Honour I'm in the car so I can't really - I haven't got access to the whole file.
HIS HONOUR: Perhaps if I read it to you, you might remember whether you wrote the letter.
LIVERS: Yes your Honour.
HIS HONOUR: It is in the following terms. [I then read the text of the letter],
'The appellant is preparing further amended NOM and affidavit in support of his appeal matters, including on the false document that was served on 5/2/2020 by the Crown Prosecutor Ms Blizard for the first time and the fabricated malicious charge 2016/205238 and copy was emailed to Peter Livers.
The appellant instructs us that he's innocent person and he should not have been charged at all and there was no any incident at all.
The appellant will be using the Egyptian-Arabic interpreter (with Egyptian dialect) to be requested by the court to introduce the confessions of his daughter 'A' and a malicious fabricated charge 2016/323816.
The appellant instructs us that he is innocent person and he would not have been charged at all and there was no any incident at all.
A's confession was filed in the appellant affidavit sworn and filed on 16/12/2019 and we advise that the case number was typed incorrect on the first page of that affidavit.
The appellant requires at least five weeks after determination of the interlocutory applications on 23 and 24/4/20 to receive the written judgements on the various motions (interlocutory application) and to get legal advice and to exercise his right to appeal or judicial review of the court determination of the interlocutory applications before he proceeds to the appeal matters'.
I then said,
'End of the letter, does that assist you, is that the letter that you wrote to ---
Livers: It's similar, it's similar in terms, he's given me similar instructions but unless I actually see the actual letter but I'm not saying it's not but I better have a look at it carefully, they are the sort of instructions that he's given, they're the sort of instructions I've been receiving from him, yes your Honour'.
HIS HONOUR: Can I just observe this. In the first paragraph and bearing in mind that I've had the benefit of your assistance in these matters throughout the proceedings, and the first point I would make is that in paragraph 1 reference to the 'fabricated malicious charge' and 'copy was emailed', the next paragraph there's a reference to him in the following terms 'he is innocent person and he should have not been charged at all'. Then the next interpretation sorry, the next section is the fourth paragraph 'he instructs us that he is innocent person' and the next paragraph 'the case number was typed incorrect' and then I just observe that having heard you clearly you are competent in the use of English, the language used in that letter is more consistent with the way the appellant uses English, how would it be that the letter would be presented or sent to my associate in those terms by you?
LIVERS: I don't know your Honour, I mean those sorts of instructions have been prevalent from him, but I've read better.
HIS HONOUR: Whatever the instructions might have been I don't doubt that he's been taking a vigorous and robust approach to the allegations against him.
LIVERS: I don't - its - I've written many letters on his behalf so I'm really - it's something of - it's not my language I must admit but I can't categorically say that it didn't come from our office until I see the letter your Honour but I can have a look at it tomorrow.
HIS HONOUR: I'll mark that for identification and leave it on the court file."
It was marked for identification 2. I then continue:
"Now the next question that arises is what is to happen with the appeals and do you have an application to make after having the adjournment application refused?
LIVERS: Your Honour I would have to withdraw because his instructions are that he doesn't want the appeal to proceed today.
HIS HONOUR: Alright, in those circumstances I note that you have instructions from him that he doesn't want the appeal to proceed today. In those circumstances each of the appeals is dismissed for want of prosecution. The registry is to write to the appellant to notify him of the terms of s 22 of the Crimes (Appeal and Review) Act 2001 so that he may exercise whatever rights he wishes to pursue in that regard. There's something else I'd like to clarify. There's been correspondence to my associate in the form of an email in which he has either threatened or has, sorry, he has threatened to send or has sent a complaint about me to the Judicial Commission and to the Minister for Justice. Are you aware any of that?
LIVERS: I have received - I was cc'd in an email your Honour but I can tell you now that I wasn't the orchestrator of that email, that was done of his own volition your Honour.
HIS HONOUR: No that's alright I wasn't suggesting you had any role to play in that. All I need to know is whether or not you were aware that it had gone through because in the circumstances in light of what he had to write some of the accusations he made about me are extraordinarily defamatory I would have thought.
LIVERS: Your Honour I think he cc'd me in and the Director of Public Prosecutions I think he did.
HIS HONOUR: In those circumstances I'll have to craft a judgement with a history of this matter and the proceedings in the Local Court of which I'm aware by reason of the transcripts that have been made available to me, it's going to take some time because the history is extensive and that will explain why I have come to the decision I have today dismissing these appeals. Your application is for leave to withdraw from the matter. Madam Crown you don't oppose that course in the circumstances I take it?
EVANS: I don't oppose your Honour.
HIS HONOUR: I'll grant you leave to withdraw from the matter Mr Livers and Mr El-Saeidy can pursue whatever remedy he wishes in accordance with the legislation that provides for those opportunities.
Thank you your Honour. And I thank Mr Livers and the interpreter and Madam Crown for their assistance and I adjourn."
This was on 23 April 2020.
[4]
After the Appeals were Dismissed
I did not attend to the preparation of a judgement in the matter, intending to do so if it became necessary should the appellant have sought to exercise his rights under s 22 Crimes (Appeal and Review) Act 2001. Nothing occurred until a notice of motion was filed on 22 April 2021, exactly the date of the expiration of the 12 month period specified in s 22 Crimes (Appeal and Review) Act 2001.
Section 21 of that Act provides for the issue of a notice if an appeal or application for leave to appeal is dismissed because of the appellant's failure to appear. This requires the Registrar of the Court to give appropriate notice. Section 22 provides for the revocation of orders dismissing appeals and applications for legal appeal. It provides:
1. An application may be made to the District Court for the setting aside of an order under s 21 that has dismissed an appeal or application for leave to appeal because of the appellant's failure to appear (a 'dismissal order').
2. An application under this section must be made within twelve months after the day on which the dismissal order is made.
3. After hearing such an application, the District Court may set aside the dismissal order, either unconditionally or subject to conditions, if it satisfied--
1. That the appellant has shown sufficient cause for the failure to appear, and
2. That it is in the interest of justice that the appeal or application be heard.
1. Section 60 applies to any sentence in respect of which a dismissal order is set aside.
2. No action lies against any person or anything done or omitted to be done by the person in good faith, and without notice of the setting aside of a dismissal order, for the purpose of enforcing the conviction or sentence, the subject of the appeal to which the order relates.
Thus the task that the appellant has, in this matter at this stage of the proceedings, is to persuade the court that there is sufficient cause shown for his failure to appear and that it is in the interest of justice that the appeal or application be heard.
The notice of motion filed for these purposes specifies five orders:
1. The decision of Bennett DCJ in dismissing the appeal, matters 2016/323816; 2016/205238 and 2016/178780 in the absence of the appellant on 23/2020 would be set aside.
2. A retrial will be ordered on the basis that there was a denial of natural justice because an adjournment of the hearing of the appeals and the District Court should have been granted on 23 April 2020 because at the exact time the District Court matters were called on and dismissed by Bennett DCJ (the hearing of the appeal matters were called before 12pm on 23 April 2020 and were dismissed by Bennett DCJ at 12.06pm 23 April 2020), the appellant was in the hearing of his D.C.L.C. matter on 23 April 2020 and that Local Court matter (2020/00096337) hearing finished at exactly 1.03pm on 23 April 2020 (that Local Court matter, despite it showed it was listed for a mention but in fact it proceeded in Local Court. Magistrate Thompson conducted the hearing of that matter 2020/00096337 on that day 23 April 2020 and delivered her decision and conducted the hearing at exactly 1.03pm on that day) and there was prior written consent to an email from the associate of Bennett DCJ that the appellant will attend the Local Court matter first before attending the District Court matter and also there was a prior written consent in an email from the associate of Bennett DCJ that the appeals in the District Court will be listed for two days hearing and not only on 23 April 2020.
3. Retrial be conducted before another Judge of NSW District Court and not Bennett DCJ based on the actual bias and apprehended bias of Bennett DCJ in the appealed matters.
4. Leave be granted for appellant to file further affidavit.
5. Costs.
There was in support of that notice of motion an affidavit by Peter Livers representing his status as the appellant's solicitor. He asserted:
He was requested on 23 April 2020 to make application for an adjournment;
He understood that his client was representing himself in an AVO matter in the Local Court at the Downing Centre and would continue for most of the day on 23 April 2020;
He was instructed by his client that the Local Court matter finished about 1.03pm on 23 April 2020;
He was contacted by his client after 1pm on 23 April 2020 and he told him that his appeal was dismissed in his absence, and there is reference to the reasons I had proposed;
He requested an adjournment but that was refused and that he had evidence that his client's Local Court matters concluded at 9.55am on 23 April 2020
That was not what was said as I recall it.
He referred to the evidence called from the interpreter;
He rang the court at 11.45am;
There is reference to the matter being mentioned at 11.58am on the day before Judge Bennett and the Judge called the interpreter to give evidence;
The judge dismissed the matter at 12.05pm;
That is an accurate description as he recalled the matter; and
He confirmed he is not instructed to take any action to appeal the decision that I made on 23 April 2020
The notice of motion had included in the orders representations of fact, which were unnecessary, but reflect the attitude that the appellant has demonstrated throughout this matter.
The motion came before me on 2 June 2021. Ms Evans appeared for the Director of Public Prosecutions, and informed me that this was an application pursuant to s 22 Crimes (Appeal and Review Act) 2001 and that the Crown received an affidavit in support of the notice of motion. The appellant was on his way. Mr Livers appeared. I asked what did I have before me, or whatever the application might be:
"HIS HONOUR: Is it a notice of motion?
MR LIVERS: Yes your Honour the applicant would seek an adjournment to file a further affidavit from a solicitor who appeared before him on 23 August last year."
This representation is in contrast to what Mr Livers represented in his affidavit where he said the appellant represented himself in the Local Court. There was a discussion confirming the date in the Downing Centre of the other proceedings which did not concern this matter. At p 1 of the transcript on 2 June 2021 Mr Livers said:
"LIVERS: Not in this matter, no. Which I'll get a statement from him, but I'll just need an adjournment for approximately three to four weeks to obtain a written affidavit from him regarding the timeframe that he was occupied at the Downing Centre that morning. That's the same morning that the matter was before you at the appeal. And also, to transcribe the transcript of those proceedings. He seeks an adjournment of approximately 28 days to do that.
HIS HONOUR: Madam Crown?"
I addressed the Crown who did not oppose the adjournment but would ask that the matter be heard on the next occasion.
I said:
"What I can't understand Mr Livers is first of all, when did I make the orders dismissing the appeal for want of prosecution?
LIVERS: On 23 April, I believe.
HIS HONOUR: 2020?
LIVERS : Yes sir.
HIS HONOUR: It's now 2 June 2021. As I recall it, you appeared by telephone from your car on that morning asking for an adjournment. I refused the application because the matter had been set down to proceed and there had been no earlier notice given of any intention not to be ready. And you told me that you had no instructions other than to make an application for the adjournment which I refused and that was the end of the matter.
LIVERS: That so.
HIS HONOUR: There is a transcript of what occurred thereafter, which is, and I am relying upon my memory now because I haven't looked at any of the material since then, but my memory is that there was an interpreter here in court. And it was learned, and I don't know whether that was from you or from some other source, but it was learned that the applicant was in the Local Court for some other matter which was listed for mention as I recall it.
LIVERS: It was listed for mention and the interpreter gave evidence to say that Mr El-Saeidy's matter concluded at 9.55am. The evidence from the solicitor that appeared for him on that day contradicts that and says that actually the matter concluded at approximately - it was mentioned at about 10 and then was heard between 11 and 1 in the Downing Centre Court."
[5]
Current Restrictions for In Court Appearances
The next matter for consideration is the limitations which all Courts are experiencing because of the COVID-19 pandemic. At the present time there are no personal appearances in any District Court in the Downing Centre. All appearances are via AVL or audio link depending upon the facility that is available to accommodate the matters proceeding.
[6]
The Applicant's Continuing Demands
In the weeks leading up until today the applicant communicated with the Court staff. I have a bundle of emails provided by my Associate and transmitted to him from the District Court staff in response to communications by the applicant putting his demands forth. They begin with his requirement that this matter be conducted in open Court with him present and he resists any requirement that he should appear by way of an audio visual link or an audio link.
There was no application put before the Court with regard to this. All these communications went to the administrative staff within the Court and I believe copies were forwarded to Ms Evans who appears for the Crown. My instructions to my Associate were that any such application or matters of concern should be raised in Court by the applicant in the appropriate way. It was said that the applicant thereafter complained about not having available a computer or even a telephone or landline by means of which he could communicate with the Court. He was advised by Court staff of the facility that could be provided for him so that he could appear in this matter by way of the audio visual or audio links and information was communicated to him to facilitate that process. Still he has chosen not to avail himself of those opportunities though his position has changed slightly in the more recent emails that have come though.
I have one here to Multimedia Operations and to my Associate from the applicant, transmitted at 10.18am this morning. The email represents the applicant as having said, "Hi Anthony, I have no facility to connect at all and I am unable to connect at all. I told Peter this fact. Thank you". Then his name appears with his employment, mechanical engineer.
Preceding this at 9.23am Anthony Donwin, technical support officer from Multimedia, transmitted an email "here is the test link" and there was a link provided, "HTTPS://avlguest.justice.nsw.gov.au/core/testlink". Then the link provided was, "HTTPS://avlguest.justice.nsw.gov.au/core/downing/EL-SAEIDY". Before then there was a message sent from the listing office in the Downing Centre in the District Court to Multimedia asking them to create a separate link for the applicant and for the Court where I am sitting, G2.
There is another email on 10 September at 9.56am from the listing office in the Downing Centre addressed to the applicant, "Fawzi, you have called the call centre numerous times, you must have a mobile or landline. Please dial into court with the details sent in the previous email."
That was a message that followed one at 9.50am from the applicant:
"Hi Peter, I am unable to connect at all, I have no facility. I request the matter be adjourned and relisted in the future in person in court to enable me to run the matter and cross‑examine witnesses and give evidence in the court from the witness box.
I request the Court not to deal with my matter today 10/9/2021 but to relist it in person to enable me to attend as I have no facility to connect at all, for procedural fairness. Thank you again". and his name appears.
There are other emails not necessary for me to discuss; it is simply noteworthy that, as Peter Zuvela, wrote there have been multiple if not numerous times when the appellant made telephone contact expressing his wishes.
He is unrepresented and that is as a consequence of Mr Livers withdrawing from the matter on 13 August 2021. A notice of ceasing to act was filed. It contains is the following:
"Peter Livers of Slattery Thompson has ceased to act as the legal representative of Fawzi El-Saeidy in these proceedings.
A notice of intention to file and serve this notice was filed on 10 August 2021 and served on Fawzi El-Saeidy on 10 August 2021. There has been no appearance by Mr Livers seeking leave to withdraw from the matter. There is no explanation given as to why he has found it necessary to file a notice of ceasing to act.
Finally, the next document to which I refer is what was received this morning shortly before 10 o'clock. This is a document of twelve pages continuing on with one paragraph on the thirteenth page providing his particulars, from the applicant bearing the date 10/9/2021. It is not in the form of an affidavit or a statutory declaration. It is therefore not in the form of evidence.
He has chosen not to appear.
I am left to reach a decision in this matter upon the material that is available to the Court. I have indicated to the Crown that what I propose to do is to receive this document on the basis that these are representations that the applicant would make were he in court or if he chose to take the opportunity to appear via AVL or via telephone link. I shall deal with the matter on the basis that this is the evidence that he would have advanced in support of his application pursuant to s 22 Crimes (Appeal Review) Act 2001.
The document meanders through a litany of complaints, including reference to various occasions of matters being before me and his complaints about my approach to the matters including by way of an example at para 4:
"I am the applicant in this notice of motion (NOM) to reinstate the appeal's matters in the NSW District Court which were deliberately, intentionally and unjustly dismissed in my absence by the biased and corrupt in the matter Bennett DCJ whilst I was in the Local Court matter 2020/00096367."
Paragraph 80 referred to an agreement which was given in writing and which he asserts I breached by making the decisions that I did on 23 April 2021. The agreement to which he refers as I understand it is to be gleaned from the emails to my Associate from Peter Livers and also to Emma Blizard Crown Prosecutor with copies to Ms Evans.
My Associate acting upon my direction as I noted earlier, on 21 April 2020 informed Mr Livers that the matters would remain listed on 23 April, which I would stand them down until 12 noon to accommodate the appellant's Local Court matters, and I indicated that both could appear in person. I reject the contention of having entered an agreement with the applicant, and that I was in any way in breach of whatever representations he understood to have been made in the emails that were provided by my Associate at my direction.
He provided a definition of what a lie is. He quoted in part what I said from the bench on 23 April 2020; plus he has a copy of the transcript. He continued that despite that I was fully aware that there was a written agreement and that he was in the Local Court; I sent an interpreter to the Local Court; he referred to the interpreter having been called to give evidence. He continued with a representation that I was intentionally biased and corrupt using deception and lies in the matter.
He referred to me having dealt with the matter before 12pm on 23 April 2020. My memory is that I did not deal with the matter before 12 noon on that day. He accused me of using and abusing an interpreter and that I should have made the inquiry with the Local Court myself. He accused me of deliberately and willingly abusing my position on the bench and that he will file further evidence none of which has appeared.
He continued on with representation concerning the presence of an interpreter. He then accused the Crown, Ms Evans, and me of being in a conspiracy. He referred to my employment history as a former police officer, and as an employee of the NSW ODPP. It is the fact that I was a Crown Prosecutor and Deputy Senior Crown prosecutor between 1997 and 2006 except that three years and three months and three weeks when I was appointed as a member of the National Crime Authority.
He accused me of being deliberately and knowingly untruthful and biased. He then listed paras (a) through (h) complaining of what I would do or would not do. He then referred to what was said by the interpreter in her evidence. He quoted from the exchange between Mr Livers and I after that evidence was adduced. He then ventured into Crown submissions and transcript in the Local Court proceedings which might have been more relevant to the argument to be presented in respect of the appeal, should he be permitted to resurrect them.
He dealt with complaints he had regarding the police officers who investigated the matters that led to his prosecution. In para 24 he wrote:
"I request that J Bennet to adjourn today's list of a matter as I have no facility to run the matter by AVL at all and I have no experience to run a hearing of cross-examined witnesses by AVL or over the phone, and I have no solicitor."
He noted that Mr Livers ceased to act on his own with regard to the notice filed on 13 August 2021. He argues that he was not given the opportunity to conclude submissions. He again referred to deliberate lies by the police and those that were responsible for his prosecution and the outcome of those proceedings. He embarked upon an analysis of some of that material.
[7]
Conclusion
It is a trite proposition that all litigants should be given the opportunity to present their case and that they have available to them procedural fairness. It is not necessary for me to embark upon an analysis of what the law requires in that respect; it is sufficient to say at this point that procedural fairness demands that a litigant in the position of this applicant should have the opportunity to know what the circumstances are that he must meet and must have the opportunity to be heard and present whatever evidence or argument he might wish to rely upon.
It is the fact that throughout the conduct of these matters from 2018 until the present time, this Court has sought to give Mr El‑Saeidy every opportunity to put before the Court whatever material he wanted to rely upon, and present whatever arguments he wished to advance. I was not sympathetic to his application to have his former partner and children returned to Court to face further cross-examination on these matters, and hence my indication of that decision which amongst other things led to the matter being taken to the Court of Appeal by Mr El‑Saeidy.
Nothing has been advanced by him in any of the material that has been presented over time that would lead me to the view that I should have allowed the admission of further evidence in the interests of justice pursuant to s 18(2) Crimes (Appeal and Review) Act, or to allow a witness to be recalled in accordance with s 19 of that act.
Procedural fairness can be offered, and should be offered, to a litigant such as this applicant, but there's little the Court can do if the applicant chooses not avail themselves of the opportunity that they have to present their case.
There are questions that arise in respect of this application before me today. Why did it take 364 days to lodge the application pursuant to s 22 Crimes (Appeal and Review) Act 2001 after my decision made on 23 April 2020 to dismiss the appeals? Why was there no effort made in the fourteen months from those orders to have evidence assembled in the proper form presented to the Court? All that I have is the affidavit by Mr Tighe who appeared for the applicant in the Local Court which does not address any reason why the applicant would not have taken steps to notify this Court of the need for further time.
The conclusion that I draw in respect of all of this is that the applicant has simply taken the opportunity to further delay the proceedings by not exploiting the opportunity to be had by way of Mr Livers who was instructed for a very limited purpose on 23 April 2020 to seek an adjournment only without any further instructions to deal with any other aspect of the matter. There is no evidence of anything being said to Mr Tighe regarding the failure of the applicant to attend this Court to continue the prosecution of the appeals and applications in respect of them which had been set down for two days on 23 and 24 April 2020. Nothing was brought back to the Court to reinstate the matters over those two days which were allocated for the hearing.
He has refused to take the opportunity to appear today by way of AVL or by way of telephone. The administration of the Court by way of its employees and officers has sought to facilitate his opportunity to do so. I am not satisfied that he has suffered denial of procedural fairness in this matter. Indeed, consistent with the entire history of the proceedings, he has chosen to control them to further delay resolution.
I'm satisfied that he has been afforded natural justice and procedural fairness in this matter and that he has chosen not to take the opportunity made available to him.
Ms Evans reminded me of another decision of the Appellant Courts which is relevant here. This is the decision of Barrett v Director of Public Prosecutions (NSW) [2020] NSWCA 270. The judgement was delivered by Justice Brereton. I have been taken particularly to paras [21] and [22]:
21 "Thirdly, in terms of the public interest, there is an enormous public interest in bring these already protracted proceedings to finality. In that context it needs to be borne in mind that if leave were granted, and if the application were to succeed, that would not be the end of the proceedings. The matter would then have to be reheard by the District Court where the outcome is unknown. If the appeal to the District Court succeeded, then there might have to be a further hearing of the prosecution itself."
22 "As to prejudice, a matter on which Judge Hanley touched, but which to my mind is significant, is that the effect of ultimately upholding a challenge to the plea of guilty by whatever route would be to falsify the basis of a bargain struck on 5 December 2016 in circumstances where the other party to that bargain can no longer regain its position. The summary of offences in sequence numbers 1 and 2 which were dismissed on that day cannot be revived. For that reason, significant prejudice would be occasioned to the Crown by an extension of time in which to mount yet another challenge to the plea of guilty."
In para [35] his Honour wrote:
"For those reasons it seems to me that no arguable case of jurisdictional error on the part of the District Court judge is apparent. Having regard to the passage of time since the sentence was imposed, the relative in utility of granting relief if it were now to be granted, the great interest of the public and the parties in finality of these proceedings, and the very slight prospects of success, I am of the view that the extension of time which Mr Barrett requires to prosecute this application should be refused."
Those passages are of application here. As the Crown correctly notes, the proceedings in the Local Court resulted in orders that have expired, as have the relevant apprehended domestic violence orders. The utility in allowing the applicant to resurrect these appeals, which he has chosen not to do until the 365th day after the orders were made, is not apparent to me.
[8]
Orders
For these reasons I am not satisfied that the appellant has shown sufficient cause for his failure to appear in Court on 23 April 2020 and I am satisfied that it is not in the interests of justice that these appeals be heard. It follows that the application is refused.
[9]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 15 October 2021
I interpolate here that the transcript of the evidence given by the interpreter is inconsistent with the proposition that the matter in the Local Court concluded at 9.55am; I refer specifically to the conversation she had with the court officer there, advising him that we were waiting in the District Court and his advice to her that his would be the next matter to be heard and then the attitude demonstrated by the applicant telling her that that matter had nothing to with her and she should leave. I continue:
"HIS HONOUR: And no effort was made in the intervening period to come back to the court to say there was a delay until 1 o'clock.
LIVERS: I think he had contacted the court.
HIS HONOUR: Who?
LIVERS: Mr El-Saeidy.
HIS HONOUR: But he had a lawyer representing him, nobody communicated with the court.
LIVERS: No, I don't think his other lawyer did, no.
HIS HONOUR: Who was the other lawyer, can you assist me?
LIVERS: The lawyer Wilson Tighe of O'Brien, Criminal and Civil Solicitors who appeared for him on a pro bono basis.
HIS HONOUR: Sorry Wilson Tighe of?
LIVERS: O'Brien Criminal and Civil Solicitors, he said 'I confirm my appearance in this mention on 23 April 2020 was initially by telephone and then following the matter being stood down later via AVL. I confirm the time of my appearance to be between 11am and 3pm, ultimately those proceedings were adjourned to 6 May 2020 for further mention'.
HIS HONOUR: Those proceedings?
LIVERS: Yes.
HIS HONOUR: But that's over a year ago, why is this now continuing after over a year?
LIVERS: I think because of COVID and other matters and my client's illness your Honour, I didn't receive any instructions as to anything else before this time.
HIS HONOUR: This matter is, throughout its history, replete with limited and confined instructions Mr Livers. There is no need to sit down because we haven't finished.
LIVERS: Sorry your Honour.
HIS HONOUR: Why should I entertain an application to adjourn this matter for evidence to be put on that could have been obtained, I would have thought, at sometime within the last 14 months?
LIVERS: Your Honour, I only became aware of the evidence of Mr Wilson Tighe only in the last week. I obtained the statement from him and email messages from him through my client on 2 June.
HIS HONOUR: My associate has just drawn out the notice of motion that appears from the file. I've got a notice of motion it was received on 22 April 2021.
LIVERS: Yes, your Honour, look I might be obtain the affidavit even sooner than that.
HIS HONOUR: Well, I won't be available. I'm going to Newcastle next week, I'll be away for four weeks. It won't be able to be heard until I get back from…
LIVERS: But my client also wants to get a copy of the transcript of those proceedings so that's why I'm seeking a four to six week adjournment. If it suits the court.
HIS HONOUR: Anyway, the order, the notice of motion, that's the notice that you're moving on?
LIVERS: Yes.
HIS HONOUR: This includes the decision that I've made dismissing the appeals on 23 April 2020 be set aside. 'A retrial ordered on the basis that there was a denial of natural justice'. I don't know what that refers to. A retrial of what?
LIVERS: Of the matter, your Honour, on the basis that Mr El-Saeidy was occupied in another court at the time.
HIS HONOUR: But a retrial of what matter?
LIVERS: Not a retrial, a continuation. A reinstatement of the appeal.
HIS HONOUR: So I'll just make that note on the court file I can follow this, so that I can follow this, order 2 or prayer (ii) in the notice of motion, that there be a retrial is not the relief sought, what is sought is the continuation of the conduct of the appeals, is that so?
LIVERS: Yes your Honour.
HIS HONOUR: I have that noted. Then there's a representation as to what was occurring in the other Court, which you were in that matter, for evidence. Then, (3), the retrial be conducted before another judge of this Court based on the actual bias and apprehended bias of me. That's prayer (iii) and again, the retrial should be read to mean continuation of the hearing of the appeals. Is that the relief sought?
LIVERS: Yes your Honour.
HIS HONOUR: Then there is four handwritten - unless leave be granted for appellant to file further affidavit. What affidavit is going to be filed in relation to the matter?
LIVERS: He would file the affidavit of Mr Wilson Tighe and his own affidavit annexing a copy of the transcript of the proceedings in the other Local Court.
HIS HONOUR: Then an order for costs? Well, I note that. And there is before me, in addition to the notice of motion these adjustments to be made to according to which it should be read more correctly, there's an affidavit by you Mr Livers.
LIVERS: Yes your Honour.
HIS HONOUR: You should have selected a smaller font Mr Livers, you would have been able to get more squeezed onto the page."
I was facetious in that remark because of the size 8 font in that document.
I continued:
"HIS HONOUR: What evidence are you going to put on to support that application that I should recuse myself from the hearing of the matter?
LIVERS: Only on the evidence of Mr El-Saeidy your Honour.
HIS HONOUR: What evidence is that?
LIVERS: I haven't actually taken full instructions on that your Honour.
HIS HONOUR: Well come on don't you need to put evidence on to support that application if you're going to be arguing it?
LIVERS: I do sir, yes.
HIS HONOUR: So what time is required for that?
LIVERS: Altogether it would take six weeks to put it all together.
HIS HONOUR: Well it will be a two-step process. There's the first whether or not I should grant the application to recuse myself on the continued hearing of the matter. That would include, I expect, the application of the restoration of the appeals. Then there will be the question whether or not a judge should determine that the appeal's be allowed to continue. In other words, to be restored for further hearing. That can't be decided until I give a decision as to why I should recuse myself. Would you agree with that proposition?
LIVERS: Yes, your Honour.
HIS HONOUR: Now, that first step of course will require evidence in support of the application that I recuse myself. What evidence do you anticipate bearing in mind that it's June 2021. What evidence do you anticipate you will be calling to support that application apart from your client, if there is any other evidence?
LIVERS: That's all your Honour.
HIS HONOUR: And there's nothing been done with regard to the preparation of an affidavit or evidence in support of the application that I recuse myself?
LIVERS: There has been some preliminary matters, but I haven't prepared the affidavit as such. But it would take six weeks to prepare that affidavit.
HIS HONOUR: Madam Crown, I have a lot of experience with this matter as you are no doubt aware.
EVANS: Yes your Honour.
HIS HONOUR: And I have read all of the transcripts of all proceedings between the prosecution and this applicant, in the Local Court, including the unfortunate events that unfolded before magistrates, with regard to lawyers representing him and lawyers representing the prosecution.
And the matter has been at least once to the Court of Appeal of which I am aware, after a decision I made along the way to Mr El‑Saeidy. It was unsuccessful, Basten JA dealt with it fairly abruptly, I thought and efficiently to the - in determination of that matter.
One might anticipate that there would be an argument advanced that there's been a denial of procedural fairness if I don't give the applicant the opportunity to put on evidence in support of his submission that I should recuse myself from the proceedings. I will set the matter down for mention when I'm back here on 28 June, I will list it for mention on 28 June. In the meantime the affidavit that is to be relied upon by the applicant is to be filed and served and in sufficient time before that date to allow the Crown the opportunity to consider what evidence it might want to call in reply.
EVANS: Thank you your Honour.
LIVERS: Thank you your Honour.
HIS HONOUR: And then we will resolve that question and then depending on the outcome of that application, proceedings can then continue either before me or before another judge depending upon what decision I come to. Now on the notice of motion the orders pursuant to s 22 Crimes (Appeal and Review Act) 2001, there is to be an affidavit obtained from Mr Wilson Tighe you say?"
LIVERS: Yes your Honour.
HIS HONOUR: That is to be obtained and filed and served upon the Crown within two weeks of today. Will you require the interpreter who gave evidence when your client failed to attend this court prior to me making the orders dismissing the appeal for want of prosecution, do you require that?
LIVERS: I would think so your Honour yes given what Mr Wilson Tighe says.
HIS HONOUR: Well it will be a matter for the Crown to check, they'll have to get an affidavit, there's a transcript of her evidence.
LIVERS: Certainly your Honour.
HIS HONOUR: She gave evidence under oath so there's a record of what was said but we probably need to have her provide an affidavit regarding that so that can be brought to account on the application once we get past the application that I recuse myself. Anything else Mr Livers at this stage?
LIVERS: No your Honour."
I noted that at that stage Mr El-Saeidy was in court. He arrived in the course of the exchange that I have just related. I noted on p 7 line 5 that Mr El‑Saeidy was attempting to get Mr Livers' attention after which Mr Livers informed me that there was nothing further and thereupon the matter was adjourned to 28 June 2021.
The matter I do not believe was dealt with on that date and I do not know whether that is because there is an error in the transcript. I am reminded by my Associate we were still in Newcastle on 28 June 2021 and the matter was listed for 26 July 2021. On that day Ms Evans appeared for the Crown, Mr Livers appeared for the appellant, he appeared by audio link only.
There is a note that I have made on the file which I am not quite sure about at the moment, but Mr Livers appears as a participant but not responding in court. I am not quite sure what I meant by that. I am reminded by my Associate that there was a problem with the technology; he could not be seen on the screen but we could hear his representations in the courtroom. Thus he appeared only by audio link.
His affidavit and the affidavit of Wilson Tighe had been filed and served. Mr El-Saeidy had not provided his affidavit as the Bankstown Public Library was closed; he requested an adjournment of three weeks to attend to his affidavit. He required the use of the library so that he could type his documents. I adjourned the matter to 9 August 2021 for mention to fix a hearing date. He could attend via AVL. Enquiries were to be made of the interpreter's availability by Ms Evans and any material upon which the applicant intended to rely was to be filed and served before the next mention date.
Upon the next mention date, 9 August 2021, the applicant was not present. Mr Livers appeared by audio only. The applicant instructs that he went to the Downing Centre on 6 August 2021 after being informed on 2 August 2021 that the transcript was ready, to pay for the transcript, but the building was shut. The interpreter had no unavailable dates but asked that the matter proceed on the next occasion. The Crown intended to rely upon the evidence given by the interpreter in court on 23 April 2020 and may not need to call the interpreter but will reserve its position.
The matter was adjourned until today, 10 September 2021, to hear the notice of motion that the appeal be restored, part heard before me with a one and a half hour estimate. Mr El-Saeidy could attend via AVL. The affidavit upon which the appellant relies was to be filed and served no later than 03 September 2021; that has not been provided.
Before I turn to the affidavit of Mr Tighe, I note that the judgement in the Court of Appeal in El-Saeidy v Director of Public Prosecutions (NSW) [2019] NSWCA 289 is available on Caselaw with the judgement of Basten JA who provided a procedural history of the matter up until that date; the proceedings in that Court were commenced by way of a summons filed on 8 October 2019 seeking six orders.
The judgement at p 44 dealt with the assertion of bias and the application that the appellant made on 16 July 2019 to have me recuse myself, but there was no further information provided in respect of that representation. There was a judgement that I delivered that was quoted in part, and ultimately the court dismissed the proceedings before it with an order that the applicant pay costs. In El-Saeidy v Director of Public Prosecutions (NSW) (No 2) [2019] NSWCA 297 the same court dealt with the application to amend the summons and rejected that application.
The Crown in written submissions notes the history of the matters, the protracted nature of the proceedings, and that they were set down for final hearing on 23 and 24 April 2020. The Crown briefly refers to the events on that occasion leading to the decision that I made to dismiss the appeals because the appellant chose not to be in court. I'm reminded of p 7 of the Court of Appeal judgement Reznitsky v Director of Public Prosecutions (NSW) [2014] NSWCA 79 at para [19], where Meagher JA and Emmett JA concurred with the reasons given by Tobias AJA. In para [19] of his Honour's judgement he wrote:
"I pause to observe that s 22(3) contemplates a hearing on the merits of a s 22 application. A primary issue in the present case was whether there was in fact such a hearing for in my opinion it is a condition precedent for the determination of such an application that there be a 'hearing'. It is only after there has been such a hearing that the District Court may uphold or dismiss the application. Furthermore, to qualify as a hearing, an applicant must be afforded the opportunity to reasonably and fairly advance his or her case by the tendering of evidence and the making of submissions necessary to satisfy the requirements of s 22(3). In other words, there can be no relevant hearing unless an application is afforded natural justice or procedural fairness."
The only evidence that has been put on, regardless of the orders that I have made for the conduct of the matter, is the affidavit sworn by or affirmed by Mr Livers to which I have referred, and an affidavit that was said to have been provided by Mr Tighe, a copy of which was not at this point located on the file.
I paused to allow the Crown to transmit a copy of the document electronically to my Associate and upon receipt of the document and a review of its content I continue.
I now have the affidavit that was provided by Mr Wilson Tighe. Again he has chosen to use the smallest font possible in preparation of this document. I will describe what he has provided.
He confirms that he was a solicitor for the appellant in relation to criminal charges listed on 23 April 2020 in the Local Court in the Downing Centre. He was working remotely because of the COVID‑19 pandemic and in conformity with the associated public health orders. He sent an email to the Court in relation to the mention of the matter. A copy of that email is annexed. In that email he confirmed his role acting on behalf of the applicant.
He was seeking orders for the service of a brief and a hearing date or mention to fix a hearing date at the convenience of the Court. The defendant in those proceedings, Mr El-Saeidy, was on bail and would attend to answer bail. He confirmed that Mr El-Saeidy had been served with an application to vary an AVO. The request was that the AVO be dismissed for reasons there given including that it had been filed in error and confirming that Mr El-Saeidy strongly denied the allegations made against him.
He recalled, according to his affidavit, that on the morning of 23 April 2020 he received a phone call advising him of the mention and that the police were seeking an interim apprehended personal violence order to which Mr El-Saeidy was opposed. There was telephone contact with Mr El-Saeidy and the prosecutor and the magistrate. Mr El-Saeidy's matter was stood down during the morning so that advice could be given in relation to the application of the interim AVO. He spoke at some length with Mr El-Saeidy in relation to the application for the interim AVO. The proceedings were mentioned some time prior to the ordinary luncheon adjournment and he confirmed appearing via AVL. The application for the AVO was opposed and contested.
It was determined that the order be made with conditions identified and the proceedings were thereupon adjourned. He was in continual contact with Mr El-Saeidy or otherwise appearing before the Court in relation to the matter. Mr El-Saeidy was very concerned by proceedings in the Local Court. There is no representation there in terms that the applicant brought to Mr Tighe's attention that there were proceedings on foot in the District Court which was waiting upon him to attend. I would have expected that Mr Tighe would have included representations in the affidavit if he had been given any instructions about the concurrent proceedings in this Court so that he could accommodate whatever obligations Mr El-Saeidy had in relation to these appeals.
To obviate the risk of any embarrassment to Mr Tighe the only conclusion one can draw is that Mr El-Saeidy had said nothing to him about these matters, notwithstanding that the evidence given by the interpreter which I accept was that he was informed in clear and unequivocal terms that the District Court was waiting upon his attendance in response to which he sent her away.