Singh v NSW Police

REVISED EX TEMPORE Judgment

By way of a summons filed on 24 August 2020, Tirath Singh ("the plaintiff") seeks orders against the defendant, named as NSW Police.
As set out in the relief claimed, the plaintiff seeks leave to appeal from a decision of a magistrate of the Local Court pursuant to s 53 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Review Act").
The plaintiff then seeks the following further orders: 1. an order that the charges against him be summarily dismissed; 2. an order that the bail condition be cancelled, although in his oral submissions he said that he wished to have it varied; 3. an order that the trial set for 9 September 2020 be vacated, and 4. costs.
The plaintiff identifies 29 grounds of appeal and then identifies 10 further reasons as to why leave to appeal should be granted.
I will set out the background to the proceedings by way of summary. The proceedings arise out of the plaintiff being banned from attending his local place of worship, being a Sikh temple at Penrith. The plaintiff relies on his own affidavit, sworn 2 September 2020.
The plaintiff appears in person. Mr Deards, solicitor, appears for the defendant.
The exhibits to the plaintiff's affidavit run to 78 pages. Those documents are relevant to the application as the plaintiff wishes to pursue it.
Mr Deards did not object to the affidavit although he reserved the position should the plaintiff seek to rely on further material or expand upon the basis of his application outside what Mr Deards understood it to be.

Determination

As I endeavoured to explain to the plaintiff (as he is representing himself) there are a number of difficulties with his application to the Supreme Court.
The plaintiff pursues the appeal pursuant to s 53(3) of the Review Act. He says he is a person against whom an interlocutory order has been made by the Local Court in relation to him in summary proceedings. As set out in s 53(3), such a person may appeal to the Supreme Court against the order, but only on a ground that involves a question of law alone and only by leave of the Supreme Court.
The defendant opposes the orders sought on a number of grounds. In particular, the defendant says the appeal is incompetent. The defendant says that: 1. The plaintiff does not identify any order of the Court from which he is appealing. 2. He does not identify how any particular interlocutory order was infected by an error of law. 3. If the plaintiff summons is to be construed as an appeal from a decision of the Local Court not to dismiss the charges against him, then such orders would not be interlocutory orders. 4. To the extent that part of the orders sought that extended the orders sought include a variation of a bail determination, that is not an order within the meaning of s 53(3). 5. Finally, the defendant submits that the plaintiff requires leave to pursue the appeal. The material date for the subject appeal within the meaning of r 51B.6(1) of the Supreme Court Rules was 6 July 2020. The plaintiff was required to file his summons seeking leave to appeal prior to 13 August 2020. He did not do so.
In my view, there is merit in the defendant's submissions.
Whilst I have power to grant leave and extend time in certain circumstances, I would not do so in this case because there remain some fundamental problems with the application being pursued by the plaintiff.
First and foremost, the plaintiff's application before the Local Court was really an application to have the charges against him dismissed without any proper hearing of the charges. The plaintiff did not identify the basis on which the learned magistrate might make such orders in those circumstances, and does not identify today the basis on which the learned magistrate should have made such orders.
Section 194 of the Criminal Procedure Act 1986 (NSW) provides that, if an accused person pleads not guilty to a charge, the Court must proceed to hear and determine the matter. As set out in s 194(2), the Court must hear the prosecutor, any witnesses, and other evidence of the prosecutor, and must hear the accused person, any witnesses, and other evidence of the accused person.
The basis of the plaintiff's application before the learned magistrate was really three fold, being: 1. the plaintiff had not received proper particulars of the charges against him, and had written to the police and the Sikh Association asking that the charges against him be dismissed (without a response satisfactory to him); 2. there was no power on the part of the Sikh Association to ban him from attending his place of worship; and 3. he says that he had a lawful excuse for being on the premises and thus that the charges against him are misplaced.
As for the first ground of the application in the Local Court, there was no basis on which the magistrate could have simply dismissed the charges against him on those grounds. As I explained to the plaintiff today, if he was unhappy about the information which had been provided to him, he could now be assured that the Police had provided to him all the material on which it intended to rely for the purposes of the charges against him. Further, charges are not dismissed just because the person against whom the charges have been laid writes to the Police and asks for them to be dismissed.
As for the second grounds, they are grounds on which the plaintiff may rely if he wishes to on the hearing of the charges against him. They do not provide any basis for a form of summary dismissal without hearing.
Again, as I explained to the plaintiff today, if he wishes to obtain evidence to the effect that he was entitled to be on the premises at the time he was there, that is on the two dates which are the subject of the charges, he may obtain that evidence. If he wishes to challenge the authority of the Mr Dhaliwal and the Sikh Association to prevent his entry into the temple, he may challenge that when the charges in the Local Court are heard. However, again as I pointed out to the plaintiff, the Police will no doubt wish to adduce evidence, and he can adduce evidence, on a full hearing of the matter.
The matter is listed on 9 September 2020 for hearing. It is a matter for the plaintiff either to defend the charges against him on that date, or make any application he wishes to adjourn the hearing so that he may in turn obtain further evidence, if he considers that he should be obtaining further evidence. It is not the function of the Supreme Court to advise the plaintiff as to how he should conduct the proceedings in the Local Court, and whether he should be obtaining further evidence or defending the charges.
As I said, if he wishes to raise all of the issues of substance which he has included in his summons and about which he has spoken today, the appropriate forum to do so is on the hearing in the Local Court, rather than in the Supreme Court. Indeed, for the benefit of the plaintiff, it might be said that, bearing in mind his concerns about being unable to attend his place of worship, the most expeditious way of dealing with that problem would perhaps be the finalisation of the proceedings in the Local Court, where he could adduce whatever evidence he wished to adduce on what he describes as the main issues.
It is not apparent that the learned magistrate actually made any orders. He appears to have merely informed the plaintiff as to "the best way to go". That is not a criticism of the magistrate.
In the end: 1. the appeal was not filed within the time required; 2. there does not appear to be any orders from which the plaintiff is seeking relief; 3. there is no basis on which I could make orders varying the bail conditions in the way suggested by the plaintiff or as sought in the summons; 4. the plaintiff has not demonstrated any error of law unless, of course, he is really suggesting that in some way the magistrate simply failed to deal with his arguments.
In the circumstances, leave to appeal is refused.
The plaintiff's summons is dismissed.
The defendant seeks costs in accordance with s 54(3) the Review Act. The plaintiff was afforded an opportunity to indicate any basis on which I should not make a costs order. He said he wished to pay by instalments. I indicated to him that was something he could discuss with the solicitors for the defendant.
I have dismissed the application for leave to appeal. In my view, there was no merit in the application. I order the plaintiff to pay the defendant's costs of the summons.

At a glance

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Judgment (4 paragraphs)

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