Blissett v Director of Public Prosecutions

Blissett v Director of Public Prosecutions - [2021] NSWCA 253 - NSWCA 2021 case summary — Zoe

[3]

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was convicted in the Local Court on five counts of larceny as a bailee, contrary to Crimes Act 1900 (NSW), s 125. The offences related to the applicant's failure while engaged as a removalist to deliver as agreed the property of five complainants. He brought an appeal in the District Court against conviction under Crimes (Appeal and Review) Act 2001 (NSW), s 11. That appeal was dismissed on 20 October 2020. By summons filed 17 May 2021 in this Court, the applicant sought judicial review of the decision of the District Court confirming his convictions. The summons having been filed out of time, the applicant required an extension of the time for commencing proceedings under Uniform Civil Procedure Rules 2005 (NSW), r 59.10. The applicant raised 49 grounds of review, which alleged errors on the part of the Local Court and the District Court. These included that one of the two court attendance notices (CANs) by which charges had been brought had not been personally served on the applicant in accordance with the Local Court Rules 2009 (NSW); that the applicant was not accorded procedural fairness by the District Court when addressing his complaints that the audio recording of Local Court proceedings contained distortions which were not reflected in the transcript; and that both courts erred in their handling and rejection of his "claim of right" defence. The Court (Meagher JA, Gleeson JA and Simpson AJA agreeing) held, refusing an extension of time to file the summons and amended summons, and dismissing the amended summons with costs:

Being an application for judicial review of a decision of the District Court on appeal, this Court's jurisdiction under Supreme Court Act 1970 (NSW), s 69 was limited to review for jurisdictional error by reason of the privative clause in District Court Act 1973 (NSW), s 176: at [22] (Meagher JA), [92] (Gleeson JA), [93] (Simpson AJA). Spanos v Lazaris [2008] NSWCA 74; Gibson v Director of Public Prosecutions (NSW) (No 2) [2021] NSWCA 218 considered.
The applicant's grounds of review challenging the Local Court proceedings were incompetent while the District Court orders remained in force: at [26]-[29] (Meagher JA), [92] (Gleeson JA), [93] (Simpson AJA). Dyason v Butterworth [2015] NSWCA 52; Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115; Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105; Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 considered.
Personal service of the CAN in accordance with the Local Court Rules 2009 (NSW) was not a condition for the exercise of the Local Court's jurisdiction to hear and determine the charges under that CAN. The applicant was present in person on the first return date of that CAN, where he was represented by counsel, was in possession of a document informing him of the relevant charges, and entered pleas of not guilty to those charges. He also attended the next mention when the hearing date was fixed, and the first day of the hearing of the charges. In those circumstances, the Court was required to proceed to hear and determine the matter under Criminal Procedure Act 1986 (NSW), s 192(1): at [32]-[41] (Meagher JA), [92] (Gleeson JA), [93] (Simpson AJA). Criminal Procedure Act 1986 (NSW), ss 177, 190, 192, 196 considered.
There was no failure by the primary judge to accord the applicant procedural fairness when addressing his complaints as to the accuracy and completeness of the transcript of the Local Court proceeding, in circumstances where she listened to the entire audio recording of that proceeding and allowed the applicant to identify any issues as it played: at [59]-[68] (Meagher JA), [92] (Gleeson JA), [93] (Simpson AJA).
The primary judge did not err in her handling or rejection of the applicant's "claim of right" defence in the District Court, as he did not adduce any evidence in either the Local Court or District Court of his having had the requisite belief in a legal entitlement to do anything other than deliver the goods as agreed with the complainants. In any case, the grounds based on that defence raised questions of fact or law which, even if decided incorrectly, did not constitute jurisdictional error: at [71]-[86] (Meagher JA), [92] (Gleeson JA), [93] (Simpson AJA). R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310; Liristis v Director of Public Prosecutions (NSW) [2016] NSWCA 66 considered.

[4]

Judgment

MEAGHER JA: The applicant (Mr Blissett) seeks judicial review of the District Court's decision (R v Blissett, District Court (NSW), English DCJ, 20 October 2020, unrep) dismissing the appeal against his conviction in the Local Court on five counts of larceny as a bailee, contrary to s 125 of the Crimes Act 1900 (NSW). That appeal was brought under s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Appeal and Review Act). The application was made by summons filed on 17 May 2021, nearly seven months after the order of the District Court dismissing his appeal. The proceedings in this Court were required to be commenced within three months of the making of the challenged orders: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.10. Accordingly, the applicant requires an extension of the time for commencing the proceedings in this Court.
Mr Blissett's amended summons contains an explanation for his not commencing the proceedings before January 2021. He attempted to file a notice of intention to appeal in the Court of Criminal Appeal registry in November 2020, followed by an application to have a case stated pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). On each occasion he was advised by the registry that the proceeding sought to be commenced was incompetent. On the second occasion he was told of the possibility of a judicial review proceeding. He then made an unsuccessful application for Legal Aid at some time in January, following which he sought assistance from the Prisoners Legal Service. There apparently followed unsuccessful attempts to secure advice from that Service. However, the period of delay between January and May 2021 is not the subject of any satisfactory explanation.
The aggregate sentence imposed by the District Court following the dismissal of his sentence appeal was 18 months imprisonment commencing 21 May 2020 and expiring on 20 November 2021, with a non-parole period expiring on 20 May 2021. Mr Blissett was released on parole but remained in immigration detention at the time of the hearing in this Court.
The applicant has the onus of persuading this Court that there are proper grounds to grant the extension of time he seeks: Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369 at [80] (Basten JA). Rule 59.10(3) provides that in considering whether to extend the time for commencing proceedings beyond the three months provided, the Court should take into account such factors as are relevant, including any particular interest of the applicant in challenging the decision, the possible prejudice to other persons caused by the delay in making the application, the time at which the applicant became or should have become aware of the challenged decision, and any relevant public interest. Other relevant considerations include the length of and reasons for that delay, and whether the applicant's claim is fairly arguable: Dyason v Butterworth [2015] NSWCA 52 at [65].
The applicant obviously has an interest in challenging the decision which resulted in the dismissal of his conviction appeal. Otherwise this is not a case where, if the relief sought is granted, there is likely to be prejudice to any other person caused by the delay. Nor is there any particular public interest to be weighed other than that which discourages the pursuit of proceedings which are assessed to have little or no realistic prospects of success.
Mr Blissett's application, as the Crown has submitted, raises no issue of principle or question of public importance beyond that involved in ensuring that there has been no miscarriage of justice.
In this case, as with many similar cases in which this Court's supervisory jurisdiction is invoked in relation to the exercise of the District Court's criminal appellate jurisdiction, the task of assessing the applicant's prospects of success requires some consideration of the merits of each of the arguments sought to be made. For the reasons which follow, I am satisfied that Mr Blissett's application has no reasonable prospects of success. That being the position, his application for an extension of time should be refused. It follows that the amended summons must be dismissed with costs.

[5]

The offences and proceeding in the Local Court

The applicant was a removalist associated with a business known as "Rise Transport and Logistics" or "Rise T&L", which took delivery of property of various complainants pursuant to agreements to deliver that property (being household contents or personal possessions) to an agreed address at an agreed time for an agreed price. In relation to each of the five offences of which the applicant was convicted, there was a failure to deliver the property as agreed with the relevant complainant. In some of those cases, items of property had been disposed of or damaged. With respect to those agreements, each of the complainants also had some form of communication with Ms Debora Renderos, whom the applicant described in his ERISP (an electronically recorded interview) of 7 March 2018 as his "domestic partner" who had no "involvement in the business".
Seven charges were originally made, three by Court Attendance Notice H66056520 (CAN/520) and four by Court Attendance Notice H68642341 (CAN/341).
CAN/520 was served on 7 March 2018, when the applicant was first arrested, and returnable on 8 March 2018. The three complainants were Messrs Wilson, Khanna and Fullagar (counts 1, 2 and 3 respectively). Each of those charges resulted in a conviction.
CAN/341, according to the record of service copy of this notice, was personally served on 27 June 2018 and first returnable on 9 August 2018. The fact of service on the earlier date is contested by the applicant. CAN/341 charged four counts, the complainants being Messrs Edwards, Wilkinson, Cooper and Burgess (counts 1 to 4, respectively). The charges involving Messrs Edwards and Cooper were later dismissed after the prosecution did not call evidence in support of them. The applicant was convicted on the remaining two counts involving the property of Messrs Wilkinson and Burgess.
The charges were heard in the Local Court in Penrith on 29 January 2019, 22 May 2019, and 23 and 24 September 2019. It is not controversial that the Local Court had jurisdiction to deal with those charges summarily, under Criminal Procedure Act 1986 (NSW), s 260(1). The offence of larceny as a bailee in respect of property exceeding $5,000 in value is a Table 1 offence under Schedule 1 of that Act, and there was no election made by the applicant or prosecutor to have the offences dealt with on indictment.
At the commencement of the trial on 29 January 2019, Mr Blissett was represented by Mr Harrison of counsel. When the matter was first called, it was "stood in the list" for a short time. Mr Harrison then announced that Mr Blissett wished to represent himself and that he would be seeking leave to withdraw as counsel, and to remain at the bar table assisting Mr Blissett as a McKenzie friend. That leave was granted.
The magistrate then sought to confirm that Mr Blissett pleaded not guilty to the charges. The following exchange occurred: HIS HONOUR: Are you still pleading not guilty to all these charges? ACCUSED: The four charges, yes. PROSECUTOR: There is actually seven. HIS HONOUR: Yes, that's what I'm checking. There are seven charges, Mr Blissett. ACCUSED: Yeah. HIS HONOUR: Alright, it'll start as soon as possible.
At the time of this exchange, there was no suggestion that Mr Blissett had not been served with either of the CANs or that he did not have notice of each of the seven charges.
Each of the five complainants gave evidence and was cross-examined. Neither Mr Blissett nor Ms Renderos gave evidence. In his ex tempore judgment delivered on 24 September 2019, the magistrate summarised the effect of the complainants' evidence: All those complainants were subjected to cross-examination by Mr Blissett, who sought to show that it was essentially a commercial dispute, or a contract dispute whereby there was a dispute and delay and negotiation over payment. The Court notes that Mr Blissett did not give any evidence in this matter. He is not obliged to, but the Court was able to assess the believability of all the complainants. … The property was collected and then was never delivered and then subsequent emails, messages did not result in delivery of the property, delays, and on occasion requests for further payment. If they agreed to pay him extra then he would settle matters, or him insisting that they were disputing with him and therefore they were putting him to some inconvenience or financial loss.
The magistrate accepted their evidence, noting that it was supported by contemporaneous documents. Ultimately, he was satisfied that the applicant was a bailee of the relevant property and that, by not delivering the property and by requiring the payment of further money from the complainants, there was a fraudulent and dishonest misappropriation by the applicant. The magistrate imposed an aggregate sentence of 18 months imprisonment with a non-parole period of 12 months. An allowance was made for the time the applicant had spent in custody bail refused between 7 March and 4 July 2018.

[6]

The appeal to the District Court

On 24 September 2019, the applicant filed in the District Court a notice of appeal against his conviction and sentence. The appeal was heard by the primary judge (English DCJ) over ten days between 22 June and 20 October 2020.
On the first day, the applicant argued that the audio recording of the Local Court proceedings had been edited and distorted, and that these edited parts had been removed from the transcript. In the light of that submission, the primary judge determined to listen to the entirety of the Local Court proceedings using the audio recording held by Reporting Services Branch (RSB). Whilst that recording was being played, the applicant was given an opportunity to raise any issues as to its accuracy. The applicant's ERISP was also played separately. On the fifth day of the hearing (26 June 2020), the primary judge granted Mr Blissett's application for an adjournment to enable him to obtain expert evidence as to the integrity of the audio recording of the Local Court proceedings.
In the course of argument concerning the role of Ms Renderos in the making of arrangements with the complainants, the applicant asserted that the "email confirmation contract" with Mr Khanna had been removed from the Record of Exhibits of the Local Court, and therefore was not before the District Court. It was also said that an email to Ms Burgess dated 24 December 2017 had been added to the documents before the District Court, although it was not in evidence before the Local Court. The primary judge resolved these questions by calling for and obtaining the original file of the Local Court, which included the retained exhibits. In the course of the hearing of the appeal, the applicant also sought to challenge the validity of search warrants issued in the Local Court in respect of the storage facilities in which the complainants' goods were held.
In dismissing the sentence appeal, the primary judge also made allowance for the time the applicant had spent in custody between 24 September 2019, the date of his conviction, and 25 October 2019, when he was granted appeals bail.

[7]

The basis of review of the District Court decision

This Court's jurisdiction under Supreme Court Act 1970 (NSW), s 69 to review a District Court decision on appeal, by reason of the privative clause in District Court Act 1973 (NSW), s 176, is limited to review for jurisdictional error: Spanos v Lazaris [2008] NSWCA 74 at [14]-[15] (Basten JA); Gibson v Director of Public Prosecutions (NSW) (No 2) [2021] NSWCA 218 at [44] (Basten JA).
Mere errors of law or fact on the part of the District Court do not constitute jurisdictional error. In Craig v South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58, the High Court described an inferior court as committing a jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist". In Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72], the Court repeated the three examples given in Craig of circumstances in which an inferior court might entertain a matter outside the limits of its functions or powers, namely: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court [in Craig] said of this last example that 'the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern' and gave as examples of such difficulties… [citations omitted].
The third of these examples directs attention to the nature of the function of the District Court in hearing a conviction or sentence appeal. Each, under the Appeal and Review Act ss 17 and 18(1), is to be "by way of rehearing". In the case of the former, that is to be on the basis of evidence given in the Local Court proceedings except as provided by s 19. In the case of the latter, it is to be a rehearing of the evidence given in the Local Court, with an opportunity to adduce "fresh" evidence.
Focusing then on the former, the District Court is to determine an appeal against conviction by either setting the conviction aside or dismissing the appeal: Appeal and Review Act, s 20(1). In hearing the appeal, the District Court is not required to undertake a complete review of the whole of the evidence in order to form its own view as to the applicant's guilt regardless of the issues raised by the applicant: Lunney v Director of Public Prosecutions [2021] NSWCA 186. The issues and matters which the Court is to address in the appeal are informed by the matters raised by the applicant and the prosecutor's responses to those matters.
In the present case, as was the position in Dyason v Butterworth, the applicant seeks to challenge the final orders of the District Court on his conviction appeal, as well as orders said to have been made in the Local Court, although not those entering or recording the conviction or sentence. Where an applicant seeks to challenge the final orders in both courts, relief in the exercise of this Court's supervisory jurisdiction is not available in relation to the Local Court orders (Dyason v Butterworth at [34] per McColl JA, Barrett and Gleeson JJA agreeing): Once the District Court confirmed the Magistrate's order, its judgment operated as a judicial determination by a competent and higher authority that the Magistrate's order was correct and "holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary": Wishart v Fraser [1941] HCA 8; (1941) 64 CLR 470 (at 478) per Starke J. Further, as an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an "apparent legal effect" it will not be available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 88 ALJR 52 (at [25]) per French CJ, Crennan, Bell, Gageler and Keane JJ. See also Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [11]-[14] (Basten JA); and Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [52].
As was observed in Garde v Dowd, a challenge to an order of the District Court may be made on the basis that it made the same jurisdictional error as was made in the Local Court. The circumstances in Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 at [30]-[31] provide an example. If that challenge were successful, the District Court order would be liable to be set aside, leaving the question whether any final order of the Local Court should then be set aside (as to which see Supreme Court Act, s 69(3)(b)).
By his amended summons, the applicant seeks orders quashing the District Court's orders of 20 October 2020 dismissing his conviction appeal. The applicant also seeks orders quashing the "decision" of the Local Court "on 29 January 2019 to commence and hear" the four charges of larceny made by CAN/341 and the three charges of larceny made by CAN/520. That was the first day of the hearing before the magistrate. The transcript does not suggest that there was any application made to vacate or adjourn that hearing, and at the end of that day the matter was marked as part heard and set down for further hearing on 22 May 2019.
Two things are immediately apparent. First, no substantive orders were in fact made by the Local Court on 29 January 2019 and the orders described as made on that day would have been spent on the making of the final orders relating to conviction and sentence: see Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [25]. Secondly, in view of the orders made by the District Court in determining the appeals, any application to set aside or quash the Local Court orders was incompetent whilst the District Court orders remained in force.

[9]

Grounds 1 to 3: Service of CAN H68642341

The applicant maintains that CAN/341 was not served on him on 27 June 2018 as the "record of service copy" relied on by the respondent asserts. That record contains a statement under the heading "Service Details" in the following terms: "I have served on ACCUSED/DEFENDANT a copy of this notice IN PERSON at 1:36pm on 27/06/2018 at Windsor POLICE STATION". There follows the typed name "DETSGT TERRENCE HINDS (25968), Windsor". The applicant maintains that the fact of the four additional charges was first brought to his attention on 9 August 2018, the first return date of that CAN, at which point he says he was informed of the additional charges and using his phone took a photograph of each page of the police fact sheet. A copy of those pages was in evidence before this Court. It identifies the four charges on page 1 and in the narrative of facts which follows, each of the relevant complainants and the circumstances of the alleged offending are set out. The applicant submits that because CAN/341 was not served on him, the Local Court did not have jurisdiction to hear the four counts charged by that notice. It follows, he submits, that the Local Court's joint hearing of the seven charges "was prejudicial and biased to the hearing of any matters concerning" CAN/520.
In response, the DPP contends that the "record of service copy" is some evidence that personal service was effected in accordance with Criminal Procedure Act, s 177 and Local Court Rules 2009 (NSW), r 5.9(1)(a). It is unnecessary at this point to consider any question as to the admissibility of that copy as evidence of service in accordance with the statement set out above (cf Evidence Act 1995 (NSW), ss 59, 65, 66, 69). That is because the DPP's more fundamental contention is that personal service of the CAN in accordance with the Local Court Rules is not a condition to the exercise of the Local Court's jurisdiction to hear and determine the relevant charges.
Whilst s 177 of the Criminal Procedure Act requires that a court attendance notice be served in accordance with the Local Court Rules, that is not a fact on which the Local Court's jurisdiction in summary criminal proceedings depends. Criminal Procedure Act, Ch 4 Pt 2 Div 3 deals with hearings of summary proceedings in the Local Court. If the accused is not present on the first return date for a court attendance notice, the Court must notify him or her of the date, time and place of the proposed hearing (s 190(2)). If the accused is not present on that first return date, the Court cannot proceed to hear and determine the matter "unless it is satisfied that the accused person had reasonable notice of the first return date or the mention date" (s 190(4)).
The Act then deals with the position where both parties are present at the day, time and place set for the hearing and determination of the proceedings (s 192) and the position if the accused is not present at that time (s 196). If the accused is not present, s 196(3) provides that the court "may not proceed to hear and determine the matter unless it is satisfied that the accused person had reasonable notice of the first return date or the date, time and place of the hearing". If both parties are present, the court is to proceed to hear and determine the matter having first stated "the substance of the offence to the accused person and [asked] the accused person if the accused person pleads guilty or not guilty" (s 192(2)).
In the present case, Mr Blissett was present on the first return date of CAN/341 and at the time fixed for the commencement of the hearing of the charges made by that CAN and CAN/520. Accordingly, the prohibitions in ss 190(4) and 196(3) against the Court proceeding to hear and determine the matters charged were not engaged.
The Local Court file and the photograph of the fact sheet produced by Mr Blissett reveal the following sequence of events in relation to the proceedings on CAN/520 and CAN/341. Mr Blissett was arrested on 7 March 2018 and remained in custody until released on conditional bail on 4 July 2018. The first return date for CAN/520 was 8 March 2018. The applicant was in custody, appeared by audio-visual link (AVL), and was represented by Mr Fowler. Bail was refused. There were further mentions with the same outcome on 29 March, 12 April, 11 May and18 May. On 31 May 2018, the three charges were fixed for hearing on 17 and 18 October 2018. On 17 October 2018, the applicant was present in person and was represented by Mr Harrison. The existing hearing dates were vacated, and the three charges were fixed for hearing on 29 and 30 January 2019.
The first return date for CAN/341 was 9 August 2018. On that day, the court record shows that Mr Blissett was present in person and represented by Mr Harrison, and that a timetable was set for service of the prosecutor's brief of evidence. The CAN coversheet records that a plea of not guilty (noted as "PNG" in relation to each of the four offences) was notified by or on behalf of Mr Blissett. That not guilty pleas were advised at this time is consistent with the direction made as to the provision of the prosecutor's brief and the handwritten note "PNG 9/8/18" which appears on the first page of the photograph of the fact sheet beside a curly bracket grouping the four offences. The court record of 9 August 2018 also notes with respect to CAN/341 that it "may be included in hearing on 17-18/10/18 police to confirm". At the next mention of CAN/341 on 20 September 2018, Mr Blissett was present in person and again represented by Mr Harrison. On that day the four charges which were the subject of that CAN were fixed for hearing on 29 and 30 January 2019. (As appears above, later on 17 October 2018 the three charges made by CAN/520 were also fixed for hearing on those two days.)
Accordingly, the position on the first return of CAN/341 was that the applicant appeared in person, was represented by counsel, had a document which set out the four charges and the facts relied on in support of each of them, and entered pleas to the four charges. The applicant was then present and represented at the further mention of that CAN on 20 September 2018, when the hearing date was fixed. He was also present on the first day of the hearing, at which time he advised that he wished to represent himself and confirmed that he pleaded not guilty to the seven charges before the Court (see [13]-[14] above).
No complaint was made at that time or during the hearing in the Local Court that the applicant was not aware of the charges made and of the underlying facts on which the prosecution relied. On 29 January 2019, with both parties present, there was no reason for the learned magistrate to think that "the matter should not proceed" (s 192(3)), and accordingly s 192(1) directed that the Court "must proceed to hear and determine the matter".
This analysis demonstrates that there is no substance whatsoever in grounds of review 1, 2 and 3.

[12]

Grounds 9 to 14: Unlawful creation of witness statements by police and irregularities in witness evidence in the Local Court

Although two complainants (Messrs Burgess and Fullagar) had signed witness statements, each gave her or his evidence in chief orally and was then cross-examined. The applicant points to inconsistencies between the dates on which the statements of those complainants were created or signed, and says that each relied on the statement when giving oral evidence. He asserts that the preparation of the statements was "unlawful" and that they were created by the police and not based only on each witness' recollection. Grounds 9 and 10 relate to Ms Burgess, and 11 and 12 to Mr Fullagar. Grounds 9 and 11 allege error by the Local Court in permitting the witness statement to be used when giving evidence. The actual use is not identified. Grounds 10 and 12 allege error on the part of the District Court in accepting as evidence the oral testimony of these witnesses which was based on the statements. Grounds 13 and 14 maintain that in giving their evidence the complainants were permitted to have access to "phones, statements and other documents". Ground 13 alleges error in the Local Court permitting that to occur, and ground 14 alleges error in the District Court in treating the oral testimony of those witnesses as "evidence given in the original Local Court proceedings": Appeal and Review Act, s 18(1).
None of this discloses any jurisdictional error on the part of the District Court. It was required to conduct an appeal by way of rehearing on the basis of evidence given in the Local Court. That evidence included the oral testimony of those witnesses. The witness statements were not tendered in the Local Court or in the District Court.
Nor, if it mattered, was there any apparent jurisdictional error on the part of the Local Court. No objection was taken in the Local Court to the use of statements or other material by witnesses when giving their evidence. Had objection been taken and a ruling made, any error in the admission or rejection of evidence or in subsequently assessing its probative value was within the Local Court's decision-making power and authority. In other words, the making of such an error was within that Court's jurisdiction: Craig v South Australia at 179; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4 at [73]-[74] (Gageler J).

[13]

Grounds 15-20, 24-25: Issues with evidence obtained by searches and seizures and removal of photographs from Crown bundle

In the course of police inquiries, search warrants were issued and executed: at premises at East Kurrajong on 5 March 2018; at a Storeall self-storage unit at South Windsor on 7 March 2018; and at a Rivendell self-storage facility at Vineyard on 7 March 2018. Photographs were apparently taken by the police of each of those properties or facilities.
Grounds 15, 17 and 24 allege error on the part of the Local Court in admitting into evidence material secured as a result of the execution of those warrants. Grounds 16, 18 and 25 allege error on the part of the District Court in rejecting the applicant's assertions that in executing the search warrants the police acted unlawfully and beyond the terms of the warrants. Grounds 19 and 20 contend that photographic and other evidence obtained during the searches of the two self-storage facilities was tendered in evidence in the Local Court but subsequently removed from the Crown bundle of exhibits produced to the District Court as constituting the material in evidence in the Local Court. The second of these grounds alleges error on the part of the District Court in "refusing to accept that photos had been removed".
Grounds 15, 17 and 24 relate to the admission or use of evidentiary material in the Local Court. None of the errors identified is capable of constituting a jurisdictional error of the District Court.
As for the remaining grounds, the primary judge dealt with the applicant's complaints about evidence obtained pursuant to the search warrants and as to whether photographic and any other material had been removed from the exhibits before the Local Court. Generally speaking, those matters were relevant to the evidence to be considered in the appeal, being either the evidence before the Local Court or fresh evidence sought to be led in the appeal. There was no evidence adduced in the District Court to support the assertion that the search warrants were invalid or that their execution involved conduct unauthorised by the warrants. Nor was any evidence led concerning the evidentiary material which execution of the warrants generated. Having noted each of these matters, the primary judge also recorded that there was no evidence to support the assertion that photographs or any other evidentiary material had been removed from the record of evidence before the Local Court (Judgment pp. 4, 52). In so proceeding, the primary judge was resolving issues raised by the applicant relevant to the evidence to be considered in the appeal, all of which were within her power and function in hearing and determining the conviction appeal. None of the grounds identifies any arguable jurisdictional error.

[16]

Grounds 28-34: Challenges in the District Court to the transcript and recording of the Local Court proceedings

Grounds 28 to 34 assert that the primary judge did not accord the applicant procedural fairness when addressing his complaints that the audio recording of the Local Court proceedings had been edited and distorted, including by "the deleting of audio and inserting or superimposing of other pre-recorded audio", and that the written transcript omitted those changes.
As is submitted on behalf of the DPP, the only possible discernible error raised by these grounds is a denial of procedural fairness. However, having regard to the way in which the appeal to the District Court was conducted, it is beyond argument that there was no "practical injustice" to the applicant in the way in which her Honour proceeded in response to his complaints that the transcript was inaccurate and had been "tampered with".
In January 2020, the applicant received from RSB a copy of the audio recording of the Local Court proceedings on "twelve separate CDs". In February 2020, he raised concerns as to the corruption of that audio record. They were repeated on the first day of the hearing before the primary judge. The primary judge suggested dealing with that issue by listening to the audio recording of the parts of the transcript with which the applicant took issue. In response, the applicant requested the primary judge to listen to "the whole lot of the audio". A direction was then made for the Crown to obtain the original audio recording from RSB. That was done, and her Honour proceeded to play the entire recording of the Local Court proceedings. That occurred over five hearing days. The applicant then sought an adjournment to obtain expert evidence substantiating the "distortions" complained of. The proceedings were adjourned to enable that to occur. At least five experts were approached. Eventually a "preliminary opinion" was obtained by the applicant from Mr Todd Hutchison of Forensics Australia who stated that the four audio files tested displayed no evidence of manipulation.
None of this suggests a denial of procedural fairness. On the contrary, specific and exhaustive steps were taken to address the applicant's challenge to the accuracy and completeness of the transcript of the Local Court proceedings.
There remains to consider the specific grounds relied on, which in some respects focus on matters which were immaterial to the reliability of the transcript.
Grounds 28 and 29 describe exchanges between the applicant and the primary judge early in the course of his argument concerning the applicant's request that the transcript of 24 September 2019 be amended to record that in the background "there's a female moaning as in a sexual orgasm manner". Notwithstanding her Honour's initial and justifiable incredulity as to what the applicant was suggesting, the primary judge was not distracted from thoroughly investigating the substance of his complaint.
Ground 30 contends that the applicant was denied a fair hearing because, for financial reasons, he was unable to obtain expert evidence to analyse the audio recording. Notwithstanding that the applicant may have had difficulties in obtaining expert evidence, he was granted an adjournment for the purpose of doing so, and did so to the extent that he secured a preliminary opinion which found no evidence of manipulation of the four audio files tested.
Grounds 31 and 32 complain about the primary judge's use of the original RSB recording rather than the twelve CDs provided to the applicant. The primary judge was justified in calling for and listening to the original recording. As that recording was played out loud and the applicant was given the opportunity to address the parts of the transcript and recording to which he took issue, there was no practical injustice in what occurred.
Finally, grounds 33 and 34 are directed to matters which were not relevant to the outcome of the applicant's conviction appeal. Ground 34 challenges the primary judge's finding that the applicant had been provided with access to a transcript of the Local Court proceedings whilst those proceedings were ongoing. While that may have provided an explanation for why the applicant did not raise any question as to the "corruption" of that transcript during the Local Court proceedings, it was irrelevant to her Honour's conclusion that the original RSB recording was reliable. Ground 33 takes issue with her Honour's direction, during the course of the sentencing hearing, that the twelve CDs provided to Mr Blissett by the RSB for the purposes of the appeal be retained by the District Court. That direction was made after the conviction appeal was dismissed and was not relevant to that decision.
None of these grounds identifies any jurisdictional error. Furthermore, it was not, and could not be, suggested that there was any apprehended bias on the part of the primary judge in dealing with this aspect of the applicant's appeal.

[18]

Grounds 38 to 42: Claim of right defence

The elements of the offence of which the applicant was charged under s 125 of the Crimes Act were that he was in possession of property as a bailee, that he took or converted that property to his own use, and that he did so fraudulently, in the sense that he intended thereby dishonestly to deprive that person of the property or of their lawful interest in the property.
In this context, a bona fide "claim of right" is a reference to a belief honestly held that an accused has an entitlement to or interest in the property which justifies the relevant taking or conversion which is the subject of the charge of larceny. Accordingly, an accused having a bona fide claim of right to the property is inconsistent with the mens rea that is an essential element of that offence. Where a claim of right is sufficiently raised on the evidence, it is for the Crown to negative that claim beyond reasonable doubt: see R v Fuge [2001] NSWCCA 208 at [24]; (2001) 123 A Crim R 310 and Liristis v Director of Public Prosecutions (NSW) [2016] NSWCA 66 at [4]-[8].
Grounds 38 and 42 allege errors on the part of the Local Court; the former in not considering whether the applicant had a bona fide claim of right to the property in question, and the latter in not proceeding on the basis that the defence could only be made out if each contract of bailment was null and void. Neither of these asserted errors could constitute a jurisdictional error on the part of the District Court; and the second proposes a basis for proceeding which is wrong as a statement of the legal position.
By the remaining grounds, the District Court is said to have erred in not referring to the prosecution's onus of negativing the claim of right in the event that it was sufficiently raised by the evidence (ground 39); in finding that the applicant failed to adduce evidence which sufficiently raised any claim of right (ground 40); and in not considering whether such a bona fide claim of right was sufficiently raised and not negatived by the prosecution (ground 41).
There are two answers to these grounds. The first is that whilst the applicant claimed to have a "claim of right", he did not identify either in the Local Court or in the District Court any claimed legal entitlement which justified his non-delivery of the goods in accordance with each agreement, his withholding of the goods, his requests for agreement to pay further moneys in return for delivery up of the goods, and, in some cases, the disposition of the goods or their being damaged or destroyed. Simply put, the applicant's position in this Court was that he was entitled to "hold possession of the items subject of a contract in dispute" either until a resolution was reached between the parties, or failing a resolution, then either Fair Trading, NCAT or the Local Court would "settle the matter by determining the contract's terms and conditions" and make orders based on that assessment or interpretation (Applicant's Amended Summons, [61]). It would seem that position has evolved over time. No evidence was given in the Local Court of his believing he had an entitlement to do anything other than deliver the goods in accordance with the various agreements.
The second answer to these grounds is that they raise questions of fact and law which the District Court was required to address in determining the conviction appeal. Even if, contrary to my view, the District Court erred in determining those questions, it was within its jurisdiction to make those errors.
Returning to the first answer to these grounds, it is instructive to record the applicant's position as it was put in the Local Court. The applicant characterised the disputes between him and each of the complainants as being of a "commercial nature". In his final address he did not identify any basis on which he believed that he was entitled to retain the property rather than to deliver it as he had agreed. In his short closing argument he used the expression "claim of right", but not in any sense as referring to an honest belief which he held as to his being entitled to withhold the property (or to dispose of it): To be a bailment there must be a bailor and there must be a bailee and there must be a transfer of items. It's for the Court to decide if that has occurred or not occurred in each of the matters before it. It is for the Court to decide whether the claim of right is - negates the fraudulent element of larceny as a bailee. There was clear communication with each of the complainants. There was civil proceedings on foot. It's for the Court to decide whether the elements are met and I shall leave it in the Court's hands and on the evidence provided from the witnesses to see if those elements have been met.
In his concluding reasons, the magistrate recorded: All those complainants were subjected to cross-examination by Mr Blissett, who sought to show that it was essentially a commercial dispute, or a contract dispute whereby there was a dispute and delay and negotiation over payment. The Court notes that Mr Blissett did not give any evidence in this matter. … The property was collected and then was never delivered and then subsequent emails, messages did not result in delivery of the property, delays, and on occasion request for further payment. If they agreed to pay him extra then he would settle matters, or him insisting that they were disputing with him and therefore they were putting him to some inconvenience or financial loss. … The Court finds that in the circumstances of each of the witnesses whose evidence it summarised, being Mr Fullagar, Mr Wilkinson, Jatin Khanna, Tim Wilson and Corinna Burgess, that there had been a fraudulent conversion in that all the witnesses clearly specified that the goods were to be delivered at fixed times and that by their regular and constant communications after failure to deliver and responses by the accused in terms of requiring more money, in some cases saying that they had caused him inconvenience and therefore the price has to be increased, and the finding of many of the goods in a poor state of repair or simply never found in properties at Vineyard and other places.
In the Local Court, there was no claim of right which went beyond the applicant's assertion that there were disputes between the parties and that he was entitled to hold onto the complainants' goods until such time as those disputes were resolved. The magistrate rejected the suggestion that any contractual dispute which arose did so other than because the applicant had not acted in accordance with the terms upon which the goods had been delivered for carriage interstate for a fee, the balance of which was to be paid on delivery. In those circumstances, there was no error on the part of the Local Court in not addressing what the applicant described as his claim of right defence.
In the District Court, the applicant continued to justify his claim of right as founded on a genuine belief that he was entitled to hold onto possession until the disputes were finally resolved. The applicant did not identify any legal basis for his entitlement to refuse to carry or deliver up or return the goods. For example, he did not claim a lien for unpaid moneys. Nor could he have done so. The agreement between the parties provided for a part payment which had been made, with the balance to be paid on delivery at the place of delivery. Thus whilst he asserted a claim of right, the true position was that he did not regard his obligations under the contractual arrangements with the complainants to be as they contended. His position was that those arrangements were in issue until resolved by agreement or as determined by a court or tribunal. Until that time, he was entitled to retain possession of the property.
In exchanges with the primary judge in final address, the applicant maintained this position. For example, he contended: APPELLANT: … Going to the claim of right, it's - there's a reasonable claim of right to say I'm waiting for these proceedings to be concluded in NCAT.
Earlier in the course of argument, the primary judge had observed: As I understand it, you're asserting in your submissions that you have some sort of claim of right over the property, well with respect you certainly failed to produce any evidence of such claim in the Local Court. If it was your intention - sorry, if it is your intention that you, in some way, had a lien over the property, that is no defence to a charge that you acted fraudulently, as I have defined, with the intention to deprive the rightful owners of their property. Where there has been an appropriation of property, such as in this case, so as to usurp the rights of the true owner, the fact that you may have been intending to eventually restore the property to the rightful owners does not entitle you to an acquittal... … You have to prove that you, in some way, had a right to this property. I don't see how you can do that, with the greatest of respect.
The point the primary judge was making in argument was that the applicant's having appropriated the property as if it was his own, and disposing of some of it, was inconsistent with a claim to a lien which initially would justify withholding the property in return for payment of the moneys secured by the lien. That was not what had happened. The applicant had refused to deliver the goods unless the complainants paid more moneys than had been agreed to be paid on delivery.
In her reasons for judgment (p. 9), the primary judge disposed of the argument as to the claim of right briefly and in terms which reflected the earlier argument: The appellant asserted in his submissions that he had a claim of right over the property. With respect, he has failed to adduce evidence of any such claim. If it was his intention to assert that he had in some way a lien over the property, that is no defence to a charge that he has acted fraudulently, as I've defined, with the intention of depriving the bailors of their property. Where there has been an appropriation of property, such as in this case, so as to usurp the rights of the true owner, the fact that the appellant may have intended to eventually restore the property to its rightful owner does not entitle him to acquittal.
The point being made was that the applicant's conduct with respect to the property was inconsistent with a claim of right by way of lien, which would not entitle the holder of the lien to dispose of the property or to insist that payments beyond the amount due were made before the goods were delivered up.
The District Court addressed and dismissed the applicant's claim of right "defence" and did not err in law in doing so. More fundamentally, there was no jurisdictional error in any of the respects suggested.

At a glance

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Judgment (23 paragraphs)

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Legislation Cited (10)

Cases Cited (26)

Cited By (7)