Plaintiff v BELL J

Supreme Court of Victoria|2007-09-13|Before: BELL J

CRIMINAL LAW - practice and procedure - self-represented litigant - application for leave to appeal out of time against decision of magistrate - judge of County Court of Victoria refused to grant leave - judge's duty to ensure fair trial by giving due assistance - nature and scope of duty - significance of International Covenant on Civil and Political Rights - significance of human rights of equality before the law and access to justice - judge failed to perform duty to assist - breach of rules of natural justice - test for granting leave - "exceptional circumstances" and prosecution not "materially prejudiced" - judge applied incorrect test of delay "too great" - jurisdiction not properly exercised - judicial review granted - order refusing leave quashed and matter remitted for reconsideration - Magistrates' Court Act 1989, Schedule 6, cl 1(1)-(3).

1 Milan Tomasevic had no legal background and was emotionally engaged in his case. But when he appeared before a judge of the County Court of Victoria, he represented himself. He sought leave to proceed with an appeal out of time in respect of criminal charges found proven by a magistrate. Danny Travaglini is the police informant who brought the criminal charges against Mr Tomasevic. He was represented by an experienced barrister instructed by a solicitor, who opposed leave.

2 Mr Tomasevic harboured a strong sense of grievance about the magistrate's decision. He contended the finding of guilt had occurred by reason of poor legal representation. He also contended he had abandoned an earlier appeal because the same lawyer had incorrectly told him his career as a teacher would not be affected.

3 The judge did not tell Mr Tomasevic, but the law governing the leave to proceed application required Mr Tomasevic to establish, one, that he had failed to appeal within time by reason of exceptional circumstances and, two, that the informant's case would not be materially prejudiced by the delay.

4 Mr Tomasevic did his best in what turned out to be a short hearing. The judge did not direct his attention - as a self-represented litigant - to the salient points of law and procedure. Counsel for the informant barely had to open his mouth. The judge, without mentioning either exceptional circumstances or the informant's case, refused the application. He just said the delay - three years - had been too great.

5 Mr Tomasevic now seeks judicial review of the judge's decision. He wants orders quashing the decision and remitting it back to the County Court for reconsideration.

6 This case both requires and deserves an analysis of the law with respect to the duty of a judge to ensure a fair trial by giving due assistance to a self-represented litigant, taking into account the fundamental human rights of equality before the law and access to justice specified in the International Covenant on Civil and Political Rights. We must go into some other matters first, beginning with the decision of the magistrate.

• three charges of making threats to kill (charges 1, 4 and 7)

• three charges of making threats to inflict serious injury (charges 2, 5 and 8)

• three charges of using threatening words in a public place (charges 3, 6 and 9)

8 The charges arose out of incidents alleged to have occurred at a school where Mr Tomasevic was a teacher. The background circumstances are rather unclear. From what I can gather, in 1999-2000 Mr Tomasevic had complained that another member of staff had misappropriated money. The school management considered Mr Tomasevic was medically unfit to teach and suspended him from duty or, as he put it, he took "sick leave without pay".

9 The incidents allegedly occurred in or near the school grounds in 2002 - as to charges 1, 2 and 3, on 28 February 2002; as to charges 4, 5 and 6, on 1 March 2002; and as to charges 7, 8 and 9, in the same general period. In respect of each alleged incident, three separate persons had reported Mr Tomasevic's conduct to the police.

10 Mr Tomasevic was to be represented at the hearing before the magistrate by a barrister who was familiar with his case. That barrister could not attend due to ill-health. No adjournment was sought. Mr Tomasevic was represented by a legal aid solicitor who took over the case on the day of the hearing.

11 The contested hearing before the magistrate went for one day on 22 May 2003.

12 The prosecutor called the three complainants. Each of them gave evidence to the magistrate about what Mr Tomasevic said and did on the three occasions. They were each cross-examined by the solicitor.

13 As to the incident on 1 March 2002, the transcript of the hearing reveals the solicitor challenged the complainant's version of what happened according to detailed instructions from Mr Tomasevic. It transpired that Mr Tomasevic had a tape recording of the incident, which the solicitor knew. Mr Tomasevic told me he asked the solicitor to use the recording in her cross-examination of a critical prosecution witness, but she said it was unnecessary. For whatever reason - and the solicitor may have had a forensic reason - she did not put the recording to that witness. When Mr Tomasevic gave evidence in his own defence, the solicitor attempted to elicit evidence of the recording from him. The magistrate refused to allow her to do so.

14 It is here necessary to make an important digression. I do not know the magistrate's reason for refusing to allow Mr Tomasevic to give the tape recording evidence, and this issue was not argued before me. But if, as appears to be the case, the reason was that, in breach of the rule in Browne v Dunn,[1] the recording had not been put to the prosecution witness, I have reached the clear view it was not correct. This certainly does not affect the outcome of the application before me. But in view of the significance of the point, I think I should give my reasons for reaching that conclusion.

15 As the authorities presently[2] stand, I think the rule in Browne v Dunn applies in a criminal trial in Victoria, with serious qualifications,[3] to oblige counsel for the defence, at least in the usual case, to put evidence intended to be given for the defence to the relevant prosecution witnesses.[4] This is the explanation of the rule recently given by the Court of Appeal in R v Demiri:

In the context of the cross-examination of a prosecution witness, the rule of law and practice is necessary to give the witness the opportunity to deal with such evidence - or such inferences as may be drawn from the evidence - as the accused proposes to rely upon and which contradict the testimony of the witness. Such a challenge to the witness's testimony is also essential to the jury's understanding of what facts are truly in issue. It enables the jury to make an assessment of the credibility of the witness in relation to those issues. [5]

16 But the consequences of the breach of the rule in a criminal trial have to be approached with considerable care. As stated by Gleeson CJ and Heydon J in MWJ v R:

The principle of fair conduct on the part of an advocate, stated in Browne v Dunn, is an important aspect of the adversarial system of justice. It has been held ... to apply in the administration of criminal justice, which, as well as being accusatorial, is adversarial... However, for reasons explained, for example, in R v Birks,[6] and R v Manunta,[7] it is a principle that may need to be applied with some care when considering the conduct of the defence at a criminal trial. Fairness ordinarily requires that if a challenge is to made to the evidence of a witness, the ground of the challenge be put to the witness in cross-examination. This requirement is accepted, and applied day by day, in criminal trials. However, the consequences of a failure to cross-examine on a certain issue may need to be considered in the light of the nature and course of the proceedings.[8]

17 The very basis of the rule calls for the application of that care: it is designed to give fairness to witnesses and to ensure a fair trial between the parties.[9] As Gleeson CJ said in R v Birks:

There are some obvious difficulties concerning the operation of the rule in criminal trials. The notion of fairness, whilst it has relevance to criminal as well as civil proceedings, may have a somewhat different practical content in a criminal trial. Furthermore an accused at a criminal trial may be unrepresented, and it would ordinarily be quite inappropriate to expect such a person to be bound by, and suffer the consequence of a breach of, what was originally described in the House of Lords as "a rule of professional practice". [10]

18 The fairness owed by a court to a self-represented accused in a criminal trial will attract our later attention.

19 In New South Wales, a trial judge has the power to do what the magistrate apparently did in the present case, namely to reject the admission of evidence of the party who did not comply with the rule in Browne v Dunn; that power is available to reject the evidence of an accused in a criminal trial[11] and, as an extremely abnormal step, of a party in a civil trial.[12] As has been pointed out, R v Schneidas (No 2)[13] is perhaps the only reported case of the exercise of this "exceptional" power in a criminal case.[14] Without ever doubting that the power can go that far, subsequent authorities in New South Wales have emphasised that the trial judge has to determine the consequences of a breach of the rule in a criminal case with due circumspection.[15]

20 In Victoria, McGarvie J in R v Allen[16] refused to follow R v Schneidas (No 2)[17] and held that a trial judge here does not have the power to refuse to admit defence evidence that, in a criminal trial, was not put to prosecution witnesses in accordance with the rule in Browne v Dunn. The decision in R v Allen was based in part on the influential decision of Newton J in Bulstrode v Trimble[18] in which his Honour decided the rule did not preclude a party, in any trial, from adducing and relying on evidence tendered in its breach.[19] I have found no decision of the Court of Appeal of this Court or the High Court on this point.

21 As I held in Shaw v Yarranova,[20] in the absence of a binding decision of the Court of Appeal or the High Court, it is the duty of a trial judge of this Court personally to determine the case before him or her. That responsibility is not performed where the judge fails to so determine the matter, preferring instead simply to follow an earlier decision on point of another member of the Court.

22 But, where there is an earlier decision of a single judge of this Court on point, the judge does not start writing on a blank page. Proper regard must be given to the previous judgment. Considerations of comity, and the interests of justice, require the previous decision to be followed unless the judge attains a higher than usual standard of conviction that his or her contrary conclusion is correct.

23 I take this rule of precedent to be well expressed by Burchett J in La Macchia v Minister for Primary Industries and Energy:

The doctrine of stare decisis does not, of course, compel the conclusion that a judge must always follow a decision of another judge of the same court. Even a decision of a single justice of the High Court exercising original jurisdiction, while "deserving of the closest and respectful consideration", does not make that demand upon a judge of this court: Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499 at 504. But the practice in England, and I think also in Australia, is that "a judge of first instance will as a matter of judicial comity usually follow the decision of another judge of first instance [scil of coordinate jurisdiction] unless he is convinced that the judgment was wrong": Halsbury, 4th ed, vol 26, para 580. The word "usually" indicates that the approach required is a flexible one, and the authorities illustrate that its application may be influenced, either towards or away from an acceptance of the earlier decision, by circumstances so various as to be difficult to comprehend within a single concise formulation of principle. (For example, it has been suggested that decisions upon the effect of sections of the Income Tax Assessment Act 1936 (Cth) present a special need for consistency: Rabinov v FCT 82 ATC 4517 at 4523.) Understood as expressing a usual or general rule, the following statement of Rogers J in Hamilton Island Enterprises Pty Ltd v FCT [1982] 1 NSWLR 113 at 119 is consistent with the proposition I have quoted from Halsbury:

"In my view it is of cardinal importance in the proper administration of justice that single judges of State Supreme Courts exercising federal jurisdiction should strive for uniformity in the interpretation of Commonwealth legislation. Unless I were of the view that the decision of another judge of coordinate authority was clearly wrong I would follow his decision." [21]

24 Thus, unless I am convinced that the decisions of McGarvie J and Newton J are clearly wrong, I should follow them.

25 With respect, I think R v Allen[22] and Bulstrode v Trimble[23] were correctly decided. In Victoria, a court cannot prevent the defence from giving otherwise admissible evidence, even if the rule in Browne v Dunn was not complied with. If the evidence is relevant to the determination of the charges brought against the accused, to exclude it would run counter to the court's fundamental obligation to ensure a fair trial.[24] A rule grounded in fairness can never be applied to produce a result so unfair as the exclusion of evidence going to the question whether a person is guilty or not guilty of a criminal charge. The court has ample discretionary power to address any unfairness to the prosecution case that might arise by reason of the admission of the evidence in such circumstances.[25] That power extends, in appropriate cases, to making comment on the failure of the defence to cross-examine on the evidence[26] and, more fundamentally, to allowing the recalling of the relevant witnesses or the calling of further evidence in reply.[27]

26 That completes the digression. I can now return to the main path.

27 So it was because the tape recording evidence was excluded that Mr Tomasevic feels strongly aggrieved about the hearing before the magistrate. I understand these feelings but, beyond saying what I have about the legal principles involved, it is not my function in this judicial review application to unravel the rights and wrongs of these matters. It was for this reason that I refused to allow Mr Tomasevic to call the solicitor who represented him as a witness in the proceeding before me.

28 The magistrate reserved her decision overnight. On 23 May 2003 she announced these findings:

• found proven: charges 4 (threatening to kill on 1 March 2002), 6 (using threatening words in a public place on that date) and 9 (the same charge in about the same period)

• found not proven and dismissed: charges 1, 2 3, 5, 7 and 8

29 The magistrate heard submissions on sentence from Mr Tomasevic's solicitor. She submitted he should not be convicted and the imposition of a bond would adequately dispose of the matters. Among other things, she further submitted Mr Tomasevic was under a great deal of stress at the time of the incidents as he was separated from his wife and children, was going through difficult Family Court proceedings and was taking medication for depression. She submitted the context of the incidents was his complaint that a fellow teacher had misappropriated money.

30 In sentencing Mr Tomasevic, the magistrate referred to his many problems and personal difficulties and the reasons why he was no longer working at the school. Her Honour said she accepted the context of the threats had been the dispute over the alleged missing money, but the charges - especially that of threatening to kill - were very serious. She said she would not convict Mr Tomasevic because -

you've got no prior convictions and your hopeful prospect is that you will be able to teach again ... I think the best thing is that you continue to see your doctor.

31 Her Honour found charges 4, 6 and 9 proven without conviction and adjourned the hearing until 21 May 2004. She released Mr Tomasevic on his own undertaking to be of good behaviour, not to commit any further offences, to attend his psychiatrist to receive counselling and treatment and to appear on the adjourned date if called on to do so. Clearly this was a merciful - and appropriately merciful - sentence.

32 Mr Tomasevic gave the undertakings asked of him. He told me he did so because he did not understand the findings of guilt and sentence could affect his future employment as a teacher. He said the legal aid solicitor advised him that his career would not be affected because he had not been convicted. He relied on this advice when he abandoned his appeal. He did not explain why, in the light of such advice, he appealed in the first place.

33 The Department of Education and Training later dismissed Mr Tomasevic from the government teaching service. He told me that, when he gave the undertakings and abandoned his appeal, he did not understand the findings and sentence could lead to this result. For reasons I will come to, I do not think they did. The Victorian Institute of Teaching is considering whether to cancel Mr Tomasevic's registration as a teacher. This matter, also, I will come to later. I fist have to deal with the abandoned appeal.

34 Clause 1(1) of Schedule 6 of the Magistrates' Court Act 1989 required an appeal to be brought within 30 days after the decision of the magistrate. By a notice dated 12 June 2003, some three weeks after the hearing before the magistrate and well within time, Mr Tomasevic appealed against her Honour's decision, both as to the findings of guilt and the sentence.

35 Clause 6(2) and (2A) of Schedule 6 allowed an appeal to be abandoned within the same 30 day period specified in clause 1(1). The records of the County Court reveal Mr Tomasevic abandoned his appeal before a deputy registrar on Monday 23 June 2003. Taking into account that the 30 day period expired on Sunday 22 June 2003, the abandonment was within time, as it took place on the next working day.[28]

36 The informant's solicitor has filed an affidavit in this Court that gives a very fair account of the proceeding before the judge. Mr Tomasevic took no issue with this account. It shows the judge asked Mr Tomasevic why he abandoned his appeal. He told the judge it was because the three charges were found proven without conviction and he was advised by his solicitor that his employment as a teacher would not be affected. This is consistent with what he has told me.

37 As to why he waited until July 2006 to try to reactivate his appeal, Mr Tomasevic told me it was only when the Victorian Institute of Teaching sent him a notice of formal hearing that he realised the findings and sentence could affect his employment. Section 28 of the Victorian Institute of Teaching Act 2001 requires the Institute to conduct an inquiry into the fitness to teach of any teacher convicted or found guilty of an indictable offence. Threatening to kill is an indictable offence. Part 4 of the Act contains a disciplinary regime which gives the Institute various powers of inquiry, including powers to conduct a formal hearing, which may lead to the cancellation of the registration of a teacher. The Institute's notice[29] was undated but it advised of a formal hearing on 16 and 17 March 2006. Mr Tomasevic said that, when he got the notice, he realised it had been a mistake to abandon the appeal.

38 The Institute's hearing was adjourned. Mr Tomasevic told me it remains adjourned pending the outcome of this judicial review application.

39 In the hearing before me, it became clear that two years earlier - in 2004 - the incident that gave rise to the magistrate's finding of guilt on the charge of threatening to kill was the subject of consideration at a hearing before a delegate under the Teaching Service Act 1981. Soon afterwards, Mr Tomasevic was dismissed from the government teaching service. That was only 12 months or so after the magistrate's decision and the alleged giving of the solicitor's advice. As we will now see, Mr Tomasevic used the hearing before the delegate to have the tape recording put to the particular complainant. But he has not explained why he did not try to reactivate his appeal at that time.

40 The matters discussed under this heading were not considered by the judge because they were not raised with him. They were raised only before me. As my view is that the judicial review application is to succeed, they may be considered by the judge of the County Court who hereafter reconsiders Mr Tomasevic's application.

41 On 8 June 2004, Mr Tomasevic appeared before a delegate in a hearing under s 45 of the Teaching Service Act. That section allows the Secretary to inquire into the fitness, capacity and efficiency of teachers (who are officers of the teaching service) to discharge their duties (sub-s (1)) and to dispense with their services if found to be unfit (sub-s (3)(e)).

42 I have in evidence a transcript of the hearing. The judge was not given that transcript. I do not have the decision of the delegate or her reasons. But Mr Tomasevic told me that on 3 October 2004 he was dismissed as a government teacher. He said this was because he was found not to be mentally fit, and his personality was not appropriate, to be a teacher. He told me it was not because of the criminal charges or the magistrate's findings and sentence. He has not been employed as a teacher ever since.

43 The transcript of the hearing shows evidence was given by the same person who gave evidence to the magistrate in respect of the incident that occurred on 1 March 2002 - the one involving the threat to kill charge that was found proven. It was this witness to whom the tape recording was not put in cross-examination by Mr Tomasevic's solicitor at the hearing before the magistrate.

44 This time, the recording was put to the witness by counsel for Mr Tomasevic. The circumstances were not ideal, for the witness gave evidence by telephone from his location in Norway. A written statement, the transcript of the hearing before the magistrate and the details of her Honour's findings and sentence were admitted into evidence by the delegate. The witness was cross-examined by counsel for Mr Tomasevic. The witness said Mr Tomasevic was excluded from teaching at the school because of issues related to an issue, possibly of mental illness. The tape recording was played to the witness, who said he could hear it with great difficulty.

45 The tape recording did not contain the threat to kill that the witness deposed was made by Mr Tomasevic. Counsel challenged the account of the witness on this basis. The witness strongly maintained his evidence. He said the recording was not complete and he had a clear recollection of what was said, which led him to record and report the matter at the first opportunity.

46 What occurred in this hearing may be relevant to whether Mr Tomasevic must have known in 2004 that the decision of the magistrate might affect his future employment as a teacher, if that is an issue in the reconsideration.

47 Mr Tomasevic's application for reinstatement of his abandoned appeal, or alternatively for leave to proceed with an appeal out of time, was lodged with the County Court on 13 June 2006. It was supported by an affidavit sworn by Mr Tomasevic. It had many attachments relating mainly to issues associated with his alleged unsatisfactory performance as a teacher.

48 The application was heard and determined by the judge on the same day. I infer that the hearing was pre-arranged, albeit on short notice, as the informant's counsel and solicitor were in attendance. I infer that, before coming onto the bench, the judge had Mr Tomasevic's affidavit and attachments, both because the hearing was pre-arranged and because his Honour's questions show he had some familiarity with the issues raised by the application.

49 The informant's solicitor's affidavit sufficiently describes what occurred, and what did not occur, at the hearing.

50 The judge told Mr Tomasevic he had to obtain leave to appeal out of time as he had abandoned his appeal. This was plainly correct, and Mr Tomasevic's application for judicial review must fail to the extent that it calls that matter into question. His Honour then made a number of other points to Mr Tomasevic about the application. His Honour then allowed him to respond. At one stage his Honour asked Mr Tomasevic to stop making speeches. The judge gave Mr Tomasevic the opportunity to explain why he had abandoned his earlier appeal and why he was applying for leave three years after the decision of the magistrate. As I have already noted, he said it was because he had been told the magistrate's findings of guilt without conviction and sentence would not affect his employment.

• acknowledge Mr Tomasevic was appearing without legal representation against an informant who was represented

• explain to Mr Tomasevic the procedure that would be followed

• explain to Mr Tomasevic the legal requirements he had to satisfy in order the obtain leave to appeal out of time, namely, that he had failed to apply within time by reason of exceptional circumstances and that the informant's case would not be materially affected; nor did his Honour invite submissions from Mr Tomasevic on those requirements

• explain to Mr Tomasevic how he might go about arguing his case or assist him to do so in any way

• when he told Mr Tomasevic to stop making speeches, go on to tell him what matters may be relevant to his application about which he could make submissions

• offer Mr Tomasevic an adjournment to obtain legal representation

• ask for elaboration of any of Mr Tomasevic's submissions

52 The solicitor's affidavit shows the hearing was short and the informant's counsel was called on to say very little. The judge said "the delay of three years was too great and that he would not get reinstatement or leave to appeal out of time." His Honour gave no other reasons.

53 The records of the County Court show that, on 13 July 2006, the judge refused to grant Mr Tomasevic's application for reinstatement of the appeal or leave to appeal out of time. He ordered that the application be struck out and that the orders of the magistrate on 23 May 2003 were to stand.[30]

54 The application for judicial review was made by an originating motion dated 12 September 2006 and a summons dated 13 September 2006. The application was made one day after the 60 days specified in the Supreme Court Rules.[31] With no opposition from the informant, I extend the time by that day.

55 This is an application for judicial review of a decision of a judge of the County Court. It is not an appeal from the decision of the judge. It is not part of my function to re-decide the application for reinstatement or leave on the merits. In the present case, the application can only succeed if Mr Tomasevic establishes that the judge made a jurisdictional error, an error of law on the face of the record or breached the rules of natural justice. I am confined to examining grounds that potentially fall into these categories.

56 As I have said, Mr Tomasevic is not a lawyer. But both in the originating motion and the hearing before me, he has done his best to express his grounds in an appropriate way. I think this is a reasonable summary:

• the judge did not perform his duty to give Mr Tomasevic, as a self-represented litigant, certain guidance and assistance and thereby breached the rules of natural justice

• the judge should have accepted Mr Tomasevic's reasons for delaying three years, which principally related to his solicitor's failure to cross-examine the witness on the tape recording and her poor advice that the decision of the magistrate would not affect his future employment as a teacher

• the judge ignored the fact that the impact of his decision on Mr Tomasevic would be catastrophic, as the formal hearing before the Institute will proceed and he may never be able to teach again

• the judge did not properly consider Mr Tomasevic's material, as he heard and determined the application on the same day

• the judge ignored the fact that Mr Tomasevic has a good case to run in the appeal, for he will be able to use the tape recording and certain other material to undermine the case against him

57 I think the application must succeed on two grounds of jurisdictional error: the judge applied the wrong test, and failed to perform his duty to give due assistance to Mr Tomasevic as a self-represented litigant, which breached the rules of natural justice. I do not need to consider the others.

58 The jurisdiction that the judge was exercising was the one conferred by cl 1(3)(a) and (b) of Schedule 6 of the Magistrates' Court Act 1989 to allow an appeal to proceed even though the notice of appeal was not given in time. By cl 1(1), a notice to appeal under s 83 and 84 of the Act must be given within 30 days after the decision of the magistrate. Mr Tomasevic's notice being three years out of time, the judge had to decide whether he was of the opinion that the failure to give the notice within the specified 30 day period was due to exceptional circumstances (par (a)) and whether he was satisfied that the informant's case would not be materially prejudiced by the delay (par (b)). The proper exercise of this jurisdiction required the judge to apply the correct test.[32]

59 When a judge is deciding whether, in his or her opinion, there are exceptional circumstances, it is the reasons for the failure to give the notice within the specified time that must be exceptional:

The sub-section requires one to look at the circumstances giving rise to the litigant's failure to appeal within time. If those circumstances can properly be characterised as exceptional then leave to appeal out of time will be granted. If they cannot, then leave will be refused.[33]

60 It follows that an application for leave to proceed with an appeal out of time can be granted whether the delay is short or long. In a case where the delay is short, leave to proceed may be more readily granted, for it may be easier to establish that the delay was due to exceptional circumstances, there being less of a delay to explain, and it being less likely that the informant's case will be materially prejudiced. In a case where the delay is long, leave to proceed may be more reluctantly granted, for it may be harder to establish that the delay was due to exceptional circumstances, there being more of a delay to explain, and it being more likely that the informant's case will be materially prejudiced. But in applying the statutory test, the focus must be on whether the failure to give the notice within the specified time was due to exceptional circumstances and on whether the informant's case will be materially prejudiced, not on whether the delay was short or long. It is an exceptional circumstances test, not a long delay test.

61 I have considered whether the judge, despite the language he used to express his conclusion, nonetheless applied the correct test. I think he did not.

62 I have to conclude from the solicitor's affidavit that the judge focused on the question of delay and not the reasons for it. His Honour did not mention the issue of material prejudice to the informant's case. He seems to me to have reasoned from the length of the delay - three years - to the conclusion that the application must be rejected. The judge should have considered whether he was of the opinion that the circumstances giving rise to the delay were exceptional, and whether he was satisfied that delay would not materially prejudice the informant's case, and decided the case on that basis. With respect, he appears to have given scant consideration to the reasons offered by Mr Tomasevic for the delay, which should have been given proper consideration against the correct statutory test. His Honour heard very little from counsel for the informant, whose submissions, I am confident, would have addressed the application of that test. I do not think the judge applied the exceptional circumstances test specified in the legislation. I think he applied a long delay test - whether it was "too late" to appeal.

63 I am not suggesting that the judge was bound to accept Mr Tomasevic's explanation for abandoning his appeal, and then appealing again three years later, as constituting exceptional circumstances. Indeed, some features of the explanation and his conduct over the relevant time period seem hard to reconcile. These matters will be for the judge conducting the reconsideration to assess, against the correct test.

64 The judge's failure to apply the correct test meant that he did not properly exercise the jurisdiction conferred by cl 1(3) of Schedule 6, which constituted a jurisdictional error. This ground of judicial review will therefore be upheld.

65 That brings me to the promised analysis of the duty of a trial judge to assist a self-represented litigant.

THE DUTY OF A TRIAL JUDGE TO ASSIST A SELF-REPRESENTED LITIGANT

The significance of the human rights of equality before the law and access to justice

66 Picture in your mind a deaf mute, sitting vulnerably in court while his case is being argued. The trial judge exercises his judicial discretion to direct that counsels' submissions not be interpreted. As any artist will tell you, things are very clear at the extremes. The Court of Appeal of New South Wales saw the injustice of this situation very clearly and ruled that the trial judge's discretion had miscarried.[34] In doing so, nearly twenty years ago, Kirby P and Samuels and Clarke JJA took into account the human rights specified in the International Covenant on Civil and Political Rights to which Australia is a party, including equality before the law[35] and access to justice,[36] and their offspring, the right to have an interpreter.[37]

67 Now the present case is not so clear, for Mr Tomasevic was not a deaf mute. But Mr Tomasevic was equally dependant on the trial judge to exercise his judicial powers to ensure his application was fairly heard, which required to the judge to give him due assistance as a self-represented litigant.

68 The right of every person to a fair criminal or civil trial, and the duty of every judge to ensure it, is deeply ingrained in the law. Expressed in traditional terms, the right is inherent in the rule of law - indeed, "in every system of law that makes any pretension to civilisation"[38] - and in the judicial process.[39] Expressed in modern human rights terms, the right to a fair trial is important for promoting and respecting equality before the law and access to justice.

69 The numerous human rights specified in the ICCPR, including equality before the law and access to justice, form the basis of the human rights set out in Part 2 of the Charter of Human Rights and Responsibilities Act 2006, which may be referred to, with a direct simplicity that only serves to emphasise its historic significance, as the Charter.[40]

70 The Charter does not affect any proceeding commenced or concluded before the commencement of Part 2,[41] which occurred on 1 January 2007.[42] Like the proceeding brought against the accused in the case before King J in R v Williams,[43] Mr Tomasevic's proceeding in the case before me was commenced before that date.[44] Just as the Charter did not affect King J's consideration of Mr Williams' application,[45] it does not affect my consideration of Mr Tomasevic's.

71 King J left open the important question of the extent to which, in cases to which the Charter applies, the courts are bound to apply the provisions of Part 2.[46] That question does not arise in the present case, for the Charter does not affect it. The question that does arise in the present case is whether, apart from the Charter, the ICCPR is relevant in any event.

72 Apart from the Charter, the ICCPR does not "operate as a direct source of individual rights and obligations"[47] because it has not otherwise been incorporated into Australian law.[48] But like other international instruments to which Australia is a party, the ICCPR has an independent and ongoing legal significance in Australian and therefore Victorian domestic law, a significance which is not diminished, but can only be enhanced, by the enactment of the Charter.

73 What is that significance? Subject to certain limitations and to an evolving extent, the ICCPR, and those other instruments, may at least inform the interpretation of statutes (so as to be consistent with[49] and not to abrogate[50] international obligations), the exercise of relevant statutory[51] and judicial[52] powers and discretions, the application and operation of the rules of natural justice,[53] the development of the common law[54] and judicial understanding of the value placed by contemporary society on fundamental human rights.[55] In this regard, I would endorse, with respect, the remarks of Maxwell P in Royal Women's Hospital v Medical Practitioners Board of Victoria[56] about the need to consider arguments based on Australia's international legal obligations in appropriate cases.

74 Therefore, even though the Charter does not affect my consideration of Mr Tomasevic's application for judicial review, I think the ICCPR does. To determine the application, it will necessary for me to identify what was required for the proper performance of the duty of the trial judge to ensure a fair trial by giving due assistance to Mr Tomasevic as a self-represented litigant. I think this should be done in terms that take into account the importance of that duty in promoting and respecting the fundamental human rights of equality before the law and access to justice which are specified in the ICCPR.

75 I could decide this case by reference only to the judge's duty to ensure a fair trial. If that is so, you might ask, why should I also refer to the human rights issues that the case raises?

76 I would answer that Australia may be an island geographically, but in international law terms, we are not. Australia has chosen to become a party to the ICCPR, and so has undertaken to promote and respect the human rights of equality before the law and access to justice, which are universal and fundamental. This case concerns the inherent duty of a judge to ensure a fair trial by giving due assistance to a self-represented litigant. It therefore raises issues of direct practical importance to the promotion and respect of those rights. The inherent duty to ensure a fair trial and the human rights of equality before the law and access to justice may be said to breathe the same air. Without impairing, indeed by asserting, the independence of our own law, judges can, and in my view should, act consistently with the international obligations specified in the ICCPR by accepting that, when appropriate, the exercise of relevant judicial powers and discretions, such as the duty to ensure a fair trial, can take into account the human rights specified in the ICCPR. That, I think, is the state and rationale of the current law. Of course the inherent duty to ensure a fair trial always remains the source of the binding law, but its nature is better understood, its function in the law is strengthened, its application is more penetrating and its capacity to evolve is enhanced once it is appreciated that its performance has an international dimension.

77 Now return, if you will, to that picture of the deaf mute in court, in which I see a metaphor. Without understanding legal language, how can self-represented litigants, who are vulnerable in ways I will now describe, really know what they have heard or what they should say?

The disadvantages suffered by self-represented litigants

78 The principle of the fair trial, and the human rights of equality before the law and access to justice, are not restricted to the purely formal idea, important though it is, that all people have an equal opportunity to appear before a court or tribunal. It was the French author Anatole France who captured the essential injustice of treating unequal people equally. He wrote that "the law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal bread."[57] In reality, the principle of the fair trial in its modern conception, and the human rights I have mentioned, recognise that people are not all equal in relevant respects, and that some suffer from particular disadvantages that impede their equal access to justice.

79 Take Mr Tomasevic, for example. When he stood before the judge in the present case, he was not poor, had not slept under a bridge and had not stolen bread. He was a trained teacher with a confident manner, a strong voice and a large grievance, and so was one kind of person among the great diversity of people who appear in the courts self-represented. But, to use the words of the Smith J in R v Nilson,[58] he was still in a position of "grave disadvantage." That was because he lacked two critical qualities possessed by competent lawyers: professional skill and ability, and objectivity. Mr Tomasevic's grave disadvantage was obvious in the proceeding before me. I do not think it would have been any different in the proceeding before the judge.

80 The Australian Institute of Judicial Administration has prepared a report to assist courts and tribunals in planning for the management of litigants in person.[59] It describes the disadvantages suffered by litigants who appear without representation in civil and criminal proceedings.

81 This is how the Institute describes the disadvantage that comes from a lack of professional skill and ability:

By definition litigants in person lack the skills and abilities usually associated with legal professionals. Most significantly, lack of knowledge of the relevant law almost inevitably leads to ignorance of the issues that are for curial resolution for the court or tribunal... This ranges from lack of knowledge of courtroom formalities, to a lack of knowledge of how the whole court process works from the initiation of a proceeding to hearing. Litigants in person also lack familiarity with the language and specialist vocabulary of legal proceedings.[60]

82 This is the disadvantage that comes from a lack of objectivity:

The problem of self-representation is not just a lack of legal skill - it is also a problem of a lack of objectivity and emotional distance from their case. Litigants in person are not in a good position to assess the merits of their claim ...[61]

83 I would adopt this description of the disadvantages suffered by self-represented litigants, for it is consistent with decisions of courts in Australia, in respect of both the lack of skill and ability[62] and the lack of objectivity,[63] and of courts overseas,[64] as well as my own experience.

84 None of this denies that some people appear self-represented by choice - one that the law respects. The rule is that, in the ordinary course of civil or criminal litigation, all natural persons have a right to appear unrepresented.[65] The right to defend yourself without legal representation in criminal proceedings is "fundamental" and should not be interfered with.[66] People who choose to defend themselves against criminal charges forfeit none of their legal rights, although they obtain no special advantages,[67] and their election to appear self-represented means the trial cannot be unfair on that ground.[68] A person who refuses or neglects to comply with the reasonable requirements of a legal aid authority cannot be said to be unable to obtain legal representation, and their trial without legal representation will also not be unfair on that ground.[69] The duty of a trial judge to ensure that the trial of a self-represented person is fair applies whether he or she has been unable to obtain legal representation or appears self-represented by their own choosing.[70]

85 But most people who appear self-represented do not do so by choice and, as we have seen, they are at a grave disadvantage. This gives rise to a potential injustice, the one identified by Anatole France, for how can it be said the law operates equally in such a situation? The law confronts this problem through the application of the overriding principle of the fair trial.

The overriding duty of a trial judge to ensure a fair trial

86 A trial judge has an overriding duty to ensure a fair trial. This emerges with crystal clarity and moral force from Dietrich v R.[71]

87 Mr Dietrich was convicted on serious criminal charges following a trial in the County Court of Victoria in which he was self-represented. All his attempts to obtain legal aid failed and the trial judge dismissed his application for an adjournment. The accused contended that he had a right to be provided with counsel at public expense or, alternatively, a right to a stay of the criminal proceeding. The High Court rejected the former but upheld the latter contention, holding a judge could stay a criminal proceeding which would result in an unfair trial, including one where legal representation was essential, as it was in most cases where the alleged offence was serious. The Court held that the "right of an accused to receive a fair trial according to law is a fundamental element of our criminal justice system."[72] Deane and Gaudron JJ made clear the requirement for a "fair trial" went further than a trial "according to law". To Deane J, the requirement -

transcends the content of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law.[73]

To Gaudron J, fairness was an "overriding qualification and universal criterion".[74] This is her Honour's development of that proposition:

The requirement of fairness is not only independent, it is intrinsic and inherent. According to our legal theory and subject to statutory provisions or other considerations bearing on the powers of an inferior court or a court of limited jurisdiction, the power to prevent injustice in legal proceedings is necessary and, for that reason, there inheres in the courts such powers as are necessary to ensure that justice is done in every case. Thus, every judge in every criminal trial has all powers necessary or expedient to prevent unfairness in the trial. Of course, particular powers serving the same end may be conferred by statute or confirmed by rules of court.[75]

88 What is required to produce a fair trial depends on the circumstances. In some cases it may be necessary to have interpreters, acceptable custodial facilities or a special court venue.[76] In other cases, evidence may have to be excluded because of its unfair prejudicial effect[77] or an adjournment granted to allow pre-trial publicity to abate. This list is far from exhaustive and the categories are not closed. Indeed "the practical content of the requirement that a criminal trial be fair may vary with changing social standards and circumstances."[78] The general principle is that the courts possess all the necessary powers to ensure a fair trial,[79] one aspect of which is the power to give assistance to a litigant in person.

The trial judge's duty to assist self-represented litigants

89 As part of their overriding obligation to ensure a fair trial, trial judges have a positive duty to give proper assistance to self-represented litigants,[80] both in criminal[81] and civil[82] trials and also in interlocutory proceedings, such as in applications to strike out pleadings.[83] The same duty applies to masters,[84] magistrates,[85] commissions[86] and tribunals,[87] but of course the application of the duty would have to take into account the particular demands of those jurisdictions. The duty applies even when all the parties are litigants in person.[88] The general principles were clearly expounded in MacPherson v R.[89]

90 As a self-represented accused, Mr MacPherson was tried for murder. He put to the police in cross-examination that his alleged confession had been extracted with threats. The trial judge did not inform him of his right to have the voluntary nature of the confession determined in a voir dire in the absence of the jury, and he did not conduct a voir dire. The accused was convicted. The High Court upheld the appeal, quashed the conviction and ordered a retrial. It held the trial judge should have informed the accused of his rights and held a voir dire.

91 The High Court held that it was the duty of the judge "to ensure that the trial is conducted fairly and in accordance with law".[90] Where the accused is self-represented, this necessarily involves giving some explanation to him or her. A judge who did so would not thereby become the accused's advocate but "would be performing his duty as a judge by informing the accused of his rights in relation to the conduct of the trial."[91] Nor did this mean the judge had to advise the accused about how his or her rights should be exercised. The judge had to put the accused in the position of being able to make an effective choice,[92] a duty which applies even "giving full weight to the adversary character of a criminal trial".[93] A trial was not fair if the judge failed to perform this duty in a fundamental respect.[94]

92 Importantly, the High Court held that the duty of the judge to provide assistance to a self-represented accused was bounded only by the requirements of fairness. Consequently, there was -

no limited category of matters regarding which a judge must advise an unrepresented accused - the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial.[95]

93 Dietrich v R[96] was decided after MacPherson v R,[97] but did not alter the principles expounded in that case. As Dietrich was concerned with the right (found not to exist) of an accused to legal aid and the right (found to exist) of the court to stay a trial of serious criminal charges against an unrepresented accused, the judgments tended to emphasise the institutional limitations on the capacity of the judge to assist such an accused. Thus a number of judges pointed to the difficulties faced by any trial judge who tried to extend a "helping hand" to a self-represented accused, for the role of the trial judge is fundamentally different to that of defence counsel.[98]

94 Nonetheless, the duty of the trial judge to provide appropriate advice and assistance, expounded in MacPherson, was acknowledged in Dietrich. For example, Brennan J, who dissented in the result but not on the law, said this: "Where an accused person is unrepresented, a particular burden is placed on the trial judge to ensure that the trial is fair."[99] Deane J referred to the balancing efforts of the trial judge.[100] Dawson J said the trial judge could give "limited" assistance to the accused, but its effect should be to address an imbalance "as far as possible".[101] Toohey J was to similar effect.[102] The premise of the decision in Dietrich, which will assume later significance in this judgment, was that, in the case of a self-represented accused facing serious criminal charges, it was not usually possible for a judge to ensure a fair trial, even when he or she performed the duty to assist, given the limitations on the nature of the assistance that might be given. It was for this reason that the High Court held that such a trial could be stayed.

95 The courts now frequently refer to their "duty" or "obligation" in relation to self-represented litigants. This is usually defined in terms that require the impartial function of the judge to be preserved, while also requiring the judge to intervene where this is necessary to ensure the trial is fair and just.[103]

96 The scope of the duty gives rise to a judge's dilemma. That is my next subject.

The scope of the duty to assist and the judge's dilemma

97 I will begin with the scope of the duty, which can be discerned from the decided cases, beginning with Abram v Bank of New Zealand,[104] a sensible decision in a civil case which has been influential.

98 Mr and Mrs Abram sued the Bank of New Zealand in commercial litigation in the Federal Court of Australia. Mr Abram represented himself and his wife. The trial judge applied the law as stated by the High Court in Neil v Nott[105] that "the court must assume the burden of endeavouring to ascertain the rights of parties that are obfuscated by their own advocacy." The judge said this required him to endeavour to ascertain the true character of Mr and Mrs Abram's legal claims. When his Honour dismissed these claims, they appealed to the Full Court on the ground, among other things, that he had failed in his duty to assist them as litigants in person.

99 This oft-cited passage from the judgment of the Full Court still represents the law:

What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant's intelligence and understanding of the case.[106]

Their Honours referred to the finding of the trial judge that Mr Abram was a quick and intelligent man and decided that he needed no more assistance than what the judge provided.[107]

100 Abram has been followed on many occasions. For example, in Microsoft Corporation v Ezy Loans Pty Ltd[108] it was held that the nature of an order necessary to maintain the balance between represented and self-represented parties varies -

from case to case and requires some assessment of the difficulties confronting the individual litigant, the litigant's intelligence and his or her understanding of the case.[109]

Here is what Debelle J said in Pezos v Police:[110]

The individual circumstances of each unrepresented litigant will have to be considered, as well as the nature of the issues, if not also the demands, of each case.[111]

101 And so I think the position here may be compared with that in Canada, as to which, in A (JM) v Winnipeg Child & Family Services,[112] Scott CJM, speaking for the Manitoba Court of Appeal, said simply this:

[F]airness and balance are the touchstones to enable justice to be done to all parties.[113]

102 Two cases illustrate the application of the principles expounded in MacPherson v R[114] in the criminal law context. They are R v Gidley[115] and R v Zorad.[116] Both are decisions of the New South Wales Court of Criminal Appeal.

103 In R v Gidley[117] the accused was found guilty of two counts of murder. He tendered a diary which, on appeal, he said contained prejudicial material. But the trial judge had fully informed him of his rights in respect to the tender - specifically, that it would not come before the jury unless he tendered it. The accused chose to proceed.

104 The Court of Criminal Appeal held that the trial judge had performed his duty "to ensure that every accused has a fair trial".[118] The accused being self-represented, the judge had given him "such information and advice concerning his rights as is necessary to put him in a position where he can make an effective choice whether he should exercise those rights".[119] His Honour could not and did not advise the accused "either that he should exercise those rights or how he should conduct his case."[120]

105 In R v Zorad[121] the Court of Criminal Appeal considered the nature of the advice and information that the judge might be required to give to ensure that a trial was fair to a self-represented accused. It held that, where necessary, the judge might need to give information and advice about the form of questions to be put in cross-examination, the accused's right to raise before the jury, the voluntariness of a confession and the existence of the rule in Browne v Dunn.[122]

106 The Court held that the right to appear self-represented was fundamental and that the accused should suffer no disadvantage from exercising this right.[123]

107 The case that brought attention to the judge's dilemma is Minogue v Human Rights and Equal Opportunity Commission [124] a decision of the Full Court of the Federal Court of Australia.

108 Mr Minogue was convicted of the murder of a policewoman by exploding a bomb outside the Russell Street Police Headquarters in Melbourne. He was sentenced to life imprisonment with a minimum term of 30 years. He complained to the Human Rights and Equal Opportunity Commission that the prison authorities were impeding his efforts to prepare a petition of mercy, which he contended infringed his rights under the ICCPR.

109 The Commission decided it had no jurisdiction to entertain Mr Minogue's complaint, which he challenged by way of judicial review in the Federal Court of Australia. The trial judge dismissed the application. Mr Minogue was self-represented, but the judge granted leave to a legally represented intervener who supported most of his case. One of his grounds of appeal was that the judge had not adequately assisted him.

110 The Full Court[125] dismissed the appeal. On the issue of Mr Minogue being self-represented, it held that the general principles governing the role of a judge in civil proceedings involving a litigant in person were stated by the New South Wales Court of Criminal Appeal Rajski v Scitec Corporation Pty Ltd.[126]

111 Rajski is unreported, so I will set out the relevant passages from the judgments here. Samuels JA said this:

In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent ... At all events, the absence of legal representation on one side ought not to induce a court to deprive the other side of one jot of its lawful entitlement ... An unrepresented party is as much subject to the rules as any other litigant. The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts. But it must see that the rules are obeyed, subject to any proper exceptions. To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent.[127]

112 Mahoney JA made these observations on the same subject:

Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.[128]

113 Returning to Minogue, the Full Court dealt with the tension between the duty of the trial judge to ensure a fair trial and to maintain the appearance of impartiality, which they called the judge's dilemma:

A trial judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation: Burwood Municipal Council v Harvey (1995) 86 LGERA 389 at 397 (NSW CA), per Kirby P. However, the boundaries of legitimate intervention are flexible and will be influenced by the need for intervention to ensure a fair and just trial: Panagopoulos v Southern Healthcare Network (unreported, Supreme Court, Vic, Smith J, 15 September 1997) at 6.[129]

114 In the case before the trial judge, the matter turned entirely on issues of law. Mr Minogue's submissions to the Full Court seemed to be presented on the basis that it was the trial judge's responsibility to conduct his case for him. The Full Court held that it was not the trial judge's role to do so, and the trial was not unfair by reason of a self-represented litigant being required to make submissions on issues of law.

115 The decision in Minogue has been frequently followed, including in the Full Court of the Federal Court of Australia[130] and the Supreme Courts of Western Australia,[131] New South Wales[132] and South Australia.[133] I would endorse it here.

116 As we saw, in Minogue the Full Court referred to Panagopoulos v Southern Healthcare Network,[134] which Smith J decided in this Court in 1997. I think this is an important decision that deserves close attention. It demonstrates the difficulties involved in reconciling the judge's duty to provide a fair trial and at the same time maintain the reality and appearance of impartiality. It also shows how this dilemma might be resolved.

117 Miss Panagopoulos sought damages against the Southern Healthcare Network for negligence allegedly suffered during her birth in 1971. Being severely intellectually disabled, she was represented by her father (who sued as her next friend) and one of his friends, neither of whom had any forensic or medical training. The hospital was represented by a fully resourced legal team headed by a Queen's Counsel.

118 In conducting the trial, Smith J explained all of the necessary procedural points to Mr Panagopoulos. He also went further and actively questioned the medical witnesses. The hospital contended that his Honour overstepped the mark and submitted he should disqualify himself on grounds of apprehended bias.

119 Smith J acknowledged it was necessary to balance the assistance given to a litigant in person with the need to maintain the fact and appearance of judicial neutrality, as emphasised by Kirby P in Burwood Municipal Council v Harvey.[135] His Honour found that, in the circumstances of the case before him, the imbalance in representation between the parties created a situation of unfairness that would seriously compromise the reality and appearance of justice in the trial.[136] He held that, to ensure a fair and just trial was conducted, it was necessary for him to make appropriate interventions, including asking questions of witnesses.[137] On reconciling the duty to provide a fair trial with the obligation to maintain the appearance of impartiality, his Honour said this:

In my view, however, the need to preserve the appearance of neutrality should be seen as marking the boundary for judicial intervention. It is a boundary that is flexible and its location will be affected by the circumstances of the case. It will be affected by the extent to which a judge needs, and may properly be seen to need, to intervene to ensure a fair and just trial.[138]

120 His Honour noted that the law relating to apprehended bias was intended to serve the fundamental principle that justice must be done and be seen to be done.[139] He held the question to be determined was whether the nature and extent of the questioning might give rise to a reasonable apprehension of bias in the mind of a properly informed fair minded person.[140] His Honour attributed to the fair minded person an awareness of the features of the trial before him that made it necessary for him to intervene in the manner that he had.[141] He held a fair minded person, considering the manner objectively, would appreciate that, in these circumstances, it was necessary for the judge to so intervene to ensure a fair and just trial.[142]

121 Another case that illustrates how heavy the burden on the trial judge can be, and how the burden might be carried, is Mentyn v Law Society of Tasmania[143] which, like Panagopoulos, was a disqualification case.

122 The proceeding before Slicer J had a tortuous history. The disqualification application arose as a preliminary to the hearing of an application by the Law Society of Tasmania for further and better particulars of Mr and Mrs Mentyn's claim for damages. Slicer J had given guidance to the self-represented parties on a number of occasions. The Society alleged his Honour had overstepped the mark.

123 The judgment of Slicer J contains an illuminating discussion of difficult issues that may arise from the application of modern methods of case-management, which are judge-driven, when one of the parties is self-represented.[144] It also contains a refreshingly honest discussion of the difficulties involved in affording equal justice to litigants in person in a legal system where litigation is operated along adversarial lines.

124 The application for disqualification was dismissed. Slicer J, like Smith J in Panagopoulos, held that a fair minded observer would not reasonably apprehend that his Honour was biased by reason of extending such assistance to the self-represented parties as was necessary for ensuring a fair and just trial.[145]

125 A Canadian case provides a further useful illustration of how the problem of alleged bias should be approached.

126 In Barrett v Layton[146] the defendant in a civil action was self-represented at trial. At the outset, the judge summarised the procedure that would be followed. In running, the judge also drew the defendant's attention to certain issues, covered in her lawyer-prepared statement of defence, which she missed when she cross-examined the defendant's witnesses and gave her own evidence. One the issues was laches.[147] When the judge started to explain the concept of laches to the defendant, counsel for the plaintiff moved for a mistrial on grounds of judicial bias.

127 The judge, J Macdonald J, dismissed the motion, holding that giving the assistance did not mean the judge had assumed the role of counsel, had not undermined the role of counsel for the represented party and had not created the appearance of judicial bias.[148] On this last point, the judge said this:

I conclude that reasonable and right-minded persons, properly informed respecting the requirement of a fair trial and properly informed that trial fairness includes trial on the merits, and also cognizant of both the duty of the trial judge to ensure trial fairness and the right of the trial judge to elicit relevant evidence, if justice requires that, would not think that the steps taken to ensure a fair hearing are decisional steps.[149]

128 Thus it is the function of a judge to find facts on the basis of the evidence so that the legal claim (or prosecution) can be determined on its merits, that is, its merits as revealed by a fair trial, which the judge cannot be criticised for properly bringing about.[150]

129 I said I would return to Dietrich v R[151] and it is here that I should do so. There is no doubt that, in either a criminal or civil case, the judge cannot become the advocate of a self-represented litigant, and must maintain the reality and appearance of judicial neutrality. But we have seen that the judge's overriding duty is to ensure a fair trial, that being the only trial that a judge can judicially conduct. If the judge considered that a self-represented litigant fairly needed assistance of a certain kind which, in the view of the judge, could not be given without forfeiting the reality or appearance of impartiality, the judge's dilemma would be transformed into a crisis. This would not arise unless the judge was definitely of that view, which would not be reached lightly, remembering the rule against bias is applied sensibly in such a case, as in Panagopoulos,[152] Mentyn[153] and Barrett,[154] as well as in Re F: Litigants in Person Guidelines,[155] a decision of the Full Court of the Family Court of Australia. But if that point was to be unavoidably reached, I am unable to see how the case could continue, for the logic of the decision in Dietrich would seem to demand that result. But the result would be surely be intolerable in many cases, for it would represent a catastrophic system failure, which we must strain to avoid. This only underscores the importance of finding practical and principled solutions to the problems involved in judges giving necessary assistance to self-represented litigants.

130 The duty to assist may extend to issues of law as well as procedure, as the Victorian Court of Appeal has made clear. In R v White[156] the accused was being tried for conspiracy to commit armed robbery. He sought to rely on the defence of mental impairment. He was self-represented and gave the jury an account of his extensive criminal history, criminal activities and uncharged criminal acts. The judge did not warn the accused about the prejudicial consequences of giving this evidence, nor did his Honour warn the jury that the evidence could only be used on the issue of mental impairment. The appeal against the jury's verdict of guilty was upheld.

131 Following Dietrich v R[157] and MacPherson v R,[158] Chernov JA held "it is the duty of the judge to ensure that the accused is not subjected to a trial that is unfair."[159] The judge must refrain from becoming an advocate for a self-represented accused.[160] But the judge -

must ensure that the accused is fully aware of the legal position in relation to the substantive and procedural aspects of the case without effectively advising him or her of what course should be followed.[161]

Chernov JA held the extent of the trial judge's duty to inform the accused depended on the circumstances, as to which his Honour noted a trend toward greater judicial intervention.[162] Charles and Eames JJA agreed with Chernov JA.[163]

132 Along with Debelle J in Pezos v Police,[164] I would notice that the formulation of Chernov JA, which represents the current law in this State, extends to giving assistance about "the legal position as to the substantive and procedural issues in the case".[165] With respect, I think this formulation is entirely consistent with the High Court authorities on which his Honour relied, as well as decisions of the Full Court of the Family Court of Australia.[166] It also reflects the position in Canada, where a trial judge is obliged to direct the attention of a self-represented litigant to the "salient points of law and procedure."[167] Bongiorno J followed the same approach in Zegarac v Tomasevic.[168]

133 Courts and judicial organisations have, with respect, rightly acknowledged the need to do more to ensure a fair trial, and equality before the law and access to justice, for self-represented litigants. A variety of approaches have been adopted to address that need.[169] The Full Court of the Family Court of Australia has enunciated guidelines on how this can be achieved through the proper performance of the judge's duty to assist self-represented litigants, which is of direct relevance to the application before me.

134 The case in which the guidelines were first stated was In the Marriage of N and ML Johnson.[170] In this case the wife was represented and the husband appeared in person. The trial judge allowed a witness to be interposed prior to the conclusion of the wife's evidence. His Honour did not explain the consequences of allowing interposition to the husband and refused his later application to recall the witness. The witness's evidence was important to the outcome of the case. The Full Court held the judge had failed to afford the husband procedural fairness and enunciated detailed guidelines for application by trial judges in future cases.

135 The guidelines were revised by the Full Court in Re F: Litigants in Person Guidelines.[171] The facts are not material. The revision dealt with a number of topics, including the giving of advice or information on matters of law. After citing the passage in the judgment in Minogue v Human Rights and Equal Opportunity Commission,[172] the Full Court acknowledged the need for the Court to maintain impartiality, but emphasised the significance of providing a fair trial.[173]

136 These are the revised guidelines enunciated in Re F: Litigants in Person Guidelines:

(1) A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial.

(2) A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses.

(3) A judge should explain to the litigant in person any procedures relevant to the litigation.

(4) A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation.

(5) If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course.

(6) A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise.

(7) If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights.

(8) A judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated: Neil v Nott [1994] HCA 23; (1994) 121 ALR 148 at 150.

(9) Where the interests of justice and the circumstances of the case require it, a judge may:

draw attention to the law applied by the court in determining issues before it;
question witnesses;
identify applications or submissions which ought to be

suggest procedural steps that may be taken by a party;
clarify the particulars of the orders sought by a litigant

The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.[174]

137 These guidelines have been cited with approval by courts in a number of Australian jurisdictions, including the Federal Court of Australia[175] and the Supreme Courts of Victoria,[176] Tasmania[177] and South Australia.[178] I too think they give useful guidance on how the duty of the trial judge might be performed. But of course, they are guidelines, not grooves in which the performance of the duty must run.

138 On the basis of this analysis, I think I can summarise the law as it currently stands.

139 Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is inherent in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.

140 Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.

At a glance

Court

Decision date

Before

Source

Judgment (370 paragraphs)

Parties

Legislation Cited (40)

Cases Cited (56)