New South Wales Court of Appeal CITATION: WILLIAMS v BLACKLEY [2010] NSWCA 246 HEARING DATE(S): 17 September 2010 JUDGMENT DATE: 17 September 2010 JUDGMENT OF: Basten JA at 1, 14; Campbell JA at 13, 17 EX TEMPORE JUDGMENT DATE: 17 September 2010 (1) In each matter, refuse leave to appeal. DECISION: (2) Order the applicant to pay the respondent Mr Blackley's reasonable expenses incurred in responding to the application in this Court, including any loss of wages in attending today's hearing. (3) No order as to the costs of Mr Van Kooten. CATCHWORDS: ADMINISTRATIVE LAW - judicial review - not available to quash acquittal in criminal proceedings - COSTS - general rule that costs follow the event - self-represented respondent - payment of reasonable expenses including lost wages Crimes (Appeal and Review) Act 2001 (NSW). ss 23, 56 LEGISLATION CITED: Criminal Procedure Act 1986 (NSW), s 150 Supreme Court Act 1970 (NSW), s 69 CATEGORY: Principal judgment Director of Public Prosecutions v Humphrys [1977] AC 1 Carlton v The Queen [2008] NSWCCA 244; 189 A Crim R 332 CASES CITED: DJL v Central Authority [2000] HCA 17; 201 CLR 226 Ex parte Schofield; Re Austin (1953) 53 SR(NSW) 163 R v El-Zarw [1994] 2 Qd R 67 R v Wolverhampton Crown Court; Ex parte Crofts [1983] 1 WLR 204 TEXTS CITED: Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009) at [5.220] Colin Bruce Williams - Applicant PARTIES: Terry Arnold Blackley - First Respondent Andrew Henry Van Kooten - Second Respondent FILE NUMBER(S): CA 2008/283744 Applicant in person COUNSEL: First Respondent in person No appearance - Second Respondent Applicant in person SOLICITORS: First Respondent in person Second Respondent in person LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 11393/08; SC 11394/08 LOWER COURT JUDICIAL OFFICER: R A Hulme J LOWER COURT DATE OF DECISION: 1 October 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/283744 BASTEN JA CAMPBELL JA 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. 9 It is not necessary to consider whether an acquittal in summary criminal proceedings can be set aside on the basis of some kind of fraud: cf DJL v Central Authority [2000] HCA 17; 201 CLR 226 at [37]. However, even where a charge lies against a defendant for perjury committed at a first trial, and a conviction is entered at a second trial (on the charge of perjury) the acquittal in the first trial will stand: Director of Public Prosecutions v Humphrys [1977] AC 1; R v El-Zarw [1994] 2 Qd R 67. Assuming the same principle applies in summary jurisdiction, even this ground would not assist the applicant: cf R v Wolverhampton Crown Court; Ex parte Crofts [1983] 1 WLR 204, and, generally, Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009) at [5.220]. 10 The principle that there can be no challenge to an acquittal is a general law principle, subject to statutory variation. The principle has in fact been varied significantly in respect of the criminal jurisdiction of the Local Court. Thus, a prosecutor has a right of appeal to either the District Court or to the Supreme Court, pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act"). However, the prosecutor's right of appeal to the District Court does not extend to an order of acquittal: see s 23. The right of appeal to the Supreme Court is broader, and extends to an appeal from an order made by a Local Court dismissing a matter the subject of any summary proceedings, but "only on a ground that involves a question of law alone": s 56(1); Carlton v The Queen [2008] NSWCCA 244; 189 A Crim R 332 at [10]. Such an appeal must be made within the prescribed period: s 56(2). The applicant did not avail himself of that right; nor was his challenge limited to a question of law alone. 11 Although he asserted that R A Hulme J dealt with the matter as if it were an appeal under s 56, that was not so. R A Hulme J referred to that provision in demonstrating the existence of an alternative basis on which a timely challenge might have been brought. In any event, it is not clear that the grounds which would be available under the separate provisions, namely s 56 of the Appeal and Review Act and s 69 of the Supreme Court Act, are relevantly different. 12 In the result, the applicant has demonstrated no reasonably arguable case in support of error on the part of the primary judge. Accordingly, leave to appeal should be refused. 13 CAMPBELL JA: I agree and would add only that in this court Mr Williams sought to rely upon the Solicitors' and Barristers' Rules as the source of an obligation on Mr Van Kooten to notify the supposed alibi. However, he conceded that Mr Van Kooten was neither a barrister nor a solicitor, nor represented by one. Under those circumstances, the barristers and solicitors rules could have no relevance. I agree that leave should be refused. 14 BASTEN JA: In respect of costs, the applicant has repeated his allegations that the respondents' testimony amounted to perjury and that that should provide a reason why there should be no order as to costs. The usual order of the Court would be that the successful party pay the unsuccessful party's costs of the proceedings. The applicant having been unsuccessful in seeking leave to appeal, the usual order should be made. 15 The respondent, Mr Blackley, who has attended is entitled to an order for costs, but Mr Van Kooten, who has not, should not obtain an order in his favour. 16 Accordingly I would order as follows: (1) in each matter, refuse leave to appeal; (2) order the applicant to pay the respondent Mr Blackley's reasonable expenses incurred in responding to the application in this Court, including any loss of wages in attending today's hearing; (3) no order as to the costs of Mr Van Kooten. 17 CAMPBELL JA: I agree. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.