Kuhsun v State of New South Wales

1. [1]

   HIS HONOUR: The hearing of this matter commenced before me on Monday 12 May 2025. Mr Kuhsun appeared for himself without legal representation or any other form of assistance. That fact, among many others, assumed great significance in the events that have now occurred. This is explained in more detail in what follows.

2. [2]

   However, it is important at this point to observe that on Tuesday 13 May 2025, following what I had anticipated might be the resumption of Mr Kuhsun’s cross-examination, I formed the view that it was not possible in the interests of justice for the proceedings to continue. The precise status of that determination remains to be seen. It goes without saying that Mr Kuhsun is entitled to have his case heard and determined according to law. The mechanism by which that result can best be achieved, if it can ever be achieved, is a matter of some procedural complexity. This is also described in more detail below.

Background

1. [3]

   Mr Kuhsun commenced these proceedings by summons filed on 8 February 2023 in which he sought the following relief:

2. [4]

   The summons was accompanied by an affidavit sworn by Mr Kuhsun on 16 January 2023 in which he describes the facts and circumstances that are said by him to support his claims for relief. Shortly stated, Mr Kuhsun related two important events. First, on 22 February 2018, Mr Kuhsun attended Merrylands Police Station in accordance with a bail reporting condition to which he was subjected. Mr Kuhsun says that on this occasion he was severely assaulted by police officers as the result of which he sustained serious injuries. Secondly, on 6 December 2018, Mr Kuhsun attended Fairfield Local Court. He says that he was again severely assaulted by police, this time in the bathroom, and sustained further injuries as a result. That brief summary should not be taken as a complete description of the things about which Mr Kuhsun complains. It is intended at this stage only to provide a compendious outline of the events that generated these proceedings.

Consideration

1. [5]

   Three things became crystal clear shortly after the hearing before me commenced. First, Mr Kuhsun was of the view that he was entitled to a lawyer to represent him and that the responsibility for arranging that lay with the Court. Secondly, whether or not he was able to secure legal representation, he also insisted that he required an interpreter in the Persian language and that it was the responsibility of the court to provide that as well. Thirdly, consistently with his summons, Mr Kuhsun persisted with his demand that his case should be heard by a jury, notwithstanding the fact that the issue had been long ago decided by McNaughton J in what might be considered to be unexceptionable terms: Kuhsun v Azzi [2024] NSWSC 670.

2. [6]

   It can hardly be controversial in my opinion that Mr Kuhsun needed a lawyer to represent him. He was born and grew up in Iran and English is not his first language. That aside, he has no qualifications in law or any cognate discipline here or overseas that might have equipped him for the rigours of contested litigation. Many of his protestations at various junctures during the hearing revealed a total absence of the most fundamental understanding of almost all aspects of the proceedings. By way of example, Mr Kuhsun kept complaining that the defendants had not apologised for assaulting him. He was clearly incapable of accepting or understanding that his allegations have been denied and that he bore the onus of proving that they were true. He also continued to complain that the CCTV footage of the incidents at the police station and at the Local Court were not provided to him, despite the explanation by counsel for the defendants that such recordings were only retained for 6 months and no longer exist. As the transcript will reveal, Mr Kuhsun constantly returned to these, and other, themes despite my attempts to explain that it was useless to do so. In short, Mr Kuhsun did not exhibit any understanding or appreciation of the concept of adversarial proceedings but instead appeared to insist that there was but one side to his story and that I should proceed to decide the case on that basis.

3. [7]

   Mr Kuhsun had at one stage been referred for pro bono legal assistance. It came to nothing. However, Rothman J’s orders were made, favourably to Mr Kuhsun, in the widest terms. As far as the evidence or other material before me suggests, no solicitor or barrister was prepared to act for Mr Kuhsun at any stage of the proceedings and certainly not for the hearing before me. Mr Kuhsun’s understanding of the referral ordered by Rothman J has clearly become an unshakeable belief that the court has been commanded to find him a lawyer. Despite my best efforts, I was patently unable to disabuse him of that belief. The only reasonable aspect of Mr Kuhsun’s concerns about his unrepresented status was his implicit recognition that he actually needed a lawyer.

4. [8]

   Mr Kuhsun also reiterated his concern that he could not continue without an interpreter. This issue was ultimately resolved satisfactorily when the defendants agreed to pay for one. That occurred at about 11.30AM on the second day of the hearing. The interpreter’s services were welcome and proved to be valuable. However, while I will assume confidently that the translated versions of what I was saying to Mr Kuhsun were no longer clouded by Mr Kuhsun’s limited understanding of English, that fact did not to my observation increase Mr Kuhsun’s comprehension of what I was saying to him. So much is apparent from the number of times it became necessary to explain a concept to Mr Kuhsun, clearly without success, even with the patient assistance of a professional interpreter in his native tongue. Mr Kuhsun insisted that he was “not stupid”, a proposition that I am prepared, if not bound, to accept. However, it remains the fact that, for whatever reason, he was not able, or refused, to understand what I was attempting to explain, at least as far as that can be determined from the answers that he gave me.

5. [9]

   One example of that difficulty was Mr Kuhsun’s constant return to his demand for a jury trial. I explained that that issue has been finally determined, unfavourably to him, but he reprised his protestations more than once.

6. [10]

   All of this led me to a consideration of how the hearing could possibly continue in the circumstances. Mr Kuhsun was unrepresented and was in considerable danger of being unable to present his case in any convincing or persuasive way. The prospect that he would ever understand the need for him to cross-examine the police witnesses, whose statements of evidence he said he had never read, was something frighteningly redolent of a Joseph Heller novel with Kafkaesque connotations. If the hearing had continued, there is no doubt that it would have descended into a farcical parody of what it should have been. On one view, a patently unreasonable and unacceptable insistence by me that Mr Kuhsun continue to run his case in the face of these difficulties might have supported a later complaint that he was denied procedural fairness and that the outcome of such flawed proceedings would be manifestly unjust. By the same token, my decision to bring the proceedings to a halt could be viewed in the same way. My decision to pause the proceedings was largely informed by my concern that any complaint about the approach I have taken should not also be burdened with the potential need for Mr Kuhsun to establish that an unfavourable judgment should be set aside. In other words, by reason of the approach I have taken, Mr Kuhsun’s case, whatever its strengths or weaknesses, about which I express no opinion, remains on foot.

Where to now?

1. [11]

   Part of the evidence upon which the defendants proposed to rely in defence of Mr Kuhsun’s claim, that his psychological injuries were caused by the assaults he alleges, was a report from Dr Adam Martin, a forensic psychiatrist, dated 3 March 2025. It is important before proceeding further to note that Dr Martin did not give oral evidence and was therefore obviously not cross-examined on his opinions. I recognise immediately, therefore, the potential problems associated with placing untested reliance upon anything said by him. The fact that his report was admitted without objection by Mr Kuhsun can also not improve its authority for the reason that I have no doubt that Mr Kuhsun did not appreciate that he may have had a right to object to some or all of the report and may have wished to challenge Dr Martin upon it and make submissions about it. It is with an appreciation of those limitations that the following considerations are raised.

2. [12]

   After a day and a half of listening to and observing the things I have outlined earlier, I formed the view that Mr Kuhsun was incapable of continuing to conduct the proceedings unaided. I gave consideration to the question of whether Mr Kuhsun was or may be a person under a legal incapacity and to the prospect of appointing a tutor to conduct the proceedings for him if he was. In that regard, I gave consideration to the helpful analysis of Kyrou J in Slaveski v Victoria (2009) 25 VR 160; [2009] VSC 596 at [24]-[39], especially at [31]-[35] as follows:

3. [13]

   I have also had regard to Ferrier v Nationwide News Pty Limited (No 3) [2015] NSWSC 1806 per McCallum J, Daniel Walton v Terence George Hartmann as executor of the Estate of Wanda Resler [2017] NSWSC 1432 per Sackar J and Re WS [2017] NSWSC 745 per Lindsay J.

4. [14]

   In addition to these authorities, Hallen J had to deal with a not dissimilar issue in Mao v AMP Superannuation Ltd; Mao v BT Funds Management Ltd [2014] NSWSC 1794. His Honour’s customary careful and thorough analysis in that case, especially at [95]-[114] and [120]-[159], should be noted. His Honour was there able, having regard to the evidence before him and the forensic opportunity that the plaintiff was given to respond to the question of her legal status, to make an order for the appointment of a tutor. This case is yet to reach that stage. As I have attempted to make plain, the present proceedings have not progressed to the point where the issue of Mr Kuhsun’s legal capacity has been satisfactorily examined. It is clear that it is premature, and would be a denial of procedural fairness, for any decisions about Mr Kuhsun’s legal capacity, or the question of whether or not it is appropriate to appoint a tutor or manager for the purposes of conducting these proceedings, to be made before that occurs.

5. [15]

   Having regard to these matters, and in light of the current limitations inherent in placing reliance upon Dr Martin’s report, to which limitations I have adverted, the following extracts from his report should be noted:

6. [16]

   In my opinion, even without the benefit of these remarks, Mr Kuhsun’s incapacity was readily apparent from his behaviour inside the courtroom. It is my opinion that the proceedings cannot continue as presently constituted and that Mr Kuhsun cannot expect, and the Court cannot provide, a just outcome if they do. However, Mr Kuhsun is single, lives alone, is unemployed and as far as I am presently aware otherwise has no familial, professional or other relationship with anybody who might be a prospective candidate to act as his tutor.

7. [17]

   I am aware that in circumstances where there are difficulties, such as the ones I have just described, locating a disinterested person to act as a tutor for a person under a legal incapacity, it is often appropriate to give some thought to the making of a protection order under s 41 of the NSW Trustee and Guardian Act 2009. Such an order would ordinarily result in the NSW Trustee being appointed as the tutor: see UCPR 7.15. However, in accordance with my observations of Mr Kuhsun, it seems that he would be likely, if not certain, to contest any suggestion that he had a legal incapacity so that the issue would ultimately be very contentious. I also anticipate in any event that Mr Kuhsun lacks the means to meet any tutor’s expenses. In general terms, therefore, I consider that any intervention, either by way of the appointment of a tutor or a manager of Mr Kuhsun’s interest in the proceedings, will almost certainly be confronted with potentially insurmountable obstacles.

8. [18]

   I am part-heard in the proceedings. I accept that these remarks and my decision to stay the proceedings might invite an application that I no longer continue to hear the case, in whatever form it may eventually take. Recognising the practical difficulties to which I have referred, I am otherwise at a loss to suggest any solution to the current impasse that is likely to be successful at anything other than a purely theoretical or hypothetical level. In the circumstances I consider that I can do no more at this stage than make the following orders:

   1. (1)

      Stay the proceedings until further order.

   2. (2)

      Reserve costs.

   3. (3)

      Grant liberty to the parties to restore the matter or otherwise to apply on 7 days’ notice.