Hodgson v County Court of Victoria [2004] VSC 501

and an order that their appeal to the County Court be reheard.

7. The defendants are the County Court and Senior Constable Marion Purdie. The latter was the informant in criminal prosecutions brought against the plaintiffs. This proceeding is the latest stage in the history of those prosecutions.

10. The prosecutions, brought by charge and summons, alleged, in the case of each plaintiff, that she

* entered a private place without authority contrary to s. 9(1)(e) of the Summary Offences Act 1966 (3 counts).

* intentionally and without lawful excuse damaged property belonging to another contrary to s. 197(1) of the C_rimes Act_ 1958 (1 count).

The offending conduct was alleged to have been committed on various occasions between 30 May 2002 and 9 June 2002 on land at Steels Creek in the Yarra Valley. Title to the land, according to the prosecution case, was held by a Ms Woodhouse and her brother. The property damaged was a fence that had been erected on that property.

16. Pausing for a moment, the prosecutions were set against a background of continuing dispute between the plaintiffs and their neighbours about title to the land on which the offences were said to have been committed. In 1995 the plaintiffs made a claim to land, including the land in question, by an assertion of adverse possession. The claim was heard by the County Court in 1997. The trial extended over 10 days. The claim was resolved adversely to the plaintiffs. They unsuccessfully sought leave to appeal out of time to the Court of Appeal. After that, they unsuccessfully sought special leave to appeal to the High Court from the refusal of the Court of Appeal to grant them leave to appeal out of time. I said "continuing dispute" a few moments ago only because, it appears, the plaintiffs have never accepted the adverse determination of their claim.

19. The prosecutions were heard in the Magistrates' Court at Ringwood over a four day period commencing 13 March and ending 23 May 2003. The plaintiffs were represented. The charges against them were found proved. Without conviction, each plaintiff was fined $500 on an aggregate order; and an order was made for costs.

22. The plaintiffs appealed. Their appeals were heard on 5 and 6 November 2003 by a judge of the County Court. The plaintiffs appeared in person. His Honour dismissed the appeals but set aside the learned magistrate's orders. He convicted the plaintiffs and ultimately made an aggregate order fining each plaintiff in respect of each offence. He also made orders in respect of compensation and costs.

25. Although his Honour made aggregate orders for fines, he grouped together what were described in his orders as Counts 1 and 4 and Counts 2 and 3. The former pertained to offences committed on 30 May and 1 June 2002 the latter to offences committed between 7 and 9 June 2002. The costs and compensation orders were made in respect of Counts 1 and 4. Later in these Reasons I will explain how those orders came about.

28. The plaintiffs, then, exhausted their conventional right of appeal. By this proceeding they seek relief in the nature of certiorari.[1] The first defendant is so named in the Amended Originating Motion by reason of R 56.01(3).

31. Before me, the plaintiffs appeared in person. The first defendant, in accordance with convention, did not appear but indicated an intention of abiding the decision of the Court. The second defendant was represented by counsel.

34. The grounds upon which, by their Amended Originating Motion, the plaintiffs seek relief are stated as follows:

"(i) That there was procedural unfairness in the plaintiffs' appeal to the County Court of Victoria on 5 and 6 November 2003; (a) In that the Learned Appeal Judge refused to allow and/or interrupted the plaintiffs' cross-examination on relevant issues or disallowed relevant questions only by reason of formal defects in the manner the questions were asked; (b) In that the Learned Appeal Judge denied the plaintiffs the right to be heard by refusing to allow relevant questions or by limiting the scope of cross-examination allowed; (c) In that the Learned Appeal Judge refused to listen to submissions made by the plaintiffs and/or refused to take submissions made by the plaintiffs seriously in circumstances where there was no valid reason given for refusing to listen to the plaintiffs' submissions. (ii) That the plaintiffs were denied natural justice in the appeal to the County Court of Victoria on 5 and 6 November 2003; (a) In that the Learned Appeal Judge made one decision at the conclusion of the appeal and failed to give any or any adequate reasons for that decision other than `to teach [the plaintiffs] a lesson'; (b) In that the Learned Appeal Judge without giving any or any proper reasons withdrew or changed his first decision and made a final decision without giving reasons other than `to teach [the plaintiffs] a lesson'; (c) In that the Learned Appeal Judge made rulings and directions and his making of the final decision spoke with and/or treated the plaintiffs in a manner which bore the indicia of bias or could give rise to the perception of bias and/or was actually biased and/or was motivated by bias; (d) In that the Learned Appeal Judge acted and spoke throughout the appeal when addressing the plaintiffs in a manner which could reasonably be perceived as biased against the plaintiffs; (e) In that the Learned Appeal Judge's decision is vitiated by error because he actually or could reasonably be perceived to have based his decision on irrelevant matters such as the plaintiffs being identical twins and/or of eccentric manner and/or the manner and or dress and/or their age and sex."

38. In the course of argument each plaintiff made it clear that her complaints were in substance that

* the learned judge was actually biased against she and her sister.

43. The grounds set out in the Amended Originating Motion focus entirely upon the conduct of the learned County Court judge. They may be contrasted with what the plaintiffs alleged by their Originating Motion as first filed. It referred to

"Unlawful conduct, deferring the course of justice, corruption, negligence and conspiracy."

47. In that context, the Originating Motion referred to fragments of statements made or evidence given by various witnesses; and it added some comments by the plaintiffs. It made no mention at all of conduct of the learned judge, although in a Summons on Originating Motion filed 9 January 2004 reference was made to his Honour. That reference probably extended as far as follows -

"Unlawful conduct of misleading and variation of the two properties by his Honour Judge Coish at Melbourne on 6/11/2003. Registrar's No. Q01723630 and Q01723608. Judge Coish refused documentation of titles on adverse possession claim Vol 9521 Fol 568. Refused Legal documents, Surveyors report, Power of Attorney from Title office. Ringwood Magistrates' court tapes dated 29/5/2003 and 3/6/2003. Insisted on using a fencing act which was a Civil Act on 3/6/2003 but charged on a boundary fence, Orders against plaintiffs seeking to quash without conviction fines and costs. Seeking compensation for stress and harassment by police witness."

51. In support of the relief initially sought, the plaintiffs filed affidavits sworn 9 January 2004 in precisely the same language. Neither of the affidavits said anything about any of the matters raised by the Amended Originating Motion.

54. On the same day that the Amended Originating Motion was filed - that is, 23 March 2004 - the plaintiffs filed a jointly sworn affidavit. By that affidavit the plaintiffs complained, in essence -

* that the learned judge told them to sit in the front row of the public gallery and not at the Bar table[2];

* that his Honour told them to remain in the same position relative to each other for the duration of the appeal, or otherwise to put name tags on themselves[3];

* that his Honour appeared to them to be ridiculing or discriminating against them in relation to their demeanour and appearance[4];

* that his Honour commented "on countless occasions", "who cares, get on with it, what's your next question", whilst they were cross-examining[5];

* that his Honour had said words to the effect that if they had been represented "it would have gone [their] way"[6];

* that on a number of occasions during the trial the learned judge said that he was "going to teach you girls a lesson"; or used words to the effect[7];

* that his Honour chose to call the boundary fence the subject of some of the charges a fence and not a boundary fence[8];

* that his Honour initially indicated, having dismissed the appeals, that he would place the plaintiffs on a 12 month undertaking to be of good behaviour; but when they refused to sign undertakings and the papers were returned to him, he threw them in the air, said that he would teach them a lesson and then imposed convictions and fines[9];

* at the conclusion of the hearing the learned judge said "this has got to be reviewed". That led them to enquire what review process was available[10].

66. Each of the plaintiffs swore a further affidavit on 21 May 2004.

69. Miss Ann Hodgson's affidavit deposed to her recollection of her cross-examination of witnesses called by the prosecution on the appeal. According to her affidavit, various witnesses said, in answers to questions which she asked, "who cares"; and the learned judge sometimes asked her "to get on with it, what was [her] point"; or himself said, "who cares"[11].

72. Further according to her affidavit, the learned judge refused to accept certain documents which she sought to introduce into evidence.

75. Miss Barbara Hodgson's affidavit sworn 21 May 2004 corroborated her sister's account. She also deposed to witnesses and the learned judge saying, in the course of her cross-examination, "who cares"; and, in the case of the judge "what is your point"; or similar things[12]; and to the learned judge refusing to look at various documents.

78. As it transpires, the hearing on 5 and 6 November 2003 was video-recorded. A transcript was made by the Victorian Government Reporting Service, and was exhibited to the affidavit of Adrian Castle sworn 25 June 2004 on behalf of the second defendant. Marwan El-Asmar, a solicitor employed by the Office of Public Prosecutions, deposed in his affidavit sworn 25 June 2004 that he had attended the hearing on 5 and 6 November 2003 and that the transcript was a reasonably accurate and complete transcription of the hearing.

81. A copy of the transcript, according to Miss Ann Hodgson, was provided to the plaintiffs on 25 June 2004[13]. In answer to my question, Miss Barbara Hodgson said that in the five months which followed no complaint had been made either to the Office of Public Prosecutions or to the County Court of Victoria that the transcript was inaccurate or incomplete. I mention those matters because in the course of their submissions the plaintiffs launched a serious attack upon the probity of the learned judge and/or his staff and/or the Victorian Government Reporting Service.

84. Confronted by the fact that the transcript appeared to be very much at odds with a number of matters to which she had deposed, Miss Ann Hodgson first submitted that it was not what his Honour had said, but how he had said it, which made out her complaints[14]. She described being "petrified" by his Honour, of being frightened by him[15], and contrasted his Honour's treatment of her with the hearing of this proceeding, telling me that she was not scared of me and that I was letting her attempt to explain her case[16]. She later asserted, importantly in the present connection, that the transcript was incomplete - only things unfavourable to the judge having been taken out.

87. Miss Barbara Hodgson, too, contended that the transcript was incomplete. She claimed that "half of what [she had] said" was not there[17]. That contention at the very least implied selected editing to her disadvantage.

90. The transcript was not made under the authority of s. 130 of the Evidence Act 1958. No question of its correctness being certified under s. 135(1) arises. Notwithstanding Mr El-Asmar's affidavit, it seemed to me, in light of the allegations made by the plaintiffs, that steps should be taken to see if the video-tape from which the transcript was made was still in existence; and that, if it was, it be brought before the Court. I raised this with the parties. All agreed to that course.

93. It transpired that the video-tape[18] was extant. It was produced to the Court. Mrs Kate Shackell, the judge's associate, deposed to its provenance, and to it being a complete record of the proceeding, in an affidavit which she swore on 2 December 2004.

96. I viewed the video-tape, as did the plaintiffs and counsel for the second defendant, over periods, in all, totalling about six hours. I compared the spoken words with the transcript. It became crystal clear that the transcript was very substantially in accord with the spoken words; and, in particular that the transcript did not omit things said by the judge which could be considered unfavourable to him, nor omit half of what Miss Barbara Hodgson had said, or even a small part thereof.

99. I then asked each plaintiff whether she wished to pursue her claim that the transcript, in respect of the particular matter which she had alleged, was an inaccurate record of the hearing. Each plaintiff withdrew such allegation[19]; but said that it had reflected her belief when she made it. I have the gravest doubt that this disclaimer was truthful in the case of either plaintiff. Unfortunately, those allegations fitted a pattern of serious unreliability in things said and deposed to by the plaintiffs.

102. The transcript, together with the video-tape, reveals the following matters:

* The plaintiffs did sit in the front row of the gallery, immediately behind the Bar table. They were not told by the learned judge to remain in the same position relative to each other for the duration of the appeal or else to wear name tags - though had he done so it would not have been very remarkable in the particular circumstances - for the plaintiffs are identical, 65 year-old twins who dress identically, wear identical accoutrements and have a similar manner of speech delivery.

Further, whilst during the appeal the plaintiffs sat in the first row of public seating, immediately behind the Bar table, they were not shown to have been thereby disadvantaged. Each of them had and referred to documents. Sometimes, the videotape showed, there was an appreciable time delay between one question being asked in cross-examination and then the next - during which period the cross-examiner turned back-on to the judge and located a document. On no occasion did his Honour ask the cross-examiner to hurry up, or say anything that could indicate frustration or annoyance about what was happening - or rather, not happening. Neither again did either plaintiff tell his Honour on any occasion that she was disadvantaged by being seated where she was.

* His Honour did not say on countless occasions, or at all, in the course of cross-examination by the plaintiffs, "who cares". He did, however, say - quite understandably in the context that he was explaining to Miss Ann Hodgson what charges were the subject of appeal - that he did not care what she had been told by the police; that is, in that connection.[20]

* His Honour did not say on a number of occasions during the trial, or at all, that he was going to teach the plaintiffs a lesson, or say words to that effect.

* The learned judge did not say words to the effect that if the plaintiffs had been represented it would have gone their way.

* His Honour did not initially indicate that he would place the plaintiffs on undertakings to be of good behaviour; and then, when they refused to sign undertakings, throw the papers which were returned to him into the air, saying that he would teach them a lesson; and then impose convictions and fines.

In fact his Honour convicted the plaintiffs on all charges. He fined them on two charges and made orders for compensation and costs. On the other two charges, having convicted the plaintiffs, he proposed that they give undertakings. The plaintiffs refused to sign. Miss Ann Hodgson told his Honour that -

"We're going to appeal on this, your Honour. So that's why we can't sign it because we've got to appeal on it."[21]

Then the learned judge imposed fines on those charges.[22] He did not give the plaintiffs a further opportunity to be heard on penalty before he did so for the obvious reason that he simply extended the fines which he had already imposed to embrace those charges also.

* His Honour did not say "this has to be reviewed". It was Miss Ann Hodgson who said that the plaintiffs were going to appeal.

* His Honour did say, at times, words such as - "next question", "what's the question?" or "have you a question?" He said those things at times when, typically, the cross-examiner had embarked on a lengthy monologue or made a shorter statement which contained no question. Often enough his Honour assisted the questioner to frame a question; or himself framed a question and put it to the witness.

* On odd occasions a witness did answer a question with a question. In such instances, where it was warranted, the judge addressed the matter quite appropriately.[23]

* His Honour did at times question the relevance of matters which the cross-examiner was seeking to address. He demonstrated great patience in listening to replies which highlighted, in almost every case, the irrelevance or at best the peripheral relevance of the subject-matter of cross-examination.

* The plaintiffs were in fact permitted very considerable licence in their cross-examination of the prosecution witnesses. Very little of the cross-examination had anything to do with the offences with which they were charged. Indeed, the plaintiffs in substance admitted going onto the land in early June 2002, and to damaging a new fence erected thereof. Their cross-examination was for the most part a reprise of a battle about ownership fought and lost years earlier concerning the ownership of the land; and an agitation of disputes between them and their neighbours which could at most have reflected upon the credit of the neighbours who gave evidence against them.

* His Honour did not improperly cut-off cross-examination. At times he asked the cross-examiner if she had more questions. If the cross-examiner said yes, most often he let cross-examination continue. On a very few occasions, and for entirely understandable reasons, he declined to allow the cross-examiner to re-work old or irrelevant ground.

* The learned judge did on a few occasions reject the tender, informally made, of documents upon which a plaintiff sought to rely. He was absolutely right to do so. Documents in question typically were not admissible through the witness even had they been relevant; or else were an attempt to contradict an answer given upon a credit issue.

* His Honour was in fact very lenient when dealing with the reception of documents tendered by the plaintiffs. Documents went into evidence which by no stretch of the imagination had anything to do with the prosecution.[24]

* Far from giving any appearance of being "petrified" or terrified by the learned judge, who maintained his composure impeccably and was always polite when speaking to the plaintiffs, Miss Ann Hodgson at times argued with and talked over his Honour when asserting the relevance of a line of cross-examination. At times she simply ignored his direction and carried on with her cross-examination.

* Miss Ann Hodgson, furthermore, when cross-examining prosecution witnesses - she did most of the cross-examination - showed not the slightest sign of being fazed by the court environment. She challenged witnesses extremely vigorously in the course of cross-examination, often enough in a way that was unfair, if not offensive.

124. The learned judge, in summary, conducted an appeal which was made difficult by the way in which the plaintiffs approached it, and by their self-representation, with very conspicuous fairness and skill. His demeanour towards the plaintiffs, throughout, was calm, patient and courteous. He attempted to keep the appeal on track, but in a measured and helpful way.

127. In the event, there is nothing in the transcript, or in the video-tape, which could give the slightest support to the claims which the plaintiffs have made. The transcript and video-tape give the lie to the extravagant and false allegations made by the plaintiffs.

130. Beyond what I have thus far said, a judge's apparent courtesy and patience towards an ultimately unsuccessful litigant in the course of a trial might, just perhaps, conceal bias or a refusal in substance to give the litigant a full hearing. Such a conclusion might possibly be reached if the result of the proceeding was inexplicably adverse to the litigant. No such process of reasoning could apply in this case. His Honour's findings are unimpeachable. The evidence supporting the convictions was overwhelming. It pointed irresistibly to conclusions that on 30 May 2002, 1 June 2002, and between 7 June and 9 June 2002 the plaintiffs trespassed onto the land owned by Mrs Woodhouse and her brother, being that part of the land comprised in Certificate of Title Vol 6817 Folio 298 which faces onto Steels Creek Road; and that in the period 7 June to 9 June 2002, whilst on the land, they did much damage to a fence that had been erected along an alignment some metres north of the southern boundary thereof. The evidence also showed, irresistibly, that they did those things because over a period of years they had been consistently unwilling to accept the judgment of the County Court in 1997 in which that court had rejected a claim which they made for title by adverse possession to land including that land.

133. I should mention one other theoretically possible route to a conclusion that a calm and courteous judge had really been biased against an unsuccessful litigant. Just perhaps, such a conclusion might be reached if the punishment which the judge imposed bore no relationship at all to the crime of which the defendant had been convicted. If such a process of reasoning was possible, certainly it could not apply here. In my opinion the penalty which his Honour imposed was merciful. Notwithstanding the age of the plaintiffs, and the fact that no prior convictions were alleged against them, the nature of the offences, set in context, was such that, in my opinion, a much more severe penalty would not have been inappropriate.

136. In all, a factual basis for the plaintiffs' complaints as formulated by their Amended Originating Motion was wholly lacking. The plaintiffs were not denied a hearing. To the contrary, they received a very full hearing. It was not the less so because they sat in the first row of public seating in the course of their appeal. It was within the discretion of the learned judge whether to invite them to sit at the bar table, or agree that they should do so if they made such a request - concerning which I note that the videotape shows no evidence that any request was made. Nor again was the hearing accorded the plaintiffs anything less than full because, as they told me, security guards were present in court during the appeal. The videotape appeared to show a woman sitting several rows behind the plaintiffs. Nothing indicates that such person distracted the plaintiffs from conducting their case. If any other security personnel were in court during the appeal, they could not have been any closer to the plaintiffs than was the woman to whom I have just referred.

139. Next, no actual bias was demonstrated. To the contrary, the material placed before me showed that the learned judge heard and determined the plaintiffs' appeal with conspicuous fairness. There was no hint of prejudgment. Nothing suggests, contrary to Miss Ann Hodgson's assertion, that his Honour was "trying to phase [them] right out", by which, as I understand it, she meant that his Honour was trying to drive them off their land.[25]

142. Nor again were the circumstances disclosed by the material placed before me such as could call the concept of apprehended bias into play. In that connection the question is whether the circumstances were such that a fair-minded and informed member of the public might entertain a reasonable apprehension that the decision-maker might not bring an impartial and unprejudiced mind to the resolution of the issues before him; the question being one of possibility - real and not remote.[26] In this case no reasonably informed bystander could have had any such apprehension.

145. I wish to add this: in my opinion the proceeding lacked any merit. The way in which its character changed makes me suspicious whether either plaintiff had any belief in the truth of the raft of allegations which she made against the judge - both by affidavit and by statements from the bar table. It is, I think, noteworthy that Miss Ann Hodgson indicated an intention of appealing from his Honour's decision on the day that it was announced. The Originating Motion in its initial form had the appearance of an appeal. Only later did the form of the Originating Motion change, and did the affidavits focus upon the alleged misconduct of the learned judge. Moreover, some of the allegations made concerning language allegedly used by the judge could hardly, in my view, have been simple mistakes about what his Honour said. I make these observations though mindful of the possibility that persons obsessed with the rightness of a lost cause might sometimes hear, in relation to it, things which they want to hear rather than things which were said.

148. It follows from what I have said that the proceeding must be dismissed. I will hear the parties as to costs.

151. Also on the Court file is a Summons filed by the second defendant seeking an order that the originating motion be struck out under R 23.02. That Summons was the subject of orders on 9 February 2004 which led to the filing of the Amended Originating Motion and Summons thereon. It requires final disposition. I will simply strike it out.

[1] See Order 56 of Chapter 1 of the Rules.

[11] Paragraphs 4, 5, 7, 12, 13, 14, 17 and 18.

[19] Miss Ann Hodgson, T. 112-113; Miss Barbara Hodgson T. 113.

[22] See, generally, T. 155-7 (County Court proceeding).

[23] See, example, T. 31 line 31 to T.32 line 2 (County Court proceeding).

[24] See, for example, exhibits 1, 3 and 5 at the trial, exhibited to Mr El-Asmar's affidavit.

[25] See T 76 (County Court proceeding).

[26] See, recently, Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [6] - [7].