The ANU Debating Society

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ANU student fined for breaching restraining order

By MICHAEL BACHELARD

An ANU student found guilty of three breaches of a restraining order after he telephoned and threatened a female student was fined in the ACT Magistrates Court yesterday.

Alexander Marcel Andre Sebastian Bayliss, 22, of O'Connor was sentenced without the drama of a former sentencing on similar charges, when he put both his lawyer and his arresting police officer in the witness box.

However, Bayliss, who described himself as an ambitious young man, said from the witness box that the charges against him were the result of a conspiracy between the complainant and the police, under instructions from the ANU Debating Society. It was a conspiracy to pervert the course of justice," he said.

The charges before Mr Nicholl related to three breaches of a restraining order after he harassed the victim at ANU. Bayliss was convicted later by Chief Magistrate Ron Cahill for harassing telephone calls he made three days after his conviction. They were in breach of bail conditions set by Mr Nicholl not to contact the woman

He was given a two-month suspended prison sentences for these later breaches.

Bayliss spoke from the witness box yesterday, saying that he had an alibi for one of the breaches for which he had been convicted by Mr Nicholl. He said the prosecutor at his hearing had got the date of one of the breaches wrong. He had been asked where he was during the early hours of Wednesday, July 30. He said yesterday that July 30 had been a Thursday and he had an alibi for it.

The ANU debating society was guilty of libel, slander and defamation of him, he claimed, having published puerile propaganda in a society magazine. It was legal action about this that the complainant and the police were conspiring to prevent him proceeding with.

He complained also that police had spoken to him in vulgar and vernacular language.

Mr Nicholl said Bayliss's evidence was not helping decide on a sentence, but Bayliss was pointing out a number of inconsistencies which are of conservable interest to the court.

Bayliss’s counsel, Warren Donald, said his client had had a very traumatic past. He had been involved in a road accident in 1985 in which his sister had been killed, he had several months in a coma.

Mr Donald pointed to Bayliss’s manner and persistence which perhaps could aggravate some people, but which was responsible for his getting to university despite a difficult life. He indicated that Bayliss would appeal against his convictions.

Mr Nicholl convicted and fined him $100 on each of the three charges, and allowed him 12 months to pay.

MR G.D. WENDLER: Your Honour, I appear for the plaintiff. (instructed by John D Weller & Associates)

MR M.J. O’MEARA: May it please the Court, I appear for the defendants. (Australian Government Solicitor)

HIS HONOUR: Yes, Mr Wendler.

MR WENDLER: Since we were last before your Honour there has been prepared a draft case stated and that has identified two questions for consideration by the Full Court. There has also been filed a short minutes of order which - - -

HIS HONOUR: Yes, can you just explain one thing, Mr Wendler, to me? Looking at the Australian Crime Commission Act can you just look at section 30, in particular, subsection (5)? Now, my understanding is that the Commonwealth relies upon that, amongst other things, as an answer to your complaints as to impermissible interference with the Chapter III jurisdiction. How do you respond to that?

MR WENDLER: In this way. The first question is a construction question and we effectively embrace the treatment by Justice Mansfield at first instance and also Justice Spender in his dissenting judgment. The construction question will turn on the issue whether there has been effectively an abrogation of a fundamental right, namely that the administration of justice not be interfered with. The curial process once it is activated by the laying of a charge must take its normal course. So, irrespective of the section 30 and, indeed, other parts of Part II, Division 2, as a matter of construction our submission is that the Act does not make in clear and unmistakable terms the abrogation of that fundamental right.

So that is the construction question, irrespective of the use immunity position and irrespective of the fact that such evidence, once objection is taken, cannot be used in the curial process against the person being examined. So if the answer to that question is in the affirmative then, of course, that is not the end of the inquiry. That raises the issue as to whether there is a constitutional impediment arising out of Chapter III concerning whether or not the interrogation – parallel interrogation – of a person charged is an interference with either the implication of Commonwealth judicial power or, indeed, the exercise of it once a person has been committed for trial. So section 30 really begs the question, so to speak. I do not think it answers it. It is a matter of some importance - - -

HIS HONOUR: Yes, I understand that. So you fix upon, as it were, the concurrent activity?

MR WENDLER: Yes. If one breaks up the process you have an executive inquiry which leads to a charge. When that process is over the charge commences a judicial inquiry. Now, that judicial inquiry - there cannot be a parallel system, so to speak. In the history of Australian constitutional law the judges have jealously guarded their sphere of operation. It is not a situation where it has been subcontracted out, as it were, to a non-judicial officer so that will be the controversy before the Full Court.

HIS HONOUR: Anything you want to say on that point, Mr O’Meara?

MR O’MEARA: Just to add to the two parts of the Crime Commission Act which the defendants rely on – firstly, the section your Honour pointed out to Mr Wendler, that is section 30(5), which deals with the direct use, and secondly, section 25A(9), which permits an examiner to make - - -

HIS HONOUR: To give directions.

MR O’MEARA: To give directions and such a direction was made in this case. The contention of the defendants will be that the combination of those two things has the effect that there is no risk of the interference of judicial process.

HIS HONOUR: The provisions of that nature, those two sections, were not in the other legislation which was at stake in Hammond some years ago?

MR O’MEARA: No, and further there were some factual aspects of Hammond including, for instance, the presence of the police officers involved in the prosecution during the examination - the Commission which make it distinct from this case.

HIS HONOUR: All right, well I think I understand what you have both said. Now, the draft case states two questions. I will sign the case if it is re-engrossed without Draft on the front. That can be deposited with the Registrar and I will sign it in chambers and date it. Then there are submissions as to what order should be made of a procedural nature. Are they acceptable to both sides?

MR O’MEARA: They are yes, thank you.

HIS HONOUR: I think all I need to do then is make orders in terms of paragraphs 1, 2, 3, 4, 5, 6, 7 and 8 of the draft order accompanying the written submissions filed on 20 August by the plaintiff. Now, do I need to make any special provision about the anonymisation, if I can use that word, of the plaintiff?

MR O’MEARA: On the last occasion your Honour made an order for the anonymisation, so I think that has been taken care of.

HIS HONOUR: Right, and that will continue, I suppose, until further order. The only other order would be that the costs of today be costs of the case stated.

MR WENDLER: Just one other on that procedural matter, because the rules do not specifically set out the format of the submissions to be filed in such an application or process, I take it that we just follow form 27A, which is the appeal form, with the necessary adjustments? Regulation 27.8 deals with this type of proceeding, but the regulations do not deal, or nor do the forms deal with the format of the submissions.

HIS HONOUR: The format of the submissions would just be in the ordinary form, yes.

MR WENDLER: Form 27A with necessary adjustments, I assume?

HIS HONOUR: Yes, I think so.

MR WENDLER: Yes, thank you.

HIS HONOUR: All right. Is there anything else?

MR O’MEARA: Not for my part, your Honour.

HIS HONOUR: Thank you, gentlemen, I will now adjourn.

AT 10.03 AM THE MATTER WAS ADJOURNED

MR G.D. WENDLER: Your Honour, I appear for the plaintiff on the summons for directions. (instructed by John D Weller & Associates)

MR M.J. O’MEARA: May it please the Court, I appear for the defendants. (instructed by Australian Government Solicitor)

HIS HONOUR: Now, what is the position in this matter, gentlemen?

MR WENDLER: The first defendant has filed a - - -

HIS HONOUR: Proposed short minutes?

MR WENDLER: Yes, which I agree with, as being a sensible way to advance it.

HIS HONOUR: Very well. Now, is your client the defendant in these proceedings?

MR WENDLER: He is the plaintiff, obviously, in this matter, but - - -

HIS HONOUR: No, I mean in the criminal proceedings.

MR WENDLER: Yes, he is. That is right.

HIS HONOUR: Not just a witness?

MR WENDLER: No, no, he is not a witness. He is the defendant. I think he wishes he was a witness.

HIS HONOUR: Yes. Now, the Registrar has drawn to my attention a decision of the Western Australian Court of Appeal in a case called Saraceni v Jones decided on 16 March 2012. The electronic citation is [2012] WASCA 59. There is a pending special leave application in which Mr David Jackson is briefed. The question there is not the same, though it may be related. It was a question of the invalidity of 596A and 597 of the Corporations Act which confer power to summon for examination into the affairs of corporations.

MR WENDLER: Yes.

HIS HONOUR: It might be worth counsel having a look at that. It may be that the two proceedings have to be connected in some way, but that is for a future date.

MR WENDLER: Yes.

HIS HONOUR: All right, just pardon me a minute. Would Tuesday, 21 August at 9.30 be a convenient date, gentlemen?

MR O’MEARA: It is suitable for our client.

MR WENDLER: Yes, thank you.

HIS HONOUR: I have completed proposed order 5 so that it reads The matter be listed for further directions in Sydney at 9.30 am on 21 August 2012 before me. I will direct that a copy of these orders and the transcript of today be placed in the special leave file in the Saraceni matter which is P8/2012.

So the Court orders:

The plaintiff be identified in these proceedings by the use of the pseudonym X7.

The defendants serve on the plaintiff their proposed case stated on or before 10 July 2012.

The