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. Submissions 1. Boiled down to their essence, the bases upon which the applicant seeks expedition are as follows. 2. First, his wife and children are in very difficult circumstances, living as they are in a car after an eviction that the applicant submits was thoroughly unlawful. 3. Secondly, the applicant claimed that he was not given formal notices, when denied appeals bail with regard to his sentences of imprisonment, that he submits he should have received pursuant to the Bail Act 2013 (NSW). 4. Thirdly, the hearing in the Local Court that led to his imprisonment was irregular, in that he was taken by surprise that it was heard to finality on that day, and, furthermore, alternatives to full-time imprisonment were not properly considered. 5. Fourthly, the position of the applicant is that the DPP has committed criminal defamation against him, by changing the documents that were relied upon before Campbell J, and the documents that are relied upon before me. As well as that, the point was made that many documents relied upon by the DPP are not sworn or affirmed affidavits. 6. Fifthly, it was submitted that the Local Court hearing that led to the sentences of imprisonment was contrary to law, in that procedural fairness was denied, and the learned Magistrate was labouring under an apprehended bias. 7. Sixthly, the applicant is self-represented. He has also found conditions in gaol very difficult: there have been episodes of violence being inflicted upon him, and he has also told me that he has been denied pain relief that he urgently needs. 8. Seventhly, his position is that he is not a person of criminal associations. 9. Eighthly, as I have recorded above, he disputes the date of the expiry of the sentence to which he is currently subject. 10. Ninthly, he asserts that his appeal to the District Court on the conviction matters has good prospects of success. 11. Tenthly, the applicant submitted that he should be free to prepare his case bearing in mind that he will be unrepresented, including by way of being able to attend at law school libraries and to have access to other resources. 12. Eleventhly, the other allegations are not overly serious, and in any event to the extent that he is accused of intimidation, the definition of that offence has been misunderstood by the prosecution. 13. The applicant concluded his oral submissions by submitting that he had been denied the protection of the rule of law; that sundry provisions of the Bail Act had not been the subject of compliance; that he was a person of good prospects who at one stage intended to open a real estate agency, and indeed intends in due course to be admitted as a lawyer; and that he has been the victim of corruption by various organisations. He concluded by emphasising that, tragically, his daughter has been the subject of a child sexual assault. 14. As I have said, a solicitor for the DPP kindly appeared as contradictor at very short notice. There was no submission on behalf of the DPP that I should tarry to determine precisely what power of review I have of the decision of the Registrar, and the confirmatory decision of the Prothonotary. Suffice to say, I have been content to approach the matter on the basis that I do have the power judicially to review the administrative decision made by the latter officer. 15. The submission of the DPP as I understood it was simply that the threshold question is whether I would interfere with the listing that is in place for nine days from today, and furthermore, that I simply would not do so. Determination 1. Turning to my determination, in light of the chronology that I have briefly outlined, I do not believe that any error is shown in the confirmatory decision of the Prothonotary. I do accept that it is the case that Mr Viavattene and his family are distressed by his incarceration; regrettably, that is an almost inevitable consequence of any member of the community being incarcerated. I also accept that the circumstances of his family are straitened, and that he is bitterly upset with the eviction that it seems has indeed taken place. But the fact is, regrettably, that many prisoners who seek bail are the subject of tragic circumstances. 2. It is also the case, I accept, that the applicant sincerely believes that a very grave wrong has been done to him, as detailed in his documents and his oral submissions. Again, the fact he experiences that feeling is regrettable, but it is also unremarkable; I consider that there are countless prisoners incarcerated in the gaols of this State who have the same belief (in saying that, I do not express any firm view about the correctness or otherwise of the sundry legal submissions and interpretations made by the applicant). 3. Furthermore, it is noteworthy that Campbell J granted the applicant bail only some weeks ago on 21 July 2017, and thereafter his Honour was amenable to an immediate variation when a difficulty arose about where the applicant could actually live if granted bail. In other words, the applicant has had a hearing in this Court, and indeed one with a successful outcome, a little over one month ago. That argues, to my mind, against him returning to this Court more quickly than other applicants. 4. As well as that, the evidence placed before me by the DPP shows that the applicant is no stranger to the criminal justice system; by that I mean, this is not a compelling hardship case of a juvenile or young adult offender, with no criminal record whatsoever, who is seeking to have his or her bail application heard as soon as possible. 5. To my mind, whilst I accept for the purposes of this application the truthfulness of what Mr Viavattene has told me, I do not believe that any error is demonstrated in the decision of the Prothonotary, or indeed the decision of the Registrar upon which it was based. Neither the factors taken into account, nor the approach to those factors, nor the result, bespeaks legal error that should found judicial review. 6. If I be wrong in the correct approach to my task, and I am in truth called upon to undertake some sort of de novo hearing, then I would not come to a different view from the Prothonotary. I am not satisfied that Mr Viavattene should have his bail hearing before 31 August 2017, thereby "jumping the queue" that applies to every other incarcerated person, who no doubt very much wishes to have his or her bail application to this Court heard as expeditiously as possible, and who believes in the righteousness of his or her cause. 7. It follows that there is no question of me turning to the substantive application today. The applicant will simply need to make his substantive submissions nine days from today before the Supreme Court bails judge. Orders 1. My orders then are: 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. 1. The hearing date of the bail application of Mr Peter Viavattene of 31 August 2017 is confirmed. ********** Amendments 25 September 2017 - Paragraph numbers taken off headings. Numbering on orders (1) and (2) 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. Decision last updated: 25 September 2017