Plaintiff v Defendants

Plaintiff v Defendants - [2011] VSC 67 - VSC 2011 case summary — Zoe

[18]

8 I put to Mr Burnside that the longstanding decision of the High Court in Parisienne Basket Shoes Pty Ltd v Whyte,[14] and cases which have followed Parisienne, might stand in the way of the proposition that factual error (however egregious) by a State inferior court in the course of determining a criminal charge could amount to jurisdictional error. In Parisienne, an appeal from Victoria, it was held that the justices before whom an information came for hearing had jurisdiction to determine whether it was laid within the statutory period or not; that if they made an erroneous decision in doing so, they were still acting within the limits of their jurisdiction; and that, accordingly, prohibition would not lie. Mr Burnside's attention having then been drawn to certain passages in the recent judgment of the High Court in Kirk v Industrial Court of New South Wales,[15] he submitted that some of the observations which had been made in Parisienne were difficult to reconcile with Kirk and probably should be read down accordingly.[16] At one stage Mr Burnside flirted with the idea of submitting, in reliance on Kirk,[17] that upon judicial review the Supreme Court could step into the shoes of the inferior court and decide the facts and merits of the criminal case de novo for itself,[18] but Mr Burnside ultimately retreated from this.[19] Indeed he conceded at another stage that,[20] so far as any relationship between defective fact-finding and jurisdictional error is concerned, the test applicable to inferior courts could not be stricter than the test applicable to administrative tribunals.[21] That in turn led to a discussion of the subsequent judgment of the High Court in Minister for Immigration and Citizenship v SZMDS.[22] That case concerned a decision of the Refugee Review Tribunal established under the Migration Act 1958 (Cth). The respondent contended that the Tribunal had fallen into jurisdictional error in determining that it was not "satisfied", for the purposes of s 65 of the Act, that he was a person to whom Australia owed protection obligations. The respondent contended that the Tribunal had reached a certain important factual conclusion by an illogical or irrational process of reasoning. In that context, Gummow A-CJ and Kiefel J held that a decision will be infected with jurisdictional error when a condition precedent to the discharge of an obligation is a state of satisfaction and that state of satisfaction was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. [23] Crennan and Bell JJ expressed themselves similarly, although they added that, in the context of the Tribunal's decision, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean that the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. [24] They said that "the correct approach is to ask whether it was open to the Tribunal to engage in the process of reasoning in which it did engage and to make the findings of fact it did make on the material before it". [25] They also said that a decision "might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn". [26]

[42]

The first and second respondents contended that the Tribunal's treatment of the facts, more particularly the letters, was arbitrary, capricious, irrational and unreasonable, and accordingly was inconsistent with the Tribunal's statutory duty to review. It was submitted that the Federal Court's findings of irrationality, unreasonableness (without describing it as such) and a constructive failure to exercise jurisdiction were wholly consistent with the accepted principles governing judicial review.
The Minister contended that the weight to be accorded to the letters, and the factual matters to which they gave rise, were entirely matters for the Tribunal as they concerned the merits of the application. It was submitted that the Federal Court employed the language of 'proper, genuine and realistic consideration' to register the Court's response to a weighing of the evidence with which the Court disagreed. This, it was said, does not amount to jurisdictional error of the kind discussed by this Court in Minister for Immigration and Citizenship v SZMDS.
The Minister's submissions on the letters issue must be accepted as on a fair reading of the whole of the Tribunal's decision, when the Tribunal said that it gave the letters 'no weight' it was referring to the fact that it did not accept the letters as evidencing that the first respondent was in some danger from the Maoists in Kathmandu. This was in large part because of social and political changes which had occurred since the letters were written. The evidence given by the first respondent, including his evidence about the effect of those changes, undermined his claim of political and social activism, thereby contradicting the support which the letters gave to his assertion that Maoists were continuing to pursue him in Kathmandu. The weighing of various pieces of evidence is a matter for the Tribunal.
It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it. In referring to 'any rational, reasonable approach to the evaluation' and the need for 'a proper, genuine or realistic evaluation' of the letters, the Federal Court was registering emphatic disagreement with the Tribunal's assessment of the factual matters to which the letters were relevant. It appears the Federal Court would have weighed the letters differently which seems to suggest that, on the basis of the letters, the Federal Court would have been satisfied that Maoists were pursuing the first respondent in Kathmandu. When employing the formula 'proper, genuine and realistic evaluation' in respect of the letters, the Federal Court did not appear to consider that one of the matters against which the Tribunal weighed the letters was the first respondent's evidence of the effects of social and political changes in Nepal.
Whether the letters were 'highly supportive' or 'powerfully corroborative' (as they appeared to the Federal Court) of the first respondent's claim that Maoists were pursuing him in Kathmandu was a question upon which reasonable minds might come to different conclusions. The Tribunal's preference for other evidence, including the first respondent's own evidence about numerous matters, including the effect of social and political changes from, and since, 2006, over the evidence of the letters written during the first half of 2006, could not be said to constitute a failure to take into account a relevant consideration as canvassed in Peko-Wallsend or Yusuf's case. Nor could it be said to be a failure to respond to a substantial argument thereby giving rise to the kind of error identified in Dranichnikov v Minister for Immigration and Multicultural Affairs.
The conclusion that the Tribunal erred in giving 'no weight' to the letters, with the implication that it should have given different, presumably determinative, weight to them, depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions.
Further, the Federal Court's conclusion that the Tribunal erred in this way did not, in the light of the whole of the evidence, require the further conclusion that the result in the Tribunal was manifestly irrational or unreasonable. Nor did it support a finding of any other failure which might be characterised as jurisdictional error.
As to the Tribunal's use of the expression 'baseless tactic' set out above, considered in context, the expression was no more than an indication by the Tribunal that it did not accept the first respondent's evidence that he was at risk of being targeted by Maoists in Kathmandu, as a teacher, particularly as his reference to being a teacher was in response to being alerted to the contradictory effect of his own evidence that people who used to be in hiding from Maoists are now living out in the open. It was for that reason that the Tribunal described the giving of this answer as a 'tactic'. It is clear from the entirety of the Tribunal's reasons that the Tribunal accepted that the first respondent had been a teacher. What the Tribunal considered 'baseless' was the first respondent's claim that being a teacher in Kathmandu would attract the attention of the Maoists.
No doubt the Tribunal might have used a simpler expression to convey its evaluation of the answer given by the first respondent to the Tribunal's query as to why he could not, like his brother, live safely in Kathmandu. Nevertheless, the evaluation of that answer was a matter for the Tribunal. Irrespective of the use of the expression 'baseless tactic', the Tribunal did not accept 'that the [first and second respondents] left Gulmi for Kathmandu, and then for Australia, or seeks [sic] to remain here, because the Maoists were and are searching for them'. Further, the Tribunal was 'satisfied that both the [first and second respondents] can safely and practically join the rest of their family residing in Kathmandu'. The Federal Court's disapproval of the Tribunal's use of the expression 'baseless tactic' did not reveal that these conclusions had no basis in, or were contrary to, the evidentiary material before the Tribunal.
Understood correctly, the Tribunal's use of the expression 'baseless tactic' did not give rise to any jurisdictional error."

[55]

"In this matter the respondent seeks that I should seek an inference to (sic) the appellant arising out of what was found when his premises was the subject of a raid on the 23rd of April 2007. In the course of cross examination, and to some extent his own evidence, the appellant has suggested that he was not the sole occupant of his premises at the time of the raid. In my opinion he was extraordinarily vague about the identity or existence of any other occupant at the time. In any event, the vast majority of the evidence found at the premises was found in the bedroom, he concedes that he occupied. The question is really whether the material that was admitted by that of the informant (sic), respondent at the occasion of that visit and search of that premises requires me to draw an inference adverse to the appellant that it was in his possession for the purpose of causing damage. A number of the items that have been identified were potentially consistent with his claimed interest in other artwork that I can accept. However in my opinion, the inference to be drawn from the evidence overall is overwhelming, when one combines: the magazines that were found in his room, the apparent topic of those magazines, the number of spray cans that were found in the garage, the number of nibs, which I assume come from used spray cans in the past, the sketches found in the bedroom. Were (sic), despite his denial, were there with the knowledge of the appellant and the material overall, in my opinion the only conclusion is overwhelming. And that is the material was intended for the purpose of causing damage namely graffiti as I call it graffiting, of whatever items the to be the subject of the appellants intent at the time (sic). In my opinion, the appellant gave his evidence in a most un convincing way I found him difficult to accept and in fact do not accept his evidence. In my opinion the inference to be drawn as a whole is as I have said overwhelming. I have no doubt that it was in his possession, I have no doubt that at least in substantial part it was for the purpose of causing damage. Namely the application of those spray paints to items where it was not welcome. And in my opinion the charge is made out."

[65]

38 Judge Duggan was entitled to consider that the possession of 250-300 cans of spray paint and a set of bolt cutters, together with six magazines and other literature about graffiti and Hitachi trains and also numerous torn up sketches of graffiti tags, called for an explanation. Mr Rees and his then counsel apparently thought so too. I put to Mr Burnside that the very nature of the items the subject of a charge under s 199 of the Crimes Act 1958 might, even apart from any additional material in the possession of the accused, be important in identifying the accused's purpose, and that the 250-300 cans of spray paint would be in that category.[70] Mr Burnside replied that, if his client had not given any evidence about a legitimate purpose for having them, he would agree with that reasoning.[71] The plaintiff did give evidence, but his evidence as a whole (save as to one or two uncontroversial matters) was simply not accepted. Even if his evidence had truly been uncontradicted, the court would not necessarily have been obliged to accept it.[72] Some evidence of its own nature cannot very well be contradicted.[73] Evidence of subjective purpose may be so regarded. Further, no judge or tribunal is bound to accept evidence which is in itself inherently improbable and unreasonable or which is hesitating, shuffling, inconclusive and unconvincing.[74] Here Judge Duggan was plainly unimpressed with Mr Rees as a witness. He thought that Mr Rees lacked credibility. He based that in part on what he regarded as Mr Rees' vagueness about "the identity or existence of any other occupant at the time". Mr Burnside criticised the Judge for this, because Mr Rees had actually named Mr David James. But Mr Rees only did so under cross-examination and gave no other details about him, save to say that he was the friend of an acquaintance. In any event, Mr Rees had suggested that more than one other person had been living in the unit, but he named no others. The Judge was entitled to regard the testimony on these matters as important enough to go to Mr Rees' credibility, in circumstances where all the sketches of graffiti tags had been found in places other than Mr Rees' bedroom and where Mr Rees and his counsel apparently wished to suggest that others had been responsible for them. Whether the Judge could have gone further and used Mr Rees' vagueness on this topic as evidence of consciousness of guilt (as Dr McNicol submitted) need not be considered, because Judge Duggan did not purport to use it in that way.

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Cases Cited (22)