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[2017] VSC 529
defendant. Application for summary judgment by the first defendant granted; the plaintiff's proceeding for judicial review dismissed for failing to articulate an arguable ground of review and having no real...
The Supreme Court dismissed Ms Audish's application for judicial review of the County Court's dismissal of her appeal. The Court held she failed to identify any arguable legal error, her allegations of bias and denial of procedural fairness were unsupported by the video record, the police evidence was not inadmissible under s 33, and the proceeding had no real prospect of success. The informant's summary judgment application under s 63 CPA was allowed (see [31], [64]-[72]).
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On 24 August 2014 Ms Audish was stopped by police on Pascoe Vale Road. Constable Jasmine Cross (the informant) requested a preliminary breath test (PBT). It is not disputed that Ms Audish did not undertake the PBT (see [4]). She was charged under s 49(1)(c) of the Road Safety Act 1986 for refusing a PBT (see [6]). At the Broadmeadows Magistrates' Court on 1 June 2015 Magistrate Southey found her guilty, cancelled her licence and imposed a two-year disqualification effective 5 November 2014 (see [9]-[11]).
3 cited instruments linked from this judgment.
Ms Audish appealed to the County Court. On 6 November 2015 Judge Patrick (the second defendant) heard the appeal. After a contested hearing involving evidence from the police officers and Ms Audish, Judge Patrick dismissed the appeal, finding Ms Audish not credible and upholding the conviction and disqualification (see [13]-[15], [51]).
Ms Audish then filed an application for judicial review in the Supreme Court (Order 56), alleging the County Court judge was biased, threatened counsel, committed 'judicial misconduct', and had admitted inadmissible evidence (including a claim under s 33 of the Evidence Act 2008). The first defendant (informant) applied under s 63 of the Civil Procedure Act 2010 for summary judgment, arguing the judicial review application had no real prospect of success (see [1]-[3], [34]-[36]). The Supreme Court reviewed the record, including the video of the County Court hearing, and allowed the informant's application, dismissing the judicial review proceeding as having no real prospect of success (see [64]-[72]).
There are three interlocking reasons grounded in the judgment.
Scope of judicial review and inadequacy of the originating material. The Court emphasised that judicial review is confined to legality, jurisdiction and procedural fairness questions, not a rehearing on the merits. Order 56 requires the originating motion to specify grounds and be supported by affidavit evidence stating the facts relied upon (see [30]-[31]). Despite multiple directions and opportunities (including orders to produce transcripts and the County Court video), Ms Audish failed to articulate a coherent legal ground showing any error of law or process that could have vitiated the County Court's decision (see [16]-[23], [27], [72]).
No evidentiary basis for alleged procedural unfairness or bias. The plaintiff alleged Judge Patrick shouted at and threatened her counsel, that counsel became 'scared' and 'lost interest', and that the judge was biased (see [19], [21], [25], [59]). The primary materials, notably the County Court video, were reviewed in full by the Supreme Court (see [64]). The review showed the judge intervened to curtail repetitive or circular questioning, at times in a robust tone, but did not prevent counsel from adducing relevant evidence. The particular phrase "I do not like you" asserted by the plaintiff was not spoken (see [65]-[69]). The Court held that such interventions, without more, do not constitute denial of procedural fairness (see [68]-[69]).
Deference to primary credibility findings and lack of legal error. Judge Patrick's findings that Ms Audish had reconstructed her account and was not credible were supported by admissions on the record that Ms Audish had given differing evidence at the Magistrates' Court and County Court (see [46], [51], [70]). The Supreme Court observed the general reluctance to disturb primary findings of credibility and found no identifiable error of law in the County Court's reasoning (see [70]-[71]). Given the absence of an arguable legal error and the evidentiary record undermining the plaintiff's case, the proceeding had no real prospect of success and was summarily dismissed under s 63 (see [48]-[49], [72]).
Before: The governing rules and authorities were well established and cited in the judgment:
Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 prescribes the content and supporting affidavit requirements for an originating motion in judicial review proceedings (see [30]).
Judicial review is a supervisory jurisdiction concerned with legality, not the merits; this principle was explained with reference to Gurappaji and High Court authority such as Craig v South Australia (see [32]).
The standard for summary judgment under s 63 CPA is the 'real' (as opposed to 'fanciful') chance of success test, as explained in Lysaght (see [48]-[49], [63]).
After: This decision applies those established principles to dismiss a judicial review application where the applicant repeatedly failed to articulate an arguable legal error and the record (including video) did not support allegations of procedural unfairness or bias. It underscores practical points:
A litigant seeking judicial review must clearly identify a legal or jurisdictional error and provide supporting affidavit material; repetition of factual grievances about the underlying incident will not suffice (see [30]-[33], [72]).
Judicial interventions to control questioning, even if abrupt, will not attract supervisory relief unless there is demonstration they prevented a fair opportunity to present relevant evidence (see [66]-[69]).
Where a primary decision maker's credibility findings are supported by inconsistencies on the record, judicial review will not lightly overturn those findings (see [70]).
Thus, the case reaffirms and applies established doctrine rather than altering the law.
"Judicial review, as opposed to a re-hearing of the merits of a case, allows this Court to determine whether an error of law identified by a plaintiff adversely affected a decision of a lower court or tribunal." ([31])
Plain English: The Supreme Court's job is to check whether legal mistakes were made, not to retry the facts. If you want the Court to overturn a decision, you must point to a legal error and show it mattered.
"Interventions of this nature, without more, cannot amount to a failure to afford procedural fairness." ([69])
Plain English: A judge telling a lawyer to stop wasting time or to move on does not automatically mean the hearing was unfair.
"A Court is generally very reluctant to interfere with a primary decision maker's findings concerning the credibility of witnesses." ([70])
Plain English: If the original judge saw and heard witnesses and made credibility calls, higher courts usually do not reverse those findings unless there is a legal error.
The dispositive conclusion: "I will allow the informant's application ... and dismiss the proceeding on the grounds that Ms Audish has failed to articulate a ground of review ... and ... has no real prospect of success." ([72])
Plain English: The Supreme Court accepted the defendant's summary judgment application and threw out the judicial review because the applicant did not show any arguable legal mistake and had no realistic chance of winning.
This decision is most instructive where a litigant:
Seeks judicial review after an appeal or trial, but persists in re-arguing factual complaints without identifying a legal or jurisdictional error.
Alleges denial of procedural fairness based on a judge's tone or interruptions, without showing the judge prevented the adducing of relevant evidence or that the conduct created a reasonable apprehension of bias.
Is a self-represented litigant or has limited English, and repeatedly fails to comply with court directions to clarify grounds and produce transcripts, thereby undermining the ability to identify an arguable legal issue (the Court gave multiple opportunities, see [16]-[23]).
Asserts evidence admissibility objections (for example under s 33 Evidence Act) where the record shows witnesses testified from memory and contemporaneous notes exist, such that the statutory objection lacks foundation (see [44]-[46]).
If these circumstances are present, a respondent may successfully move for summary dismissal under s 63 CPA on the basis that the judicial review has no real prospect of success.
This judgment itself does not record later treatments. The deep dive confines analysis to the reasoning in Daly AsJ's judgment. The decision applies established authorities (Gurappaji, Craig, Lysaght, Wednesbury-related authorities) without purporting to depart from them (see [32], [49], [63]). Any subsequent citations or treatments by later courts are not contained within this judgment and therefore are not addressed here.
Degree of specificity required in originating motions after repeated directions. The Court dismissed the proceeding after multiple opportunities were given, but the precise threshold of sufficiency of an originating motion in marginal cases remains fact-dependent. How far a self-represented litigant must be nudged before dismissal is an open practical question, although this decision illustrates judicial patience followed by firm enforcement where no arguable ground is shown (see [16]-[23], [27], [72]).
Tone versus substance in allegations of bias. The Court made clear that abruptness or impatience does not equate to bias where counsel is not deprived of a fair opportunity to present the case (see [66]-[69]). Nonetheless, cases where the judge's conduct is more sustained or accompanied by other indicators may raise different issues; the precise line between acceptable case management intervention and conduct attracting supervisory intervention will continue to require fact-sensitive evaluation.
Interaction between s 33 Evidence Act objections and later-formalised police statements. Sgt Chambers' statement was made months after the incident but grounded in a contemporaneous running sheet; the Court accepted his oral testimony as admissible on that basis (see [44]-[45]). Future litigants may test the boundary where the delay in preparing a formal statement, the contents of contemporaneous notes, and disclosure timing produce closer admissibility questions.
Remedial consequences where a successful judicial review is arguably futile. The Court observed that even if a judicial review succeeded, a rehearing might be futile given the plaintiff's weakened credibility on the record (see [50]). Whether, in other cases, a court should remit for rehearing despite a low prospect of a different outcome remains contingent on circumstances such as the nature of the alleged legal error and the prospects of different evidence being available.
Concluding note: Audish v Cross & Anor is principally a robust application of established judicial review and summary judgment principles. It underscores the requirement that applicants must frame and support legal complaints properly, and that judicial temperament alone, absent conduct that prevents a fair hearing, will not sustain a claim of bias or procedural unfairness. The judgment is a practical reminder to practitioners and litigants about the distinct roles of trial and supervisory courts, and the utility of summary disposal where a judicial review is unarguable on the materials.
PRACTICE AND PROCEDURE - Application by the first defendant for summary judgment under s 63 of the Civil Procedure Act 2010 or pursuant to the inherent jurisdiction of the Court - Application granted.
ADMINISTRATIVE LAW - Judicial review - Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 - Where the applicant applied for judicial review of the decision of the County Court of Victoria to dismiss the appeal of a decision of the Magistrates' Court of Victoria made pursuant to s 49(1) (c) of the Road Safety Act 1986 (Vic) - Application that judge was biased, threatening towards counsel, exercised 'judicial misconduct' or evidence was inadmissible under s 33 of the Evidence Act 2008 - Grounds of review include denial of procedural fairness, or question as to whether decision maker was irrational, illogical and/or unreasonable - First Defendant's application for summary dismissal - No evidentiary basis for grounds of review - No real prospects of success.
1 This proceeding was commenced as an application for judicial review of a decision of the County Court of Victoria ('County Court') under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules'). On 6 November 2015, the County Court heard an unsuccessful appeal by the plaintiff ('Ms Audish') to set aside the orders of the Magistrates' Court to cancel the plaintiff's driving licence.
2 This ruling concerns an application by the first defendant ('informant') that the proceeding be dismissed summarily, on the basis that the grounds for initiating the proceeding have not been properly articulated by Ms Audish, and, to the extent Ms Audish has articulated her complaints, these complaints have no real prospects of success. The submissions in support of the informant's application are set out in more detail below.
3 The County Court, on behalf of the second defendant, a judge of the County Court, has provided notice that it takes the Hardiman[1] approach in this proceeding, and did not take an active role in this proceeding.
4 On 24 August 2014, on Pascoe Vale Road in Meadow Heights, a car being driven by Ms Audish was intercepted by a police car driven by the informant, First Constable Jasmine Cross, accompanied by her colleague, Sergeant Heath Chambers (together, 'police officers'). In the course of the interaction which followed, Ms Audish was asked by the informant to undertake a preliminary breath test.[2] It is not contested that Ms Audish was asked to undertake the breath test and that she did not do so. This series of events will collectively be referred to as 'the incident'.
5 Following what was an apparently heated exchange between Ms Audish and the police officers, the informant notified Ms Audish that she would be summoned to Court for refusing to undertake the breath test. Subsequently, Ms Audish drove to Broadmeadows Police Station, where she made a complaint against the police officers.
6 On 23 October 2014, Ms Audish was charged with contravening s 49(1)(c) of the Road Safety Act 1986 (Vic) ('Act'). The relevant provision states that:
A person is guilty of an offence if he or she...(c) refuses to undergo a preliminary breath test in accordance with section 53 when required under that section to do so.
7 Section 53 of the Act provides that:
(1) A police officer may at any time require -
(i) any person he or she finds driving a motor vehicle or in charge of a motor vehicle; or
(ii) the driver of a motor vehicle that has been required to stop, and remain stopped at a preliminary testing station under section 54(3); or
(iii) any person who he or she believes on reasonable grounds has within the last 3 preceding hours driven or been in charge of a motor vehicle when it was involved in an accident; or
(iv) any person who he or she believes on reasonable grounds was, within the last 3 preceding hours, an occupant of a motor vehicle when it was involved in an accident, if it has not been established to the satisfaction of the police officer which of the occupants was driving or in charge of the motor vehicle when it was involved in the accident -
to undergo a preliminary breath test by a prescribed device.
8 On 5 November 2014, an agent of Victoria Police served Ms Audish with a Notice of Immediate Suspension of Licence or Permit under s 51 of the Act, requiring Ms Audish to 'immediately surrender her driver licence or permit'.
9 The matter was first heard in the Broadmeadows Magistrates Court on 1 June 2015, in which Ms Audish entered a 'not guilty' plea to the charge of 'refus[ing] a preliminary breath test.' Ms Audish was represented at this hearing. Magistrate Southey found that Ms Audish was guilty of the alleged offence and ordered:
That the offender's licence be cancelled. Offender is disqualified from driving in the State of Victoria for a period of 2 years.
Order on licence effective from 05/11/2014.
With conviction, fined $400.00 with $75.50 statutory costs
10 In his orders, the learned Magistrate further stated that [emphasis in original]:
THIS COURT ACCEPTS ON THE BALANCE OF PROBABILITIES THAT THIS REFUSAL WAS NOT OWING TO THE ACCUSED HAVING CONSUMED ALCOHOL, BUT RATHER, HER RESENTMENT AT HAVING BEEN PULLED OVER WHEN SHE HAD DONE NOTHING WRONG, TOGETHER WITH HER NATURALLY ARGUMENTATIVE NATURE.
11 On 4 June 2015, Ms Audish filed a notice of appeal against her sentence with the County Court, entering under the heading 'reason for appeal', that 'the punishment is excessive'.
12 The County Court appeal was initially listed for hearing on 4 August 2015, but was adjourned to 11 August 2015 to allow Ms Audish to obtain legal advice. The matter was part heard on 11 August 2015 before Judge Taft, during which Ms Audish's notice of appeal was amended to appeal against both her conviction and sentence, and the matter was adjourned for a contested hearing on 6 November 2015.
13 On 6 November 2015, at the commencement of the hearing before Judge Patrick (the second defendant), Ms Audish's counsel, Mr Andrew Waters, indicated to her Honour that the primary question before the Court was whether or not Ms Audish's conduct during the incident amounted to a refusal to undergo a preliminary breath test.
14 During the course of the hearing, three witnesses gave evidence, being the informant, Senior Constable Cross, Sergeant Heath Chambers and Ms Audish. Counsel for Ms Audish crossexamined both police officers. The hearing went for approximately three and a half hours.
15 At the conclusion of the hearing, Judge Patrick dismissed the appeal, finding the initial charges proven. Judge Patrick held that Ms Audish's evidence was not credible, ordered that Ms Audish pay the initial fine and statutory costs, and ordered that Ms Audish be disqualified from obtaining any licence or permit for a period of two years, effective from 5 November 2014. The period of disqualification thus expired on 5 November 2016.
Application to appeal to the Supreme Court - procedural history
16 Due to the nature of this application and the consequences of my decision for the proceeding as a whole, the history of the proceeding in this Court is relevant, in particular, the numerous opportunities this Court has provided to Ms Audish to clearly and properly articulate the grounds of review upon which she relies to challenge the determination of the County Court.
17 This proceeding was filed in this Court on 5 January 2016 by way of originating motion, accompanied by an affidavit of Ms Audish of the same date.
18 It was apparent that Ms Audish's originating motion required some modification for her claims to be adequately expressed. Early on in the proceeding, the informant raised such concerns, and the Court has made various directions to guide the plaintiff to file her originating motion in an acceptable form, with directions being made on three occasions prior to the matter being set down for trial. Ms Audish's ability to articulate her claims has not been assisted by the fact that she is self-represented in the proceeding, and English is clearly her second language.
19 To the extent that specific grounds for review were made out, Ms Audish's originating motion and accompanying affidavit specified the following:
...the judge Patrick didn't exercise jurisdictions [sic]...
With reference to the County Court proceeding, her originating motion further stated:
...I was represented by counsel Andrew Waters. [T]hat day my lawyer was doing very good when he was questioning the police person (Jasmine Cross) [sic] The Judge shout on my lawyer, that after 3 minutes she shout again followed by losing it "[hysterically]" and followed by Saying "I do not like you in angry way" [sic]. [A]fter that my lawyer look Scared and lost interest in the case and like new person. On the break when I asked him you were doing very well what happened?? [sic] and Judge's behaviour??[sic] He said it was pointless to continue in my strategy that I was not prepare for other one.
After that my lawyer like to give up but he did not withdraw at best it he adjournment for other day [sic].
Please all I want [is] to get [a] fair hearing for this matter again...
...And the matter to be dismissed.
20 The proceeding was brought before Associate Justice Lansdowne for directions. On 12 February 2016, her Honour made orders adjourning the matter to 9 June 2016, making the following comments in 'other matters':
21 On 23 May 2016, Ms Audish submitted a further affidavit, which for the most part restated the claims in her original affidavit. To the extent that the later affidavit added any further complaints concerning the County Court proceeding, they can be summarised as follows:
(a) the judge was biased and accordingly would not follow the law;
(b) the police witnesses in the County Court gave different evidence under oath than in the Magistrates' Court;
(c) that the police witness should not be a witness because, 'evidence may not be given unless the statement was made by the police officer at the time of or soon after and to be a copy served to me in that time and that did not happen [sic]'; and
(d) that the lawyer should have withdrawn from the case and asked for another trial, and because he did not, the lawyer breached his duty to act in the interest of his client.
22 On 9 June 2016, the matter returned before Associate Justice Lansdowne for further directions, where her Honour made orders that Ms Audish file an amended originating motion, 'clearly identifying the grounds on which she relies,' and file a further affidavit exhibiting:
(a) a transcript prepared by an authorised transcription service of the audio recording before the County Court and;
(b) if she wishes to rely on a difference in the prosecution evidence given in the County Court compared to that given in the Magistrates' court, a transcript prepared by an authorised transcription service of the audio records of the hearing before the Magistrates' Court.
24 Following this hearing, officers of this Court wrote to the County Court and obtained a copy of the video recording of the County Court proceeding. A copy of the video recording was provided to the parties following a further directions hearing on 29 July 2016. On 29 July 2016, orders were made setting a timetable for the conduct of the proceeding, and included the direction that:
The plaintiff file and serve a further affidavit exhibiting a copy [of] the audio visual recording supplied to her today, a typed transcript of any portion of that recording that she claims differs from the audio recording and deposing to any other matters upon which the plaintiff intends to rely by 4:00pm on 9 September 2016.
25 In her affidavit sworn on 23 June 2016,[3] Ms Audish explains in some detail the detriment caused by the cancellation of her licence upon her health and daily life. Ms Audish then goes on to repeat, once again, the claims made in her affidavit of 23 May 2016, with the addition of the following claims:
(a) Ms Audish disputes the claim made by the informant in evidence that she had asked Ms Audish to undergo the preliminary breath test twice before her colleague approached Ms Audish's vehicle. Ms Audish further asserts that Sergeant Chambers 'treat me very ba[d] and open the door and he wanted to drag me to the station because of the ID [sic].' She claims that it was only after Sergeant Chambers attempted to take her to the station in relation to her identity, and Ms Audish had advised she would make a complaint against the officers, that the informant requested Ms Audish to undergo a breath test;
(b) again, Ms Audish claims that in response to the above evidence her lawyer should have 'withdraw from the case and adjourned to other day to give me a chance for another trial with another lawyer [sic]?' and that because he did not do so he was not acting in her best interest; and
(c) that the initial refusal by the County Court to provide the visual recording of the County Court proceeding somehow 'prove[s] what I am saying is the right thing' and that the judge was:
(iv) did not deal with Ms Audish's case fairly and efficiently; and
26 On 15 August 2016, Ms Audish filed a further affidavit which in many ways reiterated, but again also supplemented, her previous claims. The further claims, to the extent they can be ascertained from this affidavit, can be summarised as follows:
(a) Judge Patrick was not impartial in her decision and was biased. Given that her Honour found Ms Audish to be an unreliable person for changing her evidence between the Magistrates' Court and County Court, Judge Patrick ought to have found the police witnesses unreliable too because they, 'changed their story in two occasions and more' between the hearings of the Magistrates' and County Courts;
(b) there was collusion between the police officers during the break in the County Court hearing which caused their evidence to be changed;
(c) that Sergeant Heath Chambers was biased against her and should not have been allowed to give evidence in accordance with s 33 of the Evidence Act 2008 (Vic);[4] and
(d) Ms Audish requests an opportunity to re-examine the police officers, because, she claims, they lied to the Court. She also queries why a third police officer, Sergeant Russell, was not called to Court to give evidence, and seeks an opportunity to examine him in Court.
27 Ms Audish failed to file an amended originating motion in accordance with Associate Justice Lansdowne's orders made on 9 June 2016. However, during the hearing, Ms Audish asked that the Court rely on each of her affidavits and submissions filed to date. I have taken each of Ms Audish's filed affidavits and submissions into account in determining the informant's application.
28 On 7 December 2016, the informant appeared before Judicial Registrar Ware for directions, owing to Ms Audish's noncompliance with the previous orders. Ms Audish did not appear. At this hearing, the informant foreshadowed an application for summary judgment. Authenticated orders were circulated, directing Ms Audish to file and serve an affidavit in opposition and submissions by 16 February 2017.
Application for judicial review - relevant principles
29 Prior to turning to the submissions concerning this application, it is appropriate to briefly summarise the role of this Court in its supervisory jurisdiction.
30 An application for judicial review can be made under Order 56 Supreme Court (General Civil Procedure) Rules 2015. Order 56 (4) states:
(4) In addition to complying with the requirements of Rule 5.05, the originating motion -
(a) shall state the grounds upon which the relief or remedy specified in the originating motion is sought; and
(b) where any mistake or omission in any judgment, order or other proceeding in respect of which relief or remedy is sought is a ground, shall specify the mistake or omission.
(5) Without limiting paragraph (6), at the time of filing the originating motion the plaintiff shall file an affidavit setting out the acts, facts, matters and circumstances relied upon in support of the plaintiff's claim.
(6) The Court shall not grant any relief or remedy in the nature of certiorari unless -
(a) a copy of the warrant, order, conviction, inquisition or record in respect of which the relief is sought, verified by affidavit, is produced; or
(b) if a copy is not produced, the non-production is accounted for to the satisfaction of the Court.
31 In an application for judicial review, this Court is limited as to how it can deal with a matter. Judicial review, as opposed to a re-hearing of the merits of a case, allows this Court to determine whether an error of law identified by a plaintiff adversely affected a decision of a lower court or tribunal. As such, it is important that Ms Audish's application to this Court is confined to permissible grounds of review. It is impermissible to ask this Court to rehear the merits of the original dispute. Accordingly, while many of Ms Audish's complaints are directed at the conduct of the police officers during the course of the incident, these matters are largely irrelevant to the issues in this proceeding.
The common law jurisdiction of this court to review decisions of inferior courts is subject to the procedure set out in Order 56 of the Rules. The jurisdiction is supervisory and does not entitle this court to canvass matters that it would on an appeal. In a judicial review, the court is concerned with the legality of what was done by the court or tribunal below, and is not concerned with the merits of the decision under review.[7]
33 The failure on the part of Ms Audish to articulate permissible review grounds in the initiating documents and pleadings is a substantial basis of the informant's application for summary dismissal. From her various submissions, it is clear that Ms Audish does not understand the principles above, as she has repeatedly re-stated her version of the facts concerning the incident. The County Court's determination of whether in fact Ms Audish refused to undergo a preliminary breath test is not a finding which is capable of review, unless there were grounds for finding that Judge Patrick's findings were irrational, unreasonable, and/or illogical.[8] Accordingly, for the purposes of this application, it is necessary for me to determine whether there is any real prospect that Ms Audish, if allowed to proceed to trial, would be able to establish that her Honour's decision was in fact irrational, unreasonable or illogical. Further, based on the statements made in her affidavits and submissions, Ms Audish suggests that the judge failed to afford her procedural fairness, and/or was biased, which is also a permissible ground for review. My reasons are directed at each of these potential grounds of judicial review.
34 The application before me is an application by the informant for summary judgment of the proceeding, which was filed on 30 January 2017.
35 The informant's application, as set out in its summons, is based on the following grounds:
(a) Ms Audish has failed to file an Originating Motion that articulates a ground for review that is supported by the available evidence or is otherwise arguable;
(b) Ms Audish has not adduced any evidence of any error of law or process in the hearing and determination of Appeal number AP-15-1347 on 6 November 2015 which enlivens the Supreme Court's jurisdiction to grant relief or remedy pursuant to Order 56 of the Rules 2015; and
(c) this proceeding does not have any real prospect of success.
36 The informant's summons was accompanied by an affidavit sworn by Mr Adrian Castle, a principal solicitor in the Office of Public Prosecutions. Mr Castle referred to the affidavit of Leigh Andrew Kelly sworn in this proceeding, deposed as to the procedural history of this proceeding, and exhibited a DVD copy of the video recording of the County Court proceeding.
37 Mr Kelly's affidavit described what occurred during the Magistrates' Court proceeding and the County Court proceeding, and exhibited, among other things:
(a) the police brief prepared for the hearing at the Magistrates' Court, including the statements made by the police officers;
(b) the orders made by the Magistrates' Court and the County Court; and
(c) a copy of a DVD audio recording of the hearing in the County Court on 6 November 2015.
38 The statements of the police officers go into some detail as to what occurred during the incident.
39 The informant's written submissions assert that Ms Audish's claimed grounds of review are not clearly defined. The informant summarises and responds to Ms Audish's claims as follows [citations omitted]:
(i) "Judge Patrick did not exercise jurisdiction".
The argument appears to be that her Honour did not afford the plaintiff procedural fairness. The Plaintiff alleged that her Honour shouted at plaintiff's counsel on two occasions. On the second occasion her Honour is described by the plaintiff as "losing it 'hysterically' followed by saying 'I do not like you - in an angry way'". The Plaintiff then claims that her barrister 'looked scared and lost interest in her case'.
(ii) Her Honour was not independent and was biased.
(iii) The Plaintiff also calls into question whether the statement of the police officer Sgt Chambers, was admissible. The claim that his statement may not have been made 'at the time of or soon after' the event and a copy was not served upon the plaintiff. It appears that the objection is that the requirements of s 33 of the Evidence Act 2008 (Evidence given by police officers) have not been met.
(iv) Finally, there is an allegation that her Honour threatened the plaintiff's counsel.
40 The informant submitted that Ms Audish's claims summarised in (i) to (iv) above are 'fanciful claims without merit,' and are not substantiated by the facts, namely the evidence of what actually occurred during the County Court proceeding.
41 The informant rejected the claim that Judge Patrick shouted at Ms Audish's counsel, or that her Honour told counsel that she 'did not like him'. By reference to the video recording of the County Court hearing, the informant points to the numerous exchanges which did occur between her Honour and Mr Waters. What these exchanges demonstrate, is that Mr Waters was given the opportunity to undertake lengthy examination and cross examination of each of Ms Audish and the police officers.
42 The informant highlighted thirteen exchanges between Judge Patrick and Mr Waters during the County Court hearing, as follows:
43 The informant submitted that nothing about Judge Patrick's conduct during the County Court hearing amounted to a denial of procedural fairness. Rather, Judge Patrick's interventions were reasonable and necessary to enable her to 'move the trial forward so that the questions were not too repetitious.' Further, the informant submitted that, 'at no time during the hearing did the plaintiff's counsel look scared or disinterested.'
44 In relation to Ms Audish's allegations summarised in (iii) above, being that Sergeant Chambers' evidence was inadmissible, the informant referred to s 33 of the Evidence Act 2008 (Vic), and submitted that the allegation Sergeant Chambers' evidence was inadmissible is 'without foundation' in that:
At no stage during Sgt Chambers evidence did he read from or was led through his written statement by the prosecutor. All of Sgt Chamber's evidence was given from memory. He did read his statement and running sheet prior to entering the court, which every witness is permitted to do.
45 The informant also submitted that during cross examination of Sergeant Chambers in relation to his statement, it was established that:
(a) The statement was made 8 or 9 months after the incident, however, the statement was written using the running sheet which was written on the day. Sgt Chambers gave evidence that he commenced the entries regarding the incident on the running sheet on the way to the station.
(b) He had the first defendant's statement when he made the final statement.
(c) He looked over his statement and notes (running sheet) this morning. He vetted the notes before he gave them to Mr. Waters.[22]
46 The informant's submissions also referred to the evidence given by Ms Audish at the hearing of the County Court proceeding, as follows:
47 Finally, during the course of the hearing of the informant's application for summary judgment, counsel for the informant handed up a table comparing the evidence given by the police officers during the course of the Magistrates' Court hearing and the County Court hearing, in order to refute Ms Audish's assertions that the police officers changed their evidence concerning the incident.
48 The informant relied upon s 63 of the Civil Procedure Act 2010 (Vic) as a basis for her application, which provides as follows:
Summary judgment if no real prospect of success
(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2) A court may give summary judgment in any civil proceeding under subsection (1) -
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.[23]
49 The informant's submissions contend that Ms Audish's claims in this proceeding have no real prospect of success. The informant relied upon the decision of the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[24] ('Lysaght') as authority for the proposition that in order to avoid the grant of summary judgment, a case must have a 'real' as opposed to a 'fanciful' chance of success. The informant points to the following aspects of Ms Audish's evidence in the County Court in which, the informant's submissions say, she undermined her own case, as reproduced below:
(i) In cross-examination she admitted giving evidence in the Broadmeadows Magistrates Court that the First Defendant asked her once maybe twice to take the breath test. The Plaintiff in the appeal hearing said that this answer was not the truth as she wasn't prepared. She was nervous.[25]
(ii) She also admitted giving evidence in the Broadmeadows Magistrates Court that the police man asked her maybe three times to give her a breath test. The Plaintiff indicated in the appeal hearing that her answer again was not the truth, she was mistaken.[26]
(iii) The Plaintiff was asked by the prosecutor (at the appeal hearing) what her recollection now was and whether she was in fact asked to take a breath test. She answered, 'I didn't do it, I wanted to complain'.[27]
(iv) She said her memory now, is that the police did not ask her for a breath test. The Plaintiff also went on to say, 'maybe I took it personally that they are not treating me not good (sic) that day because she was not responding. She wasn't responding to my question."[28]
(v) The Plaintiff was asked by the prosecutor if she remembers giving evidence at the Broadmeadows Magistrate Court that the policeman said a few times to take the breath test or lose your licence for 2 years. The Plaintiff admitted that she said this but again said she wasn't prepared for the hearing and was shocked'.[29]
50 In summary, the informant contended that the fact that Ms Audish admitted she gave different evidence in the hearings at the Magistrates' Court and the County Court eroded her credibility, which not only formed the basis for the determination of the County Court to reject her appeal, but also indicates that, even if Ms Audish were to succeed in her claim in this Court, it would be futile to remit the matter for re-hearing before a different judge, as no doubt the same conclusions would be drawn at a rehearing.
51 The informant's submissions reiterate that her Honour's decision at the conclusion of the County Court hearing confirms that it was the variation in Ms Audish's evidence, as opposed to any bias against Ms Audish, that influenced her Honour's decision. In her oral reasons, her Honour said (as set out in the informant's written submissions):
(a) I am satisfied beyond reasonable doubt that she refused to take a preliminary breath test.
(b) I am satisfied beyond reasonable doubt that she was asked 3 times by the First Defendant and 2 times by Sgt Chambers to take a preliminary breath test. She may have said 'no' a third time (to Sgt Chambers) but I can't find that beyond reasonable doubt.
(c) The Plaintiff persisted in her refusal despite being told what the penalties were.
(d) Even if I was not satisfied that she said 'no', her conduct and her argument of themselves amounted to a refusal.
(e) It is absolutely clear that she was refusing to undergo a properly required breath test.
(f) I am also satisfied beyond reasonable doubt that she did so because she didn't think she should have to comply with the request.
(g) I should say that in many respects Ms Audish was neither a credible or reliable witness. That was evident from her evidence from the Magistrates Court and her evidence here today. She has thought long and hard about the evidence and reconstructed her evidence differently from that of the Magistrates Court.
(h) She persisted in feeling entitled to a response as to why she was pulled over.
(i) She took exception to being required to give her name and address, her licence and the preliminary breath test.
(j) The police have a clear power to pull over drivers and check various matters in various situations.
(k) Parliament has made it clear police can do this without having suspicion.
(l) Drivers who hold drivers licences are expected to know these basic matters such as given their name and address, licence and their preliminary breath test obligations. It appears she wasn't aware of those obligations and took exception.
(m) She intended to refuse and she intended to continue to refuse.
(n) I do not accept that at the end after she was told of the penalties, that she offered to do so. In any event even if she did it was too late, she had already refused. She is guilty of the charge.
52 The informant submitted that she was unable to identify from the materials relied upon by Ms Audish in this Court whether Ms Audish had any objection to the County Court judge's application of the relevant law. However, in addressing the possibility of a claim that there was an error of law in the County Court hearing, the informant denies that her Honour engaged in anything other than the correct and lawful process in reaching her decision. In response to Ms Audish's claims that her Honour was biased, and failed to afford procedural fairness, the informant submitted that, 'her Honour's interaction with all parties and witnesses was appropriate and her reasons for decision were sound.'
53 The informant's submissions emphasised the apparent lack of evidence to substantiate Ms Audish's claims that her Honour Judge Patrick:
did not have jurisdiction; didn't afford the Plaintiff procedural fairness; left the Plaintiff's counsel afraid and disinterested; aggressively told the Plaintiff's counsel that she did not like him; was biased and not independent and threatened Plaintiff's counsel.
54 Finally, the informant's submissions concluded that the proceeding ought to be summarily dismissed, as no ground for review or evidence of any error of law or process have been identified, nor do any of Ms Audish's claims have any real prospect of success.
55 On 21 February 2017, Ms Audish filed a further affidavit with a number of attachments. Among the attachments were extensive submissions to the Court interwoven with what appears to be extracts of the transcript of the hearing at the County Court, which are summarised below:
(a) when the Court took a break, 'the prosecutor saw Cross talking to Heath about what happened in the Court during her testimony, and she did not say anything.' Ms Audish also questioned Judge Patrick's decision to 'order the witnesses be out of the courtroom until after their evidence was given', claiming that this somehow added to the collaboration between the police officers;
(b) Sergeant Russell was not called as a witness in the County Court, although he was in the Magistrates' Court. Ms Audish submitted that she should have had the opportunity to question Sergeant Russell over his refusal to conduct an alcohol breath test or blood test when she requested to take one in the police station following the incident, and the fact that he 'give an order to spry the poison in my face [sic]';
(c) during the incident, Ms Audish claims, Sergeant Heath Chambers tried to 'grab' Ms Audish and treated her 'like a criminal person' for the purpose of confirming her identity. Ms Audish further states that: '..in the other hand if I refused as he said, then why he did not arrest me and took me to the station to get PBT or blood test done there' [sic];
(d) the informant's motive was to 'withdraw' Ms Audish's drivers licence, and that she humiliated and bullied Ms Audish during the incident, and 'everyone in the way so far like in police station, magistrates court and county court helping and standing by her. Even everyone knows she is in fault [sic]';
(e) the informant and Sergeant Chambers should not give their testimony in Court because they, 'are my enemy in the Court' and unless they can prove their evidence with a recording of the incident;
(f) the Court should not have counted in the assessment of her case Sergeant Chambers's request for a breath test, because Sergeant Chambers did not summons Ms Audish to Court. And moreover it should not have counted the evidence that the informant asked Ms Audish to 'blow into the machine' because it 'was not a proper request';
(g) Ms Audish claims that the evidence that the informant was intended to be on patrol in Broadmeadows at the time of the incident ought to be verified with Flinders Street police station, (presumably, the police headquarters);
(h) the police 'did apply the road safety act wrongly on me,' because they 'did not see me driving because they were opposite side of the rd [sic]';
(2) The informant gave evidence in the witness box which was wrong and did not answer questions in full, and can only be proven with camera footage of the intersection where the incident occurred;
(3) Ms Audish claims she, 'did not use the word no' on the day of the incident and that in relation to the police officers' evidence, 'it is perjury, they are pretended they asked me about them' and it is 'not a fair representation for her evidence';
(l) the prosecutor was biased against Ms Audish which is reflected in the manner in which the police officers were questioned. Ms Audish claims, 'the prosecutor should work sincerely to get the truth out. Not make it easy for Cross to manipulate';
(m) in relation to Judge Patrick's conduct of the hearing, Ms Audish claims; 'Her service that day in court, was unprofessional and biased, she did not care about the standards of the justice she was delivering to the community, she did not follow the rule of the law', because, among other things, her Honour:
(1) Interrupted Mr Waters' repeated questioning of the informant by asking Mr Waters to 'move on' and 'Whether you agree or not, that is the evidence'; and
(2) defended the informant by interrupting Mr Waters during his questioning of the informant to state: 'The witness said she couldn't remember that. You are right that's what she said but she also said she couldn't remember who spoke first.'
56 Ms Audish also explains in her affidavit, again in some detail, the adverse impact of the incident and her experiences in court upon her health.
57 The second document annexed to Ms Audish's affidavit of 21 February 2017 is a statement as to Ms Audish's version what happened on the day of the incident. The contents of this document are consistent with the other evidence given by Ms Audish concerning the incident.
58 At the hearing of the application, Ms Audish handed up an undated seven page submission beginning with 'Dear your honor.' The submission contained further claims that 'what happened in the court of my appeal for my refusal was unfair and biased', once more interspersed with extracts of the transcript of the County Court hearing.
59 In her submissions at the hearing, Ms Audish made further allegations to the effect that the informant lied under oath as to what occurred during the incident, that the judge was biased in favour of the informant, and played on her phone an excerpt from the recording of the County Court proceeding.
60 Ms Audish also requested that I review the video footage of the County Court proceeding, and requested an adjournment for a further five months to '..finish reading the transcript and get evidence from it...'. Ms Audish asserted that Judge Patrick interfered with her counsel's crossexamination of the police officers 'just as he was about to break through'. Further, her Honour did not question the prosecution or the police officers about the absence of any recording of the incident, and she knew that the informant was lying and did not do anything about it. The judge was 'set against her' and the prosecutor was biased. Otherwise, Ms Audish's oral submissions largely repeat what was said in her previous submissions and affidavits.
61 Ms Audish's claims are extensive and repetitive and in some instances, difficult to ascertain. To summarise the grounds of review identified by the informant, together with the further claims referred to in Ms Audish's affidavits and submissions, Ms Audish's claims relate to the following issues:
(ii) her Honour was not independent and was biased;
(iii) her Honour accepted that was inadmissible; and
(iv) her Honour threatened Ms Audish's counsel, thus depriving Ms Audish of the opportunity to properly present her case.
62 As noted above, the flavour of Ms Audish's submissions amounts to a contention that the conduct of the County Court proceeding did not afford her procedural fairness, and I will deal with the informant's application on that basis. This, along with the 'irrational, illogical and/or unreasonable' ground referred to in paragraph 33 above are the only grounds of review available to Ms Audish in a proceeding of this nature.
63 In determining the informant's application, I have regard to the statement of the Court of Appeal in Lysaght concerning the test for summary judgment, to the effect that the test:
[S]hould be construed as one of whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success; that the 'real chance of success' test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test; and that, as the law is at present understood, the real chance of success test permits of the possibility that there may be cases, yet to be identified, in which it appears that, although the respondent's case is not 'hopeless' or 'bound to fail', it does not have a real prospect of succeeding.[30]
64 As noted above, at the hearing of the informant's application for summary judgment, Ms Audish played, through her mobile phone, what were apparently excerpts of the recording of the County Court proceeding. As the recording was difficult to hear in Court, and the claims made by Ms Audish for proper consideration of the submissions made by Ms Audish, I have reviewed the video recording of the hearing in its entirety, giving particular attention to each occasion in which Judge Patrick engaged with Ms Audish's counsel, Mr Waters.[31]
65 Many of Ms Audish's claims are exaggerated or without foundation. It is apparent from the recording that the words 'I do not like you' were never expressed by Judge Patrick at any time in the proceeding towards any party. It is moreover apparent from the recording that Mr Waters spent a great deal more time examining the three witnesses than the time taken by his opponent.
66 On occasion, Judge Patrick gives the impression that in her Honour's opinion Mr Waters questioning was becoming repetitive or circular. On one occasion during cross examination of the informant, Judge Patrick interrupted Mr Waters in response to his questioning of the witness by stating, in an abrupt tone, 'could you move on, Mr Waters, whether you agree or not, that is her evidence.'
67 Her Honour stated words to this effect on a few occasions throughout the hearing. After some further questioning of the informant by Mr Waters on the question of whether the witness ever stated to Ms Audish during the incident as to whether or not she had done anything wrong which had caused her to be pulled over, her Honour interrupted in what may be described as a frustrated tone:
Well she may have done something wrong, maynt she? It's just that they may not have known about it at that point in time. Why would a police officer say to someone, 'you've done nothing wrong', before, for example, you've done a preliminary breath test? There might be something they might say...it's not getting anywhere, Mr Waters.
68 The tone of her Honour's statement was direct and robust. However, the contention that this statement or her Honour's subsequent interruptions of Ms Audish's counsel amounted to procedural unfairness or bias on the part of her Honour is without foundation. It is part and parcel of the role of a judicial officer to discourage counsel from engaging in repetitive and unrewarding questioning, and from unduly prolonging the proceeding.
69 At no time during the course of the hearing did her Honour prevent Ms Audish's counsel from adducing relevant evidence, either from Ms Audish in examination-in-chief or from the police officers in cross-examination. Rather, her Honour's interventions were directed at Ms Audish's counsel from going over ground which had already been covered in the evidence. Interventions of this nature, without more, cannot amount to a failure to afford procedural fairness. Further, while on occasions her Honour's demeanour may have been abrupt, this reflected her Honour's impatience with the occasionally repetitive and circular nature of counsel's questioning. Her Honour was even handed in her interventions: at one point she rather sternly chastised the informant when her evidence strayed from recounting the facts to in effect making submissions concerning the legal effect of Ms Audish's conduct. Finally, it is significant to note that during the course of the hearing, Ms Audish was represented by counsel experienced in the jurisdiction. While counsel's responses to her Honour's interventions were (properly) deferential, there is nothing to suggest that he was cowed or browbeaten by these interventions, and he remained calm and professional throughout. Ms Audish may not have been happy about these interventions, particularly given the result of the hearing, but her claims of actual bias or impartiality on the part of the judge are without foundation.
70 For completeness, while Ms Audish has not, in terms, advanced the proposition that the County Court's decision to dismiss her appeal was so unreasonable that no reasonable decision-maker could have arrived at that decision, I shall deal with that proposition, given the extensive references to the incident and the evidence given by the police officers in Ms Audish's affidavits and submissions. Again, there is no basis upon which to make such a finding. Having regard to her Honour's reasons (reproduced at paragraph 55 above), it is clear that her Honour gave Ms Audish's evidence, and her explanation as to why her evidence differed from the evidence given by her at the Magistrates' Court, little if no weight. Her Honour had the benefit of seeing and hearing Ms Audish and the police officers give evidence over the course of some hours. Even if this proceeding concerned error generally, as opposed to an error of law, a Court is generally very reluctant to interfere with a primary decision maker's findings concerning the credibility of witnesses. This is not the occasion to do so. Indeed, all of the evidence before her Honour, and before this Court, supports the concise findings originally made by the learned Magistrate, being that:
This Court accepts on the balance of probabilities that the refusal was not owing to the accused having consumed alcohol, but rather, her resentment at having been pulled over when she had done nothing wrong, together with her naturally argumentative nature.
71 Finally, as noted in the submissions advanced on behalf of the informant, no apparent challenge was made by Ms Audish to her Honour's interpretation or application of the applicable law, being the Act_._ Rather, vague and unsubstantiated allegations have been made concerning the lack of admissibility of the evidence of the police officers, collusion between the police officers and/or between the police officers and prosecuting counsel. Allegations were made that certain witnesses which should have been called were not called, and evidence which should have been forthcoming was not forthcoming. To the extent that there is any merit in such allegations, which I seriously doubt, such claims are largely answered by the fact that Ms Audish was legally represented at the hearing in the County Court, with responsibility for the conduct of the hearing resting with Ms Audish's legal advisors. No error of law on the part of her Honour has been identified, let alone established by Ms Audish. Further, given that this Court has provided Ms Audish with a number of opportunities to articulate permissible grounds of review, there is no basis for allowing Ms Audish a further opportunity to present her case. All of the relevant materials are before the Court, the matter has been the subject of full argument before me (including the extensive affidavit evidence and submissions of Ms Audish), and I have formed the view that Ms Audish's claims in the proceeding have no real prospects of success.
72 Accordingly, I will allow the informant's application by summons filed 30 January 2017, and dismiss the proceeding on the grounds that Ms Audish has failed to articulate a ground of review that is supported by the evidence, or is otherwise arguable and, to the extent that it is possible to identify any possible grounds of review, Ms Audish's claims have no real prospect of success.
73 I shall hear further from the parties on the question of costs.
[1] R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, 35.
[2] See Road Safety Act 1986 (Vic), s 53(1).
[3] This affidavit is only in the first defendant's material and not on the Court file.
[4] Section 33 of the Evidence Act 2008 (Vic) provides as follows:
(1) Despite section 32, in any criminal proceeding, a police officer may give evidence in chief for the prosecution by reading or being led through a written statement previously made by the police officer.
(a) the statement was made by the police officer at the time of or soon after the occurrence of the events to which it refers; and
(c) a copy of the statement had been given to the person charged or to the person's Australian legal practitioner a reasonable time before the hearing of the evidence for the prosecution.
[5] (2015) 45 VR 324 ('Gurapaji').
[6] [1995] HCA 58; (1995) 184 CLR 163, 175-176.
[8] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223 ('Wednesbury case'); Minister for Immigration and Border Protection v SZMDS (2010) 240 CLR 611; Minister for Immigration and Citizenship v Li and anor (2013) 249 CLR 332.
[9] Video file 1, time stamp 00:49:46 - hour/minute/seconds.
[10] Video file 1, time stamp 00:52:15 - h/m/s.
[11] Video file 1, time stamp 57 minutes.
[12] Video file 1, time stamp 00:59:00 h/m/s.
[13] Video file 1, time stamp 1:07 hour and minutes.
[14] Video file 3, time stamp 00:16:00 h/m/s.
[15] Video file 3, time stamp 00:18:45 and 00:19:25 h/m/s.
[16] Video file 3, time stamp 00:24:45 h/m/s.
[17] Video file 3, time stamp 00:37:40 h/m/s.
[18] Video file 3, time stamp 00:39:40 h/m/s.
[19] Video file 3, time stamp 01:04:35 h/m/s.
[20] Video file 3, at time stamp 01:06:20 h/m/s.
[21] Video file 3, time stamp 01:14:50 h/m/s.
[22] See footnote 13 of the first defendant's submission dated 30 January 2017.
[23] Civil Procedure Act 2010 (Vic), s 63.
[24] [2013] VSCA 158; (2013) 42 VR 27, 40 [35].
[25] Video file 3, time stamp 01:11:50 h/m/s.
[26] Video file 3, time stamp 01:12:50 h/m/s.
[27] Video file 3, date stamp 01:16:15 h/m/s.
[28] Video file no 3, time stamp 01:18:25 h/m/s.
[29] Video file no 3 at time stamp 01:29:10 h/m/s.
[30] [2013] VSCA 158; (2013) 42 VR 27, [29].
[31] While this is not of critical relevance to the outcome of this application, I note that the profile of Mr Waters on the Victorian Bar website shows that he was admitted in 1996, signed the Bar Roll in 2001, and practices almost exclusively in the criminal jurisdiction.
Audish
Cross & Anor [2017] VSC 529
(1980) 144 CLR 13
(2015) 45 VR 324
(1995) 184 CLR 163
(2010) 240 CLR 611
(2013) 249 CLR 332
(2013) 42 VR 27
Application for summary judgment by the first defendant granted; the plaintiff's proceeding for judicial review dismissed for failing to articulate an arguable ground of review and having no real prospect of success; further submissions on costs to be heard (see [72], [73]).
(i) Ms Audish seems to claim that the police used a drug testing device instead of an alcohol testing device during the incident and therefore it 'Was one un appropriate request and not completed and I did not say no for it [sic]';
(j) the police should have recorded the incident so that it can be used in Court;
(k) As to the evidence given by the informant, Ms Audish seems to be claiming:
(1) that the informant gave different evidence in her written statement to the evidence she gave in the County Court with respect to a number of facts, including: