IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
Judicial Review and Appeals List
S ECI 2022 00396

VASILIOS KYRIAZIS	Plaintiff	
		
v 		
		
VICTORIA POLICE	First Defendant	
		
MAGISTRATES’ COURT OF VICTORIA 	Second Defendant	

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JUDGE:	Ginnane J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	10 June 2022	
DATE OF JUDGMENT:	6 October 2022	
CASE MAY BE CITED AS:	Kyriazis v Victoria Police 	
MEDIUM NEUTRAL CITATION:	[2022] VSC 596	

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JUDICIAL REVIEW – Magistrates’ Court hearing of charge under the Road Safety Act 1986 – Procedural fairness – Exchanges between plaintiff and Magistrate – Magistrate’s authority to decide how the proceeding was conducted – Plaintiff leaving courtroom – Charge heard and determined – No denial of procedural fairness – Sentencing Act 1991 s 76; Charter of Human Rights and Responsibilities Act 2006 ss 8, 25; Criminal Procedure Act 2009 ss 39(1), 53, 80, 84, 88, 256.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	In person		
			
For the First Defendant	Mr L McAuliffe 	Solicitor for Public Prosecutions	

HIS HONOUR:
1	The plaintiff, Mr Vasilios Kyriazis, seeks judicial review remedies to quash an order made by a Magistrate at the Broadmeadows Magistrates’ Court on 7 February 2022. His principal ground is that he did not receive a fair hearing.
Background
2	On 5 March 2021, Mr Kyriazis was charged with failing to provide a sample of oral fluid for testing pursuant to s 49(1)(eb) of the Road Safety Act 1986 on 16 January 2021 at a roadside drug test at Dallas. The charge was mentioned at the Broadmeadows Magistrates’ Court on 17 June 2021.
3	The charge was listed for a contested summary hearing on 7 February 2022 at the Court. The result of the hearing was that the Magistrate found that the charge was proved and dismissed it under s 76 of the Sentencing Act 1991, but imposed a mandatory licence cancellation of two years.
4	As the outcome of this proceeding turns on what occurred in the courtroom and the exchanges between Mr Kyriazis and the Magistrate, I will set out the transcript starting at the beginning of the hearing:
HER HONOUR:	Are you Vasilios Kyriazis?
MR KYRIAZIS:	Yes, I am, yes.
HER HONOUR:	Do you live at [omitted]?
MR KYRIAZIS:	No.
HER HONOUR:	Okay. Is your date of birth [omitted]?
MR KYRIAZIS:	That’s right.
HER HONOUR:	What’s going on Mr Kyriazis?
MR KYRIAZIS:	I don’t know, someone needs to explain it to me. Someone needs to explain it to me. Before we go on, I have a preliminary issue.
HER HONOUR:	No, Mr Kyriazis.
MR KYRIAZIS:	Now, I have a preliminary issue - - - 
HER HONOUR:	Mr Kyriazis. You will not - - -
MR KYRIAZIS:	You’re yelling at me.
HER HONOUR:	You will not - - -
MR KYRIAZIS:	You’re yelling at me, are you?
HER HONOUR:	You will not point your finger - - -
MR KYRIAZIS:	I’m not pointing, I’m - - -
HER HONOUR:	- - - at me.
MR KYRIAZIS:	- - - pointing in the air.
HER HONOUR:	And you will not talk to me like that.
MR KYRIAZIS:	Sorry, well I need your name - - - 
HER HONOUR:	This is a summary offence - - -
MR KYRIAZIS:	I need your name, what’s your name.
HER HONOUR:	- - - you leave this Court and I will hear it - - - 
MR KYRIAZIS:	I am leaving and I’m going directly to the prothonotary. 
HER HONOUR:	And I will hear it in your absence.
MR KYRIAZIS:	You won’t hear it in my absence, not at all. 
HER HONOUR:	I will. If you leave, that’s your choice to leave, but I will hear this - - -
MR KYRIAZIS:	I’ve got preliminary issues - - -
HER HONOUR:	- - - in your absence.
MR KYRIAZIS:	- - - that I need to ask you and you’re not giving me an opportunity. That’s what you’re not doing.
HER HONOUR:	Yes, because you are being aggressive; it is not okay.
MR KYRIAZIS:	No, I’m not being aggressive at all.
HER HONOUR:	It is not okay - - -
MR KYRIAZIS:	Because you are . . . me.
HER HONOUR:	- - - to talk to me - - - 
MR KYRIAZIS:	You won’t allow me to talk. You won’t allow me to talk. 
HER HONOUR:	Not when you talk like that to me.
MR KYRIAZIS:	I’m trying to - - - 
HER HONOUR:	And behave like that in this Court.
MR KYRIAZIS:	Like what? What am I behaving like? I’m going to need the recording. I’m going to need the recording.
HER HONOUR:	When you calm down, I’ll talk.
MR KYRIAZIS:	When I – you’re the one that’s - - - 
5	The hearing was adjourned for a short time and upon resuming the discussion continued as follows:
HER HONOUR:	So, you know Mr Kyriazis, that’s what will happen.
MR KYRIAZIS:	It’s Kyriazis.
HER HONOUR:	Kyriazis.
MR KYRIAZIS:	Yes, that’s right and - - -
HER HONOUR:	That’s - - - 
MR KYRIAZIS:	- - - I have some preliminary - - -
HER HONOUR:	Listen.
MR KYRIAZIS:	- - - issues that I need to discuss before we - - -
HER HONOUR:	I’m about to go out again.
MR KYRIAZIS:	I have some preliminary issues - - - 
HER HONOUR:	I’m about to go out again - - -
MR KYRIAZIS:	- - - I’m raising an objection.
HER HONOUR:	I’m about to go out again.
MR KYRIAZIS:	I’m raising an objection.
HER HONOUR:	I’m about to go out again.
MR KYRIAZIS:	Why are you going out again?
HER HONOUR:	Because you are hostile and you are aggressive.
MR KYRIAZIS:	Okay, thank you for that, I’m going to need to pick up the recording of that, I need your name. Can you tell me what your name is please?
HER HONOUR:	And I’m just going to make a record - - - 
MR KYRIAZIS:	Could you tell - - - 
HER HONOUR:	- - - of what’s happening here - - - 
MR KYRIAZIS:	You can, that’s why you - - -
HER HONOUR:	When Mr Kyriazis - - -
MR KYRIAZIS:	stopped me recording. What’s been happening here - - -
HER HONOUR:	- - - came to the court room this morning, he refused to sit down at the bar table. He stood next to - - - 
MR KYRIAZIS:	I can’t sit down at the bar table because I - - -
HER HONOUR:	He stood next to - - -
MR KYRIAZIS:	I have a bag.
HER HONOUR:	He stood next to the witness stand and started pointing at me aggressively.
MR KYRIAZIS:	I didn’t point at you.
HER HONOUR:	And talking over - - -
MR KYRIAZIS:	I didn’t point at you aggressively. 
HER HONOUR:	- - - me when I tried to talk to him. He has continued to do that, it has meant that I have had to leave the court room and he is now roaming and strutting around the Court, again acting in an aggressive - - -
MR KYRIAZIS:	I’m not aggressive.
HER HONOUR:	- - - and antisocial way.
MR KYRIAZIS:	And annoyed at this behaviour. 
HER HONOUR:	This is unique for a person to come in to the Court - - -
MR KYRIAZIS:	No, it’s not.
HER HONOUR:	- - - and behave in the way in which he has behaved.
MR KYRIAZIS:	You’re exaggerating, you’re exaggerating and garnishing thank you. There are no aggressions, none at all. You’ve set me up, you’ve brought me into a courtroom after telling me that nothing’s happening and you can go home, we’re just going to adjourn it. Mr Sheales, Mr Sheales organised this. You brought me in here for no reason.
HER HONOUR:	Who are you referring to - - - 
MR KYRIAZIS:	Two, I haven’t finished - - - 
HER HONOUR:	- - - Mr Sheales?
MR KYRIAZIS:	- - - can I have some – hello?
HER HONOUR:	Who’s Mr Sheales?
MR KYRIAZIS:	You don’t know who Mr Sheales? He’s your senior registry.
HER HONOUR:	Are you talking about Damian Sheales?
MR KYRIAZIS:	He’s your senior registry?
HER HONOUR:	Joseph, yes.
MR KYRIAZIS:	Great, you know him as Joseph but you don’t know him as Mr Sheales, okay.
HER HONOUR:	No, actually I don’t.
MR KYRIAZIS:	Very well, well I can't help that. So, now I have some preliminary issues to discuss before anything happens. Is that going to happen?
HER HONOUR:	Now we are continuing with rhetorical, aggressive - - - 
MR KYRIAZIS:	That was not aggressive.
HER HONOUR:	- - - statements - - -
MR KYRIAZIS:	I’m asking a question - - -
HER HONOUR:	- - - that are inappropriate - - -
MR KYRIAZIS:	- - - and you’re exaggerating - - -
HER HONOUR:	- - - for the Court - - -
MR KYRIAZIS:	- - - you’re exaggerating my behaviour - - - 
HER HONOUR:	- - - and this has happened - - -
MR KYRIAZIS:	- - - and you’ve brought me in here unnecessarily.
HER HONOUR:	- - - - in an extreme way for the moment - - -
MR KYRIAZIS:	No, it’s not extreme - - -
HER HONOUR:	- - - that Mr - - -
MR KYRIAZIS:	It’s not extreme at all.
HER HONOUR:	- - - Kyrias [sic] came into Court.
MR KYRIAZIS:	No, it’s Kyriazis not Kyrias. Thank you. Now, you have an issue - - -
HER HONOUR:	I haven’t brought you into Court - - -
MR KYRIAZIS:	- - - about me pointing.
HER HONOUR:	- - - sir.
MR KYRIAZIS:	You have an issue about me pointing. What you’ve stated is - - - 
HER HONOUR:	And Mr - - -
MR KYRIAZIS:	- - - because I’m pointing, you feel threatened - - - 
HER HONOUR:	- - - Kyrias has said this - - - 
MR KYRIAZIS:	- - - and I can’t help you.
HER HONOUR:	- - - while he - - -
MR KYRIAZIS:	You’ll have to stand down.
HER HONOUR:	- - - has - - -
MR KYRIAZIS:	I don’t want you to hear this matter.
HER HONOUR:	While he has - - -
MR KYRIAZIS:	You'll need to recuse yourself; you haven’t given me your name. I've got no documents here. You won't allow me my assistances. You won't allow me to present my preliminary issues, as far as I'm concerned, I'll be dealing with the misbehaviour of this Court today and I'll be going directly to the prothonotary for the record and I'm going to come down there - - -
HER HONOUR:	Sir.
MR KYRIAZIS:	I’m going to go down - - -
HER HONOUR:	It is - - - 
MR KYRIAZIS:	I haven’t finished.
HER HONOUR:	It is - - - 
MR KYRIAZIS:	I’m going to go downstairs - - -
HER HONOUR:	It is terrible - - -
MR KYRIAZIS:	- - - and I’m going to ask for the recording. You won’t allow me my - - -
HER HONOUR:	It’s just terrible - - -
MR KYRIAZIS:	- - - recording in here - - - 
HER HONOUR:	- - - that you would do this.
MR KYRIAZIS:	If you proceed me, I’m going directly to the prothonotary.
HER HONOUR:	And I’m going to hear - - - 
MR KYRIAZIS:	I’m not doing anything and so; don’t make out like I’m doing anything.
HER HONOUR:	And I am going to hear it in your absence.
MR KYRIAZIS:	If you hear it in my absence and determine it - - -
HER HONOUR:	I am.
MR KYRIAZIS:	- - - I’m ging to put your job on the line, I’ll tell you - - -
HER HONOUR:	I am.
MR KYRIAZIS:	Thank you hey, you do that, have a good day. Bye, I’ve had enough of this. I want the recording.
HER HONOUR:	Is there a police application to hear this ex parte or are you seeking an adjournment given?
MR MCCAR:	I think it's appropriate for Mr Kyriazis to be at the hearing. I expect that any - well I'm just trying to think about what's the easiest way for this proceed. I could ask the matter be heard ex parte. I would need to as I understand, my witnesses are - I'm not sure if they're online yet. I'm just not sure what the facility of adjourning is going to be, so if we can hear the matter ex parte, I can either provide a copy of the brief of evidence - - -
HER HONOUR:	Can you please tell Kaitlyn that him leaving the Court and not returning to the courtroom, I am treating as a non-appearance. That is his choice to leave. I have – I am refusing his application to recuse myself. I have dealt with the main issue, which is his aggression and hostile behaviour which I am permitted to do to control the Court. It hasn’t got to listening to his preliminary issues because of his misbehaviour and it is behaviour that no Court should have to – should be confronted with or have to deal with. So, if there’s an application to hear this ex parte, I will hear it.
6	The Magistrate then adjourned the hearing for a short time. Upon resuming, the Magistrate stated that Mr Kyriazis had left the court building. A Court registry officer then gave evidence that he had acted on the Magistrate’s instructions and informed Mr Kyriazis that she had refused his application to recuse herself and that the matter would be recalled and the case would be heard that day. The prosecutor, a police sergeant, applied for leave to have the matter heard ex parte and the Magistrate granted the application. The matter was then heard and determined in Mr Kyriazis’ absence. The prosecutor called three police witnesses including the informant. The Magistrate stated that after hearing their evidence, she was satisfied that the offence did occur on the date and time alleged, that Mr Kyriazis was the driver of the vehicle, that the police officer had the power to request him to provide a sample of oral fluid for testing, that a police officer formed the view that because the first sample was ‘extremely dry’ it did not constitute a sample, that the police officer had the power to request a second test and that Mr Kyriazis refused to comply with that requirement. The Magistrate was satisfied, based on the totality of the circumstances, that Mr Kyriazis’ refusal amounted to a clear refusal under the legislation to provide a sample. 
7	The Magistrate found the matter proved and made the following order:
Dismissed. 
DISMISSED UNDER SN 76 SENTENCING ACT
Order that the offender’s licence be cancelled. Offender is disqualified from driving in the State of Victoria for a period of 2 years.
Order on licence effective from 07/02/2022
…
Remarks 	No Plea Taken
	 	NO APPEARANCE
8	On 17 March 2022, I conducted a directions hearing in this judicial review proceeding and refused Mr Kyriazis’ application for a stay of the Magistrate’s order of 7 February 2022. 
Mr Kyriazis’ grounds 
9	Mr Kyriazis filed an originating motion on 9 February 2022 in which he sought judicial review of the Magistrate’s orders. He stated the grounds on which he relied in the following terms: 
On the day of the court I was refused entry, refused my recorder and my assistant in the court. I was then taken before Mag Burchill whom refused to allow my application to Court Security Act 1980 Vic 4A (4a), would not allow me to talk, I explained I can’t sit down I have medical issues, refused my objection, and threatened to hear the matter ex parte, refused to stand the matter down in order for me to approach the prothonotary. Heard the matter ex parte and applied s 76 sentencing act 1991 when it wasn’t open for her to do so. There was no informant, witnesses, evidence nor was I given a full brief. 
10	The primary issue before this Court is whether Mr Kyriazis was accorded procedural fairness or natural justice at the hearing before the Magistrate. 
Mr Kyriazis’ submissions
11	Mr Kyriazis filed four affidavits relevant to this proceeding and they reveal the following matters. On 17 June 2021, the charge was listed for mention. Mr Kyriazis said that when he arrived at the Broadmeadows Magistrates’ Court, he spoke to Sergeant Brooks, the prosecutor. The Sergeant told him that he was required to sign a ‘Form 12: Request for Contested Summary Hearing’. Mr Kyriazis refused to sign this form, but Sergeant Brooks signed it. As completed, presumably by the Sergeant, it stated Mr Kyriazis was not legally represented, that a summary case conference had been held, that he consented to summary jurisdiction, that there was a factual dispute about conduct, presumably relating to the charge, that Mr Kyriazis had a constitutional argument, that a full brief had yet to be provided, that he admitted driving, that he was the person stopped by police and the time, date and place specified in the charge, that three police witnesses were required, being the informant, corroborator and another police officer and that Mr Kyriazis had two witnesses. Mr Kyriazis submitted that Sergeant Brooks was acting judicially, and acting contrary to s 53 of the Criminal Procedure Act 2009, which entitled him to see a Magistrate. Section 53 states:
Mention hearing
At a mention hearing, the Magistrates’ Court may – 
(a)	if the offence is an indictable offence that may be heard and determined summarily, grant a summary hearing;
(b)	proceed immediately to hear and determine the charge;
(c)	fix a date for a contest mention hearing;
(d)	fix a date for a summary hearing of the charge;
(e)	make any other order or give any direction that the court considers appropriate.
12	Mr Kyriazis submitted that he asked to see a Magistrate on the mention day and also indicated that he would be making a constitutional argument. That was that under s 80 of the Australian Constitution he was entitled to trial by judge and jury. He was not given the opportunity to appear before a Magistrate. Mr Kyriazis also orally requested a copy of the full brief of evidence, however he did not receive it. However, there was no evidence that he gave the informant a written notice requesting a full brief as s 39(1) of the Criminal Procedure Act requires.
13	The summary hearing of the charge was listed for a contested hearing on 7 February 2022 at the Magistrates’ Court. Mr Kyriazis arrived at the Court at 9:30am. His evidence was that a security officer told him that the hearing would be adjourned as persons were not being allowed into the Court, as it was ‘closed’, perhaps because of COVID restrictions. The security officer told Mr Kyriazis that he would be required to complete a ‘Broadmeadows Magistrates’ Court Triage Appearance Sheet’, which required him to complete details, giving his name and contact details and information about ‘how you would like to proceed’, including whether he was seeking an adjournment, his plea, details of his lawyer and whether he required an interpreter. Mr Kyriazis wrote on the Sheet words indicating that he was seeking an adjournment because of ‘non-appearance by police’. He signed and dated the Sheet.
14	Mr Kyriazis’ evidence was that a Court registry officer then notified him that his matter would be heard at 2:30pm that day. However, a few moments later, he was informed that the hearing would commence at 10:00am. Mr Kyriazis then made two requests, first, to record the hearing, with a private recorder that he kept on his person, and second, that his ‘next friend’ be allowed to enter the courtroom to assist him. A Court registry officer informed him that the Magistrate had refused both requests. Mr Kyriazis was then approached by a Protective Service Officer who told him that ‘in no way will [he] allow [Mr Kyriazis] into the courtroom with [his] recorder’. 
15	Mr Kyriazis then entered the courtroom, without his recorder and his next friend. The hearing commenced and the transcript set out above recorded what was said. Mr Kyriazis submitted that under s 25 of the Charter of Human Rights and Responsibilities Act 2006, the Magistrate was required to provide him with some form of explanation of the proceeding, but did not do so. That section states:
25 	Rights in criminal proceedings
(1)	A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
(2)	A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees—
(a)	to be informed promptly and in detail of the nature and reason for the charge in a language or, if necessary, a type of communication that that person speaks or understands; and
…
16	Mr Kyriazis submitted that the Magistrate did not explain ‘what was going on’ and that he continued to assert that he had preliminary issues to discuss. The Magistrate alleged that he was aggressive, hostile, refused to sit down, and was standing in the incorrect position, namely at the witness stand. He explained to this Court that he was unable to sit down due to a medical condition, and submitted that standing in an incorrect position whilst addressing the Magistrate did not warrant her confrontational reaction, or her allegations that he was acting in an aggressive manner. 
17	During the hearing in this Court, an audio recording of the Magistrates’ Court hearing was played from the time the hearing commenced to the time in which he left the courtroom. 
18	Mr Kyriazis disputed that the behaviour that the Magistrate described as recorded in the transcript, such as, Mr Kyriazis ‘pointing at [her Honour] aggressively’, ‘talking over [her Honour]’, ‘roaming and strutting around the Court’ and ‘acting in an aggressive and anti-social way’, actually occurred. Protective Service Officers were not called, nor was there any attempt to have him removed. Mr Kyriazis submitted that the Magistrate’s approach to the hearing demonstrated that she was acting on a preconceived idea of his character and that she was acting based on her personal beliefs.
19	Mr Kyriazis referred to the Magistrate’s orders dismissing the charge under s 76 of the Sentencing Act 1991. As previously set out, her Honour ordered:
Dismissed. 
DISMISSED UNDER SN 76 SENTENCING ACT
Order that the offender’s licence be cancelled. Offender is disqualified from driving in the State of Victoria for a period of 2 years.
Order on licence effective from 07/02/2022
…
Remarks 	No Plea Taken
	 	NO APPEARANCE
The charge was dismissed under s 76 of the Sentencing Act 1991 that states:
Unconditional dismissal
A court, on being satisfied that a person is guilty of an offence, may (without recording a conviction) dismiss the charge. 
20	Mr Kyriazis submitted that regardless of the fact that the matter was heard ex parte, he did not take a plea of guilty, and therefore it was not open to the Magistrate to apply s 76 of the Sentencing Act 1991.
The First Defendant’s submissions
21	The first defendant referred to the principle that it is a fundamental obligation of every court to ensure a fair hearing for all parties. He also referred to Riordan J’s statement in Boros v O’Keefe, as to how the right to be present at a hearing may be lost:
The accused has a fundamental right to be present. This fundamental right is only lost if it becomes necessary by reason of the accused abusing the right to be present. The loss of this right may occur where the accused uses his or her right to be present to obstruct the proceeding in such a way that it is necessary for him or her to be removed to enable the proceeding to be completed. Where an accused is, by his or her outrageous behaviour, preventing a proceeding from continuing, a court may remove such an accused so as to avoid the consequence of being unable to complete a proceeding.
22	The first defendant submitted that the content of the obligation to ensure a fair hearing for self-represented litigants varies according ‘to the particular capabilities and attitudes of the self-represented litigant’. However, ‘[b]eing unrepresented is not a free pass to misbehave, flout the legal or procedural rules, ignore the law of evidence or to treat the trial judge and witnesses with disrespect or contempt’.
23	The first defendant submitted that the issues that Mr Kyriazis raised about the mention were not relevant to his challenge to the hearing on 7 February 2022. Mr Kyriazis had no right to record the hearing unless the Court gave him permission. But that was the only request that the Magistrate refused, as it was unclear who had denied Mr Kyriazis’ request to have his assistant in the courtroom.
24	The first defendant submitted that although Mr Kyriazis was a self-represented litigant, he was aware of and understood court procedures. In Doughty-Cowell v Kyriazis, he had appealed an order of the Magistrates’ Court to the County Court under s 254 of the Criminal Procedure Act. The first defendant relied on the Court of Appeal’s statement about Mr Kyriazis’ knowledge of court processes and procedure:
Mr Kyriazis was not a naïve litigant. He subpoenaed documents; he was obviously aware of the order of evidence; and he made a conscious decision to withdraw from the proceeding, making repeated references to his intention to go to ‘the Prothonotary’ in order to challenge the conduct of Judge Chettle in another forum. While Mr Kyriazis demonstrated misperceptions about particular matters from time to time – for example, that he needed the judge’s leave to approach the Prothonotary – there is nothing in the transcript that suggests he was in any way uninformed about the essential elements of the process he was engaged in. On the contrary, he was well aware of his right to lead evidence and to cross-examine, and he showed an obvious familiarity with procedure when he purported to object to leading questions. 
25	The first defendant submitted that Mr Kyriazis was disingenuous from the outset of the hearing. The Magistrate commenced the proceeding with an open-ended question ‘[w]hat’s going on Mr Kyriazis?’. Mr Kyriazis’ response that he did not know and that ‘someone needs to explain it to me’ stood in contradiction to his own affidavits before this Court illustrating that he knew the case was proceeding as a contest on that date. The first defendant relied on the Magistrates’ recall of events as she stated them when the proceeding resumed after the first short break. That statement occurred while the Magistrate and Mr Kyriazis were both talking so the transcript does not record the statement in an uninterrupted manner. But joining the Magistrate’s words together, the effect of what she stated was: 
[w]hen Mr Kyriazis came into the courtroom this morning, he refused to sit down at the bar table. He stood next to the witness stand and started pointing at me aggressively. And talking over me when I tried to talk to him. He has continued to do that, it has meant that I have had to leave the courtroom and he is now roaming and strutting around the Court, again acting in an aggressive and antisocial way. This is unique for a person to come in to the Court and behave in the way in which he has behaved. 
26	The first defendant conceded that the Magistrate was speaking in a stern and louder voice, however that was when Mr Kyriazis was talking over her. He also relied on her Honour’s references to Mr Kyriazis pointing his finger at her. He submitted that Mr Kyriazis adopted a confrontational tone throughout the hearing, and, in an effort to defuse the situation, the Magistrate adjourned the Court. Upon the Court resuming, Mr Kyriazis continued talking over the Magistrate and did not allow her to speak uninterrupted. Her Honour made it abundantly clear that if Mr Kyriazis was to leave the courtroom, the matter would be heard in his absence. 
27	The first defendant submitted that the Magistrate did not fail to accord Mr Kyriazis procedural fairness in refusing to permit his aggressive and hostile behaviour in the courtroom. The circumstances confronting the Magistrate included Mr Kyriazis talking about going to the Prothonotary for an appeal and putting the Magistrate’s ‘job on the line’.
28	The first defendant disputed that Mr Kyriazis had a right to trial by jury for the summary charge that he faced.
29	So far as Mr Kyriazis’ submission that he did not receive a full brief of evidence prior to the hearing, the first defendant submitted that there was a preliminary brief and that ss 80 and 84 Criminal Procedure Act permitted the Court to deal with a summary matter in the absence of an accused and whether or not a full brief was served. 
30	The first defendant submitted that Mr Kyriazis had the right to apply for a re-hearing at the Magistrates’ Court by virtue of s 88 of the Criminal Procedure Act. In addition, s 254 of the Criminal Procedure Act provides a right of appeal from the Magistrates’ Court to the County Court against convictions and sentences imposed by the court; or the sentence alone.
Analysis
31	The main issue is whether Mr Kyriazis was accorded procedural fairness at the hearing before the Magistrate.
32	Mr Kyriazis was entitled to be provided procedural fairness in the hearing before the Magistrate, as the ‘right to procedural fairness – to a fair trial – is a fundamental right of each accused’. Section 25 of the Charter also gave him that right.
33	The content of procedural fairness in a case like this is influenced by the ‘particular capabilities and attitudes of the self-represented litigant’. The Court must ensure that a self-represented litigant has a reasonable opportunity to present their case and, if necessary, be informed of what issues need to be addressed. But a self-represented litigant is not given free rein as to how they conduct themselves in a hearing. As the Western Australian Court of Appeal stated in O’Connell v The State of Western Australia, a case on which the first defendant relied:
An unrepresented accused cannot deliberately take advantage of this position to conduct him or herself in a way that would not be acceptable from defence counsel. Being unrepresented is not a free pass to misbehave, flout the legal or procedural rules, ignore the law of evidence or to treat the trial judge and witnesses with disrespect or contempt. Where an unrepresented accused acts or attempts to act in any of these ways, a trial judge must fairly and, if necessary, firmly deal with such behaviour. The extent to which a trial is regarded as fair will be examined in the light of the accused's own conduct.
34	In my opinion, based on the transcript and audio-recording of the hearing and the submissions made about them, Mr Kyriazis was not denied procedural fairness. After initial questions to confirm his identity, the Magistrate asked the open ended question ‘What’s going on Mr Kyriazis’. The hearing then appears to have become somewhat heated with Mr Kyriazis wanting to raise a preliminary constitutional point about his rights under s 80 of the Constitution, which would have had no substance. The Magistrate resisted Mr Kyriazis’ demands that this point be determined first. Mr Kyriazis consistently talked over, or interrupted, the Magistrate, while she was speaking to him. The Magistrate also considered that Mr Kyriazis was pointing at her and acting aggressively.
35	Within the first minute of the hearing, the Magistrate told Mr Kyriazis that the matter would be heard in his absence if he left the courtroom and that, if he did, he would be leaving of his own accord. But, the Magistrate soon took the appropriate step of taking a short adjournment to defuse the situation.
36	In the audio-recording, the Magistrate is heard stating ‘when you calm down I’ll talk’. Once the hearing resumed, it progressed in the same tone as it commenced. Both the transcript, and the audio-recording, contain the Magistrate’s statement that the matter would be heard in his absence if Mr Kyriazis left the courtroom. Mr Kyriazis said ‘you do that, have a good day. Bye, I’ve had enough of this. I want the recording’. He then left the courtroom. 
37	In my opinion, the conduct of the Magistrate as transcribed, and heard via the audio-recording, did not deny Mr Kyriazis procedural fairness. It was appropriate for the Magistrate to tell him that if he left the courtroom he was doing so of his own accord, and that she intended to hear and determine the charge. The Magistrate took reasonable steps to ensure the hearing would proceed with Mr Kyriazis present, and it was his choice to leave the courtroom. When a litigant leaves the court room before the completion of the hearing, there is no denial of procedural fairness in the court proceeding with the hearing.
38	Mr Kyriazis sought to raise his ‘preliminary issue’, the constitutional issue, at the commencement of the hearing, but the Magistrate did not immediately allow him to address it. Nor was she obliged to. As a judicial officer her role was to control the conduct of the hearing and the manner and order in which issues were to be determined. The judicial officer conducts the hearing, not the parties. The parties, whether represented or not, must accept, and give reasonable respect to, the judicial officer’s role and authority. There is no indication in the transcript or recording that the Magistrate would not have allowed Mr Kyriazis to present his constitutional argument if he had remained in the courtroom. They only indicate that, as the presiding judicial officer, she proposed to decide the order in which issues were to be argued. The Magistrate in fact stated that ‘[h]is behaviour in the Court meant that I was unable and not prepared to hear his preliminary points until he put those points in a respectful and calm way. At no point, did that happen’. It is important for the administration of justice, and in the interests of all whose work requires them to be present in courtrooms, that all persons who are parties to criminal or civil proceedings, whether represented or not, show reasonable respect for the judicial officer. It is not for litigants to constantly interrupt the presiding judicial officer, but to listen and respond to the questions put to them and make their submissions when it is their turn. Mr Kyriazis is an experienced litigant. 
39	Mr Kyriazis was not denied procedural fairness and once he walked out waived any further entitlement to a hearing. The Magistrate had power to proceed with the hearing and determination of the charge even though Mr Kyriazis had left the hearing. The Magistrate did not expressly apply the powers contained in ss 80 and 84 of the Criminal Procedure Act, which apply where the accused does not appear but a preliminary brief has been served. Instead she allowed the three police witnesses to be called. If Mr Kyriazis had stayed and had wished to pursue a defence to the facts of the charge, he could have cross-examined those witnesses.
40	I do not consider that this was an ex parte hearing or a hearing where no appearance was made, as Mr Kyriazis had appeared and then decided to leave. The fact that the Magistrate incorrectly stated in her order that Mr Kyriazis had not appeared did not remove her power to proceed with the hearing. Any misunderstanding of the powers that she was exercising did not invalidate her decision as she had power to proceed with the hearing when he walked out. 
Other matters
41	Firstly, the matters that Mr Kyriazis raised in regard to the mention on 17 June 2021 bear no relevance to whether the Magistrate denied him procedural fairness at the hearing on 7 February 2022. 
42	Secondly, Mr Kyriazis made two requests on 7 February 2022 at the Magistrates’ Court. First, his intention to record the hearing on a personal recording device, and secondly, having an assistant in the courtroom. It does not appear that he did seek the Magistrate’s permission to record the hearing, but, in any event, I do not consider that any refusal of such a request denied him a fair hearing. The Court and the parties have an audio recording of the hearing, which includes excerpts between adjournments. Next, the circumstances in which Mr Kyriazis’ assistant, or McKenzie friend, was not permitted to enter the courtroom are not well-explained in the evidence. Again he does not appear to have applied to the Magistrate for such permission. Mr Kyriazis was a self-represented litigant, he provided no indication of why he needed the assistance to present his case. He has previously represented himself. While courtrooms are usually open to anyone, an application for a McKenzie friend or, in effect, an assistant is a matter for the presiding judicial officer to decide if and when it made.
43	As I am of the opinion that there was no denial of procedural fairness, the issue of the relevance of alternative avenues to challenge the Magistrate’s order are not strictly relevant, but I will say the following about them. Sections 88 and 254 of the Criminal Procedure Act detail appeal rights for a re-hearing at the Magistrates’ and County Court. Section 88 provides for a right of rehearing to a person who did not appear at the hearing, but I do not consider that it applies to Mr Kyriazis, who did appear and then left of his own choice.
44	Section 254 gave Mr Kyriazis a right to appeal the Magistrates’ Court order to the County Court. There is a question whether he would be entitled to judicial review remedies as a matter of discretion when he did not exercise his right of appeal. But in view of my conclusion that he was not denied procedural fairness it is unnecessary to decide that issue.
45	There is no merit in his challenge to the Magistrate’s reliance on s 76 of the Sentencing Act as the fact that he did not enter a plea did not prevent the Magistrate continuing to hear the charge. Nor, as I have previously stated, did he serve a written notice requesting a full brief on the informant, so the hearing could proceed on the basis of the preliminary brief that had been served.
46	I do not consider that there has been any breach of Mr Kyriazis’ Charter rights whether under s 8 or 25 or otherwise. It is clear from the information recorded by the prosecutor in the Form 12 document, compiled at the mention, that Mr Kyriazis understood the charge he was facing, which was a simple, summary charge. 
Conclusion
47	Mr Kyriazis has not established that he was denied procedural fairness at the hearing on 7 February 2022. Nor has he established any other ground which sought to challenge the Magistrate’s order. The proceeding is dismissed.