Louis v Attorney-General for State of Tasmania [2004] HCATrans 535 (3 December 2004)

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Louis v Attorney-General for State of Tasmania [2004] HCATrans 535 (3 December 2004)

Last Updated: 18 January 2005

[2004] HCATrans 535

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H5 of 2002

B e t w e e n -

GRAHAM JAMES LOUIS

Applicant

and

THE ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 3 DECEMBER 2004, AT 11.10 AM

Copyright in the High Court of Australia

MR G.J. LOUIS appeared in person.

GLEESON CJ: Go ahead, Mr Louis.

MR LOUIS: Thank you. In the period of time that I have got, your Honours, I have got to go over the actual grounds of appeal, a little bit of history of the case and some factual background points as well. First of all, this matter came about following a police raid on my family home on 9 January 1992. Unfortunately, the way things have turned out since that time, 12 years has elapsed and the State of Tasmania through its Attorney-General and the system have prolonged the matter to be here today. Now, if I could first of all go to the grounds of appeal so I can put some – the draft notice of appeal, your Honours.

GLEESON CJ: This is page 70 of your application book?

MR LOUIS: Yes, your Honour, that would be the one. I must confess, I have not marked my application book, although I have got a copy of it. Ground No 1, I complain that:

The court below, erred, it didn’t pay proper attention or take basic care of the facts pleadings of the appeal before them and was incompetent and dishonest by stating Appellant and First Plaintiff said the original charge of obstruction was added to cover up the police’s unlawful conduct. All evidence showed the Appellant insisted obstruction was the excuse for the original arrest inside the home.

I say that when the Court of Appeal, the court below, addressed the factual background, if they are going to make error like that in the first instance, it does not do much to the credibility of the appeal. It is quite an important issue and they made a mistake there.

The Court below, erred by stating Appellant issued a writ against the police officers –

I did not ever do that. The original writ was issued against the State of Tasmania. I do not know how the court below could make that type of an error –

Originally it named the State of Tasmania who moved to have it changed to the Attorney-General for the State of Tasmania –

And that court order was made, your Honours.

The Court below, erred by stating Appellant amended the writ by adding the names of the first and second plaintiff[s] –

is wrong, that is another error in the court below’s findings. In fact, I was the one who instituted, pleaded and issued the writ on behalf of the plaintiffs, your Honours. Once again, I cannot understand how judges could get this factual background wrong.

The Court below, erred by stating the appeal grounds 1, 2 and 3 –

that is of the original notice of appeal, if we could – that is the handwritten document, your Honours.

HAYNE J: Yes, that is pages 20 and following.

MR LOUIS: Right. These were serious issues because the trial judge, Mr Justice Crawford, had actually made certain statements in an interlocutory matter which – I am very sorry, I cannot refer your Honours to the number of the page. It is an exhibit. It is marked A. It is three pages, I think, of transcript from that particular interlocutory application. There are three pages where Justice Crawford on that occasion said that he would not allow me to appear for the first plaintiff, in particular, because the law did not permit it, and he went on to quote the Mount Case, which was the decision handed by the then Chief Justice, Sir Guy Green, who said that a person who was not a lawyer could not institute a proceeding on behalf of another in any way and that my particular action was a nullity.

He put that restriction on the proceeding but he was selective in doing that. He was not prepared to apply it the way that he said that it should have been, and that was to prohibit anyone from acting on behalf of another from drafting a particular pleading and then issuing it on behalf of another. He said that there was definitely a prohibition by law where I was not allowed to do that. He said it was illegal for me to go and draft up a statement of claim on behalf of my estranged wife, and, for that matter, my daughter, because the Charter of Justice in the Mount Case said that it was illegal.

He was under that misapprehension through those proceedings and he carried that into the trial. When he would not allow me to act as the representative for people who I had actually pleaded for and were very limited in knowledge of being able to argue before the court on those grounds in the statement of claim, he caused a procedural fairness problem. I say it was a jurisdictional error on his part where he took into account material that he should not have and he did not take into account material that he should have. Also I thought that that in particular was an issue that definitely prejudiced my particular prospects at the trial and most certainly the other plaintiffs, my daughter and my estranged wife.

With the actual grounds of appeal, No 3:

The Court below, erred by not finding the trial judge was wrong in law and made a jurisdictional error by not accepting or allowing the following causes of action to be heard; nuisance, harassment, intimidation, and attempt [to] trespass, by striking these proceedings out the day of the trial.

I say that the judge was in error in law by striking those causes of action out and they most certainly were known to law. He did that on the day of the trial which did not make it very easy for us, either in terms of myself and my estranged wife and daughter. Ground 4:

The court below erred by failing to find the trial judge was wrong in law and made a jurisdictional error by not addressing the fact that the police had not carried out police standing orders –

They were required by standing orders, which I have put in the appeal book, a copy of, to go to the complainant and take a statement off of him and if possible get him to sign it. They did not carry that out. They did not carry anything out properly, your Honours. Then No 5:

The Court below, erred by not finding any contradiction in the trial judge’s reasons when he said, “Precisely what occurred at the house is of critical importance to the determination of the Plaintiff’s claim.” The judge found that the police officer had acted outside of the ‘Fire Arms Act’, and that they were there under the ‘Fire Arms Act’ but didn’t care about it and was devoid of procedural fairness.

That, I think, goes to Justice Crawford’s findings on page 16, your Honours. At the top of page 16, Justice Crawford said:

There is no doubt that Constable Skeggs maintained that he had a right to either seize or search for a firearm pursuant to the provisions of the Firearms Act. Mr Louis’ evidence was that the officer maintained the right to search the house for the firearm whereas Constable Skeggs’ evidence was that he maintained only a right to seize the firearm. Little turns on resolution of the dispute between them in that regard. On either version it is clear that Constable Skeggs maintained that he had the power to do something in relation to a firearm under the Firearms Act whereas in fact he had no power to do it at all and Mr Louis was justified in objecting to it.

There was an entry, your Honours, in the police occurrence book, which – there is a copy of that also here in the application book. It is a false entry, I might add, as well, but the police officer does say that on two occasions that he tried to seize an air rifle under the Firearms Act. He did not do that, but he says he did in writing and his evidence was that he had powers to do that and he could not really do it. So I would have thought that that was sufficient for the court to find that although the police officers had come to our home under the Firearms Act, that they were acting illegally at that time.

A big thrust of Justice Crawford’s findings, your Honours, are that myself, my estranged wife and my daughter’s evidence could not be relied upon and we were not witnesses of truth. Then, on the other hand, he accepted the two police officers’ evidence. If I can address the reasons why he found I was not a witness of truth, it was because he reckoned that I was evasive and that I did not answer questions. Well, some of the questions he asked me were not “Yes” and “No” answers and, as a plaintiff, I had to explain certain things to him because a “Yes” and “No” answer just would not have done justice to the answer.

By no stretch of the imagination could any judge have arrived at the conclusion that I was not a witness of truth, because my evidence was truthful, it was an account of what actually happened, I did not have anything to worry about, it was not a fabrication, it was not a rehearsal. It was just something that I could tell what happened the way it happened. The judge then found that I was an unreliable witness, I was an actor, I was enjoying myself, but in actual fact I was not enjoying myself. I was travelling 260 kilometres a day with a handful of children, sending them to school and organising things. It was a dreadful exercise to have to go through. I did not enjoy it at all.

He just attacked me without any foundation whatsoever and he did the same thing with my wife. He attacked her credibility based on post-arrest of me, alleged events which were not really relevant to the trial, and I think that the rules of evidence should have prohibited that line of fire. Also with my daughter, he also made up a story about my daughter being an untruthful witness, based on fairy floss. There was absolutely no substance to any of his attacks on myself, my estranged wife or my daughter.

He also reckoned that because of my – if we could turn back to Mr Justice Crawford’s findings, he referred to – I use the word “alleged” because under the – I am 58 years of age, your Honours, and I do not think that I have done anything in my life that warrants public authorities persecuting me today for the rest of my life because I might have been in a bit of trouble years ago. If I could just go to page 14 of Justice Crawford’s findings please, your Honours, the second paragraph:

A noticeable difference between the evidence of Constable Casboult and some of the other witnesses was that although he recalled mention of a firearm, he had no recollection of Constable Skeggs ever mentioning the Firearms Act at the house and in fact denied that it occurred, and he did not think that they got to the stage of requesting that the air-rifle be handed over to them, although he was not positive about that. Because of Mr Louis’ attitude and conduct, everything got out of hand.

He put the blame onto me, but the evidence was very clear that the issue about the firearm was it never, ever, took place in that way. As a matter of fact, the police had come to the door, my estranged wife opened the door. They said they wanted to speak to me and she said, “He doesn’t want to speak to the police”. Then she went to push the door to to come and get me because they kept putting pressure on, and the police officer kicked the door open, knocked her into a bedroom where my six year-old son was at the time, while my daughter was watching TV in the lounge room, and then they forced their way into the house and then arrested me outside of my bedroom because I told them to get out because they did not have a warrant.

Then he came up, this police officer, Constable Skeggs, with a statement that he had asked for the firearm to be handed over to him and the other police officer says at the trial, “No, that never happened”. It was a major point and two police officers have contradicted each other on a major point. Police officers do not do things like that unless it is not true. If it did happen that way, the police officer would recall that very clearly.

Earlier in the peace in the Magistrates Court, the same police officer, though, made another statement to say that that did happen, that Constable Skeggs had asked to seize an air rifle. In their proofs of evidence which I handed up two days ago – or yesterday, was it, your Honours – I also included the proofs of evidence which were documents that the police officers put together and they were verbatim. I do not think that anybody could really recall with such detail word for word on an alleged exchange of swear words. It is obvious that the two police officers – I put with all respect, it is my belief – have sat down in St Marys police station or somewhere else and concocted the proofs of evidence together. But it contradicts the evidence in the police station by Constable Casboult.

GLEESON CJ: Mr Louis, what happened about the matter of costs in the Supreme Court of Tasmania in the Full Court? The order of the Full Court was that your appeal be dismissed, and then, on the general form of order that I am looking at, it says:

The Respondent’s application for costs be stood over –

What happened about that?

MR LOUIS: Yes, your Honour. I have attached, I think it was document L, in the papers that I gave you. I wrote to the Director of Public Prosecutions, the representative of the respondent, and I asked about court costs. I asked what amount they reckoned that I was liable for and the Attorney-General wrote back to me and said that until recently no costs have been kept. I thought usually government agencies are very meticulous in writing down court costs, because they use it as a weapon.

GLEESON CJ: It looks as though nothing has ever been done about that matter of the question of costs, is that right?

MR LOUIS: That is correct, your Honour.

GLEESON CJ: All right.

MR LOUIS: I felt that, because of the fact that they had not done that, the points of law - - -

GLEESON CJ: Your time is up now, Mr Louis.

This is an application for special leave to appeal against a decision of the Full Court of the Supreme Court of Tasmania given on 21 December 2001. The application was filed on 28 November 2002. The respondent has indicated that it does not oppose an order extending the time in which the applicant may bring this application, and time is extended.

The applicant has filed a body of written material in the Court and has today supplemented that material by oral submissions. The respondent has filed a written summary of argument and has indicated at the conclusion of the written summary of argument that she does not desire to supplement the summary with oral argument.

Having considered all that material, we have come to the conclusion that there are insufficient prospects of success of an appeal to this Court to warrant a grant of special leave to appeal. The application is dismissed.

We will adjourn for a short time to reconstitute.

AT 11.32 AM THE MATTER WAS CONCLUDED