Hanna v Commonwealth Director of Public Prosecutions

Hanna v Commonwealth Director of Public Prosecutions - [2016] NSWCA 230 - NSWCA 2016 case summary — Zoe

Judgment

THE COURT: This is an application by Mr Fayez Hanna for leave to appeal against a decision of R A Hulme J of 16 March 2016 ([2016] NSWSC 325). Arguably Mr Hanna's application for leave to appeal was filed out of time and he needs an extension of the time for its filing. Whether he needs that extension depends upon the date upon which he served a Notice of Intention to Appeal.
The proceedings relate to Local Court convictions of Mr Hanna of offences under the Migration Act 1958 (Cth) concerning his alleged activities as an unregistered migration agent. He was convicted on 7 November 2005 in his absence, at a hearing of which he alleges he had no notice. He alleges that he only became aware of the convictions in February 2014. In December 2014 he sought a referral of his convictions back to the Local Court because of an alleged "question or doubt" as to his guilt (see s 5 Crimes (Appeal and Review) Act 2001 (NSW) s 5). He was notified of rejection of that application on 11 May 2015 and on 18 August 2015 filed a summons in the Supreme Court seeking judicial review of the convictions pursuant to s 69 of the Supreme Court Act 1970 (NSW). That summons was filed out of time and by his judgment of 16 March 2016 R A Hulme J refused an application for extension of time for its filing and dismissed the summons.
The judgment contained a detailed review of the history of the proceedings and of factors relevant to the grant or refusal of the extension of time that was sought. The primary judge found (at [45]) that it was "most improbable" that the applicant thought (as he claimed) that the proceedings had just gone away. His Honour was inclined to think that the applicant became aware in about early 2006 that the matter had been dealt with in his absence. In any event, the primary judge found (at [46]) that the applicant was probably aware of what had occurred by April 2011, when he engaged in correspondence in relation to arrangements to pay fines. The applicant had conceded that he was aware of the outcome by February 2014, yet even then allowed 18 months to elapse before commencing proceedings in the Common Law Division.
The primary judge's ultimate conclusion was expressed as follows: "47 In my view, the delay is just too great. It is not sufficiently explained and cannot be lightly excused. The prejudice is too severe in allowing judicial review of a Local Court matter that was finalised over 10 years ago, when most of the records of the court and those of the prosecutor have been lost, simply as a result of events which are expected to occur as a result of the passage of time. I am firmly of the view that the application should not be granted. The application is refused and, as a consequence, the summons is dismissed."
The starting point for an applicant, such as Mr Hanna, who seeks leave to appeal against a discretionary decision (and for an extension of time to file his or her summons) is to demonstrate that the primary judge was at least arguably in error in one of the respects described in House v The King [1936] HCA 40; 55 CLR 499 which states the principles applicable to appellate intervention in relation to discretionary decisions.
Mr Hanna's summary of argument addresses 20 reasons which, in his view, justify a grant of leave to appeal. In substance, however, he makes six complaints.
First, Mr Hanna complains that the primary judge expressed his ex tempore reasons for decision by reference to a document apparently prepared before the hearing. This complaint is rejected as there is no reason why a judge should not make reference to such a document in that way. Doing so does not indicate that the judge has not paid proper attention to the arguments or, that, as Mr Hanna asserts, the judge was "biased".
The second complaint is that the primary judge decided the application on the basis of "technicalities". There is no substance in this complaint as it does not identify any specific error in the primary judgment. Moreover, on its face, the judgment appears to involve a proper consideration and determination of the relevant issues.
Thirdly, Mr Hanna contends that the primary judge did not take into account all of the evidence before him. Mr Hanna has not identified any evidence material to the issues that his Honour failed to take into account.
Fourthly, Mr Hanna complains that the primary judge did not "take into consideration any legislative or common law rights of the plaintiff" and also failed to consider relevant High Court and other decisions. This complaint should also be rejected as it does not allege any specific error on the part of the primary judge. Mr Hanna's oral submissions did not take the complaint any further.
Fifthly, Mr Hanna complains of late service of documents on him prior to the hearing before the primary judge. He has led no evidence to establish that this occurred. Nor did he establish that he made any complaint to the primary judge about late service of documents.
Sixthly, Mr Hanna complains that the primary judge did not give him an adequate opportunity to present his case. He has not adduced any evidence to support this claim and has not referred to any passages in the transcript that might suggest that he was not given a fair opportunity to present his case.
Mr Hanna's remaining grounds of appeal relate to the merits of his underlying complaints concerning his Local Court convictions but he has provided no basis for concluding that the primary judge's description and consideration of those Local Court proceedings was erroneous.
We add that in oral argument before us Mr Hanna complained that the destruction of documents had prejudiced him. He also suggested, without any evidentiary support, that documents had been deliberately destroyed to harm his attempts to clear his name.
The primary judge accepted that many of the respondent's files relating to the Local Court proceedings had been destroyed. His Honour also found that there was no transcript of the Local Court hearing and that, in accordance with standard retention practices, the audio recordings of the hearing had been destroyed. The findings make it clear, however, that there was nothing untoward about the discarding or loss of files concerning the Local Court proceedings, which were finalised more than a decade before the primary judge heard the application for judicial review.
The primary judge considered that the loss of records would inevitably create prejudice to the respondent if the applicant was permitted to seek judicial review of the orders made by the Local Court many years after the orders had been made. He took this prejudice into account in determining that the applicant's delay in bringing proceedings was too great to justify permitting him to challenge the orders made by the Local Court. There was no error in his Honour doing so.
As Mr Hanna has not demonstrated that he would have any reasonable prospect of success in an appeal against the primary judgment, an extension of time for filing the application for leave to appeal (if required) should be refused and in any event the summons seeking leave to appeal should be dismissed.
In conclusion, we note that subsequent to the hearing in this Court on 22 August 2016 at which an adjournment application by Mr Hanna was refused, he sent to the Court a copy of a purported application for legal aid and a medical certificate. He did this in an attempt to advance the dismissed adjournment application.
His implicit application to tender these documents should be refused as they were supplied without leave and would in any event not have altered the outcome of the adjournment application. As we pointed out when discussing that application, even if Mr Hanna made an application for legal aid it was made only after considerable delay. The medical certificate recently provided does not satisfactorily explain that delay: it simply says that from 26 July 2016 to 18 August 2016 (a period preceding the certificate's date of 22 August 2016), Mr Hanna "WILL BE UNFIT TO CONTINUE HIS USUAL OCCUPATION" (sic).

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Judgment (4 paragraphs)

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