Sedrak v Carney

Family Court and related proceedings 3 Mr Sedrak, who was born in Egypt on 13 August 1944, and Ms Sedrak, who was born in Poland on 15 June 1958, met in Poland in 1983. They married in Egypt in January 1984. They and their first child, who was born in June 1986, migrated to Australia in 1987. Four more children were born to Mr and Ms Sedrak in Australia between October 1988 and December 1994. In early December 1996, Ms Sedrak left the family home with the children. They have not returned there since. 4 On 10 December 1996, Mr Sedrak filed an application in the Family Court seeking orders for the location and recovery of the children. Numerous other applications were made in the proceedings which followed. Those proceedings, which were complex, chiefly concerned the future of the children, including with which parent they should live in the future, what contact they should have with the other parent, and what other parental responsibilities should be exercised by Mr and Ms Sedrak respectively. A separate representative of the children was appointed. Lack of legal representation and the constraints of legal aid apparently affected the course of the proceedings from time to time. 5 In the proceedings in the Family Court, Ms Sedrak alleged, amongst other things, that Mr Sedrak had been violent towards her and the children, that he had not allowed her and the children any freedom of movement, and that she was afraid of him. Mr Sedrak alleged, amongst other things, that the children were at risk in Ms Sedrak's care, that the children's religious interests, as members of the Coptic Orthodox Church, were not adequately protected by Ms Sedrak, and that their educational needs were endangered. 6 Mr Sedrak was not, it seems, as successful as he would have wished in the Family Court proceedings. It is unnecessary to say more about the history of the Family Court proceedings save to note that, in his affidavit sworn on 20 November 1998 in support of his application for an order of review, Mr Sedrak more than once referred to a decision of Brown J made on 21 October 1997 and a decision of Dessau J made on 25 July 1997. On 21 October 1997, Brown J made orders that required Mr Sedrak to have leave (save in relation to excepted matters) of a judge of the Family Court to file any further applications in that Court. Earlier, on 25 July 1997, Dessau J had permitted the children's representative to withdraw an application seeking similar orders. 7 Apart from proceedings in the Family Court, there have also been proceedings in the Magistrates' Court and in the County Court. On 31 January 1997, on the application of Ms Sedrak, the Magistrates' Court at Ringwood made an intervention order, of indefinite duration, against Mr Sedrak. Mr Sedrak was unsuccessful in a subsequent appeal to the County Court against that order. On 11 February 1998, in the Magistrates' Court at Broadmeadows, Mr Sedrak was convicted of committing a number of offences against Ms Sedrak, including counts of assault with a weapon, numerous counts of unlawful assault, as well as counts of recklessly causing injury. Mr Sedrak appealed to the County Court against those convictions but was given leave to abandon his appeal during the second day of the hearing of the appeal, on 13 August 1998.

Perjury Charges and the Committal Hearing 8 On 19 December 1997, Mr Sedrak laid charges of perjury, contrary to s 314 and s 315 of the Crimes Act 1958 (Vic), against Ms Sedrak. On 24 December 1997, Mr Sedrak laid charges of perjury, contrary to s 314 and s 315 of the Crimes Act 1958 (Vic), against Ms Carney, as well as a charge of maliciously publishing a defamatory libel contrary to s 10 of the Wrongs Act 1958 (Vic). In January 1998, a magistrate struck out the charges against both women. On 1 June 1998, however, a judge of the Supreme Court of Victoria allowed Mr Sedrak's appeal against the magistrate's decision and, amongst other things, remitted the matter to the Magistrates' Court for further hearing. At a special mention, on 19 August 1998, Mr Sedrak was directed to file fresh charges under the Commonwealth Crimes Act 1914, in lieu of the charges he had initially brought under the Victorian Crimes Act 1958. On 24 August 1998, Mr Sedrak duly filed the fresh charges against each of Ms Sedrak and Ms Carney, this time alleging breaches of s 35 of the Crimes Act 1914 (Cth). 9 Prior to the committal hearing, Mr Sedrak provided particulars of the alleged offences to the legal representatives of Ms Sedrak and Ms Carney. He also filed and served a hand-up brief on each defendant. The committal hearing proceeded before the magistrate on 16 and 17 September 1998. Mr Sedrak appeared in person, and Ms Sedrak and Ms Carney were represented by counsel. Mr Sedrak called Mrs Beverley May Jerrems, the principal of the primary school that his school-age children had attended until December 1996, to give evidence on the respective parts played by Mr and Ms Sedrak in the children's schooling and associated activities. Mrs Jerrems was examined by Mr Sedrak, cross-examined by counsel for Ms Sedrak, and then re-examined by Mr Sedrak. After Mrs Jerrems had given her evidence, Mr Sedrak proceeded to give evidence on oath himself. In the course of so doing, Mr Sedrak placed before the magistrate each of the documents relied upon by him as corroborating the alleged perjuries. Those documents were numerous, and they are referred to in the transcript of the committal hearing (which is exhibit "PAC8" to the affidavit of Mr Curtis). Mr Sedrak was cross-examined by counsel for Ms Sedrak and, subsequently, by counsel for Ms Carney. Before counsel for Ms Carney cross-examined Mr Sedrak, however, Dr Robyn Madrigal Clare Dawes, a physician in general practice, was interposed to give evidence on Mr Sedrak's behalf, principally concerning the identity of the person who had accompanied the Sedrak children on visits for medical advice. Dr Dawes was examined by Mr Sedrak, cross-examined by counsel for Ms Carney, and re-examined by Mr Sedrak. At the conclusion of the committal hearing, the magistrate offered Mr Sedrak an opportunity to address him on matters arising out of Mr Sedrak's cross-examination. The hearing was subsequently adjourned to 24 September 1998, upon which date the magistrate gave his decision.

the grounds relied upon by mr sedrak in making his review application 10 In his application of 6 November 1998, Mr Sedrak stated that his grounds were: (1) That a breach of the rules of natural justice occurred in connection with the making of the decision; (2) That procedures that were required by law to be observed in connection with the making of the decision were not observed; (3) That the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made including: (a) taking an irrelevant consideration into account in the exercise of a power; (b) failing to take a relevant consideration into account in the exercise of a power; and (c) an exercise of a discretionary power without regard to the nature of the offence. (4) That the decision involved an error of law. 11 The case made by Mr Sedrak in his affidavit of 20 November 1998, sworn in support of his application, is as follows: (1) The procedure adopted by the learned magistrate constituted a denial of natural justice in that - (a) it prevented him from adducing evidence freely because he was constrained to answer the "yes/no" questions and the irrelevant questions put to him by counsel for Ms Sedrak and Ms Carney; (b) it did not give him a fair opportunity to correct or contradict material contrary to his interests; (c) it did not enable him to act properly as a prosecutor and adequately as a witness; (d) it denied him the opportunity to explain the material on which he relied to establish the alleged perjuries; and (e) it denied him the opportunity to adduce evidence from the former Commonwealth Employment Service ("CES"). (2) The magistrate failed to observe the procedures required by law to be observed in that his Worship did not give "the witness free speech before and after every cross-examination". (3) The magistrate's decision was affected by bias in that his Worship's assessment of "the evidence and of the respective personalities and credibility of one party, the informant, and not the other has produced an unjust result" in that - (a) his Worship gave too much weight "to the unreliable negatives on the informant's side from the cross-examination and [gave] little or no weight to the positives on his side"; (b) his Worship ignored the fact that the order of Brown J of 21 October 1997 was founded on the alleged perjuries of Ms Carney; and (c) his Worship gave too little weight to the decision of Dessau J made on 25 July 1997. (4) The decision of the magistrate was an improper exercise of power in that - (a) it took into account irrelevant considerations, including Mr Sedrak's convictions (which, so Mr Sedrak alleged, depended on perjured evidence); (b) it failed to take into account relevant considerations, including the order of Dessau J, that allegations of domestic violence were (so Mr Sedrak said) a ploy on the wife's part to retain custody of the Sedrak children, and that the intervention order was (so Mr Sedrak alleged) based on false allegations, as were the convictions for domestic violence and the orders of Brown J; and (c) the magistrate failed to take into account the nature of the alleged offences. (5) The decision of the magistrate involved an error of law in that - (a) it was against the weight of evidence; and (b) the magistrate applied the wrong test in reaching his decision. (1) Denial of natural justice (2) Failure to observe the procedures required by law 12 In support of his case that he had been denied natural justice, Mr Sedrak deposed in his affidavit of 20 November 1998 that: It is happen that I, the informant is the witness and the prosecutor in the same time. This makes confusion of the things. I wanted to act as prosecutor and my affidavits are sworn statements against the defendant's sworn statements (oath against oath). The prosecutor has corroboration for every assignment to prove the falsity of the sworn statements by the offenders. But he needs to make speech and submissions to approve the other elements of the perjuries (false testimony). He needs the submission to show that these false statements are not human error and are fatal mistakes. He needs to show the objects of these lies. (par 14) Mr Sedrak added: Many requests by the informant to distinguish his role as informant and prosecutor from his role as witness were refused. (par 17) 13 Mr Sedrak's primary submission, as I understood it, was that the magistrate had not given him an opportunity to explain the significance of the corroborative material upon which he relied. I also understood him to submit that, in giving his own evidence, he had not been permitted any opportunity to re-examine (himself) following his cross-examination by counsel for Ms Sedrak and Ms Carney. 14 During the committal proceeding and in this Court, Mr Sedrak complained that the procedure adopted by the magistrate did not enable Mr Sedrak or his Worship properly to distinguish between his role as informant and as witness; that he was unduly constrained by the "yes/no" questions being asked by counsel; that he wanted an opportunity to explain the material upon which he relied to establish the alleged perjuries; and that he was denied a fair opportunity to correct or contradict statements contrary to his interests. In the course of his cross-examination by counsel for Ms Carney, Mr Sedrak indicated that he was intending to make a "speech" at the end of his case. This led the magistrate to enter into the following exchange with Mr Sedrak. His Worship: No, Mr Sedrak, there is not going to be a speech at the end of this? … You are being asked now to give evidence of what you rely on? Mr Sedrak: Yes. His Worship: There is not going to be a speech? Mr Sedrak: Yes. His Worship: [Counsel] is asking you what else do you rely on in that report to corroborate that that statement is false? Mr Sedrak: Yes. Your Honour, if it happened that - what if I have - I am the witness now and the prosecutor? This is the confusion of the things. I want to finish myself as witness and start it as prosecutor. His Worship: I beg your pardon? Mr Sedrak: I am the informant and the prosecutor in this case. His Worship: Yes? Mr Sedrak: But this happens that I am the witness also. His Worship: Yes? Mr Sedrak: For that I came here to this place. His Worship: Yes? Mr Sedrak: To play the role of the witness. His Worship: Yes? Mr Sedrak: My evidence in the witness, … . This on oath. His Worship: Yes? Mr Sedrak: Then I go to my place as prosecutor and I tell the court that the witness said no and she said yes, then we looking for the corroboration, who has the corroboration in the matter. (transcript 49-50) Mr Sedrak went on to object that: And again I ask your Honour, I am move now here. I who cross-examined and the defendant who has to examined and nobody examine. I who must be the informant and the - I said I come to the witness box that I said this document is right and handled to you. But he now take everythings. He now, he control everythings. And I said yes or no, yes or no. It is not white and black this things. It is my case I have to explain. (transcript 72) 15 Did the procedure adopted by the magistrate effectively deny Mr Sedrak a fair opportunity to present his case? The committal proceeding was heard over two days. Counsel refrained from taking objections that might have been open to them. The magistrate sought, so the transcript shows, to orientate Mr Sedrak, by assisting Mr Sedrak to direct the Court's attention to those documents upon which Mr Sedrak relied as corroborative of the charges of giving false testimony. 16 I accept, as Mr Sedrak submitted, that the role of an informant differs from the role of a witness. The reality was, however, that Mr Sedrak was proceeding on his own private information for giving false testimony (and also, in the case of Ms Carney, for maliciously defamatory libel) and that the evidence that the testimony was false (and, in Ms Carney's case, maliciously defamatory) was given almost entirely by Mr Sedrak. That is, he was the person both laying the charges and giving the evidence in support of them. He was, moreover, unrepresented. Naturally, in giving evidence, he was obliged to proceed to the witness box, and to take an oath (as he did) or an affirmation in respect of the evidence. Indeed, Mr Sedrak accepted that that was indeed the natural outcome of the circumstances as they existed at the committal hearing. 17 Once Mr Sedrak had given his evidence-in-chief, he was necessarily subject to cross-examination, including cross-examination as to credit. In the course of cross-examination, he was practically obliged to answer questions inviting "yes or no" answers, as well as questions that may well have appeared to him not to be germane to the issues he sought to agitate, but, as it so happened, went to his credit. There was no denial of procedural fairness in subjecting Mr Sedrak to cross-examination by counsel for Ms Sedrak and Ms Carney. The transcript shows that that cross-examination was generally well balanced and entirely reasonable. Accordingly, I reject Mr Sedrak's claim that he was denied natural justice in being constrained to answer questions, in cross-examination, of a "yes/no" variety, or of a kind relevant to his credit. 18 I also reject, for the reasons given below, Mr Sedrak's allegations that he was not permitted an adequate opportunity to address the magistrate on matters arising out of cross-examination; or to correct or contradict matters adverse to his interest; or to explain the material on which he relied. 19 At the conclusion of Mr Sedrak's cross-examination, the magistrate gave Mr Sedrak an opportunity "to say something about some of the things you have been asked". His Worship said: Mr Sedrak, you have been cross-examined by both [counsel for Ms Sedrak and counsel for Ms Carney]. You have a right now to say things that arise out of your cross-examination. I indicate clearly to you I am not going to let you parade through all the material at this stage but I will listen to you if you want to say something about some of the things that you have been asked but as I say that is not an invitation to you to start going through the material, going through your further and better particulars and going through the exhibits, okay, because even if you had a lawyer here, you would not be able to do that, do you understand? What would you like to say? The transcript does not record what Mr Sedrak said in response to his Worship's invitation. The transcript simply reads: (Discussion ensued.) (THE WITNESS WITHDREW) (Discussion ensued.) 20 His Worship's invitation was not sufficient, so Mr Sedrak submitted, to afford him natural justice. As I understood Mr Sedrak, this was because, in order to present his case, Mr Sedrak believed it necessary to do precisely what the magistrate said he must not do. In making his submissions to me, Mr Sedrak said: I respond [to the magistrate] by arguing that I wanted to go to my material. How I - why I rely on something which I don't want? I wanted to rely on this material and explain why I deliver it and why I consider it important for the case. (transcript 46) 21 I can, of course, understand Mr Sedrak's sense of frustration in being specifically enjoined not to do that which he wanted to do, namely, to take the magistrate through the documentary material to explain how it was that he relied on that material to make out his case against Ms Carney and Ms Sedrak. It does not follow, however, that there was any breach of the rules of natural justice, or of procedural fairness. 22 The scope of Mr Sedrak's entitlement to present his case depended in part on the nature of the proceeding in which he was participating. Presenting a person for trial before a judge and jury is a grave matter. A committal proceeding ordinarily precedes presentment. The object of a committal proceeding is to determine whether there is sufficient evidence to warrant a person accused of an indictable offence being sent for trial before judge and jury for the offence charged (or any other indictable offence). A committal proceeding is administrative in character. 23 Section 56 of the Magistrates' Court Act 1989 (Vic) sets out the occasion for and the requirements of a committal proceeding in Victoria. The proceeding must be conducted in accordance with Schedule 5 of that Act: s 56(2). A committal proceeding is designed primarily as a safeguard for the accused (in this case, Ms Carney and Ms Sedrak). It is intended to prevent a person standing trial on a misconceived prosecution: see Barton v R (1980) 147 CLR 75 at 99-100 per Gibbs ACJ and Mason J (with whom Aickin J agreed) and 105-6 per Stephen J. In the words of Lockhart J, with whom O'Loughlin J agreed, in an appeal specifically dealing with the Victorian statute, "the task of a committing magistrate is essentially to sift the wheat from the chaff: cases so weak that a jury properly instructed could not possibly convict the defendant and cases where it could": R v Abbotto (1992) 59 A Crim R 208 at 214; also 224 per Gummow J (with whom O'Loughlin J also agreed). Moreover, in performing that task, the committing magistrate is "empowered to make some assessment of credibility": Forsyth v Rodda (1988) 37 A Crim R 50 at 69, affirmed on appeal in Forsyth v Rodda (1989) 42 A Crim R 197. See also R G Fox, Victorian Criminal Procedure (1997) par 7.2.2. 24 Where, as in the present case, a hand-up brief is served, the defendant may require the attendance of a prosecution witness. Unless the magistrate gives leave to the contrary, a prosecution witness called to give evidence must confine his or her evidence-in-chief to identifying himself or herself and attesting to the truthfulness of the statement made by him or her and served in the hand-up brief: Magistrates' Court Act 1989 (Vic), Sch 5, cl 5(4). That procedure was substantially followed in the present case, save that, presumably because there were no witness statements from Mrs Jerrems and Dr Dawes, Mr Sedrak was permitted to examine and re-examine them. In giving his own evidence, however, Mr Sedrak (whose witness statements were included in the hand-up brief) was confined to identifying himself, and identifying what he relied on by way of corroboration. As already noted, Mr Sedrak was specifically given the opportunity by the magistrate to address him on any matters arising out of Mr Sedrak's cross-examination. 25 Clause 11 of Schedule 5 relevantly provides, in sub-clause 1: After the evidence for the prosecution is conducted, the Court must - (a) if in its opinion the evidence is not of sufficient weight to support a conviction for any indictable offence, order the defendant to be discharged. Having decided that the evidence was of insufficient weight, his Worship made an order for the discharge of each defendant. 26 Plainly enough, Mr Sedrak was simply not entitled in the committal proceeding in which he was informant to do as he wished, i.e., to take the magistrate through the documents in order to explain his case against the defendants. He had no right to make "free speech before and after every cross-examination". It was for the magistrate to weigh the evidence, and to reach his own conclusion as to its sufficiency to support a conviction. Under the procedure applicable to committal proceedings in Victoria, Mr Sedrak was not entitled to any opportunity beyond that offered to him to correct or contradict material adverse to his case before the magistrate made his decision under clause 11 of Schedule 5 of the Magistrates' Court Act 1989 (Vic). There can be no merit in Mr Sedrak's submission that the magistrate failed to differentiate sufficiently between his role as informant and his role as witness, when regard is had to the committal procedure laid down in Schedule 5. 27 Before leaving the first and second of Mr Sedrak's grounds, I add that the transcript of the committal proceeding does not provide any support for Mr Sedrak's submission that he was denied an opportunity to adduce evidence from the former CES. The magistrate did no more than inform Mr Sedrak that Centrelink, upon whom the subpoena to produce CES records had been served, had responded by saying that Centrelink was the wrong person from which to seek those records, and that whether Mr Sedrak took further steps to secure the documents was a matter for him. (3) Bias 28 Mr Sedrak also submitted that the magistrate's decision was affected by bias in that (1) he gave too much weight to the "negatives on the informant's side" and not enough weight to the "positives"; (2) he gave too much weight to the decision of Brown J of 21 October 1997; and (3) he gave too little weight to the decision of Dessau J of 25 July 1997. 29 There is, I think, nothing in the transcript of the hearing before the magistrate, or in his reasons for decision, or elsewhere in the material before me, to support the proposition that his Worship's conduct of the committal proceeding or his decision were such as to give rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that his Worship did not discharge his task impartially: cf Webb v The Queen (1994) 181 CLR 41 at 53; Re Maxwell William Ebner; Ebner v Official Trustee (unreported, Sackville, Finn and Kenny JJ, 10 March 1999) [1999] FCA 110 at par 32; and Clenae Pty Ltd v Australia & New Zealand Banking Group Ltd (unreported, Supreme Court of Victoria, Court of Appeal, Winneke P, Charles and Callaway JJA, 9 April 1999)[1999] VSCA 35 at par 65 per Charles JA (with whom Winneke P agreed). 30 In his reasons for decision, the magistrate said: As in the normal case then, my assessment of the evidence on all the charges before the court includes an assessment of the view a reasonable jury might take of the credibility of the informant as a witness … . … In assessing what a jury might make of the evidence put before the court I want to make a number of general comments, dealing firstly with the perjury charges. Firstly, any jury would approach the issue of the credibility of the informant, indeed, of the whole prosecution and of the evidence put before the court in the prosecution with considerable caution. This would be so in the first instance, because the context of these prosecutions would be highlighted in evidence before them. They would come to know that the background to these charges is a long and bitterly contested Family Court case following Mrs Sedrak leaving the matrimonial home in December 1996, taking the five children with her. With Ms Carney being the solicitor acting for Mrs Sedrak on most occasions in the Family Court. They would know that on 7 January 1997 in the Family Court her Honour Justice Brown in the face of allegations by Mrs Sedrak of violence on the part of the informant, not only to herself but also towards the children made significant orders that saw the children placed into the custody of Mrs Sedrak with contact between the children, and the informant reserved. That although that order was subsequently varied to allow the informant to have supervised contact with the children, the position remained basically that way throughout 1997 awaiting a final and full hearing. … … They would know that on 21 October 1997 Justice Brown made an order that the informant be restrained from issuing any further application without first obtaining leave of the Judge of the Court. The jury would further come to know that it was not only in the Family Court that it can be seen that decisions were made that adversely affected the informant. They would learn that on 31 January 1997 in the Magistrates' Court at Ringwood an intervention order of indefinite length was made in favour of Mrs Sedrak against the informant. That the informant appealed that decision to the Melbourne County Court, and that on 15 April 1997 that Court dismissed the appeal. It would also become known to a jury that the informant was convicted in the Magistrates' Court at Broadmeadows on 11 February 1998 of a large number of assaults on his wife. That he appealed those convictions to the Melbourne County Court in August 1998, and after his wife had given evidence and had concluded her evidence, the informant withdrew his appeal against his convictions and sentence. (transcript 144-7) 31 For present purposes, I accept that Mr Sedrak is well educated, and a devout member of the Coptic Orthodox Church. He may be a person of many virtues. It does not follow, however, that a case of bias can be made out. As the cross-examination of Mr Sedrak makes clear (transcript 92-93), it was part of Mr Sedrak's case that he was not a violent person. In that event, a jury would be bound to be informed of the Magistrates' Court proceedings of 11 February 1998 (and, presumably, of 31 January 1997) and of the outcome of any appeal to the County Court. Equally, a jury would have been bound to be informed, as part of the narrative, of the nature of the proceedings in which the allegedly perjured testimony was made and, more particularly, of the application made to Brown J on 21 October and its outcome. This followed from the fact that the case for Mr Sedrak was that the false testimony had been given in those proceedings, with the object of misleading Brown J. 32 The magistrate's reference to those matters was, therefore, appropriate in any assessment of the prosecution case. As the magistrate himself said: In my view, the background to these charges and to this prosecution as set out above would cause any reasonable jury to approach the evidence put before the Court on any prosecution with great caution, particularly when it is observed that the informant laid the original charges against his wife on 19 December 1997, and those against Ms Carney on 24 December 1997. (transcript 147-148) It was open to the magistrate so to hold in the circumstances of this case. (4) Improper exercise of power 33 For the reasons just given, the magistrate did not, in my view, take into account an irrelevant consideration when he referred to Mr Sedrak's convictions. Further, having regard to the transcript of the committal proceeding, I do not think it can be said that his Worship did not take into account Mr Sedrak's assertions that the evidence as to his violent behaviour was perjured, as was the evidence upon which Brown J made her order. 34 The further submission made by Mr Sedrak that the magistrate failed to take into account the nature of the offences with which Ms Carney and Ms Sedrak were charged is, I think, untenable. The magistrate specifically referred to the need "to keep in mind the nature of the charges brought by the informant". There is nothing in the material before me to indicate that his Worship did not do so. (5) Error of law 35 Did the decision of the magistrate involve an error of law in that it was against the weight of evidence, or involved the application of a wrong test? 36 The focus of Mr Sedrak's submissions before his Worship (and before me) was on the false testimony charges. Section 35(1) of the Crimes Act 1914 (Cth) provides: Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter, material in that proceeding, shall be guilty of an indictable offence. Penalty: Imprisonment for 5 years. Amongst other things, at the trial of a person accused of giving false testimony, contrary to s 35(1), it is incumbent on the prosecution to prove, beyond reasonable doubt, that (1) the testimony was false, (2) the accused had, in a relevant proceeding, knowingly given false testimony, and (3) the false testimony touched a matter material in that proceeding. The evidential requirement for proof that testimony is false is a high one. Generally speaking, the rule in R v Linehan [1921] VLR 582 applies in this State. In that case, Cussen J (who read the judgment of the Court) said at 588: There is in relation to perjury an exceptional rule of evidence that where the prosecution is forced to rely on direct oral evidence in contradiction of the accused's statement, there should be an acquittal, unless the falsity of the accused's statement is proved by two witnesses or by one witness with corroboration. See also R v Townley (1986) 24 A Crim R 76 at 78 per Hampel J and R v Hoser [1998] 2 VR 535 at 541. 37 Criminal intent or guilty mind must be proved before a person can be convicted of an offence under s 35 of the Crimes Act 1914 (Cth). That is, mens rea is an essential element of the offence. The prosecutor must establish beyond reasonable doubt that the accused knowingly gave false testimony, i.e., that the accused intentionally gave false evidence that he or she knew to be false: cf MacKenzie v R (1996) 71 ALJR 91 at 105 per Gaudron, Gummow and Kirby JJ and, more generally, He Kaw Teh v The Queen (1985) 157 CLR 523 at 531-2 per Gibbs CJ and 565-6 per Brennan J. If false testimony is shown to have been given through inadvertence, mistake, carelessness or misunderstanding, then the offence is not made out, because it cannot be said that at the time the testimony was given the accused knew the testimony was untrue: cf MacKenzie v R (1996) 71 ALJR 91 at 94-5 per Dawson and Toohey JJ and 105-6 per Gaudron, Gummow and Kirby JJ. False testimony which arose "simply out of perception and recall which were wrong, but innocently so" will not ground the offence: MacKenzie at 106. 38 I can detect no possible error in the magistrate's statement, in his reasons for decision, of the law with regard to false testimony and, indeed, no specific error was suggested. 39 Further, there is nothing in the material to support Mr Sedrak's claim that the magistrate erred in finding, as he did, that the particulars given by Mr Sedrak did not amount to instances of false testimony or, in the case of Ms Carney, malicious libel. (a) The charges against Ms Carney 40 One of the charges against Ms Carney arose from an affidavit sworn by her on 22 July 1997 in connection with the application made to Dessau J and subsequently withdrawn with her Honour's leave. The particulars, or assignments as Mr Sedrak called them, of the charge related to alleged errors in the hearing dates in the Family Court. The relevant assignments were numbered assignments 10 to 19. 41 In relation to assignment 10, the magistrate said in his reasons for decision: [Take], for example, Assignment 10 concerning Ms Carney's affidavit of 22 July alleging that the statement, "There have been 13 Family Court hearings on the matter" is perjured. As [counsel] demonstrated in his cross-examination of the informant, this statement can on one view - depending on what one might term a hearing - be reconciled with actual dates concerned with this case in such a way that before a jury, the allegation that the statement is an intentional and known false statement might be quickly rejected. (transcript 151) His Worship went on to express the opinion that it would be open to a jury to take the view that the issue whether there is perjury as alleged in assignments 10 and 12 to 18 in respect of Ms Carney's affidavit of 22 July 1997 depended on what Ms Carney meant by a relevant hearing date. 42 It was plainly open to his Worship to take the view he did. For example, assignment 11 referred to a date of 31 January 1997. Although there was no hearing in the Family Court on that day, there was one, it seems, at the Magistrates' Court at Ringwood, when Ms Sedrak successfully made an application for an intervention order. Some hearing dates were adjourned, as for example, 30 April 1997 (assignment 12) and 25 March 1997 (assignment 13). Indeed, apart from Mr Sedrak's assertions, there was arguably no independent proof of the falsity of the matters referred to in assignments 17, 18 and 19. The assertion contained in assignment 16 that "as well as the hearing actually held" amounts to false testimony would appear to be hopeless. 43 In his reasons for decision, the magistrate stated: In relation to the perjury charge concerned with Ms Carney's affidavit sworn on 22 July 1997, in relation to Assignments 10 and 12 to 19 I find that a jury properly instructed on the law, and on the facts and acting reasonably could not be satisfied beyond a reasonable doubt that the impugned statements were false. In relation to Assignment 11, I find whilst a jury could be satisfied that the impugned statement was not factually correct, no jury properly instructed on the law and on the facts, and acting reasonably could be satisfied beyond a reasonable doubt that the statement was intentionally made by Ms Carney in the knowledge that it was false, and was not made as a result of an honest mistake or error of fact. The nature of the errors, if errors they were, makes it very difficult to resist the conclusion that they were anything other than inadvertent mistakes. Whether or not there was corroboration of the falsity of any of the impugned testimony, there was patently no evidence before the magistrate that any of the errors attributed to Ms Carney were made "knowingly" or with criminal intent. 44 The other false testimony charge against Ms Carney related to an affidavit sworn by her on 15 October 1997, in support of the application successfully made to Brown J on 21 October 1997, to which reference has already been made. Mr Sedrak sought to particularise the charge in assignments 1 to 9. As the magistrate acknowledged, assignment 1 is unsustainable when regard is had to the contents of the relevant report (which formed part of exhibit "RAG5" to Ms Greensill's affidavit). The import of assignment 2 is plainly unclear. The relevant reference in Ms Carney's letter would appear to relate to instructions of Ms Sedrak, regarding matters which are recounted in an affidavit of Ms Sedrak sworn on 19 February 1998, although Mr Sedrak apparently understood it to refer to a counsellor's report, or at least he referred to that report by way of corroboration. Assignment 3 lacked corroboration and was, in any event, contrary to the observations in Brown J's reasons for decision. Assignment 4 alleges what is, on any view, a non-material mistake. The matters referred to in assignment 5 are not shown to be false by Mr Sedrak, even if what he asserts in relation to them were true. Assignment 6 is without merit: as the judgment of the Full Court of the Family Court delivered 4 December 1997 shows, Mr Sedrak did in fact appeal against orders made by Kaye J made on 2 April 1997. If assignments 7 and 8 show error, such error could not, on any view, be of any consequence. Apropos of assignment 7, Ms Carney should, it seems, have referred to 25 June 1997, not 20 May 1997. Assignment 8 apparently reflected a typographical error. In relation to assignment 9, there was in fact a hearing on 17 September 1997 (although possibly not in relation to the appeal which was on foot by that date). Assignment 10 depends on assignments 1 to 9. Many of these matters were referred to by his Worship in his reasons for decision: transcript 150-151. 45 His Worship concluded: In relation to the perjury charge concerned with Ms Carney's affidavit sworn on 22 July 1997, in relation to Assignments 10 and 12 to 19 I find that a jury properly instructed on the law, and on the facts and acting reasonably could not be satisfied beyond a reasonable doubt that the impugned statements were false. In relation to Assignment 11, I find that whilst a jury could be satisfied that the impugned statement was not factually correct, no jury properly instructed on the law and on the facts, and acting reasonably could be satisfied beyond a reasonable doubt that the statement was intentionally made by Ms Carney in the knowledge that it was false, and was not made as a result of an honest mistake or error of fact. Ms Carney will be discharged on the perjury counts. In relation to the charge of maliciously publishing a defamatory libel, the only evidence before the Court as I have said previously is the oral evidence of the informant. In my view any jury would approach this evidence with great caution, and whilst corroboration of his evidence is not required as a matter of law, a reasonable jury would be looking for some other evidence in support of the charge. There is no such evidence. In relation to this charge I find that a jury properly directed on the law, and the facts and acting reasonably could not be satisfied beyond a reasonable doubt that the statement made in a letter by Ms Carney was a libel. She also will be discharged on the libel count. (transcript 154-155) There is nothing in the above analysis, whether concerning the false testimony or the maliciously defamatory libel charges, that could be said to show error. Again, there was no evidence before his Worship that any of the alleged errors were made with criminal intent. (b) The charges against Ms Sedrak 46 In relation to the charges against Ms Sedrak, the magistrate said, at transcript 152: In relation to the perjury charge concerned with her affidavit sworn on 2 January 1997. In relation to Assignments 1,3 and 6 being assignments relating to overseas trips, the CES and the medical report of Dr Dawes, I find that a jury properly directed on the facts and the law and acting reasonably could not be satisfied beyond a reasonable doubt that such statements were false. Re Assignments 2, 4, 5 and 7 concerning statements alleged to be false concerning Mrs Sedrak taking the children to the doctor when necessary, that the informant considered child rearing to be primarily the responsibility of Mrs Sedrak. That the informant took only a minor role in attending to the practical matters of caring for children, and that he frequently allowed too little for food. In my view, a reasonable jury would look very carefully at these statements made by Mrs Sedrak, and that the documentary evidence and oral evidence called by the informant in relation to them. So, for example, in relation to Assignment 2, a jury would need to be satisfied what it is that the statement is saying first of all and thereafter, that that statement so found is false because of what it says, not because of what it does not say. The statement made about the children, 'I have taken them to the doctor when necessary', is on its face ambiguous. On one view it may be Mrs Sedrak saying that she and only she always took the children to the doctor when necessary. Alternatively, particularly in light of the evidence of Dr Dawes that it appeared that it was usually the informant who'd walk the children to the doctor's. Mrs Sedrak's statement might be understood, or perhaps should be understood as saying that she took the children to the doctor's when necessary, being times when the informant was not able to take them. Critically, the evidence before the Court does not establish that Mrs Sedrak never took the children to the doctor's. Also critically, the impugned statement is not a statement that the informant never took the children to the doctor's. So, in relation to Assignment 4 and 5 a reasonable jury would be at pains to be satisfied exactly what it is that Mrs Sedrak is saying in each of these statements. Of concern would be reaching a conclusion on what Mrs Sedrak should be taken to be referring to by, 'child-rearing', and, 'the practical matters of caring for children'. A jury might well take the view that the sorts of matters to which Mrs Sedrak was referring was basic day to day rearing of the children in a nurturing and caring way in a family atmosphere, and that these statements are not proved to be false by the oral evidence of the informant, the oral evidence of Mrs Jerrims or Dr Dawes, and some documentary material that seeks to establish that the informant took particular interest in his children's schooling and attended to their needs at the doctor's, the chemist and the library. Ultimately in my view in relation to these four assignments I find that a jury properly directed on the facts and the law, and acting reasonably could not be satisfied beyond a reasonable doubt that these statements were false. In my opinion, there is nothing in the nature of an error in the above analysis. 47 In addition to what is set out above, there was, as his Worship noted, no evidence corroborative of assignment 3. In respect of assignment 6, his Worship found that a letter from Dr Dawes (which was, in any event, an exhibit to Ms Sedrak's affidavit) was such that "a jury might consider it reasonable for Mrs Sedrak to describe [it] … as a medical report" (transcript 150). He also found: [I]n respect of Assignment 1 concerning Mrs Sedrak's affidavit sworn on 2 January 1997 the statement, 'Since migrating to Australia the husband and I have travelled to Egypt twice to visit his relatives' may be regarded by a jury as not made false by proving that the informant, and Mrs Sedrak in fact travelled to Egypt and Poland to visit their relatives three times. (transcript 149) 48 Mr Sedrak took issue with his Worship's use of language in these and other passages. I understood Mr Sedrak to submit that it was not open to his Worship to seek to predict what a jury might do, as opposed to what it lawfully could do. Mr Sedrak referred, in this connection, to Wentworth v Rogers (1984) 2 NSWLR 422, especially at 436 per Samuels JA. In his affidavit sworn 20 November 1998, Mr Sedrak deposed, at par 51, in language substantially the same as that of Samuels JA in Wentworth v Rogers at 440, that: Nothing in Schedule 5 authorises a committing magistrate to discharge a defendant on the ground that in the magistrate's opinion a jury would not convict the defendant. It is no part of a committing magistrate['s] function to conjecture what a jury would or might do or not do. His duty is confined to determining what it could reasonably and properly do. [Emphasis in original] 49 I do not, however, consider that the magistrate fell into any relevant error. There was, as I read his Worship's reasons, no element of prediction in his determination as to the sufficiency of the evidence. His Worship's turn of phrase is to be viewed in its proper context. As the Full Court of the Federal Court said in Forsyth v Rodda (1989) 42 A Crim R 197 at 220 (in an appeal from a decision dismissing an application for judicial review of a decision of a magistrate made under the former statutory regime governing committal proceedings): In the course of exercising the jurisdiction it has in applications for judicial review and in appeals from the Administrative Appeals tribunal, this Court in numerous judgments has emphasised that it is the substance of matters which will be looked at and that the form of language used by members of the administration and by tribunals will not be studied or sifted in a way that is destructive of the administrative process. The court takes a broad and constructive view of decisions and allows for the fact that language used in reasons may have been better expressed or may reveal gaps in a chain of reasoning which need to be filled. The context of the magistrate's reasons makes it abundantly clear that all that his Worship was saying in these and similarly expressed passages was that, in the material relied upon by Mr Sedrak, it would be open to a jury to find that an element of the offence in question could not be established beyond reasonable doubt. That in itself would not be enough to warrant the discharge of the defendants: see Forsyth v Rodda (1988) 37 A Crim R 50 at 69 per Wilcox J, affirmed on appeal in Forsyth v Rodda (1989) 42 A Crim R 197; and R v Abbotto (1992) 59 A Crim R 208 at 213-215. Read in context, however, it is clear enough that this was but one of a number of matters which, when taken together, led his Worship to determine that a jury, properly directed on the law and the facts and acting reasonably, could not be satisfied, beyond reasonable doubt, that the defendants had committed any of the offences with which they were charged. I am unable to detect any error in this approach: cf Fox v Director of Public Prosecutions [1992] 1 VR 673 at 674 (where Southwell J sets out that formulation with apparent approval); and R v Abbotto (1992) 59 A Crim R 208 at 214. I reject Mr Sedrak's submission that his Worship assessed the sufficiency of the evidence with anything other than the correct test in mind. 50 A second charge against Ms Sedrak arose out of the affidavit sworn by her on 25 March 1997. The charge was particularised in Mr Sedrak's assignment 8. As his Worship pointed out, the alleged falsity of the matter with which assignment 8 was concerned depended on what Ms Sedrak meant by "involved in hearings". His Worship held that: In relation to the perjury charge concerned with the affidavit of Mrs Sedrak sworn on 25 March, and the allegation of perjury in Assignment 8, I find that a jury properly directed on the facts and the law and acting reasonably could not be satisfied beyond a reasonable doubt that such a statement was false. There can be no error in his Worship's approach. 51 Further, as in Ms Carney's case so in Ms Sedrak's case, there was no evidence to establish the requisite criminal intent on Ms Sedrak's part, even if the testimony she gave was incorrect. It is well established that (1) where actual knowledge is either an explicit and specific element of the offence charged or necessarily an element of the guilty mind required for the offence, it may be established by inference from the circumstances surrounding the commission of the alleged offence; and (2) that where knowledge is to be so inferred, that knowledge must be the only rational inference available: see, e.g., Pereira (1988) 35 A Crim R 382 at 385 per Mason CJ, Dawson, Toohey and Gaudron JJ. The material relied on by Mr Sedrak could not, on any reasonable view, have satisfied that test.

conclusion 52 I am of the view that the case Mr Sedrak seeks to make in this Court is clearly untenable and cannot possibly succeed. It discloses no basis for review of the magistrate's decision. Accordingly, I would dismiss the proceeding pursuant to Order 20 rule 2 of the Federal Court Rules. 53 In this connection, it is to be borne in mind that the allegedly perjured testimony and much, if not all, of the material relied upon by Mr Sedrak in support of his allegations have already been judicially considered in the Family Court. I do not think that Mr Sedrak should be permitted to re-litigate questions of fact that have already been dealt with in the Family Court, by means of the criminal process. This is what, in my view, he seeks to do in bringing charges of false testimony and maliciously defamatory libel against Ms Carney and false testimony against Ms Sedrak. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate: Dated: 6 August 1999 Counsel for the Applicant: Self-represented

Solicitor for the Applicant: Self-represented

Counsel for the First Respondent: Mr P Tehan QC

Solicitor for the First Respondent: Moores Solicitors

Counsel for the Second Respondent: Mr D Brustman

Solicitor for the Second Respondent: Victoria Legal Aid

Counsel for the Third Respondent: No appearance

Solicitor for the Third Respondent: No appearance

Date of Hearing: 15 December 1998

Date of Judgment: 6 August 1999