Jack Russell. Photo: Ash Long

Yea citizen Jack Russell has lost his Supreme Court action against local policeman Leading Sen. Const. Simon Eaton.
Mr Russell’s application for judicial review of judgment of the County Court imposing fines for contravention of the Summary Offences Act was dismissed.
His application for adjournment of trial, and his application for recusal of trial judge on ground of apprehended bias, were refused.
Judge J. McDonald handed down the decision on July 26.
In Court documents, Mr Russell is said to have made no appearance in the hearing on May 27.
Dr J Harkess, of the Director of Public Prosecutions, appeared for Mr Eaton.
Judge McDonald said: “The current proceeding stems from a disagreement in the Yea Library on April 13, 2016.
“The regular practice of the plaintiff, Mr John (Jack) Russell, was to send and receive documents using the fax service provided by the library for a fee.
“On April 5, 2016, the Chief Executive Officer of the Murrindindi Shire Council wrote a letter to Mr Russell to the effect that he was not permitted to attend the library between 9am and 1pm on Wednesdays, when school children attended for ‘Story Time’, for a period of six months.
“The letter referred to allegations of him upsetting children, and stated that he was not to contact library staff in respect of the ban.
“Mr Russell attended the library at about 9am on Wednesday, April 13, 2016.
“Ms Kerry Tull, a Council employee who worked at the library, asked Mr Russell to leave and told him that he was not allowed to be there because of the ban.
“The fax machine began to receive papers, which Mr Russell believed were his privileged legal documents, and Mr Russell took some of the papers from the machine.
“Ms Tull took the pages from Mr Russell’s hand, refused to return them and walked behind the counter to telephone the police.
“As she did so, Mr Russell grabbed her arm and attempted to snatch the papers.
“Mr Andrew Bond, manager of business services at the Council, was present at the library.
“He overheard the conversation between Ms Tull and Mr Russell, and witnessed Mr Russell grab Ms Tull’s arm.
“In respect of this incident, Mr Russell was charged with unlawful assault contrary to s 23 of the Summary Offences Act 1966 (‘charge 1’), entering a place likely to cause a breach of the peace contrary to s 9(1)(g) of the Summary Offences Act (‘charge 2’), and wilfully trespassing in a public place contrary to s 9(1)(d) of the Summary Offences Act (‘charge 3’).
“The informant [Simon Eaton] is the first defendant. On November 14, 2016, a Magistrate convicted Mr Russell of charges 1 and 3, recorded a conviction in respect of each and imposed fines of $1000 and $500, in addition to $1514 costs. The Magistrate dismissed charge 2.
“Pursuant to s 254 of the Criminal Procedure Act 2009, Mr Russell appealed to the County Court.
“The de novo appeal was heard by Judge Mullaly on August 28, 2017.
“Ms Tull and Messrs Bond and Russell gave evidence. At the conclusion of the hearing, his Honour ruled that charges 1 and 3 were proved, and dismissed charge 2.
“His Honour made an order setting aside the orders of the Magistrates’ Court and, in lieu thereof, imposed an aggregate fine of $500 without recording a conviction, in addition to $1514 statutory costs.
“On September 26, 2017, Mr Russell filed an originating motion seeking judicial review of Judge Mullaly’s decision pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. “He seeks orders in the nature of certiorari quashing Judge Mullaly’s decision and orders.
“He also seeks orders that this appeal be heard by a different judge. I have concluded that none of the grounds in support of the relief sought have been made out.
“Mr Russell’s application for judicial review will be dismissed.
PRELIMINARY ISSUES
“Before dealing with the substantive issues, it is necessary to deal with several applications made by Mr Russell and set out the procedural background.
“The matter was fixed for trial on August 16, 2018 but was adjourned to April 8, 2019 by order of Judicial Registrar Clayton on August 15, 2018, following non-compliance by the first defendant with an order for the provision of the transcript of the County Court proceeding.
“On March 27, 2019, Mr Russell filed a summons seeking an adjournment of the trial of the proceeding on the grounds that he was seeking ‘court support’, the court book had not been finalised and he was seeking the inclusion of additional documents, and he was unable to provide authorities until he had legal support. “On April 2, 2019, Judicial Registrar Clayton denied the application for an adjournment and confirmed that the trial was to proceed on April 8, 2019.
“On April 5, 2019, Mr Russell filed an affidavit seeking an adjournment on the grounds that he was ‘greatly disadvantaged this time due to [his] current mental state’ and was seeking ‘Court Support’ and/or pro bono assistance. Exhibited to the affi-
davit were psychiatric assessments dated January 17, 2019, May 2, 2007 and October 12, 2006.
“On April 8, 2019, the trial was to proceed before me. Mr Russell did not appear.
“I noted the absence of the transcript of Judge Mullaly’s ruling on August 28, 2017 from the evidence before the Court.
“I directed that the first defendant provide the ruling to Mr Russell and to the Court, and ordered that the plaintiff’s application be adjourned to April26, 2019 for a directions hearing.
The court book
“On April 26, 2019 at the directions hearing, Mr Russell sought the inclusion of approximately 1500 pages of materials relating to a ‘parallel action’ commenced by writ filed on January 10, 2019 (‘1500-page court book’).
“In that proceeding, he claims damages for personal injury against the Council and Mr Craig Lloyd in relation to a subsequent ban from the library.
“I delivered an ex tempore ruling refusing Mr Russell leave to include the 1500-page court book because it is irrelevant to the present proceeding.
“The present proceeding is confined to the issue of reviewing the decision of Judge Mullaly on August 28, 2017.
“Materials relating to a subsequent decision of the Council, which is not challenged in this proceeding, are not relevant to any issue which falls for determination in the present proceeding.
“Further, the inclusion of the 1500-page court book would unnecessarily increase time and costs contrary to the Civil Procedure Act 2010.
Application on April 26, 2019
for adjournment of the trial
“On 23 April 2019, Mr Russell raised his intent to apply for an adjournment of the substantive hearing to allow sufficient time to file submissions with the benefit of the ruling of Judge Mullaly.
“On April 26, 2019, Mr Russell applied for the adjournment.
“I delivered an ex tempore ruling refusing the application for an adjournment.
“I was not satisfied that Mr Russell would be prejudiced if the matter was heard on May 27, 2019.
“ The ruling of Judge Mullaly is self-explanatory and one page in length. His Honour accepted the evidence of Ms Tull and Mr Bond as proving charges 1 and 3.
“Although Mr Russell did not have a copy of the ruling when he filed his originating motion on September 26, 2017, the grounds therein expressly challenge Judge Mullaly’s conclusion that his Honour preferred the evidence of Ms Tull and Mr Bond.
“Mr Russell had filed detailed submissions setting out why he submits the ruling is wrong.
“I gave leave to Mr Russell to file any further submissions with the benefit of the ruling and ordered that they be filed by May 10, 2019.
“I ordered that the matter be listed for hearing before me on May 27, 2019. I also ordered that an updated court book be provided, including the ruling of Judge Mullaly and two affidavits sworn by Mr Russell that had previously been omitted.
Application for adjournment of the trial on May 27, 2019
“Following the directions hearing, Mr Russell provided correspondence to the Registry requesting an adjournment on a number of different grounds.
“He stated that he was unwell, sought the inclusion of the 1500-page court book, was seeking pro bono legal assistance, and had other commitments, namely, a review in the Victorian Civil and Administrative Tribunal on May 24, 2019 and a County Court directions hearing on May 28, 2019.
“I denied Mr Russell’s application for an adjournment.
“I accept Mr Russell’s statement, supported by psychiatric assessments provided to the Court, that he suffers from chronic psychiatric conditions.
“However, his contention that an adjournment was required because he was unwell was not supported by contemporaneous medical evidence of acute illness or an exacerbation of any existing conditions.
“The proceeding has been on foot since September 26, 2017 and was first listed for trial on August 16, 2018. Mr Russell filed detailed submissions and had substantial time to prepare for the hearing. Mr Russell did not contend that he had other commitments on May 27, 2019.
“In relation to Mr Russell’s contention that an adjournment was required in order for him to obtain legal advice, I agree with the reasons of Judicial Registrar Clayton for denying Mr Russell an adjournment on April 2, 2019:
“This matter was adjourned in August 2018 and has been on foot since 2017.
“There is nothing before the Court to demonstrate that Mr Russell has taken any steps to obtain legal representation or assistance.
“Whilst this Court understands that a self-represented party may well desire to obtain legal assistance, Mr Russell is well acquainted with the pro bono scheme for the Victorian Bar and has availed himself of this service in the past.
“He is also acquainted with the Supreme Court of Victoria’s self-represented litigant coordinator.
“Having regard to the requirement of the Civil Procedure Act to ensure the just, efficient, timely and cost-effective disposition of the real issues in dispute, and to balance Mr Russell’s desire for an adjournment with the defendants’ entitlement to have the matter dealt with and the Court’s desire not to waste judicial resources, I was not satisfied that the adjournment should be granted.
Apprehended bias
“On May 2, 2019, Mr Russell provided submissions to the Court seeking that I recuse myself on the ground of apprehended bias.
“He stated:
“That as such, the ruling of Mr Justice McDonald [in respect of the 1500-page court book] is invalid & an abuse in law as he was opposed to the plaintiff’s submission on the day & was clearly disposed to favour the Defendant’s submission & without the benefit of the ‘Record’ – Court Book of the plaintiff, nor the complete defendants’ Court Book; yet to include further affidavits & for ‘updating’ by the 22nd May 2019.
“That Mr Justice McDonald exhibited consistent bias (apprehended/ perceived) throughout his presiding & to the plaintiff’s disadvantage & disfavour.
“On May 16, 2019, Mr Russell provided material to the Court which stated the following:
“Justice McDonald was selected to bring a speedy outcome & with his ‘feisty’ nature & to the court process-appeal & without an ‘open mind’ for proper legal conduct – towards a self represented person.
“That the plaintiff contends that Justice McDonald exhibited apprehended perceived bias – or otherwise, Real Bias & to the detriment of the plaintiff’s case, during hearing of the 24th [sic] April 2019.
“That until satisfaction of such a conduct complaint (J.I.C.), J McDonald should stand aside!
“That no party will be disadvantaged with the anticipated delays, whatsoever.
“That a re-trial is clearly the object of proceeding SCI/17/03875 ‘Appeal process’ to quash the orders of Mr Justice Mullaly & with the evidence now obtained to be now defined
“That the plaintiff foreshadows a complaint process to the Judicial Commission & on numerous matters – identified.
“On May 24, 2019, Mr Russell provided correspondence to the Registry to be forwarded to my Chambers, which stated:
“I currently do not have the physical nor mental strength, nor fortitude to even look at my files since the exposure to Justice McDonald on 26/4/19,” Mr Russell said.
“I normally ‘travel well’ when treated with respect & courtesy which was sadly lacking with ‘bully boy’ McDonald on the 26/5/
“Irrespective of the outcome of the hearing set for next Monday – 28/5/19, I will continue with the conduct claims against Judge McDonald with the J.C.V. & with the prospect of a formal Appeal should I receive any Adverse Decision of J. McDonald & as foreshadowed on the 28/5/19.
“Background. I held my father whilst he had his stroke & later died at my age of today, so that I’m well aware of mental stress & the consequences. Since that time I’ve managed to control stress through various ways but not when inflicted by the ‘errors’ of a bully.”
Judge McDonald continued: “In Doughty-Cowell v Kyriazis, the Court of Appeal summarised the relevant principles for a finding of apprehended bias in a proceeding in which bias claims were made by a self-represented litigant:
“The bias rule is breached if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
“The level of knowledge and sophistication which a fair-minded observer hypothetically brings to the question is that of a lay person (not a lawyer), informed as to the relevant facts of the case and sufficiently knowledgeable and informed to be capable of bringing a rational and reasonable assessment to bear.
“As was said by Kirby J in Johnson v Johnson:
“[A fair-minded observer] would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers.
“[The observer] must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted.
“[The observer] will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality.
“Acting reasonably, [the observer] would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context.
“Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.
“In Ebner v Official Trustee in Bankruptcy, the plurality stated:
“Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong.
“They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause.
“Judges do not choose their cases; and litigants do not choose their judges.
“If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.
“… if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
“In Ebner, the plurality expounded a two-stage test, requiring, first, ‘the identification of what is said might lead a judge … to decide a case other than on its legal and factual merits’, and, second, the ‘articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.’
“I am satisfied that I should not recuse or disqualify myself. Mr Russell has not identified any matters that might cause a reasonable bystander to apprehend that I might not bring an impartial mind to the resolution of the questions raised in the proceeding.
“I am not aware of any matters that are incompatible with impartiality in fact or appearance.
“I have no interest in the litigation nor any personal association with any party in the proceeding.
“I have not prejudged the matter and have no actual bias against Mr Russell.
“On April 8, 2019 when the trial was to proceed before me and Mr Russell did not appear, I pointed out, to his benefit, the absence of the ruling of Judge Mullaly from the court book.
“I am not satisfied that a reasonable bystander might apprehend that I might not be impartial from my conduct during the directions hearing on April 26, 2019.
“I expressed a desire that the matter be set down for hearing as quickly as possible, consistent with the overarching purpose of the Civil Procedure Act to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.
“I invited Mr Russell’s submissions as to why it was not fair to him that the matter proceed on May 27, 2019.
“Having ruled that the adjournment was not granted, I informed Mr Russell that, if he wished to make an application for a further adjournment and file material in support, I would hear that application.
“I provided Mr Russell with a reasonable opportunity to make further written submissions on Judge Mullaly’s ruling or on any other matter, and informed Mr Russell that he would have the opportunity to make submissions at the hearing on May 27, 2019.
“Mr Russell disagreed with my ruling in respect of the 1500-page court book and sought to make further submissions subsequent to the ruling, which, having given my ruling, I did not hear.
“Mr Russell is not entitled to a different judge by reason of disagreeing with the ruling with respect to the 1500-page court book.
“I informed Mr Russell that, if he wishes to do so, he is entitled to challenge the ruling in due course by way of appeal.
“The transcript records that I requested that Mr Russell not interrupt me and reminded him not to speak disrespectfully to the Court.
“I am satisfied that my requests are not such that they might cause a reasonable bystander to apprehend that I might not be impartial.
The substantive proceeding
“On May 27, 2019, the trial proceeded before me. Mr Russell did not appear. I reserved my decision, to be determined on the written submissions and materials already filed by the parties.
“In his originating motion filed on September 26, 2017, Mr Russell seeks the following relief:
• That I was put under significant DURESS during the County Court Appeal process before Justice Mullaly on the 28th August 2017
• That Justice Mullaly erred in law
• That I was denied natural and procedural justice
• That my application for Judicial Review is made out on strong grounds of defence and has every chance of success in my favour
• That there are numerous inconsistencies within the Informant and witnesses Tull and Bond, in sworn evidence.
“The grounds relied upon by Mr Russell are:
“As detailed in my Sworn Affidavit
• Crimes Act Amendment 2014 (Vic @ 322G and 623 Crimes Act 1958 (Vic)
• @ s. 322 Crimes Act 1958 (Vic and as in R. V. McKay @ 3.
• @ s71(1) Crimes Act 1958 property etc. and as Authorities therein.
“In the affidavit in support sworn on September 26, 2017, Mr Russell particularised the grounds:
• That I seek relief under ‘orders’ in the nature of certiorari, mandamus, prohibition and quo warranto for a Judicial Review.
• That my defence will rely upon the following authorities as Grounds n Crimes Amendment Act 2014 (Vic) @ s 322 and 623. Crimes Act 1958 (Vic) and Self Defence in s 322K Crimes Act 1958 (Vic) and as in R. V. McKay @ 3 and s 71(1) of the Crimes Act 1958 – Property and etc.
• That a miscarriage of Justice occurred
• That I shall rely upon the Judgement –
• Reasons AP-17-064
• Records taken (Audio) and any resultant transcripts of County Court Proceeding
• That all evidence currently sought by the plaintiff will be provided from trial
• That I attach my exhibit I Result of Appeal.
Duress
“Mr Russell contends that he was put under significant duress during the County Court appeal before Judge Mullaly.
“Mr Russell put no evidence before the Court in support of his contention that he was subject to duress during the County Court proceeding.
“In his submissions in reply filed on December 21, 2018, Mr Russell contends that the barrister who appeared for him under the Duty Barristers’ Scheme was ‘not versed in all aspects of criminal law, did not have his instructing solicitor … on the day & was floundering & his ability to properly argue the case’.
“I reject this submission. The transcript of the County Court proceeding shows that Mr Russell’s counsel cross-examined witnesses and made submissions to Judge Mullaly.
“The ruling of Judge Mullaly records that he was persuaded by counsel’s submissions as to the low gravity of the offending and Mr Russell’s personal circumstances and, accordingly, did not record a conviction in respect of charges 1 and 3.
“Mr Russell’s contention that he was under duress in circumstances
where he was represented by Queen’s Counsel is without merit.
Error of law
“Mr Russell did not specify how he contends Judge Mullaly erred in law. In his submissions in reply filed on December 21, 2018, Mr Russell referred to error of law on the face of the record.
“No reviewable error of law on the face of the record was identified. No error of law appears in the transcript of the County Court proceeding or in the transcript of the ruling of Judge Mullaly.
Denial of natural justice and/or procedural
fairness
“Mr Russell contends that he was denied natural and procedural justice.
“I am satisfied that Mr Russell was not denied natural justice in the County Court proceeding.
“In his submissions in reply filed on December 21, 2018, Mr Russell also contends that the decision of Judge Mullaly was tainted by apprehended bias.
“The transcript of the County Court proceeding was provided and shows that Mr Russell was not denied procedural fairness.
“Mr Russell knew the case against him, and was afforded the opportunity to give evidence in his defence.
“Through his counsel, he had the opportunity to cross-examine witnesses and make submissions on the law.
“Mr Russell’s counsel put Mr Russell’s version of events to Ms Tull, which included that Mr Russell did not commit the offence of trespass because, on the previous evening, Ms Tull had invited him to attend the library the next morning to receive his faxes.
“Counsel elicited evidence from Mr Russell to the same effect.
“Following the conclusion of evidence, Mr Russell’s counsel submitted that the papers received by the fax machine were Mr Russell’s privilege legal documents, and raised self-defence and the defence at common law of protection of property.
“Mr Russell’s contention that the decision of Judge Mullaly was tainted by apprehended bias was not in his originating motion and the first defendant was not provided with an opportunity to respond.
“In any event, I am not satisfied that a reasonable bystander might apprehend that Judge Mullaly might not bring an impartial mind to the decision.
“There is no evidence before the Court to reasonably engender such belief. I am satisfied that Mr Russell was afforded a fair hearing in every respect.
Strong grounds of defence
“Mr Russell contends that his judicial review application is made out on strong grounds of defence.
“He refers to the Crimes Amendment (Abolition of Defensive Homicide) Act 2014, which inserted ‘Part IC—Self-defence, duress, sudden or extraordinary emergency and intoxication’ into the Crimes Act 1958.
“Mr Russell refers to ss 322G, 623 and 71 of the Crimes Act.
“Section 322G provides that Part IC applies to any offence, whether against any enactment or at common law.
“Section 623 is a transitional provision not relevant to the current proceeding.
“Section 71 appears in ‘Division 2—Theft and similar or associated offences’ of ‘Part I—Offences’ and defines ‘loss’, ‘gain’, ‘goods’, ‘prop-
erty’ and where property shall be regarded as belonging to any person for the purposes of that division.
“Mr Russell contends that his conduct in the library in relation to Ms Tull was in self-defence and/or to obtain his property, being the papers that he contends were his privileged legal documents.
“A defence of this nature was raised by Mr Russell’s counsel on his behalf before Judge Mullaly. His Honour found that neither defence arose on the facts.
“To re-agitate the same defences, which his Honour found were not open on the facts, misapprehends the nature of judicial review under Order 56 of the Rules. “An application for judicial review under Order 56 is not a hearing de novo.
“The scope of judicial review does not extend to reviewing the merits of Judge Mullaly’s conclusion that the defence was not open, but is limited to the declaration and enforcing of the law.
“Judge Mullaly provided reasons for his conclusion that the defence was not open on the facts as found: the property consisted of documents printed on Council paper from a Council machine,
“Mr Russell was trespassing by being in the library at that time, and self-defence did not arise absent a threat to the property or himself.
“His Honour’s conclusion was plainly open on the facts as found and is supported by an evident and intelligible justification.
Inconsistent evidence
“Mr Russell contends that the evidence given by Ms Tull and Mr Bond in the County Court proceeding was inconsistent.
“In an affidavit sworn on May 13, 2019, Mr Russell contends that:
• 4 witnesses lied on oath & that the Murrindindi Shire Council are now shown to be complicit in an illegal act & to have scripted the entire event.
• The affidavit also refers to ‘extracts from his proposed court book’ and that, with the bundle of exhibits filed, these would prove ‘considerable inconsistencies of sworn evidence meant to deceive the court.’
“This ground also invites the Court to partake in merits review.
“It was open to Judge Mullaly to find that charges 1 and 3 were proved on the evidence given by Ms Tull and Mr Bond in the de novo appeal. “It was open to his Honour to prefer the evidence of Ms Tull and Mr Bond to the evidence of Mr Russell, and find that their evidence was credible.
Conclusion
“Mr Russell’s application for the relief sought in the originating motion filed on September 26, 2017 is dismissed.
“I shall provide the parties with an opportunity to make submissions on the costs of the proceeding.”