17 September 2010
Colin Bruce WILLIAMS v Terry BLACKLEY;
Colin Bruce WILLIAMS v Andrew Henry VAN KOOTEN
Judgment
1 BASTEN JA: On 1 October 2009 R A Hulme J dismissed a summons brought by the applicant, Mr Williams, against the respondents. The summons challenged the dismissal in the Local Court of two proceedings for assault brought by the applicant against each of the respondents. There has been delay at various stages in the procedural steps taken so far. It is, however, preferable to deal with the matter by reference to the substantive issues raised by the application. Before there can be a grant of leave to appeal, the Court must be satisfied that there is at least a reasonably arguable ground for challenging the decision of the Court below.
2 It seems to have been accepted in the Local Court that on the evening of Monday, 4 September 2006, the applicant was involved in a fracas in which he was injured. R A Hulme J stated that, in respect of Mr Van Kooten, the magistrate was satisfied that the applicant had been assaulted, but was not satisfied beyond reasonable doubt that the defendant was involved in the assault. The charge was dismissed in July 2007.
3 The second charge, against Mr Blackley, was heard by a different magistrate. It appears that Mr Blackley relied upon self-defence. The magistrate was not satisfied beyond reasonable doubt that Mr Blackley had assaulted Mr Williams, but appears to have also held that self-defence, having been raised, had not been disproved. The charge was dismissed in September 2007.
4 The applicant sought to challenge the dismissal of the charges. The procedure he adopted involved the commencement of proceedings in the Common Law Division, pursuant to s 69 of the Supreme Court Act 1970 (NSW), seeking relief in the nature of certiorari. Such relief would result in the orders made in the Local Court being set aside, so as to leave the charges undetermined. There would then be a second hearing.
5 As the primary judge pointed out, the general law principle which precludes a person being placed in jeopardy of conviction twice in the same matter (described as double jeopardy) prevents relief in the nature of certiorari being used to attain this purpose: Ex parte Schofield; Re Austin (1953) 53 SR(NSW) 163 (Street CJ, Owen and Herron JJ). That principle may be subject to exceptions where the court purporting to dispose of a matter has been shown to be obviously incompetent and without jurisdiction: at 166 (Street CJ). However, that is not this case.
6 In relation to the charge against Mr Van Kooten, the applicant's primary complaint was that Mr Van Kooten gave evidence of being elsewhere at the time of the assault, in the company of another person. The applicant said he should have been given prior notice of such alibi evidence. In this Court he suggested that the basis of the obligation was to be found in s 150 of the Criminal Procedure Act 1986 (NSW). However, that provision does not apply to proceedings in the summary jurisdiction.
7 Justice Hulme, who had material before him which was not before us, did not consider Mr Van Kooten's evidence to be alibi evidence at all. There is accordingly no need to address this matter further.
8 In relation to both matters, the primary complaint of the applicant before the primary judge, and in this Court, appears to have been that each matter was disposed of by the respective magistrates accepting perjured testimony. Although the applicant asserted that witnesses had perjured themselves in the Local Court, he did not set out to establish an evidential basis for any ground under s 69 of the Supreme Court Act, based on this allegation. No evidence was presented before the primary judge to demonstrate that the original acquittals were achieved by perjury or fraud.