Queen Polena II Berezovsky (aka Nelly Vysotskaya) v Director of Public Prosecutions (Commonwealth) [1995] FCA 211

IN THE FEDERAL COURT OF AUSTRALIA ) Limited Distribution ) NEW SOUTH WALES DISTRICT REGISTRY ) No NG 59 of 1995 ) GENERAL DIVISION )

BETWEEN: QUEEN POLENA II BEREZOVSKY (aka NELLY VYSOTSKAYA) Applicant AND: DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) Respondent CORAM: HILL J PLACE: SYDNEY DATED: 3 MARCH 1995 REASONS FOR JUDGMENT The applicant, Polena Berezovsky, applies to the Court for an order that a decision, said to have been made by the respondent, Director of Public Prosecutions, be reviewed. The decision is said to be a decision that: "The child and travel documents be seazured, or to prosecute the applicant." [sic]

The applicant says she is aggrieved by the decision because "the administively charges are wrong" [sic]. The grounds of the application are said to have been set out in a affidavit accompanying it. In that affidavit Berezovsky says: "`I reject the charges', utter a forged Commonwealth document, attempt to take child out of Australia without consent. Informed by member of Australian Federal Police Yarrow, Detective Constable. 2. It is Munen Djarabee's style: `I never gave such consent'. 3. There is an error of the child's name, Oksana Munerjawabreh. The correct name is Oksana Munerovia Djavabre. 4. The charges were made since 11 July 1994." [sic]

The reference to Munen Djarabee's "style" is a reference to the applicant's ex-husband and apparently suggests that it is normal conduct on the part of applicant's ex-husband to make allegations which she does not agree with. The application arises out of an incident that appears to have occurred on 11 July 1994 at Sydney Airport. In the comments that follow I make no findings of fact as such. The facts narrated are those which have been put in evidence by the respondent and there has been no evidence on the part of the applicant in these proceedings to negate them. It seems that the applicant and her daughter were at Sydney Airport at 8.19 am on 11 July 1994. The applicant had passports, outgoing passenger cards and airline tickets. She was apparently seeking to leave the country. She was apprehended through a warning system at the airport because, it is alleged against her, that there was an order of the Family Law Court which prevented her from departing Australia without the permission of the child's father. It appears that the applicant denied this and said that the police had the wrong people. The passports presented were a passport in the name of Nelly Vysotskaya, numbered K3094491 and Oksana Djavabre, numbered K3094492. Both these passports were Australian passports. The name Nelly Vysotskaya is the applicant's maiden name. She apparently has subsequently sought to change her name and seeks to have herself known in the name in which the present application has been brought. She says, in a signed statement although not on oath, that she was travelling in July 1994 with her daughter and never signed any agreement for divorce, access or custody. In this and in other things she likens herself to "Queen Elizabeth". Arising out of this incident, charges were laid. The first is that the applicant had attempted to take from Australia Oksana Djavabre, being a child subject to an order under the Family Law Act 1975, in relation to custody and access, without permission of the other party to the order or the permission of a court of Australia. The second charge is that on or about 4 July 1994 she uttered, knowing it to be forged, a document deliverable to the Department of Foreign Affairs and Trade, being an Australian passport application in the name of Oksana Djavabre, dated 29 June 1994. On that application is said to be the signature consenting to it of the child's father. The forgery is said to relate to that signature. These charges are scheduled for hearing in the District Court, Downing Centre, on or about 20 March in this year. The applicant commenced these proceedings without legal representation and was unrepresented in the proceedings before me. The substance of her complaint is that she was not guilty. This is what I understand by her saying that she rejects the charges against her. That may very well be the case, but innocence or guilt of the offence is a matter for the District Court to determine, not a matter which I am charged to decide under the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("ADJR") which, together with s.39B of the Judiciary Act (1903), would seem to be the only basis for the present application. I raised with the applicant two problems. The first is that a considerable time has now elapsed since the decision complained of without action being taken or explanation given. The second, but fundamentally much more important, is that no ground was raised which would be a ground for judicial review under the provisions of the ADJR Act. I pointed out to her that that Act raises specific grounds, all of which involve error of law. The Act does not permit a review of administrative decision by this Court on the grounds of some factual error.