FEDERAL COURT OF AUSTRALIA Sedrak v Carney [2000] FCA 987 ADMINISTRATIVE LAW ‑ Natural justice ‑ Private prosecution ‑ Committal proceeding ‑ Hand‑up brief ‑ Brief including affidavits by prosecutor containing detailed exposition of his argument ‑ At conclusion of evidence prosecutor denied opportunity to make submissions on ground that his case had been meticulously outlined in the brief ‑ Defendants discharged ‑ Whether prosecutor denied natural justice. Administrative Decisions (Judicial Review) Act (Cth) 1977 Crimes Act 1914 (Cth) ss 4(1), 5(1), 35(1) Evidence Act 1995 (Cth) s 164 Magistrates' Court Act 1989 (Vic) s 56(2), Sch 5 MacKenzie v The Queen (1996) 71 ALJR 91 applied R v Linehan [1921] VLR 582 applied R v Hoser [1998] 2 VR 535 cited Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 applied May v O'Sullivan (1955) 92 CLR 654 at 658 cited Wentworth v Rogers (1984) 2 NSWLR 422 cited KHAIRY AMIN SEDRAK v MARGARET ANNE CARNEY, DANUTA ALINA SEDRAK and MELBOURNE MAGISTRATE R L CRISP V 256 of 1999 SUNDBERG J 26 JULY 2000 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 256 OF 1999 BETWEEN: KHAIRY AMIN SEDRAK APPLICANT AND: MARGARET ANNE CARNEY DANUTA ALINA SEDRAK and MELBOURNE MAGISTRATE R L CRISP RESPONDENTS JUDGE: SUNDBERG J DATE OF ORDER: 26 JULY 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondents' costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 256 OF 1999 BETWEEN: KHAIRY AMIN SEDRAK APPLICANT AND: MARGARET ANNE CARNEY DANUTA ALINA SEDRAK and MELBOURNE MAGISTRATE R L CRISP RESPONDENTS JUDGE: SUNDBERG J DATE: 26 JULY 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT INTRODUCTION 1 On 16 September 1998 the applicant filed charges against the second respondent ("the wife") claiming she had committed perjury in an affidavit sworn on 19 February 1996 for the purposes of proceedings in the Family Court contrary to s 35 of the Crimes Act 1914 (Cth) ("the Act"). On 30 November 1998 he filed a charge against the first respondent, who was the wife's solicitor in the proceedings ("the solicitor"), claiming she had "assisted, encouraged, or not prevented committing perjuries by preparing affidavit to her client full of perjuries sworn on [19] February 1998" contrary to s 5 of the Act. In committal proceedings held in the Magistrates' Court at Melbourne on 21 April 1999 the Magistrate, Mr R L Crisp, concluded that a jury could not reasonably convict the wife or the solicitor on the material presented by the applicant, and he discharged them. The applicant seeks an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") in respect of the Magistrate's decisions. BACKGROUND 2 The applicant, who was born in Egypt, and the wife, who was born in Poland, married in 1983. They came to Australia in 1984 with their first child. Four more children were born in Australia. In early December 1996 the wife left the family home with the children. They have not returned. The applicant filed an application in the Family Court seeking orders for the location and recovery of the children. Numerous other applications were made concerning the children and their custody. A representative of the children was appointed and prepared a report. In the proceedings the wife alleged that the applicant had been violent towards her and the children, that he had not allowed her and the children any freedom of movement, and that she was afraid of him. The affidavit the subject of the charges filed by the applicant dealt with these matters. The applicant alleged that the children were at risk in the wife's care, that their religious life as members of the Coptic Orthodox Church was not adequately protected by the wife, and that their educational needs were endangered. THE ACT 3 Section 35(1) of the Act provides: "Any person who, in any judicial proceeding, or for the purpose of instituting any judicial proceeding, knowingly gives false testimony touching any matter, material in that proceeding, shall be guilty of an indictable offence. Penalty: Imprisonment for 5 years." Section 5(1) provides: "Any person who aids, abets, counsels, or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the commission of any offence against any law of the Commonwealth, whether passed before or after the commencement of this Act, shall be deemed to have committed that offence and shall be punishable accordingly." 4 At the trial of a person accused of giving false testimony the prosecution must prove, beyond reasonable doubt, that the testimony was false, that the accused had knowingly given the false testimony, and that the false testimony was a matter material in the proceeding. The requirement that the false testimony be given "knowingly" means that the offence is not made out if the testimony is given through inadvertence, mistake, carelessness or misunderstanding. False testimony which arose "simply out of perception and recall which were wrong, but innocently so" will not ground the offence: MacKenzie v The Queen (1996) 71 ALJR 91 at 105. In R v Linehan [1921] VLR 582 at 588 the Full Court of the Supreme Court of Victoria, speaking of common law perjury, said: "There is in relation to perjury an exceptional rule of evidence that where the prosecution is forced to rely on direct oral evidence in contradiction of the accused's statement, there should be an acquittal, unless the falsity of the accused's statement is proved by two witnesses or by one witness with corroboration." See also R v Hoser [1998] 2 VR 535 at 541. In my view that evidentiary requirement is applicable to s 35(1) of the Act. Section 4(1) of the Act provides: "Subject to this Act and any other Act, the principles of the common law with respect to criminal liability apply in relation to offences against laws of the Commonwealth." Section 164 of the Evidence Act 1995 (Cth) provides in part: "(1) It is not necessary that evidence on which a party relies be corroborated. (2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence." COMMITTAL PROCEEDINGS IN VICTORIA 5 Section 56(2) of the Magistrates' Court Act 1989 (Vic) requires a committal proceeding to be conducted in accordance with Schedule 5. Clause 1 of the Schedule, as it stood at the time of the committal, gave the informant the option of serving on the defendant a hand‑up brief. The brief had to contain, amongst other things, a copy of the charge‑sheet relating to the offence, a list of the persons who had made statements the informant intended to tender at the committal proceedings together with copies of those statements, and a copy of any document the informant intended to produce as evidence. Clause 3(2) provided that the defendant could require the attendance at the committal proceeding of any witness who made a statement a copy of which was served in the hand‑up brief. Clause 5(4) provided: "Unless the Court gives leave to the contrary, a witness called to give evidence for the prosecution must confine his or her evidence‑in‑chief to identifying himself or herself and attesting to the truthfulness of the statement served in the hand‑up brief." A witness who gave evidence could be cross-examined and re-examined: cl 5(8). Clause 11 provided in part as follows: "(1) After the evidence for the prosecution is concluded, the Court must ‑ (a) if in its opinion the evidence is not of sufficient weight to support a conviction for any indictable offence, order the defendant to be discharged … … (2) At the conclusion of the evidence for the prosecution and evidence for the defence, if any, the Court must -- … (b) if in its opinion the evidence is of sufficient weight to support a conviction for the offence with which the defendant is charged, commit the defendant for trial …." PROCEEDINGS BEFORE MAGISTRATE 6 The Magistrate first explained to the applicant, who was not represented, the nature of a committal proceeding. He said he had looked at the applicant's hand‑up brief, which he described as "very comprehensive". In fact there were two hand‑up briefs ‑ one relating to the wife and the other to the solicitor. But it is clear that the Magistrate intended to refer to both. The applicant swore to the truth of three affidavits on which he intended to rely. He produced various other documents that were added to the hand‑up briefs. The Magistrate then inquired whether counsel for the wife or for the solicitor wished to cross‑examine the applicant. They did not, though the transcript does not expressly record their replies. The Magistrate then adjourned in order to consider the material that had been added to the hand‑up briefs. About 45 minutes later he returned to the bench. He said there was nothing new in the additional material. He said he intended to discharge the defendants. He told the applicant he did not think the applicant could usefully make any submissions about the law. He continued: "As far as the defendant, Carney, is concerned, there is just no evidence at all of connivance or subornation so that in short your proofs fall short of showing that the solicitor has put anyone up to … what you complain of, even if it is perjury, and that's another matter altogether, but first and foremost, what I'm finding is that there is no evidence that the solicitor has done anything but take instructions in a routine, or what started out, I suppose, as a routine Family Court case, so that the solicitor is discharged on that very simple basis. As for the other defendant, well, the question is could a properly instructed jury acting reasonably and accepting … everything at its highest, could it convict? And the answer is no. The short answer is that perjury must be wilful and corrupt and in my view a jury is incapable of convicting according to that standard, beyond reasonable doubt." 7 The Magistrate observed that the bulk of the charges concerned "standard opposing views" in a Family Court case, and contained nothing approaching perjury. He gave a number of illustrations of this, and continued: "to be wrong is not to be a perjurer. There will certainly be cases where being wrong constitutes perjury but the key to understanding that last statement, that being wrong is not to be a perjurer, lies here: that the law doesn't look at evidence through the eyes of a litigant. The law achieves a balance by working from a different end of the spectrum. Mr Sedrak seizes upon every contradiction as perjury, which is how at least a passionate and misguided litigant will see it. The law works for the other end, from poor memory through bias to lying. All of this, including the misstatement of the church hours [one of the illustrations considered] can be put down to either poor memory or bias. There's nothing about the character of those statements that suggests wilfulness and corruption and therefore a jury would not be capable of convicting, even if it was accepted, and of course it would have to be for this purpose, that church services were two hours and not four and the brother was in Egypt and not in Melbourne [another illustration]." 8 During the Magistrate's explanation of his ruling the applicant kept interrupting or attempting to interrupt. He said he understood that for a witness simply to be wrong was not perjury, but he wanted to "explain the other elements of the perjuries". The Magistrate said why he did not want this explanation: "The reason you haven't been heard … [is] that it would be unproductive to simply argue with you and your case is, I might say, meticulously and properly set out in your written material. There is nothing more to say about the matter and it's certainly unproductive to argue with a lay person but your endeavour is misconceived." GROUNDS OF REVIEW Irrelevant consideration 9 The irrelevant consideration the applicant contends the Magistrate took into account was that the bulk of the charges concerned opposing views in a Family Court case. In Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 40 Mason J said: "In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject‑matter, scope and purpose of the statute some implied limitation on the factors to which the decision‑maker may legitimately have regard." In my view the fact that the charges concerned opposing views in a Family Court context was not an irrelevant consideration. In the course of explaining why the fact that a statement is wrong does not mean that its maker has committed perjury, the Magistrate was pointing out that not uncommonly parties in contested custody proceedings make mistakes due either to poor memory, exaggeration or bias. The context in which opposing contentions in such proceedings are made is, in an alleged perjury context, distinctly relevant to ascertaining whether one party's statement that is controverted by the other's is simply wrong, an exaggeration, or made knowing it to be false. There is no substance in this ground of review. Relevant considerations ignored 10 The applicant complained that thirteen relevant considerations had not been taken into account. Ten of them relate to the wife, the balance to the solicitor. I will deal first with those that relate to the wife. In order for a consideration to be relevant for present purposes it must be one the decision‑maker is bound to take into account. When the statute conferring the discretion does not expressly state what considerations are to be taken into account, the Court will not find that a particular matter must be taken into account unless an implication that the decision‑maker is bound to do so is to be found in the subject matter, scope and purpose of the Act. See Peko‑Wallsend at 40. 11 Many of the considerations relied on by the applicant are not "considerations" at all but simply pieces of the applicant's evidence that he alleges are inconsistent with matters contained in the wife's affidavit. The following fall into this category: · The wife claimed the applicant only went to church twice a year ‑ on Easter Sunday and Christmas Day, when he took the children with him. The applicant says this cannot be correct because the celebrations on those days are late at night and early the next morning, times at which he would never take the children out. · The wife claimed the applicant took the children to Church services that were conducted in Arabic. The applicant purports to answer this by saying that certain services were conducted in English. · The wife claimed the applicant never assisted with the changing of the children's nappies. The applicant says this could not be correct because the wife was studying at TAFE or the University for six hours a day. "So who was changing the nappies during her absence?" · The wife claimed it was difficult for her to get to a doctor to complain about her ill‑treatment because the applicant controlled her Medicare card and insisted on accompanying her to the doctor. The applicant answers this by producing a letter from a doctor that showed that when the children were unwell the applicant usually brought them to the clinic. · The wife claimed the children did not enjoy the applicant's company or that of his family. The applicant answers this by pointing to a letter from the children's representative in which it is said that one of the children spoke enthusiastically of her father and mother, and said she liked her uncle, aunt and cousins. · The wife claimed the children did not want to go their father's church. The applicant points to the representative's letter in which it is said that two of the children reported that they like going to his church, though the ceremonies were sometimes very long. 12 Two other "considerations" take issue with the Magistrate's observation that certain errors or inconsistencies may be attributable to poor memory rather than deliberate falsehood. The first is that the wife's false statements are in writing, prepared by a lawyer, and cannot be dismissed as a memory failure. This is an argumentative observation, and experience shows it to be unsound. It is not a relevant consideration in the Peko‑Wallsend sense. The second is that the affidavit contains inconsistent pieces of information, and the writer could not suffer a memory lapse within the one document. I have examined the instances given by the applicant, and am satisfied that on a fair reading of the affidavit they are not cases of inconsistency. The remaining "consideration" is that the affidavit is designed to advance the wife's case and harm the applicant's case for custody of and contact with the children. On the assumption that this is a relevant consideration, the Magistrate did not fail to take it into account. Indeed it formed part of his reasoning process ‑the bulk of the charges involved standard opposing views in a Family Court case. 13 The three considerations relating to the solicitor are: · she should have known her client's statements were false and should have convinced her not to make them · she failed to explain the contents of the report of the children's representative to the wife because she wanted to "make confusion" · she must have known the wife's statement that her husband was the sole director of Sedrak Developments Pty Ltd was incorrect, since at the time it was formed a company had to have two directors. None of these matters is a "consideration" the Magistrate was bound to take into account. The first part of the first one is simply a statement of the result the applicant wishes to achieve. The second part is a gratuitous claim that the solicitor did not behave in a professional manner. The other matters relate to pieces of evidence, which are not relevant considerations for present purposes. Exercise of discretionary power without regard to nature of offence 14 The complaint here is that the Magistrate did not allow the applicant to make submissions as to the "knowledge" element of the offence. This has the appearance of a natural justice point. However, it was not put in that way in this connection. Rather it was said to be an exercise of discretionary power in accordance with a rule or policy without regard to the merits of the particular case within s 5(2)(f) of the ADJR Act. Plainly the complaint does not fall within this ground. Errors of law 15 Before considering the two alleged errors of law relied on, it is appropriate to mention a misconception under which the applicant labours. In his submission under this head he asserts that there is a high probability that he will be able to convince a jury of the falsity of one if not all of the statements attacked. If the wife and solicitor were to be committed for trial, the applicant's role as prosecutor will be at an end. The Director of Public Prosecutions will thereafter have the carriage of the matter. The applicant will never get to address a jury on any trial of the wife for perjury or of the solicitor for aiding and abetting the wife. 16 The first and second alleged errors can be taken together. The first is that the Magistrate wrongly attempted to predict what the jury might do, as opposed to what it could lawfully do. The second is that he wrongly asked what the jury ought to do on the evidence. Cf May v O'Sullivan (1955) 92 CLR 654 at 658 and Wentworth v Rogers (1984) 2 NSWLR 422 at 436. Neither error is established. The Magistrate said the question for him was ‑ "could a properly instructed jury acting reasonably … convict?", and in announcing his conclusion said "a jury is incapable of convicting according to that standard, beyond reasonable doubt". 17 The third error is said to be that the Magistrate did not proceed on the basis that he was obliged to treat the hypothetical jury as having accepted the applicant's evidence. Reliance was placed on the two cases referred to above. The Magistrate did not commit the error claimed. When formulating the question before him, he referred to a properly instructed jury "acting reasonably and accepting everything at its highest". Later, when referring to two particular incidents (the length of church services and the location of the applicant's brother on a particular date), he said the applicant's evidence on each point had to be accepted for the purposes of the matter before him. 18 The next alleged error is that the Magistrate dealt with the charge against the solicitor as if it had been brought under ss 314 and 315 of the Crimes Act 1958 (Vic). This claim was based on the Magistrate's use of the word "subornation", which appears in the State provisions though not in s 5(1). There is no substance in this complaint. The Magistrate is recorded as saying there was no evidence of "connivance or cybernations" (which I take to be a misrecording of "subornation"), so that the proofs did not show the solicitor had "put anyone up" to what was complained of. In the Magistrate's view the solicitor had merely taken instructions in a Family Court case. The words of s 5 of the Act are "aids, abets, counsels, or procures, or by any act or omission is in any way … knowingly concerned in, or party to …". To "suborn" is to procure someone to commit an unlawful act, especially perjury. The Magistrate's use of a synonym for "procures" does not show that he was under the mistaken impression that the charge against the solicitor was laid under Victorian law. 19 Finally, it was said that the Magistrate dealt with the charge against the wife as if she had been charged with perjury under the State law and not under s 35 of the Act. There is nothing in the material before me that supports this claim. Natural justice 20 The applicant contends he was denied natural justice in that the Magistrate refused to afford him the opportunity to address him so as to explain the corroboration he claimed existed and to demonstrate the knowledge element of the offences. As I have said, on several occasions the applicant sought to address the Magistrate on what he called the "other elements of the perjuries", and the Magistrate declined to hear him. He took this course, as he said, because the applicant's case had been "meticulously and properly set out" in the hand‑up brief. 21 Whether it is a denial of natural justice to decline to receive oral submissions depends on the facts of the case. Before the Magistrate there was no dispute about the law pertaining to the Magistrate's task, or as to the elements of the offence under s 35(1) of the Act, including the requirement of corroboration. Nor was there any dispute as to the facts, because the law required the Magistrate to accept the facts put forward by the applicant. This he did. There was no cross‑examination of the only prosecution witness, the applicant. There were no other witnesses. The applicant's hand‑up briefs were carefully prepared sets of documents. I will deal first with the brief relating to the wife. One of the documents, headed "Particulars of Offence", contains forty eight "Assignments" or what would more usually be called Particulars. Each Particular identifies a passage in the wife's affidavit that is alleged to contain a false statement, and states why it is said to be false. For example, the wife's statement that the children disliked going to their father's church is said to be false because the children expressed the opposite opinion when speaking to their representative. Under the heading "Corroboration" is a reference to the relevant part of the representative's report. The structure of each Particular is the same. 22 The next document is an affidavit of the applicant. It is not an affidavit in the conventional sense. Rather it is an elaborate exposition of the applicant's argument as to why certain of the wife's statements should be treated as knowingly false. For example, the applicant says that a number of the wife's statements, said by her to be drawn from her diary notes, are in fact not recorded in the diary. Another example is his answer to the wife's claim that he had beaten her for ten to twenty minutes. He said that if this were correct she would have been killed ‑ "beating a person 10‑20 minutes will kill that person". Another example of an alleged knowing falsehood concerns the wife's claim that after one beating the applicant's brother took her to hospital. The brother's passport shows that on the date in question he was out of Australia. 23 Then comes a longer affidavit by the applicant. It covers the same ground as the earlier affidavit, but deals with other matters as well. Its structure is the same as that of the earlier affidavit. It sets out the relevant statement of the wife, then the contrary material the applicant relies on, and then explains why he claims the wife's statement is "false for purpose", which is to be understood as purposely or knowingly false. For example, after referring to the wife's claims that the children disliked going to the father's church, that the services lasted four hours and were in Arabic, and that the children's representative had mistaken St Mary's Orthodox Church with St Margaret Mary's Catholic Church, and in each case to the applicant's contrary material, the applicant says the wife made the false statements in order to influence the Family Court to reverse its earlier decision modifying the applicant's contact hours with the children so they could go to the applicant's church where they were baptised and are receiving communion. The intention of the deponent is to convince the reader that because of the wife's motive, the relevant statements are not just false but were made knowing them to be false. It would be tedious to go through all the other paragraphs of the affidavit. Their structure is the same, and the intent of the commentary in each case is the same. 24 The format of the hand‑up brief relating to the solicitor is the same as that relating to the wife, save that whereas in the case of the wife the complaint is that she made intentionally false statements, that in relation to the solicitor is that she prepared and let her client swear the affidavit containing the intentionally false statements. The sixteen Particulars in the brief relating to the solicitor are amongst the larger number in that relating to the wife. What I have said about the latter is applicable to the former. 25 With a view to discovering whether the applicant had suffered any procedural disadvantage as a result of not having been permitted to address the Magistrate, I asked him to select his best example and tell me what he would have said to the Magistrate had he been afforded the opportunity. He gave the example recorded in paragraph 21, and then took me to that part of his affidavit of 17 September 1998 from which the example was taken. So what he would have said to the Magistrate was what he had already put in writing. In the applicant's oral submissions on this application he said nothing of relevance other than to repeat what he had set out in his affidavits. 26 The applicant's natural justice case was heavily dependent on his claim that the Magistrate could not have read the hand‑up briefs in the 45 minute adjournment. That mis‑states what transpired. The Magistrate had read the briefs before he came into Court, and so informed the parties. The adjournment was in order to enable him to examine "the fresh material", namely the exhibits that had not been filed with the briefs. They were few in number and, except for the wife's diary, were only a page or two in length. It is plain from the Magistrate's ruling that he was familiar with the material in the briefs. His treatment of a number of the Particulars shows he had a firm grasp of the inconsistencies and contradictions asserted by the applicant and of the way he put his case. He dealt, amongst other things, with the diary entries that didn't entirely match, the contradictions between the wife's and the representative's evidence about the children, the brother in law and the hospital, and the length of the church services. The Magistrate was under no obligation to deal in his reasons with each of the Particulars. 27 In the circumstances, the applicant was not denied natural justice. The Magistrate was justified in saying that the applicant's case was meticulously set out in the hand‑up briefs and there was no need for it to be repeated orally. No injustice was done to the applicant because all he wanted to do, as appeared from his submissions to me, was to tell the Magistrate what the Magistrate had already read and absorbed. Bias 28 The applicant contended that the Magistrate was biased. This claim was based on two matters. The first was that at the commencement of proceedings the Magistrate queried why two days had been allocated for the hearing. The second was that the amount of costs awarded to the wife and the solicitor was excessive. There is nothing in the Magistrate's query that shows actual bias or a reasonable apprehension of bias. I do not know whether the amount of costs ($2000 for the solicitor and $800 for the wife) was or was not excessive. There was no evidence on the point. But either way, the award of costs does not suggest any actual or apprehended prejudgment on the part of the Magistrate. CONCLUSION 29 None of the grounds of review has been made out, and the application must be dismissed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg. Associate: Dated: 26 July 2000 The applicant appeared in person. Counsel for the first respondent: A Rodbard-Bean Solicitors for the first respondent: Moores Counsel for the second respondent: D Brustman Solicitor for the second respondent: Victoria Legal Aid Date of Hearing: 19 July 2000 Date of Judgment: 26 July 2000