Plaintiff v Second Defendant

[2008] VSC 57

CRIMINAL LAW - Indictable offences - No consent to summary jurisdiction - Defendant unrepresented - Delay in charging defendant with further indictable offence which could not be heard summarily - Committal proceeding - Magistrates' Court Act 1989 s. 53 and Schedule 4

ADMINISTRATIVE LAW - Judicial review - Procedural fairness - Delay in applying for review - Supreme Court Rules, r.56.02

HUMAN RIGHTS - Transitional provisions - Act or decision of public authority - Charter inapplicable - Charter of Human Rights and Responsibilities Act 2006 ss 2, 4, 39 and 49

1 By an originating motion filed on 14 March 2007, and amended on 29 June 2007, the plaintiff, Genco Guneser, sought relief in the nature of "Mandamus pursuant to Order 56 of the Supreme Court Rules" and a "Permanent stay of the proceedings in this Honourable Court's inherent jurisdiction". The proceedings referred to is the trial of Mr Guneser in the County Court of Victoria on charges of intentionally or recklessly causing injury or serious injury, which trial is listed to commence on 11 March 2008.

2 The following summary of the factual background has been largely derived from the two affidavits in support of Mr Guneser's application sworn by his then solicitor, Paul Richard Pentony, on 28 March and 3 May 2007 respectively and the numerous documents exhibited to those affidavits. Some limited material has also come from statements from the Bar Table by Mr Guneser, who represented himself before me. Two further comments should be made. First, it has not been possible to set out all of the relevant history because the exhibited material did not contain the depositions or witness statements of the case against Mr Guneser. Secondly, whilst much of this factual background is not relevant to an application for judicial review nor in admissible form, I have still referred to it in order to explain the position in which Mr Guneser now finds himself.

3 In late 2003, Mr Guneser, who was then a taxi driver, was charged on summons dated 29 August 2003 with six offences relating to allegations of assault by him on two passengers on 19 May 2003. Mr Guneser had driven the two passengers, Garth Gladman and Stephanie Mallinson, from a nightclub to their home in St. Kilda. The incident apparently followed a dispute over payment. Mr Gladman subsequently told the triage nurse at the hospital that he had had 18 pots of beer that night. Ms Mallinson said in the committal hearing that although she had drunk 12 glasses of full strength beer she was "still quite conscious and alert of what was going on". Two entries into the Eftpos machine were declined and the receipts both said "Retry PIN". This was possibly because the taxi's Eftpos machine was not working or more likely, Mr Gladman was not entering his account personal identification number correctly. According to Mr Guneser, after this happened Mr Gladman became abusive, swearing at him, complaining that the fare being charged was more than was showing on the meter and calling him "a dirty thieving Arab". A fight started between the two men and Mr Guneser admitted that he hit Mr Gladman several times with a Maglite torch which he had grabbed to defend himself. Mr Guneser said that, during the fight, he was also attacked by Ms Mallinson, but he denied hitting her with the torch. After the fight stopped, Mr Guneser drove his taxi to the St. Kilda police station to report what had happened. He told the police officer on duty that two passengers, a male and a female, had refused to pay the fare and that they had assaulted him. The second defendant, Senior Constable Belinda Rampal, who became the informant, and a colleague had attended the scene after Mr Guneser left. They spoke to the passengers, before they were taken by ambulance to the Alfred Hospital, and witnesses. They then returned to the police station, interviewed Mr Guneser and arrested him.

4 The summons containing the six charges, which comprised two indictable offences (recklessly causing injury[1] to Mr Gladman, and to Ms Mallinson) and two summary offences (unlawful assault with a weapon and unlawful assault[2]) in respect of each passenger, was not filed until 19 October 2003, so that the charges were liable to be struck out.[3] Accordingly, they were withdrawn and on 9 March 2005 four new charges were laid against Mr Guneser. All of them alleged indictable offences, no doubt because it was now too late to re-issue the summary charges.[4] Two of the four charges related to each passenger - intentionally causing injury and recklessly causing injury[5] to Mr Gladman and Ms Mallinson respectively.

5 In the meantime, Mr Guneser had, by letter dated 10 November 2003, written to the informant, Constable Belinda Rampal, seeking a range of material such as copies of witness statement, exhibits, and reports of any medical examinations on the passengers, no doubt in anticipation of the first hearing date of the six charges which was to be 24 November 2003. Further, by a witness summons dated 14 April 2004 addressed to the informant, Mr Guneser had sought four documents including Mr Gladman's "bank statement for the day of the incident". The results of these applications were not disclosed. A contested hearing of these six charges on 25 October 2004 had been adjourned because Mr Guneser was going overseas.

6 The four new charges were listed for initial hearing on 11 April 2005. According to the court records, they were further mentioned on 9 May, 9 June, 19 July and 11 August 2005. The material does not reveal the reasons for each of these adjournments, but it appears that at some stage Mr Gladman moved interstate and that for some time the police did not know where he was. It also appears that some adjournments may have resulted from the informant travelling overseas.

7 By a notice filed 12 August 2005, returnable a fortnight later, Mr Guneser again applied for copies of various documents, including Mr Gladman's "bank statement for the day of the incident (or covering the day of the incident)". It would appear that Mr Guneser then engaged solicitors to act for him because, by letter dated 16 August 2005, Robert Stary and Associates wrote to the informant seeking the results of the forensic examination of items such as the torch allegedly used by Mr Guneser in the assaults. The charges were mentioned again on 26 and 31 August 2005. On the latter date they were adjourned to 23 November 2005 for a contest mention because, according to a letter dated 31 August 2005 from Robert Stary and Associates to Mr Guneser, "the Prosecution applied for a three month adjournment in order for forensic testing to be carried out". The solicitors also advised their client that "the forensic evidence will be a crucial aspect to your case". Rather surprisingly, according to the court records the charges were mentioned again on 5 September 2005 (or 15 September 2005 according to Mr Guneser's solicitors) and, according to their letter to him dated 26 September 2005, again adjourned because of "the absence of the necessary forensic evidence".

8 On 23 November 2005, the four charges were adjourned for a contested hearing of two days' duration on 1 March 2006, according to a letter dated 25 November 2005 from Robert Stary and Associates to Mr Guneser. By a letter dated 28 November 2005 Mr Guneser's solicitors wrote to the informant noting her difficulties in locating Mr Gladman, asserting certain weaknesses in the case involving Ms Mallinson, in particular the informant's advice that there was no female blood on the torch, and asking that consideration be given to withdrawing the charges.

9 It appears that on 1 March 2006 Mr Gladman became available at the last minute. According to Mr Stary's letter to Mr Guneser dated 1 March 2006, "Mr Gladman had contacted the informant at 7.00 a.m. on 1 March and was both willing and able to attend court to give evidence in your case". Mr Guneser's solicitor was prepared to proceed with the hearing, but Mr Guneser was concerned that the forensic evidence which his solicitor had previously advised was "crucial" to his case was still not available. They clashed over whether or not the hearing should proceed without that evidence and Mr Guneser withdrew his instructions, which, of course, left him representing himself. Again according to Mr Stary's letter to Mr Guneser, his case had been "adequately prepared both through conferences with you and by examination of the material".

10 Mr Guneser's subsequent application for an adjournment to obtain legal representation was refused. In his ruling,[6] the Magistrate referred to the fact that it was "a very old matter", had been listed twice previously for contests and was booked in for a two day hearing. He referred to the fact that Mr Guneser's solicitors had been provided with all of the witness statements, that it was a dispute about who did what to whom, and that the nine witnesses were available to give evidence on that day. The Magistrate referred to Mr Guneser's concern that the DNA sample from one of the alleged victims had not been obtained, but dismissed it as not important by stating that "of course it is a matter for the police as to what evidence they will seek to rely on in the presentation of the case". Finally, the Magistrate emphasised that Mr Guneser was only unrepresented because he had sacked his solicitor on the day because he was unhappy with his advice. The Magistrate said that this was no ground for an adjournment.

11 Following this ruling the matter was stood down pending a Magistrate becoming available to hear it. According to the transcript, when the matter was again mentioned, apparently still before the same Magistrate, Mr Guneser thanked him "for the opportunity for allowing me to go and see a legal person".[7] The issue that then arose was whether Mr Guneser consented to summary jurisdiction or whether he wanted to go to trial. Mr Guneser again sought to have the matter adjourned so that he could take legal advice on this issue, but the Magistrate treated this as a refusal to make an election and said that accordingly it would proceed to "a filing hearing" in "the committal stream".[8]

12 Although it is not particularly clear, it appears to me that following a short adjournment to enable a representative of the Office of Public Prosecutions to appear, the matter came before another Magistrate in court 1. I say this because when Mr Guneser again sought an adjournment, the transcript records the prosecutor telling this Magistrate that Mr Guneser had applied "downstairs in front of your brother Magistrate for an adjournment".[9] Because of the adjournment application, the second Magistrate referred the matter back to the first Magistrate in court 2. That Magistrate refused to allow Mr Guneser to re-open the question of an adjournment. He told Mr Guneser that he needed to indicate

whether you are prepared to consent to a summary hearing of the matters, or whether you wish to take the matters to trial in the County Court before a Judge and a jury.[10]

Eventually, the first Magistrate stood the matter down until after lunch to enable Mr Guneser to speak to Legal Aid about whether he should consent to summary jurisdiction or not. He indicated that if Mr Guneser was then still "not in a position to make an election", he would proceed with "a filing hearing" which would result in the matter "going to trial in the County Court".[11] Although there is no transcript of the afternoon hearing, it was not disputed that Mr Guneser did not consent to summary jurisdiction.

13 By a statement dated 21 April 2006 a forensic scientist, Ms Alexandra Salerno, set out the results of her analysis of the bloodstains found on the torch allegedly used by Mr Guneser in the assault on Mr Gladman and Ms Mallinson. According to her statement, Ms Salerno received the torch on 13 September 2005 and a DNA sample from Mr Gladman on 14 March 2006. Ms Salerno said that her analysis showed that Mr Gladman could not be excluded as a possible source of all three bloodstains found on the torch, and that in respect of two of the bloodstains the findings provided extremely strong support for the proposition that they were from Mr Gladman. There was no mention of any other bloodstains, or any DNA link between the torch and Ms Mallinson.

14 The matters returned to court on 24 May 2006, on which day Mr Guneser was charged with two further offences, namely, intentionally causing serious injury to Mr Gladman[12] and recklessly causing serious injury[13] to Mr Gladman. The first of these two offences cannot be heard summarily.[14]

15 The matters returned to court for the eleventh time on 26 and 27 June 2006. Following that mention and the delivery of a hand-up brief, Mr Guneser gave notice on 29 June 2006 of the ten witnesses he wished to cross-examine. By notice dated 3 July 2006, the Director of Public Prosecutions opposed leave being given on the grounds that Mr Guneser had failed to identify an issue to which the proposed questioning related, and had not provided a reason why the evidence of the witnesses was relevant to any such issue. Leave was granted by the Magistrates' Court on 10 July 2006.

16 By a letter dated 8 November 2006, Mr Pentony wrote to the Office of Public Prosecutions seeking copies of Mr Gladman's relevant bank statements. The letter continued:

It is my understanding the purpose of the Special Mention on 15 December 2006 before Mr Fitzgerald M. at Melbourne Magistrates' Court is to determine whether the above matter is to be heard summarily or upon indictment.

As previously advised, it will be my submission to the Court that the matter should be fully heard summarily.

17 The matters did come before the Magistrates' Court on 15 December 2006 but were not heard summarily because the prosecutor told the Court that the charge of intentionally causing serious injury would not be withdrawn.

18 A committal hearing took place on 15 and 16 January 2007. Mr Gladman gave evidence at the committal hearing by video link from Perth. In cross-examination, he said that during the fight with Mr Guneser he was "momentarily" knocked out when he hit the ground whilst holding Mr Guneser in a bear hug. He agreed that his claim to have been knocked out was not in his statement to the police signed a week after the incident. Dr Sean Arendse, who was the treating doctor in the emergency ward at the Alfred Hospital, gave evidence that he inserted five sutures in a three centimetre laceration in Mr Gladman's skull. The patient had not lost consciousness and was not concussed. Dr Arendse described the injury as "minor", although he said that like any head wound it was "potentially serious". Mr Gladman was discharged after some hours in the emergency ward.

19 Given this evidence, Mr Pentony submitted at the conclusion of the committal that Mr Guneser should not be committed for trial on the charge of intentionally causing serious injury to Mr Gladman because the injury suffered by Mr Gladman could not be a "serious injury". Section 15 of the Crimes Act 1958 defines "injury" and "serious injury" as follows:

injury includes unconsciousness, hysteria, pain and any substantial impairment of bodily function;

serious injury includes a combination of injuries.

I have already referred to the fact that the treating doctor described the injury as "minor", although a head wound was "potentially serious". The contemporaneous evidence would also suggest that there was no loss of consciousness. Nevertheless, the Magistrate considered the evidence and decided that it was appropriate to commit Mr Guneser for trial on all of the charges. In rejecting Mr Pentony's submission that there was no serious injury the Magistrate may well have had in mind the Court of Appeal's decision in R v Ferrari[15] that a jury might properly find that to pull another backward across the front seat of a car and punch the other in the face causing two significant black eyes to the victim, together with grazes around the top of the head and face constituted the infliction of "serious injury".

Further, the question is really one for a jury to decide once there is a sufficient basis for the allegation that there was a "serious injury". As Crockett J said in R v Welsh and Flynn:[16]

There is no exclusive definition of the word "serious" in the Act. It was left to the jury to determine as a matter of fact what injury or injuries in combination might properly be categorised as being serious, having regard to the fact that the word "serious" is an ordinary English word the meaning of which must be taken as well understood by the members of the jury. This accordingly required that it be left to the jury to determine as a fact whether the combination of injuries should have been appropriately treated as "serious" injuries.

A determination whether a given injury or series of injuries can be categorised as 'serious injuries' in terms of s.16 of the Crimes Act will no doubt involve a value judgment. That judgment will in turn involve comparison between the injury or injuries in question alleged to be serious and an injury or injuries which would, according to ordinary human experience, be commonly regarded as slight, superficial or trifling and therefore falling short of being 'serious injury'.

20 Following the committal of Mr Guneser, he commenced this proceeding and on 6 June 2007 it was fixed for hearing on 27 November 2007. On 26 March 2007, at a case conference in the County Court, the trial was scheduled for 11 March 2008.

21 By a letter dated 12 September 2007 Mr Guneser advised the Court that Mr Pentony was no longer acting for him. On 11 October 2007, Mr Pentony filed a notice that his firm was again acting as Mr Guneser's solicitor, but some time later his services were again terminated with the result that when the proceeding came on before a Master for hearing on 27 November 2007, Mr Guneser was unrepresented. On Mr Guneser's application on that day for an adjournment to enable him to obtain legal representation the Master adjourned the hearing to 4 December 2007. Not satisfied with this, Mr Gunesar immediately appealed to the Judge sitting in the Practice Court. The appeal was allowed and the hearing was adjourned to 10 December 2007, when it came before me. Mr Guneser, who said that he had not been able to find a lawyer to represent him, again applied for an adjournment. I adjourned the hearing to 13 December 2007 to enable Mr Guneser to continue his efforts to obtain representation. I also requested the Public Interest Law Clearing House to see whether a barrister could be asked to appear as amicus curiae, or a friend of the court, to put whatever arguments on behalf of Mr Guneser he or she considered appropriate. I went down this path because of my concern that Mr Guneser would terminate the services of any lawyer, even one arranged for him, if he did not like the advice he received or was unhappy about the amount of costs he was asked to pay.

22 Mr Guneser was still unrepresented on 13 December 2007. He produced a list of seven firms of solicitors he had approached. Mr Guneser said that none of them were prepared to act for him. Six said that they were committed to other matters. Accordingly, Mr Guneser again applied for an adjournment of the hearing of the proceeding. Mr Ashton, of counsel, appeared as a friend of the court. He submitted that an adjournment was required to attempt to fix up gaps in the evidentiary material. He very helpfully offered to assist Mr Guneser in finding legal representation. Despite my reluctance to adjourn the matter yet again, I decided that justice required that Mr Guneser be given a final opportunity to obtain legal representation.

23 On 13 February 2008 the matter returned to court and Mr Guneser was still unrepresented. Mr Ashton's efforts to arrange for a firm of solicitors to act for Mr Guneser had come to nought when Mr Guneser declined to instruct that firm. Instead, Mr Guneser told me that he had paid other solicitors to look at the matter, including even paying a solicitor $2,810 to fly from Queensland to confer with him. No one was prepared to act. Obviously, I could not inquire into why this was so. It was a matter of regret that Mr Guneser was unrepresented. Nevertheless, the hearing had to proceed, not the least because of the impending date for the trial to proceed in the County Court.

24 Mr Ashton again appeared as a friend of the court and very helpfully addressed certain issues. Mr Guneser took objection to some of the submissions made by Mr Ashton, but counsel was only observing the requirement of his duty of frankness to the court. As I attempted to explain to Mr Guneser, as a friend of the court, Mr Ashton was not appearing for him but to assist the Court. The Court is indebted to counsel for his pro bono assistance.

25 As I understand it, what, in essence, Mr Guneser sought was to have this Court permanently stay the proceedings against him. Alternatively, he sought an order that the prosecution withdraw the charge which could not be heard summarily and that the other charges be returned to be heard in the Magistrates' Court. In the further alternative, he sought to have the order committing him for trial in the County Court quashed and that, somehow or other, the charges proceed in the Magistrates' Court where, according to him, they should have been heard years ago. Mr Guneser's arguments are best followed by going through each of the grounds and the related questions which were set out in the amended originating motion. Indeed, I followed this course during the hearing in order to focus Mr Guneser's attention on each ground and to give him the opportunity to elaborate on each of them.

26 Three of the grounds can conveniently be considered together. The first ground was that:

The plaintiff did not receive the benefit of procedural fairness as he was denied the opportunity to obtain further legal representation on 1 March 2006 at the Melbourne Magistrates' Court.

Further and/or in the alternative, the plaintiff has been denied natural justice.

Mr Guneser agreed that this ground also relates to the hearing on 1 March 2006.

The plaintiff was not given the opportunity of an informed election whether to have the matter heard summarily or before a judge and jury in accordance with section 53 of the Magistrates' Court Act 1989.

Again, this ground relates to the hearing on 1 March 2006.

29 These three grounds relate to the Magistrate's refusal, on 1 March 2006, to grant Mr Guneser an adjournment to obtain further legal representation in place of the solicitors he had sacked on that day and that Magistrate's treatment of him as having not consented to summary jurisdiction when he had been unable to make an informed election because he had not received legal advice.

30 In Brygel v Stewart-Thornton,[17] JD Phillips J held that mandamus may go where there has been an error which amounts to a refusal, whether actual or constructive, to exercise jurisdiction at all. For the reasons given below I agree with the submission of Mr McArdle QC, who appeared for the second defendant, that mandamus was not an appropriate remedy as the plaintiff had not identified any unperformed public duty. I would, however, be prepared to allow the plaintiff to amend the originating motion to substitute an order in the nature of certiorari or an order in the nature of prohibition if one or other of those remedies were otherwise appropriate.

31 I consider that, whatever the remedy sought in respect of the hearing on 1 March 2006, there are insuperable obstacles facing Mr Guneser. First, the proceeding commenced by Mr Guneser on 14 March 2007 was well outside the time limit of 60 days provided for in r.56.02(1) of the Supreme Court (General Civil Procedure) Rules 2005 ("the Rules") insofar as it related to the hearing on 1 March 2006. Whilst the Court has the power to extend that time limit it can only do so "in special circumstances" (r.56.02(3) of the Rules). For the reasons discussed below, I do not consider that there are special circumstances in this case.

32 Secondly, events have clearly overtaken that hearing. Whilst Mr Guneser may have legitimate grievances about the Magistrate's decisions on that day, the fact is that Mr Guneser was subsequently charged with an indictable offence which cannot be heard summarily, so that he was deprived of the opportunity to make an informed election on that issue in any event, as it makes sense to have all of the charges heard together. Even if the charge of intentionally causing serious injury had not been laid, Mr Guneser has subsequently participated in a committal hearing with legal representation and, despite the submissions made on his behalf, has been committed for trial on all charges.

33 Thirdly, it is by no means clear, in my opinion, that even if an application for certiorari had been made within time that this Court would interfere with the exercise by the Magistrate of his discretion to refuse an adjournment or with the way in which the Magistrate dealt with the issue of a summary hearing of the four indictable offences then before the Court. Looking at the matter from Mr Guneser's point of view, a number of points can be made about the Magistrate's refusal of the adjournment. He was not told that some of the reasons for at least some of the earlier adjournments were that the police were waiting on the results of the forensic examination, that Mr Gladman's whereabouts had, until very recently, not been known, and that the informant had been overseas for some time. Thus, it was arguable that it was not simply a case of a reluctant defendant yet again seeking to postpone the hearing. Further, the relevance of the forensic evidence was not properly explained to the Magistrate. It was not a case of the police deciding, to their possible detriment, to go ahead without that evidence. Rather, the forensic evidence was a crucial part of Mr Guneser's defence that he did not hit the female passenger with the torch. The absence of her blood on the torch arguably supported that contention. However, these matters were not clearly articulated and as far as the Magistrate was concerned, he may have felt that the application for an adjournment had all the hallmarks of a defendant seeking to put off the final hearing by the commonly used tactic of sacking his lawyers and then pleading lack of legal representation. Moreover, as submitted by Mr McArdle, Mr Guneser was given a hearing to say what he wanted about these issues, so that there was no denial of procedural fairness.

34 On the second issue, whatever Mr Guneser might say about his inability to decide whether or not to consent to summary jurisdiction without the benefit of legal advice, the fact is that the Magistrates' Court can only hear indictable charges if "the defendant consents to a summary hearing" (s.53(1)(b) of the Magistrates' Court Act 1989) and Mr Guneser did not dispute that he did not consent to such a course on 1 March 2006. Further, although I have considered this issue on the basis that Mr Guneser had not received legal advice, it is by no means clear to me that this is correct. As stated above, the transcript of the hearing on the morning of 1 March 2006 reveals that the Magistrate stood the matter down until after lunch for the express purpose of enabling Mr Guneser to speak to Legal Aid about "whether you should consent to summary jurisdiction or not".[18] There is no material before the Court to support the proposition that Mr Guneser was not able to do just that.

35 Moreover, the Magistrate also made it clear at this stage that if, after lunch, Mr Guneser was still "not in a position to make an election", he would proceed with "a filing hearing".[19] It seems to me, therefore, that it is arguable that the Magistrate did not treat Mr Guneser as having elected to go to trial in the County Court. Rather, in the absence of Mr Guneser's consent to summary jurisdiction, the Magistrate proceeded in the usual way to have the matter move to a committal. Mr Guneser referred to the decision of the Magistrate as having "locked" the matter into going to the County Court. By this, I understood him to mean that the Magistrate's decision on 1 March 2006 meant that the hearing would irrevocably be in the County Court. I do not agree that this was the case. It seems to me that it would have been open to Mr Guneser, after the hearing on 1 March 2006, to have obtained legal advice and, if so advised, to have consented to summary jurisdiction at any time up to the laying of the intentionally causing serious injury charge on 24 May 2006. It appears that Mr Guneser did not attempt to obtain such advice. Nor did he seek any legal advice, shortly after 1 March 2006, about challenging the Magistrate's rulings made on that day.

36 Mr Guneser did not seek to raise any additional arguments in respect of ground 2 other than those already considered under ground 1. However, Mr Ashton submitted that there was another argument in support of the allegation that Mr Guneser had been denied natural justice or procedural fairness on 1 March 2006. Mr Ashton referred to the request made by Mr Guneser, after the first Magistrate had refused his application for an adjournment and had raised the issue of consenting to summary jurisdiction, as appears from the following exchange:

Mr Guneser: And if I could have a different Worship.

His Honour: We are going to list the matter for a filing hearing. It will have to be done in court 1, I think. We have to get someone from the OPP here.[20]

Of course, the matter then did come before a second Magistrate but, as explained above, it was then returned to the first Magistrate. Mr Ashton submitted that Mr Guneser's request was equivalent to an application that the first Magistrate disqualify himself for bias and that the Magistrate's response was capable of amounting to a failure to exercise jurisdiction because the Magistrate never addressed the substantive issue.

37 I do not consider that the argument about bias and failure to exercise jurisdiction has any validity. Even if one could treat a request for a different Magistrate without any statement of the grounds as an application for disqualification on the ground of bias, which I very much doubt, it seems to me that the application has no substance. The mere fact that the Magistrate had rejected Mr Guneser's application for an adjournment was no evidence of either actual or apprehended bias on his part. In my opinion, no fair-minded lay observer with knowledge of the material objective facts could entertain a reasonable apprehension or suspicion that the Magistrate might not bring an impartial and unprejudiced mind to the resolution of the remainder of the hearing.[21] As such, the application did not merit any further consideration from the Magistrate.

38 In any event, Mr Ashton correctly conceded that his submission on this point did not lead anywhere whilst the intentionally causing serious injury charge remained.

39 Therefore, for all of the above reasons, I consider that Mr Guneser has failed to make out any of grounds 1, 2 or 4 in respect of the hearing in the Magistrates' Court on 1 March 2006. Even if I am wrong in concluding that no error has been shown in the Magistrate's decision on 1 March 2006, the remedies sought are discretionary and, for the same reasons, I would decline to exercise my discretion to grant any relief in respect of that decision.

40 I turn next to consider the fifth and sixth grounds in the amended originating motion, which can also be considered together. The fifth ground was that:

The prosecution laid an additional two charges against the plaintiff, including the charge of intentionally causing serious injury, which can only be heard on indictment in the County Court of Victoria and, as a consequence, the plaintiff fully lost his right to have the matter heard summarily.

Further and/or in the alternative, the action of the prosecution raises a concern about public confidence in the justice system, as well as the issues of oppression and injustice.

42 The fifth ground correctly stated the consequence of the laying of the extra two charges, including the intentionally causing serious injury charge on 24 May 2006, so it was not at all clear what Mr Guneser's complaint was from the ground itself. That appears from the related question (question 4) in the amended originating motion which asked whether the action of the prosecution in the laying of the additional two charges constituted "an abuse of process".

43 As I understood it, Mr Guneser's argument was that the intentionally causing serious injury charge was only laid in order to prevent him from belatedly consenting to summary jurisdiction of the other charges. That is, he was alleging that this extra charge was laid for an ulterior purpose or in bad faith. The High Court has held that the power to stay proceedings extends to the prevention of an abuse of process resulting in oppression even if the moving party has or must be assumed to have a prima facie case.[22]

44 The difficulty confronting Mr Guneser in respect of this claim is the lack of any evidence supporting the allegation that the laying of the extra charges was done for an ulterior purpose or in bad faith and was therefore an abuse of process. Mr Guneser correctly emphasised that these additional charges were laid over three years after the incident and that nothing had changed in the intervening period, but this does not mean that there was any lack of good faith on the part of those laying the charges. As Mr McArdle pointed out, as a result of the hearing on 1 March 2006 the Office of Public Prosecutions became involved for the first time. He submitted that I could infer that the involvement of that Office resulted in advice being tendered to the informant, because the additional charges were laid within a short time thereafter, namely on 24 May 2006. In fact, this was the evidence given by the informant at the committal. She said:

When the defendant refused to consent to jurisdiction, during an adjournment it was suggested to me by the OPP that, due to a combination of injuries, I should add the extra charge of intentionally cause serious injury.

The brief was submitted to the DPP once the jurisdiction wasn't submitted to and they advised me to charge him with intentionally cause serious injury, so I followed that advice.

45 During the second adjournment application before me, Mr Guneser made another allegation of bad faith when he accused those involved in the prosecution with being "politically motivated" and "anti Arab". Again, there was not a shred of evidence to support this allegation.

46 Support for the allegation of bad faith was also said to be found in the lack of evidence that Mr Gladman had actually suffered a "serious injury". At the end of the day, however, the decision whether or not to lay this very serious charge, which carries a maximum penalty of imprisonment for 20 years, was one for the informant. Moreover, the allegation that the laying of this charge was an abuse of process is hard to maintain in light of the fact that despite being represented at the committal and despite submissions made on this point, Mr Guneser was committed for trial on the charge of intentionally causing serious injury, as well as the five lesser charges. I accept Mr McArdle's submission that the law is now clear that an order made by a Magistrate committing a person for trial is not amenable to judicial review in the nature of certiorari (see Phelan v Allen[23] and Potter v Tural[24]).

47 The rejection of the fifth ground carries with it the rejection of the sixth ground. No doubt Mr Guneser feels oppressed by what he considers to have been the unfair and unjust way in which he has been treated by the police and prosecuting authority. Indeed, he told me on one of the adjournment applications that he was "frightened" and "scared" by the upgrading of the charges "for no reason". However, no ground has been shown for this Court to grant the relief sought in this proceeding. Mr McArdle pointed out that if Mr Guneser's complaints had any validity, the proper course was for him either to apply to the Director of Public Prosecutions for a nolle prosequi or to the County Court judge at the trial for a permanent stay of the proceedings. I agree with Mr McArdle's submission that it was not appropriate for this Court to interfere in the prosecution. This is particularly the case where necessary evidence, such as the depositions or witness statements, were not in evidence before me.

48 I return to the third ground in the amended originating motion. It read:

The plaintiff was not given full disclosure of the prosecution's evidence against him until before the hearing of the committal proceedings.

49 Although it was not at all clear, I understand that this complaint related to the delay in responding to Mr Guneser's request for documents, such as the forensic report and Mr Gladman's bank statement for the day in question. Mr Guneser went as far as alleging that this evidence had been "hidden" from him. He repeatedly complained that the prosecutors had been "hiding the evidence". However, as the ground itself states, the plaintiff was given full disclosure before the committal hearing. Mr Guneser agreed that this was the case. Moreover, no application was made at that hearing for an adjournment because of the allegedly late delivery of material. Instead, use was made during the committal, for example, of the bank statement to support the submission that Mr Gladman had not suffered a "serious injury" because he had been able to purchase alcohol after his discharge from the casualty ward of the hospital.

50 Accordingly, this ground does not provide any basis for an order in the nature of certiorari or a permanent stay of the proceedings.

The matter was incorrectly set down for trial in the County Court of Victoria.

52 I have said enough about this complaint already for it to be clear that it is simply misconceived. The charge of intentionally causing serious injury under s.16 of the Crimes Act 1958 cannot be heard summarily, even though the five other charges under ss.17 and 18 of the Crimes Act 1958 could have been. Section 53 and Schedule 4 of the Magistrates' Court Act 1989 make this abundantly clear.

53 Mr Guneser explained to me that he had thought that the hearing before the Magistrate in January 2007 was going to involve "talking" about the matter "going back to the Magistrates' Court" and not the County Court. He said that he did not understand at the time "that this was a step towards locking it in for the County Court" and that if he had known that he "would not have gone to it". Instead, he would have applied to this Court. It seems to me that Mr Guneser's reference to "talking" about the matter "going back to the Magistrates' Court" was a reference to the hearing in December 2006 at which, according to Mr Pentony's letter to the Office of Public Prosecutions dated 8 November 2006, it would be determined "whether the above matter is to be heard summarily or upon indictment". But, as previously stated, the prosecution did not agree to withdraw the intentionally causing serious injury charge and the matter therefore had to proceed to the committal hearing. Even if Mr Guneser was confused about the purpose of that hearing in January 2007, no error has been shown in the Magistrates' decision to commit Mr Guneser for trial in the County Court. I refer again to the authorities which establish that an order made by a Magistrate committing a person for trial is not amenable to judicial review in the nature of certiorari.[25]

There has been a delay of over 3 years in the administration of justice.

55 No one would dispute that the delay in bringing this matter to trial, which in fact is now nearly five years, is a matter of concern. Justice delayed can certainly be justice denied. Whether intentionally or not, the reference to three years' delay is appropriate because it was during the three year period between the incident on 19 May 2003 and the committal mention on 24 May 2006 that the arguably excessive delay occurred. The eight month gap between the mention on 24 May 2006 and the committal hearing on 15 and 16 January 2007 does not appear to be unusual. Nor does the period between committal and the proposed trial date of 11 March 2008 appear out of the ordinary due to the large number of trials which have to be heard by the County Court, regrettable though that delay is. As mentioned above, some of the reasons for the three year delay, and the nine mentions before the hearing on 24 May 2006, were the delay in preparation of the forensic scientist's report, the inability to locate Mr Gladman and the informant's absence overseas. The main factor causing the delay would seem to be Mr Gladman's movement interstate, apparently without advising the police of his new address. Thus, Ms Salerno could not complete her forensic analysis until she was provided with Mr Gladman's DNA sample on 14 March 2006. It will be remembered that Mr Gladman was only located by the police just before the hearing on 1 March 2006.

56 Once again, however, it is not for this Court to interfere. It is in no position to decide whether permanent relief should be granted. As Mr McArdle very fairly pointed out, if there is an argument that the five year delay will impact upon Mr Guneser's prospects of obtaining a fair trial then this could be part of an application to the County Court trial judge for a permanent stay of proceedings or an application to the Director of Public Prosecutions for a nolle prosequi.

The Charter of Human Rights and Responsibilities Act 2006

57 One final issue remains to be considered. Although none of Mr Guneser's grounds referred to the Charter of Human Rights and Responsibilities Act 2006 ("the Charter"), during the hearing Mr Guneser repeatedly complained that many of his rights under the Charter had been denied. In response, Mr McArdle submitted that the transitional provisions in s.49 of the Charter had the result that the Charter did not apply to Mr Guneser's complaints.

58 Mr McArdle referred me to the decision of King J in R v Williams,[26] in which her Honour held that the Charter had no relevance to the accused's application for an adjournment of a criminal trial because those proceedings had commenced "prior to the introduction, proclamation or commencement of the Charter and more particularly Pt 2".[27] Most of the Charter, including Part 2, came into operation on 1 January 2007.[28]

59 It seems to me, however, that the question of whether the rights, referred to in provisions such as ss.24 and 25 of the Charter, apply to the conduct of the impending criminal trial of Mr Guneser is not the question before me. The issues raised by Mr Guneser relate to a number of acts or decisions made by the informant or the Office of Public Prosecutions, in particular the decision to lay the intentionally causing serious injury charge on 24 May 2006, and to acts or decisions made by a Magistrate on 1 March 2006 and by another Magistrate on 16 January 2007.

60 Division 4 of Part 3 of the Charter is concerned with "Obligations on Public Authorities". It consists of two sections - s.38 which is headed "Conduct of public authorities" and s.39 which is headed "Legal proceedings". Section 38(1) of the Charter provides that:

Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.

Section 39(1) of the Charter provides that:

If, otherwise than because of this Charter, a person may seek any relief or remedy in respect of an act or decision of a public authority on the ground that the act or decision was unlawful, that person may seek that relief or remedy on a ground of unlawfulness arising because of this Charter.

61 It seems to me that, whilst acting as a member of Victoria Police, the informant is within the Charter definition of "a public authority".[29] So too is the Office of Public Prosecutions.[30] A court is not included in the statutory definition "except when it is acting in an administrative capacity".[31] A committal is an example of that capacity, so that the Magistrate's decision to commit Mr Guneser on 16 January 2007 would be a decision of a public authority. I doubt that the Magistrate's decision on 1 March 2006 would be regarded as part of the committal proceeding and, therefore, also a decision of a public authority, but I do not need to decide this point.

62 In my opinion, Mr Guneser cannot call in aid the provisions of the Charter in this proceeding. Section 49(3) of the Charter provides that:

Division 4 of Part 3 does not apply to any act or decision made by a public authority before the commencement of that Division.

As previously stated, s.39 is part of Division 4 of Part 3 of the Charter, which did not commence or come into operation until 1 January 2008.[32] However, all of the acts or decisions made by public authorities which Mr Guneser wishes to attack in this proceeding were made before 1 January 2008. Thus, in my opinion, he has no right to seek any relief or remedy in respect of those acts or decisions under s.39 of the Charter.

63 It follows that, for all of the above reasons, Mr Guneser's proceeding must be dismissed.

[1] Crimes Act 1958, s.18.

[2] Summary Offences Act 1966, s.23.

[3] Magistrates' Court Act 1989, s.30(2)(a) and (3).

[4] Magistrates' Court Act 1989, s.26(4).

[5] Crimes Act 1958, s.18.

[12] Crimes Act 1958, s.16.

[13] Crimes Act 1958, s.17.

[14] Magistrates' Court Act 1989, s.53 and Schedule 4.

[15] [2002] VSCA 186.

[16] (Unreported, Court of Criminal Appeal, Victoria, 16 October 1987).

[17] [1992] VicRp 70; [1992] 2 VR 387, 391. See also Potter v Tural [2000] VSCA 227; (2000) 2 VR 612, 617-618 (Batt JA, with whom Tadgell JA agreed) and Rich v Magistrates' Court of Victoria [2007] VSC 65, [7-8] (Maxwell P).

[21] Webb v R [1994] HCA 30; (1994) 181 CLR 41, 47 (Mason CJ and McHugh J) and 67-68 (Deane J).

[22] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 522 (Mason CJ, Dawson, Toohey and McHugh JJ).

[23] [1970] VicRp 28; [1970] VR 219.

[24] [2000] VSCA 227; (2000) 2 VR 612, 614 [3] (Callaway JA), 617-618 [20] (Batt JA, with whom Tadgell JA agreed).

[25] Phelan v Allen [1970] VicRp 28; [1970] VR 219; Potter v Tural [2000] VSCA 227; (2000) 2 VR 612.

[26] [2007] VSC 2; (2007) 16 VR 168.

[27] [2007] VSC 2; (2007) 16 VR 168, 176 [48].

[28] Charter of Human Rights and Responsibilities Act 2006, s.2(1).

[29] Charter of Human Rights and Responsibilities Act 2006, s.4(1)(d).

[30] Charter of Human Rights and Responsibilities Act 2006, s.4(1)(a) and (b).

[31] Charter of Human Rights and Responsibilities Act 2006, s.4(1)(j).

[32] Charter of Human Rights and Responsibilities Act 2006, s.2(2).