Viavattene v R [2017] NSWSC 1142

Supreme Court New South Wales

Medium Neutral Citation: Viavattene v R [2017] NSWSC 1142 Hearing dates: 22 August 2017 Decision date: 22 August 2012 Jurisdiction: Common Law Before: Button J Decision: (1) The notice of motion of Mr Peter Viavattene seeking review of the decision of the Prothonotary of this Court refusing his application for expedition of his bail hearing is dismissed. (2) The hearing date of the bail application of Mr Peter Viavattene of 31 August 2017 is confirmed. Catchwords: PRACTICE AND PROCEDURE – application for expedition of bail hearing – whether legal error to found judicial review – no legal error – whether order should be made in any event – application dismissed Legislation Cited: Bail Act 2013 (NSW) Category: Principal judgment Parties: Peter Viavattene (Applicant) Crown (Respondent) Representation: Counsel: Peter Viavattene, self-represented (Applicant) Mr D Curran, solicitor (Respondent) File Number(s): 2017/235222 Publication restriction: Nil

ex tempore Judgment

Background 1. The application of Mr Peter Viavattene (the applicant) came before me in the Duty List. It was listed as a matter of some urgency, at the request of the applicant, but there was an inevitable logistical delay, occasioned not only by the need to obtain an Audio-Visual Link (AVL) connection between the Supreme Court at Queens Square and Grafton Gaol, but also by the need to have the Director of Public Prosecutions (DPP) appear at short notice as contradictor, and also by the need for me to deal with another, more urgent matter in the Duty List today. 2. The applicant has sought a number of orders in documentation prepared by himself, because he is unrepresented. It seems that he has had the assistance of his wife with regard to some of these documents. Although I understand that she has been declared a vexatious litigant for all purposes, and he for some purposes, I was quite content for her to assist him in that way. Furthermore, I do not believe that the order restricting the right of litigation of the applicant extends to this subject matter, and in any event I do not believe that such an order could extend to a person seeking to be at liberty. 3. The background is that the applicant is seeking bail on a number of charges. Some of them are mere pending allegations, but (as I shall detail shortly) two of them are convictions in the Local Court that led to a sentence of imprisonment. The applicant sought appeals bail on those, having lodged an appeal on all grounds to the District Court, but bail was refused by the learned Magistrate. 4. Separately, the applicant was granted bail by Campbell J on 21 July 2017 with regard to a number, if not all, of the allegations. The conditions of bail were varied on the same date by his Honour, because a question arose as to whether or not the applicant was entitled to live on bail at a particular address. 5. That Supreme Court bail was revoked, seemingly within days. 6. Turning to the conviction matters in more detail; the applicant was convicted of stealing from the person and assault occasioning actual bodily harm on 25 July 2017 in the Local Court at Murwillumbah. A six month sentence of imprisonment was imposed, to commence on 17 April 2017, and to expire on 16 October 2017 (although I note that the applicant disputes that expiry date, bearing in mind that that date is recorded in both his criminal record and the printout from the Department of Corrective Services, I accept its accuracy for the purpose of this application). That matter is listed for an appeal in the District Court on 11 September 2017. In other words, it can be seen that the application for Supreme Court bail, listed on 31 August 2017, will be heard well before the appeal to the District Court. 7. Quite apart from that, the position of the DPP is that the applicant is bail refused, as I have said, on a large number of other matters. 8. On 2 August 2017, Registrar Curry dealt with an application for expedition of a further application for bail to this Court made in writing by the applicant. She rejected it, and gave the following reasons for doing so: "[N]ot approved. The applicant is serving a sentence and has only recently had a bail hearing in the Supreme Court. No compelling reasons or evidence has been provided as to why a hearing date should be expedited." The Registrar also requested that the matter be listed on 31 August 2017 for hearing of the bail application, and that listing, nine days from now, remains in place. 9. On 8 August 2017, the Prothonotary of this Court conducted an internal review of the decision of the Registrar not to grant expedition. Without quoting it verbatim, the Prothonotary confirmed that decision, agreeing with the reasons given by Registrar Curry, and noting that there were no new reasons. 10. It seems that the applicant was perhaps informed of that adverse review by way of a letter of 11 August 2017. After that, he took steps to have that refusal reviewed, which culminated in the hearing before me today. 11. It is quite true that the applicant wishes not only to have expedition granted, but also for me to conduct the bail hearing immediately, determine the question of bail on the merits, and grant him bail forthwith. But that would, I think, be logistically impossible in light of the fact that I am running the civil Duty List, and the fact that the submissions that he wishes to make are complex indeed. It could also run the risk of denying procedural fairness to the DPP, in that, as I have said, a solicitor of that organisation attended at very short notice. And in any event, structurally the first threshold question is surely whether the applicant should be granted expedition at all, in order to bring his hearing forward, rather than it occurring in nine days' time. 12. Much of the material relied upon by the applicant was handwritten; of course, because of his incarceration and the fact that he is unrepresented, I make no criticism at all of that. But many of the documents upon which he relies are written in very small script that is, in parts, illegible to me; as to its substance, it is, to a degree, discursive and, with respect, I found it very difficult to understand. To my mind, the documents filed by the applicant are suggestive of a person who is, at the least, agitated; that is understandable, in light of the circumstances that I shall outline shortly. Yet again, I make no criticism of the applicant based upon his written submissions, but it seemed to me that the way forward at the hearing was simply to ask him to state concisely the bases upon which he claims he should be granted expedition with regard to his pending bail hearing.