Voskresensky v Taylor B73/2001 [2002] HCATrans 339 (26 June 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B73 of 2001

B e t w e e n -

BORIS VOSKRESENSKY

Applicant

and

DARREN GEOFFREY TAYLOR

Respondent

Application for special leave to appeal

McHUGH J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 26 JUNE 2002, AT 3.56 PM

Copyright in the High Court of Australia

MR B. VOSKRESENSKY appeared in person.

McHUGH J: You are appearing without any lawyer? You are appearing for yourself?

MR B. VOSKRESENSKY: I have to.

MR B.G. CAMPBELL: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

McHUGH J: Yes, Mr Voskresensky.

MR VOSKRESENSKY: I do not know whether you have had a chance to read over the literature that I have submitted.

McHUGH J: Yes, we certainly have.

MR VOSKRESENSKY: Okay. Well, there is a few things. I would like to actually start with the decision handed down in the Appeals Court here. Before I start that, can somebody tell me why this case is named - the terminology of it is myself v Taylor? I mean, this person appears for the Crown. Why is not R v myself? It was a criminal matter.

McHUGH J: I am sure the reason for it is that it was commenced in a court of summary jurisdiction. Ordinarily the matter is not brought in the name of the Crown when the matter is brought in a court of summary jurisdiction.

MR VOSKRESENSKY: Amongst some of the paperwork that I have submitted, some of the loose sheets, there is a sheet there from the actual Appeals Court and it is a memorandum and it is dated 18 November and it has there - my case is listed as The Queen v Voskresensky.

McHUGH J: It may have, but such matters are of no practical importance in terms of this case. You are two and three-quarter years out of time for a special leave application and you have to address why you should be granted an extension of time in which to appeal. Then you have to show that there is something about your case that makes it special enough to grant special leave to this Court.

MR VOSKRESENSKY: Righto, I shall endeavour to do that. I gleaned that what is written in the decision would have to come from the - would have to be adduced from the evidence that was given in the prior hearing. Is that correct?

McHUGH J: I do not understand that.

MR VOSKRESENSKY: What is written in the decision here of the Appeals Court and what is written as fact, that had to be adduced from somewhere, that had to be gained from somewhere, to be written in here.

McHUGH J: That was a judgment given by the court. One of the difficulties about understanding your case, Mr Voskresensky, is that you do not have a lot of the evidence of the magistrate before the Court. In fact, I am not sure that you have any of it.

MR VOSKRESENSKY: I have some, but the point I would like to ask is - and it is only because I cannot find - a lot of the things that are written in this judgment from the Appeals Court I cannot find within the transcript from either the Magistrates Court or from the District Court, so I just have a query as to where it came from.

McHUGH J: You have to conduct your case.

MR VOSKRESENSKY: Okay. It says here on page 3, which is page 16 of the appeals book, down about line 12:

and a PVC pipe running from a tank to the area of the plants.

That was never mentioned in the Magistrates Court. There was a mention of it - - -

McHUGH J: See, this is the problem. You make that assertion from the Bar table but there is no evidence. We cannot accept what you or what your opponent says from the Bar table about these matters. The transcript of evidence has to be there.

MR VOSKRESENSKY: Do you not have a transcript?

McHUGH J: We have this transcript, yes, record of proceedings.

MR VOSKRESENSKY: Yes, that is the one. Nowhere in there does it state there was "a PVC pipe running from a tank to the area of the plants". So what I am asking is these three justices in the Court of Appeal, is this on their wish list to have this written here - - -

McHUGH J: Please conduct your proceedings with some respect. The judges may have made an error but, if they have made an error - - -

MR VOSKRESENSKY: Okay. All I am saying is that nowhere in the evidence at all does it state, "and a PVC pipe running from a tank to the area of the plants", nowhere.

McHUGH J: But look, Mr Voskresensky, I know it is difficult for lay persons who are not legally trained to understand. This Court only hears cases which are of significant public importance. There are hundreds of thousands of cases decided in Australia every year. We hear about 60 or 70 cases. That is the most we can take. Your application is two and three-quarter years out of time. That in itself is an extraordinarily difficult hurdle to overcome, quite apart from the fact that the case does not seem to involve any question of law. The most that you seem to say is that the courts below got the facts wrong. We never consider cases like that.

MR VOSKRESENSKY: Okay. I would like you to turn to page - - -

HAYNE J: Apropos of your question about where the poly pipe reference comes, look at page 37. But there we are; let us not stay on it, Mr Voskresensky. What is special about this case that would warrant a grant of special leave? What is the point of legal error made below?

MR VOSKRESENSKY: Okay. You pointed out that on page 37 the pipe is mentioned, but the officer giving the evidence does not say that it goes to the area where the plants were at all. He just said he followed the poly pipe down zigzagging 200 metres either side of the pipe, and 200 metres just about - in fact it was a fraction more - from this pipe was the area where they located these plants. But this is all written in the application book. Also, when I did ask Lowien a question about the watering points at my house, his answer was that "I've no idea where your watering points are". So if there was a poly pipe there where the plants were, surely he would have said - because I asked the question, "Which is the closest watering points to where you found the plants?".

Anyway, there is a case, Edwards, that is called upon on page 17 towards the top. It has got here:

It has been held in this court that the identification of the premises with reasonable particularity is all that is required in such a warrant.

The Edwards Case in itself on page 6 of the decision, it has:

The premises need be identified only with reasonable particularity -

It has a "2" there and there is a reference to Pressler v Holzberger. In Pressler v Holzberger on page 263 down near the bottom, it has a decision that Justice Lockhart brought down in the Federal Court and it was about things within a warrant being defined. On page 264 at the top it has got:

to define with reasonable particularity all relevant matters: the premises, the things liable to be seized and the offences which were committed or suspected to have been committed."

Down further just above the centre of the page - and this is Justice Lockhart again:

"so as to enable the persons to whom they are addressed and the persons whose premises are to be searched to know the exact object of the search".

Down near the bottom of this same page - and I think I misquoted in the appeal book that it was actually Justice Spender that wrote this, but it was Justice Pincus.

McHUGH J: Yes, but it does not help you. Even if the warrant was invalid, it would not affect the admissibility of the evidence. The evidence would be admissible subject to the discretion of the magistrate to exclude it.

MR VOSKRESENSKY: What I am saying here - and if I could just finish on page 272 where Justice Spender does sum up and he says:

The observation that "it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion . . .", in my respectful view, goes some part of the way towards establishing a doctrine of due process in Australia. Where the legislature has defined the circumstances in which a person's liberties might be infringed or their rights curtailed, it should not readily be concluded that conduct outside the defined authorisation is to be tolerated or excused. Judges ought not, by a wink or a nod, weaken the protection which the law gives to the rights and liberties of citizens.

That is the thrust of this decision.

How three justices in the Court of Appeal here can take two words, "reasonable particularity", use them in a decision and there are other decisions that are based - my case in particular, which has that as a reference - they have got it totally wrong. I must ask if you could put a freeze on this decision because they plainly have got it totally wrong. I think it is indefensible because you have three justices and it has got to be a majority decision of what goes into the decision, and that is exactly what is in this decision. I think that tantamount to an absolute slamming back-smack or slap in the face to the entire populace of this nation and concomitantly an under-the-hand handshake with the police saying that "You can be as sloppy as you like. That's it. We'll cover for you". That in effect is what this exactly says, but that is not where this stops. Any other country that calls on Australian law or decisions from Australian law to complement their own legal system, they could be misled by this as well.

McHUGH J: Well, it is a judgment which has no precedent effect whatever, I would have thought. I cannot see anything about the judgment which would ever make it a precedent. But in any event, even if the warrant was invalid, it does not help you. The first thing you would have had to have done was at the trial object to the admissibility of whatever the police discovered under subpoena.

MR VOSKRESENSKY: I did.

McHUGH J: Then the magistrate would have had to rule on it and you would have had to show that there was a wrongful exercise of the magistrate's discretion.

MR VOSKRESENSKY: I would have.

McHUGH J: Where did you object to it?

MR VOSKRESENSKY: I have objected throughout the transcript.

McHUGH J: Please, just give me your best objection.

MR VOSKRESENSKY: It starts on page 4 for a start. I would just like to point this out while I am on page 4. Line 18:

BENCH: Well, I'll take an opening, but I'll only take it on a plea of not guilty. So why don't we-----

SGT TODMAN: Yes, Your Worship.

BENCH: -----proceed along - on that basis. We'll have a hearing. Have a seat, Mr Voskresensky. Thank you?

Not permitted to plead. In one breath she says - - -

McHUGH J: I am asking you about when you objected to this evidence that was brought in by the police and asked her to be excluded on the ground that it was the product of the fruits of an illegal warrant. Did you ever do that?

MR VOSKRESENSKY: Well, it was an impossibility because, if you look at page - - -

McHUGH J: The answer is "No" then?

MR VOSKRESENSKY: If you could just allow me a couple of seconds.

McHUGH J: Yes.

MR VOSKRESENSKY: If you look at page 6, the magistrate says at line 21:

BENCH: Have you got any case law on this? Do you know what that means? Has the matter ever been decided by a higher Court for instance.

DEFENDANT: Well, no, I haven't. I'm only by the word of a retired Magistrate.

BENCH: All right. Well let's leave it at that. I'll hear the evidence and I'll hear on it's execution. At the moment, till I hear further evidence from Senior Constable Horsburgh, is it?

That is the other thing. How can you hear further evidence if the guy has not been sworn in yet?

SGT TODMAN: Yes, Your Worship.

BENCH: I'll proceed that----- . . .

BENCH: -----the warrant is valid.

What really put the brakes on everything is on page 34, line 43, I think:

BENCH: I'm going to make a ruling, that your suggestion that the place is the wrong place does not - is not justified. That whether it's called Warra or Kogan, it was your property. So any further references to that being the wrong property, I will rule out as soon as you make the reference, do you understand?

DEFENDANT: I can't understand why you made the ruling, but I understand-----

BENCH: Well you don't, perhaps, have to understand but you certainly need to comply with it.

DEFENDANT: Okay, fine.

BENCH: All right. And the same thing goes for your name. It was misspelt, but you are the person in residence at those premises, so for the same reason I hold the search warrant valid. So any further references to that I will rule out any questions on it, are you clear on that? Are you clear on that?

DEFENDANT: Yes, I am.

According to the Drugs Misuse Act 1986 , section 18:

(1) Upon complaint on oath before a justice by a police officer that such officer reasonably suspects that a search of a place may reveal evidence of the commission of an offence defined in part 2, the justice may issue a warrant in the approved form directed to a police officer . . .

(3) A warrant issued under subsection (1) shall be, for the period stipulated in the warrant, authority for a police officer executing the warrant to -

(a) enter or re-enter -

You have before you a copy of the search warrant and it is made out to Jason Henry Crowther. He was the local policeman at the time and it is made out to his exclusivity for the execution of this warrant. It does state:

These are therefore to command you in Her Majesty's name, for the purpose of aforesaid, for the period of 4 days to expire at 11.59 pm on the 21st day of November 1997, to -

(i) enter or re-enter -

Then you have the back of the search warrant, which is the endorsement of the search warrant, which has been filled out and signed by Darren Geoffrey Taylor. So what I would like to know is who gave Crowther the permission to delegate the duty of the execution of this warrant to Taylor? It does not say anything - he is not able to do that according to the statutes.

The other thing I would like you to look at is form 8, the occupier's notice. It is signed by Crowther. It was given to me by Taylor. Crowther was not at my property when the warrant was executed. The three police officers who attended my property were there illegally. They acted intentionally and recklessly. They knew that the warrant had been made out to Crowther, yet they proceeded. I asked them to leave my property once I saw them there and they refused to go. I would like to know if you can put a freeze on this Edwards decision.

McHUGH J: We do not put freezes on decisions, Mr Voskresensky.

MR VOSKRESENSKY: Well, could you tell me where I would have to go to get that done, because I think it is - - -

McHUGH J: Once the decision is given, it is there and, unless the case is overruled, it stands as a precedent.

MR VOSKRESENSKY: Well, to me it smacks of being a perversion of justice. I know I am only a lay person but I can read and I can comprehend and that is what it comes across as to me. Okay. I do take umbrage at these people, the justices at the Appeals Court, for writing trivial nonsense:

This trivial point . . . points raised by this applicant, which for the most part do not get beyond the dimension of pin pricks.

These justices had this warrant in front of them. They were given this warrant by Mr Chowdhury, who was the prosecutor on the day. They had that before them. The District Court judge had this warrant before him and when he got the warrant, he said to a Mr Ponting, who was representing the Crown at that case, "Have you" - and he stressed - "seen this warrant?" So he must have known that these three police officers acted illegally coming into my property in the first instance, because the warrant was not made out to any one of the three. On page 9 of the Appeals Court transcript about line 13, I explained to the three justices:

I didn't go to university; I didn't study law. The only bits and pieces of law that I know is from community legal centres . . . if I do make any errors here and, like - I'd also like to point out that the questions I've written here were just questions that I'd raised in my own mind. I've got no idea of their legal validity at all. I've got absolutely none at all.

So, bearing that in mind and someone writing that my points are trivial, having the prescience that I have already said, I know nothing about the law - and these matters that I have listed here are just things that came to mind - I take extreme umbrage at that.

On that same page, page 17, they are going on about the warrant here:

In this latter respect there is a conflict of evidence as to whether there is a misdescription, as Senior Constable Taylor adhered to his view that the property is in the Warra district.

If you look in the documentation there is a form 7, which is an undertaking as to bail, and it is No A034229. This is penned by Darren Geoffrey Taylor on 4 December 1997 and it has my address listed as Boris Voskresensky, Lot 13, Warra-Kogan Road in Kogan, yet on 3 February 1998 he goes to court and on page 17, line 57, he said:

But the address is correct?--Yes.

Then on page 47, line 42:

Yes, but at Warra. Why do you know that to be the case? Is he located at Warra or Kogan?--Well to my knowledge, it's - it's Warra.

McHUGH J: Yes. Your time is up, Mr Voskresensky; your 20 minutes is up. Thank you.

The applicant in this matter seeks an extension of time in which to file an application for special leave to appeal against a judgment of the Court of Appeal of Queensland refusing leave to appeal against a conviction of producing cannabis and possessing cannabis sativa. The judgment of the Court of Appeal was given as long ago as 18 December 1998. The special leave application was filed on 7 November 2001. It is therefore about two and three-quarter years out of time.

In support of his application for an extension of time, the applicant says that the delay was caused by his belief induced by a prosecutor at the Dalby court that he could not represent himself in the High Court. That is not a ground for extending the time for special leave to appeal. But in any event the case is concerned with factual issues. It raises no special leave point warranting the grant of special leave by this Court. Accordingly, the application for extension of time for filing special leave should be refused and the application dismissed.

AT 4.20 PM THE MATTER WAS CONCLUDED