In August 2013 the applicant was charged in the Local Court in Lismore with four counts of sexual offences allegedly committed over a period in 2010 and 2012. Three of the charges named his step-daughter (to whom I will refer as "G") as complainant; the fourth named G's niece (the applicant's step-granddaughter, to whom I will refer as "S") as complainant. Notwithstanding their familial relationship, G and S are of similar age, G having been born in February 2002, S in October 2001.
Evidence and submissions in the proceedings in the Local Court took place over six non-consecutive days between August and November 2013. The evidence in chief of the complainants was given, pursuant to s 306S of the Criminal Procedure Act 1986 (NSW), by way of video recordings of interviews they gave to police during the course of the investigation that took place following their disclosure of the offences. The complainants were cross-examined. In the course of the cross-examination, it was suggested that the complainants had been motivated to fabricate their evidence because the applicant's relationship with his wife (G's mother and S's grandmother) had broken down and there were financial issues.
In a preliminary hearing the magistrate ruled that tendency evidence would be admitted in accordance with s 97 of the Evidence Act 1995 (NSW). However, she later reversed that ruling, and did not allow the prosecution to rely on tendency reasoning.
The applicant was legally represented in the proceedings. He gave evidence in the hearing.
One issue that needs to be noted here arose during the course of the proceedings. This related to one of the counts in respect of which G was the complainant. On the first day of the hearing the Crown amended the charge (which had initially stated a range of dates between which the offence was alleged to have been committed) to allege that the offence was committed on 4 February 2012 (which was pinpointed by reference to its relationship to G's birthday). The applicant produced documentary evidence that, he claimed, established that he had been interstate on that date.
[2]
The judgment of the Local Court
After hearing evidence and the submissions of the parties, the magistrate convicted the applicant on all four counts. She gave lengthy reasons for doing so. With respect to the count as to which the applicant had raised an alibi defence, she held:
"Was it the Friday, was it the Saturday, my view [is] it does not matter, it really does not matter. I do not consider time to be of the essence and in this circumstance a misstatement of the date in these circumstances will not in my view vitiate the finding of guilt …"
Her Honour placed considerable emphasis on her observations of G's video recorded interview, which, she said, she had watched a number of times. With respect to G, she said (inter alia):
"Having watched her on the video and I have watched that video a number of times in chambers as I was considering this matter, she struck me as a charming, outgoing, vivacious, endearing child.
That alone does not mean that I believe her …
…
I will say at the outset that I believed her without hesitation, I will explain my reasons for that and I think it is very important for me to set out very clearly why I believed her, clearly that is part of my obligation as a finder of fact … She was speaking with body language in the interview and demeanour. The words she used merely corroborated the way she was expressing herself both with her hands, with her legs, with her face.
…
I have watched the video a number of times and each time I am firmed in my view as to her reliability and credit …"
She referred at length to the cross-examination of G, but her previously expressed view of G's reliability was not altered.
She gave different reasons for accepting the evidence of S, referring extensively to defence submissions that S was confused and her evidence inconsistent; essentially, her Honour rejected these submissions. She expressly rejected the motive to fabricate evidence advanced on behalf of the applicant.
She referred to the applicant's evidence, noting that he had denied all allegations, and observed:
"True it is an accused in these circumstances can do little more than simply deny the allegations. I agree that it is incredibly difficult for an accused to defend these sorts of allegations particularly where they are fairly general in nature other than to say but I did not do it."
Although she plainly rejected the applicant's evidence, her Honour did not make any demeanour based findings. Her assessment was on the basis of a balancing of competing evidence and submissions.
[3]
The appeal to the District Court
Pursuant to s 11 of the Appeal and Review Act, the applicant appealed to the District Court. The appeal came before Whitford DCJ on 23 and 24 September 2014. Although s 18(2) and s 19(1) of the Appeal and Review Act make provision, respectively, for fresh evidence to be given (by leave), and for the District Court (in specified and limited circumstances) to direct a person to attend and give evidence, no application under either provision was made, and the appeal proceeded on the basis of the evidence given in the Local Court.
Lengthy written and oral submissions were made. The written submissions included a list of 12 asserted errors in the judgment of the magistrate. These can be refined to:
(i) the admission of the tendency evidence in the Local Court (even though that reasoning process was subsequently excluded. The ruling was relied upon to support a contention that the magistrate had made a favourable assessment of the complainants' evidence and its probity before she heard their testimony);
(ii) that the magistrate formed an opinion favourable to the complainants without considering the evidence of the applicant;
(iii) the manner in which the magistrate treated the alibi defence;
(iv) the manner in which her Honour dealt with evidence adduced on behalf of the applicant concerning the alleged motive for the complainants to make false allegations;
(v) prejudgment by the magistrate;
(vi) undue allowance allegedly made for the youth of the complainants;
(vii) exclusion of cross-examination under s 293(4) of the Criminal Procedure Act.
A further submission was made under the heading "Deficiencies in the evidence [in the Local Court]", under which a lengthy list of such asserted deficiencies was made.
Senior counsel who represented the applicant spoke at some length, in oral submissions, to the submissions already made in writing. A significant part of the address was directed to the argument that the magistrate had "pre-judged" the issues, because of the favourable view she had formed of the complainants, particularly G. He invited the judge to view the video recordings of the interviews with the complainants. He reminded the judge that:
"… your Honour will have to make your Honour's judicial mind up in relation to the evidence as a whole anyway."
During his oral address, senior counsel made the following submissions:
"… your Honour has the denial of the appellant in circumstances where his evidence wasn't suggested as evidence to be unpersuasive, to have within it the problems that one often associates with the assessment of evidence, conflicts, contradictions, hesitations, non-responsive answers, all those sorts of things.
So you have a case where at the end of the day and the prosecution hasn't discharged the alibi evidence, hasn't discharged its onus with respect to alibi and your Honour has the problems in relation to the changing of the dates and matters of that kind.
So at the end of the day, taking a broad approach to this your Honour would be left with a reasonable doubt in relation to the allegations."
[4]
The judgment of the District Court
With respect to the written submissions, Whitford DCJ is recorded as saying:
"Without wishing to do them any injustice or discourtesy by describing them in the following summary way, they were divided into two primary categories or aspects. The first aspect concerned the identification of what was submitted to be errors of the Magistrate in the conduct of the hearing or, more particularly, in her reasons and the exposure of her reasoning processes. Some 12 discreet [sic - discrete] errors were nominated, but there was a high degree of duplication and repetition among them, such that many of them might be described as alternate particularisations of the same errors.
The second aspect of the submissions was directed to identifying parts of the evidence, in particular the evidence of the two complainants, which it was submitted would cause such disquiet in respect of the result as to warrant allowing the appeal and setting aside the convictions."
His Honour then discerned "three principal categories" of the applicant's submissions, as follows:
"The first category of error might loosely be described as errors of prejudgment - which embraces a number of corresponding particulars and concerns relating both to the asserted inadequacy of her Honour's fact finding or the expression of her reasons for her findings and the inadequacy of the evidence, particularly the evidence of the complainants, to serve as a foundation for her findings;
The second category of error, closely related to the first, concerns the evidence of [G's mother] leaving home suddenly and the use which it is asserted her Honour made of that evidence;
The third category relates to some evidence adduced by the appellant concerning an alibi for the [4 February] offence and her Honour's treatment of that evidence, particularly in light of the amended charge."
His Honour then proceeded to deal at length with each of the arguments advanced on behalf of the applicant.
He rejected the contention that the magistrate had prejudged the issue, finding that she had "gone to great lengths to expose the matters that persuaded her to her ultimate acceptance of the complainants beyond reasonable doubt". With respect to the argument concerning her assessment of G's credibility, he said:
"Again, I cannot accept that this criticism of her Honour's approach is fairly made … Frankly, having seen the interviews of the girls, I see no reason why the matters that her Honour took into account were not available to her Honour as matters persuasive of the credibility and reliability of the complainants."
He found that the magistrate had adequately directed herself with respect to the task of fact finding.
He turned to a submission that her Honour did not "expose any reasoning process for rejection of [the applicant's] evidence". As to that, he said:
"Certainly, with the benefit of hindsight, it may have been preferable if the magistrate had made some express observations concerning the basis for the rejection of [the applicant's] evidence. It is implicit, however, in the way her Honour approached the task that she was acutely conscious that she must acquit unless she was satisfied beyond reasonable doubt in relation to the complainant's evidence. And it follows from an assessment of the whole of her reasons that there was nothing arising from the evidence of [the applicant], either in its content, or the way it was given, which gives rise to reasonable doubt."
He then said:
"In adjudicating on this appeal, I am acutely conscious of the natural limitations that exist in approaching an appeal based substantially on the record below … Those limitations of course include the disadvantage which I have, relative to the Magistrate, in respect of the evaluation of witnesses and in respect of the opportunity she had over quite a lengthy interval, to reflect upon the evidence and draw conclusions from it. The submission was made that the Magistrate's advantage is mitigated on the appeal because I have had access to and viewed the evidence in chief of the two complainants.
I have seen the interviews of each of the complainants. I have not, however, had the advantage of seeing or hearing any of the other witnesses including the appellant (other than through viewing his recorded interview), nor of seeing or hearing the crossexaminations of the complainants.
…
The resolution of most of those matters, in particular in connection with the various identified deficiencies of the evidence of [G] and [S], depends upon the unique benefit the Magistrate had of seeing and hearing the witnesses give their evidence and making corresponding assessments of what and whom to believe. Those assessments frequently depend on subtleties which simply cannot adequately be taken into account of [sic] by resort only to a transcript, even when it is partially supplemented by some recorded evidence. Those assessments require an understanding of the dynamics of the hearing, and the close observation of witnesses. Her Honour, at least in respect of exposing why she was satisfied beyond reasonable doubt by the evidence of the complainants, went to considerable lengths to expose those matters that informed her assessment."
His Honour then turned to the 4 February count, in respect of which the applicant raised an alibi defence. He considered that the magistrate's conclusion that "I do not consider time to be of the essence" was contrary to the effect of the amendment by the Crown to the charge, in which it specified 4 February as the date of the offence. He said that the magistrate "read and determined the charge as though it read 'on or around' 4 February". He considered that the reasonable possibility that the applicant had been interstate on 4 February 2012:
"… gives rise to sufficient doubt that the appropriate verdict on [that] charge, in the absence of any evidence displacing that possibility, was not guilty."
He then rejected the proposition that that conclusion would have an impact upon the assessment of the credibility of the complainants with respect to the other counts. He concluded:
"Approaching each charge separately, as one must, it flows from everything her Honour said concerning her reasons for accepting that complainant that the nomination of the 4th of February by the complainant would not have been attributed by the Magistrate to deliberate dishonesty on the part of the complainant. That accords with my assessment of the whole of the evidence too, appreciating all the limitations I have referred to in an appeal of this character. Accordingly, for the reasons I have outlined earlier, extending to the appellant the benefit of the doubt in respect of [the 4 February count], does not justify any disturbance of her Honour's findings in respect of the other counts or any different result on this appeal in respect of the other charges." (italics added)
He set aside the conviction with respect to the 4 February 2012 count, and confirmed the convictions on the remaining three counts.
[5]
The application to this Court
The application to this Court is for judicial review of the decision of the District Court. The grounds advanced are:
"1. His Honour erred in that he misconceived his jurisdiction and acted contrary to the provisions of s 18 of the Crimes (Appeal and Review) Act NSW 2001 in that he failed to treat the appeal as a rehearing and limited his judgment to identifying error on the part of the Magistrate.
2. His Honour erred in failing to undertake his own independent assessment and analysis of the evidence presented in the Local Court and thereby failing to form his own judgment of the facts.
3. His Honour failed to give any or sufficient consideration or analysis of the evidence of the two complainants [G] and [S], which he acknowledged from the [applicant's] submissions if accepted, would cause such disquiet as to warrant setting aside the conviction.
4. His Honour erred in finding that the error in the Magistrate's reasoning in respect of alibi did not cast doubt on the evidence of the complainant [G], even though he dismissed [that charge]."
Written submissions filed in support of the application followed the tenor of the grounds. They included:
"24 The District Court failed to apply the relevant principles governing a conviction appeal from the Local Court pursuant to s 18(1) of the Crimes (Appeal and Review) Act NSW (2001).
25 The Court did not embark on its fundamental duty of 'rehearing' the case on the Local Court transcripts, supplemented by reference to any exhibits tendered in the Local Court.
…
27 The District Court did not form its own judgment of the facts so far as it was able to do so, ie recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called in the lower court …
28 The approach taken by the District court was essentially an adoption and defence of the Magistrate's finding without considering for itself the relevant issues raised in the Local Court hearing …"
The balance of the written submissions (and the oral submissions) was, essentially, an explication of these assertions.
Section 18(1) of the Appeal and Review Act is explicit that an appeal under s 11 is to be by way of rehearing; and (unless leave is granted under sub-s (2) to adduce fresh evidence, or the District Court directs, in accordance with s 19(1), that oral evidence be given) is to be conducted on the basis of evidence given in the Local Court proceedings. What s 18(1) is not explicit about is the precise nature of the rehearing, and the task of the District Court judge hearing the appeal.
The central legal proposition in the applicant's submissions is that s 11 (read with s 18) confers powers that may be exercised whether or not there was error at first instance. The obligation of the District Court judge is to bring to bear an independent judgment on the question of whether the prosecution has proved, beyond reasonable doubt, the guilt of the person accused. An appeal under s 11 is therefore not limited to the identification of error in the Local Court, and is not determined simply by concluding that no error has been demonstrated on the part of the Local Court magistrate. (Nor is the exercise of the powers granted by s 20(1)(b) of the Appeal and Review Act dependent upon the identification of error.)
The submissions of both parties proceeded on this basis. No argument was directed to the proposition that, because the appeal is by way of rehearing, it is necessary that the appellant demonstrate error at first instance. However, since Basten JA (if I understand his Honour's judgment correctly) has taken the view that error must be demonstrated, and since I have (tentatively, as the question was not argued) come to a contrary view, it is appropriate that I explain my reasons, conscious that they must be tentative.
[6]
The legislation and relevant authority
In order to explain the issues, it is necessary to set out some provisions of the Appeal and Review Act:
"11 Appeals as of right
(1) Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both).
(1A) …
(1B) …
(2) …
18 Appeals against conviction to be by way of rehearing on the evidence
(1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19.
(2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.
(3) …
19 Circumstances in which evidence to be given in person
(1) The District Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied:
(a) in the case of an appeal that relates to an offence involving violence against that person, that there are special reasons why, in the interests of justice, the person should attend and give evidence, or
(b) in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence.
(2) …
(3) …
(4) …
(5) …
(6) …
20 Determination of appeals
(1) The District Court may determine an appeal against conviction:
(a) by setting aside the conviction, or
(b) by dismissing the appeal, or
(c) in the case of an appeal made with leave under section 12 (1) - by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the District Court.
(2) …"
(Section 12(1) concerns convictions entered in the absence of the defendant, and convictions entered following pleas of guilty, and is not here relevant.)
It is to be observed that the powers of the District Court specified in s 20 do not include a power to remit the proceedings, for further hearing, to the Local Court. That is, in my opinion, of some significance.
In Allesch v Maunz [2000] HCA 40; 203 CLR 172, Gaudron, McHugh, Gummow and Hayne JJ in a joint judgment identified three kinds of appeal:
(i) appeals "in the strict sense";
(ii) appeals by way of rehearing;
(iii) appeals by way of hearing de novo.
(Their Honours identified "appeals in the strict sense" as those in which the appellate court is empowered only to give the decision which should have been given at first instance. Appeals of that kind are of no present relevance.)
Their Honours distinguished appeals of the second and third kind in the following passage:
"23 For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error." (internal citation omitted)
But, immediately after that characterisation, they went on to say:
"At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance."
It is clear that appeals under s 11 are not "appeals in the strict sense"; it is equally clear that they are not appeals by way of hearing de novo. The present question is whether these are appeals that require the identification of error, as defined in Allesch, or whether the terms of the Appeal and Review Act indicate that the powers conferred on the District Court may be exercised regardless of error.
The authority cited for the proposition that an appeal by way of rehearing might not be confined to identification of error was Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; 170 CLR 267. The relevant statute in that case was s 88F of the Conciliation and Arbitration Act 1904 (Cth) which provided for appeals from a Registrar of the Australian Industrial Relations Commission to the Commission. Leave was required to appeal; where leave was granted, by sub-s (3) the Commission was empowered to take further evidence. The statute did not otherwise specify the nature of the appeal. By sub-s (4) the Commission was empowered to confirm, quash or vary a decision against which an appeal was brought. The High Court (constituted by Deane, Gaudron and McHugh JJ) considered that the provisions of sub-s (3) and sub-s (4) were strong indications that the appeal was to be by way of rehearing. Nevertheless, the Court did not find that the appellate jurisdiction could be exercised only after the identification of error. Rather, the Court held:
"17 … upon the correct construction of s 88F, the Commission was bound to make its own decision on the evidence before it …"
Their Honours cited Federated Carters' and Drivers' Industrial Union of Australia v Motor Transport and Chauffeurs' Association of Australia (1912) 6 CAR 122, in which Higgins J said of the same appeal provision:
"The appellant is entitled to have ... a re-hearing, a 'review' of the decision ... He is entitled to such judgment as I can bring to bear upon the question, independently of the Registrar, although, of course, I should attach a good deal of weight to the Registrar's view."
The Court went on:
"But once leave was granted, the Commission was bound to make its own decision on the evidence before it, including any further evidence admitted pursuant to s 88F(3)."
The citation in Allesch of Brideson (No 2) denotes acceptance that the power to take further evidence and the power to confirm, quash or vary a decision are indicators that the appeal (although said to be by way of rehearing) did not depend upon identification of error.
The conclusion in Brideson (No 2) is also consistent with what was said by Windeyer J in Da Costa v Cockburn Salvage and Trading Pty Ltd [1970] HCA 43; 124 CLR 192 at 208-9 as follows:
"The rule referred to … provides that all appeals shall be 'by way of rehearing'. This does not mean that the appeal is a complete rehearing as a new trial is. It means that the case is to be determined by the Full Court, its members considering for themselves the issues the trial judge had to determine and the effect of the evidence he heard as appearing in the record of the proceedings before him, but applying the law as it is when the appeal is heard not as it was when the trial occurred … [The relevant rule] provides too that the Full Court shall have power to draw inferences of fact and to give any judgment and to make any order that ought to have been made. This is more or less standard form. It confers a wide power. But it does not I think curtail the recognition or respect that an appeal court should accord to the decision of a trial judge."
There is nothing in either Brideson (No 2) or in the Federated Carters' and Drivers' case that calls for the identification of specific error before the obligation for the appellate court to exercise independent judgment arises.
On these authorities, I would conclude that it is not necessary, before the appellate power of the District Court is exercised, that error of law, fact or discretion be shown.
Authorities in this Court and the Court of Criminal Appeal are, however, not so easy to reconcile.
In Gianoutsos v Glykis [2006] NSWCCA 137; 65 NSWLR 539 the Court of Criminal Appeal considered that the Appeal and Review Act did indicate that the powers of the District Court could be exercised regardless of error. At least part of the reason for this was the absence of any statutory power to remit the proceedings to the Local Court.
But, in Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92, Gleeson JA, with whom Ward JA and Johnson J agreed, said:
"28 As the appeal to the District Court is by way of rehearing, it is necessary for the appellant to demonstrate that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the District Court can substitute its own decision based on the facts and law as they then stand. Accordingly, it was the duty of [the District Court judges] to form their own judgment of the facts and, in particular, to determine whether the evidence before the Magistrates was sufficient to demonstrate Mr Mulder's guilt on the charges beyond reasonable doubt." (italics added, internal citations omitted)
Allesch and Dyason v Butterworth [2015] NSWCA 52 were cited as authority for the proposition contained in the first sentence. On one reading of this passage (see the words italicised), the obligation, and, indeed, the power, of the District Court to form its own view of the facts and law depends upon an anterior finding of error. However, closer analysis of what was decided in that case suggests that this was not the approach actually taken. It is necessary to examine the relevant facts.
Mr Mulder faced two separate prosecutions of federal offences in the Local Court. On each occasion, he was convicted, and on each occasion, he appealed under s 11 of the Appeal and Review Act to the District Court. Each appeal was dismissed. Mr Mulder applied to this Court for judicial review of the decisions.
Mr Mulder's first appeal came before Hock DCJ. As recorded in the judgment of this Court ([62]-[68]) her Honour independently considered the evidence in the Local Court, and declared herself satisfied beyond reasonable doubt that each of the charges had been proved.
There is no suggestion that, before proceeding to make that assessment, Hock DCJ had identified any error in the judgment of the magistrate from whom the appeal was brought. Nor was there any suggestion in the judgment of this Court that it was either wrong or unnecessary, in the absence of identified error, for Hock DCJ to have embarked on her independent judgment.
Mr Mulder's second appeal came before Toner DCJ. Again, the judgment of this Court shows that, like Hock DCJ, his Honour made an independent and comprehensive analysis of the evidence in the Local Court, and reached the same conclusion as the magistrate - that is, that Mr Mulder was guilty of the offences with which he was charged. Again, there was no suggestion that, before embarking on that exercise his Honour found any error of law, fact or discretion, and no suggestion in this Court that it was therefore wrong or unnecessary for Toner DCJ to take that course.
I should note here that it makes no difference that, in each case, the District Court upheld the decision of the magistrate. It is the process - of decision-making by the appellate judge - that is relevant. If it were correct that a s 11 appeal depended upon identification of error in the Local Court, then, absent some identification of error, it would have been inappropriate for Hock DCJ and Toner DCJ to have proceeded to the final exercise of determination of guilt. The appropriate order in each case would, in that circumstance, have been dismissal of the appeal, without engagement with the facts, or the inferences to be drawn from them.
In Dyason, judicial review was sought and granted in respect of an appeal under s 11 against the making, in the Local Court, of an Apprehended Personal Violence Order under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The matter was remitted to the District Court for hearing and determination according to law, on the basis that:
"70 It is apparent from the primary judgment that the primary judge did not, with respect, form her own judgment as to the facts and whether they warranted the conclusion that the elements of s 19(1)(b)(i) of the DPV Act (relating to intimidation) had been established … Nor did her Honour address the sufficiency issue s 19(1) directed the decision-maker to consider once a prima facie s 19(1)(b) finding had been made. Finally her Honour did not consider whether, in all the circumstances, and taking into account the matters raised in s 20, an APVO was warranted.
71 Further, in determining that the Magistrate's orders should be confirmed, the primary judge did not examine the evidence before the Magistrate, nor did she consider whether his Honour had adequately identified and dealt with the matters with which he was required to deal …"
I read the second of these paragraphs as a clear statement that the jurisdictional error of the District Court judge was to fail to consider whether error on the part of the magistrate had been established. The first, however, is consistent with that contrary proposition, that the powers of the District Court are exercisable regardless of error, and on the basis of the District Court judge's own assessment of the evidence.
In an earlier decision, in the Court of Criminal Appeal, (Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39) Mason P reached the conclusion that, on a rehearing, the appellate court is, essentially, to undertake the exercise that was required of the first instance tribunal. That suggests to me that exercise of the appellate power does not depend on a finding of error. Additional comments made by Mason P highlight the difficulties that are inherent in the discharge of that jurisdiction when the task is to be undertaken on the record of the first instance hearing, without the appellate judge having the benefit of observing the witnesses. That, however, did not alter the role of the appellate court; it called for recognition that respect is to be paid to, for example, the original court's assessment of the credibility of witnesses (see the last sentence in the passage from Da Costa extracted above, the whole of which was quoted in Charara). Mason P said:
"17 The appeal is to be by way of rehearing on the Local Court transcripts (s 18(1)), obviously supplemented by reference to any exhibits tendered in the Local Court. Fresh evidence may be given by leave, subject to the District Court being satisfied that it is in the interests of justice that this should occur (s 18(2)).
18 The District Court is then required to apply the principles governing appeals from a judge sitting without a jury. The Judge is to form his or her own judgment of the facts so far as able to do so, ie recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court [citations omitted].
19 The nature of an appeal 'by way of rehearing' has been discussed in many cases. The procedure to be adopted, powers to be exercised and function to be performed must first be sought in the language of the particular statute. One thing, however, is clear. 'The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits' … Referring to the 'requirements, and limitations, of such an appeal', their Honours continued (at [23], footnotes omitted):
… On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole." (italics in original)
The quotations in italics are taken from the decision of the High Court in Fox v Percy [2003] HCA 22; 214 CLR 118.
Confirmation of the view I have expressed is to be found in the following circumstance. At the time Charara was decided, s 18(1) was in a different form. It then provided:
"(1) An appeal against conviction is to be way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by s 19." (italics added)
Of s 18 as it then stood, Mason P said:
"23 District Court judges traditionally and understandably refrained from reading the reasons of the Local Court when the appeal was do novo. But the nature of an appeal by way of rehearing on the transcript indicates to me that this approach is no longer justified. The magistrate's reasons are not part of the 'certified transcripts of evidence' referred to in s 18(1) any more than the exhibits tendered in the Local Court. Nevertheless, as I see it, the District Court is impliedly directed to consider the reasons because the stated appellate function could not properly take place without reference to them.
24 The Local Court reasons will doubtless include an explanation why the conviction was entered at first instance, including an assessment of the credibility issues touching any factual dispute. Without reference to the reasons the District Court would be driven to speculation or deciding the issue entirely afresh. Neither such course would be consonant with the statutory scheme …"
These observations were considered by the Attorney General's Department of the NSW Government in a "Report on the Statutory Review of the [Appeal and Review] Act" in August 2008. The authors of the Report wrote:
"The requirement that appeals be dealt with by way of a rehearing on transcripts of evidence limits the material from the original hearing that may be before the District Court. If narrowly construed, it suggests that the District Court is unable to rely on exhibits before the magistrate in the Local Court without giving leave. Similarly, other material such as the reasons given by the magistrate, that does not constitute evidence, are not included in the transcripts of evidence.
The District Court is at a disadvantage rehearing the proceedings without the benefit of seeing or hearing the witnesses.
…
Assessments by the magistrate on issues of credibility would provide the District Court with a greater understanding of the conduct of the case and the decision made in the original proceedings. The comments by Mason J [sic - Mason P] in Charara recognise that it is consistent with the nature of an appeal by way of rehearing that the reasons given by the magistrate be available to reduce these 'natural limitations'."
It was, accordingly, recommended that the Parliament:
"Amend the Act to provide that an appeal to the District Court … against conviction and sentence is to be a rehearing on the basis of the transcript of the proceedings and other material before the original Local Court."
It was after that that s 18 was amended to its present form.
It is implicit in the Report and the recommendation (and the enactment in conformity with the recommendation) that the intention was that the District Court judge would exercise an independent judgment of the guilt of the accused, aided (in the absence of the opportunity to observe witnesses and make his or her own credibility assessment) by the credibility findings of the magistrate.
[7]
Resolution
I therefore proceed to consider the matters raised on behalf of the applicant on the basis that the obligation of Whitford DCJ was to form his own judgment as to the facts and whether they warranted the conclusion - his conclusion - that the applicant was guilty of the charges of which he had been convicted. It was not necessary that legal, factual or discretionary error be established.
The fundamental task of a court is to exercise the jurisdiction conferred upon it, with the important proviso that that task is to be undertaken on the basis of the issues presented to the court for determination. That is precisely what Whitford DCJ did.
He first dealt with and disposed of the many errors it was asserted characterised the decision of the magistrate. The assertion of error had occupied the vast bulk of the written submissions, as well as of the oral submissions. It is hardly surprising, therefore, that the vast bulk of the judgment also was devoted to those matters. The grounds of the application to this Court did not challenge any of the findings that resulted from that exercise. The complaints contained in Grounds 1 to 3 of the application to this Court are, essentially, that his Honour did not undertake the necessary task of evaluating the evidence for himself. (Ground 4 is an assertion of error in his Honour's approach to the consequences of his finding error in the magistrate's treatment of the alibi evidence. Such a complaint is not available under s 69 of the Supreme Court Act.)
In respect of the credibility findings concerning the complainants, his Honour was necessarily limited to reliance on the findings of the magistrate, supplemented by the advantage he had in viewing the video recorded interviews, and his analysis of asserted deficiencies in their evidence. He was necessarily so limited by the provisions of s 18 and s 19, confining the circumstances in which fresh or additional evidence may be given. It is a necessary consequence of those provisions that credibility findings of a Local Court are an important resource in the exercise of the s 11 jurisdiction. The last sentence in the passage extracted above from Da Costa confirms that, on an appeal by way of rehearing, credibility assessments by the first instance tribunal are to be accorded due weight. That is made explicit in the passage from Fox v Percy quoted in Charara.
Within those limits, Whitford DCJ undertook the task of making his own judgment of the facts, and of whether the prosecution had proved beyond reasonable doubt the guilt of the applicant. His decision to set aside the conviction on one count is a particularly strong indication, if more were needed, that he exercised the independent judgment that was required of him. The exercise of that judgment culminated in his endorsement of the assessment of the evidence by the magistrate.
For these reasons, I agree with Basten JA that the summons should be dismissed with costs.
SACKVILLE AJA: I have had the advantage of reading the judgments of Basten JA and Simpson JA.
It is surprising that the precise nature of the rehearing on an appeal to the District Court pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal and Review Act) is apparently not yet settled. The judgments of Basten JA and Simpson JA show that the statutory scheme for appeals to the District Court against convictions in the Local Court presents a number of inter-related questions of construction. Among these is the question of whether the District Court has an implied power to remit a matter to the Local Court and, if not, whether the omission suggests that an appeal to that Court is not limited to the identification of error.
The issues of construction canvassed in the judgments of Basten JA and Simpson JA were not the subject of full argument on the application for judicial review. Their Honours' judgments indicate that regardless of which of the competing constructions (assuming they are the only alternatives) is correct, the application must be dismissed. I prefer not to express an opinion on the question of construction until it is necessary to do so.
I add the following observations on what I understood to be the principal argument advanced on behalf of the applicant.
The applicant's submissions in this Court were not closely tailored to the requirement that jurisdictional error must be established in order for the Court to intervene. Nonetheless, I understood Mr Bellanto QC, who appeared with Mr Hodgson for the applicant, to submit that the District Court Judge failed to address an argument put to him and thus fell into jurisdictional error. The particular argument that was not addressed, so Mr Bellanto submitted, was that the Magistrate considered only the veracity of the complainants' evidence and did not give proper consideration to the applicant's evidence in determining whether the case had been proved beyond reasonable doubt.
It is true that an argument was advanced in the District Court that the Magistrate made no findings as to the applicant's demeanour and provided no explanation as to why the applicant's denial of wrongdoing did not create a reasonable doubt as to his guilt. If the District Court Judge overlooked this argument on the appeal, his Honour may well have constructively failed to exercise the jurisdiction conferred on the District Court by ss 11 and 20 of the Appeal and Review Act.
The District Court Judge expressly referred to the submissions that the Magistrate did not expose any reasoning process for rejecting the applicant's evidence. His Honour rejected the submission for these reasons: [54]
"Certainly, with the benefit of hindsight, it may have been preferable if the Magistrate had made some express observations concerning the basis for the rejection of the appellant's evidence. It is implicit, however, in the way her Honour approached the task that she was acutely conscious that she must acquit unless she was satisfied beyond reasonable doubt in relation to the complainant's evidence. And it follows from an assessment of the whole of her reasons that there was nothing arising from the evidence of the appellant, either in its content, or the way it was given, which gives rise to reasonable doubt."
In the passage set out in Basten JA's judgment, [55] the District Court Judge went on to explain why he did not think a basis had been established for overturning the findings made by the Magistrate.
In my view, the District Court Judge did not overlook or fail to consider the argument identified by Mr Bellanto. Whether his Honour was correct in rejecting the argument is not a matter that arises on the present application. It follows that his Honour did not fall into jurisdictional error in the manner contended for by Mr Bellanto.
I agree with Basten JA and Simpson JA that the appellant has not established any other jurisdictional error on the part of the District Court Judge.
[8]
Endnotes
Children (Criminal Proceedings) Act 1987 (NSW), s 15A.
Local Ct Tcpt, 15/11/2013, p 22(40).
Judgment, 25 September 2014.
(2006) 65 NSWLR 539; [2006] NSWCCA 137 at [37]-[40].
(2000) 203 CLR 172; [2000] HCA 40.
At [23].
(1998) 197 CLR 172; [1998] HCA 67, 76 at 201-202 [111] (McHugh, Gummow and Callinan JJ).
(1996) 85 A Crim R 57.
At 59-60.
Dyason v Butterworth [2015] NSWCA 52 at [27], [28] (McColl JA, Barrett and Gleeson JJA agreeing); Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 at [28] (Gleeson JA, Ward JA and Johnson J agreeing).
Appeal and Review Act, s 55(1)(a) and (b).
Appeal and Review Act, s 52(1).
Ibid, s 53(1).
(1996) 85 A Crim R 57 at 59-60 (Hunt CJ at CL, Grove J and Barr AJ agreeing).
Gianoutsos at [41].
[2009] NSWCA 42; 193 A Crim R 552.
Emanuel at [17].
[2010] NSWCA 265; 207 A Crim R 362.
(1935) 53 CLR 220 at 225.
Burns at [42].
Burns at [53].
Burns at [80], referring to Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47 at [14].
See, eg, Supreme Court Act 1970 (NSW), s 75A(7) and (8) (dealing with "further evidence" and distinguishing between an appeal following a hearing on the merits, where special grounds are required, and other cases: subs (9)).
Appeal and Review Act, s 3(1), fresh evidence.
Landsman v R [2014] NSWCCA 328.
The Hon JW Shaw, Attorney General, Second Reading Speech, Justices Legislation Amendment (Appeals) Bill, Legislative Council, Parliamentary Debates (Hansard), 17 Sept 1998, p 7595 (with respect to the precursor to ss18 and 19).
[2006] NSWCCA 244; 164 A Crim R 39.
Ibid at [18].
(2003) 214 CLR 118; [2003] HCA 22.
The phrase "natural limitations" was adopted from the judgment of Isaacs J in Dearman v Dearman (1908) 7 CLR 549 at 561.
Fox at [23]. [Citations omitted]
Fox at [28].
Fox at [29].
Criminal Appeal Act 1912 (NSW), s 6(1).
(2005) 224 CLR 300; [2005] HCA 81 at [39].
Weiss at [41].
Weiss at fns (62) and (65).
See Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424 at [21] and [22] (Allsop J, Drummond and Mansfield JJ agreeing).
See Costa v The Public Trustee of NSW [2008] NSWCA 223; 1 ASTLR 56 at [15]-[19] (Hodgson JA); [31]-[34] (Ipp JA) and [68], [73] and [94]-[97] (in my reasons).
Costa at [78]-[79].
[2009] NSWCCA 186.
SKA at [102]-[108].
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [27]-[31] (French CJ, Gummow and Kiefel JJ); [116] (Crennan J).
Judgment, p 9.
District Court Act 1973 (NSW), s 176; Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10].
Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8; Garde at [11]-[13].
District Court Tcpt, 23.09.14 at p 1(20).
Ibid, p 4.
Ibid at p 5.
Ibid at p 11.
Ibid at pp 13-14.
Ibid at p 9.
Ibid at pp 11-12.
G v R, 25 September 2014, at 10.
At [46] above.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 30 July 2015
] HCA 36; 170 CLR 267
SKA v The Queen [2009] NSWCCA 186
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8
Texts Cited: Attorney General's Department (NSW), Crimes (Appeal and Review) Act 2001 - Report on the Statutory Review of the Act (August 2008)
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 15 November 2013, Magistrate Denes, at Lismore Local Court, found the applicant guilty of four counts of aggravated indecency; three involving his step-daughter, GL and one involving his step-granddaughter, SD. The magistrate's determination turned entirely upon acceptance beyond reasonable doubt of the evidence of the complainants. The applicant was sentenced on 24 January 2014; on that day he appealed from the convictions and the severity of the sentence. On 25 September 2014, the District Court judge, Whitford DCJ, set aside the conviction on one charge (in relation to which the applicant provided alibi evidence) but dismissed the appeal with respect to the other three charges. (The sentence appeal remains outstanding.) On 13 November 2014, the applicant sought to review the judgment of the District Court and have the remaining convictions quashed pursuant to the supervisory jurisdiction conferred on this Court by s 69 of the Supreme Court Act 1970 (NSW). The applicant alleged that the primary judge misapprehended the extent of his jurisdiction under s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act") and failed to form his own view of the matter; the judge thus fell into jurisdictional error.
The Court (Basten JA, Simpson JA and Sackville AJA) held, dismissing the summons.
(per Basten JA; Simpson JA and Sackville AJA agreeing)
The conviction appeal from the Local Court to the District Court is by way of rehearing on the basis of evidence given in the original Local Court proceedings unless fresh evidence is adduced in circumstances provided by the Appeal and Review Act. Further, the District Court judge is bound to observe the "natural limitations" where the appeal is conducted by reference to a documentary record: [5].
Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18, 19.
The primary judge, after setting out the background of the charges and convictions, proceeded to address errors which the applicant alleged were committed by the magistrate: [42], [104]. Having identified error in the manner the magistrate dealt with the charge in relation to which the applicant offered alibi evidence, the primary judge set aside that conviction: [44], [70]-[71]. As for the other challenges, the primary judge considered the material before him, conscious of the "natural limitations" resulting from not seeing or hearing the witnesses including the complainants (being cross-examined) and the applicant: [46], [105]. Nothing in this approach was indicative of any failure to carry out appellate function. To the contrary, the approach adopted demonstrated that the primary judge understood what was required of him by s 18 of the Appeal and Review Act and the relevant authorities: [47], [106].
Fox v Percy [2003] HCA 22; 214 CLR 118 referred to.
The applicant's specific submission that the primary judge failed to consider or overlooked the fact that the magistrate did not properly consider the applicant's evidence and thus fell into jurisdictional error cannot be accepted. The primary judge made a specific finding that, despite the lack of express observations justifying the rejection of the applicant's evidence, the entirety of the magistrate's approach demonstrated consciousness that she had to be satisfied beyond reasonable doubt of the complainants' evidence, otherwise she would have to acquit the applicant: [114]-[115].
Comments by two members of the Court as to the nature of the appeal by way of rehearing under s 18 of the Appeal and Review Act:
(per Basten JA)
The statement in Gianoutsos v Glykis [2006] NSWCCA 137; 65 NSWLR 539 at [39] that the powers of the District Court on an appeal under s 18 of the Appeal and Review Act are "not dependent upon finding of error at the original trial" is not consistent with recent authorities of this and other courts suggesting that appellant must demonstrate some legal, factual or discretionary error for the appeal to succeed: [9], [12].
Allesch v Maunz [2000] HCA 40, 203 CLR 172; Dyason v Butterworth [2015] NSWCA 52; Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 referred to.
The term "error", however, has no precise meaning; it requires the appellate judge to be satisfied that the judgement under appeal is wrong and should be corrected. How that satisfaction is achieved will depend on a range of factors relevant to specific cases: [34].
Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; 117 FCR 424; Costa v The Public Trustee of NSW [2008] NSWCA 223; 1 ASTLR 56 referred to.
(per Simpson JA)
Despite the recent statements of the Court of Appeal that it is necessary for the appellant on appeal from the Local Court to the District Court to demonstrate "legal, factual or discretionary error": Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92, other authorities, and also the manner in which the Court of Appeal in Mulder dealt with the applications for judicial review of the District Court decisions, support the view that the appeal under s 18 of the Appeal and Review Act does not depend on a finding of any error by the magistrate: [76], [81], [85]; [87], [97].
Allesch v Maunz [2000] HCA 40, 203 CLR 172; Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39; Da Costa v Cockburn Salvage and Trading Pty Ltd [1970] HCA 43; 123 CLR 192; Dyason v Butterworth [2015] NSWCA 52; Gianoutsos v Glykis [2006] NSWCCA 137; 65 NSWLR 539; Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92; Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; 170 CLR 267 discussed.
Appellate jurisdiction of District Court
Although the point was inadequately addressed in the submissions of the parties, this case raised in stark form a difficulty inherent in the statutory scheme for appeals in criminal jurisdiction from the Local Court to the District Court. That is, how is the District Court to approach an appeal against conviction where the outcome depends almost entirely on the credibility of the complainants, on the one hand, and of the defendant, on the other? On the basis of the statutory provisions and authorities referred to below, three propositions are well established, namely:
1. the appeal, described as "by way of rehearing", does not involve a hearing de novo (or fresh trial) as if the original trial had not occurred;
2. the appeal is not an appeal "in the strict sense", so as to be limited to the evidence before the magistrate, to be determined on the law as it then applied; and
3. the judge on appeal is bound to observe the "natural limitations" which arise where the appeal is conducted by reference to a documentary record.
In circumstances where neither party seeks to call oral evidence on the appeal, the following outcomes must be considered:
1. if the appellant fails to demonstrate error on the part of the magistrate, the appeal must be dismissed;
2. if the prosecutor (respondent) is unable to persuade the judge that the charges have been made out beyond reasonable doubt, the appeal must be upheld;
3. the judge, being unable to determine the matter in the absence of oral evidence, must require the parties to call witnesses; or
4. the judge, being unable to determine the matter, must set aside the conviction and remit the matter to the magistrate.
For reasons which will be explained, there are difficulties attending the adoption of any one of these solutions. To understand why that is so, it is necessary to have regard to the statutory scheme encompassed by the key provisions of the Appeal and Review Act.
11 Appeals as of right
(1) Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both).
…
14 Lodgment of appeals and applications for leave to appeal
(1) An appeal under section 11 or 11A is to be made by lodging a written notice of appeal with:
(a) a registrar of the Local Court, or
(b) the person in charge of the place where the appellant is in custody.
(2) A notice of appeal must state the general grounds of appeal.
…
18 Appeals against conviction to be by way of rehearing on the evidence
(1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19.
(2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.
(3) The parties to an appeal are each entitled to be provided with one free copy of the transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence.
19 Circumstances in which evidence to be given in person
(1) The District Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied:
(a) in the case of an appeal that relates to an offence involving violence against that person, that there are special reasons why, in the interests of justice, the person should attend and give evidence, or
(b) in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence.
(2) An application for such a direction may be made by a party to the proceedings in relation to a particular person only if notice of the party's intention to make such an application has been served on each other party to the proceedings within such period as the District Court may direct.
(3) If an application for such a direction is refused, the District Court must give reasons for the refusal.
(4) A direction may be withdrawn only on the application, or with the consent, of the appellant.
(5) The regulations may make provision for or with respect to the determination of special or substantial reasons for the purposes of subsection (1).
(6) Without limiting subsection (5), in determining whether special or substantial reasons exist, the District Court must have regard to whether or not the appellant was legally represented for the whole or any part of the original Local Court proceedings.
20 Determination of appeals
(1) The District Court may determine an appeal against conviction:
(a) by setting aside the conviction, or
(b) by dismissing the appeal, or
(c) in the case of an appeal made with leave under section 12(1) - by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the District Court.
(2) The District Court may determine an appeal against sentence:
(a) by setting aside the sentence, or
(b) by varying the sentence, or
(c) by dismissing the appeal.
Because the determination of the charges depended entirely upon accepting the evidence of the complainants and rejecting the evidence of the defendant as not raising a reasonable doubt, all the judge could say was that it was open to the magistrate to accept the evidence of the complainants and reject that of the defendant, so as to be satisfied beyond reasonable doubt that the defendant was guilty as charged. Put negatively, the judge could not be satisfied on the material before him beyond reasonable doubt, because he had neither seen nor heard the complainants cross-examined, nor had he seen or heard the defendant give evidence. (He had seen and heard a video recording of the complainants' evidence-in-chief.) This raises starkly a question as to which of the possibilities noted above should follow.
There are statements which appear to contradict the first possibility, namely that for an appeal to succeed, the appellant must persuade the judge that the magistrate erred. The primary support for that negative proposition is to be found in Gianoutsos v Glykis. [4] It is necessary to set out the statements from the judgment of McClellan CJ at CL (with whom Sully and Hislop JJ expressed agreement):
"[37] In Allesch v Maunz [5] the High Court considered the appeal provisions under the Family Court Act. In the course of the joint judgment of Gaudron, McHugh, Gummow and Hayne JJ their [Honours] said at 180: [6]
'For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error (see CDJ v VAJ [7] ), whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised regardless of error.' (emphasis added)
[38] In the present case, the legislation does indicate that the District Court's appellate powers may be exercised regardless of error. Section 20 of the [Appeal and Review Act] provides that on an appeal from a magistrate the District Court may either set aside a conviction (or in this case an APVO), or it may dismiss the appeal. The District Court is not limited to ordering fresh proceedings in the court below. Indeed, unlike the Supreme Court (see s 55(1)(b) of the [Appeal and Review Act]), the District Court is given no express power to remit the matter back to the Local Court for redetermination in accordance with its directions. In R v Kurtic [8] , Hunt CJ at CL noted that the power to determine an appeal otherwise than by ordering fresh proceedings would indicate that a court with such a power is not a court of error. [9]
[39] The District Court has power to rehear issues at trial but does not have power to remit the matter back to the Local Court. It follows that the District Court's powers under s 18 of the [Appeal and Review Act] are not dependent upon a finding of error at the original trial.
[40] An appeal under s 18 of the [Appeal and Review Act] is an appeal of this nature."
The critical element in this reasoning is that the absence of a power to remit means that the powers exercised by the District Court are not dependent upon a finding of error. (Contrary to the reference at [39], the powers are not found in s 18, but in s 20.) However, there is an elision in the reasoning: if the District Court sets the conviction aside, what is the consequence? There are three possible consequences, namely:
(a) the charge is dismissed;
(b) the defendant is convicted of a lesser offence; or
(c) there is a charge which remains to be determined.
If s 20(1) is to be read as limited to the powers expressly conferred, there is no power to do either of (a) or (b). In that (somewhat unsatisfactory) state of affairs, (c) is the most plausible consequence, because an undetermined charge does not need to be remitted - the function of the Local Court remains unperformed.
Assuming for present purposes that the District Court does not have a power of remitter, there is no doubt that it has power to "rehear" the charges subject to appeal. However, it is difficult to understand why a power to set aside a conviction is, in the absence of a power to remit, not dependent upon a finding of error. In considering the statutory scheme, it appears that insufficient weight was given to the fact that the District Court was conducting "an appeal"; that with respect to "an appeal by way of rehearing" the usual understanding is that the appellant must demonstrate some form of legal, factual or discretionary error, but that error may be identified from evidence which was not before the magistrate. This view is consistent with recent authority in this Court. [10]
Two other matters were relied upon in Gianoutsos. The first was the distinction drawn, by contrast with an appeal to the Supreme Court against conviction, between an order setting aside the conviction and an order "setting aside the conviction and remitting the matter to the Local Court … for redetermination in accordance with the Supreme Court's directions". [11] There are two reasons for doubting the value of the comparison. First, appeals from the Local Court to the Supreme Court against conviction or sentence can only be made as of right "on a ground that involves a question of law alone." [12] Where an appeal is brought on a ground that involves a question of fact or a question of mixed law and fact, leave is required. [13] The different functions of the Supreme Court provide a basis for the statement of powers in a different form. Secondly, and consequentially upon the first point, it is understandable that, where there is an appeal on a question of law, the statute should expressly provide for the Supreme Court to give directions as to how the matter is to be redetermined.
The final aspect of Gianoutsos to be noted is the reference to the reasoning of the Court of Criminal Appeal in Kurtic. [14] In that passage, Hunt CJ at CL stated that the Court of Criminal Appeal, exercising functions under the Criminal Appeal Act 1912 (NSW), "acts as a court of error." If error were established, and subject to the proviso to s 6(1), the power of the Court was to order a new trial: there was no power to make a finding that could have been made by the trial court. The point being made was that similar limitations applied where the trial was by judge alone, rather than before a jury. The contrary proposition, namely that the power to act otherwise than by ordering fresh proceedings would indicate that the court was not a court of error, is not to be found in the judgment. What is more, such a proposition would be inconsistent with the reasoning in Allesch v Maunz set out by the Chief Judge in Gianoutsos in the preceding paragraph. It is not in doubt that the District Court (a) does not conduct a hearing de novo, (b) is not limited to an appeal in the strict sense, but (c) is to conduct a rehearing. Kurtic may be put to one side.
Finally, with respect to Gianoutsos, it is important to note the context in which the reasoning appears. The judge in the District Court had dealt with the appeal as if it were a hearing de novo. In response to questions stated for the Court of Criminal Appeal, it was held (uncontroversially) that this approach was in error. It was clearly an error of law. The comments set out above were made in discussing whether it was an error of law (which could hardly be doubted), although that was also said not to be material to the resolution of the matter. [15] Most of the arguments set out above were therefore unnecessary for the conclusion reached and, except quite indirectly, did not support it.
In Director of Public Prosecutions v Emanuel, [16] Spigelman CJ (Tobias JA agreeing) noted that it was "common ground" that the District Court had no power to order a remitter to the Local Court. I suggested the following analysis: [17]
"[59] The second resolution is that a power of remittal exists on an appeal to the District Court. In Grassby v The Queen [1989] HCA 45; 168 CLR 1 Dawson J explained that a magistrates' court, although an inferior court with limited jurisdiction, 'undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise': at 16. These principles were adopted and applied in Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435 at [50]-[51] (Gaudron, Gummow and Callinan JJ), their Honours noting that reference to 'necessary implication' was to be understood as identifying a power to make orders 'which are reasonably required or legally ancillary to the accomplishment of the specific remedies' provided in the statute.
[60] The District Court had undoubted power to set aside the conviction and sentence: Appeal and Review Act, s 20. If the charges were to be pursued, that could only properly take place in the Local Court. There may be doubt as to whether an order of remittal were necessary. Assuming it was, it was arguably an order necessary to give effect to the judgment setting aside the conviction and was therefore within the implied powers of that Court, in the particular circumstances of the case."
This issue was also addressed in Director of Public Prosecutions (NSW) v Burns. [18] The issue in Burns was whether the District Court judge, having identified error of a kind relevant in the exercise of the supervisory jurisdiction, rather than an appeal on the merits, erred in "quashing" the conviction. The Court was unanimous in dismissing the Director's application for judicial review. After referring to the clear statement to similar effect in Commissioner for Railways (NSW) v Cavanough, [19] Beazley JA said: [20]
"The setting aside of a conviction is not equivalent to dismissing a charge or to finding a person not guilty, although on a successful appeal under s 11 that would be the intention behind setting aside the conviction."
Beazley JA (with whom Campbell JA agreed) considered whether there was an implied power to remit in circumstances where the intention was that the charge should be dismissed. The suggestion raised by me in Emanuel was rejected as not expressing a concluded view and as dealing with a different case. [21] Beazley JA was ultimately persuaded that the matter could be resolved by reference to s 73 of the Appeal and Review Act which states:
73 Evidence of setting aside of conviction or sentence
(1) If a conviction or sentence is set aside on an appeal, the registrar of the appeal court must cause a memorandum to that effect to be endorsed on the conviction or on the order by which the sentence was imposed.
(2) A copy of the memorandum is sufficient evidence that the conviction or sentence has been set aside.
What was not explained was how a recording that a conviction had been set aside amounted to the dismissal of a charge, in circumstances where the setting aside of the conviction did not have that effect.
I referred in Burns to the reasoning in Emanuel and Cavanough; I further noted that, on an appeal by way of rehearing, the appellate court will usually be entitled to intervene where it finds a material error. [22]
Before reaching any conclusion with respect to the options available to the District Court, it is convenient to return to the language in the statutory provisions. First, as has been noted, s 11(1) confers a right to "appeal" against a conviction. Although the term "appeal" is not always used in a technically correct sense, its use in combination with the provision in s 18(1) that the appeal "is to be by way of rehearing" is to adopt language which conventionally invokes appellate jurisdiction and not original jurisdiction, as would be the case with a fresh hearing. Yet to identify the function of the District Court as one in which the prosecution bears the onus of proving its case beyond reasonable doubt, in the absence of any demonstrated error on the part of the magistrate, is to import into the appeal a critical feature of a fresh hearing.
Secondly, although it is common for a statutory appeal by way of rehearing to permit the adducing of fresh or further evidence, there are always limits on that power. [23] The powers in ss 18 and 19 are broader. Section 18(1) provides the norm, namely that the appeal will be reheard "on the basis of evidence given in the original Local Court proceedings". That proposition is said to be subject to s 19, but it is also, by necessary implication, subject to s 18(2). The latter provision permits "fresh evidence" to be given by leave of the District Court and only if the Court is satisfied that it is "in the interests of justice". The term "fresh evidence" is defined to mean "evidence in addition to or in substitution for" the evidence given in the Local Court. [24]
The concept of evidence in substitution for evidence given at trial is somewhat ambiguous. There may be an inference that either party can withdraw evidence given before the magistrate, in the sense of excluding it from the record. There does not appear to be any discussion of such an approach in the cases, although there have been cases dealing with additional evidence, such as an attempt by the prosecution to rely on post-conviction admissions by the defendant. [25] The need to satisfy the Court that adducing such evidence would be "in the interests of justice" may make the tender of fresh evidence unusual.
The circumstances referred to in s 19 fall into a different category. Although the provision refers generally to persons being required to attend and give evidence, it appears to set its own criteria and thus does not operate by way of qualification to s 18(2). On that basis, it should be understood as referring to persons who gave evidence before the magistrate. Two categories are envisaged, namely evidence from persons who have been the victims of violence and other cases. The complainants in the present case would fall within the first category. Accordingly, the court could only direct that they attend to give evidence if satisfied that "there are special reasons why, in the interests of justice" that course should be taken. (It is not necessary to consider for present purposes the nature of the difference between "special reasons" - in par (a) - and "substantial reasons" - in par (b).) The critical issue, which again appears not to have been addressed in the cases, is whether the fact that the conviction depended upon the credibility of the victim would constitute a "special reason", making it in the interests of justice for her to be required to attend and give evidence. On one view, that must be a common occurrence, in which case it would be contrary to the plain intention of the provision, namely to protect victims of violence from repetitive court appearances, [26] because it would permit that to happen routinely.
The operation of the provision was not addressed in argument, there having been no application by either party to call any person who gave evidence before the magistrate. That raises two questions. First, does the District Court judge have a power to make a direction on his or her own motion? Secondly, if not, how is the judge to dispose of the appeal?
Again, the first question is largely theoretical in this case: there was no challenge to the failure of the judge to give such a direction. Accordingly, it should be accepted that the judge acted within power by seeking to dispose of the matter without hearing the complainants' cross-examined and without hearing the defendant give evidence.
The second question, however, becomes critical: if the onus were on the appellant to demonstrate some error on the part of the magistrate in order to have the convictions set aside, he did not do so and, for reasons given below, the judge did not fail to exercise his jurisdiction in concluding that there was no such error. On the other hand, if the onus on the appeal were, despite the lack of demonstrable error, on the prosecution to prove to the satisfaction of the judge that the defendant was properly convicted, it could not do so without the judge hearing the relevant evidence.
There is no authority which supports the latter conclusion. Adopting that conclusion would, to a large extent, make the appeal a de novo hearing where the case is one of oath against oath. That is entirely inconsistent with the conventional understanding of an appeal by way of rehearing; it is also inconsistent with the common statements that the appeal judge should be conscious of the "natural limitations" on his or her power to assess the record of evidence given before the magistrate. Those comments have never been accompanied by a suggestion that the judge should have the witnesses recalled; rather, at least implicitly, they assume that the judge should accept the credibility findings of the magistrate in the absence of some demonstrated reason to doubt them.
In Charara v The Queen [27] Mason P, having referred to the terms of s 18 of the Appeal and Review Act, stated: [28]
"The District Court is then required to apply the principles governing appeals from a judge sitting without a jury. The Judge is to form his or her own judgment of the facts so far as able to do so, ie recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court".
Mason P noted, referring to the civil case of Fox v Percy, [29] that the court must of necessity observe the "natural limitations" that exist where a review is undertaken on the record. [30] In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ stated: [31]
"These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole."
On the present application, counsel for the Director took the concept of limitations noted in Fox v Percy a step further. She identified the power of the appellate court to review factual findings based on credibility as available only where error is demonstrated by "incontrovertible facts or uncontested testimony" [32] or else, in quite rare cases, where the decision at trial is "glaringly improbable" or "contrary to compelling inferences". [33]
There are two reasons to approach such language with caution. First, where the court has a written judgment from the trial judge, as opposed to an opaque verdict of a jury, it may be possible to identify error in an assessment of credibility without demanding satisfaction of phrases expressed at a high level of generality and with a degree of hyperbole. Secondly, the exercise being undertaken in the criminal jurisdiction imposes a different frame of reference. Where, on an appeal from a conviction on indictment, it is alleged that a jury verdict is unreasonable or cannot be supported having regard to the evidence, or where error is otherwise established and the court is required to consider whether no substantial miscarriage of justice has actually occurred (the proviso [34] ), a somewhat similar exercise is required. Thus, in considering the application of the proviso, the High Court stated in Weiss v The Queen: [35]
"Three fundamental propositions must not be obscured. First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt."
In identifying the scope of the statutory task, the Court in Weiss then noted that, in making its own independent assessment of the evidence, and determining whether the guilt of the accused was proved beyond reasonable doubt, the appellate court will make "due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record". [36] The reference to "natural limitations" picked up the language of Fox v Percy at [23], [37] but did not adopt the emphatic language at [28] and [29].
Although the cases dealing with appeals (as distinct from further hearings) frequently refer to discernment of "error", that term has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was "wrong and should be corrected." [38] Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend upon a range of factors. [39] Indeed, a miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term. [40]
In considering the nature of the exercise to be undertaken by this Court, it is permissible to have regard to the errors sought to be identified in the District Court and the issues thereby raised for consideration by the primary judge. In short, with possible exceptions which need not be considered, it is not open to the applicant to allege a failure on the part of the District Court to exercise its jurisdiction by reference to challenges to the Local Court judgment which were not raised in the District Court.
Two further matters, one of principle and one of practice, should be noted. With respect to principle, in circumstances where the Court of Criminal Appeal was required to consider for itself whether the evidence supported a verdict of guilty, SKA v The Queen, [41] Simpson J declined to view a video of the complainant's evidence-in-chief on the basis that to do so might create an imbalanced impression as the court would not be viewing the evidence of other witnesses, nor indeed the cross-examination of the complainant. [42] In the High Court, a ground alleging error in that constrained approach was rejected. [43] Although the District Court judge did watch the videos, that exercise did not assist him in identifying error on the part of the magistrate. [44]
The issue of practice concerns the standard notice used to commence an appeal to the District Court from the Local Court. No standard form is prescribed, but one is supplied by the Court. For an appeal against conviction, the notice effectively requires that the appellant mark a box giving as the reason, "I am not guilty". That would be appropriate for a fresh hearing, but not for an appeal by way of rehearing. Arguably, the form itself does not comply with s 14(2) of the Appeal and Review Act which requires the notice to state "the general grounds of appeal." That statutory language implies the need to state, at least in general terms, some basis upon which the magistrate is thought to have erred.