Kuhsun v Azzi

1. [1]

   By Notice of Motion filed on 5 October 2023, together with a requisition filed on 23 August 2023, the applicant, Sun Kuhsun, seeks an order that his claims be heard and determined by a judge and jury, rather than a judge alone. He has claimed, by way of a Summons filed on 8 February 2023, that he was assaulted by members of the New South Wales Police Force.

2. [2]

   The Notice of Motion came before me in the Common Law Duty list on 12 April 2024.

3. [3]

   Mr Kuhsun is self-represented and, on 12 April 2024, had the assistance of an accredited interpreter.

4. [4]

   The State of New South Wales, the respondent to the Notice of Motion, was represented by Ms Fizaa of Makinson d’Apice Lawyers. The respondent neither consented to nor opposed the application.

Background

1. [5]

   On 8 February 2023, Mr Kuhsun filed a Summons, along with a supporting affidavit filed on the same date, naming four police officers and the State of New South Wales as defendants. Mr Kuhsun’s Summons as originally filed read as follows:

2. [6]

   The first four defendants are four named police officers, and the fifth defendant (the respondent to the current Notice of Motion) is the State of New South Wales.

3. [7]

   Mr Kuhsun claims he was assaulted in the course of reporting to a police station as part of his bail conditions, as well as being assaulted again several months later when he attended court. As set out in his affidavit, it is claimed that on 22 February 2018:

4. [8]

   Mr Kuhsun detailed a further complaint said to have occurred on 6 December 2018. Included in that complaint was the following:

5. [9]

   Mr Kuhsun included further detail about what he contends occurred following this, and also further detail about the allegation itself. He claims that his shoulders (his right shoulder more than his left) and his neck were injured.

6. [10]

   Mr Kuhsun also set out some detail, not all of which is easy to follow, about attending the Gold Coast for a Taekwondo Australia Federation event where he was invited to be a referee and a judge. He also set out some detail about eating some food whilst he was at the Gold Coast and becoming ill, apparently with food poisoning. The last paragraph of the affidavit filed on 8 February 2023 states:

7. [11]

   On 14 March 2023, the matter was listed for a Directions Hearing before the Registrar. The respondent indicated its concerns with the Summons, and Mr Kuhsun advised the Registrar that he was having difficulties obtaining legal representation.

8. [12]

   The Registrar made the following order:

9. [13]

   On 31 March 2023, Mr Kuhsun filed a Notice of Motion and affidavit requesting an interpreter and legal representation.

10. [14]

    On 4 April 2023, the matter was listed for a Directions Hearing before Registrar Jones. On that occasion Registrar Jones referred the matter to the Duty Judge, Rothman J, who made the following orders:

11. [15]

    On 31 May 2023, the matter was listed for a Directions Hearing before the Registrar. On that day, Mr Kuhsun advised the Registrar he had been unable to obtain legal representation. The respondent notified the Court of its intention to file a Notice of Motion to dismiss the proceedings with costs if no progress had been made by the next Directions Hearing. Orders were made to the following effect:

12. [16]

    On 14 June 2023, a letter was sent to Mr Kuhsun on behalf of the respondent advising of the proposed defects in his claim. On 15 June 2023, Mr Kuhsun replied indicating that the Summons was correctly filed.

13. [17]

    On 21 June 2023, the matter was again before the Registrar for Directions, and the following orders were made:

14. [18]

    On 3 July 2023, the respondent filed a Notice of Motion seeking the following orders:

15. [19]

    This Notice of Motion was heard before Wright J on 11 August 2023.

16. [20]

    In the course of the hearing before Wright J, the following exchange occurred:

17. [21]

    His Honour accordingly did not dismiss the matter but made a number of orders as follows:

18. [22]

    On 10 October 2023, the respondent filed a Defence and a Notice of Motion. The Notice of Motion sought the following orders:

19. [23]

    The Defence sets out that Mr Kuhsun was charged with assault with an act of indecency on 2 April 2017, and that he was subject to conditional bail including reporting to Parramatta Police Station three times a week, and that he failed to attend on 14 and 21 February 2018 in accordance with his conditions. The Defence further sets out that on 22 February 2018, one of the named police officers told Mr Kuhsun he was under arrest for breaching his bail conditions and that he was asked to stand up multiple times but refused. The police officer, with another assisting, it is stated, took hold of Mr Kuhsun by his upper arm region and used reasonable force to get him to stand up. It is further stated Mr Kuhsun dropped his body weight and became dead weight to lift which required the assistance of another officer, and that this occurred more than once. Mr Kuhsun was conveyed to Granville Police Station where he was charged. The Defence sets out that Mr Kuhsun was continually instructed to stop resisting and to obey lawful police directions, but the directions were continuously disregarded by Mr Kuhsun. Most of Mr Kuhsun’s claims in relation to the incident on 22 February 2018 are either not admitted or denied.

20. [24]

    In answer to the claims relating to 6 December 2018, again a number of claims are either not admitted or denied. The Defence sets out that Mr Kuhsun’s matter was adjourned at 10:15am, following which Mr Kuhsun walked over to one of the walls within the court room and started smacking his head against the wall multiple times before running out of the court room and into the male bathrooms. A police officer was asked to check on Mr Kuhsun and found him, it is set out, in the male bathrooms, on the floor in the foetal position banging his head against the wall saying “shoot me, shoot me, shoot me” before continuing to bang his head against the wall. The Defence sets out that the police officer feared for Mr Kuhsun’s welfare and used reasonable force to stop him from banging his head against the wall and restrained Mr Kuhsun by placing him in handcuffs. The police officer believed Mr Kuhsun appeared to be mentally ill, or mentally disturbed, and was attempting to cause serious physical harm to himself. Subsequently, Mr Kuhsun was detained pursuant to s 22 of the Mental Health Act 2007 (NSW).

21. [25]

    On 5 October 2023, Mr Kuhsun filed the Notice of Motion seeking a trial by jury.

22. [26]

    On 3 November 2023, the Common Law Registrar made orders in accordance with prayers 1 and 2 of the respondent’s Notice of Motion filed on 10 October 2023. As at 12 April 2024, the Amended Summons removing the four police officer’s names had not been filed by Mr Kuhsun.

The Notice of Motion

1. [27]

   Mr Kuhsun’s Notice of Motion filed on 5 October 2023 is in the following terms:

2. [28]

   Mr Kuhsun filed an affidavit on 5 October 2023 in support of the Notice of Motion. Included in that affidavit was the following:

3. [29]

   Mr Kuhsun filed a further affidavit dated 4 April 2024. Mr Kuhsun also relied upon this affidavit in the hearing of the Notice of Motion.

4. [30]

   Included in the affidavit filed on 4 April 2024, the following was set out:

5. [31]

   Mr Kuhsun set out further material, and annexed a number of medical, physiotherapy, and psychological reports. He said that his “friend, John Wilson”, helped him with the affidavit, and then set out the following paragraphs which he said are directly transposed from Mr Kuhsun’s email to Mr Wilson.

6. [32]

   At the hearing, through the interpreter, it was clarified with Mr Kuhsun at the outset that there was no such thing as a jury trial without a judge being present. The options were a trial by a judge alone, or a trial by judge and jury.

7. [33]

   Mr Kuhsun submitted that he required a jury to hear the matter as “a judge only can be biased”. He further submitted that with a jury there will be 12 different minds and ways that people will look at the case, leading to justice.

8. [34]

   When asked by me why he was of the view that a Supreme Court judge could or would be biased there was the following exchange:

9. [35]

   A little later in the proceedings the following exchange occurred:

10. [36]

    Mr Kuhsun submitted further in relation to his allegation that the police had prevented him from continuing with his sports and attending college, but when asked again as to why he wished to have a judge and jury determine his claim he concluded:

11. [37]

    When I indicated that I would reserve my decision but would make a decision prior to the next Directions Hearing on 26 June 2024, Mr Kuhsun became increasingly upset. Included in the exchange was the following:

Consideration

1. [38]

   Section 85 of the Supreme Court Act states:

2. [39]

   As a result of the order made by Wright J on 11 August 2023, striking out any reference to criminal proceedings, the substantive claim is now clearly a civil claim for damages for the tort of assault, and thus as set out in s 85(1) the proceedings are to be tried without a jury, unless the Court orders otherwise.

3. [40]

   It is also clear that Mr Kuhsun has satisfied the requirements of s 85(2)(a). The question for determination is whether the Court is satisfied, pursuant to s 85(2)(b), that the interests of justice require a trial by jury in the proceedings.

Applicable legal principles

1. [41]

   Justice Johnson set out a convenient summary of the applicable legal principles in Simon v Hunter and New England Area Health Service [2009] NSWSC 758 at [13]-[28]:

2. [42]

   The basis for the Mr Kuhsun’s application for a trial by jury appears to be that a judge would be biased in determining his claims against the police. Further, it appears to be contended that only a jury would give Mr Kuhsun a fair hearing and would determine his claim on the merits. Mr Kuhsun submitted he had lost trust in the system, and that having a jury trial would restore his trust in the system.

3. [43]

   In my view, there is no basis at all for Mr Kuhsun’s contention that a Supreme Court judge would be biased against him, and only a jury would give him a fair hearing. Mr Kuhsun has put nothing before the Court to substantiate such a serious claim. It must be rejected.

4. [44]

   It is acknowledged that there may be credibility issues which arise in the determination of this case. That, in itself, is not sufficient to require a trial by jury. As noted above, judges can and do decide such matters frequently. Not only that, but a judge’s reasons are fully exposed unlike the reasons of juries which are not.

5. [45]

   Further, Mr Kuhsun’s personal preference is not a sufficient basis to “require” a trial by jury “in the interests of justice”.

6. [46]

   There is nothing put before this Court which persuades me that a jury is “required” in this case. Indeed, in my view, because of Mr Kuhsun’s particular presentation style, together with the fact he is self-represented, the interests of justice would not be well served at all by having Mr Kuhsun’s claims heard by a jury.

7. [47]

   Having carefully considered the facts and circumstances of this application, together with the submissions made by Mr Kuhsun, I am of the view that Mr Kuhsun has failed to satisfy this Court that the interests of justice require a trial by jury in these proceedings.

8. [48]

   No submissions were made as to costs. It is appropriate that costs of the motion be costs in the cause.

Orders

1. [49]

   I make the following orders:

   1. (1)

      Mr Kuhsun’s Notice of Motion filed 5 October 2023 is dismissed.

   2. (2)

      Costs of the motion are costs in the cause.