Charara v The Director of Public Prosecutions & Ors

Court of Appeal (NSW)|2001-05-07|Before: Powell JA, Giles JA

The application in this Court 31 The relief claimed in this Court was, in summary - (a) a declaration that Latham DCJ erred in law in refusing to state the case; and (b) an order that her Honour hear and determine according to law the application to submit the questions of law to the Court of Criminal Appeal.

For some reason the declaration sought referred only to the PCA offence and the resist arrest offences, and omitted reference to the assault police offences. This is not consistent with all else in the application, and I take the omission to be a mistake. 32 The claimant put the application as an application for orders in the nature of mandamus. If he is entitled to relief in the nature of prerogative relief, a declaration is unnecessary. If he is not entitled to relief in the nature of prerogative relief, it will not be appropriate to make a declaration leading nowhere. Attention may be focussed on the claim to relief in the nature of prerogative relief. 33 In Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 Kirby P observed (at 164) that, although s 5B of the Criminal Appeal Act was expressed in permissive terms, the obligation it imposed was a rigorous one. His Honour cited the explanation by Jordan CJ in Ex parte McGavin re Byrne (1945) 46 SR 58 at 60 -

"The word 'may' is prima facie facultative only; but it was pointed out in MacDougall v Paterson (1851) 11 CB 755; 138 ER 672 at 672 that 'Where a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised, to exercise the authority when the case arises and its exercise is duly applied for by a party interested and having the right to make the application … '. In my opinion it is the duty of a Chairman of Quarter Sessions to submit to the Court of Criminal Appeal any question of law which either party to the appeal may raise and ask to be so submitted unless, in his opinion, the question is so obviously frivolous and baseless that its submission would be an abuse of process."

Kirby P said that this authority had been applied many times. The concurring reasons of Priestley and Powell JJA proceeded upon the same basis. 34 The opponent did not submit that a question of law in relation only to sentence could not be submitted under s 5B of the Criminal Appeal Act. In R v Sirocic [2000] NSWCCA 325 questions of law arguably only in relation to sentence were entertained pursuant to s 5B, although it does not seem to have been suggested that such a course was not open. Given the opponent's stance, it is unnecessary to express a view in the present case. 35 There being a qualified obligation to state a case, the questions are - (a) whether the questions of law fell within the qualification, that is, were so obviously frivolous and baseless that their submission would be an abuse of process;

(b) if not, whether in declining to state a case Latham DCJ nonetheless erred within jurisdiction rather than failed to exercise jurisdiction; and

Frivolous questions of law? 36 The opponent pointed to the two occasions on which her Honour said that she regarded the application for a stated case as frivolous. It is necessary to explore her Honour's reasons for that view. For that purpose, a better understanding of R v Boney is desirable. 37 In R v Boney the offender was convicted of offences committed on 15 August 1987. He was sentenced on 16 April 1991. The sentencing judge referred to other offences committed after 15 August 1997. Grove J, with whom Mahoney JA and Newman J agreed, said - "The approach to be taken to such interim conduct between an offence for which a person stands for punishment and its time of commission has been the subject of authoritative approach from long ago. In The King v Withers (1789) 3 TR 428 Kenyon LCJ said: 'It is well settled that the conduct of a defendant subsequent to the time when he is found guilty, may be taken into consideration, either by way of aggravating or mitigating the punishment. In general it is done for his benefit, in order to extenuate the offence; but it is also done, if required, to aggravate. Though in such case the Court will always take care not to inflict a greater punishment than the principal offence itself will warrant.' The same approach was manifest in this Court in Reg v Hutchins (1957) 75 WN NSW page 75 where Street CJ said: 'I think it is clear that in sentencing the applicant in June 1957 for a crime committed in September 1954 his Honour was entitled to take into account as matters for his consideration the convictions which the applicant had incurred between those two dates and he was entitled to take them into account for the purpose of considering whether he should reduce what he would have otherwise regarded as the proper sentence because some leniency should be extended to the applicant in the light of his youth.' His Honour went on to describe the circumstances in which that claim to leniency may be forfeited by reason of interim offences. It is clear, however, as I understand the authorities, that the existence of such offences cannot be used in order to increase punishment for the principal offence." It was held that the sentencing judge had taken the interim offences into account for the purpose of withholding leniency, and in so doing had not erred. 38 It is obvious that, even if taken into account only for the purpose of withholding leniency, offences committed after the offence for which sentence is imposed can result in increased punishment in the sense that the punishment is greater than it would have been in the absence of the later offences. And to say that the 1998 offences were not used adversely to the claimant does not address whether those convictions and sentences were permissibly taken into account for the purpose of withholding leniency, or impermissibly taken into account in order to increase punishment for the offences for which the claimant was being sentenced. To say that the magistrate's sentences were only confirmed or were not increased, or that the extent of the exercise of the sentencing discretion was to determine that the magistrate's sentences were appropriate so that there was not an adverse result for the claimant, is consistent with impermissibly taking the 1998 offences into account. 39 Her Honour's reasoning as appearing from the transcript for 27 October 2000 seems to me to have been as follows. Because she neither increased nor decreased the sentences, but only confirmed them, she could not have erred in taking account of the 1998 offences. She had exercised an independent discretion in that, notwithstanding her view that the sentences imposed by the magistrate were lenient, she considered it appropriate herself to impose the same sentences. (Perhaps this was influenced by double jeopardy considerations of the kind underlying Parker v Director of Public Prosecutions (1992) 28 NSWLR 282). In the result the sentences were not increased, and the 1998 offences therefore were not used adversely to the claimant. There being no properly arguable question of law, the application for a case stated was frivolous. 40 In my opinion this reasoning missed the point. The claimant was submitting that, to the extent to which her Honour gave independent consideration to the sentencing, her Honour had taken into account the 1998 offences, and had done so in an impermissible way. What her Honour said did not meet that submission. She misunderstood the notion of use adversely to the offender, founded on R v Boney , on which the claimant relied. Although the sentences were not increased, there could be use adversely to the claimant if, in determining that it was appropriate to impose the same sentences as the magistrate had imposed, her Honour had taken the 1998 offences into account otherwise than for the purpose of withholding leniency. 41 Were the questions of law in the draft stated case nonetheless frivolous? If her Honour's reasoning on 27 October 2000 was deficient, it is necessary to go to what was said on 1 September 2000. I have already set out the material parts of the transcript and indicated their context of the record of the claimant's criminal history. 42 In my opinion, on a proper reading of the transcript in that context her Honour did impermissibly take into account the 1998 offences: at the least, she arguably did so. 43 Her Honour's consideration of sentencing began with the view that the claimant had been lucky not to have received a full-time custodial sentence at an earlier time. She can not have been entertaining the possibility of leniency. Further, even before being taken through the record her Honour picked out "a mid range PCA in 1998", and saw a pattern of driving while intoxicated and violence when pulled over. She said that "the PCAs [plural] seemed to be coupled with assaulting police officers and refusing to submit to breath analysis". 44 Her Honour's attention was then directed inter alia to the 1998 offences. 45 Her Honour then referred to a continuing disregard of the law in driving while under the influence of alcohol and ultimately violence, and said that she was "looking at these offences in terms of their totality". In the period from 9 September 1996 the only apparent driving-related offences were those committed on 15 December 1997 and the 1998 offences. The claimant had a truly appalling record, but there was only the one earlier offence of driving under the influence of alcohol, the PCA offence with which the claimant was charged on 9 September 1996. Her Honour had not been specifically directed to that offence. It is at least arguable that her Honour had in mind the 1998 offences when she referred to the totality of the offences, and took a more adverse view of the offences committed on 15 December 1997 than she would have done if the 1998 offences had been excluded from consideration; and that she did so not by declining to extend leniency to an offender who, but for the 1998 offences, would have been entitled to leniency. 46 In my view the second question in the draft stated case could not be categorised as frivolous so as to negate the prima facie obligation affirmed in Director of Public Prosecutions v Cassell . The first question was not appropriate, and should not have been submitted to the Court of Criminal Appeal, because Latham DCJ was clearly entitled to take the 1998 offences into account, albeit for a limited purpose. The second question, however, while suffering from ambiguity in "adversely to the appellant", was apt to raise for determination whether her Honour had taken the 1998 offences into account in a way established by R v Boney to be impermissible.

Error within jurisdiction? 47 In Director of Public Prosecutions v Cassell it was held that orders in the nature of certiorari and mandamus should be made, whereby the refusal of a District Court judge to state a case pursuant to s 5B of the Criminal Appeal Act was quashed and the proceedings were returned to the District Court for consideration of the application according to law. It was noted that s 146 of the Act provided, as it still provides, that no adjudication upon appeal of the District Court shall be removed by any order into the Supreme Court, but Kirby P said (at 167) - "The general object of this section is to prohibit the grant of relief in the nature of the prerogative writs directed by this Court to the District Court. However, it has long been established that an order made without jurisdiction, or in excess of jurisdiction, does not fall within the prohibition stated in s 146. See Ex parte Blackwell; Re Hateley (1965) 83 WN (Pt 1) (NSW) 109; A-G (NSW) v Dawes [1976] 1 NSWLR 242l at 245. A distinction has been drawn in the cases between those circumstances where the judicial officer has wrongly exercised jurisdiction and where there is, in substance, a failure, or refusal to exercise jurisdiction. In respect of the former, s 146 operates to prohibit relief from this Court. But not in respect of the latter." 48 The distinction may be difficult to draw in the particular case. In Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 Gleeson CJ said (at 399) - "As was observed by Glass JA in Wentworth v Rogers [1984] 2 NSWLR 422 at 433, the distinction between a real and an ostensible performance of duty, or between an actual and a constructive failure to exercise jurisdiction, is, in a context such as the present, easier to state than to apply. A magistrate, engaged upon the performance of the tasks imposed upon him by s 41, might be alleged by the prosecution or the defence to have fallen into various kinds of error of fact or of law. It might be claimed that he has misunderstood the evidence, or given too much or too little weight to particular parts of it, or misapprehended the law relating to the charge in question. Errors of this kind, however, would ordinarily constitute errors within jurisdiction rather than failures to exercise jurisdiction. By contrast, the error of the magistrate which resulted in the granting of relief in Wentworth v Rogers was described (1984 2 NSWLR 422 at 433) as 'a misunderstanding on his part as to the circumstances in which he had power to discharge (the defendant) under s 41(6)(a)'. In that case the magistrate's error was an error as to the nature of his powers and duties under s 41 rather than an error either of fact or law in the exercise of those powers or the performance of those duties."

49 But no narrow view has been taken of where there is a failure or refusal to exercise jurisdiction. In Director of Public Prosecutions v Cassell it was clear enough. The District Court judge had declined to state a case because he considered that s 5B did not permit him to do so once the appeal had been upheld. He was mistaken as to the boundaries of his jurisdiction. But in West v Director of Public Prosecutions [1999] NSWCA 398 it was held that, where a District Court judge had declined to state a case under s 5B of the Criminal Appeal Act because he considered the question of law unarguable and the application for a stated case therefore frivolous, he had effectively refused to exercise his jurisdiction. Priestley JA, with whom Meagher and Beazley JJA agreed, considered that the question of law was arguable, and said (at [19]) that - " … the law as stated in Cassell seems to me to be applicable here to the extent that the trial judge appears to have mistaken the nature of the question upon which he was asked to state a case, and effectively refused to exercise his jurisdiction to state a case in circumstances where he was bound to do so. My conclusion on this point depends on my opinion that the question of construction which the plaintiff was seeking to raise by way of stated case was an arguable and not frivolous question of construction." 50 In the present case I consider that, for the reasons I have explained, the second question in the draft stated case was apt to raise for determination a question of law which was at the least arguable, but in declining to state a case Latham DCJ misunderstood the notion of use adversely to the offender on which the claimant relied and thus mistook the nature of the question on which she was asked to state a case. The opponent did not submit that West v Director of Public Prosecutions was wrongly decided, or was inapplicable if it was thought that her Honour had mistaken the nature of the question on which she was asked to state a case: it did not suggest that what was said in Craig v The State of South Australia (1995) 184 CLR 163 at 178-80 affected the basis of that decision. On the authority of West v Director of Public Prosecutions , relief in the nature of prerogative relief is available.

Discretion 51 The draft stated case was defective in that it did not contain a statement of her Honour's reasons for confirming the sentences, and open to improvement in the framing of the second question. The opponent did not submit that relief in the nature of prerogative relief should be refused because of deficiencies in the draft stated case, accepting that in the normal course it would (or should) be modified to a suitable form and content before signature by her Honour. He submitted that relief should be refused because it was inevitable that, if Latham DCJ was held to have erred in law in the exercise of her sentencing discretion, sentences of at least the same severity would be imposed on the claimant in a resentencing. 52 The claimant accepted that he would undergo resentencing. He did not accept that sentences of at least the same severity would be imposed. We were informed that the claimant had served one period of weekend detention, but had then been bailed, so there was practical significance in possible sentences of lesser severity. 53 It is necessary to return to the events of 15 December 1997 and the record of the claimant's criminal history. I take the events of 15 December 1997 as accepted by Latham DCJ. 54 The claimant was pulled over when seen driving erratically, changing lanes without indicating and causing other cars to take sudden evasive action. He was approached by one police officer, who observed symptoms consistent with slight intoxication. The claimant produced his licence. The police officer obtained an alcometer from the police car and returned to the claimant's car, but before he could administer a roadside breath test the claimant wound up his window and locked the doors. 55 The claimant began to swear at and abuse the police officer in what her Honour described only as "rather graphic terms". A second police officer approached the claimant's car. The claimant got out of the car and demanded his licence, which the officers would not surrender until the claimant underwent the alcotest. The abuse continued, and at one point the claimant tried to re-enter his car. He was warned a number of times that he was facing arrest if he did not take the test. Ultimately the claimant was told that he was under arrest. 56 When one of the police officers went to take hold of the claimant, the claimant punched at him. There was a struggle between the claimant and the two police officers. As described by her Honour, the claimant was wrestled to the ground while swearing at and abusing the officers, who were having difficulty in handcuffing him because of his kicking and struggling. With the assistance of a third person, eventually the claimant was restrained and, still struggling, was placed in a police truck. In the course of this struggle he attempted to head butt one of the police officers and to bite the other. 57 The claimant's defence was that the police officers fabricated their account of these events, and that his arrest was the culmination of a long running campaign of racial harassment and victimisation against him waged almost single handedly by one of the police officers. He said that he was pulled over without justification, that he did not swear at or abuse the police officers, did not struggle or lash out or attempt to bite, but rather was the victim of police brutality. As I have said, the claimant and the witness whom he called were not believed. 58 The claimant's record included convictions for offences of resisting arrest and assaulting police, in association with other convictions for driving-related offences, with and for all of which he was charged on 26 July 1989 and convicted on 16 February 1990; resisting arrest and assaulting police with and for which he was charged on 6 January 1990 and convicted on 22 October 1990; resisting arrest with and for which he was charged on 23 February 1994 and convicted on 9 August 1994; and "assault s 61" (that is, assaulting a police officer in the execution of his duty) with and for which he was charged on 1 September 1995 and convicted on 23 January 1996. He was fined in increasing amounts for these offences. He had convictions for a number of other driving offences. 59 From 1995 the record included convictions for other offences involving violence. One was for malicious damage (charged 1 September 1995, convicted 23 January 1996), for which the claimant was fined. Another was for common assault (charged 17 March 1996, convicted 15 October 1996), for which the claimant was sentenced to a fixed term of five months. On the same dates he was charged with and convicted for malicious damage, for which he was given a recognizance in the sum of $500 for five years. Another was for malicious damage (charged 25 April 1996, convicted 22 April 1997), for which he was sentenced to a community service order for sixty hours. Relevantly the last such conviction before the events of 15 December 1997 was for malicious damage (charged 9 September 1996, convicted 15 October 1996): on 17 March 1997 in the District Court his appeal against the conviction was dismissed and he was sentenced to periodic detention for five months in place of the sentence imposed by the magistrate. 60 Even putting aside offences involving driving while under the influence of alcohol, this was the record of a man who had no respect for the persons or property of others or the laws protective of them and it, and in particular was not prepared to accept the performance of their duties by police officers. Offences against the exercise of lawful authority by police officers are regarded as serious, and as meriting ample punishment. The legislature has provided for penalties of imprisonment for five years (without actual bodily harm), seven years (with actual bodily harm) and twelve years (with malicious wounding or grievous bodily harm), see Crimes Act 1900 s 60. Although specifically concerned with a different offence under s 33B of the Crimes Act, in R v Hamilton (1993) 66 A Crim R 575 Gleeson CJ said (at 581) that in dealing with offences of that nature "it is incumbent upon the Court … to show an appropriate measure of support for police officers who undertake a difficult, dangerous and usually thankless task"; see also R v Marston (CCA, 23 February 1993, unreported) and R v Mitchell (CCA, 1 June 1994, unreported). 61 The claimant was convicted on the 20 September 1997 charge of driving with a low range concentration of alcohol, and so the PCA offence with which he was charged on 15 December 1997 was his second recent offence of driving under the influence of alcohol. In connection with that offence, and in circumstances which can only be said to show continuance of his disdain for the law and lawful authority, the claimant committed the resist arrest and assault police offences of 15 December 1997. He was still bound by his recognizance. He should have been well aware, from the sentences imposed on 15 October 1996 and 17 March 1997, that he was in danger of a custodial sentence if he continued to act in the manner I have described. In my opinion, without regard to the 1998 offences the sentences imposed on the claimant by the magistrate and "confirmed" by Latham DCJ were entirely proper, and the claimant can not expect any lesser sentences in the event that, following a favourable determination by the Court of Criminal Appeal on the stated case, he comes to be resentenced. 62 That is not an end to the question of discretion. The community has an interest in upholding the rule of law, and the claimant was entitled to due consideration of his application for statement of a case. Nonetheless, there is a discretion to deny mandamus, and the discretion may be exercised where it is clear that the tribunal will reach the same result on a reconsideration if it is sufficiently clear that that will be so: see R v City of Doncaster and Templestowe; ex parte Mayor (1970) 27 LGRA 193 at 202-3; R v Johns; ex parte Public Service Association of South Australia Inc (1971) SASR 206 at 209; R v Liquor Control Commission (1983) VR 303 at 312. The community's interest is balanced by an interest in its resources not being devoted to pointless exercises, and the rule of law is recognised and the claimant receives due consideration of his position in the course of the application for relief in the nature of prerogative relief. 63 In my opinion this is a case in which the discretion should be exercised against the grant of relief in the nature of prerogative relief. The facts of the claimant's offences of 15 December 1997 are known: they have been found, and there is no challenge to the convictions. The record of his criminal history is before us, and no other evidence was led before Latham DCJ for the purposes of sentencing. It was not suggested that other evidence would or might be led on a rehearing as to sentence. We are in as good a position to exercise the sentencing discretion as Latham DCJ or another judge of the District Court would be in the event that the claimant came to be resentenced. I consider that the sentences would have to be no less than those to which the claimant is presently subject, and that there is no utility in a grant of the relief sought.

The result 64 In my opinion the claimant's summons should be dismissed and he should be ordered to pay the opponent's costs. 65 IPP AJA: I agree with Giles JA. __________

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CITATION : Charara v The Director of Public Prosecutions & Ors [2001] NSWCA 140 FILE NUMBER(S) : CA 40874/00 HEARING DATE(S) : 7 May 2001 JUDGMENT DATE : 15 May 2001

LEGISLATION CITED : Criminal Appeal Act s 5B; Justices Act s 122. Budget Nursery Pty Ltd v Commissioner of Taxation (1989) 42 A Crim R 81; Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683; Craig v The State of South Australia (1995) 184 CLR 163; Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160; Ex parte McGavin re Byrne (1945) 46 SR 58; Parker v Director of Public Prosections (1992) 28 NSWLR 282; R v Boney (CCA, 22 July 1991, unreported); R v City of Doncaster and Templestowe; ex parte Mayor (1970) 27 LGRA 193; CASES CITED: R v Hamilton (1993) 66 A Crim R 575; R v Johns; ex parte Public Service Association of South Australia Inc (1971) SASR 206; R v Liquor Control Commission (1983) VR 303; R v Longshaw (1990) 20 NSWLR 554; R v Marston (CCA, 23 February 1993, unreported); R v Mitchell (CCA, 1 June 1994, unreported); R v Sirocic [2000] NSWCCA 325; Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397; West v Director of Public Prosecutions [1999] NSWCA 398. DECISION : Order the claimants summons be dismissed and he is ordered to pay the opponent's costs.

The claimant was convicted and sentenced by a magistrate. He appealed to the District Court ( Justices Act s 122). The appeal was by way of rehearing (s 132). The convictions and the sentences were "confirmed". The claimant asked the judge to state a case for the Court of Criminal Appeal ( Criminal Appeal Act s 5B) on the ground that the judge had impermissibly taken into account when sentencing convictions for offences post-dating the instant offences. The judge declined. The claimant sought an order in the nature of mandamus. Held - 1. There was an obligation to state a case unless the question was so obviously frivolous and baseless that its submission would be an abuse of process. Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160, applied. 2. The judge arguably had impermissibly taken into account the later offences. R v Boney (CCA, 22 July 1991, unreported) applied. 3. The stated case was not frivolous. 4. The judge had mistaken the nature of the question on which she was asked to state a case, and had effectively refused to exercise jurisdiction rather than erred within jurisdiction. West v Director of Public Prosecutions [1999] NSWCA 398, followed. 5. But as a matter of discretion the relief should be refused because sentences of at least the same severity would be imposed on the claimant on a resentencing. D. ________ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40874/00 DC 99/12/2108 POWELL JA GILES JA IPP AJA

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