Young v His Honour Judge Nixon of the County Court of Victoria & Ors [2008] VSCA 5

2 The charges arose out of an incident which occurred on 25 May 2002. According to a statement made by the second respondent to this appeal, Senior Constable Christopher Trimble, on 25 May 2002 he observed a vehicle being driven on the Pyrenees Highway, near Avoca. It caused him concern to the point that he followed it onto a bush track. Apparent attempts by the driver to avoid apprehension failed. The vehicle was found to be unregistered and the appellant, its driver, unlicensed. Penalty notices were immediately issued. There being an outstanding arrest warrant referable to the appellant - it pertained to a count of armed robbery - he was taken into custody.

3 It is not in doubt that the motor vehicle was unregistered and that the appellant was unlicensed.

4 In the ordinary course, it should have been expected that the appellant would be convicted of the two charges. But the appellant, who has since at least 1995 engaged in protracted disputation with various organs of the bureaucracy, the police, and the courts, sought to raise defences of duress and necessity; and as well a defence reliant upon Proudman v Dayman[2]. At times, again, he raised the issue of self-defence. Lying behind these defences was his contention that the Road Traffic Authority ('RTA') had wrongly deprived him of his driver's licence in 1995, and had thereafter acted to prevent him renewing his licence - these events bringing about a cascading series of injustices wreaked upon him by the bureaucracy, the police and the courts.

5 The defences which I have mentioned apparently found no favour with a Magistrate, who found the offences proved, and who imposed fines without recording convictions. That outcome induced the appellant to appeal to the County Court. It was that Court's decision which gave rise to the instant proceeding - an originating motion commenced under O 56 of Ch 1 of the Rules of Court.**

**6 The relief sought by the originating motion - brought against the County Court judge, the informant and the County Court itself[3] - included an order in the nature of certiorari quashing the convictions, an order in the nature of mandamus compelling the County Court to record the dismissal of the charges, an order staying the [criminal] proceedings permanently, and an order that the Road Transport Authority reinstate the appellant's driver's licence and motor vehicle registration.

7 The main grounds upon which the relief was sought were, in substance, that -

(1) The County Court judge erred in law in finding the charges proved.

(2) The appellant was denied procedural fairness - specifically, was denied a right to present legitimate defences.

**8 The proceeding came on before a judge of the Trial Division on 27 July 2005. The appellant appeared in person to advance his case. The learned judge ordered that the application made by the proceeding be dismissed.

9 In his reasons, the learned judge said, concerning the second ground which I have just noted -**

It seems to me that on any view there was no defence of necessity in respect of the present charges and there was no defence of duress. Nor in my view was there a Proudman v. Dayman defence because, accepting that he had the belief, it could hardly be described as reasonable and in any event, the facts which he believed did not provide him with a defence.

Returning then to the fair hearing argument, His Honour Judge Nixon indicated to Mr Young that the defences he was seeking to raise of necessity, duress and honest and reasonable belief in a state of facts were rejected. Accepting that they were rejected before any evidence was led, I do not see any reason to accept the proposition that that involved a denial of a fair hearing.

They plainly, in my view, could not arise on the facts on which Mr Young proposed to rely and therefore His Honour was justified in not allowing the matters to proceed. In this context reference was also made to the fact that His Honour upheld an application brought by the party subpoenaed to produce the original warrant. The subpoena was challenged and His Honour held that the challenge should be upheld and ordered Mr Young to pay the costs of the subpoena.

In view of the fact that the defences to which the warrant was said to be relevant were not open, it was quite proper for His Honour to rule as he did in respect of the subpoena which was directed to evidence relating to those defences. For these reasons I am not persuaded that there was any denial of a fair hearing.

Later in these reasons I will say something about the warrant and the subpoena to which his Honour alluded.

10 Turning to the appellant's contention that the County Court judge had been biased - or perhaps that there was reasonable apprehension of bias - his Honour said this:

... the argument put is that His Honour in his conduct of the matter revealed a bias or gave rise to a reasonable apprehension of bias. The matters relied upon are the matters to which I have already referred about the manner in which His Honour dealt with the defences and the subpoena. Reference was also made to the fact that His Honour had been involved in directions hearings involving what has been called the custody matter which I understand to have been an armed robbery charge, but there was nothing, it seems to me, in those matters which would warrant a finding of bias, nor would they warrant a finding of reasonable apprehension of bias.

Mr Young commented on the brusqueness of the manner in which His Honour dealt with him. In all the circumstances, I would have thought a brusqueness was warranted,[4] but I do not think brusqueness has ever been said to be something which would be sufficient to demonstrate bias in any event, or a reasonable apprehension of the same.

11 Finally, and concerning the appellant's contention that the County Court judge erred in law, his Honour said:

Finally, I come to the issue of the errors of law. This argument relates back again to the question of the defences. As I have already indicated, it seems to me that His Honour was absolutely right in saying that the defences as explained were not legitimate defences in law to the charges which had been brought and therefore no error of law is made out.

12 His Honour dealt with this issue on a basis favourable to the appellant. He observed that -

... rather than explore issues relating to what constituted the record and what evidence there was before me of the record, I chose to deal with the last ground on the basis that I would assume that all matters raised by Mr Young were to be found revealed in the record.

13 Mr Young relies upon the following grounds of appeal:

A/ that the dismissal ruling fails the test of reasonableness in law.

B/ that bias have been exhibited at every level of the proceedings to this point in time.

C/ that the appellant has been denied procedural fairness.

D/ that there has been malfeasance in public office in regards all the processes of this matter.

E/ that the appellant did not commit any offences as provable in law.

F/ that there has been an abuse of process and a gross miscarriage of justice.

G/ that exceptional circumstance as principles of law apply in this matter.

H/ that his honour failed to disqualify himself after a legitimate and credible application of bias and then proceeded to make a negative ruling.

That the decision to dismiss the applicants order 56 to review be overturned and that the original finding of the lower jurisdictions be quashed and that this court make the finding that no offences have been committed in law. Further that this court order the RTA to reinstate the appellant's licence and car registration.

**15 Ground A seeks to attack the decision below as 'failing the test of reasonableness in law'. I confess to not understanding the point sought to be raised.

16 Ground B, by its reference to bias 'at every level' is an allegation of bias not only on the part of the County Court judge, but on the part of the learned judge in the Trial Division. So much is made clear by pages 7-9 the appellant's written submissions pertaining to this appeal. The issue thus raised, together with the allegation of bias on the part of the County Court judge,[5] are matters to which I must later return.

17 Ground C, E, F and G replicate issues, sometimes overlapping, which were raised by the Originating Motion. These, again, are matters to which I must return.

18 Ground D is a matter newly raised. I suspect that it is an intended attack on the police and the bureaucracy with respect to the various matters of dispute which have occupied, it appears, a good deal of the appellant's time since the mid 1990s. There is no basis upon which the appellant could be permitted, on appeal in this proceeding, to agitate such matters.

19 In the end, it seems to me, the issues for this Court's consideration are essentially those which were considered by the learned judge below. Apart from the question of bias - actual or apprehended - it comes down to this: Did the County Court judge err in law in finding the offences proved? As a corollary, did his Honour deny the appellant the opportunity of presenting defences to the charges brought against him which had a possibility of success? Was the appellant otherwise denied a fair hearing? So to frame the corollary, I should say, puts to one side denial of an opportunity to put defences which were hopeless.**

**20 I have carefully studied the appellant's affidavit and exhibits. I have done so without pausing to consider the content of 'the record'. To approach the appeal strictly in that connection would limit the material upon which the appellant could rely in pursuing his complaint of error of law - a course that I consider would be undesirable in all the circumstances of this matter.

21 For the most part, the appellant's material does not make easy reading. It is dense and repetitive. In all, it seems to contain the following threads:

(1) The County Court judge advised the appellant that he did not have 'defences in necessity and self defence because there was no threat'. But there was a threat: It was an unlawful warrant for his arrest.

(2) The 'application for bias' was made on the basis that the County Court judge had heard 'earlier matters' concerning the appellant - a case conference and mentions, it seems, of the armed robbery charge in respect of which the appellant was later imprisoned.

refused [the appellant] disclosure, by overruling (on application by the police) a subpoena to produce records which would show conclusively systematic protracted abuse by some police upon [him] as relevant to provocation/necessity/self defence issues available to [him] as rights afforded in law to present a full & fair defence case in this matter.

Pausing, this appears to be a reference to a subpoena addressed to the Chief Commissioner of Police, which sought, inter alia, details of access to the appellant's LEAP file over a ten year period - of which, more later.

**(4) The County Court judge revealed bias in that he awarded costs against the appellant in respect of the subpoena which he set aside.

(5) The appellant had raised in his evidence 'the conduct of the RTA as to documents proving consent as reasonable applicable in law'.

(6) The RTA had improperly cancelled the appellant's licence on 21 April 1995. Thus had begun a sequence of cause and effect which was -**

abundantly and unambiguously clear -no licence, no car, in an isolated hostile community ... no job, no money, custody for three years on an armed robbery charge which [was] probably corrupt and [was] now in the High Court.

**(7) The appellant had not been informed of his right to review the RTA's decision to cancel his licence. That had denied him 'procedural fairness and other rights in law as to the licence and registration'.

(8) The RTA had extended the time for the appellant to seek reinstatement of his licence. It had done so after the intervention of the Ombudsman. But the extension period had coincided with a period during which the appellant was in custody, and so had been useless.

(9) The second respondent had wrongly described the colour of the car which the appellant had been found driving on 25 May 2002. The policeman, who had 'either been lying or colour blind (with whatever ramifications)', had denied subconsciously associating the colour green - this being the colour, as he said, of the vehicle driven by the appellant on 25 May 2002 - with the appellant's 'known political activism'.

(10) The second respondent had previously failed to bring a charge against a person who had assaulted the appellant.

(11) It was the appellant's reasonable and honest belief - as he had said in evidence - that he had a driver's licence 'except for the conduct of the RTA in denying [his] right to obtain such by renewal and review process'. This situation fell within the Proudman v Dayman principle.

(12) The 'defence issue for the number plates' was the 'necessity and self defence as apply to the unlawful and improper arrest warrant constituting a threat at law'.

(13) The conduct of the County Court judge was 'oppressive in all the circumstances'. His Honour's ruling that the subpoena addressed no issue of relevance was 'a grossly improper judicial ruling as a form of intimidation (directed to an unrepresented appellant) on behalf of the police'.

(14) A letter written by the Victorian Crown Solicitor's office to the appellant was a 'planned, malicious, sinister assault "by words and gestures"'.

(15) The 'problem' - of issues raised by the appellant - would only go away when the appellant got 'proper fair and reasonable justice in this (and other) matters'.

(16) The magistrate and the County Court judge - and others before them - 'should have simply reinstated the driving licence as the evidence fully support[ed]'.**

22 In my opinion, no error of law has been disclosed. The appellant was given a fair hearing. Nothing supports a conclusion that either the judge in the Trial Division or the County Court judge was actually biased. Neither is an allegation of apprehended bias made out in either instance.

**23 The error complained of resides in the contention that the appellant had good defences in law to the charges brought against him, which defences he was prevented from pursuing.

24 The foreshadowed defences were exposed by the appellant in an affidavit sworn 26 July 2004 - that is, the day before the County Court hearing began. In that affidavit they were elaborately developed, together with citations which were said to be in point.[6] In answer to my questions, the appellant repeatedly averred that this affidavit was filed before his appeal commenced. It is not to be supposed that the learned County Court judge was ignorant of the matters which the appellant sought to raise, even if the appellant did not fully argue them in the course of his appeal before they were rejected.

25 As I apprehend it, the matters which I identified as threads (1), (5), (6), (7), (8), (11) and (12) in the appellant's material bear upon the defences which he sought to advance. I quite agree with the learned judge below that such matters did not give any prospect of any of those defences succeeding; and so I agree with their rejection by the County Court judge. The appellant was, at the relevant time, an unlicensed driver who was using an unregistered motor vehicle. So far as is revealed, at the critical time he was simply driving his vehicle on a highway[7] on a Saturday during daylight hours. On the material which he advanced, none of duress,[8] necessity,[9] self-defence, or honest and reasonable belief in a state of facts which would take his conduct outside the operation of the relevant enactment, was available.[10] That is so regardless whether the RTA could be legitimately criticised for its conduct in any of the ways which the appellant asserted.

26 Further, the appellant's contention that the defences of necessity and self-defence were enlivened by a threat - the existence of an unlawful warrant for his arrest - was not simply insupportable having regard to the activities on 25 May 2002 which constituted the asserted offending, but seems to have been wrong in its characterisation of the warrant. Although no copy of the warrant was produced to this Court, the appellant's material reveals that there was an outstanding arrest warrant as at May 2002. Apparently it pertained to the appellant's failure to attend court for sentence in connection with the armed robbery charge to which I earlier referred. It is common ground, I interpolate, that he did so fail to attend. The circumstance, it might be, that detention pursuant to the warrant became unlawful at some time subsequent to 25 May 2002 says nothing about the status of the warrant more generally. It was definitely not demonstrated to the County Court judge, to the learned judge below, or to this Court, that the warrant was unlawful from the outset.[11]**

**27 Because the foreshadowed defences were hopeless, the appellant was not denied a fair hearing in that they were rejected before he had an opportunity to fully develop them orally - that is, in addition to having done so in writing.

28 Other than that, and the allegation of bias which I will address discretely, it appears that the appellant's complaint of denial of a fair hearing substantially rested on the matters which I earlier identified as threads (3) and (13) in his material. Each of them addressed the judge's setting aside of a subpoena which, as I understand it,[12] sought details of persons who had accessed the appellant's LEAP file in the course of the preceding ten years. To my mind, it is entirely understandable that the subpoena was held to seek the production of information - I will assume that it was in documentary form - which was irrelevant to the charges which the court was to consider. It could not have assisted any of the mooted defences.**

**29 I deal first with the allegations of bias made against the learned County Court judge. Allegations specifically pertaining to bias are to be found in threads 2 and 4 in the appellant's material. I think that the appellant would also rely upon the matters identified by threads 3 and 13, the judge's rejection of his defences, the findings of guilt in the face of the matters mentioned in threads 5 and 9, and the judge's failure to reinstate his driver's licence, as bespeaking bias.

30 I cannot discern any evidence of actual bias. The fact that the learned judge had presided at a case conference in connection with the armed robbery matter, and that the matter had thereafter been the subject of mentions before his Honour was of no positive significance in that connection. Those hearings were routinely administrative. They did not involve the determination of issues of fact, or as to the appellant's credit. The situation may be sharply contrasted with that which arose in Livesey v The New South Wales Bar Association.[13]

31 Again, the award of costs against a party who issues a subpoena which is set aside because it seeks the production of irrelevant material should occasion no surprise. In the latter connection, the fact that the party who issues the subpoena is unrepresented need not occasion a different judicial response. It all depends upon the circumstances of the case. In this case, I consider, it is readily understandable that his Honour should have made the costs order which he did.

32 Further, the judge's rejection of the appellant's defences was consistent with principle, matters of cross-examination relied upon by the appellant led nowhere, and his Honour simply had no power to reinstate the appellant's drivers licence.

33 I turn to apprehended bias. The test is well known: A judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[14] If the question has not been determined, the issue whether a judge might not bring an impartial mind to its resolution 'is one of possibility (real and not remote), not probability.' If the matter has been decided, the test 'requires no conclusion about what factors actually influenced the outcome.'[15] There must be 'identification of what it is said might lead [the] judge ... to decide a case other than on its ... merits'; and there must be 'an articulation of the logical connection between the matter and the feared deviation ...'[16]

34 In this case, in my opinion, none of the matters which I assume were relied upon by the appellant to make out a case of reasonable apprehension of bias - whether considered discretely or in combination - leads to a conclusion in his favour. For reasons already explained, the course that the matter took in the County Court, and the ultimate resolution of the charges brought against the appellant, were respectively orthodox and unremarkable.

35 I go to the allegations of bias raised against the learned Trial Division judge in the appellant's written submissions - though not by affidavit. Subject to what I say hereafter, I will deal with them as if they had been deposed in proper form.

36 According to the appellant's submissions, the same judge of the Trial Division had earlier disposed of another matter which involved him, that matter raising the issues agitated in this proceeding. The judge 'came onto the bench in both cases at the instigation of other parties (most obviously police, but no doubt others were also involved) to protect the provable criminal stalking conduct (in law a form of aggravated psychological assault) of the police informants.' The appellant alleged that -

• '[His Honour] came to the bench in this matter with the fully informed prior knowledge of having improperly judicially dealt with that earlier matter'.

• The earlier disposition 'had been pre planned and therefore constituted a conspiracy'.

• The order in the earlier matter had been 'conveniently delayed' or 'disappeared for a while' - it seems, years.

• His Honour (as was the case with the County Court judge) 'came onto the bench in [the present] matter as a pre-arranged legal decision at the instigation of others with the sole purpose and intention of protecting the flawed processes and conduct in the lower jurisdictions and in order to ensure the making of a further negative ruling'.

37 The appellant, by these allegations, imputed grave impropriety to the judge in the Trial Division. In oral submissions, in answer to my question, he said that he stood by his written submissions - although he spoke about giving his Honour the benefit of the doubt. He said also that unrepresented people like him did not have the ability to get evidence of such judicial wrongdoing. He added that the solicitor from the Office of the Public Prosecutions who had appeared below had also been involved in the earlier matter. He alleged, in substance, that the solicitor had been professionally derelict by not drawing the judge's attention to his Honour's role in that earlier matter.

38 As it happens, a transcript was taken of the hearing below. It was not included in the Appeal Book, although the Court was informed that its existence was disclosed to the Master who settled the contents of the Appeal Book. In any event, the Court received it on the hearing. In my opinion, it gives no comfort to the appellant. It shows the following:

• First, that the appellant applied at the outset for the judge to disqualify himself on the 'basis of bias or ostensible bias', because the appellant had appeared before his Honour on an earlier mention of the matter.

• Second, that the appellant had in time received a copy of a letter sent to his home address, posted 18 December 2003, 'referring to a previous matter involving a car licence and a registration' and enclosing 'a general order form made by [the judge] dismissing that application'.

• Third, that the appellant initially asserted that 'unbeknown to me, an application perhaps ex parte was made' on 3 December 2003.

• Fourth, that the solicitor whose conduct was impugned before this Court had then informed the judge that the appellant had been brought from prison for that application; and that he, the solicitor, had appeared in response.

• Fifth, that the appellant initially denied that he had been brought from gaol, said that he 'certainly wasn't brought to the court'; then said that he had 'no recollection of being present'; and later said that he 'would go so far as to say that [he] believed it didn't occur, in spite of the fact' that the order recorded his attendance.

• Sixth, that his Honour then commented that he had no recollection of the matter either - to which the appellant responded 'I'm sure you wouldn't ...'

• Seventh, that the appellant thereafter pursued his application that the judge disqualify himself on the basis that this was a 'car matter', and that his Honour had made an order dismissing 'a previous car matter involving similar circumstances ...'

• Eighth, that his Honour was informed that the earlier matter had involved different charges arising out of another incident.

• Ninth, that his Honour rejected the application, noting that in proceedings brought under Order 56 the question will always be whether, in the particular case, error of law has been demonstrated below, or denial of natural justice, or bias.

39 It is clear, in the event, that a number of the appellant's florid allegations, made in writing and orally, were without foundation. The appellant specifically accepted that his Honour could not be expected to recall the 2003 matter. So much for the judge having come onto the bench 'with the fully informed prior knowledge of having improperly judicially dealt with that earlier matter'; and having come onto the bench 'as a pre-arranged legal decision at the instigation of others ...' The suggestion that communication of the earlier order had been 'conveniently delayed' - it seems for years - was shown to be wrong. The allegation raised against the solicitor - unqualified despite the appellant's assertion that he did not want to say that the solicitor had done anything wrong - was also shown to be wrong.

40 Beyond that, neither the learned judge below, nor this Court, was provided with material which fully disclosed the issues raised in the earlier proceeding, or the basis upon which that proceeding was dismissed. To say that it was 'a car matter' and that his Honour had 'made a negative ruling about a car matter, about a licence and registration matter', was not illuminating.

41 I note that amongst the appellant's material was an affidavit sworn 1 July 1999 in support of an earlier originating motion. The number of the proceeding noted on the affidavit coincides with the number of the proceeding in which the learned judge below made orders on 3 December 2003. As I apprehend it, the appellant complained that the magistrate who had convicted him of traffic offences had conferred with the police before hearing his matter, that the magistrate had not dismissed the proceeding as an abuse of process (the appellant claimed that it was part of a police campaign of harassment, persecution and stalking against him), that the police had previously brought unwarranted proceedings against him, that in respect of the instant matter the police had detained him in the bush 'in a manner of intimidation', and that the magistrate had been biased. I do not understand the affidavit to have raised defences of duress, necessity, self defence, or reasonable and honest belief about a state of fact. There was no reference to the arrest warrant - which must have come later in time; and of course the subpoena which the judge set aside in the present matter was specific to that matter.

42 In the event, such material as is before this Court suggests that the issues raised in the present matter were not a replication of issues earlier litigated before his Honour and resolved adversely to the appellant.

43 It follows from what I have said that the far-fetched allegations of actual bias raised by the appellant against the Trial Division judge should be rejected. There is not a skerrick of material to support any of them.

44 I would reject also any allegation of reasonable apprehension of bias. There was no demonstrated coincidence of issues in the two proceedings heard by his Honour. Ordinarily, when a proceeding which raises certain issues is resolved adversely to a litigant and the litigant takes no steps to reveal the reasons given by the judge for the disposition,[17] there would not be reasonable apprehension of bias in the event that the judge hears another proceeding which involves the same litigant but which raises different facts and different legal issues. The present matter turned on analysis of legal propositions, aspects of the way in which the hearing had proceeded in the County Court, and the alleged bias of the County Court judge. Those case-specific issues, as advanced by the appellant, did not depend upon facts earlier found or assessment of the appellant's credit - even if, which was not the case, such matters had been shown to have been involved in the earlier determination.**

**45 At the outset of his oral submissions, the appellant argued that this Court had power, despite the RTA being neither a party nor represented before us, to order ex parte that the RTA extend time for the appellant to renew his driver's licence; and that the Court should exercise that power. He submitted that the documents before the Court showed that he had been the victim of a miscarriage of justice with respect to the non-renewal of his licence.

46 Contrary to the appellant's argument, this Court is not empowered in the circumstances to make the order sought. The fact, as the appellant claims it to be, that the licence dispute has given rise to a cascading series of injustices thereafter does not mean that the Court is invested with a jurisdiction which it does not otherwise possess.**

[1] His Honour also found a third charge proven and in respect of that matter fined the appellant $110, again without recording a conviction.

[2] [1941] HCA 28; (1941) 67 CLR 536, 540.

[4] It may be that this transcription of his Honour's reasons is not quite accurate.

[6] The appellant asserted that he had been denied procedural fairness by the RTA 'on the basis of rights/interests and legitimate expectation'. He cited Ridge v Baldwin [1963] UKHL 2; [1964] AC 40, Kioa v West [1985] HCA 81; (1985) 159 CLR 550, and Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596. He argued that this constituted an honest and reasonable belief in a state of facts which if true made his actions innocent.

On the issue of self-defence, he contended that 'belief is a vital matter', and that evidence of belief might be adduced. He cited R v Lane [1983] VicRp 105; [1983] 2 VR 449 in that connection.

Further as to self-defence, the appellant asserted that he was a 'battered person'. He was the victim of 'an assault of a nature based in psychology tantamount to bullying (thuggery or mental terrorism).' He cited R v Ireland [1997] UKHL 34; (1998) AC 147.

Again, according to the appellant, for years he had been in a 'position of extreme social and psychological risk', which caused him 'of necessity to act in self defence' - so as to prevent his incarceration on the basis of an unlawful warrant. His response to the situation was not disproportionate. He cited R v Loughnan [1981] VicRp 43; [1981] VR 443, 460 and R v Rainey [1970] VicRp 83; [1970] VR 650. He cited also, for reasons which are not readily apparent in the particular context, Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536, 540, and other authorities dealing with mistake of fact and belief honestly and reasonably held.

Still further, the appellant contended, the RTA had agreed to allow renewal of his driver's licence - in consequence of which 'the licence was not validly, in law, cancelled.' But if his belief as to the position was wrong, then his mistake of fact had been the subject of an honest and reasonable belief, genuinely held.

Finally, it was said, 'the defence of the registration plates' raised 'issues in law involving and relating to necessity/duress'. Such defences applied 'on the facts'.

[8] R v Emery (1978) 18 A Crim R 49, 55-56 (Young CJ, Lush and Brooking JJ).

[9] R v Loughnan [1981] VicRp 43; [1981] VR 443, 448 (Young CJ and King J). See also the extensive analysis by Crockett J, 453-461 of the availability and scope of the defence.

[10] Any burden of persuasion resting on the Informant, I instance the defence of duress, must have been discharged.

[11] It is perhaps of peripheral interest that this was not the first occasion on which the appellant sought to argue that a warrant pertaining to him was unlawful. He raised such an argument, in respect of a search warrant, in R v Young [2002] VSCA 2.

[12] The learned Trial Division judge understood it to relate to the warrant. But the only copy subpoena relevant in point of time contained in the appellant's material was the subpoena seeking details of access to his LEAP file. Questioned by me about the subject-matter of the subpoena, the appellant at first asserted with apparent confidence that it related to the warrant. But thereafter he expressed doubt about the matter. If the subpoena did relate to the warrant, I do not think that it being set aside would be any the more indicative of error on the part of the County Court judge.

[13] [1983] HCA 17; (1983) 151 CLR 288.

[14] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[17] That is, undisclosed to the court considering application of the apprehended bias test.