BAR-MORDECAI v. HILLSTON [2003] NSWSC 1269

New South Wales Supreme Court

CITATION : BAR-MORDECAI v. HILLSTON [2003] NSWSC 1269 HEARING DATE(S) : 27/06/2003 JUDGMENT DATE : 27 June 2003 JURISDICTION: EQUITY JUDGMENT OF : Bryson J at 1 DECISION : Proceedings dismissed with costs.

CATCHWORDS : CRIMINAL LAW - Perjury - Application for leave to prosecute witness under Crimes Act subs.338(1)(c) - no finding in the principal proceedings that the evidence was false - leave to prosecute refused - summary disposal. LEGISLATION CITED : Crimes Act Subs. 338(1)(c) PARTIES : Michael Jacob Bar-Mordecai - Plaintiff Allan David James Hillston - Defendant FILE NUMBER(S) : SC 2561/2002 COUNSEL : M. Bar-Mordecai in person B. Burke for A. Hillston M. Bar-Mordecai in person SOLICITORS : Shaw McDonald for A. Hillston

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRYSON J.

27 JUNE 2003

2561/02 - MICHAEL BAR-MORDECAI v ALEXANDER HILLSTON JUDGMENT 1 HIS HONOUR: I have made observations during the course of Mr Bar-Mordecai's submissions and I repeat that my view is that under Subs. 338(1)(c) of the Crimes Act I am the person designated to determine whether or not the court will grant leave to prosecute Mr Alexander Hillston for perjury as the plaintiff asks. 2 It is not to the point that Mr Bar-Mordecai has expressed the feeling that I am disqualified for bias, as the designation is that I am to make the decision. No doubt this is for substantial reasons as the judicial officer before whom perjury is alleged to have been committed is in a special position to come to a view as to whether or not there ought to be a prosecution, if the public authorities referred to, namely the Director of Public Prosecutions and the Attorney General do not so decide or have not been asked. 3 I do not think subsection (2), which refers to a situation which makes it impossible or impracticable for the judicial officer to deal with leave, applies. It is quite possible to apply to me and there is no impracticability about my coming to a view about whether, in relation to proceedings before myself, a prosecution ought to be instituted. 4 I should add that, as I have already said, in my view there is no substance in the contention that there was actual bias or apprehended bias in any of the matters to which the plaintiff refers. 5 It is inescapably necessary that a judicial officer to whom an application under Section 338 (1) is to be made should, if the proceedings went to judgment and were disposed of, have come to some findings and should have expressed views about the nature of the evidence which is said to be perjured. The fact that I came to views adverse to those implied by the contention that the evidence was perjured in various respects is an inescapable aspect of the proceedings. To my mind, the reasonable dispassionate observer would understand that this was so, and would not take any adverse view of my deciding the present proceedings. I am not prepared to disqualify myself from hearing these proceedings. 6 In the Second Further Amended Summons claim 1 a alleges that the offences include perjured evidence in Probate proceedings heard before Justice Einstein, similarly for claim 2 a, claim 3 and claim 4 a. 7 On 29 April 2002, Mr Justice Einstein refused, for reasons then stated, to hear the present application and referred the proceedings to Justice Windeyer who, as I understand, has not ever disposed of the present application, although his Honour has disposed of other applications for leave to prosecute for perjury. 8 Also claimed in the Second Further Amended Summons is leave to prosecute for perjury committed before the Medical Tribunal on a number of occasions. No reason appears why it would have been impossible or impractical to apply for leave to prosecute to that Tribunal. 9 When I asked the plaintiff to deal with the question whether the application for leave to prosecute for perjury before the Medical Tribunal could be dealt with by this Court he told me to the effect that he would not press on with that application. 10 As I told Mr Bar-Mordecai during the hearing, I have taken under consideration whether the present proceedings should be summarily dismissed as vexatious. I gave him the opportunity to deal with that consideration but he responded by going to detail, not all of it comprehensible, about his grievances with respect to some passages of Mr Alexander Hillston's evidence and what he would say was the weight of the evidence which he set against some passages of Mr Alexander Hillston's evidence. 11 In the present proceedings, which were commenced before Mr Alexander Hillston gave evidence before me in the Equity proceedings 3240 of 1998 and 1707 of 1999, there are some charges or purported charges of offences which have evolved as the subjects of applications for leave to prosecute for perjury since these proceedings began and are now expressed in the Second Further Amended Summons of 14 April 2003. 12 The charges in the summons, which have, evolved after these proceedings were pending for rather more than a year, are not expressed in any form which could be the subject of an informed or considered decision as to whether or not leave could be granted to prosecute for perjury. 13 The opening passages of the Statement of Charge identify several different proceedings or hearings in which perjury is alleged to have been committed. Then there are 19 paragraphs referred to as charges with allusions to matters which are in some way complained of. 14 What is complained of is not in any case expressed in terms of a recognisable indictment, draft indictment or otherwise usable charge of a criminal offence. It does not appear clearly and cannot be comprehended from the document, any of the charges, on what date, at what place, or in what proceedings perjury was committed; or what was the true state of facts against which the evidence alluded to ought to be set so as to show that it was perjured. 15 Similar observations should be made of other passages said to relate to false swearing or in some other way relate to a claim for leave to prosecute. There is simply not enough material on which the question whether a criminal prosecution ought to be launched can be addressed in a considered way. 16 Mr Bar-Mordecai has sought in response to questions from me to explain what underlay the charges and why they should not be treated as vexatious. His explanations, insofar as they can be followed, seem to me to be directed to contentions that in the case of each charge, if a correct view (and he challenged my conclusions) of the overall evidence were taken, it would appear that the evidence given by Mr Alexander Hillston was false. 17 As it is not specified in any clear way which of these charges relate to evidence before me, or when and how the evidence was given, it is very difficult to test these claims or to see what substance they have. It did appear clearly enough from what Mr Bar-Mordecai told me that he did not in any case seek to introduce any evidence which would establish in a clear or concrete way that the evidence was false, other than evidence which was put before me in the hearing of the equity proceedings or evidence which had earlier been given in the probate proceedings and was not put before me, although it could have been. I interpose that much of the evidence which was put before Justice Einstein in the probate proceedings was put before me. It would appear that Mr Bar-Mordecai is of the view that he should or could have put some further material before me. 18 What it is that is to be the subject of criminal prosecutions cannot really be identified. So far as I can follow his explanations what he seeks is to have a further trial on the standard of proof beyond reasonable doubt of facts on which he has already failed on the test of a balance of probabilities. He does not seek this on any evidence which might be thought to establish objectively what the facts are, but on renewed consideration of material which he has already put forward for adjudication. 19 This is not the sort of material upon which a perjury prosecution could rationally be founded. Unless there were some objective material which showed, in a fairly clear way, that evidence given before me was perjured or was knowingly false swearing, I would think there could be no real prospects that prosecution would ever be submitted to a jury for decision. Simply to go again through material which has already been unsuccessful once is a hopeless proposition for a perjury prosecution. Not only hopeless, but manifestly and obviously hopeless, to the point that any person capable of objectivity would see that an application for leave to prosecute should not be made. 20 Plainly the legislature intended by Section 338 to impose controls over the commencement of prosecution for perjury so that they should not, as they perhaps otherwise readily could, become satellite litigation attending every hard fought contest on facts. 21 There is really no prospect that a judicial officer would grant leave to prosecute for perjury with respect to evidence which he had himself accepted, unless there were some objective reason for regarding the evidence as extremely unsatisfactory or suspect; simply to rehash the matter on what had already been heard and determined is not a request that can reasonably be made to a judicial officer. 22 Of course there may be cases where evidence is so unsatisfactory that a judicial officer would form a strong sense that a perjury prosecution should be initiated; that was manifestly not the case with me. 23 The terms on the charges as set out in the charges and Second Further Amended Summons, with rather more than a year's consideration, themselves appear to me to show the vexatious nature of the application. 24 The conclusion that they are vexatious is also supported by the consideration that the plaintiff is now, as he told me, bringing before the Court of Appeal contentions on the findings of fact which ought to be made in the equity litigation and he will be asking the Court of Appeal to upset certain of my findings. That is to say, at the same time as he is conducting the litigation in the Court of Appeal he is contemporaneously seeking to initiate prosecutions elsewhere on the same subject matter. This in my mind is a strong indication of the vexatious nature of the proceedings. 25 The entire absence of any further evidentiary material, apart from evidence which has already been submitted for adjudication, makes the vexatious character of the proceedings inarguably clear in my view. The charges put forward are simply impossible candidates for leave. I propose to dismiss the proceedings summarily. 26 I order the proceedings be dismissed with costs. That means appointment for hearing in October is vacated. **********