Appealing the decision of David J in Rana v Police in question of law

FDN


IN THE SUPREME COURT OF SOUTH AUSTRALIA



No of



BETWEEN



Ranjit Shamsher Jung Bahadur Rana



Appellant



and



Police



Defendant





OUTLINE OF SUBMISSION





Date of document:



Filed by the appellant Ranjit S.J.B. Rana of Unit 1/25 Hackney Road, Hackney SA 5069





































Settled by Ranjit Rana



Date and time of filing or transmission:



OUTLINE OF SUBMISSION



Grounds seeking leave to appeal



"The learned judge:



(a) erred in law, discretion and fact in dismissing making the Restraining Order against the appellant when there were no grounds either in law or fact under sections 99 and 99C of the Summary Procedures Act 1921 (SA) for making the said order by the learned magistrate below him;



(b) erred in law in allowing the introduction of hearsay evidence ;



(c) erred in law in making the said order while effectively acknowledging while making

the order that there was no proper basis for it, and that as a matter of law it was not

appropriate;



(d) erred by comparing and contrasting the sworn affidavit by his motion and this was unfair and unreasonable to the appellant, as he had only been given access to the material just prior to the appeal hearing in Federal Administrative Appeals Tribunal, concerning the appellant’s Veteran’s disability pension claims under subpoena of Australian Government Solicitors."



The test for seeking to leave to appeal is per Rana v University of South Australia (2004) FCA 559 at [16]-[17] per His Honourable Justice Lander.



The appellant believes that the decision of His Honourable David is attended by sufficient doubt to warrant it being considered by the appellate court, and substantial injustice will result if leave were refused supposing the decision to be wrong.



1. This is ground (a) per seeking to leave to appeal. The appellant had argued that the unsworn and unsigned affidavit that was provided to the appellant by Police Prosecutor Hoang on 29/2/2008, which was contrary to s. 75 of the Evidence Act 1995 (Cth). This was in the outline of submission to the magistrate on 14/3/2008. The authority was known to the appellant per Rana v University of South Australia (2004) FCA 559 at [40] per His Honourable Justice Lander, which says, “An affidavit which is to be used on an interlocutory application may contain hearsay evidence if the party who adduces the evidence also adduces evidence of its source: s. 75 Evidence Act 1995 (Cth).” This material was also before His Honourable Justice David. His Honour simply overlooked the submission for an improper purpose. The learned judge at [18] of the judgment erred in law, fact and discretion and the particulars are:



(i) The unsworn and unsigned affidavit was provided to the appellant in 29/2/2008 and was inadmissible per s. 75 of the Evidence Act 1995 (Cth) in the interlocutory hearing, and the appellant did not know about the existence of the signed affidavit that was provided to him after 2/7/2008 under subpoena in Federal Administrative Appeals Tribunal. Thus, the appellant was prejudiced to prepare himself for confirmation hearing. Further, the learned magistrate refused discovery and issue of subpoenas to defend the allegations of the alleged victim.

(ii) The sworn affidavit also contains inadmissible evidence, as it is contrary to s. 75 of the Evidence Act 1995 (Cth). For example, at [14] of the judgment there is a reference that the appellant may have known at hearing date about the existence of the sworn affidavit. This is not supported by evidence, and was unreasonable. His Honour specifies that the alleged victim to be reliable that it was sent by the appellant to cause her fear of rape. However, it is inconsistent with Rana v University of Adelaide (No 2) [2008] FCA 494 at [2]-[8]. It could had come from the police (the alleged victim’s brother is a serving police officer) to harm the reputation of the appellant.

(iii) The learned magistrate whether the appellant attended the confirmation hearing or not would confirm the hearing as he had already sounded it on 24/1/2008, as to the emails allegation of the police intelligence that the alleged victim was going to raped by the appellant per [9] of the judgment in dot point in page 7, which says, “sent an email on 21 December 2007 threatening to rape the alleged victim;”. This is also to reference of the appellant’s reference in Rana v University of Adelaide (No 2) [2008] FCA 494 at [2]-[8]. The Court found unknown people falsely sent it (email of 21/12/2008 to Police and others, including the appellant). The above italics of the judgment of the learned judge is contrary to the sworn affidavit of the alleged victim. Such erroneous inference was unfair to the appellant for his assessment of the danger to the alleged victim in reference to the appellant’s disability. The exhibit “A” to support this notice of appeal in the appellant’s affidavit at [1] is the sworn affidavit of Nina Gregurev. The exhibit “B” of the appellant contains the reports of the appellant’s psychiatrist Professor Bal Jha and Dr. David Miller about the diabetes related disability of the appellant at [2] of the affidavit now before this Court. It was an error of fact of the learned judge to irrationally connect the appellant’s paranoid schizophrenia as to the foreseeable danger or potential danger or otherwise to the alleged victim purported to the issue of forced rape or otherwise as she inferred from the police. The details are lacking as to how, where, when and what basis.

(iv) The appellant has come to learn the police SA police and specifically Greg Hill has misled the court that actually the email was sent by Nina Gregurev to the appellant’s university as it appears in page 1 and last paragraph, and at page 4 to page 18 in the certificate identifying exhibit of Linley Martin in a matter between Rana Ranjit and Deakin University and Lin Martin in the Victorian Civil and Administrative Tribunal. This certificate related exhibit of Lin Martin will be exhibit “E” that matters the affidavit of this appellant in this appeal arising the fraud or deception or misleading information of the SA Police.

(v) Obviously, the SA Police and Nina Gregurev colluded and a pay back scheme was organized to get the appellant when they had failed before in to convict the appellant in false stalking charge. Apparenly, the police provided the Deakin University after notifying Nina Gregurev the threat of Rana was low. See the affidavit of Nina Geguerv dated 16/1/2008 at paragraph 20, which says, “20. On 21st December 2007, I received a telephone call from police officer advising us that police received an email from Rana stating that he intend to rape me. As a result, I have been left extremely scared and frightened and my mother has been staying at my house a lot more frequently.” The actual copy of the email that the appellant got about rape related email in his Deakin University’s email system is exhibit “C” in his affidavit at [2A] before this Court.

(vi) His Honour at [10], [11] and [12] of the judgment came to conclude by inference that the alleged victim was more believable than the appellant on balance of probabilities was. He emphasizes at [12] of the judgment that the appellant suffered from type-II diabetes mellitus and paranoid schizophrenia and was receiving treatment. Further, at [11] of the judgment, the learned judge indicated that alleged victims whether sworn and unsworn affidavits supported the fact that the appellant was dangerous to the alleged victim and the magistrate had all the basis of making of the order as he was correct in his forecast about the conduct and mental instability and related danger of the appellant, and so called hearsay evidence was immaterial per ss. 9 and 34C of the Evidence Act 1929 (SA).

(vii) The allegations of rape and that the appellant was or is Indian rapist Rajaratnam that the psychotic Nina Gregrev made to SA Police in 1996/97 is exhibit “E” in the affidavit of this appellant to show her inconsistency at paragraph 14 of the sworn affidavit Nina Gregurev that the judge believed to be such sufficient evidence and being reasonable on the part of the learned magistrate to confirm the restraining order at his judgment at [10]-[13]. This was unsatisfactory and unfair pronouncement and not supported by reasonable evidence. The affidavit now before this Court and exhibit “D” shows a recent greeting card from Nina Gregurev to the appellant at [4] of the affidavit. This is conclusive proof that she does not and never have feared the appellant and is only a beat up making believe of the police.

(viii) The learned judge erred contrary to his in-depth knowledge of Rana v Hyatt Regency Hotel Ltd [2007] SASC dated 19/1/2007 also involved Nina Gregurev and related Hyatt Gym. He upheld the appeal from the same magistrate at [39]-[42]. It was upheld based on s. 52A of the Trade Practices Act and involved a security guard and a fried of Nina Gregurev. Such was the learned judge’s fair application to law as he found that the appellant was not danger to himself and the public as alleged by the Hyatt Hotel and its staff. The appellant had also cited a past decision of His Honourable Justice Bollen of the SA Supreme Court in an appeal of Deepak Bista that was a restraining order of the appellant against Mr. Bista. The appeal of Mr. Bista failed as he called the appellant mad when in fact he was not in 1995 (this decision is unreported). It was appeal made by the learned magistrate in Port Adelaide Mgistrates Court, and the appellant’s psychiatrist had provided a report (Dr. Alan Cotton) indicating the appellant was not danger to himself and others. This occasion the learned judge erred in his discretion in applying to the erroneous and/or inadmissible facts the wrong legal rule. See Norbis v Norbis (1986) 161 CLR 513 at 519. Thus, leave to appeal should be allowed. The exhibits “E” and “F” in the affidavit material before this Court clearly negates the hearsay evidence of Nina Gregurev be it sworn and unsworn that I never sent her alleged rape threat laden email to her “but for” the police.



In sum, from (i) to (viii) points shows that the appellant has reasonable cause of action and is arguable, and such the prospect of success in probably reasonable, and accordingly this court should grant leave to appeal in the interest of justice.



2. This is per ground (b) of the appeal (the judge erred in law in allowing the

introduction of hearsay evidence). His Honour overlooked the outline of

submission of the appellant before him and the learned magistrate. The appellant

had clearly argued the precedent known to him in Rana v University of South Australia (2004) FCA 559 at [40] relating to s. 75 of the Evidence Act 1995 (Cth). The same case also involved allegation of rape by the psychotic Nina Gregurev and the appellant had been alleged in that university many things and to this date no police has convicted him about her allegations and/or the university ever took any action against him about her email related vexatious allegations. The learned judge did judicial analysis of both sworn and unsworn affidavits of Nina Gregurev, when it was not necessary in fact and law and only his erroneous discretion. The appellant’s argument that the unsworn affidavit was not known in law was not properly considered. The accepted evidence by the learned magistrate and the learned judge was scant and insufficient per Hasluck J in Smith v Vivian [2002] WASCA 227 (24 July 2002) at [47]-[58]. Thus, leave to appeal should be allowed. Furthermore, it was inadmissible in law. Significant miscarriage of justice has occurred or is occurring to the appellant or will occur to the appellant arising this known fact. See also Gleeson CJ in R v Frawley at 220 concerning the question of hearsay evidence. This is at [34] of R v Ramage [2004] VSC 391. They are related to hearsay evidence, statement of the mind of the accused at the relevant time and much more.



3. This is ground (c) of the leave to appeal (erred in law in making the said order

while effectively acknowledging while making the order that there was no proper basis for it, and that as a matter of law it was not appropriate). His Honour Justice David is not being consistent with this matter and what he ruled in Rana v Hyatt Regency Hotel Ltd [2007] SASC dated 19/1/2007, which also involved Nina Gregurev and related Hyatt Gym (allegations of knife stabbing threat). He upheld the appeal from the same magistrate. Now, how is he saying that the appellant is a danger to the alleged victim with no reasonable and satisfactory evidence in law was just not there? What admissible evidence was there in making a justifiable future prediction that the appellant would be unless restrained would do all the kinds of things that the alleged victim alleges so that the threshold test would be met? This matter is not like Suter v Suter [2003] WASCA 169 (1 August 2003) at [13], which says, “Hearsay evidence

13 It is submitted that his Worship erred in admitting evidence given by the

respondent that the appellant had told her that he had been violent to a former wife. During the course of argument on the appeal, I accepted that, if such evidence had been given for the purpose of establishing its truth, that is, if it had been given in order to establish that the appellant had been violent to a former wife, the admission of the evidence was in error. The use made of that evidence by his Worship appears to have been twofold. On p 17 of the appeal book he refers to confirmation, apparently recently received by the respondent as to the appellant's conduct in the former marriage, as a factor tending to suggest that the fear which she expressed was "genuine and sincere". The question of the genuineness of the respondent's fear was not a central issue which his Worship had to decide. Section 11 of the Restraining Orders Act requires the making of a prediction as to the future behaviour of a respondent to an application, which finding rests upon the satisfaction of the court, not upon any subjective fear of the applicant for the order and therefore assists in determining the issues which do arise under s 11 of the Restraining Orders Act. In my view, at that passage at p 17, his Worship was looking not to the question of whether such violent conduct had occurred in

the previous marriage, but rather to the respondent's state of mind. Information which she had received, accurate or not, would be relevant and admissible for that purpose.”



There was no evidence before the learned judge or the magistrate that the appellant by his psychiatric and diabetes career has had convictions of violence or if any restraining orders exists, and as such would give any basis for the making of the order. This in terms of some reasonable hypothesis or evidence or any justifications. Thus, the Court should allow leave to appeal in this matter.



4. This is per ground (d) of seeking leave to appeal (erred by comparing and contrasting the sworn affidavit by his motion and this was unfair and unreasonable to the appellant, as he had only been given access to the material just prior to the appeal hearing in Federal Administrative Appeals Tribunal, concerning the appellant’s Veteran’s disability pension claims under subpoena of Australian Government Solicitors).



This ground is argued upon the basis that the appellant had only produced the sworn affidavit of Nina Gregurev that he obtained from the subpoena of the Australian Government Solicitors at AAT after 2/7/2008. The appellant had argued before the learned judge that this affidavit is being tendered to show how disadvantaged he would had been at confirmation hearing without knowing the existence of the sworn affidavit in terms of greater details consisting of further hearsay evidence and contrary to s. 75 of the Evidence Act 1995 (Cth). The basis of the tendering the sworn affidavit was not for the learned judges own introduction of comparing and contrasting test to arrive at a conclusion whether it was prejudicial and probative to the forecasting of alleged danger to the alleged victim by the appellant based on his self confessed lunacy of paranoia etc.



The learned judge was unfair by his motion to apply the comparing and contrasting of the sworn and unsworn affidavits of Nina Gregurev for predicting the danger or harm or known or otherwise intimidation, harassment or stalking misconduct or any such items that may or likely occur in the future were contained in the materials for reasonable use of making of the confirmation order by the learned magistrate or the learned judge. This aspect of new parameter being introduced in the appeal was impermissible in law at the de novo hearing. Why?

Because, it was unfair and unreasonable to the appellant. See Minister of Immigration and Ethnic affairs v Eshetu (1999) 197 CLR 611.



Conclusion

The appellant argues that there is reasonable prospect of success for the appeal to succeed. This is based per the test related criterion have been met. The decision is manifestly unreasonable and is very doubtful. If it is allowed to stand then the appellant will suffer significant miscarriage of justice, and in future grave police related brutality.



Date:





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Appellant Ranjit Rana