Attorney General in and for the State of New South Wales v Potier

Supreme Court of NSW|2021-09-29|Before: Adams J

REASONS FOR DECISION UNDER S 78(1) OF THE cRIMES (aPPEAL AND rEVIEW) ACT 2001 (NSW)

By application filed on 1 March 2021, the applicant, Lucy Patricia Klewer, seeks an inquiry into her convictions for one count of common assault (contrary to s 61 of the Crimes Act 1900 (NSW)) and one count of intimidation (contrary to s 13(1) of the Crimes (Personal and Domestic Violence) Act 2007 (NSW)) pursuant to s 78(1) of the Crimes (Appeal and Review) Act 2001 (NSW) ("CAR Act"), as confirmed by Priestley SC DCJ on 15 October 2020.
The factual issues raised in the application are narrow; Ms Klewer contends that her evidence should have been accepted over that of the victim.
A threshold question arose as to whether Ms Klewer required the leave of the Court to bring this application given that in 2010 she was declared a vexatious litigant under what is now the Vexatious Proceedings Act 2008 (NSW) ("VP Act"). That threshold question concerns two separate considerations. The first is whether by making of an application under Pt 7 of the CAR Act Ms Klewer is instituting "proceedings". If the answer to that question is that she is not, then she does not require leave and I would consider the application. If the answer is in the affirmative, the second question is whether such proceedings are "criminal proceedings" within the meaning of s 8(9) the VP Act. If they are, then Ms Klewer does not need leave to bring this application. If they are not criminal proceedings then she requires the leave of the Court to bring this application.
Neither question has been judicially considered in the context of the current VP Act.

Background

On 5 February 2010, Harrison J made orders under s 84(1) of the Supreme Court Act 1970 (NSW) that Ms Klewer not institute any legal proceedings without leave of the Court and that any pending proceedings not be continued without leave: Attorney General in and for the State of New South Wales v Klewer (No 3) [2010] NSWSC 9. Those orders were made under the Supreme Court Act rather than the VP Act as the application was commenced in 2006 and the VP Act was not enacted until 2008. Under Sch 1 cl 3(2) of the VP Act, the decision of Harrison J was "taken to be (and to have effect as if it were)" a "vexatious proceedings order" made under the VP Act.
On 9 August 2018, Ms Klewer was convicted in the Local Court by Magistrate Gibson of two counts of intimidation and one of common assault. She was sentenced to a Community Correction Order for a period of 8 months pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The facts in relation to those convictions are summarised below at [60]-[74].
On 2 November 2018, Ms Klewer filed a Notice of Appeal against her conviction to the District Court under s 11 of the CAR Act.
On 26 November 2018, Ms Klewer appeared in person in the District Court at Coffs Harbour. King SC DCJ summarily dismissed her appeal on the basis that she was a vexatious litigant and had not been granted leave to bring the appeal.
Ms Klewer filed a summons in the Court of Appeal on 2 July 2019 seeking judicial review of King SC DCJ's decision to dismiss her appeal. She also sought leave under the VP Act to institute the judicial review proceedings.
By judgment delivered on 20 April 2020, the Court of Appeal granted leave under s 14(2) of the VP Act for Ms Klewer to bring the judicial review proceedings, set aside the District Court's decision of 26 November 2018 and remitted the matter to the District Court for determination: Klewer v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 69 ("Klewer (No 2)"). I shall discuss this decision further below.
Following the remittal, on 15 October 2020, Priestley SC DCJ allowed the applicant's appeal in respect of one count of intimidation and confirmed the other two convictions.

Part 7 of the CAR Act

The starting point for the consideration of whether making an application under Pt 7 of the CAR Act amounts to "instituting proceedings" under the VP Act is the statutory regime upon which Ms Klewer relies to bring these proceedings, which are as follows: 78 Applications to Supreme Court (1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person… 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (3A) … (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application)."
A decision under s 79 of the CAR Act is administrative in nature: Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 at [124]; Varley v Attorney-General in and for the State of New South Wales (1987) 8 NSWLR 30 at 49-50. There is no right of appeal from such a decision, although the decision may be reviewed judicially: Sinkovich v Attorney General of New South Wales (2013) 85 NSWLR 783; [2013] NSWCA 383 ("Sinkovich").
The scope of s 78 was considered by Johnson J in Application of Peter James Holland under s.78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 commencing at [4]. His Honour noted, inter alia, that the determination of an application under s 78 is not intended to provide an additional avenue of appeal after the usual avenues have been exhausted (at [9]) and that an application can be made when the criminal justice system has run its course, frequently because additional evidence has come to light which may raise a doubt or question as to a person's conviction or sentence (at [10]). The history of Pt 7 and its scope was also considered by Basten JA in Sinkovich at [33]-[41].
Section 79(3) of the CAR Act provides that the Court may refuse to deal with such an application if, inter alia, it has either been fully dealt with in the proceedings giving rise to the conviction or is subject of a right of appeal (or a right to apply for leave to appeal) but no such appeal or application has been made.

The Vexatious Proceedings Act

Section 14(2) of the VP Act provides that a person such as Ms Klewer, who is subject to an order under the VP Act prohibiting them from "instituting proceedings", may apply to an appropriate authorised court for leave to "institute proceedings" that they would otherwise be prohibited from instituting. The question is whether she is required to do so in relation to this application.
The VP Act was amended in 2018 and two of the amendments made at that time are relevant to this question. The background to the 2018 amendments, including extracts from the relevant second reading speech, are summarised in some detail by Bell P in Klewer (No 2) at [17]-[22]. I have extracted some of that history below at [42]-[44].
The first relevant amendment was to s 4 of the VP Act, which provides that "proceedings" under the VP Act includes: (a) any civil proceedings, criminal proceedings or proceedings before a tribunal, and (b) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and (c) any proceedings taken in connection with or incidental to proceedings pending before a court or tribunal, and (d) any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and (e) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.
The second relevant amendment to the VP Act was the insertion of s 8(9) which creates an exception for the institution of "criminal proceedings" as follows: A vexatious proceedings order does not stay, or prohibit a person from instituting or conducting, any criminal proceedings that are taken by the person in connection with or incidental to criminal proceedings against the person, except as expressly specified in the order.
As for whether bringing an application under Pt 7 amounts to instituting "proceedings" under s 4 of the VP Act, the Attorney General submitted that such an application would fall within the terms of subs (e) of s 4 on the basis that the application is a "matter" within the jurisdiction of the Supreme Court and/or that it calls into question the decision of a court. I am not persuaded that this is the case. There is authority for the proposition that it does not fall within subs (b) of s 4. The Attorney General relied upon the decisions in Attorney General in and for the State of New South Wales v Potier (No 2) [2015] NSWSC 238 ("Potier (No 2)") and Potier v Attorney General in and for the State of New South Wales [2015] NSWCA 129 ("Potier (CA)") on this question.
In Potier (No 2), Mr Potier sought a variation of his vexatious proceedings order to remove a stay on a Pt 7 application made before the imposition of that order. He submitted that an application under Pt 7 of the CAR Act did not fall within the definition of "proceedings" for the purposes of the VP Act because such an application was not an "inquiry" but only an application for an inquiry. McCallum J (as her Honour then was) rejected this submission and was satisfied that the application was a "matter" within the jurisdiction of the Court. Her Honour went on to express some doubt as to whether such an application was "a calling into question of a decision" on the basis that the verdict of a jury (the relevant decision maker in that case) may not be a "decision" within the meaning of the CAR Act: at [44]-[45]. Her Honour refused the application to vary the orders.
Mr Potier appealed against this decision. The Court of Appeal ultimately found it unnecessary to determine whether a Pt 7 application was a "proceeding". Instead, the Court amended the vexatious proceedings order to provide that Mr Potier's pending Pt 7 application was exempted from the order staying "any proceedings" already instituted by the defendant in New South Wales. Justice Leeming (Meagher JA agreeing) observed at [137] that: "It is probable that that order does not extend to Mr Potier's pending application for an inquiry under Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW). The primary judge held that it did, in her second judgment Attorney General in and for the State of New South Wales v Potier (No 2) [2015] NSWSC 238 at [44]-[45], on the basis that the application was a 'matter' within the meaning of s 4(a) of the Vexatious Proceedings Act, and thus a 'proceeding' for the purposes of that Act. With that I respectfully disagree. Mr Potier's application is not a 'matter ... within the jurisdiction of any court or tribunal' within the meaning of 'proceedings' because the judge determining it is not exercising judicial power and no appeal lies from him or her, although his or her decision may be reviewed judicially. As much is established by what was said in Sinkovich v Attorney General of New South Wales [2013] NSWCA 383; 85 NSWLR 783 at [12]-[13] … I agree with what Basten JA has written in relation to the operation of the Vexatious Proceedings Act on applications under Pt 7, including that it is unnecessary to determine whether s 4(c) of the definitions applied, and that the safer course is to exclude it expressly." (emphasis added)
Subsection 4(c) of the VP Act (as referred to above) became subs 4(e) of the VP Act following the 2018 amendments to that Act.
Similarly, although Basten JA (at [23]) expressed doubt as to whether a Pt 7 application was a "matter…..within the jurisdiction of any court", he too took the view that it was not necessary to consider whether such an application might fall within some other aspect of the definition such as what is now s 4(e).
The effect of the decision of the Court of Appeal is that an application is not a "matter... within the jurisdiction of any court or tribunal". That must be so given that a decision-maker considering an application under Pt 7 is exercising an administrative function rather than exercising the jurisdiction of the Supreme Court.
The Attorney General relied on s 4(e) of the VP Act, which provides that "proceedings" include: (e) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.
Although the question of whether such an application falls with s 4(e) of the VP Act is yet to be determined, the phrase "calling into question" in relation to an application for an inquiry into conviction was considered in a different statutory context in Kirk Group Holdings Pty Ltd & Anor v Workcover Authority of New South Wales & Anor (2006) 66 NSWLR 151; [2006] NSWCA 172 ("Kirk").
One of the remedies sought by the appellants in Kirk was an application under Pt 13A of the Crimes Act (the predecessor to Pt 7 of the CAR Act). The question was whether s 179 of the Industrial Relations Act 1996 (NSW) precluded such an application. It provided as follows: 179 Finality of decisions (1) A decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal. … (emphasis added)
Spigelman CJ (Beazley JA agreeing) observed at [16] that he did not consider that any of the avenues available to the Court under s 474E (now s 79 of the CAR Act) constituted "calling into question" the decision of the Industrial Court. His Honour observed at [18] and [21] that: "The finding of an 'appearance' of a 'doubt or question as to the convicted person's guilt' has the same quality as a finding that something is arguable, rather than 'deciding the point', to use the terminology of the High Court in Batterham. … I am of the preliminary view that the Supreme Court does have jurisdiction to make an order under s474E of the Crimes Act with respect to convictions in the Industrial Court under the OH&S Act. However, it is not necessary to finally determine this point."
Basten JA disagreed with Spigelman CJ's conclusions on that issue and observed at [135] that: "Although an inquiry would not itself have [the effect of reviewing, quashing or calling into question the decision], the outcome sought is a referral to the Court of Criminal Appeal where the applicants would seek to have their convictions quashed or set aside. The application will then be dealt with as if it were an appeal: Crimes Act, s 474L. No reason was suggested why this might not aptly be described as a review."
This decision is of only limited assistance given that the question in Kirk was not whether the making of an application called into question the decision of a court, but rather whether the exercise of the powers under what is now s 79 of the CAR Act had that effect.
I have considered the detailed and helpful submissions provided by the Attorney General, but I am not satisfied that Ms Klewer requires leave to make this application. As Basten JA observed in Sinkovich at [12], the consideration of an application under Pt 7 of the CAR Act is not an exercise of judicial power. Ms Klewer seeks that there be an inquiry into her conviction by a judicial officer under s 79(1)(a) of the CAR Act but I would only direct such an inquiry if it appeared that there was a "doubt or question" as to her guilt. Given that I do not have the power to quash her convictions, I am not satisfied that an application of this nature involves a direct "calling into question" of a decision. Although no finding was made either way in Potier (CA), I take some comfort from the doubt expressed by Leeming JA at [137] to the same effect.
Applications under Pt 7 are not assigned to either the civil or criminal jurisdiction of the Court. They are dealt with by a judge of the Common Law Division in Chambers acting in an administrative rather than a judicial capacity. Although I have published these reasons for my decision on Caselaw, it is not a judgment per se. The practice of publishing reasons for these administrative decisions on Caselaw is designed to make such decisions accessible to the public in the interests of open justice.
I am not satisfied that an application under Pt 7 falls within the definition of "proceedings" set out in s 4 of the VP Act. On that basis, I propose to consider Ms Klewer's application. Before I do, I propose to address the second question of whether an application under s 78 is a "criminal proceeding" for the purposes of s 8(9) of the VP Act, lest I am wrong in concluding that the application is not a "proceeding". The Attorney General also provided detailed submissions on this question.
There are two parts to s 8(9): whether the proceedings are "criminal proceedings" and whether they are "taken by the person in connection with or incidental to criminal proceedings against the person".
The first matter to note is that notwithstanding the amendments made in 2018, the term "criminal proceedings" remains undefined in the VP Act.
The Attorney General accepted that an application under s 78 would be in connection with, or incidental to, the criminal proceedings brought against the applicant. I accept that submission given the statutory language of s 8(9) and the fact that Ms Klewer's application is in its terms made in connection with or incidental to the criminal proceedings brought against her in the Local Court.
The more difficult question is whether an application under Pt 7 could be considered "criminal proceedings" for the purpose of the VP Act. Although this question was not addressed by the Court of Appeal in Klewer (No 2), in his judgment Bell P traced the history of the recent amendments and considered the question of whether an appeal to the District Court against a conviction in the Local Court is a "criminal proceeding" for the purpose of s 8(9) of the VP Act.
Bell P noted at [17] that s 8(9) of the VP Act was introduced following a report tabled in the New South Wales Parliament: see New South Wales Department of Justice, Report on the Statutory Review of the Vexatious Proceedings Act 2008, (May 2017) ("the Report"). That Report noted that: "… in any criminal proceedings brought against him or her, a litigant subject an order of wide application may be prevented from applying for bail, seeking a stay, applying to vacate a trial date, making procedural applications relating to prosecution, or appealing against a conviction (irrespective of whether the order was made in relation to his or her conduct in civil proceeding only). There is a fundamental distinction between restricting the capacity of people to bring unmeritorious civil proceedings against others, and restricting their capacity to defend criminal charges brought against them. Preserving the rights of individuals to fully defend criminal charges against them, and to apply for bail while any such charges are being prosecuted, is essential (noting also that section 73(1) of the Bail Act 2013 already provides that a court may refuse to hear a bail application if it considers the application is frivolous or vexatious, without substance, or has no reasonable prospect of success)." (emphasis added, footnotes omitted)
The Report went on to recommend that: "The Vexatious Proceedings Act 2008 be amended to provide that, unless a vexatious proceedings order expressly states otherwise, the order does not prohibit a litigant from making applications in criminal proceedings brought against him or her, or from making bail applications." (emphasis added)
His Honour further noted at [21] that the following was said in the second reading speech to the amending legislation (see New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 November 2017 at 59): "There is a fundamental distinction between restricting the capacity of litigants to bring unmeritorious civil proceedings against others on the one hand, and on the other hand restricting their capacity to defend themselves against criminal charges brought against them. It is essential that the rights of individuals to fully defend criminal charges against them, and to apply for bail, are preserved." (emphasis added)
Bell P observed at [27] that it was appropriate to characterise an appeal from the Local Court to the District Court under the CAR Act as a "criminal proceeding" because it involved an exercise by the District Court of its criminal jurisdiction. His Honour considered at [30] that it would not advance the purpose of the VP Act to require vexatious litigants to seek leave before appealing to the District Court under the CAR Act. His Honour went on to note at [31] the "fundamental right of a person to have the facility of an effective review of a serious criminal conviction": per Kirby P (with whom Campbell and James JJ agreed) in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at 692. His Honour concluded at [32] that in light of the Report and the purpose of the legislation, the exception in s 8(9) extended to the prosecution of an appeal against conviction or sentence.
Simpson AJA agreed with the orders proposed by Bell P. Her Honour considered (at [104]) that an appeal from the Local Court to the District Court was clearly a criminal proceeding under s 8(9) of the VP Act. She observed at [109]: "Appeals against conviction or sentence could properly be characterised as 'criminal proceedings … taken … in connection with or incidental to criminal proceedings …'. As the President has observed, they involve the exercise of criminal jurisdiction; in this case, the criminal jurisdiction of the District Court. In other words, the legislature intended to protect the appellate rights of [vexatious litigants] subject to criminal proceedings … so long as the exercise of those rights involved the invocation of criminal jurisdiction. "(emphasis added)
As to whether Ms Klewer required leave to seek judicial review of the District Court's summary dismissal of her appeal, Bell P held at [39] that the judicial review proceedings were not "criminal proceedings" even though they sought judicial review of a decision that "did have that character".
Similarly, Simpson AJA (at [109]) contrasted judicial review proceedings with a statutory right of appeal to the District Court against a conviction in the Local Court. Her Honour accepted that an application for judicial review of a criminal conviction or sentence could reasonably be characterised as "proceedings … taken … in connection with or incidental to criminal proceedings …" but did not accept that they would "in ordinary language" be characterised as "criminal proceedings" because proceedings for judicial review do not involve the exercise of criminal jurisdiction. Her Honour went on to state that s 8(9) of the VP Act was not intended to extend to "collateral rights, in the civil jurisdiction of the courts, to call in question the criminal process."
Basten JA dissented as to whether leave was required to bring the judicial review proceedings. His Honour observed at [74] that the judicial review proceedings had two purposes: to compel the District Court to exercise its statutory functions in accordance with law; and to determine the proper scope of the vexatious proceedings order. In relation to the first purpose, his Honour observed that the conclusion that leave was not required to bring the original appeal to the District Court required an in principle acceptance that the vexatious proceedings order did not extend to an application in the Court's supervisory jurisdiction, giving effect to the exercise of that criminal jurisdiction. As to the second purpose, his Honour considered that proceedings to determine the scope of a vexatious proceedings order should be outside the scope of the order itself.
The decision in Klewer (No 2) was applied in Kostov v Director of Public Prosecutions (NSW) (No 2) [2020] NSWCA 94 (per Bell P).
The decisions of Bell P and Simpson AJA in Klewer (No 2) had regard to the fact that an appeal under Pt 3 of the CAR Act involved an exercise of the District Court's criminal jurisdiction, while an application under s 69 of the Supreme Court Act, even if made in relation to criminal proceedings, did not engage the Supreme Court's criminal jurisdiction. Although an application under Pt 7 of the CAR Act is different again, involving as it does an administrative decision made by a judge of the Court, to adopt Simpson AJA's words, the carve out in s 8(9) of the VP Act could not be intended to extend to collateral rights in the civil jurisdiction of the courts to call in question the criminal process. Given that the present application is not in the "jurisdiction" of the Court at all, that observation applies with even more force.
In Patsalis v State of New South Wales [2012] NSWCA 307 the Court of Appeal consider the meaning of "civil proceedings" under the Felons (Civil Proceedings) Act 1981 (NSW) ("Felons Act"). In that context, Basten JA observed at [44] that while there are undoubtedly cases in which a reference to "civil proceedings" is made by way of distinction from "criminal proceedings", the language is apt to take its meaning from its context. His Honour observed at [46] that: "Proceedings may be classified according to (a) the nature of the relief sought, (b) the court in which the relief is sought or (c) the subject matter of the relief. Thus, an appeal may be civil if challenging an order in civil proceedings or criminal, if challenging an exercise of criminal jurisdiction. Like an appeal, judicial review proceedings can be instituted in respect of orders made in the exercise of civil or criminal jurisdiction."
Allsop P, agreeing with Basten JA, observed at [5]-[6] that the phrase "civil proceedings" must naturally take its meaning from context. His Honour considered the historical background to the enactment of the Felons Act and noted the distinction between "a private action to redress a wrong" and a "challenge to the exercise of public power", especially in circumstances where a person in custody is at all times under the control of public power.
The Attorney General drew attention to the definitions of "criminal proceedings" in s 3(1) of the Civil Procedure Act 2005 (NSW) and the Third Schedule to the Supreme Court Act in support of its contention that an application under Pt 7 is not a "criminal proceeding". The differences between these two definitions were noted. It was submitted that because an application under s 78 of the CAR Act did not fall within the definition of "criminal proceedings" under either the Civil Procedure Act or the Third Schedule to the Supreme Court Act it should be considered a civil proceeding.
The Attorney General also relied on Parker v Comptroller-General of Customs [2007] NSWCA 348 as authority for the proposition that the manner of instituting proceedings (in that case, by summons) was determinative (rather than the result of the proceedings, whether a conviction or some other order). In this way it was submitted that an application under s 78 was akin to a civil proceeding because it was commenced by way of summons. But other proceedings which are criminal in nature, such as proceedings for contempt under Pt 55 of the Supreme Court Rules 1970 (NSW) ("SCR"), are also commenced by way of summons: see SCR Pt 55 r 7 which requires a statement of charge to be included in the summons. I do not consider that factor to be determinative either way.
The position of the Attorney General was that, although the conclusion was not free from doubt, the better view was that an application under s 78 of the CAR Act was not a "criminal proceeding" under s 8(9) of the VP Act. I have come to the same conclusion. I do not consider an application under Pt 7 to be either civil or criminal proceedings.
For many of the same reasons that that I concluded that making an application of this nature is not "instituting proceedings" for the purposes of the VP Act, I am also satisfied that that an application of this nature cannot be categorised as "criminal proceedings" for the purposes of the VP Act.

Discretionary considerations: should I refuse to consider this application under s 79(3)?

I have considered whether to refuse to consider this application under s 79(3)(a)(iii) on the basis that the applicant has not exhausted her appeal rights, but I am satisfied that she has. Although Ms Klewer could have sought judicial review of the decision of Priestley SC DCJ in the Court of Appeal and, if unsuccessful, sought special leave to appeal to the High Court, I do not consider her to have any further statutory appeal rights. In any event, she would require leave under the VP Act to pursue the judicial review proceedings. The fact that she has not sought judicial review in circumstances where she requires leave to do so has led me to the view that she has in fact exhausted her appeal rights.
I have also considered whether I should refuse to consider this application under s 79(3)(a)(i) on the basis that the issues raised have all been fully dealt with in the District Court. On balance, although I am satisfied that all of the matters now raised were or could have been ventilated in the District Court, I propose to consider the application in the exercise of my discretion under s 79(3).

Background

The brief history of the convictions the subject of this application are as follows.
In 2017, Ms Klewer managed two holiday rental apartments, 1109 and 1110, belonging to her son and situated at a resort in Coffs Harbour.
In September 2017, Yvette Smith responded to an advertisement for apartment 1109 and following the signing of a holiday letting agreement on 19 September 2017 she was permitted to assume occupancy before making any payment. There was a dispute as to whether Ms Smith paid the required amount on 22 September 2017. The Magistrate found that it was likely that $300 was outstanding.
On 25 September 2017, Ms Klewer removed Ms Smith's belongings from the apartment and Ms Smith returned and placed them back on the same day.
Ms Klewer's position was that from that moment Ms Smith was a trespasser.
Ms Klewer then made enquiries with police and received advice to serve Ms Smith with a Notice to Quit.
Ms Klewer served a Notice to Quit on Ms Smith on 28 September 2017 by leaving it in the apartment. It stated the following: "YOU ARE TO VACATE THE PREMISES BY 4p.m. FRIDAY THE 29 SEPTEMBER 2017. FAILURE TO DO SO WILL RESULT ON AN ORDER FOR EVICTION BY THE LOCAL COURT WHICH NSW SHERIFF'S OFFICE WILL EXECUTE ON YOU"
Ms Klewer then went to see the Deputy Registrar at the local courthouse and was told that the notice would not achieve the eviction.
On the evening of 28 September 2017, Ms Klewer took her son to the hospital where she spent most of the night. On the way home the next day Ms Klewer stopped at the police station around 5.00am querying what to do given the advice she received from the Deputy Registrar.
Upon leaving the police station, Ms Klewer went to the apartment at around 5:50am and let herself in. The Magistrate found that she went there to confront Ms Smith and not in the belief that Ms Smith would be absent.
There was a dispute as to what occurred in the apartment on 29 September 2017. Ms Smith's evidence was that Ms Klewer ripped the sheets off her and dragged her out of bed by her right arm and screaming "get out of my house". Ms Klewer's evidence was that she told Ms Smith to leave and did not touch her.
With the assistance of the Magistrate, Ms Klewer the applicant cross-examined Ms Smith and put to her that she did not touch her. The cross-examination was as follows: "ACCUSED Q. You took the phone off me, like you said? You dragged me out of my bed. Q. I did not touch you. You ripped - Q. I went and said to you 'You shouldn't be here. You need to leave'. No. Q. 'We've already kicked you out. What are you still doing here?'; okay? HIS HONOUR Q. Did she say that to you? No. She came in and she ripped my blankets off, she dragged me out of my bed by my right arm as I stood up and she's crazy. ACCUSED Q. No, that's not true. It's like many of the lies you keep saying. You tell so many lies to the Court already. KIM: I object, you Honour. HIS HONOUR: Ms Klewer, you've been told and told and told and told."
The Magistrate found that Ms Klewer committed a common assault on Mr Smith by dragging her out of bed.
Ms Smith's evidence was that when she threw her phone outside the door Ms Klewer picked up a green candle. Her evidence was that Ms Klewer told her that if she "didn't get out of her house she was going to smash it over my head and she threatened to kill me".
The Magistrate found that Ms Klewer committed the offence of intimidation by threatening Ms Smith with a candle.
The procedural history of the Court of Appeal proceedings and the remittal to the District Court is set out above at [8]-[14].

The District Court proceedings

Ms Klewer was represented by Mr Rosen of counsel on her appeal to the District Court. Ms Klewer relied on her written submissions in the District Court in support of the present application. Those written submissions contended that the Magistrate erred in not permitting Ms Klewer to tender evidence relating to the holiday rental agreements. Ms Klewer submitted that this was relevant to determining whether Ms Smith was trespassing at the relevant time.
Ms Klewer further submitted that the Magistrate erred in failing to consider or make findings about her specific intent in relation to the intimidation offence. The third alleged error was in relation to the Magistrate's assessment of the witnesses and their evidence.
With respect to the first error it was submitted that the status of Ms Smith's occupation of the premises was relevant firstly because it determined the entitlements of both Ms Smith (to be in the premises and resist eviction) and the applicant (to enter the premises and exercise reasonable force to remove her), and secondly for establishing whether the applicant's exculpatory belief was rebutted by the prosecution including whether specific intention had been proved beyond reasonable doubt and whether the applicant could rely on self-defence. It was also submitted that the evidence established that Ms Smith was a trespasser and that the Court erred in failing to so find. The relevance of this point was said to be that the applicant was deprived of being able to raise self-defence, thus leading to a miscarriage of justice.
It was submitted that if the Magistrate had properly considered the evidence about trespass and reasonable force, the available evidence would have established that Ms Smith's failure to pay the required money terminated the rental agreement and that Ms Smith was aware that she was trespassing by continuing to occupy the premises. It was submitted that this supported Ms Klewer's argument about self-defence and her belief that she was entitled to remove Ms Smith from the property. Ms Klewer also relied on the fact that she called police from the property, complained of an assault and attended the police station with scratch marks on her face and arm. Ms Klewer submitted that there was no forensic evidence to support the assault on Ms Smith and that Ms Smith had a motive to lie and had limited credibility due to an allegedly forged receipt.
With respect to the second error it was submitted that there was available and irrefutable evidence that Ms Klewer's intention was to remove Ms Smith from the property as a trespasser and not to cause her to fear harm. Ms Klewer relied on the Magistrate's finding that Ms Klewer's actions were "done in desperation because Ms Klewer wanted [Ms Smith] out of the house". It was submitted that the Magistrate failed to consider the consequences of that finding in the context of the specific intention required for the offence of intimidation. Ms Klewer further submitted that the Magistrate failed to consider the issue of self-defence in relation to the intimidation offence. It was submitted that a proper consideration of self-defence would have resulted in a finding that the use of the candle was defensive and a reasonable response to the circumstances as Ms Klewer perceived them.
With respect to the third error it was submitted that in making his decision the Magistrate placed reliance on witnesses whose evidence was biased and unpersuasive and that his assessment of Ms Klewer, who was unrepresented, was flawed. It was submitted that Ms Klewer presented as emotional and argumentative because she considered herself a victim of the situation. It was further submitted that the findings in relation to credibility and reliability were illogical. Ms Klewer submitted that they were illogical as they suggested that the only possible cause of the scratches on the applicant's face and arms was that she inflicted them herself (as Ms Smith denied causing these injuries).

The decision of Priestley SC DCJ

The reasons for judgment were lengthy and I do not consider it necessary to summarise the judgment in its entirety. Instead, I note the following findings, relevant to the complaints now made by Ms Klewer.
At [7], his Honour took into account the advantage the Magistrate had in hearing the oral evidence and observing witnesses in the witness box.
At [35], [36] and [56], his Honour held that the Magistrate erred by not permitting evidence as to the lawfulness of Ms Smith's presence in the apartment at the time of the assault. His Honour further held that it was open to Ms Klewer to rely on self-defence even though she maintained that she did not touch Ms Smith.
At [38(9)], his Honour identified the Magistrate's reasons for rejecting Ms Klewer's account of what happened and identified some additional reasons for so finding as well as areas in which he would have taken a different view of the evidence.
At [38(10)] and [57], his Honour noted the Magistrate's finding that Ms Smith was an impressive witness despite credibility issues relating to payment and receipts. His Honour also noted, based on the transcript, that Ms Smith's answers were concise, clear and consistent.
At [44], his Honour noted that Ms Klewer contended for an error of law due to the Magistrate's exclusion of "documents relating to the rental agreements". It is not clear what evidence was excluded, and his Honour noted at [41] that evidence was admitted which went to the question of whether Ms Smith was trespassing in the apartment.
At [57], his Honour supported the Magistrate's assessment of Ms Smith's credibility and noted that it was open to the Magistrate to accept some but not all of the witness' evidence.
At [10], [12] and [58], in assessing Ms Smith's evidence his Honour considered Ms Smith untruthful with respect to her evidence that she paid $900 on 22 September 2017 (and the receipt produced in support of that contention) in circumstances where contemporaneous text messages indicated that an amount of $300 was outstanding.
At [11], [58] and [61], his Honour was not prepared to find that the receipt was a forgery because of the questions in relation to the origins of that receipt.
At [60], his Honour took into account the scratches on Ms Klewer's arm and face but found that they were consistent with the physical altercation described by Ms Smith and did not cause him to have a reasonable doubt about the alleged assault and intimidation.
At [61], his Honour gave reasons for preferring the evidence of Ms Smith to that of Ms Klewer. He considered that the applicant's version was inherently unlikely, and that Ms Smith's account was consistent with the surrounding evidence such as the text messages and the Ms Klewer's erratic and unreasonable behaviour in trying to obtain possession of the apartment.
At [65], his Honour identified the question of whether Ms Smith as trespassing and gave reasons at [66]-[68] for finding that she was not.

The current application

By her application filed on 1 March 2021 Ms Klewer seeks a review of the convictions imposed by Priestley SC DCJ.
The application is supported by Ms Klewer's affidavit sworn on 7 January 2021 in which she relies on the submissions made by her counsel in the District Court proceedings.
Ms Klewer has attached a number of documents to her submissions marked "D" to "P". These documents include the holiday rental agreement, emails, statement of claim, Local Court transcripts in relation to the proceedings against Michael Roberts, an allegedly forged rental receipt, handwritten notes, statements to police made by the applicant, Robert Klewer and Yvette Smith, and photographs of injuries sustained by a locksmith on 15 October 2017. Her submissions otherwise outline the details of the background of the matter before both the Local Court and the District Court.
Ms Klewer's submissions can be summarised as follows: 1. When Magistrate Gibson heard the applicant's Local Court matter in August 2018 he had recently convicted Ms Smith of stealing, three months earlier. The Magistrate should have had regard to this in assessing Ms Smith's evidence and her credibility, given that the hearing was word against word. 2. If Priestley SC DCJ had read the transcript of the Local Court proceedings before Magistrate Gibson he would have known about the Magistrate's denial and that "any reasonable judicial officer would have treated Smith's evidence in August 2018 as doubtful having committed a dishonesty offence". 3. Priestley SC DCJ made an error of law in finding that the Notice to Quit was valid and that it gave Ms Smith the right to remain on the property until 4pm on 29 September 2017. The applicant relied on Ms Smith's evidence in the Local Court in which she denied seeing the notice until December that year, although Ms Smith later said that she received it between September and December. 4. The Court should have found that Ms Smith was trespassing. The applicant submitted that the evidence before both the Local Court and the District Court raised a reasonable doubt about Ms Smith's evidence especially in the light of her "lies" about holiday rent payment, the allegedly forged receipt and the applicant's injuries.

Attorney General's submissions in reply

It was submitted that this application rests on three points: 1. The failure of Magistrate Gibson to take into account that in March 2018 he had convicted Yvette Smith of stealing a television set from her son's apartment; 2. That there were reasonable doubts about Ms Smith's evidence; and 3. That Priestley SC DCJ erred in finding that Ms Smith was not trespassing on the morning of 29 September 2017.
The Attorney General addressed these issues in written submissions. I have adopted some of those submissions in my consideration below and do not propose to repeat them here.

Consideration

Having had regard to the findings of both Magistrate Gibson and Judge Priestley I am left with no doubt or question as to Ms Klewer's convictions.
There was clearly no error on the Magistrate's part in not taking Ms Smith's previous conviction into account in circumstances where there was no evidence of that conviction before the Court. Nor was the matter put to Ms Smith in cross-examination. That offence was completely unrelated to the incident on 29 September 2017. I am not satisfied that the fact that Ms Smith had a conviction for a property offence for which she was fined would necessarily provide a reason for not accepting her evidence in relation to what happened on the day of the incident.
In fact, had the Magistrate taken "judicial notice" of Ms Smith's previous conviction when assessing her credibility, as Ms Klewer contends he was obliged to, he would have fallen into error.
With respect to the second argument relied upon by Ms Klewer, I do not accept that the Magistrate should have had a reasonable doubt about Ms Smith's evidence based on the fact that her evidence about making the initial payment in full was not accepted, that Ms Smith allegedly forged a receipt, and that on the applicant's version Ms Smith caused her injuries. In any event, the question is whether something now produced by the applicant raises a doubt or question as to Ms Klewer's guilt. This is not just yet another appeal in which Ms Klewer can raise the same arguments that she has raised twice before.
There is no inconsistency in the fact that the Magistrate, who had the advantage of seeing both Ms Smith and Ms Klewer give evidence, found Ms Smith to be an impressive witness despite the issues going to her credibility with respect to the payment of initial monies and the allegation that a receipt was forged. These findings were the subject of "a concerted attack" in the appeal to the District Court and Priestley SC DCJ dealt with them in his judgment in the manner I have extracted above.
The reasons of both Magistrate Gibson and Priestley SC DCJ were careful and considered. Magistrate Gibson, who saw and heard the evidence, made findings about the credibility of both Ms Smith and Ms Klewer and Judge Priestley respected the advantage that the Magistrate had in seeing and hearing the evidence.
No doubt arises with respect to the evidence of Ms Smith as to what occurred on 29 September 2017.
Finally, as for the complaint that Priestley SC DCJ rejected the applicant's argument about self-defence, it is to be noted that his Honour carefully addressed that argument in his detailed judgment, relevant portions of which I have extracted above. Further, his Honour dealt with the applicant's contention that the Magistrate erred in his ruling that he did not have to decide whether Ms Smith was there lawfully or unlawfully on 29 September 2017 in the passages I have summarised above.
I am left with no doubt or question as to the applicant's guilt and would refuse this application.

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: 29 September 2021

Crimes (Personal and Domestic Violence) Act 2007(NSW)

Third Schedule Supreme Court Rules 1970(NSW)

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