Fleet v District Court of NSW & Ors [2002] NSWCA 25 (26 February 2002)

Last Updated: 28 February 2002

NEW SOUTH WALES COURT OF APPEAL

CITATION: Fleet v District Court of NSW & 2 ors [2002] NSWCA 25

FILE NUMBER(S):

40635 of 2000

HEARING DATE(S): 29/01/02, 30/01/02

JUDGMENT DATE: 26/02/2002

PARTIES:

Dr Robert Fleet

v

District Court of New South Wales (First Respondent), RSPCA (2nd Respondent) & Louise Mary Parker (3rd Respondent)

JUDGMENT OF: Meagher JA Sheller JA Hodgson JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 97/22/0796

LOWER COURT JUDICIAL OFFICER: Nield DCJ

COUNSEL:

A: In Person

R: P J O'Donnell (Respondents 2 & 3)

SOLICITORS:

A: N/A

R: Smythe & Mallam (Respondents 2 & 3)

CATCHWORDS:

Summons for judicial review - allegation of wrongful failure to state a case - whether evidence should not have been admitted under section 65 of the Evidence Act - alleged failure to order the recall of five witnesses - bias - failure to appear at the commencement of an appeal - summons dismissed with costs.

LEGISLATION CITED:

Prevention of Cruelty to Animals Act 1979

Evidence Act 1995

Crimes Act 1900

Justices Act 1902

Criminal Appeal Act 1912 (NSW)

DECISION:

Summons dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40635/00

MEAGHER JA

SHELLER JA

HODGSON JA

Tuesday, 26 February 2002

DR ROBERT FLEET v DISTRICT COURT OF NEW SOUTH WALES & 2 Ors

FACTS

The appellant was charged and found guilty of aggravated cruelty to his dog, as well as failure to inform an authorized officer of his name and address under sections 6 and 27A of the Prevention of Cruelty to Animals Act 1979 respectively. An appeal from the trial judge's decision permanently stayed the section 27A proceedings and remitted the section 6 charge to the District Court for further hearing. The remitted hearing was dismissed as a result of the appellant's failure to appear before the Court. This formed one of the grounds of appeal.

Further issues which arose on appeal included the following: (1) the allegation that the trial judge improperly ordered the case to be finished within a week; (2) evidentiary rulings including admission of a Dr G's evidence; (3) failure to order the recall of five witnesses; (4) the allegation of wrongful failure to state a case; (5) a number of grounds concerning alleged procedural fairness, apprehension of bias, and breach of Article 14 of the International Covenant on Civil and Political Rights.

HELD:

Per Meagher JA (Sheller and Hodgson JJA agreeing)

(i) The trial judge's order to set aside 5 days to hear the case, and when those days passed, to continue on an adjourned date, was not an improper one.

Per Meagher JA (Sheller and Hodgson JJA agreeing)

(ii) The trial judge's discretion in allowing the evidence of a Dr G. to be admitted under section 65 of the Evidence Act did not miscarry.

Per Meagher JA (Sheller JA agreeing)

(iii) The trial judge was correct in refusing to make orders to recall five witnesses who had already given evidence, since the appellant refused to disclose what further evidence he wished to elicit.

Per Hodgson JA

An applicant must justify the making of an order by showing some real purpose for the further cross-examination of witnesses.

Per Meagher JA (Sheller and Hodgson JJA agreeing)

(iv) The trial judge's refusal to state a case for the Court on 4 separate matters did not amount to an appealable error of any kind.

Per Meagher JA (Sheller JA agreeing)

(v) Allegations of bias were not demonstrated to have existed in the trial judge's decision.

Per Hodgson JA

No material was presented to the Court to substantiate allegations of bias or breaches of Article 14 of the International Convention on Civil and Political Rights.

Per Meagher JA (Sheller JA agreeing)

(vi) A trial judge is wholly entitled to dismiss an appeal if an appellant fails to appear at its commencement: Ex Parte Day (1943) 43 SR (NSW) 349.

Per Hodgson JA

The power to dismiss without a hearing on the merits arises where an appellant appears but fails to prosecute the appeal to conclusion: Section 127A Justices Act.

ORDERS Per Meagher JA (Sheller JA agreeing)

1. Summons dismissed with costs.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40635/00

MEAGHER JA

SHELLER JA

HODGSON JA

Tuesday, 26 February 2002

DR ROBERT FLEET v DISTRICT COURT OF NEW SOUTH WALES & 2 Ors

Judgment

1 MEAGHER JA: This is an application for certiorari by a certain Dr Fleet of a judgment and orders made by Nield DCJ on 20 June 2000. The litigation concerned the fate of Dr Fleet's German Shepherd dog "Jason" on 5 March 1997. On that day the dog was seized by the police, at the instigation of the Royal Society for the Prevention of Cruelty to Animals (the second respondent). It was collected, examined and destroyed. Dr Fleet was then charged with two offences under the Prevention of Cruelty to Animals Act 1979, viz. aggravated cruelty to a dog (s.6) and failure to inform an authorized officer of his name and address (s.27A). I might interpolate that the latter charge was ludicrous, since the RSPCA well knew Dr Fleet's name and address. However, on 2 October 1997 he was found guilty of both offences at the Blacktown Local Court.

2 He appealed, unsuccessfully, to the District Court against both findings of guilt. That appeal was heard by Karpin DCJ, and, in fairness to Dr Fleet, it must be recorded that her Honour's conduct of this case left much to be desired. An appeal from Karpin DCJ's decision was determined by this Court (see [1999] NSWCA 363), which was almost entirely in Dr Fleet's favour. It made orders quashing the orders of Karpin DCJ, permanently staying the s.27A proceedings, and remitting the s.6 charge to the District Court for further hearing. Dr Fleet sought leave of the High Court to appeal against the Court of Appeal's decision, but to no avail.

3 The remitted hearing was conducted by Nield DCJ. It proceeded by fits and starts on various days between 20 June 2000 and 20 June 2001. This was largely due, I think, to the understandable distaste which Dr Fleet had for the whole litigation. He had been accused of two offences one of which he did not commit, he genuinely felt that his beloved dog had been destroyed without reason, he had been arrested by the police when he should not have been, the RSPCA had organized publicity to accompany his arrest, his house had been ransacked, and he had failed to be treated with justice by either the Local Court or the District Court. Nonetheless, he hardly seemed co-operative in getting his second trial back on the rails.

4 Eventually, that second trial was due to resume its hearings on 18 June 2001. At this stage, some five days of evidence had been heard. The Judge appeared, so did counsel for the respondents; but Dr Fleet did not. We now know that he did not appear because he was under the impression - a false impression - that one of his interlocutory appeals to this Court was listed on that date. When the mistake was appreciated, Nield DCJ adjourned the proceedings to 20 June, and ordered Dr Fleet be notified. As I understand it, there is no doubt but that he was so notified. Nonetheless, he did not turn up on the 20th June, whereupon the Judge dismissed his appeal.

5 He now complains. His complaint is not contained in any notice of appeal or application for leave to appeal. It is contained in a summons - or, to be more precise, three different summonses. Of these documents, only one sentence of one of them makes any sense - that is a request that, by way of certiorari (or an order in the nature of certiorari) that the decision of Nield DCJ be quashed.

6 I shall now deal with the various matters relied on by Dr Fleet as entitling him to such an order.

i. He says that the Judge improperly ordered that the case must be finished within a week. The answer to this allegation is that his Honour did no such thing. He did inform the parties that he had set aside 5 days to hear the case, and when these days passed he ordered the case continue on an adjourned date. We were not referred to any evidence that his Honour at any time used his position to apply undue pressure on Dr Fleet.

ii. His Honour, according to Dr Fleet, should not have admitted the evidence of a Dr Godfrey under s.65 of the Evidence Act. No facts were brought to our attention which would indicate that his Honour's discretion - and a discretion was involved - miscarried in this respect.

iii. Dr Fleet complained that his Honour wrongfully refused to make orders to recall five witnesses who had already given evidence. Dr Fleet's complaint in this regard is, I am afraid, risible. Each of the five witnesses was called by the respondents, cross-examined by Dr Fleet and then excused from further attendance by his Honour. Dr Fleet applied to have them recalled, so as to continue his cross-examination of them. This is a course, which can in exceptional circumstances, be taken; but his Honour, once more exercising a discretion, declined to do so. If I may say so, his Honour's decision was nearly inevitable, because Dr Fleet refused to disclose to his Honour what further evidence he wished to elicit.

iv. Another ground urged on us by Dr Fleet is that Nield DCJ should have stated a case for the Court when requested to do so. Requests in this regard were made on four separate matters. Each request was refused. And so it should have been. To begin with, the refusals were made whilst Dr Fleet was giving evidence in chief, not after the evidence had been completed. Secondly, in three cases the request did not seem to raise a question of law. Thirdly, in the one case when a question of law was involved, that question was whether an offence under s6 of the RSPCA Act involved proxy of mens rea. That question had been answered quite explicitly in the negative by this Court in the appeal from Karpin DCJ.

v. Another ground was bias, a regrettably common charge made by appellants against Judges. All that has to be said on this topic is that Dr Fleet did not do more than make the assumption; he hardly attempted to demonstrate that some bias existed, or that at least it could be reasonably perceived to exist.

vi. Mr Fleet submitted that his Honour's order dismissing his appeal was, in some way, improper. I simply cannot understand this. It is clear enough that if an appellant fails to appear at the commencement of an appeal, the Court is entitled to dismiss the appeal: Ex Parte Day (1943) 43 SR (NSW) 349. The power to do so is based on the Court's inherent power. I cannot see only why the Court has not the same power if an appellant fails to appear on some day part way through the case.

7 In my view, the summons should be dismissed with costs.

8 SHELLER JA: I have had the benefit of reading in draft the judgments prepared by Meagher JA and Hodgson JA. For the reasons they have given I agree with the orders proposed by Meagher JA.

9 HODGSON JA: On 2nd October 1997, a Magistrate Mr. Milovanovich in the Local Court at Blacktown determined two charges which had been brought against the claimant Robert Fleet under the Prevention of Cruelty to Animals Act 1979, namely a charge of aggravated cruelty under s.6(1) of the Act and a charge of failing to provide the claimant's name and address under s.27A of the Act. The Magistrate found the facts proven in respect of both charges. However, in respect of the first charge no conviction was entered, and a recognisance was imposed under s.556A of the Crimes Act. In relation to the second charge, the claimant was convicted and fined $500.00 with costs of $51.00.

10 On 16th October 1997, an appeal brought by the claimant to the District Court against these findings and orders was disposed of by Karpin DCJ. Her Honour found the offences proved, and indicated an intention to make orders similar to those made in the Local Court.

11 On 8th October 1999, the Court of Appeal quashed the orders made by Karpin DCJ, remitted the proceedings on the s.6(1) charge to the District Court and stayed proceedings on the s.27A charge.

12 The s.6(1) proceedings came before Nield DCJ in the District Court in June, July and August 2000.

13 The present proceedings in this Court were commenced by summons filed on 15th August 2000 seeking relief against the District Court of NSW, the RSPCA, and Louise Mary Parker (the informant in the Local Court proceedings) in respect of certain decisions by Nield DCJ made at that time. Interlocutory relief was refused by Heydon JA on 28th August 2000, and the matter then continued in the District Court. An Amended Summons was filed in these proceedings on 12th February 2001, challenging further decisions by Nield DCJ, as well as the decision of Heydon JA and decisions made by Registrar Irwin in these proceedings.

14 On 20th June 2001, Nield DCJ dismissed the claimant's appeal for the claimant's failure to appear on 18th June 2001 and 20th June 2001 to further prosecute his appeal, confirmed the Magistrate's orders in relation to the s.6(1) charge, and ordered the claimant to pay the costs of the RSPCA amounting to $25,341.00.

15 A Further Amended Summons was filed in these proceedings on 9th July 2001 seeking numerous orders, including orders quashing all orders made by Nield DCJ.

16 On 4th December 2001 Nield DCJ dismissed an application by the claimant under s.133B of the Justices Act for vacation of the order made on 20th June 2001, and ordered the claimant to pay further costs of the RSPCA amounting to $1,000.00. Although no further amendment was made to the summons in these proceedings, it is common ground that, in so far as it may be necessary and in so far as there may be grounds to do so, the claimant seeks to quash those orders as well.

CIRCUMSTANCES

17 On 5th March 1997, the claimant's dog Jason was removed by police from the claimant's residence at 6 Sixth Avenue, Seven Hills, and it was put down the next day pursuant to s.26A of the Prevention of Cruelty to Animals Act.

18 On 6th August 1997, the claimant was arrested and charged with the offences referred to above. As noted earlier, the offences were found proved by a magistrate in the Local Court, giving rise to the proceedings in the District Court and the Court of Appeal as noted earlier.

19 The claimant applied for special leave to apply to the High Court from some aspects of the Court of Appeal decision, and that application was refused on 16th June 2000.

20 The claimant's appeal on the s.6(1) charge came before Nield DCJ on 29th June 2000, when a hearing date was fixed for 28th August 2000. There was a further appearance before Nield DCJ on 4th August 2000, when his Honour dealt with a motion by the RSPCA to permit tender under s.65 of the Evidence Act 1995 of a statement made by a veterinary Dr. Godfrey and sworn evidence given by him on 2nd October 1997 and 2nd July 1998. In a judgment given on that day, Nield DCJ said he was satisfied by an affidavit by Steven Colvin dated 27th July 2000 that all reasonable steps had been taken to find Dr. Godfrey and that those steps had been unsuccessful, and that the requirements for admission of the statement and evidence had been satisfied; and his Honour ordered accordingly.

21 It appears that this and other decisions at this time gave rise to these proceedings. Heydon JA heard an application for urgent relief on 28th August 2000, and declined such relief. The matter then proceeded before Nield DCJ at 2pm on that day. The RSPCA commenced its case, which was concluded on the following day, 29th August. The claimant's case proceeded on 29th August, 30th August, 31st August and 1st September. The claimant himself gave evidence on 31st August and 1st September, and it appears that his evidence in chief was not then concluded. The case was then set down to resume on 11th December 2000.

22 On 11th September 2000, the claimant wrote to the RSPCA's solicitors notifying them that the claimant required five of the RSPCA's witnesses for further cross-examination on 11th December 2000, pursuant to s.46 of the Evidence Act.

23 There is in evidence an unsigned copy of a letter from Nield DCJ's Associate dated 22nd November 2000 addressed to the claimant stating that, because of Judicial Roster changes, Nield DCJ "will not be able to hear final submissions from Mr. O'Donnell, of Counsel, and you on 11th December 2000", and stating an intention that the appeal be adjourned to either 12th or 19th February 2001, both dates being convenient to Mr. O'Donnell (RSPCA's Counsel). The claimant says he did not receive that letter, and continued to prepare for a hearing on 11th December 2000 and incur expense: there seems no reason to doubt this is so.

24 There was also in evidence an unsigned copy of a further letter from Nield DCJ's Associate dated 7th December 2000 addressed to the claimant, referring to the earlier letter (stated to be annexed), and advising that Mr. O'Donnell was unavailable until 12th March 2001, and stating an intention to fix the appeal for hearing on 12th March 2001.

25 It appears that the claimant responded with a letter to Nield DCJ's Associate dated 8th February 2001, advising that he did not receive the letter of 22nd November 2000, complaining that he did not receive notice within a reasonable time that the matter would not be heard on 11th December 2000, advising that he was not available on 12th or 13th March 2001, advising that he still had substantial evidence to give, attaching a copy of his letter of 11th September 2000 to RSPCA's solicitors, and stating that he wished to re-call and cross-examine a defence witness Mrs. Watson.

26 The matter came before Nield DCJ on 9th March 2001. On that day, the claimant requested that his Honour state a case to the Court of Criminal Appeal on four questions of law: (1) whether Nield DCJ erred by effectively denying the claimant the fundamental right to be heard in some relevant aspects of the District Court appeal; (2) whether Nield DCJ erred by not allowing the claimant to present his all grounds appeal in an adequate and complete manner; (3) whether the prosecution should have to proved beyond reasonable doubt the mens rea essential element of the alleged offence; and (4) whether an abuse of process had occurred in relation to the alleged offences. Nield DCJ declined to state a case, on the basis that none of those questions were questions of law arising within this appeal requiring the statement of a case, and noting that he was already bound by the decision of the Court of Appeal as to the mens rea question. The claimant then applied for orders that the RSPCA re-call its five witnesses referred to in the letter of 11th September 2000, and Nield DCJ declined to make that order.

27 18th June 2001 was appointed as the day on which the case was next to proceed.

28 On 7th June 2001, the claimant wrote to the Registrar of the Court of Appeal complaining that the Registrar had prevented him from going before a single judge of the Court of Appeal on 4th September 2000 and 26th February 2001, and continuing with the following request: "It is imperative that I go before a single judge of the Court of Appeal on Monday morning 18th June 2001 at 9.45am at Queens Square, Sydney". I note that it appears that on 30th April 2001, the proceedings in the Court of Appeal had been stood over by the Registrar to 2nd July 2001, with liberty to restore on five days' notice.

29 It appears that, at about the same time, the claimant received a Court Fine Enforcement Order dated 6th June 2001 from the State Debt Recovery Office seeking payment of the fine imposed in respect of s.27A charge, that is, in respect of the matter which had been stayed by the Court of Appeal.

30 There is in evidence a copy of a letter from the claimant addressed to Nield DCJ dated 14th June 2001, that was apparently delivered to the District Court prior to 9.30am on 18th June 2001. Omitting formal parts, that letter stated as follows:

In a polite, courteous and respectful manner, I would like to notify your honour that I am not in a position to proceed and make final submissions in the above case on Monday, 18th June 2001 at 10.00am at the John Maddison Tower, 86-90 Goulburn Street, Sydney.

The grounds and reasons including the following.

(1) I have been denied the fundamental right to be heard in some aspects of my case.

(2) I have definitely not closed my case.

(3) There is a strong, reasonable apprehension of bias by the District Court against myself and in favour of the respondents and their legal representatives (including Mr. P. O'Donnell).

(4) I respectfully submit that, your Honour's refusal to state a case under Section 5B of the Criminal Appeal Act 1912 (N.S.W.) was not in accordance with the Common Law. REF:- Ex parte McGAVIN, Re BERNE and ORS (1945) 46 SR(N.S.W.) 58.

(5) I propose to appear in the Supreme Court of N.S.W. Court of Appeal on Monday, 18th June 2001 at 9.45am at Queen's Square, Sydney in relation to the relevant case DR. ROBERT FLEET V. DISTRICT COURT OF N.S.W. & R.S.P.C.A. & LOUISE MARY PARKER.

(6) In relation to the abovementioned District Court case before your Honour, a Subpoena for Production was issued at the request of `Messrs. Smythe & Mallam, Solicitors, 109-111 Queen Street, St. Marys N.S.W. 2760' to `The Proper Officer Blacktown City Council 62 Flushcombe Road Blacktown.' According to this Subpoena, the charges include "... Fail to State Name to Officer of R.S.P.C.A."

(7) I have received a Court Fine Enforcement Order dated 6th June 2001 from the State Debt Recovery Office in relation to '17 July 1997 FAIL TO SUPPLY NAME AND ADDRESS'.

(8) The so-called charge or offence (in paragraphs (6) & (7) above) was dealt with by the Court of Appeal in Paragraph 75 of their judgment dated 8th October 1999. The relevant Court of Appeal order was in my favour.

(9) I hereby lodge a very strong objection in relation to paragraphs (6) and (7) above.

(10) I have a strong, reasonable apprehension that, the behaviour of the court (including paragraph (3) above), coupled with the behaviour of the respondents, is tantamount to using the court proceedings as a weapon to improperly destroy my commitment, my character and my life.

(11) I respectfully submit that, it is appropriate that your Honour disqualify yourself immediately from any further participation in the above-mentioned District Court case.

REF: (i) LIVESEY V. THE NEW SOUTH WALES BAR ASSOCIATION [1983] HCA 17; (1983) 151 C.L.R. 288.

(ii) LAW V. CHARTERED INSTITUTE OF PATENT AGENTS [1919] 2 Ch. 276 at 289.

(iii) GALEA V. GALEA (1990) NSWLR 263 at 278 (per Kirby A-CJ)

31 On 18th June 2001, the claimant did not appear in the District Court. Nield DCJ adjourned the case to 20th June 2000, and caused letters to be sent to the claimant's home by express post. One such letter is in evidence, being a letter from the Listing Manager of the District Court Criminal Registry. The letter is addressed to the claimant, and continues as follows:

Matter of: Dr Robert FLEET

Charges: Commit Act of Aggravated Cruelty; Fail to State Name to Officer of RSPCA

File number: 97/22/0796

This matter is listed before District Court of New South Wales

at: John Maddison Tower - 88 Goulburn Street SYDNEY

for: Part Heard All Ground Appeal

on: Wednesday 20/06/2001 at: 10.00am.

If you do not appear at Court, this matter may be dealt with in your absence.

Notes for the Appellant/Accused

If you have a solicitor or barrister representing you, please tell them of this date.

If you do not appear at court on the listing date, a warrant may be issued for your arrest.

Notes for Legal Representatives

If you cease to act for the accused you should notify the Registry immediately.

Notes for Bail Sureties.

You should ensure that the appellant/accused attends Court otherwise you may forfeit the money agreed by you in the bail undertaking.

Listing Inquiries.

Judges and Court Rooms are generally not allocated to cases until the day before the case is listed.

Listing details for cases are:

- available on notice boards in the foyer of the Court each morning.

32 The claimant has given no evidence as to when he received this letter, but has submitted that he did not receive reasonable notice of it.

33 On 20th June 2000, the claimant again did not appear in the District Court. Mr. O'Donnell of Counsel for the RSPCA applied to have the appeal dismissed. Nield DCJ gave the following judgment:

HIS HONOUR: As to the appeal of Dr Robert Fleet against the RSPCA. It is now nineteen minutes past l0am on 20 June 2001. Dr Fleet has been called outside the Court on three occasions and he has not appeared.

Today is the twenty-first occasion on which Dr Fleet's appeal has been listed before me. The first occasion was on 16 April 1999. Since then there have been nineteen occasions until last Monday, 18 June 2001, on which occasion Dr Fleet was to appear, but did not appear.

Sometime before 9.30am on that day, 18 June 2001, Dr Fleet attended this Court and handed to the court officer a photocopy of a letter dated 14 June 2001 addressed to "The Presiding District Court Judge", but in an envelope addressed to "Ms Linda Roylance, Associate to his Honour Judge Nield", in which he stated, inter alia, that he was to appear in the Supreme Court, Court of Appeal, at 9.45am on 18 June 2001 in relation to his appeal to that Court from an earlier order made by me in his appeal to this Court.

Upon receipt of Dr Fleet's letter, I directed my associate to inquire of the Registrar of the Court of Appeal as to whether or not Dr Fleet's appeal to that Court was listed that day as my perusal of the Law Notices in the Sydney Morning Herald did not show his appeal as being listed that day. As it transpired, my associate was informed by the Registrar of the Court of Appeal that Dr Fleet's appeal to that Court is listed for 2 July 2001.

Accordingly, in the absence of Dr Fleet, and with the consent of the respondent, on 18 June 2001 I adjourned the proceedings to today. I directed the Registrar of this Court to write to Dr Fleet to inform him of the order that I made. I directed my associate to write to Dr Fleet to inform him of the order that I had made. The Registar's letter and my associate's letter were sent separately by Express post to the home of Dr Fleet. In the course of post the letters would have been delivered yesterday 19 June 2001.

Unfortunately, the hearing of Dr Fleet's appeal has been long and difficult because of his disinclination to accept the suggestions that I have made and the orders that I have made during the course of hearing. Equally unfortunately, little evidence has been given in the three days during which Dr Fleet has conducted his case relevant to the issue that I have to determine.

Apparently, Dr Fleet is obsessed with the circumstances in which his dog was taken from his home by officers of the RSPCA and later put down by a veterinarian employed by the RSPCA. Dr Fleet's life since then appears to have revolved around what occurred on that day; the proceedings in the Local Court; the subsequent appeal to the District Court, which was heard by her Honour Judge Karpin; the subsequent appeal to the Court of Appeal, which set aside Judge Karpin's orders and ordered a rehearing of his appeal to this Court; the subsequent application to the High Court, which Court refused leave appeal; and finally the hearing before me.

I have "case managed" Dr Fleet's appeal since 16 April 1999, hearing all applications, whether by the RSPCA or by Dr Fleet. Dr Fleet has not accepted some of the interlocutory orders that I have made and he has twice appealed to the Court of Appeal. One of his appeals remain outstanding, that which is listed to be heard on 2 July 2001.

I consider that Dr Fleet has been given every opportunity to appear and he has failed to appear and, therefore, it seems to me to be appropriate, although I have not considered the merits of his appeal, to dismiss his appeal for his failure to appear last Monday and today to further prosecute his appeal.

Accordingly, I dismiss Dr Fleet's appeal, I confirm the orders made by the Magistrate.

His Honour went on to order that the claimant pay the RSPCA's costs of $25,341.00.

34 On 16th July 2001, the claimant filed a Notice of Motion in the District Court seeking an order vacating the order made on 20th June 2001. The substantive affidavit in support of that application was an affidavit sworn 30th November 2001, which made complaint about the reference in the 18th June letter to the s.27A charge and made complaints that the claimant had been denied natural justice; but it gave no other explanation of non-attendance on 18th June or 20th June.

35 On 4th December 2001, Nield DCJ gave judgment on that application, as follows:

HIS HONOUR: As to the appeal of Dr Robert Fleet concerning the RSPCA. I commenced to hear the appellant's appeal on 28 August 2000. The complainant concluded its case the following day, 29 August 2000.

The appellant then commenced his case by calling his first witness. The appellant's case continued onto 30 August and 31 August 2000. On that day, 31 August 2000, the appellant commenced to give his evidence. It continued throughout the following day, 1 September 2000. He had not concluded his evidence in chief at the end of that day. In his affidavit, sworn 30 November 2001, paragraph 16 subparagraph f, he states that he then had a substantial amount of his case, that is approximately over 75 percent of his case, still to present to me.

For one or other reason, not now relevant, the appeal was adjourned to, finally, 18 June 2001 for further hearing. On that day, as the transcript reveals, the

appellant attended at the Court in the John Maddison Tower, where I was to sit, and handed a letter to the court officer. The court officer handed the letter to my associate. What transpired thereafter is recorded in the transcript. The appellant did not appear again that day. I adjourned the appeal to the following Wednesday, 20 June 2001.

Although a letter was sent to the appellant, he did not appear on 20 June 2001. The order that I made that day is revealed by the transcript.

On 19 July 2001 the appeal was listed before me. On this occasion the appellant appeared. What transpired is revealed by the transcript. I adjourned the proceedings to 17 October 2001.

On that day, 17 October, 2001, the appeal was listed before me. The appellant appeared. What transpired is revealed by the transcript. As I have said already today, I reminded the appellant as to the effect of s.133B of the Justices Act and reminded him that the onus was on him to satisfy me, having regard to s.133B of the Justices Act, to vacate the order that I had earlier made dismissing his appeal and requiring him to pay the respondent's costs.

As it has transpired, on 30 November 2001 the appellant swore an affidavit and on 3 December 2001 that affidavit was filed in the Penrith registry of the Court. I have today drawn the appellant's attention to the contents of that affidavit.

It seems to me that the appellant has done nothing in either of his affidavits to explain the reason for his failure to appear on the day on which his appeal was listed for hearing, namely 18 June 2001.

As I said in my comment to the respondent's counsel on 20 June 2001, it seems to me that the appellant is playing games with the Court. The appellant knew that his appeal was listed for hearing on 18 June 2001. He attended court on that day. He handed a letter to the court officer. He did not reappear in court on that day. As I said an inquiry made by my associate of the registrar of the Court of Appeal on 18 June 2001 revealed that the appellant did not have any matter listed in that Court on that day.

It seems to me to be clear that the appellant decided that he would not appear on the further hearing of his appeal, albeit that that appeal had been fixed many months earlier and a week had been set aside for the further hearing of the appeal, and that he did so knowing that I would, in all probability, dismiss his appeal. I say that because, as happened, within a day or two of my having dismissed his appeal, the appellant lodged his Motion under s.133B of the Justices Act that I vacate my order dismissing his appeal. I do not have any doubt whatsoever that the appellant knew the risk that he was running by not appearing on 18 June 2001 and that he was prepared to run that risk. He has not explained, as required by s.133B of the Justices Act, his failure to appear on that day.

As to the second matter referred to in s.133B of the Justices Act, namely that it is in the interest of justice that I vacate the order dismissing the appellant's appeal, justice is a two-way street, there must not only be justice to the appellant but there must also be justice to the respondent. This appeal has, in a sense, developed like a mushroom in the sun, it started as a simple appeal and has become something out of all proportion with the charge and with the order of the magistrate. I do not think that there would be justice to the respondent if I were to set aside the order that I have made dismissing the appellant's appeal. Moreover, I do not think that the interests of justice require it. The appellant ran a risk, and he did so deliberately, and with the knowledge of what would happen, in the hope that thereafter I would take pity upon him and vacate the order that I had made.

I am not prepared to vacate the order that I have made dismissing the appeal. The appellant has not complied with s.133B of the Justices Act. He has not given any reason whatsoever why I should vacate the order that I have made dismissing the appeal. Accordingly, I dismiss the appellant's Motion under s.133B of the Justices Act that I vacate the order that I have already made dismissing his appeal and I will order that he pay the respondent's costs of that Motion.

His Honour ordered the claimant to pay a further sum of $1,000.00 costs of the RSPCA.

ISSUES

36 The operative Amended Summons filed on 9th July 2001 seeks 23 orders. Some of these can be disposed of shortly.

37 There are orders sought relating to the s.27A proceedings stayed by the Court of Appeal. On the material before the Court, it seems that the Court Fine Enforcement Order of 6th June 2001 and the reference to the s.27A proceedings in the District Court letter of 18th June 2001 were administrative errors. It is most unfortunate that such errors occurred, and that the claimant may have been caused concern by them, but I do not believe there is any present threat to continue with such matters contrary to the stay of proceedings ordered by the Court of Appeal. I would not grant any relief to the appellant in relation to this matter, but I would be prepared to reserve leave to apply in the future in the event that any further attempt is made to proceed against the claimant in relation to the s.27A proceedings.

38 There are orders sought that orders made by Registrar Irwin be quashed and also that he be disqualified from hearing further matters. There would be no utility in making any such orders, because the present judgment will dispose of the proceedings in the Court of Appeal. In any event, no ground is shown for making any such orders.

39 An order is sought that the opponents not verbally abuse or harass the claimant. There is no evidence justifying any such order.

40 The central question is whether the primary judge's order of 20th June 2001 and/or his order of 4th December 2001 be quashed. If that relief is not given, other orders sought by the claimant such as an order for a stated case, an order requiring the disqualification of the primary judge, and orders relating to the further conduct of the appeal to the District Court, would be futile, as the District Court appeal was concluded by the orders of 20th June 2001 and 4th December 2001.

41 The grounds for setting aside or quashing those orders can be considered under four headings: firstly, the allegation of wrongful failure to state a case; secondly, evidentiary rulings including admission of Dr. Godfrey's evidence and failure to order the re-call of five witnesses and to treat Mrs. Watson as a hostile witness; thirdly, the contention that the claimant did not receive reasonable notice by the 18th June letter of the hearing of 20th June; and finally, a number of grounds concerning alleged procedural fairness, apprehension of bias, and breach of Article 14 of the International Covenant on Civil and Political Rights.

FAILURE TO STATE A CASE

42 The claimant relied on the principle stated by Jordan CJ in Ex Parte Gavin; Re Berne (1945) 46 SR(NSW) 58 that it was the duty of a Chairman of Quarter Sessions (now a District Court judge), in an appeal from a magistrate, to submit to the Court of Criminal Appeal any question of law which either party to the appeal might raise and ask to be so submitted, unless the question was so obviously frivolous and baseless that its submission would be an abuse of process. The claimant submitted that the primary judge's refusal to state a case on 9th March 2001 constituted a refusal to exercise jurisdiction, a denial of procedural fairness and a denial of natural justice.

43 Looking at the first two of the four questions raised by the claimant, plainly they are not questions of law: they would require findings of fact as to what happened in the course of the hearing before the primary judge. Furthermore, the hearing before the primary judge had not yet finished, so there remained the opportunity for the claimant still to be heard on relevant aspects of his case and to present his appeal, and accordingly it was premature in any event to raise these questions. There was indeed already an appeal pending in the Court of Appeal raising similar questions. The application in relation to these two questions was wholly misconceived.

44 The fourth question, whether an abuse of process had occurred in relation to the alleged offences was likewise not a question of law, and in addition it had nothing to do with the question before the primary judge, namely whether the claimant was shown beyond reasonable doubt to have committed the s.6(1) offence. The application in relation to that question was also wholly misconceived.

45 The third question, concerning mens rea, was one which might, at some stage of the proceedings, have arisen in such a way as to involve a question of law relevant to the appeal. That may have occurred if, at the conclusion of the case, the judge had formed the view that the offence had been proved if one view was taken on mens rea but not if another view was taken. However, the application was at best premature at the stage when it was made: the question was merely hypothetical at that stage and, partly for that reason, was formulated with insufficient precision.

46 The case which the claimant apparently wished to challenge, namely Bell v. Gunter (Dowd, J. 24/10/97), did not say that mens rea was altogether irrelevant to a s.6(1) charge. Dowd J held that the offence under s.6(1) was not an absolute offence, but rather one of strict liability; so that where an issue arose on the evidence as to whether a defendant was honestly and reasonably mistaken as to the existence of facts which (if true) would have made his act innocent, the prosecution would succeed only if it established that such was not the defendant's state of mind. Accordingly, assuming the appellant's evidence suggested that he believed facts which, if true, would have negatived cruelty, the appellant would have been entitled to an acquittal unless the judge was satisfied beyond reasonable doubt that the appellant did not have such a belief or that such a belief was not reasonable. Thus a question of law concerning mens rea would arise only if the judge was satisfied beyond reasonable doubt of this, yet was not satisfied beyond reasonable doubt that the appellant had intention, knowledge or recklessness in relation to the facts of the offence; and plainly that in turn could only be known at the end of the case.

47 The primary judge based his decision not to state a case on this question in part on the view that it had been authoritatively decided in the earlier Court of Appeal decision concerning this matter, namely Fleet v. District Court of NSW [1999] NSWCA 363. However, that opinion expressed in that case was not part of the ratio decidendi and was not based on any significant consideration of the point. I am not persuaded that this in itself would have been sufficient to justify a refusal to state a case. However, for the reasons I have given, it would have been quite wrong for the primary judge to state a case in the circumstances of the claimant's premature application.

48 It could be suggested that ideally the primary judge should have told the claimant, as an unrepresented litigant, that his application for a stated case on a mens rea question could be renewed at the conclusion of the case, at which time it would have been possible to determine whether or not there was a question of law on this aspect that had any relevance to the appeal. However, the absence of that indication does not amount to an appealable error of any kind; and of course the case never reached the stage where this could have happened.

EVIDENTIARY RULINGS

49 The primary judge gave reasons for admitting Dr. Godfrey's evidence under s.65 of the Evidence Act, which justified that course being taken, and no basis for interfering with this discretionary judgment has been shown.

50 The primary judge refused the claimant's application for an order that the RSPCA re-call five witnesses on the ground that no sufficient basis for such an order had been shown. The claimant submitted that for him to have disclosed reasons why he wished to further cross-examine these witnesses would have signalled to them the matters to be asked and assisted them to tailor their evidence accordingly.

51 This consideration advanced by the claimant is a reason for not requiring an applicant for further cross-examination to give details of questions to be asked, but does not absolve an applicant from having to justify the making of an order by showing some real purpose in the further cross-examination. That was not done in this case.

52 As regards the complaint about the primary judge not permitting cross-examination of Mrs. Watson, this matter was raised only in a letter sent to the judge's associate. This is not a proper way to make an application to a judge. No application was made in court or by any appropriate originating process. In those circumstances, it cannot be suggested that any error was made.

DENIAL OF NATURAL JUSTICE IN RELATION TO THE ORDER OF 20TH JUNE 2001 AND/OR 4TH DECEMBER 2001

53 The claimant submitted that he could not attend on 18th June 2001 because he believed that the matter was in the Court of Appeal on that day; and also submitted that he did not have reasonable notice of the hearing set for 20th June 2001. He submitted accordingly that there was a denial of natural justice on 20th June 2001, and that denial of natural justice was not corrected when the primary judge on 4th December 2001 refused to set aside his earlier order.

54 However, the claimant gave no evidence before us, nor it appears before the primary judge on 4th December 2001, as to why he had selected, as the day on which he requested the Court of Appeal to list his case, the very day when he was due to appear in the District Court; why he made no enquiry of the Court of Appeal before 18th June as to whether his case would be dealt with on that day; when he received the letter of 18th June 2001; and why he did not attend court on 20th June 2001. In the absence of evidence as to when he received the letter of 18th June 2001, the inference is properly drawn that he received it by some time on 19th June 2001. The mere assertion by the claimant that he did not have reasonable notice in relation to the letter of 18th June 2001 and the hearing of 20th June 2001 falls far short of justifying his non-attendance on 20th June 2001 or of suggesting that he was denied natural justice.

55 As I have mentioned, it seems that there was no evidence before the primary judge on 4th December 2001 as to these matters, and no satisfactory explanation of the claimant's failure to attend court on 20th June 2001. In those circumstances, it cannot possibly be suggested that there was any error in the primary judge failing to set aside his order of 20th June 2001.

UNFAIRNESS, BIAS, ARTICLE 14

56 The claimant alleges that he was treated unfairly by the primary judge, that the primary judge was biased against him, and that for these and similar reasons there were breaches of Article 14 of the International Covenant on Civil and Political Rights. He says that he felt humiliated and belittled by the primary judge.

57 It appears that the claimant believes these things, just as apparently he believes, as stated in affidavits filed before us, that he was treated in a very unfair, unjust and unreasonable way by Heydon JA and Registrar Irwin, and that he was denied the opportunity or right to present his case in an adequate or complete manner in the High Court of Australia. However, no material that has been presented to us gives any basis for any of these beliefs, other than the fact that decisions adverse to him were made.

58 Complaint was made about the long delay in hearing and determining the claimant's appeal. Certainly it is most desirable that, once a hearing of a case has commenced, the case be heard to conclusion without adjournment. But that is not always possible, particularly when cases take much longer than originally estimated. That happened here, in part because of delay caused by applications, which had no chance of success, being made by the claimant to the primary judge and to the Court of Appeal. Of course, if those applications had succeeded, the delays would have been much longer. It was unfortunate that the hearing date in December 2000 had to be vacated, but it is inevitable that from time to time judicial rosters have to be changed, by reason of such things as illness of judges and cases exceeding their estimated hearing times.

59 I understand the claimant to suggest also that there was improper collusion between the primary judge and the RSPCA's Counsel in relation to the fixing of a date in early 2001 for the resumption of the case. However, if for any reason a date for the resumption of a case has to be fixed otherwise than at a time when all parties are present in court, and if the date fixed is to take account of the availability of the parties, there must be communication by the Court to the parties to fix the date. In a case where one party is represented and one is unrepresented, it is entirely appropriate for the Court to ascertain some suitable date or dates from the lawyer for the one party, and then notify the unrepresented party of the proposed date or dates and request confirmation of that party's availability.

60 Accordingly, there is no substance in any of these contentions of the claimant.

CONCLUSION

61 The ultimate result in this case is unfortunate in the extreme. The commencement of criminal proceedings against the claimant suffered defects adverted to in the previous Court of Appeal decision and also in Meagher JA's judgment in this case. From the limited amount of material on the merits of the case which I have seen, it seems to me that, quite apart from the question whether objectively there were acts or omissions amounting to cruelty, there was evidence that the claimant believed that the facts were such that there was no cruelty to Jason, and it seems to me that the RSPCA may well not have been able to prove beyond reasonable doubt either that the claimant did not have such belief or that any such belief was unreasonable. However, the claimant's case was not determined on the merits by the primary judge for the reasons appearing above.

62 Although this was not made a ground of relief by the claimant, except in so far as it may have been obliquely raised by his suggestion of a denial of natural justice, I have carefully considered whether the order made by the primary judge on 20th June 2001 was appropriate, in circumstances where the claimant had appeared and commenced to prosecute his appeal, giving rise to proceedings in which the onus of proof lay squarely on the RSPCA: see The Queen v. Justices of Surrey [1892] 2 QB 719, Sweeney v. Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716, Ex parte Morrissey (1911) 11 SR(NSW) 550, Powell v. Streatham Manor Nursing Home [1935] AC 243, Ex Parte Macaness & Avery Pty. Limited (1943) 43 SR(NSW) 239, Ex Parte Day (1943) 43 SR(NSW) 349.

63 Ex Parte Day makes it clear that an appeal such as this may be dismissed for want of prosecution if the appellant does not appear on the hearing of the appeal. None of these cases explicitly deals with the circumstance where an appellant appears, and the hearing commences and proceeds for some days, after which the appellant does not appear. I have not found any case dealing with these circumstances. On one view, there is in these circumstances a failure to prosecute an appeal, justifying dismissal without consideration of the merits. On another view, the non-appearance merely justifies the judge hearing the appeal in disposing of it on its merits in the absence of the appellant. Some statements in the above cases give some support to the latter view, by suggesting that once the appellant has appeared, the case proceeds in the same way in all respects as a case at first instance, with the onus lying on the respondent to prove to the appeal court that the offence had been committed.

64 Mr. O'Donnell for the RSPCA referred the Court to s.127A of the Justice Act (repealed with effect from 1st March 1999), which applied to this appeal.

127A(1) Where:

(a) an application for leave to appeal to the District Court is dismissed on the failure of the applicant to appear, and

(b ) within 12 months after that dismissal the applicant shows to a Judge sufficient cause for the applicant's failure to appear,

the Judge may, where in the Judge's opinion it is in the interests of justice to do so, by order vacate the order dismissing the application and any other order made as a consequence of the failure of the applicant to appear or the dismissal of the application.

(2) Where;

(a) an appeal to the District Court is dismissed upon the failure of an appellant to appear and prosecute the appeal, and

(b ) within 12 months after that dismissal the appellant shows to a Judge sufficient cause for his failure to appear and prosecute the appeal,

that Judge may, where in his opinion it is in the interests of justice to do so, by order vacate the order dismissing the appeal and any other order made as a consequence of the failure of the appellant to appear or the dismissal of the appeal.

(3) A Judge who makes an order under subsection (2) may make the order subject to such conditions as he sees fit and specifies in the order and the provisions:

(a) (Repealed)

(b) of section 125A(5) and (6) apply in respect of an appellant who remains in custody, and

(c) of section 125A(7) apply in respect of a warrant committing an appellant to a place of safe custody.

(4) Where an order is made under subsection (2), unless the Judge otherwise orders, any stay of execution of the conviction or order against which the appeal was made effected by section 123 or 125A(9) and in force immediately before the appeal was dismissed shall continue from the time the appeal was dismissed until the appeal is heard and determined, but no action lies against any person for anything done by that person acting bona fide and without notice of the making of an order under subsection (2) to enforce the conviction or order in respect of which the appeal was dismissed.

65 He pointed out that s.127A(1)(a) contemplated that an application for leave to appeal might be dismissed on failure of the applicant to appear, while s.127A(2)(a) contemplated that an appeal might be dismissed on failure of the appellant to appear and prosecute the appeal; and he submitted that this indicated a statutory intention that the power to dismiss without a hearing on the merits arises where an appellant appears but fails to prosecute the appeal to conclusion.

66 Although the matter is not free from doubt, I think this is the better view. The respondent does have the onus of proving the offence in an appeal of this kind, but there is no order overturning the conviction or finding at first instance prior to the conclusion of the case on appeal; and in my opinion the appellant must prosecute the appeal to a conclusion even though the respondent bears the onus of proof.

67 As pointed out by Mr. O'Donnell, it would be an unreasonable result if an appellant from a conviction in a case which required the calling of very many witnesses could simply make a momentary appearance when the hearing of the appeal commenced, and then disappear, and thereby make it necessary for the respondent to call all the witnesses in order to prove its case ex parte before the appeal judge.

68 Similarly in this case, the claimant knew his case was to be heard on 18th June 2001, yet apparently selected that very day as the day on which he requested the Court of Appeal to hear some application in the Court of Appeal, and then failed to appear in the District Court on 18th June 2001 without even confirming with the Court of Appeal that his case was to be heard on that day or notifying either the RSPCA or the judge prior to 18th June that he would not appear. Again, the claimant failed to appear on 20th June, even to convey to the primary judge that he considered he had not had sufficient notice of the hearing on that day. All this indicated unfortunate lack of respect for the Court engaged in hearing his appeal, in no way justified by the claimant's mistaken belief that he was being unfairly treated, and also unfortunate lack of concern for the rights of the opposing party. In my opinion, it must be within the inherent powers of a court to dismiss an appeal for want of prosecution when an appellant conducts himself in that way.

69 So although, as I have said, I think the ultimate result in the case is most unfortunate, it is a result brought about by the claimant's own conduct. I concur in the orders proposed by Meagher JA, save that I would in addition reserve leave for the appellant to apply in the event that there is any further attempt to proceed in relation to the s.27A charge.

70 I would conclude by noting, in relation to costs, that no error has been shown in the primary judge's order for costs, and no sufficient ground has been shown for departing from the usual practice of ordering costs against an unsuccessful claimant. However, I do suggest that the RSPCA give careful consideration as to whether or not to enforce those costs orders. I do not know the claimant's financial circumstances, but it is possible that enforcement of these orders could cause severe financial hardship, and I am not sure that, in all the circumstances of this case, that would be an appropriate outcome.

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LAST UPDATED: 26/02/2002