Plaintiff v First Defendant

2 On that day the Magistrate adjourned the further hearing of certain criminal charges against the plaintiff to a 'contest mention' on 14 March 2019, and refused a request made by the plaintiff (who was appearing as a litigant in person) for the charges to be stayed until after the plaintiff had obtained further information about the prior handling of the case and until after the plaintiff was released from prison.

3 The application to this Court for judicial review was commenced on 14 March 2019 and was listed for final hearing today. The plaintiff sought an adjournment. It was a specious application. I refused it. The matter then proceeded.

4 The plaintiff is imprisoned at the Hopkins Correctional Centre in Ararat. In about 1992, in Queensland, he was sentenced to life imprisonment, with a non-parole period of 15 years for murder. He was later transferred as a prisoner to Victoria.

5 In September 2015 the plaintiff was at large in the community in north-east Victoria on conditional parole. On 25 September 2015 the Adult Parole Board cancelled the plaintiff's parole and issued a warrant of apprehension. On the same day police conducted a search of his home pursuant to a search warrant. The police identified what they have alleged to be child pornography on a computer at the plaintiff's home. The plaintiff was interviewed by police, but on legal advice declined to answer questions.

6 On 9 September 2016 the plaintiff was charged by charge sheet and summons with three counts of possessing child pornography (Magistrates' Court proceeding No. G13301604) and one count of breaching the conditions of his parole (Magistrates' Court proceeding No. G12666961). The allegation of breach of parole was apparently based on the alleged child pornography offences. The charges were returnable in the first instance at the Wangaratta Magistrates' Court on 17 October 2016.

7 By letters dated 7 and 10 October 2016 to the Wangaratta Magistrates' Court, the plaintiff, who was then in custody at Loddon Prison, asked for an eight month adjournment of the matters.

8 On 17 October 2016 a Magistrate adjourned the matters until 21 November 2016.

9 On 21 November 2016 the plaintiff, who remained in custody, did not appear. In those circumstances, the presiding Magistrate ordered that a warrant of arrest be issued for his apprehension. The matters were adjourned to a date to be fixed at the Wangaratta Magistrates' Court.

10 On 7 December 2016, the plaintiff wrote again to the Magistrates' Court at Wangaratta. He complained that he had had no reply to his letters of 7 and 10 October 2016. He asked for an indication and explanation of what had transpired. On 28 December 2016, a Registrar of the Court wrote to him in the following terms:

Thank you for your letter dated 7 December 2016. Please find enclosed a copy of the correspondence you sent to the Wangaratta Magistrates' Court, dated 10 October 2016, as requested. This correspondence was provided to the magistrate when your matter was called on 17 October 2016. On this day, the magistrate adjourned your matter to 21 November 2016. On 21 November 2016, the magistrate made an order for a warrant to be issued for your arrest, and adjourned to a date to be fixed. This allows you to make an appointment with the police upon your release from custody, to have the warrant executed and your matter dealt with accordingly.

11 On 16 January 2017, the matters came before a Registrar at Wangaratta. They were adjourned to 13 February 2017. On 13 February 2017, the matters were further adjourned to 6 March 2017. On 6 March 2017, with the plaintiff still being in custody, the matters were further adjourned to a date to be fixed, and another order was made for the arrest of the plaintiff, on the basis that he failed to appear on summons. On 4 May 2017, a member of the Wangaratta police wrote to the Magistrates' Court at Wangaratta, seeking advice about how to progress the matters, given that there were then two outstanding arrest warrants.

12 The letter from the police officer indicated that the plaintiff's then solicitor, Ms M Carroll, had that day stated that the plaintiff would soon be eligible for parole but would not be granted parole while the charges were hanging over his head and refused to sign parole papers anyway.

13 On or about 11 October 2018, a document entitled 'Notice to Accused' was left for the plaintiff at the Hopkins Correctional Centre in Ararat. It included information that the case that had been listed for 21 November 2016 was not heard on that date, and had been adjourned to 26 November 2018.

14 On 16 October 2018, the plaintiff wrote to the Magistrates' Court at Wangaratta asserting that the Notice to Accused was in error because it contradicted information previously provided by the Magistrates' Court to the effect that the matters had been adjourned until after his release, and noting that he had not yet been released. He sought confirmation of this position, or otherwise.

15 On 1 November 2018, a Registrar of the Magistrates' Court at Wangaratta replied to the plaintiff, informing him that the matters had been correctly listed for 26 November 2018, and enclosing a document entitled 'Advice of Hearing Date', which specified that the case was listed for mention on 26 November 2018.

16 On 26 November 2018, solicitors acting for the plaintiff, Emma Turnbull Lawyers, apparently wrote to the Magistrates' Court relating to the matter, although no copy of that letter is included in the material before this Court. In any event, the plaintiff appeared by audio-visual link before Magistrate Mithen on that day. Magistrate Mithen further adjourned the matters until 21 January 2019.

17 On 29 November 2018, the plaintiff wrote to the Magistrates' Court again, saying that it had been erroneous to list the matters for 26 November 2018. This letter was received on 10 December 2018. On that day, a Registrar of the Magistrates' Court wrote to the plaintiff, enclosing a copy of the Emma Turnbull Lawyers' letter of 26 November 2018 (of which no copy is in evidence) and informing the plaintiff that his next hearing date would be 21 January 2019. That was in accordance with the order made on 26 November 2018 by Magistrate Mithen as already mentioned.

18 On 3 January 2019, the plaintiff wrote again to the Magistrates' Court, making the same complaint, and threatening to commence a proceeding in the Supreme Court of Victoria.

19 On 21 January 2019, the plaintiff appeared in person by audio-visual link before Magistrate Higgins. He was not legally represented. The transcript of that hearing is in evidence before me.

20 It was established during the hearing on 21 January 2019 that a brief of evidence had been provided to the plaintiff's solicitor or former solicitor, Emma Turnbull. Magistrate Higgins said that he would ensure that the brief of evidence was supplied to the plaintiff personally by the police. As mentioned above, the plaintiff sought a stay of proceedings until he could discover more information about how the case had previously been dealt with in the Magistrates' Court and until after he was released from custody. Magistrate Higgins declined a stay, but adjourned the matter to a contest mention some eight weeks thereafter, namely on 14 March 2019.

21 Between 21 January and 13 March 2019, the plaintiff took various steps towards commencing a proceeding by way of judicial review in this Court, seeking principally to obtain a stay of the Magistrates' Court proceedings until he was released from custody.

22 On 13 March 2019, this proceeding was actually commenced by the filing of an originating motion.[1] The proceeding has undergone a series of interlocutory steps since then that need not be detailed.

23 In essence, the application is for an order in the nature of certiorari to quash the orders made by Magistrate Higgins on 21 January 2019, by which his Honour adjourned the matters until 13 March 2019 for a contest mention instead of acceding to Mr McKechnie's application for an indefinite stay of the charges.

24 Although no interlocutory or other stay has been granted by this Court during the pendency of this proceeding, the Magistrates' Court matters have not been determined and have been further adjourned to a mention hearing on 22 June 2020.

25 There is no substance whatsoever in the plaintiff 's complaints about the hearing that took place before Magistrate Higgins on 21 January 2019, or in his complaints about the order that was made. The letter of 28 December 2016 was from a Registrar. It was not an order of the Magistrates' Court. It was a piece of information or advice. It could not detract from the informant's right to proceed with the prosecution. The letter from the Registrar was not even clear in its own terms. Any indication given in the letter was certainly not immutable. The plaintiff had no right to insist that the Magistrates' Court matter be stayed until he was released from prison or until he found out as much as he wished to find out about the prior course of proceedings in the Magistrates' Court. That would have been to interfere unduly with the course of the criminal prosecution, contrary to well-known authorities such as Jago v District Court of New South Wales.[2] The plaintiff is in no better position now.[3]

26 There was and is no reasonable cause for any concern on the part of the plaintiff about the history of the proceedings in the Magistrates' Court leading up to the hearing on 21 January 2019. And, contrary to the plaintiff's submissions, there was no bias, no breach of procedural fairness and no attempt to 'coerce' the plaintiff to plead guilty on the part of Magistrate Higgins on that day. Rather, after the plaintiff was asked some questions designed merely to assist him to understand better the legal position he was in and the options available to him, the plaintiff refused to indicate what his plea was or would be. As a result, in accordance with ordinary practice, the Magistrate then treated the charges as being contested.

27 Moreover, pursuant to the directions given by Magistrate Higgins and pursuant to certain interlocutory orders made at the plaintiff's request in this Court, the defendants have in fact provided the plaintiff with all of the information and documents that he could reasonably require for the purposes of defending the Magistrates' Court charges and of understanding their progress to date. The next Magistrates' Court hearing is only a mention or contest mention. The plaintiff has not suggested that he has been denied legal aid. Rather, it seems that he wishes to represent himself.[4] If the plaintiff does encounter any difficulty in meeting the charges, or in preparing for the charges to be dealt with, that is a matter he can raise with the Magistrates' Court, but it is not a matter suitable for the consideration of this Court in this proceeding.[5]

28 This proceeding is hopeless. It is misconceived. It is dismissed.

29 The plaintiff is to pay the second defendant's costs (including any reserved costs) of this proceeding.

[1] An amended originating motion was filed on 7 June 2019.

[2] [1989] HCA 46; (1989) 168 CLR 23.

[3] See Rozenes v Beljajev [1995] VicRp 34; [1995] 1 VR 533, 571 (Appeal Division); Chief Executive Officer of Customers v Jiang [2001] FCA 145; (2001) 111 FCR 395, 398-399 [6]-[12].

[4] For some reason, the plaintiff appears to have no desire to be released from his present custody.

[5] See Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 118, 131-2 [79]; Knight v Sellman & Ors [2020] VSC 320 [221].