Plaintiff v First defendant

Supreme Court of Victoria|2017-10-26|Before: Bell J

ADMINISTRATIVE LAW - natural justice - human right to fair hearing - litigants in person - appeal from orders of Magistrates' Court of Victoria convicting and fining appellant for committing summary road safety offences - application for judicial review of orders of County Court of Victoria convicting and discharging applicant for committing summary road safety offences - magistrate summarily dismissed appellant's objections to jurisdiction, ordered that he be removed from courtroom due to misbehaviour and heard and determined proceeding in his absence - judge ordered applicant to be taken into custody for contempt of court and placed in dock and then conducted highly conflictual hearing in which applicant was personally denigrated - whether magistrate breached rules of natural justice and human right to fair hearing by failing to provide due assistance to appellant as litigant in person - whether judge breached those rules in same way as regards applicant as litigant in person - whether fair-minded observer would reasonably conclude that judge might not impartially hear and determine criminal charges - powers of courts to order removal of litigants whose behaviour makes continuation of proceedings impossible - powers of courts to order that parties to proceedings be taken into custody for ensuring safety and security of court - (Vic) , (Vic) O 56, (Vic)

**1 As a matter of natural justice and human rights, it is established that courts are obliged to give due assistance to litigants in person so as to ensure their effective participation in legal proceedings, subject to the requirements of judicial independence, impartiality and fairness and respect for the rights of others. Further, courts are obliged to conduct proceedings so as not to give rise to a reasonable apprehension on the part of fair-minded persons that the proceeding might not be impartially heard and determined. In these two applications for supervisory review of orders of the Magistrates' Court of Victoria and the County Court of Victoria respectively, similar questions are raised as to whether those courts complied with those obligations when hearing criminal charges in which the accused were self-represented.

2 The application by Zenaan Harkness comes to the court by an appeal on a question of law under s 272(1) of the Criminal Procedure Act 2009 (Vic) against orders dated 17 June 2016 of her Honour Magistrate Stuthridge sitting in the Magistrates' Court at Seymour, convicting and fining him for committing road safety offences. Among other grounds, Mr Harkness contends that her Honour breached the rules of natural justice and his human rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic) in the way that she conducted the hearing. He seeks orders quashing the conviction and fines and remitting the matter for reconsideration according to law by a different magistrate.

3 The application by Vasilios Kyriazis comes to the court by an originating motion seeking relief under O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) for judicial review of orders made on 1 December 2016 by his Honour Judge Chettle, sitting in the County Court at Melbourne on appeal from the Magistrate's Court of Victoria, convicting and discharging him, also for committing road safety offences. Among other legal grounds, Mr Kyriazis contends that his Honour breached the rules of natural justice in the way that he conducted the hearing and also seeks quashing and remittal orders.**

**4 Mr Harkness was charged summarily with four counts of unlicensed driving contrary to s 18(1)(a) of the Road Safety Act 1986 (Vic) in November 2013, October 2014 and January 2015; two counts of using an unregistered motor vehicle on a highway contrary to s 7(1)(a) of that Act in November 2013; and one count of failing to comply with a surrender motor vehicle notice contrary to s 84H(3A) of that Act in January 2015. The seven charges were consolidated and heard by the magistrate on 17 June 2016.

5 The history of the proceeding was lengthy and somewhat convoluted. In summary, four of the charges on which Mr Harkness appeared before the magistrate dated back to November 2013 in circumstances where he had lodged a 'notice of objection to jurisdiction' on 24 April 2014, then failed to appear (as he did on perhaps two other occasions) at the scheduled hearing on 11 July 2014 upon which date the charges were heard and determined ex parte. In all, he made two applications for a rehearing, which were granted. He was also charged in relation to further alleged offending in January 2015.

6 A summons to appear in respect of all of the November 2013 and one of the January 2015 charges was served on Mr Harkness on 21 November 2015. On 7 April 2016, the proceeding was listed for hearing on 17 June 2016 and the court ordered as follows:**

ACCUSED TO FILE AND SERVE ANY ARGUMENTS, SUBMISSIONS AND AUTHORITIES UPON WHICH HE SEEKS TO RELY ON OR BEFORE 3 JUNE 2016.

It is important to note that this was not an order that Mr Harkness's objection to jurisdiction would be determined solely by reference to any such written submissions or that he was not entitled to present oral submissions at the hearing.

**7 On 3 June 2016, Mr Harkness emailed the court an 'application to vacate' the hearing on 17 June 2016 and sought a special mention on 10 June 2016. In the 'application to vacate', he stated that 'the hearing of 17 June 2016 ought to be vacated pursuant to the failure of the informant to prove jurisdiction of the charges' and that he intended to rely upon his 'notice of objection to jurisdiction' filed on 24 April 2014. The application for a special mention was refused by the court on 10 June 2016 and the hearing took place on 17 June 2017.

8 Also on 3 June 2016, Mr Harkness filed and served a 'statement', apparently pursuant to the court's direction dated 7 April 2016. It relevantly read as follows:**

I Zenaan Harkness of Two Hills Road, Glenburn, Victoria 3717, say that the following is true to the best of my knowledge:

I appear conditional upon proof of jurisdiction in the matters listed below.
I do not consent to the jurisdiction of the Seymour Magistrates Court and I object to the jurisdiction of the Seymour Magistrates Court.

3. Jurisdiction of the Seymour Magistrates Court has not been proven.

I have neither seen nor been presented with any evidence proving jurisdiction in the matter D13873004 which jurisdiction applies to me and which jurisdiction applies to my right to travel which right exists at common law and which right exists pursuant to the Blessing of Almighty God, and I believe that none exists.
I have neither seen nor been presented with any evidence proving that the Seymour Magistrates' Court has any jurisdiction arising pursuant to the Commonwealth of Australia Constitution Act.
I have neither seen nor been presented with any evidence proving that any jurisdiction of the Seymour Magistrates' Court is a jurisdiction which can be used to hear a matter of a soul in a body living its fundamental and common law right to travel by the Blessing of Almighty God, and I believe that none exists.
I have neither seen nor been presented with any evidence proving that I have consented to any jurisdiction of the Seymour Magistrates' Court, and I believe that none exists.
I do not consent to any jurisdiction other than that jurisdiction which exists in my original right pursuant to the Blessing of Almighty God.
I have neither seen nor been presented with any evidence proving that the Road Safety Act No. 127/1986 applies to me, and I believe that none exists.
At all times in material particular the Informant has shown no cause to me that challenges my right to travel at common law.

It will later be necessary to examine this document more closely.

9 A short hearing occurred before the magistrate on 17 June 2016. The informant was represented by police prosecuting counsel. At the start of the hearing, her Honour summarily dismissed Mr Harkness's objections to jurisdiction solely upon the basis of his notice and statement and without hearing oral submissions. She later excluded him from the courtroom due to his misbehaviour. In his absence, her Honour went on to hear evidence from the prosecution in relation to six of the seven charges and make orders convicting and fining him on those six charges, dismissing the seventh. Again, it will later be necessary to examine the course of the hearing closely.

**10 Mr Kyriazis was charged with two summary offences under s 59(2) of the Road Safety Act 1986 (Vic) that on 2 November 2015 he failed immediately to produce his driver's licence for inspection and state his name and address. By order of the Magistrates' Court at Ringwood, he was convicted of those offences on 24 May 2016 and fined a total of $750 with $117 statutory costs.

11 On 20 July 2016, Mr Kyriazis appealed against these orders to the County Court of Victoria pursuant to s 254 of the Criminal Procedure Act. The appeal was listed for hearing on 1 December 2016.

12 Prior to the hearing, Mr Kyriazis sent a provocative hand-written letter to the court, which was forwarded to the judge. It relevantly stated:**

To whom it may concern.

On this day I shall be attending my listed appeal hearing.

I must inform your office that I shall be attending with my audio and video recorders in order to record my personal affairs and protect my lawfull [sic] interests.

I must state that I have no trust nor faith in your forum nor your judicial staff. The reason is that I have been assured by your judicial staff that recordings would be made available for me only to be refused on request.

The further issue is that your judicial staff continue to threaten contempt without valid cause in order to intimidate me and others.

I must inform your office that if I am assault threatened or harassed by any of your security staff I shall be holding your office responsible for incitement and your staff responsible for assault.

I shall also be informing the Corporate Manager Mr Keith Kirkham of my intentions as I have done before.

Your office has been informed and I trust your office to act honorably.

Further I shall need your facility in order to display my recorded evidence of the incident in appeal. Thankyou for your time and attention. I await your immediate response. Respectfully [signed].

**The letter implies that there had been previous contact between Mr Kyriazis and the court but there is no evidence of what that contact was.

13 At the hearing on 1 December 2016, the prosecution was represented by counsel. The entire hearing was transcribed and video-recorded and both forms of record were in evidence in this court. As these revealed, an unseemly and heated exchange occurred between Mr Kyriazis and the judge at the start of the hearing over the issue of whether he would be permitted to video-record the hearing. The judge permitted him to audio-record the hearing, which he was seeking to do, but not to video-record the hearing which, by then, he was apparently not.

14 The interaction between Mr Kyriazis and the judge almost immediately become one in which voices were raised on both sides, quickly deteriorating as the judge ordered him to go into the dock and threatened to charge him with contempt of court, an issue which was not resolved until the very end of the hearing. His Honour kept Mr Kyriazis isolated in the dock for the whole course of the hearing, except during a short break. Mr Kyriazis stated at a certain point that he wanted permission to approach the Prothonotary of this court, which the judge said he did not need. Mr Kyriazis did not seek permission to leave the dock, and clearly believed that he could not do so during the course of the hearing.

15 During the hearing, Mr Kyriazis did participate to some limited degree, mainly by making rhetorical objections to certain evidence. During the short break, he apparently looked under protest at certain documents that were produced in answer to subpoenas that he had issued, claiming that he needed more time. He consistently complained about his treatment and the hearing occurred without his meaningful participation. At one point, the judge publicly denigrated Mr Kyriazis.

16 On the evidence of two police officers whom Mr Kyriazis declined to cross-examine, the judge convicted him of the two charges. The found circumstances were that he had failed to provide his driver's licence for inspection and state his name and address immediately when requested to do so, but did so some minutes later. Finding that this represented only a technical breach, the judge convicted him without penalty. His Honour stated that he would not take action in relation to his contempt of court.

17 As with Mr Harkness, it will later be necessary to examine the course of the proceeding in more detail.

18 I turn now to the principles governing the duty of a court to ensure a fair trial for litigants in person under the common law and the Charter.**

Ensuring fair trial for litigants in person under common law and Charter

**19 In both cases, the main ground relied upon was the alleged failure of the court to ensure that due assistance was given to them as litigants in person. In the case of Mr Harkness, this was put upon the basis of the common law by reference to the rules of natural justice and the right to a fair hearing by reference to s 24(1) of the Charter. In the case of Mr Kyriazis, it was put upon the basis of the former.

20 The overriding duty of a judge to ensure a fair trial was discussed in Tomasevic v Travaglini by reference to the principles of equality before the law and equal access to justice.[1] Following analysis of the main common law authorities, the scope of that duty as regards the provision of due assistance to self-represented parties was stated in the following terms:**

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 ... The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.

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.

The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. The Family Court of Australia has enunciated useful guidelines on the performance of the duty.

The judge cannot become the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. Further, the judge must maintain the reality and appearance of judicial neutrality at all times and to all parties, represented and self-represented. The assistance must be proportionate in the circumstances - it must ensure a fair trial, not afford an advantage to the self-represented litigant.[2]

**This statement of principle has been well accepted.[3]

21 Section 24(1) of the Charter provides:**

A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

This right must be applied by Victorian courts (and tribunals) in relation to legal proceedings by virtue of s 6(2)(b) of the Charter.[4]

22 The duty of the court to apply the human right to a fair hearing in s 24(1) of the Charter was discussed in Matsoukatidou v Yarra Ranges Council.[5] Following an analysis of decisions of high authority in comparable jurisdictions, the scope of that duty as regards self-represented parties was stated in terms that stressed the fundamental importance of ensuring their effective participation in a legal proceeding:

the Charter is intended to guarantee human rights that are practical and effective, not theoretical or illusory. Respect for the equal dignity of all individuals and their right to equal access to justice and a fair trial under the rule of law are values of foundational significance in democratic society and not just matters of manner and form. Under ss 8(3) and 24(1) of the Charter, it is especially important that the right of all persons equally to access, and effectively to participate in proceedings in, the courts and tribunals of justice are applied in a way that is practical and effective, not theoretical or illusory. In both a criminal and civil proceeding, a trial is not fair in human rights terms if the procedures followed do not ensure that all parties can effectively participate and have equality of arms with the opposing side. Where the party is self-represented, it is the duty of the court to ensure that this occurs, subject to the fundamental requirements of judicial independence, impartiality and fairness and respect for the human rights of other participants.[6]

**23 As was also discussed in Matsoukatidou, the purpose and scope of the duty to ensure a fair hearing for self-represented parties under the rules of natural justice and the human rights in the Charter are very close:

The human right of parties to court or tribunal proceedings to a fair hearing under s 24(1) of the Charter and the common law obligation of the court or tribunal to ensure a fair hearing both give effect to equality before the law and equal access to justice. In relation to the participation of self-represented parties in such proceedings, they are very close both in content and in application. Thus Tomasevic[7] explains the obligation at common law of a court or tribunal to ensure a fair hearing in a way that draws upon, and is consistent with, the human right to a fair hearing in that context. Both categories of right promote respect for the personal dignity, agency and capacity for self-determination of individuals in the legal system and aim to ensure, as far as reasonably possible, that participation by self-represented parties in court and tribunal proceedings is effective. As Heydon J stated in International Finance Trust Company Ltd v New South Wales Crime Commission, ensuring that parties to legal proceedings are fairly heard is justified because it 'respects human dignity and individuality'.[8] In this connection, his Honour endorsed the following statement by a learned author:**

[W]e think we owe it to a man as a human being to engage in argument with him, and allow him to engage in argument with us, rather than take decisions about him behind his back, completely disregarding, as it were, his status as a rational agent, able to appreciate the rationale of our decisions about him, possibly willing to co-operate in carrying them out.[9]

His Honour went on to endorse this further statement by the same author which explicitly applies to litigants in person:

[E]ach man ought himself to have some say of his own in his own future, and ... each man ought to count, to count as being himself, and not merely as one instance among many of the human species. We therefore think each man ought to be able to instruct his own counsel (or appear in person) to represent his own views, not merely those views which a benevolent authority might deem him to hold. ... [O]n a matter on which he is likely to have very strong wishes, namely where a decision (judicial or administrative) is in danger of being taken adversely to his interests, he should have a chartered right of having a say, that is, the authority has a duty to hear him.[10]

As two sources of positive law applying in cases like the present, human rights and the common law are mutually reinforcing and the obligations arising under each are almost always co-extensive. The contemporary human rights dimension brings a broader rationale and added strength to the existing obligation under the common law and brings to the fore the need to achieve substantive procedural equality and effective participation as regards self-represented parties. In its procedural application to court and tribunal proceedings, the right to equality in s 8(3) may be regarded in a similar way. [11]

a court or tribunal that, under the common law, gives adequate advice and assistance to a self-represented party depending on the needs of that party and the nature on the case, also ensures, under human rights, their effective participation in the proceeding, equality of arms and a fair hearing, and vice versa.[12] The explanation in Tomasevic as to the scope of the obligation of a court or tribunal under the common law is equally relevant to its compliance with s 24(1) of the Charter. The discussion in this judgment of the principle of equality of arms and ensuring effective participation of the self-represented party in the proceeding are also relevant.

It follows that, where a court of judicial review finds that a court or tribunal has not ensured that a self-represented party obtains a fair hearing under the common law as so explained, it would almost always be entitled to find that the failure constitute a breach of the human rights of that party under the Charter.[13] The obverse case is one of a court of judicial review finding that a court or tribunal has not ensured that a self-represented party obtains a fair hearing under s 24(1) of the Charter by reference to the standards discussed in this judgment, including the principle of equality of arms. In that kind of case, it will almost always be entitled to find that the failure constitutes a breach of the rules of procedural fairness and an excess of jurisdiction under the common law for which relief in the nature of judicial review is available, as in the present case. As was submitted on behalf of the Attorney-General, it is well established that judicial review is available at common law for excess of jurisdiction based on want of procedural fairness, in the case of both administrative tribunals and inferior courts, regardless of whether the error appears on the face of the record. The procedural implications of the right to equality in s 8(3) as herein discussed and applied feed into the same reasoning.[14]

**24 In relation to the content and application of the rules of natural justice under the common law as these apply to litigants in person, Mr Harkness and Mr Kyriazis and counsel for the respective informants accepted the analysis in Tomasevic. In relation to the right to a fair hearing under s 24(1) of the Charter as it applies to litigants in person, Mr Harkness and counsel for the informant accepted the analysis in Matsoukatidou.

25 By reference to these principles, I can now examine whether the magistrate and the judge ensured natural justice and a fair hearing of Mr Harkness's and Mr Kyriazis's cases.**

Did courts ensure natural justice and fair hearing?

26 At the start of the hearing (page 2 of the transcript), the magistrate referred to Mr Harkness's notice of objection to jurisdiction dated 24 April 2014. Her Honour did not refer to his statement on that subject dated 3 June 2016. As it had been filed and served in accordance with the court's direction of 7 April 2016, I infer that it was in her possession and that she considered it. Mr Harkness asked her Honour whether the court had 'jurisdiction over my common law and god given rights?' She replied:

STUTHRIDGE: Ok, so a couple of things. First of all, I've read your notice of objection to jurisdiction and I don't accept that there are any grounds to object to the jurisdiction. Secondly, all of these matters were originally summons matters, is that correct? And, so, it's a matter for you whether you are here or not here today. Um, you're not actually required to be here for this hearing if you don't want to be here. But I propose to proceed with the hearing, there's nothing in the notice of objection to jurisdiction that in any way raises a sensible question of jurisdiction. So, that application is refused. I propose to make an order that witnesses in relation to this matter be out of court during the giving of the evidence except for Mister Harkness and the Informant. Take a seat, Sir.

27 When Mr Harkness pressed his objections to jurisdiction, her Honour said:

STUTHRIDGE: It is you[r] right to challenge jurisdiction but I've read your challenge to the jurisdiction and there is no sensible challenge to this jurisdiction, no issue at law as to this court's jurisdiction in relation to the Road Safety Act. So, once again Sir, take a seat. I propose to commence the hearing.

This brought about the following exchange between her Honour and Mr Harkness (page 4):

HARKNESS: ... living my rights, claiming my rights. I have a right to survive, I have a right to travel in my community. I have a right to travel to friends and to travel to get food, when I need it. These are my rights, these rights exist pursuant to the blessing of Almighty God which is in the preamble of our federal constitution. Does this court have jurisdiction over these rights?

STUTHRIDGE: Sir, I've told you, I have read your notice of objection to jurisdiction. I do not accept that there is any valid reason to challenge the jurisdiction of this court, to hear these seven charges laid under the Road Safety Act.

HARKNESS: I'm now not referring to my notice, I am referring to what I'm saying.

STUTHRIDGE: I am still not prepared to engage in a conversation around the issues of God, in this court and my jurisdiction.

The hearing continued along these lines until Mr Harkness was removed for his behaviour. The magistrate would not hear submissions from him in relation to his objections to jurisdiction. She repeated that he could appeal her ruling to the Supreme Court if he wished to do so.

**28 The document dated 24 April 2014 by way of notice of objection to jurisdiction and the statement dated 3 June 2016 by way of elaboration of that notice were not Mr Harkness's full submissions on that subject, neither in form nor content. The court had not ordered that such submissions had to be in writing (see above). He was entitled to make oral submissions at the hearing on 17 June 2016 and he wished to do so. However much the magistrate may have doubted the viability of the issues and arguments raised in the notice and statement, her Honour's obligation was to keep an open mind on the subject and hear and determine Mr Harkness's submissions. Instead she came on to the bench and immediately announced her decision that his objections to jurisdiction were not accepted. The magistrate made no attempt at the start of the hearing to determine Mr Harkness's state of knowledge about legal procedure and principles or assist him in any way in relation to his submissions as to jurisdiction, given that he was a litigant in person. Her Honour did not ask him what he meant by various paragraphs of his notice and statement or ask him to elaborate upon the particulars of his objections.

29 It is clear from the magistrate's statement during the course of the hearing that her Honour thought that Mr Harkness was objecting to jurisdiction upon untenable religious grounds. In the absence of the kind of clarification of the issues and arguments raised in the notice and statement that was required in the proceeding before her Honour, it is not possible for this court to make a confident finding about what Mr Harkness actually had in mind. But examination of the content of the notice and statement reveals that he was relying (among other things) upon his 'common law right to travel', not some kind of religious immunity. While I understand how the magistrate was distracted by Mr Harkness's frequent references to religious precepts and concepts, it was (with respect) neither fair nor accurate of her Honour to dismiss his issues and arguments as being based solely upon such precepts and concepts, which I think she did. Had the magistrate made due inquiry of Mr Harkness at the start of the hearing, and provided him with due assistance as a litigant in person, I think this misunderstanding could have been avoided.

30 The deficiencies in the procedure adopted by the court were not overcome by the right to appeal to this court to which the magistrate repeatedly drew Mr Harkness's attention. That appeal exists in relation to questions of law under s 272(1) of the Criminal Procedure Act. The court would have been embarrassed by an appeal against her Honour's ruling as such (more accurately, against her Honour's final orders after making the ruling) because it would not have been able to ascertain what the basis of the ruling was. Therefore, the appeal would inevitably have focussed on the (in)adequacy of her Honour's reasons. As her Honour made a significant judicial determination, she was obliged to give reasons adequately disclosing the path of the reasoning behind her rejection of the objections to jurisdiction made by Mr Harkness.[15] Yet she stated only her conclusion that the grounds were not accepted and not sensible. If her Honour considered that the grounds were not sensible, by which I take her to mean not tenable, on their face, I could not myself so conclude because they obviously needed elaboration and clarification. This was not a case in which 'the simplicity or context of [the] case or the state of the evidence [was] ... sufficient to indicate the basis of decision'.[16] To the extent that her Honour's reasoning was that the objections were based purely upon religious precepts and concepts, this was, with respect, misconceived.

31 I accept the articulate submissions of counsel for the informant that, at times, Mr Harkness was discourteous towards the magistrate and raised his voice, for which he apologised to her and again in this court. He impermissibly sought the magistrate's first name, made irrelevant references to the Latin insignia ('duet mon droit') on the wall behind the bench, made irrelevant and distracting remarks, raised his voice to her Honour and disrupted the hearing of the charges. It is shocking and appalling that the person assisting Mr Harkness during the hearing made a blatantly sexist and disrespectful remark about her Honour, a highly competent and respected magistrate of the State of Victoria. The remark was that '[y]ou are a woman before me', for which the speaker, to his discredit, did not apologise to her Honour or in this court. On the other hand, the magistrate displayed (with respect) judicial courtesy and dignity throughout the hearing, under trying and ultimately impossible circumstances. Her Honour eventually removed Mr Harkness for his misbehaviour, exercising powers which she undoubtedly possessed, for a magistrate may have an accused person removed from a court and proceed with the trial in his or her absence where the conduct of the accused in the course of the trial renders its continuation in his or her presence impossible.[17] A recent statement of that principle is that of Riordan J in Boros v O'Keefe, which I endorse:

The accused has a fundamental right to be present. This fundamental right is only lost if it becomes necessary by reason of the accused abusing the right to be present. The loss of this right may occur where the accused uses his or her right to be present to obstruct the proceeding in such a way that it is necessary for him or her to be removed to enable the proceeding to be completed. Where an accused is, by his or her outrageous behaviour, preventing a proceeding from continuing, a court may remove such an accused so as to avoid the consequence of being unable to complete a proceeding.[18]

I could not find that this power was improperly exercised in this case.

32 However, Mr Harkness's unacceptable behaviour towards the magistrate and his consequent removal, and the conviction and fine that were recorded after the hearing proceeded in his absence, do not resolve the central legal issues in this appeal. The hearing of the charges brought against Mr Harkness was fatefully flawed from the outset of the hearing because the magistrate breached the rules of natural justice, and violated his right to a fair hearing under s 24(1) of the Charter, by rejecting his objections to jurisdiction without first hearing his oral submissions, and by failing to provide him with due assistance in relation to those submissions, having regard to his position as a litigant in person. With respect, it would not have taken much time or effort to adapt the procedures suggested in the decided cases[19] to the circumstances of the case before the court. I believe that the matter would not have got this far had her Honour done so. I am not sure, but it may be that she simply mistakenly understood the court's direction of 7 April 2016 as requiring Mr Harkness to place all of his arguments and submissions in writing and therefore as precluding further oral submissions when it did not.

33 Having regard to the long history of the proceeding up to the hearing on 17 June 2016, the magistrate may also have suspected that Mr Harkness's objections to jurisdiction were opportunistic and strategic. The objections may or may not have had an ulterior purpose in fact. The evidence does not so reveal. Counsel for the informant did not so submit. In any event, her Honour had to ensure that such suspicions did not interfere with fair judicial management of the hearing. Having regard to the terms of Mr Harkness's notice and statement, I do not think it would have taken much accommodation of the court's usual procedures to take due account of his position as a litigant in person. What the magistrate did was to summarily reject his objections without any accommodation at all, which conformed neither to the rules of natural justice nor to Mr Harkness's right to a fair hearing under the Charter.

34 For those reasons, in the case of Mr Harkness, the appeal must be allowed for error of law.**

**35 The transcript of the hearing before his Honour on 1 December 2016 runs to some 63 pages and the audio-visual recording runs for some two hours. I have read the transcript and viewed the recording more than once. It is not easy to convey the highly conflictual nature of what occurred. Undoubtedly, the conduct of the hearing at several points was unseemly when assessed against conventional judicial standards. The central legal question is whether the conduct of the hearing was more than that such as to involve breach of the rules of natural justice, especially having regard to Mr Kyriazis's position as a litigant in person.

36 As in the previous case, when answering that question I am not to be taken as condoning in any way the behaviour towards the judge of Mr Kyriazis (or his supporters who were present at the hearing). I acknowledge with regret and disapproval that, to varying degrees and on many occasions, he was disrespectful, argumentative, angry, uncooperative and perhaps contemptuous in the face of the court (as were they). While these are essential facts to be taken into account, they are not conclusive in the resolution of the central legal question.

37 I have no prior knowledge of Mr Kyriazis and take him as he comes like any other litigant as I am judicially required to do. From his conduct in the proceeding before the judge, in this court and in the Magistrates' Court of Victoria in an unrelated case that was brought to my attention by counsel for the informant,[20] it appears that he has a personal interest, perhaps to an eccentric degree, in audio-recording and video-recording legal proceedings in which he may be involved. This appears to be one way by which he tries to exercise a measure of dignified control over his personal affairs. Whatever be the explanation for this interest, he is as entitled as any person to see that the courts operate according to the principles of open justice and free communication of information, especially in relation to cases involving him personally, and properly exercise the discretion of s 4A(4)(a)(i) of the Court Security Act 1980 (Vic), as discussed in my judgment in relation to Mr Kyriazis's application for permission to audio-record the proceeding in this court.[21]

38 Having regard to the statutory prohibition on recording a legal proceeding except (relevantly) in accordance with the court's permission (see s 4A(1) and (4)(a)(i) of the Court Security Act), the assertion of right in Mr Kyriazis's letter to the County Court before the hearing on 1 December 2016 (see above) can only be regarded as misconceived and provocative. I can understand how the judge would have been concerned by the contents, tone and language of the letter in that and other respects. His Honour would have been justified in rebuking Mr Kyriazis for writing the letter. However, he had to take the letter, and did take the letter, to be an application for permission under s 4A(4)(a)(i) to audio-record and video-record the proceeding. As I could not in this court, the judge could not have stood by while Mr Kyriazis made such a recording without considering whether to grant such permission, for this would have been a criminal offence against the prohibition in s 4A(1). His Honour had to hear and determine Mr Kyriazis's application according to law, taking into account that he was a litigant person.[22] Everything the law says about how courts must treat such persons applied as much to that application as it did to the hearing and determination of the traffic charges which was the main business of the proceeding.

39 The judge did not adopt this course. His Honour simply informed Mr Kyriazis at the outset of the hearing, in very direct terms, that he could audio-record but not video-record the proceeding. It was in that context that the following exchange occurred at the start of the hearing (page 2 of the transcript):**

MR KYRIAZIS: I request leave to approach the bar.

HIS HONOUR: Yes.

MR KYRIAZIS: Thank you.

HIS HONOUR: That's the bar table. You're representing yourself, are you?

MR KYRIAZIS: Yes, I am Your Honour.

HIS HONOUR: I've got a letter indicating that you wanted to tape-record the proceedings. Is that correct?

MR KYRIAZIS: That's correct. Yes.

HIS HONOUR: Is that a tape-recorder you have on the bench?

MR KYRIAZIS: Yes, I have. Yes, it is.

HIS HONOUR: Just wait till I finish. That's a tape-recorder on the bench, is it?

MR KYRIAZIS: It's my notetaker, yes.

HIS HONOUR: It's a tape-recorder. Yes.

MR KYRIAZIS: Well, yes, it's a recorder.

HIS HONOUR: You can tape-record the proceedings. I don't have any problem with that. You cannot video it. All right. You had a video camera before, didn't you, when you were standing in court?

MR KYRIAZIS: No.

HIS HONOUR: Well, you can't video. You understand?

MR KYRIAZIS: I hear what you're saying, but if I may - - -

HIS HONOUR: No, no. Do you understand? It's not a request, it's a demand. There's no videotaping in court. You can tape-record but there's no videoing.

**40 As Mr Kyriazis informed the judge, he did not have a video-recorder with him in court. Despite the contents of his letter, he did not indicate at the start of the hearing any intention to video-record the proceeding nor apparently did he possess the capacity to do so. Nonetheless, there were heated exchanges between Mr Kyriazis and the judge about the matter. From the transcript and the audio-recording of the proceeding, I infer that Mr Kyriazis engaged in these exchanges by way of standing up for his perceived rights and not because he actually intended to video-record the proceeding and that the judge engaged in the exchanges because he believed that Mr Kyriazis actually wanted to do so when he did not. Unfortunately, it appears that Mr Kyriazis and the judge were at cross purposes in this regard. Would that this had been resolved, as it could easily have been resolved, at this early stage. The matter may not have got this far.

41 By page three of the transcript, Mr Kyriazis and the judge were talking over each other with raised voices and the judge threatened to put him in the dock, as the following passages reveal but the audio-visual recording reveals better:**

MR KYRIAZIS: Are we being videotape here today?

HIS HONOUR: No.

MR KYRIAZIS: We're not.

HIS HONOUR: You're not videotaping anything.

MR KYRIAZIS: No, I'm not videotaping at the moment.

HIS HONOUR: No, and you're not - look, it's not a debate.

MR KYRIAZIS: Well, it is to me.

HIS HONOUR: It's not. I'm just simply telling you as a matter of law you can tape-record and proceedings, you cannot videotape it.

MR KYRIAZIS: Okay. I really need to ask you what part of the - what Act are you relying on and what part of the Act are you relying on?

HIS HONOUR: I'm not debating it with you. Have a seat.

MR KYRIAZIS: You don't want to debate. All right. There's some preliminary issues that I need to discuss first.

HIS HONOUR: The Court Security Services Act s 4(a).

MR KYRIAZIS: Yes.

HIS HONOUR: And it's an offence for you to do so, and if you do - you come in here with a $700 fine. I'm not - let's get on with this. Is it an appeal against sentence only or (indistinct).

MR KYRIAZIS: Excuse me. Can I answer, if I may?

HIS HONOUR: No, you may not.

MR KYRIAZIS: I request leave.

HIS HONOUR: I tell you what. I'm within two inches of putting you in the dock.

**42 The evidence does not reveal why the judge answered 'no' to Mr Kyriazis's question about whether the proceeding was being videotaped. Hearings of this nature in the County Court generally are, as the judge would have known, and this one was. I think his Honour must have misunderstood the question, but nothing turns on this in any event.

43 The heated exchanges between the judge and Mr Kyriazis over the issue of video-recording continued. Mr Kyriazis unsuccessfully sought to address his Honour on this question. He repeatedly sought his Honour's leave in this regard, which was repeatedly refused. Without warning, the judge then ordered that Mr Kyriazis be taken into custody (page 5 of the transcript):**

HIS HONOUR: Look, stop it.

MR KYRIAZIS: I'm not stopping anything.

HIS HONOUR: Stop it. Did you not - now, listen - - -

MR KYRIAZIS: (indistinct)

HIS HONOUR: Now, listen. No, it's - - -

MR KYRIAZIS: I'm the applicant.

HIS HONOUR: All right. Would you take the appellant into custody, please.

MR KYRIAZIS: Great. Can we have an issue of contempt (indistinct)

HIS HONOUR: I am warning you that I will have someone over and - you're not doing what you're told I will charge you with contempt.

MR KYRIAZIS: (indistinct) no, no. No. You're being oppressive. That's what I believe.

HIS HONOUR: Would you take Mr - - -

MR KYRIAZIS: (indistinct) detained. Can we do that?

HIS HONOUR: Would you go into the dock, please.

MR KYRIAZIS: Well, I need your reason. Why am I going into the dock?

HIS HONOUR: Because I am going to detain you for contempt and you give you the right - - -

MR KYRIAZIS: (indistinct) is that civil or criminal contempt?

HIS HONOUR: Criminal contempt.

MR KYRIAZIS: Is it (indistinct) or (indistinct) contempt? Can you please tell me what it is?

HIS HONOUR: Take him into custody.

MR KYRIAZIS: Okay. Now, can you take control of my items my (indistinct).

**44 Although Mr Kyriazis considers that he went voluntarily into the dock, from the transcript and audio-visual recording I find that he was taken into the custody of the court and required to remain isolated in the dock in that custody, where he did remain for the duration of the hearing (except for a short break). For that entire period he was, in the judge's words, being detained for 'contempt of court' and expected from that position to participate in the criminal trial of the charges against him. The charges were summary in nature and he was not on remand or bail so that his position was one of relative disadvantage when compared with representing himself from the Bar table where he would otherwise have been.

45 As stated above, from this point on Mr Kyriazis did not meaningfully participate in the proceeding, which the judge conducted through to conviction and discharge upon the evidence of two police witnesses and the submissions made by counsel for the informant. Mr Kyriazis frequently protested against the injustice of his position as he perceived it to be, including in relation to being expected to examine the documents that were produced in the 15 minute break, and the judge frequently criticised him for the contempt constituted by his language and behaviour.

46 The hearing was frequently interrupted by further heated exchanges between Mr Kyriazis and the judge, some of an unacceptably argumentative and personal nature. For example, this exchange occurred at page 17 of the transcript during consideration of the produced documents:**

MR KYRIAZIS: (indistinct) responsible officer here (indistinct) as it says in the Act.

HIS HONOUR: Can you - will you be quiet?

MR KYRIAZIS: No.

HIS HONOUR: You are so close to a sentence for contempt.

MR KYRIAZIS: Well, can you please do it? Please.

HIS HONOUR: I'll get there.

Mr KYRIAZIS: You're threatening me with contempt. I've been threatened with contempt before. Now, can you (indistinct).

HIS HONOUR: Trust me ---

Mr KYRIAZIS: I need you to apply it.

HIS HONOUR: Trust me you'll get - - -

MR KYRIAZIS: Yes, I do. Yes, I do.

HIS HONOUR: You will get you wish.

MR KYRIAZIS: I hope so.

Another more significant such exchange occurred later in the hearing (page 49) when witnesses were giving evidence:

HIS HONOUR: Because you are unrepresented I make it clear that you now have yet an opportunity, if you want to, to ask this witness questions.

MR KYRIAZIS: I am not prepared.

HIS HONOUR: You do not want to?

MR KYRIAZIS: I am not prepared. What part of the English don't you understand?

HIS HONOUR: Next witness.

MR DEVLIN: I'd ask that this witness be excused, Your Honour.

HIS HONOUR: Yes. Thank you, Senior, you're excused?---Thank you, Your Honour.

(THE WITNESS WITHDREW)

(Witness excused)

MR DEVLIN: I call - - -

HIS HONOUR: Why do we give these people platforms?

MR KYRIAZIS: You're denigrating me publicly, are you?

HIS HONOUR: Yes.

Mr KYRIAZIS: What are you referring to as these people?

MR DEVLIN: I call (indistinct) Turner.

MR KYRIAZIS: What are these people? I'm going to ask you again. What are these people? What are you referring to?

HIS HONOUR: People who do not give - - -

MR KYRIAZIS: I want to know what your inference is.

HIS HONOUR: Okay. Let's have the next witness.

MR KYRIAZIS: Great. You're ignoring me. Is that right? Great.

As can be seen, the judge actually answered 'yes' to the question about whether he was publicly denigrating Mr Kyriazis. I do not think it is open to me to treat this as a slip of the tongue or an unintended remark. His Honour did not withdraw the answer and the audio-visual recording shows that he did then ignore Mr Kyriazis's questions. Later his Honour explained what he meant (page 62):

HIS HONOUR: You asked me before why it is I said why give these people a platform? I'm, in fact, referring to people like you, sir.

MR KYRIAZIS: And what's the reference (indistinct).

HIS HONOUR: Who don't acknowledge the law.

MR KYRIAZIS: Could you please explain - can you please the explain what the inference is.

HIS HONOUR: You have a right to answer the charge against you.

MR KYRIAZIS: What is it? For the record.

This explanation does not involve withdrawal of the public denigration that his Honour admitted making. His Honour then went on to inform Mr Kyriazis of his rights in relation to examining witnesses and giving evidence.

47 At the end of the hearing, the judge convicted and discharged Mr Kyriazis, took no action in relation to the issue of contempt and released him from the custody of the court, as revealed in this passage from the transcript (page 64):

HIS HONOUR: The matter before the court - - -

MR DEVLIN: Yes, a maximum fine of five penalty units. At the time

- - -

HIS HONOUR: No, I'm not going to fine him.

MR DEVLIN: Sorry, Your Honour?

HIS HONOUR: I'm not going to give this - there's no point in giving it oxygen. I'm going to convict and discharge him. It is no more than a technical breach. He has eventually provided the licence. If there was an offence of being an annoying vexatious and a complete pain in the bottom he could be charged and convicted of that, but there isn't. He's annoyed the policemen. He didn't comply immediately, but ultimately he did, and his crime lasts five minutes at best. He will be convicted on both charges and discharged.

MR KYRIAZIS: No.

MR DEVLIN: If Your Honour pleases.

MR KYRIAZIS: No. I'm not accepting (indistinct).

HIS HONOUR: Insofar as the contempt that's been displayed to this court by the appellant I do not propose to give him any further oxygen. I take no matter in relation to that and he can leave the dock and leave the court.

MR KYRIAZIS: You have no grounds. I'll be (indistinct) with that as well.

HIS HONOUR: So that is the end of that. All right.

**48 Counsel for the informant made cogent written submissions, which were developed in oral argument, that assisted in establishing the framework of principle within which the application for judicial review must be determined. He submitted that Mr Kyriazis (and his supporters in court) behaved in a manner that was ostentatiously defiant of the authority of the court. He used language that was intended deliberately to provoke the judge, who usually conducted himself in a calm manner in very trying circumstances. Judges are human and therefore may legitimately display a variety of emotions.[23] The presiding judicial officer is responsible for the security arrangements in court.[24] In view of Mr Kyriazis's behaviour, it was not surprising that the judge required him to be seated in the dock.

49 Counsel for the informant further submitted that the comments of the judge about giving 'these people' a platform were logically unconnected to the issues in the case. A fair minded observer would not have reasonably apprehended that the judge was biased by making these remarks and by otherwise conducting the proceeding in the manner that he did.[25] As Mr Kyriazis failed to take the point in the proceeding before his Honour, he ought not to be permitted to succeed in this court on this ground of judicial review.[26]

50 It was lastly submitted that the judge did not breach the rules of natural justice or fail to provide Mr Kyriazis with due assistance as a litigant in person. The assistance required depends on the capacity of the litigant and their understanding of the case and familiarity with court procedure.[27] The case before his Honour was simple, Mr Kyriazis professed knowledge of court procedures and did not lack the capability to express himself. He declined to participate in the proceeding by way of voluntary election.

51 Now a judge has power, indeed a responsibility, to ensure that the courtroom is safe and secure for all participants in the trial process, court personnel and the public. As was held by Street CJ (Nagle CJ at CL and Maxwell J agreeing) in R v EJ Smith, 'within the courtroom itself the authority of the presiding judge in respect of security matters is absolute'.[28] But this authority must always be exercised according to law having regard to the court's fundamental judicial function. As Bongiorno J held in R v Benbrika (Ruling No 12), 'judicial authority with respect to court security must always be exercised having regard to the paramount obligation on the Court to ensure, as far as possible, that the accused [has] a fair trial'.[29]

52 Therefore, if the judge in the present case reasonably considered that Mr Kyriazis had to conduct his defence from the dock for reasons of court security, his Honour had the power to so order. I think he did have this concern. He repeatedly called for court security, who were slow in coming. The concern was related to the behaviour of Mr Kyriazis and his supporters in court. This was one reason for ordering him into the dock. The other was that his Honour had decided 'to detain [Mr Kyriazis] for contempt'. The judge undoubtedly possessed this power, which also must be exercised according to law having regard to the court's fundamental judicial function. For the preservation of the integrity of this function, it was held by Kaye J in Hancock v Lynch that the 'summary jurisdiction to convict for contempt of court ought to be exercised with scrupulous care and only when the case is clear and beyond doubt'[30] and the power must be 'directed to ensuring the effective administration of justice'.[31]

53 In this application for judicial review, I am not asked to consider the legality of these steps and will assume their validity. However, in the hearing of summary criminal charges, the exercise of the power to order an accused person who is self-represented to conduct the defence from an isolated position in the dock for reasons of court security and by way of detention for contempt of court does not qualify the fundamental duty of the court to ensure a fair trial and provide due assistance. Moreover, what is required to ensure that trial and provide that assistance may be influenced by the fact that such an order has been made and the isolated position in which it places the accused in the hearing. Adopting this course may operate to increase the responsibilities of the judge in that connection.

54 I do not accept the submissions of counsel for the informant that the judge did not need to give much assistance to Mr Kyriazis because he was familiar with legal procedures. It is difficult to assess how familiar he was with such procedures because there was no enquiry into this question at the start of hearing. In this court, Mr Kyriazis said he was a disability pensioner whose level of education was '[a] failure at year 10'. From the letter dated 1 December 2016 and his involvement in the previous case in this court,[32] I infer that he had some familiarity. During the hearing before his Honour, he professed knowledge of legal procedure. But he did not demonstrate that knowledge during the course of the proceeding; indeed far from it. He plainly did not know what to do at various times. There is no evidence that he was familiar with how to conduct a defence to criminal charges from the dock in the unusual circumstances of this case. I therefore conclude that the judge was not relieved by Mr Kyriazis's previous knowledge of legal procedure from giving him due assistance.

55 Mr Kyriazis is not precluded from relying upon the ground of ostensible bias because he failed to take this point in the proceeding before his Honour. He may not have used those exact words. But he persistently protested against the injustice of his situation as he perceived it to be and asked for (unnecessary) permission to approach the Prothonotary of this court to review the conduct of the proceeding by the judge. After being ordered into the dock, he refused meaningfully to participate in the hearing. Taking into account his position as a litigant in person, he did more than enough to show that he was not acquiescing in the conduct of the proceeding.

56 As I have stated, the judge had power to order Mr Kyriazis into the dock and detain him there during the course of the hearing. But my reading of the transcript and viewing of the audio-visual recording shows that Mr Kyriazis was surprised, shocked and disempowered by this course. With respect, it is evident that both the judge and Mr Kyriazis lost their composure when that happened. A short adjournment for regaining that composure was glaringly appropriate but not taken. This set the conflictual pattern for the entire proceeding. The behaviour of his supporters in court exacerbated the situation.

57 There is some force in counsel's submission that there was no point in the judge assisting Mr Kyriazis because he had strongly, if not abusively, declared his intention not to participate in the hearing. However, Mr Kyriazis did so participate to some degree by making objections to evidence, rhetorical as they might have been. The judge did not approach the matter upon the basis that Mr Kyriazis was refusing to participate at all. For example, his Honour gave some assistance to Mr Kyriazis in relation to questioning witnesses (see above).

58 For the hearing to continue in accordance with the rules of natural justice having regard to Mr Kyriazis's position as a litigant in person, as the judge intended it would, his Honour was obliged to try to do much more than he did by way of assisting him. Something along the following lines was required, preferably near the start of the hearing but possibly later if order was restored, even assuming that Mr Kyriazis was to conduct the defence from the dock:

• inquiry into the capability that he possessed so that a judgment could be made as to how much assistance was required;

• explaining the procedure that would be followed during the course of the hearing and his options in relation to giving and not giving evidence;

• directing his attention to the legal and factual questions that were in issue, which were not complex and related to the elements of the offences, which might need to be briefly explained;

• explaining to Mr Kyriazis his right to remain silent and not give evidence or to give evidence if he wished and the election that he would later be asked to make in this regard;

• informing Mr Kyriazis that the prosecution was required to prove the offences beyond reasonable doubt and give him some little explanation of what this meant if he required it; and

• discussion of the procedure for producing the documents under the supbeaonas and how these would be inspected.

Nothing like this occurred and the judge provided only limited assistance well into the hearing, by which time it was really too late. As it progressed, I think the opportunity to place the proceeding upon a proper judicial footing was lost because, with great respect, the relationship between the judge and Mr Kyriazis broke down into one of apparent personal animosity.

59 A trial in which a party is displaying animosity towards the court or a judge raises acute challenges of judicial trial management. As judges are human and capable of exhibiting all the emotions which humanity inherits, it is understandable that, when confronting such challenges in a particular proceeding, a judge might express anger or frustration. I do not conclude from the anger and frustration that was expressed by the judge in the present case that he breached the rules of natural justice or was ostensibly biased. The behaviour of Mr Kyriazis and his supporters would have tried the patience of Job. However, as a judicial minimum, the appearance of impartiality must always be maintained. The transcript and audio-visual recording of the hearing reveal a level of aggression (I cannot describe it in any other way) passing between the judge and Mr Kyriazis that I find troubling. As the passages of the transcript set out above show and the audio-visual recording shows better, many of the remarks made by his Honour to Mr Kyriazis were personal in nature, particularly the one that he admitted was intended to denigrate Mr Kyriazis publicly.

60 A judge is required to administer the rule of law objectively and impartially without regard to feelings of sympathy, animosity or prejudice or any kind towards a party to a legal proceeding. For a judge personally and publicly to denigrate a party to a proceeding during a hearing is inconsistent with this fundamental judicial responsibility. However, it is not necessarily fatal to the legality of the proceeding for a judge to do so. In a case like the present, this would turn on whether a fair-minded observer might reasonably apprehend that the judge might not be impartial in hearing and determining the proceeding. The reviewing court would take into account not just the making of the impugned remark but also the judge's conduct of the proceeding generally, the context in which the remark was made and whether it was withdrawn or explained, among other potential considerations.

61 In the present case, the conduct of the proceeding was highly conflictual to an unusual extent. Counsel for the informant that the judge was usually calm in manner but the transcript and audio-visual recording show that his Honour was anything but that for significant periods of time. The judge had Mr Kyriazis taken into custody without warning at the start of hearing, placed him in the dock and detained him for contempt in that isolated position for the duration of the hearing. Aggression rising beyond anger and frustration was displayed on both sides. The language used by each towards the other became argumentative and personal on several occasions. With respect, it is regrettable that the judge, who is very experienced, allowed himself to be drawn into such a situation. It was in this context that the judge referred to Mr Kyriazis as being one of 'these people', which he immediately admitted was 'denigrating [of Mr Kyriazis] publicly'. His Honour thereby admitted to intentionally denigrating Mr Kyriazis publically and personally. His Honour never withdrew or apologised for this and the explanation that he belatedly gave only reinforced that it was directed personally towards Mr Kyriazis. It was not a slip of the tongue in the heat of the moment. Counsel for the informant did not so submit, and on the evidence could not so submit.

62 It may be that, even had the remark not been made, the conduct of the proceeding would have been regarded as lacking the requisite apparent judicial impartiality. I think a fair-minded observer would struggle, as I have done, to justify what occurred, even given the behaviour of Mr Kyriazis and his supporters. However, upon a consideration of the evidence about the whole course of the proceeding, which is available in transcript and audio-visual form, I must conclude that a fair-minded observer would have reasonably apprehended that the judge might not have impartially conducted the hearing and determined the charges and the sentence at least because he had personally and publically denigrated Mr Kyriazis.

63 I take into account that the remark made by his Honour related to Mr Kyriazis not acknowledging the law. Counsel submitted that this was logically unrelated to the issues in the trial. Even accepting that the remark did not go to an element of the charges or any issue of fact that was in dispute, I am not sure that this is right. The judge had to do more than find whether the charges were proven. If his Honour were to so find, he had to sentence Mr Kyriazis. Sentencing involves a degree of personal assessment of the offender. It is not easy to see how a judge could lawfully sentence an offender whom he or she had personally denigrated during a substantive hearing of the kind that occurred here, for the appearance of bias would seem impossible to remove. Putting that to one side, however much Mr Kyriazis must share a significant degree of responsibility for what occurred in the proceeding, he was still entitled to a hearing and determination of the criminal charges that was fair to him personally. The rules of natural justice relating to bias are not confined to alleged pre-judgment. They extend to cases of apparent personal ill-disposition on the part of a judge towards a party to the proceeding such as would reasonably persuade a fair-minded observer that the judge might not impartially determine the charges and sentence. Considering the whole proceeding, I think such an observer would so conclude in the present case.

64 For those reasons, Mr Kyriazis has established that the judge was ostensibly biased against him in the way that the hearing was conducted and his Honour breached the rules of natural justice in failing to give him due assistance as a litigant in person.

65 Mr Harkness has established that he was entitled to make oral submissions by way of objections to jurisdiction in relation to the road safety charges that were brought against him. The magistrate sitting in the Magistrates' Court at Seymour summarily rejected those objections without giving him the opportunity to make those submissions or providing due assistance to him as a litigant in person. In doing so, her Honour breached the rules of natural justice and his human right to a fair hearing under the Charter, which were errors of law. She committed no error of law in having him removed from the courtroom and hearing and determining the charges in his absence as this was done by reason of his unacceptable behaviour. Mr Harkness's appeal will be upheld, the orders of the magistrate will be quashed and the charges will be remitted to the Magistrates' Court for hearing and determination according to law by a different magistrate.

66 Mr Kyriazis has established that the judge sitting in the County Court of Melbourne breached the rules of natural justice in relation to the hearing and determination of the road safety charges that were brought against him. The judge gave him very limited assistance as a litigant in person. Further, the conduct of the proceeding was highly conflictual to an unusual degree. Aggression rising above anger and frustration passed between Mr Kyriazis and the judge at various times during the hearing. On one occasion, the judge personally publically denigrated him, admitted that this was intended and did not withdraw the remark. In the circumstances, a fair-minded observer would reasonably conclude that his Honour might not have impartially heard and the determined the charges. The judge therefore exceeded the court's jurisdiction. The application for judicial review will be upheld, the orders of the judge will be quashed and the charges will be remitted to the County Court for hearing and determination according to law by a different judge.**

[1] [2007] VSC 337; (2007) 17 VR 100, 112-18 [66]-[88] (Bell J) ('Tomasevic').

[3] See eg Waddington v Kha [2015] VSC 339 (22 July 2015) [60] (Daly AsJ_); Zhong v Melbourne Health_ [2015] VSCA 165 (25 June 2015) [68] (Santamaria, McLeish JJA and Dixon AJA) ; Stone v Braun [2015] WASCA 103 (28 May 2015) [64] (Buss and Mazza JJA and Beech J); Love v Roads Corporation [2014] VSCA 30 (6 March 2014) [21] (Maxwell P, Whelan and Santamaria JJA) ; Pham v Ex Parte, Drakopoulos [2013] VSCA 43 (1 March 2013) [55] (Vickery AJA, Whelan JA agreeing); Werden v Legal Services Board [2012] VSCA 278; (2012) 36 VR 637, 650-1 [54]-[55] (Redlich JA, Tate JA agreeing); Slaveski v Rotstein & Associates Pty Ltd [2012] VSCA 291 (16 November 2012) [17] (Maxwell P, Warren CJ agreeing); Pamamull v Albrizzi (Sales) Pty Ltd (No 2) [2011] VSCA 260 (6 September 2011) [101] (Neave, Harper and Hansen JJA); Isherwood v Tasmania [2010] TASCCA 11 (2 September 2010) [60] (Crawford CJ, Evans and Blow JJ); Bauskis v Liew [2013] NSWCA 297 (5 September 2013) [68] (Gleeson JA, Beazley P and Barrett JA agreeing).

[4] See Matsoukatidou v Yarra Ranges Council [2017] VSC 61 (28 February 2017) [34] (Bell J) ('Matsoukatidou') and the authorities discussed therein.

[5] [2017] VSC 61 (28 February 2017) (Bell J).

[6] Ibid [130] (s 8(3) of the Charter is not relevant in this case).

[7] [2007] VSC 337; (2007) 17 VR 100, 129-30 [138]-[142] (Bell J).

[9] Ibid, citing John Randolph Lucas, The Principles of Politics (Clarendon Press, 1966) 132.

[10] Ibid 381 [145], citing John Randolph Lucas, The Principles of Politics (Clarendon Press, 1966) 270.

[11] Matsoukatidou [2017] VSC 61 (28 February 2017) [178]-[179] (Bell J).

[12] I am not here dealing with those cases in which no amount of judicial assistance will make the hearing fair because legal representation is indispensable for that purpose (see, eg, Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292).

[13] There may be cases in which justification under s 7(2) may need to be considered.

[14] Matsoukatidou [2017] VSC 61 (28 February 2017) [181]-[182] (Bell J).

[15] Fletcher Constructions Australia Ltd v Lines Macfarlane & Marshall (No 2) [2002] VSCA 189; (2002) 6 VR 1, 30-4 [99]-[106] (Charles, Buchanan and Chernov JJA); Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, 666-7 (Gibbs CJ, Brennan, Deane and Dawson JJ agreeing).

[16] Opeka Pty Ltd v Mackie Group Pty Ltd [2003] VSC 183 (23 May 2003) [24] (Nettle J).

[17] R v Serrano (No 5) [2007] VSC 209; (2007) 16 VR 360, 362-3 [24] (Kaye J), citing Lawrence v R [1933] AC 699, 708 (Lord Atkin for Lord Atkin, Lord Thankerton and Sir George Lowndes); R v Abrahams [1895] ArgusLawRp 62; (1895) 21 VLR 343, 347-8 (Williams J); R v Vernell [1953] VicLawRp 79; [1953] VLR 590 (Martin, O'Bryan and Smith JJ).

[18] [2017] VSC 560 (18 September 2017) [19].

[19] See, eg, Tomasevic [2007] VSC 337; (2007) 17 VR 100, 130-1 [146] (Bell J).

[20] Kyriazis v The Magistrates' Court of Victoria at Heidelberg [2014] VSC 411 (1 September 2014) (Williams J) ('Kyriazis').

[21] Kyriazis v County Court of Victoria (No 1) [2017] VSC 636 (26 October 2017) (Bell J).

[23] Galea v Galea (1990) 19 NSWLR 263, 279 (Kirby ACJ).

[24] R v Benbrika (Ruling No 12) [2007] VSC 524 (12 December 2007) [23] (Bongiorno J) ('Benbrika').

[25] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 350 [33] (Gleeson CJ, McHugh, Gummow and Heydon JJ).

[26] Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568, 572-3 (Brennan, Deane and Gaudron JJ); Polimeni v R (Unreported, Court of Appeal of the Supreme Court of Victoria, Nettle JA, 16 October 2013) [40] (attached to Polimeni v R [2014] VSCA 72 (16 April 2014) (Weinberg and Coghlan JJA)); Wentworth v Rogers (No 12) (1987) 9 NSWLR 400, 421-2 (Kirby P, Hope and Priestly JJA); George v Fletcher [2012] FCAFC 148 (25 October 2012) [97] (Siopis, Jessup and Katzmann JJ).

[27] Tomasevic (2007) 7 VR 100, 121 [99]-[100], 130 [141] (Bell J) (see above).

[29] [2007] VSC 524 (12 December 2007) [24].

[30] [1988] VicRp 23; [1988] VR 173, 176, citing John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1954) 93 CLR 351, 370 (Dixon CJ, Fullagar, Kitto and Taylor JJ).

[32] Kyriazis [2014] VSC 411 (1 September 2014) (Williams J).

Court (General Civil Procedure) Rules 2015

Human Rights and Responsibilities Act 2006

At a glance

Court

Decision date

Before

Source

Judgment (143 paragraphs)

Legislation Cited (5)

Cases Cited (13)