Barrett v Director of Public Prosecutions

Barrett v Director of Public Prosecutions - [2020] NSWCA 270 - NSWCA 2020 case summary — Zoe

Judgment (ex tempore)

BRERETON JA: On 28 July 2016 there was an unseemly incident in Centenary Park Burwood involving the applicant Mr Barrett and one Mary Daley, which was captured on video on a mobile phone, apparently by Ms Daley's daughter. Because that video features in the argument and is important in a number of respects, I have scrutinised it.
It is understandable from a viewing of the video that Mr Barrett would feel more sinned against than sinning in the events which it records. That said, he was not without contribution to the circumstances. The video records him saying at one point the following words or words very like them: "Helen's going to bash you. Helen's going to bash you." Helen was and is Mr Barrett's wife.
Arising from the incident of 28 July 2016, Mr Barrett was charged with three offences. Initially they were an offence of common assault under s 61 of the Crimes Act 1900 (NSW) that he assaulted Mary Daley; a second offence under the same provision that he assaulted Mary Daley, which at a later stage appears to have been amended to refer to her daughter; and relevantly for present purposes, a third offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) of "stalk or intimidate intending to cause or fear of physical or mental harm (a personal violence offence)" that he did intimidate Mary Daley with the intention of causing the said Mary Daley to fear physical or mental harm. The supporting facts statement, under the heading "Offence 3 Intimidation", attributed to Mr Barrett as he walked away from the victim the words "Helen's going to bash you. Helen's going to bash you."
It is worth mentioning at this point that the third offence with which Mr Barrett was charged was not a domestic violence offence. The Crimes (Domestic and Personal Violence) Act does not deal exclusively with domestic violence offences. It deals also with personal violence offences. Section 10 makes clear that: "The object of this Act in relation to personal violence is to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship."
The offences provided for by s 13 are not confined to circumstances of domestic violence. Submissions that Mr Barrett was inappropriately charged with a domestic violence offence when he was not in a domestic relationship with Ms Daley, even if relevant to the proceedings before this Court, are therefore misconceived.
The charges against Mr Barrett came before the Local Court on 5 December 2016, when he was legally represented and entered a plea of guilty. That plea was entered as part of a so-called "plea bargain", whereby the first two offences, being the charges of common assault, were withdrawn and dismissed.
Contrary to submissions made to this Court, the plea was not withdrawn. At the conclusion of the hearing that day, after the plea had been entered, there was a discussion between Mr Barrett's counsel and the bench. Her Honour observed "Sequence 1 will be withdrawn and dismissed. Sequence 2 will be withdrawn and dismissed and plea of guilty to sequence 3 and facts of record", following which agreed facts were handed up. The interim AVO was continued, in circumstances where counsel for Mr Barrett suggested first that there was not yet a finding of guilt. To that her Honour responded "Well he's entered a plea" and counsel responded: "Withdraw that, your Honour. I guess I'm between a rock and a hard place. It will be ultimately sought that the matter be dealt with under s 32 your Honour."
The proceedings were then adjourned for sentence, or disposal under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW), at a later date. They were not adjourned for a defended hearing. It is transparently clear that what counsel was withdrawing was the submission that there was not yet a finding of guilt, when confronted with the obvious retort that a plea of guilty had been made. It will be necessary to return at a later stage to some of the circumstances which led to the plea of guilty.
Subsequently, Mr Barrett dismissed the lawyers who had acted for him to that point and retained others. An application was made to traverse his plea of guilty. That was dealt with by a magistrate on 24 July 2017 when Magistrate Richardson heard the application, including the applicant's evidence that he had been forced into pleading guilty, given no options, did not understand much about the plea or the s 32 application, and had signed the statement of facts without reading it. The magistrate dismissed the traversal application and adjourned the proceedings for sentence.
On 29 August 2017 the matter came before Magistrate Goodwin for sentence. The magistrate was presented with a statement of agreed facts. Those facts include the following, "As the accused walked away from the victim he yelled at the victim 'Helen's gunna bash ya. Helen's gunna bash ya'."
The magistrate observed that the facts were such that "It's hardly an intimidation at the upper end", and took into account, having viewed the video, that Mr Barrett pleaded guilty and had walked away, apparently a reference to what was observed on the video: "He shouldn't have used the bad language. He should have just kept walking, but there's certainly nothing physical. I don't think it would be inappropriate to put him on a bond, and how long are you seeking the order for?"
Her Honour classified the offence as one at the lower end of the range. As a result, Mr Barrett was sentenced, under s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), without recording a conviction, to a good behaviour bond and an accompanying final apprehended violence order for a period of six months.
On 1 November 2017, Mr Barrett filed an application for leave to appeal to the District Court. That application was filed outside the 28 day period in which an appeal of right from a conviction after a plea of not guilty might have been brought, though within the three month period. After the application was filed, the proceedings in the District Court had a tortuous history, but eventually came before Judge Hanley of that Court on 28 November 2019, when his Honour refused leave to appeal.
It is worth observing at this point that contrary to a submission made by Mr Barrett, there had been no earlier grant of leave to appeal. The mere fact that other judges had adjourned the proceedings for hearing on a later date, and set it down for hearing, does not involve a grant of leave to appeal, either by way of extension of time, or by way of permitting an appeal notwithstanding the plea of guilty. That this is so is clear from the observations of Judge Syme on 9 October 2019 when, after having adjourned the matter to 28 November and set it down for hearing for a full day, her Honour observed "I will be concentrating on whether you should be allowed to withdraw your plea of guilty or not."
Following the decision of the District Court on 28 November 2019, Mr Barrett on 23 December 2019 purported to file in this Court a notice of intention to appeal, which in ostensible conformity with the rules relating to appeals, indicated that a notice of appeal would be filed within three months of the material date, that is to say by 28 February 2020, a date which appeared on the notice of intention to appeal in handwriting which appears to be Mr Barrett's handwriting.
Because the decision of Judge Hanley was a decision of the District Court in the exercise of its appellate criminal division, no appeal lies, and that must have become known to Mr Barrett at some later stage, because on 6 May 2020 he filed a summon invoking the supervisory jurisdiction of this Court. That summons, which inappropriately named the New South Wales Police as the respondent, was subsequently amended to name the Director of Public Prosecutions as the first respondent.
Because the summons initiating these proceedings was filed more than three months after the judgment of the District Court, it was out of time and can only proceed if an extension of time is granted (see Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), r 59.10). UCPR r 59.10(3) specifies, without limitation, considerations that are relevant on an application for an extension of time. They include relevantly (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time if relief were to be granted, (c) the time at which the plaintiff became aware, or should have become aware, of the decision, and (d) any relevant public interest. In addition to those considerations the reason for and explanation for any delay will normally be a relevant consideration, as will be the ultimate prospects of success.
So far as concerns the question of the time when the plaintiff became aware of the decision, the delay in bringing the proceedings and any explanation for it, are concerned, Mr Barrett was present when Judge Hanley's decision was delivered. He was aware of it immediately. It is relevant that he attempted to bring proceedings for its review within time, albeit by the inappropriate notice of intention to appeal. It is also relevant from that notice of intention to appeal that he was conscious that 28 February was a very important date in the scheme of things. It may be that he only learnt belatedly that the notice of intention to appeal was inappropriate, and he has provided some faint medical evidence that he was unwell during the period.
Given his timely attempt to bring an intended appeal, and the fact that the summons though out of time is out of time perhaps by only a couple of months, and his albeit faint evidence of psychological conditions in the meantime, I would not for myself refuse leave simply on the basis that it was out of time and insufficiently explained. Nonetheless, the total effect of the passage of time since the events in 2016, and in particular since the sentence in August 2017 remains of relevance in the total matrix.
So far as Mr Barrett's personal interest in challenging the decision is concerned, there is no doubt that he is personally affected by it and has an interest in vindicating his position. That said, in the circumstances of this case and the passage of time, it needs to be borne in mind that his interest is somewhat moderated by the fact that the six month bond has long since expired, no conviction was recorded, the AVO has expired, and the conviction has become a spent conviction under Criminal Records Act 1991 (NSW), ss 5(a) and 8(4)(a), so that he is not required to disclose any information concerning the finding of guilt and it does not form part of his criminal history.
Thirdly, in terms of the public interest, there is an enormous public interest in bringing these already protracted proceedings to finality. In that context it needs to be borne in mind that if leave were granted, and if the application were to succeed, that would not be the end of the proceedings. The matter would then have to be reheard by the District Court where the outcome is unknown. If the appeal to the District Court succeeded, then there might have to be a further hearing of the prosecution itself.
As to prejudice, a matter on which Judge Hanley touched, but which to my mind is significant, is that the effect of ultimately upholding a challenge to the plea of guilty by whatever route would be to falsify the basis of a bargain struck on 5 December 2016 in circumstances where the other party to that bargain can no longer regain its position. The summary offences in sequence numbers 1 and 2 which were dismissed on that day cannot be revived. For that reason, significant prejudice would be occasioned to the Crown by an extension of time in which to mount yet another challenge to the plea of guilty.
Against the background of those procedural matters, I turn to the ultimate prospects of success of the application. As I have foreshadowed, the effect of District Court Act 1973 (NSW) s 176 is that this Court's jurisdiction to grant prerogative relief in respect of a decision of the District Court in its appellate criminal jurisdiction is limited to a case of jurisdictional error: see, for example, Jamal v Director of Public Prosecutions [2019] NSWCA 121; Tay v Director of Public Prosecutions [2014] NSWCA 267; and Lazarus v Independent Commission against Corruption [2019] NSWCA 100. A mere error of law, whether or not on the face of the record, is not jurisdictional error: see Gelle v Director of Public Prosecutions [2017] NSWCA 245 at [72]; Ghaderi v Director of Public Prosecutions [2018] NSWCA 119 at [11].
In order to consider whether there is any prospect of a challenge to Judge Hanley's decision succeeding, it is necessary to appreciate what was the question before his Honour. Because Mr Barrett's application to the District Court followed a plea of guilty, he did not have an appeal of right. The Crimes (Appeal and Review) Act 2001 (NSW) provides, by s 12(1), that a person who has been convicted by the Local Court following a plea of guilty may appeal against the conviction, but only by leave of the District Court. Further, the application required leave for the second reason, that it was out of time. Section 12(3) provides that an application for leave must be made within 28 days after the sentence imposed after the relevant conviction is made. Section 13 then provides that a person who could have made an application for leave to appeal under s 12 but for s 12(3), may appeal, but only by leave of the District Court. An application for leave must be made within three months after the relevant sentence.
Mr Barrett's application was made within the three month period, but outside the 28 day period. The effect of that is that the issue for Judge Hanley was whether leave should be granted, in circumstances where it was required on two grounds: first, that it was out of time; and secondly, that there was a plea of guilty. That required his Honour to consider first, why the application was made out of time, which is essentially the question of delay and the explanation for it; and secondly, whether an appeal should be permitted in the face of a plea of guilty, so essentially on that the question was, as it had been before Magistrate Richardson, whether there were grounds on which he should be permitted to traverse his plea.
In the background, but only in the background, lurked the ultimate prospects of the appeal succeeding. In the considerable material that has been filed on this application, and in the course of argument, as it seems to me only one potential ground of jurisdictional error has emerged. It is a form of jurisdictional error for a decision maker to fail to take into account a relevant consideration. Mr Barrett argued, in substance, that Judge Hanley failed to take into account the video evidence, because his Honour refused to look at it despite requests to do so. I am content to proceed on the basis that a failure to take into account relevant evidence could amount to jurisdictional error.
However, although the judge did not view the video, his Honour plainly read the transcripts which provided essentially a running commentary of that video. The transcript of the sentencing hearing before Magistrate Goodwin demonstrates that it was played before her Honour, and that it was commented on by Mr Barrett's counsel as it went, and also by the magistrate. In particular, in the course of the playing of the video, her Honour noted the words spoken in a male voice "Helen's gonna bash ya, Helen's gonna bash ya".
Judge Hanley plainly read that transcript before the magistrate. So much is apparent from what his Honour said. In the course of hearing the appeal, when questioned by Mr Barrett as to whether he had looked at the DVD, his Honour said "I haven't seen the DVD as I told you at the start, but I don't need to. I have to address why you should be allowed to file your application out of time." When Mr Barrett made submissions about what would be seen if the video were examined, his Honour said "The magistrate who sentenced you saw the recording. She's made comments about what she could hear on it" and "All of that is acknowledged on the record by the magistrate who saw and listened to the disk."
The ultimate question for the District Court judge on the application for leave to appeal, insofar as it turned on being permitted to traverse a plea below, was whether the plea had been entered in full knowledge of all the facts and intentionally as a plea to the charge. The inquiry which Judge Hanley undertook, as his Honour's reasons reveal, was directed essentially to that. His Honour observed that as the magistrate who had heard the plea traversal application had observed, he appeared to have been quite appropriately represented, including consultations for a number of hours, discussion with counsel, receiving advice, the exchange of instructions, and ensuing negotiations with the police culminating in the withdrawal of two of the charges. His Honour observed that it was clear from the documents tendered, including an affidavit of Mr Maxwell and annexures, that alterations were made to the facts that could only have been sourced from Mr Barrett and were favourable to the presentation of his final outstanding matter to be dealt with by the magistrate. His Honour added that all the alterations in the additional paragraphs clearly could only have come from Mr Barrett and were to his advantage in relation to the final presentation of the then outstanding plea. His Honour finally observed that Mr Barrett acknowledged in writing that he had read the amended facts and had agreed to plead guilty to the charge of intimidation and understood the police would agree to withdraw the two assault charges.
His Honour's conclusion was expressed in terms of the correct test: "It seems to me that on the material before me and before the magistrate you entered into the plea with the full knowledge of the facts intentionally to plead guilty, and you received the benefit of it initially by having the two other charges withdrawn, and ultimately by being dealt with pursuant to s 10(1)(b)."
In circumstances where that correctly articulated the issue for determination by his Honour, what appeared on the video was not a materially relevant consideration. Regardless of what the video showed made no difference to whether Mr Barrett entered into the plea with full knowledge of the facts intentionally to plead guilty. In those circumstances there was no error, jurisdictional or otherwise, in his Honour's declining to view the video at that stage.
In the matters referred to by his Honour compendiously, reference might be made specifically to two items in the correspondence. On 2 December 2016 Mr Barrett's then solicitor Mr Maxwell sent him an email which states relevantly: "I confirm that you have instructed us that you were willing to plead guilty to the charge of intimidation if the police were willing to withdraw the two assault charges…As we have advised you, given the evidence that the police will be relying on, we are of the view that this would be the best result for you in the circumstances. It would avoid the risk of all three matters proceeding to a hearing before the magistrate, and the chance that you could be found guilty on all or some of the charges. Please email me back confirming that these are your instructions and I will then proceed to contact the prosecution to see what type of deal can be negotiated."
Mr Barrett responded with an email on the same date as follows: "Hi Simon. Yesterday and the previous Friday were very traumatic days for me. I have felt devastated after both interviews with Mr Tyler-Stott [counsel]. He has put me in a position of not knowing where to go. I feel directionless. When we had our long conversation yesterday I want to thank you for settling me down. I appreciate it very much. I was feeling absolutely terrible and it was great to be treated with compassion. Myself and my wife have been dealing with this for longer than last July. Everybody, no matter who we go to, ignores us. There is no help out there. I am tired, weak, limp and traumatised. I actually don't care anymore. You are welcome to continue with the case on our behalf and work out the best result."
The sentiments that Mr Barrett expresses in that email are those confronted by many accused persons in the course of considering whether or not to plead guilty. Those sentiments of uncertainty about the future and balancing the risks concerned often influence a person to plead guilty at the time, which sometimes might later be regretted. That later regret is not a ground for impugning a plea made, apprised of the circumstances and intending to make it at the time.
For those reasons it seems to me that no arguable case of jurisdictional error on the part of the District Court judge is apparent. Having regard to the passage of time since the sentence was imposed, the relative inutility of granting relief if it were now to be granted, the great interest of the public and the parties in finality of these proceedings, and the very slight prospects of success, I am of the view that the extension of time which Mr Barrett requires to prosecute this application should be refused.
I am comforted in that conclusion by the circumstance that, though it is ultimately not a matter for this Court, it seems that no injustice has been done. The one thing that the video and the statement of agreed facts makes clear, and I do not understand Mr Barrett ever to have traversed, is that he uttered the words attributed to him, "Helen's gunna bash ya, Helen's gunna bash ya". It may well be, as I foreshadowed at the outset, that he was provoked or antagonised. Those were important mitigating facts, and the sentencing magistrate plainly had regard to those important mitigating facts in dealing with Mr Barrett very leniently. In my view, therefore, for what it is worth there has been no practical injustice.
I propose that time not be extended, and that the application be dismissed with costs.
BASTEN JA: On 5 December 2016 the applicant, represented by counsel, entered a plea of guilty in the Local Court to a single charge of a personal violence offence. On 24 July 2017 an application to withdraw the plea was dismissed. On 29 August 2017 the applicant was sentenced to a six month good behaviour bond. On 1 November 2017 he purported to file an application for leave to appeal to the District Court out of time. The final hearing of that application did not take place until 28 November 2019 when it was dismissed by Judge Hanley.
Again belatedly, on 6 May 2020, the applicant purported to commence proceedings in this Court out of time. He sought to do so by way of a summons seeking to review the judgment and orders of Judge Hanley.
No sufficient explanation of the delay in commencing proceedings in this Court has been provided. No arguable error of law or jurisdictional error on the part of the District Court has been identified. No basis has been established, therefore, for an extension of time within which to commence proceedings in this Court.
For these reasons, and for the reasons given by Brereton JA, I would: 1. refuse the application for an extension of time to file a summons in its supervisory jurisdiction, seeking to review the judgment and orders of the District Court given and made on 28 November 2019, and 2. order the applicant to pay the costs of the Director in this Court.
MEAGHER JA: I agree that the orders proposed by Brereton JA should be made for the reasons that his Honour has given.
BASTEN JA: The orders of the Court are as Brereton JA indicated.

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