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[2012] VSCA 48
Court of Appeal (Vic)
2012-03-20
Warren CJ
Original judgment source is linked above.
THE QUEEN (ON THE APPLICATION OF THE PROTHONOTARY OF THE SUPREME COURT OF VICTORIA)
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION
[2012] VSCA 48 (Revision 2, 11 April 2012)
R v Slaveski [2011] VSC 643 (13 December 2011) (Conviction)
R v Slaveski [2012] VSC 7 (20 January 2012) (Sentence)
CRIMINAL LAW - Appeal against conviction - One count of contempt of court - Appellant alleged to have engaged in abusive behaviour in court - Allegations of impropriety and corruption made against Court and presiding judge - Threat to presiding judge - Whether trial judge erred in refusing to grant adjournment for appellant to obtain legal representation - Natural justice - Charter of Human Rights and Responsibilities - Whether trial judge biased - Appeal against conviction abandoned - Grounds of appeal would not have been made out.
CRIMINAL LAW - Appeal against conviction - Abandonment - Whether applicant could reinstate appeal against conviction after counsel had abandoned the appeal but accused subsequently chose to represent himself and denied providing instructions to withdraw appeal - No evidence to support allegations counsel had acted contrary to instructions - Leave to reinstate appeal refused.
CRIMINAL LAW - Appeal against sentence - One count of contempt of court - Appellant alleged to have engaged in abusive behaviour in court - Allegations of impropriety and corruption made against Court and presiding judge - Threat to presiding judge - Sentenced to two months' imprisonment with further one month's imprisonment in default of paying costs - Whether trial judge failed to take sufficient account of apologies - Whether trial judge failed to take account of applicant's mental illness - Whether trial judge erred in taking into account applicant's previous suspended sentence - Whether sentence of two months manifestly excessive - Whether change in circumstance since sentence - Whether trial judge erred in imposing fixed term of imprisonment in default of payment of costs - Appeal allowed in part - Appellant resentenced to two months' imprisonment - Appellant ordered to pay indemnity costs - R v Eliasen [1991] 53 A Crim R 391.
CRIMINAL LAW - Appeal against refusal to grant application for recusal - Apprehended bias - Whether warning given by trial judge about issuing a bench warrant amounted to apprehended bias - Accused had alleged that trial judge had been working from altered documents, had the goal of imprisoning accused and was 'covering up' interference in evidence - Whether refusing to provide all films from court precinct could amount to apprehended bias - Whether refusing to allow accused to take a break in order to access medication amounted to apprehended bias - No basis for allegations - Apprehended bias not made out - Trial judge was correct in refusing application to recuse himself - Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 applied.
CONTEMPT - Appeal against refusal to grant adjournment of trial - Natural justice - Charter of Human Rights and Responsibilities - Whether trial judge erred in not granting an adjournment where counsel and solicitors had withdrawn and legal aid had been withdrawn during the trial through the actions of accused - Whether trial judge had erred in not granting an adjournment so accused could examine the evidence for tampering - No error - No denial of natural justice - Appeal dismissed - Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543, D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1; Slaveski v Smith [2012] VSCA 25; House v The King [1936] HCA 40; (1936) 55 CLR 499 applied - Pamamull v Albrizzi (Sales) Pty Ltd [2012] HCATrans 63 considered.
CONTEMPT - Costs - Indemnity and solicitor-client costs - Whether can grant fixed term of imprisonment in default of payment of costs.
For the Victorian Equal Opportunity and Human Rights Commission
Victorian Equal Opportunity and Human Rights Commission
1 The applicant stands convicted of contempt of court and is serving a custodial sentence. He brings a number of applications; ultimately, he seeks to have his conviction for contempt set aside.
2 The applicant sued the State of Victoria and 23 serving or former police officers. He sought damages for assault and battery, false imprisonment, malicious prosecution, defamation, trespass, conversion, detinue and negligence. The trial proceeded before Kyrou J over 115 sitting days. The applicant represented himself in the civil proceeding until part-way through when Kyrou J appointed the wife of the applicant, Mrs Slaveska, as his litigation guardian. This occurred because of concerns of Kyrou J as to the mental state of the applicant and his behaviour in court.[1] All claims, save one claim of trespass, failed.[2]
3 During the civil proceeding the applicant was alleged to have behaved in a way such that Kyrou J, after delivering his judgment and permitting the applicant to make submissions, ordered the Prothonotary of the Supreme Court to apply by originating motion for punishment for contempt of the applicant. The alleged conduct occurred on 2 June 2010. The Victorian Government Solicitor then brought the contempt proceedings against the applicant which were heard by Whelan J.
4 The Crown purported to prove the conduct by tendering court-based recordings and the printed transcript of the proceeding before Kyrou J on 2 June 2010. The Crown exhibits were:
(1) The exhibit described 'P1' being the revised (or corrected) printed transcript prepared by the Victorian Government Reporting Service. It included additions and corrections mostly based on the evidence of Mrs Slaveska.[3]
(2) A digital audio recording of proceedings on 2 June 2010 was made by Legal Transcripts Pty Ltd (which appears to have been used to prepare the original typed transcript).
(3) A video recording of proceedings taken in the courtroom by the Associate of Kyrou J on 2 June 2010.
5 In his reasons for judgment, Whelan J described the events and conduct on 2 June 2010 based upon the transcript, P1, and the two recordings and made findings.[4] I set out below the description of Whelan J.
6 I summarise otherwise what occurred on 2 June 2010 based on the reasons of Whelan J,[5] viewing and listening to the recordings and reading the transcript, P1.
7 Mrs Slaveska at the beginning of the day's hearing on 2 June 2010 told Kyrou J that on the way to court that morning the police had tried to murder them. Mrs Slaveska said she and the applicant were driving on the Metropolitan Ring Road when police in a marked police car ordered them to pull up, called the applicant 'a fucking idiot' and that the police officer 'put his hand towards the gun'.[6]
8 Mrs Slaveska was very upset when describing these matters in court to Kyrou J. His Honour asked whether the matter should be stood down. At that point, the applicant began a series of interruptions to the court hearing. This occurred seven times. Each time Kyrou J asked the applicant to sit down and be quiet. There were two other interruptions when the judge asked the applicant to leave the court. All this occurred whilst Mrs Slaveska was addressing the judge.
9 When Kyrou J asked the applicant for the seventh time to sit down and be quiet, the judge warned the applicant that he would otherwise have the applicant removed from the court. This had occurred many times before 2 June 2010.[7]
10 In his reasons Whelan J described what happened next:[8]
In response to the judge's suggestion that if he didn't sit down he was going to order his removal, the following interchange occurred:
MR SLAVESKI: Are you threatening me?
HIS HONOUR (Kyrou J): No, all I said---
MR SLAVESKI: Are you threatening me?
HIS HONOUR: Call extra security, please. Mr Slaveski, you are excluded from the Court for the rest of today.
When Mr Slaveski said 'Are you threatening me' the second time he did so speaking directly into Mrs Slaveska's microphone. His voice is loud. What he said, and the tone in which he said it, prompted the call for extra security and an order that Mr Slaveski was excluded from the Court. It was entirely appropriate, in my view, for the judge to respond in that way. According to the evidence of Kyrou J's associate which I accept, at this point she activated the duress button. (footnote omitted)
11 Next an interchange occurred involving the applicant. The Crown alleged that the applicant made 20 statements that constituted the alleged contempt. Justice Whelan described what occurred next and highlighted the 20 statements in the extract below including inserting in roman numerals the statement number the subject of the charge of contempt:[9]
The interchange which occurred was as follows:
MR SLAVESKI: No, no, no, no, this is a conspiracy. You know, your Honour---[i]
HIS HONOUR (KYROU J): Mr Slaveski, please be quiet.
MR SLAVESKI: ...- ---(indistinct) Victoria Police and everybody that want to kill us [ii]
The presiding judge asked Mr Slaveski to be quiet but he continued as follows:
MR SLAVESKI: Do you know anything about the murder?[iii]
HIS HONOUR: No, I don't know anything about any murder---
MR SLAVESKI: Yes, you probably do, your Honour.[iv]
HIS HONOUR: Please leave the Court now.
At this point one of the PSOs approached Mr Slaveski. Mr Slaveski maintains he was assaulted by that PSO and that that assault is not seen on the video because it has been tampered with, or, as his counsel put it before he withdrew, because it occurred out of the area captured by the cameras. The visual images on the video are very poor and the camera angle does not capture the entire courtroom. The interaction between Mr Slaveski and the PSO cannot be seen.
A second PSO had now entered the courtroom and Mr Slaveski turned his anger on the PSOs. The interchange was as follows:
MR SLAVESKI: Don't fucking touch me [v] Don't touch me. I will leave - I will leave---
HIS HONOUR (Kyrou J): Security officers.
MR SLAVESKI: Hey, don't fucking touch me.[vi]
The judge (Kyrou J) instructed the two PSOs to sit down. Mr Slaveski continued his abuse:
MR SLAVESKI: Don't fucking touch me. Don't you fucking understand? Don't fucking touch me. I will get my tablets and I'm leaving you mother fuckers, you fucking tried to kill me today (indistinct)---[vii - as corrected].
HIS HONOUR (Kyrou J) : Mr Slaveski---
MR SLAVESKI: Do not fucking touch me. Do you fucking understand me, you mother fuckers? Do not fucking touch me [viii]
The only time the judge (Kyrou J) raised his voice in the entire hearing was when he was directing instructions to the security officers. He instructed them again to sit down.
According to the evidence of Kyrou J's associate which I accept, at this point Mr Slaveski jumped on to a chair and then on to a table in the courtroom.
Mr Slaveski took up the judge's instruction to the security officers to sit down, using his own abusive language delivered in an aggressive and, in my view, threatening manner. The interchange was as follows:
MR SLAVESKI: Sit fucking down. Sit fucking down.[ix]
HIS HONOUR: Mr Slaveski---
MR SLAVESKI: Do not fucking touch me. [x]
For a moment the judge caught Mr Slaveski's attention. In response to the judge saying his name Mr Slaveski said "Yes, sir." The judge then said he was giving him the opportunity to leave peacefully, in response to which Mr Slaveski returned to his abuse of the PSOs saying "Do not fucking touch me". The judge repeatedly stated that no one was touching him. Mr Slaveski went on:
MR SLAVESKI: You fucking mother fuckers, you going to kill my fucking children---[xi]
HIS HONOUR (Kyrou J): Madam Associate ---
MR SLAVESKI: Fuck you and the fucking State---[xii - as corrected]
HIS HONOUR: ---call extra security. Sit down, please. Sit down, please.
Mrs Slaveska said that an ambulance should be called. The judge (Kyrou J) observed that no one was going to touch Mr Slaveski and that he was being given an opportunity to leave peacefully, in response to which there was the following interchange:
MR SLAVESKI: I don't need a fucking opportunity to say ---[xiii]
HIS HONOUR: Just calm down, Mr Slaveski. We're giving you an opportunity to leave peacefully.
MR SLAVESKI: He is touching me.
HIS HONOUR: No one is touching you Mr Slaveski. Well, call an ambulance, Mrs Slaveska.
It should be noted that whilst the event was occurring Mr Slaveski's complaint was that one of the PSOs was "touching" him.
Mr Slaveski continued what, in my view, can fairly be described as a tirade, briefly interrupted at one point when the judge (Kyrou J) had got his attention. The following then occurred:
MR SLAVESKI: I'm sorry. How can you run a trial like this? You fucking pigs [?] you took my health away [xiv]
The only correction to the transcript which Mrs Slaveska suggested which I do not accept concerns the word "pigs" in the transcript. Mrs Slaveska says that her husband said "thing". I do not accept that. The audio by Legal Transcripts Pty Ltd is superior to the audio on the videotape. What I think I hear on the Legal Transcripts Pty Ltd audio is: "You fucking pig you, you took my health away". The standard of proof is beyond reasonable doubt. I am satisfied to that standard that he said "pig" or "pigs". I make no adverse finding beyond that.
Further PSOs arrived in the Court and the judge instructed them to sit down as well. Mrs Slaveska was on the phone attempting to call an ambulance. Mr Slaveski was continuing his angry outburst. The judge (Kyrou J) again asked him to leave the Court and the following then occurred:
MR SLAVESKI: OK. Don't make it come between you and me, your Honour, please.[xv]
HIS HONOUR (Kyrou J): There's nothing between you and me, Mr Slaveski. Just be calm and leave the court, please.
MR SLAVESKI: I get palpitations. Don't make it come between you and me, your Honour, please. [xvi - as corrected]
HIS HONOUR: I don't know what you mean, Mr Slaveski. Just be quiet ---
MR SLAVESKI: Any way you want to take it, your Honour.[xvii] Twenty-three police officers being sued, let's come to the trial of this court ---
His Honour (Kyrou J) gave an instruction to sit to a PSO and Mr Slaveski then said:
MR SLAVESKI: I had enough of this State and I had enough of this corruption, including this Supreme Court corruption. You going to threaten me? [xviii]
In my view Mr Slaveski's statement "You going to threaten me" was a reference back to the event which immediately preceded Mr Slaveski's tirade when the judge had said that if he did not sit down he was going to remove him from the Court, in response to which Mr Slaveski had asked twice: Are you threatening me?
Mr Slaveski went on:
I had enough of your threats, [indistinct] you crooks, you mother-fuckers, I had enough of you. You want to kill my children. Fuck you and the fucking State. I had enough of you, you fucking mother-fuckers. [xviii]
The judge (Kyrou J) reminded Mr Slaveski that he was being recorded and the following interchange then occurred:
MR SLAVESKI: You are part of this conspiracy, your Honour. You know about the murder that they plot on me and my wife today.[xix]
HIS HONOUR (Kyrou J): Mr Slaveski, this incident is now going to be added to the contempt matters against you.
MR SLAVESKI: Good. Good. And you have a duty to send security downstairs to get my wife.
Notwithstanding what had occurred, the judge remained patient and calm and continued to politely request Mr Slaveski to leave the Court. Mrs Slaveska was still on the phone attempting to call an ambulance.
The following then occurred:
MR SLAVESKI: Your Honour, please stop the killing. Stop the hit on me and my wife, please.
HIS HONOUR (Kyrou J): Mr Slaveski, it's best if you be quiet please.
MR SLAVESKI: Please, your Honour. I'm praying to you and your family and me and my family, please.
HIS HONOUR: Mr Slaveski, do not mention my family.
MR SLAVESKI: I-I don't want me family to be killed. Do you know about this hit?
The only occasion upon which the judge appears to have been disconcerted during the hearing was in this passage. These statements are not relied upon as constituting contempt. Mr Slaveski sounds in control of himself in this interchange.
Mr Slaveski then made the final statement which is said to constitute contempt:
MR SLAVESKI: Ten years of torture. Ten years of torture of Victoria Police. Fuck you, you mother fuckers. You going to kill me and my family.[[xx]]
Before Mr Slaveski eventually left the Court the following interchange occurred:
MR SLAVESKI: For the sake of children, please, your Honour, tell them to stop this. Please. I beg you. Your Honour. Your Honour, please. Your Honour, can you look at me. Tell them to stop this, please.
HIS HONOUR (Kyrou J): Mr Slaveski.
MR SLAVESKI: Please.
HIS HONOUR: Please leave the court.
MR SLAVESKI: Can you tell them to stop.
HIS HONOUR: Mr Slaveski, please leave the Court.
MR SLAVESKI: Do you give me your word that you will tell them to stop this.
HIS HONOUR: Mr Slaveski, I'm hearing this case. I'll hear the evidence and I'll make a decision. Please now leave the Court.
Again, Mr Slaveski sounds to be in control of himself in this interchange.
Mr Slaveski did leave the Court. Mrs Slaveska asked to go with him. The judge indicated that he would adjourn as soon as they had both left the Court, and he did so. He adjourned until further notice. (footnote omitted).
12 Justice Whelan concluded that each of the 20 statements were abusive of the judge and the court, and disrupted and disturbed the proceeding before Kyrou J. Justice Whelan found that statements [i], [ii], [iii], [iv], [xiv], [xvii] and [xix] contained allegations of impropriety, partiality and corruption against Kyrou J. Justice Whelan also found that statements [i], [ii], [iii], [iv], [xiv], [xviii] and [xix] contained allegations of impropriety, partiality and corruption against the Court. His Honour further found that statements [xv], [xvi] and [xvii] contained threats to Kyrou J.
13 During the contempt trial before Whelan J, the applicant alleged that the transcript of 2 June 2010 had been tampered with. Evidence was given by the recording technician who set up and monitored the recording equipment, the typist who typed the transcript and an audio technician who had retrieved the digital recording. As I observed already, Whelan J found that the transcript constituting Exhibit P1, together with the annexure of corrections, accurately set out what was said on 2 June 2010.
14 It was also argued by the applicant before Whelan J that the video recording made in court on 2 June 2010 did not show all that had occurred.
15 The Associate to Kyrou J gave evidence before Whelan J about making the video recording of the proceedings on 2 June 2010 and then handing it to the Prothonotary. The video showed the courtroom prior to the commencement of the hearing, footage during the hearing, footage immediately after the hearing and some other footage during the trial at other dates. At no stage in the contempt trial before Whelan J was it suggested that the video recording was inaccurate by Mrs Slaveska.[10] She gave evidence and was cross-examined.
16 The contempt trial itself ran for eight days.[11]
17 The applicant gave evidence before Whelan J and was cross-examined. The video of the proceeding on 2 June 2010 was played and the applicant made comments in his evidence. The applicant alleged that in the incident in the court on 2 June 2010, he was assaulted by one of the Protective Service Officers but that the video recording had been tampered with. He alleged the assault incident had been out of range from the video camera. The Associate to Justice Kyrou, Ms Williams, gave evidence that the video had been given to the Prothonotary. The latter gave evidence of giving the tape directly to the Victorian Government Solicitor. Two solicitors from the VGSO gave evidence. One gave evidence about the handling of the video and what it showed. The other solicitor, Mr Jones, gave evidence about the handling and secure management of the video. Mr Jones denied that the video was tampered with.[12] The applicant also called the VGSO's systems administrator, Mr Todd, who had made the extract of the video on DVD. He said he had downloaded the entire contents of the video onto the DVD and had given it to the VGSO.
18 The applicant called a family acquaintance, Mr Tancevski, who was in court at the time of the incident on 2 June 2012. He had limited command of English. He was shown the video and his only comment on its accuracy was to say that Kyrou J at one point told the security officers, 'stop, don't touch him, don't touch him' and that he could not hear those words said on the video. Justice Whelan found that the applicant's allegations of tampering of the video were without foundation.[13] His Honour accepted the evidence of Kyrou J's Associate and the VGSO lawyers and staff. Justice Whelan also emphasised the fact that there was an unchallenged audio recording which was identical to the audio on the video. His Honour further noted that, save for the difference raised by Mr Tancevski and the allegation of the assault by the applicant, no witness suggested that the video was inaccurate. This included the applicant and Mrs Slaveska.[14] Justice Whelan in this respect said:
The video does record what occurred. Extensive court time, and the time and trouble of Court staff, transcript personnel, solicitors, and others was needlessly wasted pursuing an issue in relation to which Mr Slaveski alleged serious wrongdoing, to no apparent purpose, and without any proper foundation. I make no criticism of Mr Slaveski's former legal advisors in this respect.[15]
19 To summarise, Whelan J rejected the alleged inaccuracy of the transcript on 2 June 2010, the alleged tampering with the video, the alleged threats by the police before court on the morning of 2 June 2010.
20 As observed elsewhere in these reasons,[16] Whelan J found that the applicant's actions were 'conscious, voluntary and deliberate'.[17] His Honour held that no evidence suggested to the contrary.[18] Justice Whelan further found that on three occasions during the offending behaviour of the applicant on 2 June 2010 in court the applicant addressed Kyrou J in terms which were 'calculated to further what he perceived to be his interests'.[19] Justice Whelan also found that the applicant 'intended to be abusive and disruptive, intended to allege impropriety, partiality and corruption, and intended to threaten the judge'. Justice Whelan expressed the view that this conclusion was clear from what the applicant said in court (to Kyrou J) and the way he said it. [20] Having viewed the video and heard the audio recording of the events in the courtroom I consider no other conclusion was open. Further, Whelan J observed that the conduct of the applicant 'had the effect of terminating the proceeding'.[21] His Honour went on to conclude that the applicant specifically intended to interfere with or obstruct the due administration of justice. Justice Whelan based this finding on the applicant's intent to be abusive and threatening and to allege corruption and complicity by the judge in conspiracy to murder.[22] Ultimately, Whelan J was not satisfied that the applicant formed the specific intention to bring about the termination of the hearing before Kyrou J. Rather, his Honour found that the applicant did not care about the obvious disruptive consequences and intended to give vent to his anger and make his allegations regardless of the consequences. Justice Whelan therefore found the contempt proven.
21 In the reasons for sentence Whelan J observed that there is no maximum penalty for contempt of court. His Honour referred to a number of factors: the offending occurred towards the end of a very long civil trial; a medical certificate from Dr Duggal; a psychiatric report from Dr Farnbach; the personal circumstances of the applicant having been born in central Europe and immigrating to Australia in 1977; the fact of his marriage and having three children, being teenagers at the time of sentence; the fact that the applicant had an elderly mother who did not enjoy good health and that he assisted in her care; his ongoing ill-health; his continuous alleged difficulties with Victoria Police; the specific psychiatric evidence of Dr Sullivan, Dr Farnbach and Ms Ranaweera, a psychologist; the fact that imprisonment would be difficult for the applicant; the need for general and specific deterrence; the support of the applicant's family; the fact that the offending conduct was of short duration on 2 June 2010; attempts at apologising to Kyrou J; the time that had elapsed since the incident; the fact that the offending was serious and not an isolated incident; the pessimism that underlies the applicant's prospects of rehabilitation; the fact that there were no relevant antecedents in the applicant's history; and the overall impact on the applicant's wife and family.
22 Justice Whelan sentenced the applicant to a term of two months' imprisonment. His Honour ordered that the applicant pay the costs of the proceedings on an indemnity basis. With regard to the latter order, his Honour said:
In relation to costs, in my view an order should be made that you pay the costs of the proceeding on an indemnity basis. You indicated to me in the course of the plea that you would be able to meet an order for costs as you, or associates of yours, are realising assets in which you, or members of your family, have an interest. I do intend to impose a term of imprisonment in default of payment.[23]
(a) he was abusive of the presiding judge, abusive of the Court, and disrupted and disturbed the proceeding;
(b) he alleged impropriety, partiality and corruption against the presiding judge;
(c) he alleged impropriety, partiality and corruption against the Court; and
(d) he threatened the presiding judge.
THE COURT ORDERS THAT:
2. The defendant pay the costs of this proceeding on an indemnity basis.
5. The defendant be committed to prison for a term of 2 months.
The history of directions hearings before Whelan J prior to the Contempt Trial
24 It is necessary to set out in some detail the history of the directions hearing prior to the contempt trial. Following the commencement of the contempt proceedings by the Crown, Whelan J convened a directions hearing on 14 September 2011. The applicant was self-represented. A representative of Victoria Legal Aid ('VLA') attended, apparently at the initiative of the judge.[24] The court record shows that the applicant had prepared an application for legal assistance but it was yet to be submitted.[25] The directions hearing was adjourned.
25 On 23 September 2011 the applicant was represented by counsel who apparently appeared pro bono under the Victorian Bar Duty Barristers' Scheme.[26] Counsel was instructed by Tait Lawyers who at a later time informed Whelan J they did so pursuant to the granting of legal aid. Thus, from 23 September 2011 the applicant had full legal representation partly pro bono, and partly through Victoria Legal Aid. Directions were made for the filing of any affidavit by the applicant and the hearing was further adjourned.
26 On 30 September 2011 different counsel appeared,[27] it seems pro bono. The same legal aid lawyers instructed. Justice Whelan made directions for the filing of the Crown's affidavits and adjourned the hearing. This occurred on 21 October 2011 when further directions were given. Justice Whelan directed a report from Dr Sullivan, psychiatrist, on the applicant's fitness to plead. The applicant was represented by the same counsel and lawyers. The court record discloses Whelan J foreshadowed that the applicant would be arraigned on 11 November 2011 subject to his fitness to plead[28]. There was a further directions hearing which I describe separately below.[29]
27 Next, on 22 November 2011 the applicant appeared on his own behalf before Whelan J seeking on a purported summons for the judge to recuse himself on the grounds of bias. The court record discloses that the applicant's previous counsel[30] appeared, but not on behalf of the applicant with respect to the summons.[31] His Honour informed the applicant he could sack his counsel and proceed with the bias application, dismiss (presumably discontinue) the application or adjourn it.[32] The judge gave the applicant time to consider his position. Ultimately, the matter was adjourned to the trial date, 29 November 2011, and some further directions were given for the trial.
28 Earlier on 21 November 2011 the applicant swore an affidavit deposing to a variety of matters: the following of him during the trial before Kyrou J, the Ring Road event on 2 June 2010, the fleeing of the applicant to Sydney and an assault of him and his family by police in Sydney. The applicant also described in his affidavit matters relating to his legal representation before Whelan J:
(a) he was approached by a barrister to represent him upon the directions of Whelan J;
(b) the barrister came to represent him on 30 September 2011 without his knowledge or consultation and spoke to the judge in words he did not understand;
(c) the barrister told him, among other things, to be quiet and that the judge might lock him up;
(d) his affidavit of 23 September had been placed in a sealed envelope and was not available to be read;
(e) he told the barrister many times to have the affidavit put back on the court file;
(f) he asked the barrister for all of the transcripts of all hearings before Whelan J;
(g) the barrister told him to plead guilty and the contempt proceeding may result in a fine otherwise if the proceeding was contested it may result in a custodial sentence; and
29 The applicant also deposed in the affidavit of 21 November 2011 as to events he said occurred on 11 November 2011 immediately before and at the commencement of the directions hearing that day before Whelan J.
30 The applicant deposed that on 11 November 2011 he and his wife arrived at the Supreme Court security at 9.25am and after screening were told by security to wait and not enter the courtroom. Phone calls were made by security and after a few minutes the applicant and his wife were allowed into court. Upon entering the courtroom Whelan J was on the bench and informed the applicant he was about to issue a warrant. The applicant said he tried to explain that he had been detained by security but that the judged refused to listen to him and threatened his arrest. The applicant further deposed that he was fearful of Whelan J and he believed the judge had decided to take particular steps without hearing the case.
31 In the affidavit of 21 November 2011 the applicant also deposed that the transcript of the hearing on 11 November 2011 had been tampered with. He deposed that words had been deleted.[33] In particular, he deposed that when he was arraigned on 11 November 2011 and the associate of Whelan J asked him how he pleaded he said he answered that he wanted to see the original video footage (of 2 June 2010), that it had been tampered with and that he was pleading not guilty. The applicant went on to depose that he believed Whelan J was biased.
32 At the directions hearing on 22 November 2011 Whelan J ordered that the applicant's affidavit be removed from the court file and returned to the applicant. It is not clear from the court record as to why this was done, possibly because it was deemed irrelevant, possibly because its contents were deemed embarrassing, vexatious and scandalous or perhaps because of some other reason. Nonetheless, the affidavit of 21 November 2011 was later tendered in evidence by the applicant during the contempt trial.[34] It was also relied upon by the applicant in his submissions before us.
Legal representation of the applicant before Whelan J
33 As observed, the contempt trial before Whelan J commenced on 29 November 2011 and was preceded by directions hearings on 11 November 2011. The applicant was represented by two junior counsel with instructing solicitors. Their appearance was announced by them at the commencement.[35] They represented the applicant on 29 and 30 November 2011. On 1 December 2011, the third hearing day, the two counsel and the solicitors withdrew, informing Whelan J that their instructions to act had been withdrawn by the applicant. The solicitors formally sought leave to withdraw. In the course of doing so, the solicitors told Whelan J that they were funded by Victoria Legal Aid and that the applicant had withdrawn instructions. Leave to withdraw was granted.[36]
34 Next, the applicant informed Whelan J that the counsel he had just terminated said to him: 'I'm telling you it's better that you plead guilty'. The applicant said he rejected that advice and wanted 'all the evidence to be called' and that 'the video has been tampered or cut by somebody' and that he wanted 'that somebody to be brought before Whelan J'. The applicant said counsel told him 'well then I'm withdrawing' to which the applicant said he replied, 'well I think that's the best way'.[37]
35 His Honour then pointed out that the applicant was representing himself and asked if he was ready to proceed. Justice Whelan explained to the applicant that he should regard the proceeding as a criminal matter. His Honour said, quite properly, that he anticipated if the applicant was convicted the prosecution would submit that a prison sentence should be imposed. The applicant then asked for adequate time to prepare and communicate with a lawyer. He said he needed a lawyer. The applicant raised the Charter of Human Rights and Responsibilities (the 'Charter'). He then said he needed time to engage other lawyers.[38] Whelan J refused the application for the adjournment. His Honour made reference to the fact that the trial for contempt was halfway completed and that the applicant had chosen not to continue with his counsel and lawyers.[39] The applicant also had other proceedings on foot in New South Wales; bail had been granted to the applicant.[40] The applicant flagged with Whelan J that he was due to appear in Sydney the next day, 2 December 2011. When his Honour clarified that the hearing in Sydney was a directions hearing, he told the applicant that the current trial was proceeding and that the applicant should make arrangements to adjourn the directions hearing in Sydney. The trial then resumed with the applicant's wife, Mrs Slaveska, continuing her evidence as to what occurred on 2 June 2010 before Kyrou J. Later, just before the luncheon adjournment, Whelan J informed the applicant again that the trial was proceeding and that his attendance was required at court. The judge repeated that the applicant would need to have the hearing in Sydney adjourned.[41]
36 After the luncheon adjournment, Whelan J announced that the court had received an email from Victoria Legal Aid advising that legal assistance to the applicant had been terminated.[42] The applicant told the judge that he had spoken to the Public Interest Legal Clearing House ('PILCH') and that 'they' would come to speak to the judge. He said he wanted an adjournment. His Honour informed the applicant that PILCH could do that 'if they came' but that in the meantime the trial would continue.[43]
37 His Honour refused the applicant's adjournment application on 1 December 2011 for six reasons:[44] first, the contempt trial was well-advanced and the prosecution case had closed; secondly, the matter was already long delayed; thirdly, his Honour having conducted the directions hearings and the trial thus far observed that the lawyers who had acted for the applicant had done so in difficult circumstances and had great difficulty in identifying the defence; fourthly, his Honour assessed that there was no realistic prospect of the applicant obtaining fresh counsel; fifthly, any adjournment would be indefinite; sixthly, his Honour observed that the lawyers who had acted for the applicant up until their withdrawal had conducted the trial 'in a perfectly appropriate manner' and that there was nothing which had occurred in court that ought to have led to their withdrawal.
38 The trial proceeded and the applicant called the police officer, senior constable Busic, who had been involved in the incident on the Western Ring Road on the morning of 2 June 2010. The applicant questioned Mr Busic. In the course of that evidence, a barrister intervened and asked to be heard. He informed Whelan J that he attended as part of the Victorian Bar Junior Barristers' Scheme on an urgent basis and offered to assist as a friend of the court. The barrister asked for time to speak to the applicant. This occurred. After a short break, the barrister informed the judge that he was not able to identify a proper basis for an adjournment as sought by the applicant. The barrister withdrew and the trial continued.[45]
Further applications during the contempt trial
39 At the end of the day's evidence on 1 December 2011, the applicant announced that he wished to apply for an adjournment pending Victoria Legal Aid conducting a review he could request of their decision. The request was stood over to the next morning. Next that afternoon the applicant then made a number of applications. First, that the judge should recuse himself for bias. Secondly, that his previous counsel had 'framed him'. The applicant tendered two affidavits dated 21 November 2011[46] and 23 September 2011, ostensibly in support of his recusal application. The applicant did not articulate his applications very well. However, doing my best I set out the circumstances that lay under the bias application.
40 On 11 November 2011 a directions hearing was held by Whelan J in the contempt proceeding. The applicant arrived at court late. When the applicant entered the courtroom, his Honour warned him that he was about to issue a warrant for his arrest.[47] His Honour said the applicant faced the prospect of imprisonment and told the applicant so he would know in future he had to be on time.[48] Later in the trial the applicant complained on the bias application, first, that the warning given by Whelan J on 11 November 2011 constituted bias,[49] secondly, the applicant complained that the judge's warning on 11 November 2011 was not recorded on the transcript for that day.[50] The applicant requested the video recording of proceedings on 11 November 2011, which the judge declined.[51] Although it is not clear whether there was a video in fact made on 11 November 2011, his Honour told the applicant the video was irrelevant.[52] Thirdly, on 11 November 2011, presumably after the aforesaid warning, the applicant was arraigned on the charge of contempt. The transcript only recorded the formal arraignment, in accordance with the usual, longstanding practice of the Trial Division of the Supreme Court. The applicant complained that the transcript had been altered by the Victorian Government Reporting Service to delete all that he had said at the time of the arraignment. He said Whelan J demonstrated bias by not using what he termed the 'original documents', presumably what he believed to be an original, unaltered version of the transcript.[53] Fourthly, the applicant claimed his 'human rights'.[54] Fifthly, the affidavit tendered by the applicant claimed that the judge had been pushing the case to swiftly proceed to trial and his goal was to imprison the applicant. His Honour refused the application to recuse himself holding that there was no proper basis to do so.
41 Later in the trial, the applicant made a further application for recusal. The applicant had called the security manager of the Supreme Court, Mr Stojanovski, in relation to security camera filming in the court. In the course of Mr Stojanovski's evidence a potential inconsistency arose between his evidence as to the film feed from courtroom cameras to the security room and the evidence of the Associate to Kyrou J, Ms Williams, as to those matters as at 2 June 2010. When the alleged inconsistency arose the judge queried whether the applicant was asking Mr Stojanovski as to the security camera arrangements in place on 2 June 2010 or at the time of the contempt trial in December 2011. The applicant announced during the evidence of Mr Stojanovski that he wished to recall Ms Williams. His Honour refused because Ms Williams had already given evidence. The applicant again applied for his Honour to recuse himself on the grounds of bias because he was 'covering up' interference with the court video of 2 June 2010.[55] Again, the applicant sought to recall Ms Williams and the judge refused.[56]
42 Next, on 7 December 2011, the applicant sought to adjourn the contempt trial so that a person, Mr Jovic, could examine the court tape of the 2 June 2010 proceeding and incident and, presumably, confirm it had been tampered with. His Honour refused the adjournment application for a number of reasons. First, the adjournment would take a number of weeks as Mr Jovic was not immediately available. Secondly, no witness who was present in court on 2 June 2010 had said anything viewed on the video did not occur save for the alleged assault. Thirdly, the audio recording of 2 June 2010 was consistent with the video recording and it was unnecessary to adjourn the trial for weeks for what appeared to be an unproductive inquiry. Fourthly, the Associate to Kyrou J, Ms Williams, had already been examined and her understanding about the video recording and related matters was at best peripheral. His Honour also said that his reasons for refusing an adjournment would be amplified when he dealt with the tampering issue in his ultimate reasons for judgment.[57]
Mental condition of the applicant and fitness to plead
43 During the main trial before Kyrou J, the judge directed an independent psychiatric report be provided by Dr Danny Sullivan dated 30 November 2009 about the mental health and capacity of the applicant to conduct his then trial. In summary, Dr Sullivan opined that the applicant was then suffering a delusional disorder over police harassment together with clinically significant anxiety symptoms. Dr Sullivan further opined that the applicant lacked the capacity to manage his affairs with regard to the proceeding and was unable to conduct his own case. Dr Sullivan further observed that the applicant's anxiety meant he was unable to remain in the courtroom at times and led to a range of 'unorthodox and challenging behaviours' in court. The doctor also noted that the applicant at times would not be capable of complying with directions of the trial judge.
44 The report of Dr Sullivan together with other medical and psychological reports led Kyrou J to originally appoint a McKenzie friend to assist the court during the trial[58] - the applicant's wife, Mrs Slaveska.
45 A further psychiatric report was provided by a consultant psychiatrist, Dr R W Farnbach on 30 November 2009. Dr Farnbach opined that the applicant was very seriously disturbed, with an extremely severe anxiety disorder, namely post-traumatic stress disorder, severe panic disorder and severe depression.
46 Subsequently, in the contempt trial Whelan J directed the further opinion of Dr Sullivan as to the applicant's then capacity and fitness to plead. Dr Sullivan concluded in a report dated 9 November 2011 that the applicant was then fit to be tried.[59] Dr Sullivan's observations included the following:
[20] Mr Slaveski in my opinion remains affected by a delusional disorder. He interprets a range of mundane events as self-directed, and there is a persecutory and grandiose flavour to many of his statements and behaviours. His beliefs are not amenable to argument and he has become obsessed with seeking vindication through the courts for a range of matters, many of which appear unusual or at least might be addressed more effectively in other ways.
[21] I am more persuaded from a further meeting with Mr Slaveski that he also exhibits more sustained underlying personality vulnerabilities, with paranoid and narcissistic elements. Formal personality testing would perhaps characterise this better. His pursuit of multiple legal actions is best described as querulant behaviour, without seeking rigidly to categorise this as either in the spectrum of psychotic illness or personality disorder. In any event Mr Slaveski appears to have become consumed with the pursuit of legal action despite the personal toll on him and his family.
[22] As regards the current contempt charges, I have considered his fitness to be tried according to the criteria set out at s6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act.
[23] Mr Slaveski appears to perceive that preceding events while en route to court justified his behaviour and consequently he will plead not guilty. He was able to explain clearly the nature of the charge and could enter a plea. I believe that he could exercise the right to challenge jurors. He has a clear understanding of the legal issues associated with this matter.
[24] Mr Slaveski has a clear factual appreciation of the evidence forming the basis of the charges. Despite his challenges to the veracity of the videotape recording, he does not dispute the substantial nature of the evidence, that is, an account of his conduct. However he considers that he was justified and that he was the victim of an unwarranted assault.
[25] I believe that he could follow the course of the trial, indeed he has sustained attention during numerous other matters. His anxiety may render it necessary to take breaks but the Court appears to have developed some capacity to accommodate Mr Slaveski in his previous litigation, and disruptive behaviour of itself is not grounds for unfitness to be tried.
[26] Mr Slaveski can instruct his legal practitioners and although he may not develop a trusting relationship with them, this will not compromise his ability to instruct his legal representatives.
[27] Thus in my opinion Mr Slaveski is currently fit to be tried.
47 On 11 November 2011, Whelan J presided over a directions hearing for the contempt trial. The applicant was present and represented by junior counsel. His Honour raised the matter of the most recent report of Dr Sullivan. The applicant's counsel submitted that the applicant was fit to plead. It appears that on that basis together with the recent report of Dr Sullivan, Whelan J found the applicant fit to plead.[60]
48 Next, on 11 November 2011 Whelan J informed the applicant's counsel of his intention to formally arraign the applicant treating the proceeding as if it were a criminal proceeding. The applicant's counsel left the matter of arraignment to his Honour. His Honour said:
Well look, I do think Mr Slaveski should be arraigned. I think he should plead personally. I think that this proceeding should replicate a criminal proceeding as closely as possible and so I will ask Ms Kerr [the associate] to arraign Mr Slaveski. Could you just stand up where you are Mr Slaveski? I won't make you go into the dock.
His Honour: Just listen to Ms Kerr. Go ahead?[61]
49 The transcript then records in accordance with the practice of the Trial Division:
50 The transcript shows that there was then a discussion about the contempt trial hearing date. The applicant was also warned by the judge, through his counsel, not to contact his Honour's associate by telephone or email. Whelan J then said to the applicant's counsel:
Well the - I mean the obvious thing is you'll tell him this, but he may as well hear it from me. If you can't attend court on time, if you can't comply with my directions, such as contacting Ms Kerr, while he's at liberty in the community with this matter pending, well then we'll have to bring about a situation where he's not at liberty in the community. ... And then I will be able to control his behaviour.[63]
51 Justice Whelan then adjourned proceedings to the commencement of a contempt trial fixed on 29 November 2011.
52 The applicant brought multiple applications in the Court of Appeal: an application for bail pending applying for leave to appeal conviction and sentence, an application to stay the orders of Whelan J, an application for leave to appeal conviction, an application for leave to appeal sentence and an application for leave to appeal interlocutory rulings by Whelan J refusing to recuse himself and refusing to adjourn the trial.
53 At the first hearing[64] the court directed that the matters be heard expeditiously and that the bail application be determined with the other applications. At the next hearing[65] the applicant was represented by counsel appearing pro bono[66] who had come into the matters only the afternoon of the day before. After discussion, the counsel informed the court that his instructions were that the applicant abandoned the application for leave to appeal the contempt conviction. The court granted time and stood the matter down to enable the applicant's counsel to clarify and confirm those instructions. This occurred and the applicant's counsel firmly confirmed the instructions. Accordingly, the order was made that the application for leave to appeal the conviction was abandoned. Counsel sought and was granted an adjournment to enable him to obtain instructions and prepare the application for leave to appeal the sentence and the other matters.
54 The remaining matters returned before the Court on 13 February 2012. At that hearing the applicant was self-represented. He confirmed that his counsel no longer acted for him. He also informed the court that he wished to apply to reinstate the application for leave to appeal conviction because his counsel had acted contrary to instructions. He handed up a handwritten application dated 11 February 2012 to this effect. The applicant then informed the court that he wanted to abandon the application for leave to appeal sentence because he had been informed in prison that the Court could potentially increase his sentence. The Court informed him that its practice was to give applicants a warning if the Court was considering increasing the sentence and that the Court would not be giving this warning to the applicant. The applicant did not proceed with abandonment and later made submissions on the application for leave to appeal sentence.
55 The only information that the applicant provided as to the circumstances of the abandonment of the conviction application was found in the handwritten application to set aside abandonment and in his oral submissions. The application stated the following: 'I never told/instructed the solicitor/barrister ... to abandoned my "conviction". [The barrister] told me that he was at chief Justice Chamber's for few hour's doing some deal's & going thru the document's about my case.' That application did not purport on its face to be an affidavit but was witnessed by a Justice of the Peace. In his oral submissions the applicant stated that he said to his solicitor something to the effect of 'If I get out today we will forget the whole thing' and his solicitor's response was 'That is what I am working towards'. In light of emails sent to the court by the applicant's wife, it appears that what the applicant was suggesting is that his counsel misled him into thinking that he had struck a deal with the Court such that if the applicant withdrew his application for leave to appeal conviction, the Court would release him immediately.
56 The abandonment was not a minor step or one made lightly. Hence, the court had been cautious in emphasizing the need to clarify and confirm the instructions of the applicant to counsel before proceeding. Nothing was or is before the Court that would lead me to conclude there was anything more than a change of heart by the applicant. There is no admissible evidence of the allegations and in any event these suggestions are fanciful and I do not accept them. Appeal proceedings are an important part of the criminal justice system. There are significant rules of procedure to ensure appeal proceedings are conducted properly, efficiently, expeditiously and justly. There is also the public interest in the certainty and finality of appeals. In my view there would need to be a sound reason based on appropriate evidence before an appeal proceeding would be reinstated once abandoned on a considered basis including with the benefit of legal advice as occurred here. I am not satisfied that the applicant's counsel acted without proper instructions or misled the applicant. Accordingly, I would refuse the applicant's application to reinstate his application for leave to appeal the conviction.
57 However, in the event it were necessary, I will consider the merits of the abandoned application for leave to appeal conviction.
The merits of the application for leave to appeal conviction
58 Before us, when then appearing for himself the applicant submitted three primary grounds of appeal against conviction:[67]
Whelan J was in error and denied the applicant natural justice in refusing to grant him an adjournment to obtain legal representation.
Whelan J denied the applicant's right under the Charter to legal representation and acted in breach of the Charter in refusing to grant the applicant an adjournment to obtain legal representation on 11 November 2011.
Whelan J demonstrated bias towards the applicant on multiple occasions:
(i) when his Honour told the applicant he was about to issue a warrant on his late arrival at court on 11 November 2011;
(ii) when his Honour proceeded to arraign the applicant on 11 November 2011 notwithstanding that the applicant had made repeated requests to see and test the video recording of the events in court on 2 June 2010;
(iii) when his Honour proceeded to determine the contempt charge and act upon a video recording of 2 June 2010 that had allegedly been altered;
(iv) when his Honour proceeded to determine the contempt charge and act upon a transcript of proceedings of 11 November 2011 that had allegedly been altered;
(v) when his Honour refused to provide to the applicant films from all other cameras in the court precinct of the Supreme Court;
(vi) when his Honour refused to allow the applicant to take a break in order to access medication.
60 The applicant had been rendered extensive assistance and indulgence by Whelan J from the commencement of the directions hearings until the completion of the contempt trial. So much is borne out by the detailed history of the proceedings before Whelan J already set out. I note that the applicant attended at the first directions hearing on 14 September 2011 to represent himself. It was his Honour who brought Victoria Legal Aid and the Victorian Bar Duty Barristers' Scheme in to assist the applicant. Without such assistance the applicant would have doubtlessly continued to represent himself and, significantly, had elected to do so prior to the proposed assistance of Legal Aid and the Bar.
61 In any event, the fact that a party to a proceeding has, by reason of his own conduct, deprived himself of competent legal representation will not ordinarily lead to the conclusion that a judge's refusal to adjourn the proceeding is a denial of natural justice.[68]
62 Further, I note that the applicant received assistance and advice from counsel upon and until the withdrawal on 1 December 2011. Thereafter, other counsel attended on 1 December 2011. It is apparent that counsel were unable to identify or discern a defence or at least a meritorious defence to the charge of contempt. I sympathise with this position as I too am unable to discern a defence. I observe that the applicant did not challenge the ultimate findings of fact of Whelan J that the events in the courtroom on 2 June 2010 occurred, save the applicant alleged he was assaulted. He did not dispute his behaviour in the courtroom. In my view it was open to Whelan J to find the contempt proven. From disclosures made by the applicant to Whelan J and to this court, he did not wish to plead guilty to the charge of contempt and therefore the lawyers available to him could not act. Clearly the applicant wanted his legal representatives to do and say as he wished, whether the submission was untrue, inaccurate or implausible. It is apparent that the applicant misunderstood and misconceived the legal process in which he was involved. He saw the criminal court as having the responsibility to conduct an enquiry into the civil court and surrounding events on 2 June 2010. His demands for the video recording and the allegations about interference were irrelevant and, as ultimately borne out by the findings of Whelan J after seeing and hearing all of the evidence, were implausible. It was for the applicant to prove the alleged tampering with the video and he simply failed to do so.
63 Whilst counsel must put a client's instructions to the court, counsel owe a paramount duty to the court not to mislead the court or tell it falsehoods.[69] The counsel and the lawyers acting for the applicant were left in an impossible situation. The applicant had no defence.
64 In any event the applicant seems to have been preoccupied with the courtroom video of 2 June 2010 because he said it failed to capture the assault of him by protective services officers. Presumably, the applicant wanted the judge (both Kyrou J and Whelan J), where relevant, to have an explanation as to why he, the applicant, behaved as he did in court on 2 June 2010. Hence, what the applicant was focused on was putting a mitigating factor − the explanation for his behaviour − before Whelan J. That was not a matter going to the conviction for contempt, rather the sentence that was imposed.
65 In my view his Honour acted reasonably in all the circumstances in refusing to grant the adjournment sought by the applicant. There was no error or denial of natural justice.
66 The applicant effectively relied upon s 24 of the Charter to make the submission that he was entitled to have the opportunity to obtain new legal assistance when his counsel and Legal Aid lawyers withdrew on 1 December 2011. In other words, he could not obtain a fair trial without legal assistance. Underlying this ground is the applicant's implied reliance upon the fact that he was entitled to seek a review of the decision of VLA to cease providing him with legal assistance.
67 Some of the matters arising under this ground were touched upon in Slaveski v Smith.[70] In that case the same applicant was charged and tried summarily in the Magistrates' Court with an offence of making threat to kill. He was convicted and sentenced to a term of imprisonment to be served by way of Intensive Corrections Order. He appealed as plaintiff to the County Court from his conviction and was granted legal aid. He had a number of different counsel appear and then withdraw. Eventually, VLA revoked his grant of legal aid because he refused to follow reasonable advice and was in breach of the terms of his grant of legal assistance. He then purported to represent himself. VLA declined to continue legal aid in the County Court proceeding. The County Court judge referred questions to the Court of Appeal encompassing the right to a fair trial and to legal aid under the Charter and the meaning of a particular provision of the Criminal Procedure Act 2009.[71]
68 Relevantly for the present case, the court in Slaveski v Smith held that there is no entitlement of an individual to legal aid or an obligation on VLA to provide legal aid under the Charter and the Legal Aid Act 1978.[72] The court held that the power to grant legal aid is discretionary and that the Charter does not seek to extend the obligation to grant legal aid beyond that discretion.[73]
69 Specifically in Slaveski v Smith the court expressly considered whether a fair trial cannot be had without legal representation by virtue of s 24 of the Charter. The section provides:
24. A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing
... it may be said that s 24(1) creates a right to legal representation in limited circumstances. It is, however, no more than reflective of the position at common law. An indigent person does not have a right at common law to be represented at the State's expense on a serious criminal offence. He has a right to a fair trial, more accurately expressed in negative terms as a right not to be tried unfairly. Depending upon the circumstances of the particular case, including the background of the person, lack of representation may mean that the person is unable to receive a fair trial.
71 After stating that where such circumstances exist such that a right to legal representation is enlivened, the court held it is not a right which may be enforced (other than by way of judicial review) because it is subject to the establishment of an entitlement to legal assistance under the Legal Aid Act 1978.[76] The court then said:
The procedure of the criminal courts is designed to produce as fair a trial as practicable in the circumstances of each case. Where an accused person is unrepresented, a particular burden is placed on the trial judge to ensure that the trial is fair. And if, through want of legal representation, some error occurs in the conduct of the trial which occasions a substantial miscarriage of justice, a conviction must be set aside. But the rhetoric that a trial must be fair before a conviction can properly be recorded is true only to the extent that unfairness leads to a miscarriage of justice. The legal question then is not whether a trial has been unfair according to community values but whether it is unfair in the sense that it has not taken place according to law. A miscarriage of justice may consist in a failure to adopt a lawful procedure which would have ensured fairness to an accused person or would have eliminated unfairness to him, but it cannot consist in failing to adopt a procedure which the court has no power to adopt.
72 In the present case Whelan J exercised his discretion not to grant the adjournment sought by the applicant. I am satisfied that his Honour would have been acutely aware in refusing the adjournment of the need to consider whether the hearing was likely to be unfair to the applicant if he was forced on unrepresented. Indeed, his Honour from the first directions hearing onwards had endeavoured to ensure the applicant had legal assistance. The judge expressly stated to the applicant that he had had legal representation and made the decision that led to its termination. As observed in Slaveski v Smith[77] citing R v Dietrich:
Relevant to such a decision is the proposition that a criminal proceeding will not be unfair if the defendant is unrepresented because he persistently neglects or refuses to take advantage of legal representation which is available. We emphasize that it is a question which his Honour will need to consider with care. [78]
73 I am satisfied that the discretion was properly exercised in all the circumstances. The requirements of House v The King[79] have not been met.
74 For completeness I state that as the applicant raised a matter under the Charter it became necessary after the hearing to give notice to the Attorney-General for the State of Victoria and the Victorian Equal Opportunity and Human Rights Commission ('the Commission') of that fact.[80] This occurred and the usual 14 day period elapsed. The Attorney-General informed the court that he did not wish to make a submission.[81] The Commission lodged a written submission and sought to intervene.[82] It raised questions as to the nature of the right to a fair trial under s 24 of the Charter, whether the court is a 'public authority' under s 4(1)(j) of the Charter and whether there are obligations imposed on the court under ss 6(2)(b) and 38(1) of the Charter with respect to the granting of adjournments. I consider the topics are unnecessary to consider in light of the statements in Slaveski v Smith and their application to the present case. Further, in the absence of a true contradictor on the points raised by the Commission, together with the non-involvement of the Attorney-General, I am not inclined to explore the Commission's arguments. In context, I see the matters raised as topics for full argument at another time in an appropriate case.
75 However, one issue raised by the Commission can be appropriately dealt with because first it is clear cut; and secondly it should be decided adversely to the Commission. The Commission submits that a court is acting in an administrative capacity within the meaning of s 4(1)(j) of Charter - and is therefore acting as a 'public authority' - when deciding on an adjournment application made during a criminal trial. This submission should be rejected for reasons given by Nettle and Redlich JJA.[83]
76 I now turn to the incidents of bias alleged against the judge. Whilst not articulated as such I take the allegation of bias to be apprehended bias as distinct from actual bias.[84] In any event, the reasons below for dismissing the application with respect to apprehended bias would also apply to any allegation of actual basis.
77 First, when the applicant was late on the morning on 11 November 2011 the judge acted appropriately in warning the applicant of the consequences if he was late again. I do not know the precise times involved but given the applicant had attended the court a number of times previously he ought reasonably have known that he needed to leave sufficient time to arrive at the Supreme Court, clear security and related formalities and enter the courtroom well before Whelan J. It would appear he did not do so. The judge acted appropriately in the circumstances. The applicant sought to make something of the fact that the first warning given by Whelan J did not appear in the transcript. We were not provided with any explanation for the omission. However, nothing turns on it because Whelan J reiterated the same warning at the end of that particular morning's sitting.[85] Secondly, his Honour proceeded to arraign the applicant notwithstanding his ongoing request to access and test the video recording of court events of 2 June 2010. The judge acted appropriately in progressing the proceeding. The charge of contempt was laid on 5 September 2011 and the first directions hearing before Justice Whelan was on 14 September 2011. By the day of the arraignment, 11 November 2011, the contempt proceeding was already very delayed. Ultimately, the matters raised by the applicant were issues for the trial as in fact eventually occurred. There was nothing untoward in his Honour's conduct on 11 November 2011. As for the admission from the transcript of precisely what the applicant said at the time of the formal arraignment, the transcript did no more than record the formal charge and plea - not guilty - in accordance with longstanding practice in the Criminal Division of the Trial Division. Again, there was nothing untoward or sinister in the way the transcript presented.
78 Thirdly, as to Whelan J proceeding to deal with a video recording that had allegedly been altered, the tampering was a matter (as already observed) for the applicant to prove, on the balance of probabilities. He failed to fulfil that burden and Whelan J made findings against him. I reiterate that after seeing and hearing the evidence Whelan J was in the best position to form that opinion. In any event I have reviewed the evidence and am unable to find error in his Honour's conclusion.
79 Fourthly, as to the transcript of 11 November 2011 and its alleged alteration, I have already in effect considered the point.[86] To reiterate, there was nothing untoward in the exclusion of the alleged detail of the arraignment events or the omission at the beginning of the hearing.
80 Fifthly, the applicant in oral submissions alleged apprehended bias arose because Whelan J refused to provide access to all other security films in the precinct of the Supreme Court building. So far as such request was made by the applicant and refused by the judge, the refusal was appropriate. As already observed the applicant seemed to see himself as permitted to embark on a broad-ranging inquiry about the events in court on 2 June 2010 and the recording of them. The films of the wider court precinct, if they existed, were irrelevant. There was no error in his Honour's refusal to have such films made available.
81 Sixthly, as to the applicant's request during his evidence to step down from the witness box and access creams and medication, it was within his Honour's discretion as to what he permitted the applicant to do. In my view there is nothing before the Court to show that his Honour's treatment was unfair or unduly harsh. The applicant was giving evidence at the time and could not wander at will. I also note that the transcript of the directions hearings and the contempt trial before Whelan J reveal that his Honour often had to attract the applicant's attention or stop him acting erratically, if not inappropriately, in court. Ultimately, I take his Honour's refusal to allow the applicant to leave the witness box as demonstrating appropriate judicial control and management of the courtroom and proceedings.
82 The test for a reasonable apprehension of bias was stated in Johnson[87] as being 'whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide'.[88] The word 'might' in the phrase 'might not bring an impartial and unprejudiced mind' was clarified in Ebner as referring to 'possibility (real and not remote), not probability'.[89]
83 The allegation of apprehended bias is not made out. The complaint should not have been made. It follows that ground 3 would fail.
84 None of grounds 1, 2 or 3 have merit. So far as necessary, therefore, I indicate I would not in any event grant the applicant's application to reinstate his application for leave to appeal conviction as it would be futile to do so.
85 At the end of his oral submissions on seeking to reinstate the application for leave to appeal conviction, the applicant revisited his sentence appeal. I consider the merits if any of the proposed grounds of appeal against sentence.
86 The applicant appeared to rely on six grounds:[90]
1. Ground 1 - Whelan J failed to take sufficient account of the apologies proffered to Kyrou J.
2. Ground 2 - Whelan J failed to take account of the applicant's mental illness including various medical reports.
3. Ground 3 - His Honour erred in taking into account the applicant's previous suspected sentence.
4. Ground 4 - His Honour erred in ordering costs on an indemnity basis against the applicant in default of which he would serve one month's imprisonment.
6. Ground 6 - There has been a change in circumstances since the sentence.
87 In his reasons for sentence Whelan J identified five times when the applicant purported to or actually apologised to Kyrou J:[91]
88 In my view the findings of Whelan J were open on the evidence. It is also very plain that Whelan J took appropriate account of the apologies proffered. This ground cannot be made out.
89 Consideration of the reasons for judgment on the finding of contempt and the reasons for sentence disclose that Whelan J gave close consideration to the mental illness of the applicant and the medical reports. In the primary judgment Whelan J set out in detail the opinions of Dr Sullivan and Dr Farnbach, psychiatrists, Dr Duggal, a general practitioner and Ms Ranaweera, a psychologist.[92] Ultimately, Whelan J concluded that the applicant's actions were 'conscious, voluntary and deliberate'.[93] Examination of the medical reports confirms the finding was open. In his reasons for sentence, Whelan J again referred to and considered the same medical reports.[94] His Honour concluded that the applicant suffered from a mental disorder or abnormality or impairment of mental function and that the applicant still did so at the time of sentencing[95]. Justice Whelan expressly stated that the mental condition of the applicant impaired his ability to exercise appropriate judgment.[96] In other words, his Honour found that mental illness reduced the applicant's moral culpability. Justice Whelan also considered and applied the Verdins principles. There is no detectable error in any of his Honour's treatment of the medical evidence, assessment and disposition of the applicant. This ground cannot be made out.
90 The applicant was the subject of a suspended sentence at the time of the offending. His Honour was entitled to take this factor into account pursuant to s 27(1A)(b) and (c) of the Sentencing Act 1991. Ground 3 cannot be made out.
91 Under this ground the applicant purported to submit that the sentence imposed on him was manifestly excessive by virtue of the order that the applicant pay costs on an indemnity basis and in default of such payment serve a further term of imprisonment of one month. His Honour observed in his reasons that the order commonly made in contempt matters is for costs on a solicitor and client basis: Chan v Chen (No 3).[97] His Honour stated in the footnote to the reasons for sentence that the 'nature of the unfounded allegations' and the time 'devoted to pursuing them' warranted an order for costs on an indemnity basis based upon the principles in Colgate-Palmolive v Cussons.[98] I take the reference of his Honour to the nature of the allegations and the time pursuing them to be cross-referenced to the behaviour of the applicant throughout the contempt trial. In the unusual circumstances of this case I consider there is no basis to criticise the way the discretion to award costs on an indemnity basis was exercised by Whelan J.
92 However, I have difficulty with the additional order of Whelan J that the applicant be imprisoned for a period of one month in default of payment of costs. First, by imposing the sentence of one month's imprisonment in default of payment of costs, the learned judge was in effect sentencing the applicant pre-emptively for a possible future contempt - the failure to pay the costs. Of course, the applicant had not yet committed the further contempt or been convicted. Secondly, the effect of the order is that if Mr Slaveski fails to pay the costs, he would be imprisoned for one month but would not need to pay costs on release. The order effectively deprives the successful plaintiff of its costs. While the costs award has a punitive element, it is nonetheless an order that is made substantially for the benefit of the plaintiff.
93 I note that the judgment and the respondent's submission refer to a number of civil contempt cases as authorities for orders of this kind.[99] But these cases deal with orders that are quite different. They fall into two groups. First, there are the cases dealing with imprisonment in default of paying a fine.[100] In these cases, the imprisonment and fine can be regarded as an alternative forms of punishment for the initial contempt.[101] Secondly, there are cases dealing within continuing imprisonment until costs are paid.[102] Such continuous imprisonment is a sui generis remedy, not a sentence falling under the Sentencing Act 1991.[103] Neither category of case has the effect of pre-emptively sentencing the defendant for a possible future contempt or depriving the successful plaintiff of its award of costs.
94 For these reasons there was an error in this respect. In my view leave to appeal should be granted on this ground.
95 The applicant submitted the sentence of two months imprisonment was excessive, which I take him to mean manifestly excessive. The applicant submitted orally that he had learned his lesson, that imprisonment was unpleasant and frightening and that he could not access the medical treatment, including medication, that he required. These were all matters that Whelan J properly took into account. The sentence was stern. However, the applicant's conduct leading up to and on 2 June 2011 was reprehensible and intolerable. He disregarded the repeated warnings of the trial judge, Kyrou J and was deliberately disruptive, disrespectful and contemptuous of the court and its proceedings. Even allowing for the applicant's mental condition both specific and general deterrence were relevant factors. In the overall circumstances of the applicant the sentence of two months imprisonment was not manifestly excessive.
96 The applicant submitted to the court that his circumstances had worsened in prison. It was tantamount to an attempted Eliasen[104] submission. However, there was in fact no new evidence put before the Court as to a change in the applicant's circumstances not contemplated by Whelan J at the time of sentence. His Honour specifically noted the opinions of Dr Farnbach and Doogal that there would or may be a deterioration in the applicant's psychiatric condition in prison.[105] His Honour also observed that there was a risk of an adverse effect on the applicant's mental health in prison.[106] These matters were taken into account in ameliorating the sentence. Furthermore, Whelan J directed that copies of the reports of Drs Farnbach and Doogal be forwarded to the corrections authorities.[107] The court has no reason to believe that those reports have not been read and considered by the authorities in their treatment and disposition of the applicant. In addition, as observed by Crockett J in Eliasen, the provision of proper medical attention is the responsibility of the corrections authorities.[108]
97 The applicant submitted that there had been a change in his medication since he had entered prison. The prison authorities did not provide him with xanax and aropax, which he had been prescribed, but instead valium and some other drug. The applicant annexed an email from Dr Farnbach dated 13 February 2012. The email said that the applicant was subject to panic attacks and expressed a view that if the applicant's medication had been changed, his medication should be reinstated, if that was possible within the constraints of the prison's rules.
98 The corrections authorities would have received a copy of the doctors' reports. It is the responsibility of the corrections authorities to ensure appropriate medical care for prisoners. In any event, I do not consider that the change in the applicant's medication amounts to a significant change in the burden of imprisonment as against what was foreseen by Whelan J at the time of sentence. While Dr Farnbach suggests the original medication would be preferable, he does not say that the change in the applicant's medicine will have a significant impact on his health.
99 I would order that the application for leave to reinstate the application for leave to appeal conviction is refused. Leave to appeal is granted with respect to the sentence as set out above.
100 It follows that leave to appeal sentence should be granted on ground four only and the appeal allowed. The sentencing discretion is re-opened.
101 I would impose the same sentence in every respect save I would not impose the penalty of a fixed term of imprisonment in default of payment of costs. I would omit that provision entirely.
102 If costs are not paid in accordance with the court order, it will be a matter for the Prothonotary to pursue further contempt proceedings.
103 The applications for bail and the stay of the orders of Whelan J pending appeal have merged into the other applications and are unnecessary to consider. It follows that all applications are disposed of by the court.
104 We have had the advantage of reading in draft the reasons for judgment of the Chief Justice and we agree with her Honour, for the reasons she gives, that the application for leave to appeal against conviction should not be reinstated but that the application for leave to appeal against sentence should be allowed, the appeal against sentence allowed and the applicant re-sentenced as her Honour proposes.
105 We wish to add something with respect to a submission advanced by the Victorian Equal Opportunity and Human Rights Commission concerning the application of s 38(1) of the Charter of Human Rights and Responsibilities Act 2006 ('the Charter'). Most of their contentions are answered by the decision of this Court in Slaveski v Smith and Victoria Legal Aid.[109]
106 The Commission contended that, when a trial judge determines to grant or refuse an adjournment of the trial, the judge acts in an administrative capacity within the meaning of s 4(1) of the Charter and thus as a public authority within the meaning of s 38(1) of the Charter. It followed, it was contended, that the courses of action open to the judge are limited to those which are demonstrably justifiable having regard to the criteria delineated in s 7(2) of the Charter.
107 The Commission's contention is quite unsustainable. The function to grant or refuse an adjournment is one which takes its character from the tribunal or court in which the function is reposed.[110] Where, therefore, the power to grant or refuse an adjournment of a trial is reposed in a trial judge, it is to be inferred that it is to be exercised judicially and thus that the character of the function is judicial.[111] More precisely, when a trial judge determines to grant or refuse an adjournment of the trial, the judge exercises judicial power which involves the governance of a trial for the determination of criminal guilt and its punishment or, in a civil proceeding, the determination of a dispute inter partes.[112] That is not an administrative function.
108 Sabet v Medical Practitioners Board of Victoria[113] or Kracke v Mental Health Review Board,[114] on which the Commission relied, were concerned with administrative tribunals. Plainly, they involve different considerations. It should not be thought that anything said in either case was supportive of the Commission's position.
109 The applicant's claim that he was denied natural justice when the trial judge refused to adjourn the proceeding to enable him to obtain legal representation is without merit. Where, as here, the applicant persistently refused to take advantage of the legal representation which had been made available to him and thereby unreasonably dismissed or brought about the withdrawal of his legal representatives, no unfairness or breach of the rules of natural justice occurred when the trial judge declined further to adjourn the proceedings.
[1] Slaveski v Victoria [2009] VSC 423; Slaveski v Victoria [2009] VSC 596.
[2] Slaveski v Victoria [2010] VSC 441.
[3] Whelan J attached an annexure to his reasons for judgment setting out the corrections and additions to the transcript: R v Slaveski [2011] VSC 643.
[6] In the contempt trial the applicant subpoenaed the particular officer, Senior Constable Busic. He explained that the applicant had been observed speeding and he approached him. Justice Whelan accepted the evidence of Mr Busic and found the allegations of the applicant against Mr Busic 'baseless'.
[10] See finding of Whelan J at [85].
[11] 29 and 30 November and 1, 2, 5-8 December 2011.
[17] R v Slaveski [2011] VSC 643 [151].
[25] Directions Hearing Record 14 September 2011.
[26] Directions Hearing Record 23 September 2011.
[28] Directions Hearing Record 21 October 2011.
[31] Directions Hearing Record 22 November 2011.
[34] Exhibit D10 tendered on 2 December 2011.
[45] Mr Busic was examined. It was put to him by the applicant that on the morning of 2 June 2010, Mr Busic had intercepted him on the ring road and that the applicant filmed him with a 'KGB' pen camera; the film later featured on YouTube. The applicant put to Mr Busic and he agreed that upon the applicant being intercepted he said to him 'Pull up, you fucking idiot'. The applicant put that Mr Busic pulled a gun on him which was denied. Extensive questioning surrounding the ring road incident followed, including the playing of a Triple 000 call. The applicant accused Mr Busic, and he denied, that the tape of the Triple 000 call had been tampered with. The evidence of Mr Busic appears to have taken an entire afternoon.
[58] Slaveski v Victoria [2009] VSC 423, [30].
[59] Exhibit A before Whelan J; T2, 11 November 2011.
[66] Different counsel from those who appeared before either Kyrou or Whelan JJ for the applicant.
[67] The grounds were not individually specified. However, they are identified from the applicant's written case for leave to appeal dated 20 January 2012 and his oral submissions to the court on 13 February 2012.
[68] Cf Pamamull v Albrizzi (Sales) Pty Ltd [2012] HCATrans 63.
[69] Giannarelli v Wraith [1988] HCA 52; (1988) 165 CLR 543; D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1.
[70] Slaveski v Smith and Victoria Legal Aid [2012] VSCA 25.
[71] The questions were set out in full in para [1] of the judgment.
[81] By letter from the Victorian Government Solicitor dated 5 March 2012.
[82] By written submission dated 8 March 2012.
[84] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 ('Ebner').
[87] Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 ('Johnson').
[88] Ibid [11] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). See also Ebner [2000] HCA 63; (2000) 205 CLR 337, [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[89] Ebner [2000] HCA 63; (2000) 205 CLR 337, [7] (Gleeson CJ, McHugh, Gummow and Hayne JJ)
[90] The grounds were not individually specified. However, they are identified from the applicant's written case for leave to appeal dated 20 January 2012 and his oral submissions to the court on 13 February 2012.
[91] R v Slaveski [2012] VSC 7 [16-18] (footnotes omitted).
[92] R v Slaveski [2011] VSC 643 [139-151].
[94] R v Slaveski [2012] VSC 7 [12].
[97] [2007] VSC 52 at [33].
[98] [1993] FCA 536; (1993) 46 FCR 225, 233-4.
[99] Pattison v Bell [2007] FCA 137, [45]; Pico Holdings Inc v Voss [2002] VSC 319, [93]-[95], [98]; Law Institute of Victoria v Nagle [2005] VSC 47, [25], [47].
[100] Pattison v Bell [2007] FCA 137, [45]. See also Chan v Chen (No 3) [2007] VSC 52, [21]-[25].
[101] Eg in Chan v Chen (No 3) [2007] VSC 52 Kaye J held: 'If a respondent fails to pay fines imposed for contempt of court, any imprisonment imposed under Rule 75.11(3) [empowering the Court to imprison a person fined for contempt until the fine is paid] would be a punishment for the [initial] contempt of court, not a punishment for the failure to pay the fines.' (at [24], emphasis added).
[102] Pico Holdings Inc v Voss [2002] VSC 319, [93]-[95], [98]; Law Institute of Victoria v Nagle [2005] VSC 47, [25], [47].
[103] The Sentencing Act 1991 s 18A provides for indefinite detention but that provision is not presently relevant.
[104] R v Eliasen (1991) 53 A Crim R 391.
[110] Pasini v United Mexican States [2002] HCA 3; (2002) 209 CLR 246, 253-4[12]-13].
[111] R v Spicer; Ex parte Australian Builder's Labourers' Federation [1957] HCA 81; (1957) 100 CLR 277, 305 (Kitto J); R v Hegarty; Ex parte City of Salisbury [1981] HCA 51; (1981) 147 CLR 617, 628 (Mason J).
[112] Albarran v Companies Auditors and Liquidators Disciplinary Board [2007] HCA 23; (2007) 231 CLR 350, 358 [16].
Slaveski
The Queen
(2000) 201 CLR 488
(2000) 205 CLR 337
(1988) 165 CLR 543
(2005) 223 CLR 1
(1936) 55 CLR 499
(1993) 46 FCR 225
(2002) 209 CLR 246
(1957) 100 CLR 277
(1981) 147 CLR 617
(2007) 231 CLR 350
(2008) 20 VR 414