Hanna v DIMIA

INTRODUCTION 2 The applicant, Mr Hanna, appearing self-represented, has sought to press a summons for judicial review filed on 19 December 2003. Although the summons is not in proper form, the applicant explained that he sought to have set aside, stayed permanently or otherwise quashed or dismissed a conviction made originally in the Local Court, together with the determination by the District Court declining to set it aside on appeal. It appears that the applicant seeks relief from the Court pursuant to s69 of the Supreme Court Act, 1970. 3 Contrary to the respondent's submissions, it is not Pt 54 r2 of the Supreme Court Rules or s5B Criminal Appeal Act 1912 which regulates the present proceedings as presently constituted, but Pt 40 r1, though that Rule presupposes that there are still proceedings on foot. In any event this Court has heard the applicant's submission so far as based on s69 of the Supreme Court Act. 4 While the applicant put his case for that relief in various ways, the central contention by the applicant was this. An acquittal of a charge against him under s283 of the Migration Act 1958 ("the Act") prohibiting a false representation that he was a registered Migration Agent, was inconsistent with conviction under a charge pursuant to s284 of that Act restricting self-advertising of the giving of immigration assistance. He submitted that the conviction in such circumstances was "an affront to logic and common sense" so that the conviction should be quashed. 5 Other grounds were also pressed orally. These were essentially an attempt to re-agitate factual findings which appear to be substantially based on credibility and which underpinned the decision of the Local Court as well as the District Court's rejection of the applicant's appeal. The applicant contended that these amounted to a substantial miscarriage of justice - but a fundamental obstacle in the way of any such purported appeal on matters of fact is that the applicant exhausted such appeal rights as he had in this Court when he brought his appeal to the District Court. Any appeal instead to the Supreme Court from the Local Court would have been governed by Pt 5 of the Crimes (Local Courts Appeal and Review) Act 2001. It would have required, insofar as any question of fact is concerned, leave of the Supreme Court under s53 of that Act. Instead, the applicant chose to appeal as of right to the District Court. 6 The respondent takes issue with all of these contentions and essentially submits: (a) that the application is incompetent; and (b) would have no merit in any event.