CHARARA v THE QUEEN

Crimes (Local Courts Appeal and Review) Act 2001 Criminal Appeal Act 1912 Criminal Practice and Procedure NSW LEGISLATION CITED: Criminal Procedure Act 1986 Justices Act 1902 Justices Legislation Amendment (Appeals) Act 1998 New South Wales Parliamentary Debates, Legislative Council

Bell v Stewart (1920) 28 CLR 419 Carcosa Pty Ltd v Czerwaniw (1997) 93 A Crim R 287 CASES CITED: Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192 Fox v Percy (2003) 214 CLR 118 Gianoutsas v Glykis [2006] NSWCCA 137 The Queen v Apostolides (1984) 154 CLR 563

PARTIES: Jamal Charara The Queen

COUNSEL: Appellant: C V Jeffreys (Solicitor) Crown: J Giedham

SOLICITORS: Appellant: Jeffreys & Associate Crown: Director of Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL CCA 2006/736

MASON P KIRBY J HOEBEN J

Sections 18 and 19 of the Crimes (Local Courts Appeal and Review) Act 2001 provide:

18 Appeals against conviction to be by way of rehearing on the transcripts of evidence (1) An appeal against conviction is to be by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by section 19. (2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. (3) The parties to an appeal are each entitled to be provided with one free copy of the certified transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence. 19 Circumstances in which evidence to be given in person (1) The District Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied:

(a) in the case of an appeal that relates to an offence involving violence against that person, that there are special reasons why, in the interests of justice, the person should attend and give evidence, or

(b) in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence. (2) An application for such a direction may be made by a party to the proceedings in relation to a particular person only if notice of the party's intention to make such an application has been served on each other party to the proceedings within such period as the District Court may direct. (3) If an application for such a direction is refused, the District Court must give reasons for the refusal. (4) A direction may be withdrawn only on the application, or with the consent, of the appellant. (5) The regulations may make provision for or with respect to the determination of special or substantial reasons for the purposes of subsection (1). (6) Without limiting subsection (5), in determining whether special or substantial reasons exist, the District Court must have regard to whether or not the appellant was legally represented for the whole or any part of the original Local Court proceedings." HELD: (1) (Per Mason P, Kirby J and Hoeben J agreeing) An appeal under s 18 is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to exhibits tendered in the Local Court, and not an appeal de novo. ([14]-[16])

Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31], followed.

(2) Principles governing appeals from judges sitting without a jury apply; the appellate judge is to form his or her own judgment of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record. ([17]-[22])

Bell v Stewart (1920) 28 CLR 419 at 424-425; Fox v Percy (2003) 214 CLR 118; Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192 at 208-209, followed.

(3) Whilst the magistrate's reasons are certainly not part of the certified transcripts of evidence referred to in s 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them. ([23]-[24])

(4) A judge in such an appeal may call a witness of his or her own motion only in highly exceptional circumstances, subject to the judge being satisfied it was in the interests of justice to do so. ([26])

The Queen v Apostolides (1984) 154 CLR 563, applied.

(5) Section 19 addresses the oral testimony of individual witnesses only if the prior mandates of s 18 have been met; consideration occurs on a witness-by-witness basis and not en bloc. ([27])

ORDERS: Answer to case stated in the affirmative. Orders made by District Court quashed. Proceedings remitted to District Court.

IN THE COURT OF CRIMINAL APPEAL CCA 2006/736

MASON P KIRBY J HOEBEN J

Jamal CHARARA v THE QUEEN Judgment 1 MASON P: A case stated by His Honour Judge Delaney comes to this Court pursuant to s5B of the Criminal Appeal Act 1912. 2 On 1 April 2005 police stopped the appellant and indicated that a road side speed device had checked his speed at 107km per hour in a 70km per hour stretch of roadway. The appellant was issued with a traffic infringement notice. The appellant was convicted and sentenced on 4 August 2005 after a hearing in the Local Court. 3 The appellant exercised his right of appeal to the District Court, stating as his ground of appeal (cf Crimes (Local Courts Appeal and Review) Act 2001 (the Act), s14 (2)): "BECAUSE I AM NOT GUILTY". 4 The matter came before Judge Delaney for mention on 18 August 2005. His Honour set the appeal down for hearing before himself and directed that it was to proceed by way of the witnesses giving evidence before him. 5 The subsequent hearing before his Honour resulted in orders confirming the conviction, fine and licence suspension imposed in the Local Court. 6 The transcripts of the mention and appeal proceedings were placed before us, without objection. I have had regard to them only for the purpose of confirming my understanding of the facts stated by his Honour in the Case Stated with reference to the scope of the orders and procedure summarised therein. The judge records the following: (f) I set the matter down for hearing before me and directed that the appeal was to proceed by way of the witnesses giving evidence. (g) At the time I gave the direction there was no application by either the Appellant or the Respondent Director of Public Prosecutions for a direction pursuant to the provisions of section 19 of the Act. (h) I heard the appeal by witnesses giving evidence before me. 7 The transcripts confirm that (f) is to be understood as a direction that any testimonial evidence in the appeal would be received in the District Court by the calling of oral testimony in that Court, whether or not the witness had already given evidence in the Local Court and to the exclusion of any transcript of the witness's testimony in the Local Court. (Liberty to apply was reserved to the Crown if it had a "problem with" its witnesses.) 8 The transcript of the appeal in the District Court further confirms that (h) is to be understood as indicating that the appeal was heard and decided by his Honour on the basis of his assessment of the totality of the evidence given before him. That evidence included the testimony of the main Crown witness who was called afresh in the District Court, as well as the testimony of the appellant himself, who elected to give evidence in the District Court, not having done so in the Local Court. 9 The Case Stated poses the issues as follows:

3. APPELLANT'S CONTENTIONS The appellant contends: a. my direction made on 18 August 2005 and my proceeding to hear the matter by way of witnesses giving evidence before me was erroneous in point of law On the ground that: a. I made the direction when there was no application before me pursuant to the provisions of section 19 of the Act.

4. QUESTION OF LAW The question to be determined by the Court is: a. Did I err in law when I directed that the appeal was to proceed by way of the witnesses giving evidence at a time when there was no application by either the Appellant or the Respondent Director of Public Prosecutions for a direction pursuant to the provisions of section 19 of the Crimes (Local Courts Appeal and Review) Act 2001.

10 Sections 18 and 19 of the Act provide: 18 Appeals against conviction to be by way of rehearing on the transcripts of evidence (1) An appeal against conviction is to be by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by section 19. (2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. (3) The parties to an appeal are each entitled to be provided with one free copy of the certified transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence.

19 Circumstances in which evidence to be given in person (1) The District Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied: (a) in the case of an appeal that relates to an offence involving violence against that person, that there are special reasons why, in the interests of justice, the person should attend and give evidence, or (b) in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence. (2) An application for such a direction may be made by a party to the proceedings in relation to a particular person only if notice of the party's intention to make such an application has been served on each other party to the proceedings within such period as the District Court may direct. (3) If an application for such a direction is refused, the District Court must give reasons for the refusal. (4) A direction may be withdrawn only on the application, or with the consent, of the appellant. (5) The regulations may make provision for or with respect to the determination of special or substantial reasons for the purposes of subsection (1). (6) Without limiting subsection (5), in determining whether special or substantial reasons exist, the District Court must have regard to whether or not the appellant was legally represented for the whole or any part of the original Local Court proceedings. 11 "Fresh evidence" in relation to such appeal proceedings is defined in s3 of the Act to mean "evidence in addition to or in substitution for the evidence given in the proceedings from which the appeal proceedings have arisen". 12 Sections 18 and 19 substantially reenact ss132-133 of the Justices Act 1902, provisions inserted by the Justices Legislation Amendment (Appeals) Act 1998. The Attorney-General's speech upon the second reading of the Bill for that Act explained the policy behind the repeal of the old law relating to "all grounds" appeals to the District Court which involved "a full de novo hearing before the District Court requiring the court to rehear all the available evidence in relation to the matter" (New South Wales Parliamentary Debates, Legislative Council, 17 September 1998, p7595). The Bill arose out of concern about the amount of time the District Court was having to allocate to the hearing of appeals from decisions of Magistrates. There was also concern that, because of the delay in dealing with all-ground appeals, by the time they were heard the prosecution often had trouble obtaining the witnesses to reappear and give evidence again before the District Court. 13 The Attorney explained that the government had therefore decided to limit appeals to the District Court to a rehearing on the depositions of the Local Court, with provision for fresh evidence to be given by leave. (This policy was embodied in the provision now found in s18.) However, the Law Society and the Bar Association had argued that parties to appeal proceedings should continue to be able to recall witnesses on appeal who earlier gave evidence before the Local Court. Accordingly, the predecessor of s19 (ie s133 of the Justices Act) was inserted "to permit the parties to recall witnesses who gave evidence in the earlier proceedings before the Local Court if similar criteria to those set out in section 48E of the Justices Act, which applies in relation to the calling of witnesses in committal hearings, can be satisfied. (Section 48E has its present counterparts in ss91 and 93 of the Criminal Procedure Act 1986.) 14 These reforms have altered the manner in which appeals from the Local Court to the District Court are to be conducted, apparently more significantly than may be generally appreciated. Before 1998, Part 5 Div 4 of the Justices Act 1902 allowed an appeal to the District Court against conviction. Section 126 of that Act permitted the deposition of any witness called and examined at the hearing before the justice to be read as evidence for either party at the hearing of the appeal if the other party consented or if certain prescribed conditions were fulfilled. Subject to those provisions, however, the evidence was taken afresh. The power of the District Court judge hearing an appeal under Div 4 of Pt 5 was set out in s125. The Court's obligation was to determine the matter of the appeal afresh. 15 This "all grounds" appeal was often referred to as being by way of rehearing (see eg Sweeney v Fitzhardinge (1906) 4 CLR 716 at 728, 730), but always in a context explaining that the District Court (as successor to the Quarter Sessions) was obliged to hear the matter de novo. In R v Longshaw (1990) 20 NSWLR 554, Gleeson CJ (at 561) described Sweeney as holding that "the appeal was by way of re-hearing, in the widest sense of the term, that is to say a hearing de novo". 16 Appeals to the District Court are no longer of this nature. Recently, in Gianoutsas v Glykis [2006] NSWCCA 137, this Court held that the clear language of s18 precludes the District Court from treating an appeal of this nature as a hearing de novo (see the reasoning of the Chief Judge at Common Law at [24]-[31]). 17 The appeal is to be by way of rehearing on the Local Court transcripts (s18(1)), obviously supplemented by reference to any exhibits tendered in the Local Court. Fresh evidence may be given by leave, subject to the District Court being satisfied that it is in the interests of justice that this should occur (s18(2). 18 The District Court is then required to apply the principles governing appeals from a judge sitting without a jury. The Judge is to form his or her own judgment of the facts so far as able to do so, ie recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court (Bell v Stewart (1920) 28 CLR 419 at 424-5, Paterson v Paterson (1953) 89 CLR 212, Fox v Percy (2003) 214 CLR 118). 19 The nature of an appeal "by way of rehearing" has been discussed in many cases. The procedure to be adopted, powers to be exercised and function to be performed must first be sought in the language of the particular statute. One thing, however, is clear. "The 'rehearing' does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits" (Fox at 118[22] per Gleeson CJ, Gummow and Kirby JJ). Referring to the "requirements, and limitations, of such an appeal", their Honours continued (at [23], footnotes omitted): … On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

20 In Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192 at 208-9 Windeyer J described the difference between an appeal by way of rehearing on the one hand and a retrial or hearing de novo on the other in the following terms: The rule … provides that all appeals shall be 'by way of rehearing'. This does not mean that the appeal is a complete rehearing as a new trial is. It means that the case is to be determined by the Full Court, its members considering for themselves the issues the trial judge had to determine and the effect of the evidence he heard as appearing on the record of the proceedings before him, but applying the law as it is when the appeal is heard not as it was when the trial occurred….[A power to draw inferences of fact and to give any judgment that ought to have been given] does not … curtail the recognition or respect that an appeal should accord to the decision of a trial judge. 21 These principles apply equally to an appeal by way of rehearing in a criminal matter where the appeal court has not seen the witnesses (Bell, Barendse v Comptroller-General of Customs (1996) 93 A Crim R 210 at 219-220). 22 The appellate role of the District Court in the present context is further reinforced by the references to "appeal" in ss18 and 19 and by the power, conferred by s20, to determine the appeal against conviction by setting aside the conviction or by dismissing the appeal. It is true that the Court moves to the disposition of the appeal by considering the totality of the material before it, including any "fresh evidence" that has been admitted, and making up its own mind on the critical issue of guilt. The prosecutor continues to carry the onus (Gianoutsos at [42]-[43]). But, as indicated in the passages quoted from Fox and Da Costa, the District Court must of necessity observe the "natural limitations" stemming from proceeding wholly or substantially on the transcript record. 23 Howie and Johnson, Criminal Practice and Procedure NSW state [4-s 19.10(g)] that the reasons of the magistrate for finding the offence proved are not "evidence" and that the District Court may not have regard to those reasons unless the parties consent to that course. The point has not been argued before us, but I wish to express my doubts as to the correctness of this opinion of the learned authors. District Court judges traditionally and understandably refrained from reading the reasons of the Local Court when the appeal was do novo. But the nature of an appeal by way of rehearing on the transcript indicates to me that this approach is no longer justified. The magistrate's reasons are not part of the "certified transcripts of evidence" referred to in s18(1) any more than the exhibits tendered in the Local Court. Nevertheless, as I see it, the District Court is impliedly directed to consider the reasons because the stated appellate function could not properly take place without reference to them. 24 The Local Court reasons will doubtless include an explanation why the conviction was entered at first instance, including an assessment of the credibility issues touching any factual dispute. Without reference to the reasons the District Court would be driven to speculation or deciding the issue entirely afresh. Neither such course would be consonant with the statutory scheme. In civil appeals, the court of appeal is not entitled to ignore the reasons in which findings based on credibility are to be found (Paterson at 222-4). There is no basis in principle for a different approach in the criminal law. 25 Judge Delaney embarked on a hearing de novo and the orders in the District Court confirming the appellant's conviction, fine and licence suspension proceed from this erroneous point of departure. For this reason alone, the question posed by his Honour must be answered in the affirmative. The appropriate order for this Court to make is that the orders made by the District Court are quashed and the matter remitted to that Court to be dealt with in accordance with the reasons of this Court. We have jurisdiction, if appropriate, to quash the conviction entered by the judge (see s5B(2) and Carcosa Pty Ltd v Czerwaniw (1997) 93 A Crim R 287). 26 The particular question of misapplication of s19, upon which the case stated focuses, points to additional but derivative aspects of the jurisdictional error into which His Honour fell. It is largely academic, when it is borne in mind that receiving any "fresh evidence" is exceptional (under s18(2)) and when the adversary principles discussed in The Queen v Apostolides (1984) 154 CLR 563 are kept in mind. It would only be in the rarest of cases that a judge should be considering calling a witness of his or her own motion in an appeal and this would only happen in light of what occurred in the appeal itself. Whether s18(2) permits the judge to give leave in those circumstances is an interesting question unlikely to happen very often. I am inclined to think that it would be open to do so, subject of course to the judge being satisfied that it was in the interests of justice for this to occur. But s18(2) is not available for the blanket trumping of s18(1). Subsection (2) is the exception rather than the rule, and the judge must turn his or her mind to the particular "fresh evidence" whose nature attracts the exceptional grant of leave. In light of Apostolides, this would have to take place in the context of an application by the party seeking to rely on "fresh evidence", save in the highly exceptional situation where the judge decided to summon the "fresh evidence" on his or her own motion. 27 On the particular topic of s19, I think it sufficient to point out that that provision addresses the oral testimony of individual witnesses if and only if the prior mandates of s18 have been complied with. Section 19 also requires the judge to consider its separate requirements on a witness by witness basis. If, which I doubt but find it unnecessary to resolve, s19 allows a judge to give a direction of his or her own motion, it can only be done in accordance with the specific regime prescribed in the latter section. The section does not allow the overriding of the earlier section or permit treating all witnesses en bloc. Its gateways of "special reasons" and "substantial reasons" (s19(1)(a) and (b)) require even sharper attention to the interests of justice component than s18(2). 28 The Case Stated does not disclose whether s19(1)(b) was considered in its terms. I infer that it was not, given that the blanket direction about the appeal proceeding by way of the witnesses giving evidence was given when the case was first mentioned in the District Court. 29 The written submissions ranged over a somewhat different range of issues, but at the end of the hearing there was really no dispute but that the judge had erred and that orders should be made in the appellant's favour. Neither party suggested that it was appropriate for this Court to put itself in the position of the District Court and decide the appeal for itself on the Local Court transcript. No criticism is thereby implied. 30 Orders for quashing and remitter will enable the matter to be addressed afresh. I note that the appellant has indicated through his solicitor that he maintains the position that the appeal to the District Court should be determined on the certified transcript from the Local Court, without the calling of any "fresh" evidence. 31 I therefore propose the following orders:

1. Answer the question: Yes, for the reasons given by the Court of Criminal Appeal.

3. Proceedings remitted to the District Court to be determined in accordance with the reasons of the Court of Criminal Appeal. 32 KIRBY J: I agree with Mason P. 33 HOEBEN J: I agree with Mason P.

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