Director of Public Prosecutions (NSW) v Earl Burns & Anor

Court of Appeal (NSW)|2010-08-24|Before: Beazley JA, Basten JA, Campbell JA

Background facts 4 On 6 September 2009, the respondent attended the Dubbo police station to report to the police in accordance with bail conditions to which he was then subject. The Constable on duty observed that the respondent appeared to be under the influence of alcohol, which was in breach of his bail conditions. He was arrested and searched. At the time, the respondent was wearing a bumbag around his waist which contained a green handled Phillips head screwdriver, a small red torch, a pocket knife with a foldaway blade and a small lip balm. 5 When questioned about the contents of the bumbag, the respondent explained that the screwdriver was in his bag because he had to fix his sister's door and that the pocket knife was his fishing knife. 6 The respondent was not questioned about the lip balm. However, the police officer made an observation, which he recorded in the statement he made in respect of the search, that the lip balm had a groove down the side which appeared as if the screwdriver had been rubbed along it. The respondent was then charged with an offence under s 114(1)(b). A charge under s 114(1)(b) may be defended by the accused person establishing that he or she had the implements in his possession for a lawful purpose: the Crimes Act, s 417A. Proof of lawful purpose need only be established on the balance of probabilities. 7 At the hearing before the Magistrate, the respondent's case was that he had inadvertently taken the items, other than the knife, which was his, from his sister's house that day and that it was his intention to return them. 8 The respondent's sister, Ms Burns, gave evidence in the respondent's defence that earlier that day the respondent had commenced to fix a door at her house with his pocket knife and that she had told him she had tools that he could use which were in an esky. She said he then went and got the screwdriver from the esky. In her evidence, Ms Burns identified a photograph of the screwdriver as being one of the screwdrivers from her toolbox. Ms Burns also identified the torch as belonging to her daughter which, she said, was usually kept in the esky with the tools. She said that the respondent had needed to use the torch because there was no light in the area near the door to be fixed and it was after dark. 9 Ms Burns said that during the course of the respondent carrying out the repair job, she and the respondent had an argument and the respondent packed up his things and walked off. Ms Burns said that the police had attended her home on the night of the arrest and inspected the door which she said the respondent had been repairing. This evidence was not challenged or contradicted by evidence from the police. 10 Ms Burns was shown a photograph of the lip balm during her evidence in chief. She said, "It looks like lip balm or something, something small". She said she did not recognise it. The Prosecutor did not cross-examine Ms Burns about the lip balm. 11 At the conclusion of the re-examination of Ms Burns, the Magistrate asked questions about the broken door, the torch and the lip balm, with particular focus on the lip balm. The Magistrate's questioning went over two pages of transcript and comprised about 30 per cent of the total evidence of Ms Burns and the questioning in respect of the lip balm about 20 per cent of her evidence. The Magistrate's questioning about the lip balm was repetitive and interruptive, presumably because he did not accept the answer Ms Burns was giving, or trying to give, to his questions. Not having elicited the answer he apparently wanted, the Magistrate's questioning was then that someone had told Ms Burns that the photograph was of lip balm; and moved on to a sarcastic challenge to her response that she had not been told it was a photograph of lip balm, with the question, "that was just a lucky guess was it?" A possible sense of this questioning was that the Magistrate had already formed a view as to what he thought the position was in respect of the lip balm, that is, that it was for use as a housebreaking implement.

The Magistrate's reasons 12 After referring to the offence with which the respondent had been charged, the circumstances in which the respondent had been charged and the statements of the police officers, the Magistrate reviewed Ms Burns' evidence. In referring to her evidence in respect of the lip balm, his Honour first observed that she had not given any evidence as to having seen the respondent in possession of a lip balm, until she was shown the photographs of it, at which point she had no difficulty in identifying the item as a photograph of a lip balm. His Honour observed that: "… in that regard Ms Burns' powers of perception are enormously superior to mine." 13 His Honour also stated that: "Somewhat remarkably she is in possession of the information that [the respondent] arrived at the police station with only ten minutes to spare." 14 In this regard, Ms Burns had given evidence that a friend of the respondent who had been with him just prior to the respondent reporting to the police, had brought the respondent's bag back to her house and told her that the respondent had been arrested. This evidence was elicited in cross-examination, but Ms Burns was not challenged to the effect that it was not correct. 15 Later in his judgment the Magistrate observed: " …that it is only stretching [credulity] to its very very limit that would cause anybody to accept the sister's evidence …" 16 His Honour then made a specific finding that he did not accept Ms Burns' evidence, remarking that: "Very cleverly in my view and perhaps too cleverly Ms Burns seeks to link together each of the items that were found in the possession of the accused." 17 His Honour concluded by finding that even if Ms Burns' evidence was accepted, it only established that the respondent had an excuse for having the items in his possession earlier in the day, rather than at the time of his arrest. Accordingly, his Honour convicted the respondent of the offence.

Proceedings in the District Court 18 The respondent appealed to the District Court pursuant to the Crimes (Appeal and Review) Act, s 11. Part 3 of that Act deals with "Appeals from the Local Court to the District Court". Subdivision 2 deals with "Determination of appeals". The provisions presently relevant are ss 11, 18, 19 and 20, which provide: " 11 Appeals as of right

(1) Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both)." " 18 Appeals against conviction to be by way of rehearing on the evidence

(1) An appeal against conviction is to be by way of rehearing on the basis 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 …" " 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: … (b) in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence." " 20 Determination of appeals

(1) The District Court may determine an appeal against conviction: (a) by setting aside the conviction, or (b) by dismissing the appeal …" 19 The hearing in the District Court before Nicholson DCJ proceeded by way of the tender of the statement of the police officers that had been in evidence before the Magistrate, a copy of the transcript in the Local Court and the photographs which were an exhibit in the Local Court. The legal representatives for the respondent and the Crown made oral submissions to his Honour. 20 In his judgment, Nicholson DCJ reviewed the evidence that had been before the Magistrate and set out the two pages of the transcript in which the magistrate questioned the respondent's sister about the lip balm. His Honour's judgment included an interchange with counsel for the Crown which is also set out: "7. [The Magistrate] has relied upon answers given in that series of questions to find [the respondent] guilty. In my view that conduct by a judicial officer is no way for a court to act. In my view [the respondent's] trial was not a fair trial on the issue. I cannot order a re-trial and I intend to find him not guilty because of a mistrial.

[CROWN]: Your Honour I hear what your Honour is saying and clearly your Honour has made it very clear that you are of the firm view and I don't argue with you but the proceedings--

HIS HONOUR: Well I'll tell you this, let me just complete this. I have mentioned to you earlier - I want to highlight the reason that I am doing this but I mentioned to you earlier that the sister's version of events was never challenged. She was cross-examined and it was never put to her that she was concocting or fabricating the story. If that story were true or if there was a reasonable possibility that that story was true the accused is entitled on that evidence alone to be acquitted.

[CROWN]: Well your Honour with respect I don't agree with that because she gave evidence, at its highest her evidence supports that he used those implements at home.

[CROWN]: But that, for him then to have them on his person, that evening at the police station surely he still has the onus then to show that his possession at that point in time is lawful your Honour and it would be my submission your Honour is that that burden has not been discharged by the defendant.

HIS HONOUR: Well its not a burden on [sic] proof beyond reasonable doubt.

HIS HONOUR: The balance is - I can draw an inference.

HIS HONOUR: And the inference that I draw is he had them with the intention of taking them home.

Grounds 1 and 3 on the application for review: acting without jurisdiction and/or failing to exercise jurisdiction 21 The DPP contended that Nicholson DCJ committed jurisdictional error in reviewing the decision of the Magistrate rather than hearing the matter as he was required to do pursuant to the Crimes (Appeal and Review) Act, s 18. Additionally, the DPP contends that Nicholson DCJ constructively failed to exercise jurisdiction by ignoring the credit findings made by the Magistrate. 22 These two grounds of review require a consideration of the statutory jurisdiction being exercised by his Honour in determining the appeal before him. 23 The nature of an appeal to the District Court under Pt 3 was considered by this Court in Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39. Mason P observed that the appeal is by way of rehearing on the Local Court transcript, supplemented by any documentary evidence and any evidence admitted by leave pursuant to the Crimes (Appeal and Review) Act, s 18(2). His Honour stated that the District Court is 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, recognising the advantage enjoyed by the magistrate who saw and heard the witnesses in the lower court: see Bell v Stewart [1920] HCA 68; (1920) 28 CLR 419 at 424-5; Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212; Fox v Percy [2003] HCA 22; 214 CLR 118. 24 In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ noted, at [22], that: "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." 25 Their Honours also noted, at [23], that a court conducting an appeal by way of rehearing on the record is required to observe the limitations of such an appeal, including, relevantly to this matter: "… 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 …" 26 In Charara, Mason P also expressed the opinion, obiter, that a District Court judge could have regard to the reasons of the Magistrate. As his Honour observed, at [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." 27 This does not mean that a District Court judge exercising jurisdiction under s 18 is obliged to accept the credit findings of the Magistrate, if the Magistrate has, for example, misused the advantage of seeing and hearing the witness: see Fox v Percy at [78]. 28 A criminal trial is an adversarial process in which the protagonists are the Crown and the accused. They are the parties that determine the evidence to be adduced, including by way of cross-examination: see Ratten v R [1974] HCA 35; (1974) 131 CLR 510 at [18] 517. A judge is entitled to ask questions of a witness where something has been left unclear or unexplained or confused, or where the judge wishes to identify something which is of concern: R v Esposito (1998) NSWLR 45 at 442; 105 A Crim R 27 at 56. However, the primary function of the judge is to adjudicate a trial, whether criminal or civil, upon the evidence adduced. In Esposito it was said that the task of destroying the credit of a defence witness should always be left by the judge to the Crown Prosecutor. 29 If a trial judge oversteps the bounds of reasonable questioning of a witness, and in doing so makes it apparent that he or she is not going to accept the evidence of that witness regardless: see R v Thompson [2002] NSWCCA 149; (2002) 130 A Crim R 24 at [36]; Jones v National Coal Board [1957] 2 QB 55; [1957] 2 All ER 155, then it can be said that the trial judge has misused his or her advantage of seeing and hearing the witness. 30 The nature of an appeal brought pursuant to s 11 was also considered by this Court in Spanos v Lazaris [2008] NSWCA 74. In that case, Basten JA noted, at [36], that such an appeal is not necessarily the same as an appeal under the Supreme Court Act, s 75A. In particular, his Honour noted that pursuant to s 20, the orders the District Court could make were confined to setting aside the conviction or dismissing the appeal and that there was no express power of remittal to the Local Court. I return to the orders that the Court may make below.

The DPP's arguments 31 The DPP conceded that Nicholson DCJ set out all of the evidence, both for the prosecution and for the respondent that was adduced before the magistrate. However, the nub of the DPP's complaint was that Nicholson DCJ gave so little consideration to the evidence, being so obviously diverted by his concern that the respondent had not had a fair trial, that he purported to review the Magistrate's decision, a jurisdiction that he did not have, and failed to exercise the only jurisdiction that he had, being that conferred by the Crimes (Appeal and Review) Act, s 18. In addition, his Honour failed to make an order of the type he was empowered to make by s 20. 32 The DPP relied upon the following three matters in his Honour's reasons to demonstrate that there had been a failure to exercise jurisdiction. The first matter is the source of a restatement of the DPP's central contention that Nicholson DCJ exercised a power of review and failed to exercise the jurisdiction conferred by the Crimes (Appeal and Review) Act. The second and third matters are relied upon in support of that central argument. 33 First, the DPP submitted that it was apparent from Nicholson DCJ's comments that his Honour considered there had been unfair intervention by the Magistrate, in that the Magistrate had adopted the mantle of a prosecutor. It was submitted that it was apparent from his Honour's reasons that he considered there had been a mistrial and for that reason, he was proposing to find the respondent not guilty because he could not order a retrial. 34 The DPP submitted, secondly, that his Honour had articulated the wrong test in the determination of the defence of lawful excuse: the test was not whether there was a reasonable possibility that Ms Burns' story was true, as his Honour stated. Rather, the test was whether, from Ms Burns' evidence, it had been established on the balance of probabilities that when arrested, the respondent was in possession of the implements found in the bum bag for a lawful purpose. 35 Additionally, the DPP contended that there was no evidence upon which Nicholson DCJ could draw the inference that the respondent had the intention of taking the implements home. 36 In addition, the DPP relied upon the language used by Nicholson DCJ in making his order 'quashing' the conviction. It was submitted that that was the language of judicial review, a function which his Honour was not exercising. Pursuant to s 20, the only order his Honour was entitled to make was to set aside the conviction or dismiss the appeal. 37 The essence of the DPP's argument was that it was apparent from pp 5-6 of his Honour's reasons that his decision to 'quash the conviction' was based on his conclusion that the respondent had not been given a fair trial. To the extent that he engaged with the facts in the case, he did so in such a cursory way that it was apparent that there had not been an appeal by way of rehearing. 38 It is correct to observe that his Honour's remarks, to the effect that the Magistrate had acted improperly and that as a consequence the respondent had not been afforded a fair trial, have the flavour of judicial review. Had that been all Nicholson DCJ said, jurisdictional error may well have been established. However, there was more. Before making the comments as to the absence of a fair trial, Nicholson DCJ had set out all the evidence. Following those remarks, his Honour went on, "Well I'll tell you this, let me just complete this … I want to highlight the reason that I am doing this …". His Honour then referred to Ms Burns' version of events and noted that she had not been cross-examined to the effect that what she said was untrue or that she was concocting the story. 39 His Honour's subsequent comments during the course of an exchange with the Crown (see [20] above) made it apparent that his Honour considered that on Ms Burns' unchallenged evidence an inference could be drawn that the respondent had established a lawful excuse for having the implements in his possession. It is clear that in reaching this conclusion, his Honour rejected the Magistrate's credibility finding in respect of Ms Burns. His Honour was entitled to do so in defined circumstances, including in circumstances where the Magistrate misused his advantage as the primary fact finder who saw and heard the witness. 40 In this case, the Magistrate engaged in an adversarial cross-examination of Ms Burns in respect of the lip balm which appeared to be the foundation of his finding that her evidence "stretch[ed] [credulity] to its very limit". His Honour was not required to accept that credibility finding. In circumstances where Ms Burns had not been directly challenged that she had concocted her evidence, Nicholson DCJ was entitled to accept that evidence as establishing lawful excuse. 41 The DPP conceded that if that was Nicholson DCJ's approach to the determination of the matter, namely, that his Honour was satisfied there was some evidence to support the defence, there was no jurisdictional error. In my opinion, that was his Honour's approach. His Honour considered all of the evidence and directed his mind as to whether on that evidence there was a lawful excuse and drew an inference that there was. Notwithstanding his Honour's remarks as to an unfair trial, he exercised the jurisdiction conferred by s 18 by determining the appeal by way of rehearing on the transcript of the evidence.

Appropriate orders 42 A question arose during the course of the appeal as to how an appeal under s 11 should be fully and finally resolved where the District Court determines that the conviction be set aside. Under s 20, an order may be made setting aside the conviction or dismissing the appeal. The setting aside of a conviction is not equivalent to dismissing a charge or to finding a person not guilty, although on a successful appeal under s 11 that would be the intention behind setting aside the conviction. This was explained in Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220 at 225 in the majority judgment of Rich, Dixon, Evatt and McTiernan JJ as follows: 'The effect of the reversal of a conviction by proceedings in error has long been settled, and the same effect is produced by quashing it, or setting it aside upon a statutory appeal. The conviction is avoided ab initio . 'The judgment reversed is the same as no judgment' (per Coleridge J., R. v. Drury [(1849) 3 Car. & K., at p. 199; 175 E.R., at p. 520.]).

If the conviction were alleged in a pleading, it would be a good answer that there was no such record ( Dr. Drury's Case [(1610) 8 Co. Rep., at p. 142 b; 77 E.R., at p. 691.]). It is 'utterly defeated and annulled' ( Lord Sanchar's Case [[1572] EngR 445; (1613) 9 Co. Rep. 117 a, at p. 119 b; [1572] EngR 445; 77 E.R. 902, at p. 906.]) … 'upon the reversal of a judgment against any person convicted of any offence, the judgment, execution and all former proceedings become thereby absolutely null and void … and [he] shall stand in every respect as if he had never been charged with the offence in respect of which judgment was pronounced against him' ( Archbold's Criminal Pleading, Evidence and Practice , 21st ed. (1893), pp. 226, 227)." 43 Starke J, in a separate judgment, stated, at 227, that the setting aside of the conviction on the appeal had the effect of abrogating and obliterating the conviction. This is consistent with the first of the passages in the plurality judgment set out above, but does not go so far as the statement: the person "shall stand in every respect as if he had never been charged". However, as I would understand this statement, it is a reflection of the principle of double jeopardy which would enable the accused person to raise a plea in bar. 44 Cavanough was considered by Campbell J (as his Honour then was) in Battenberg v Union Club [2005] NSWSC 242; 53 ACSR 263 which involved the effect of an annulled bankruptcy on the membership of a corporation, where the corporation's constitution specified that membership ceased upon a member's bankruptcy. His Honour also referred to a number of Victorian cases, the effect of which is that a conviction no longer stands once it is set aside, although those cases indicate that the charge upon which the conviction was initially based is not thereby dismissed: R v Lapuse [1964] VR 43; Lynch v Hargrave [1971] VR 99 at 102-107; Rimanic v Business Licensing Authority [2002] VSCA 64. 45 Under the Crimes (Appeal and Review) Act, there is no express power to dismiss the charge or to remit the matter to the Local Court. That is different from the orders that may be made on an appeal by way of rehearing under the Supreme Court Act, s 75A. Pursuant to s 75A, the Court of Appeal makes the order it considers ought to have been made at first instance, but first sets aside the orders made at first instance. The Court may also remit the matter to the first instance court, either in whole or in part: see the discussion by Basten JA in Spanos. 46 The DPP submitted that although the Crimes (Appeal and Review) Act did not provide for the making of an order dismissing the charge following a conviction being set aside by the District Court pursuant to s 20, a successful appellant would have available the plea of autrefois acquit if the same charge was laid again. The DPP also submitted that the Crimes (Appeal and Review) Act, s 73 may provide some insight to the resolution of this question. 47 It is not accurate in this context to refer to the plea of autrefois acquit. The Criminal Procedure Act 1986, s 156 makes provision for the plea of autrefois acquit in respect of a charge on indictment. Section 156 is an expression of the common law principle that pleas of autrefois convict and autrefois acquit may only be entered in proceedings on indictment: see State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517 at 530-532. However, a plea in bar may be made where a plea of autrefois acquit is not available, for example, where proceedings are brought summarily, as was the case here, in order to give effect to the principle against double jeopardy: see Tallow Products at 570. 48 Section 73 provides that if a conviction is set aside on an appeal, the registrar of the appeal court must cause a memorandum to that effect to be endorsed on the conviction. The DPP said that the purpose of the memorandum required under s 73 was in effect to finalise the proceedings in a way which was consistent with the manner in which proceedings are finalised in the Local Court on the dismissal of a charge. 49 Under the Criminal Procedure Act, s 202 the Local Court makes an order either convicting the person of the charge, or dismissing the matter. If a charge is dismissed, the Local Court may give the accused person a certificate certifying that the matter has been dismissed: s 205(1); and must give such a certificate to an accused person if requested to do so: s 205(2). Pursuant to s 206, a certificate certifying that a matter has been dismissed, if produced, and without further proofs being required, prevents any later proceeding being brought in any court for the same matter against the same person. The certificate thus provides a statutory bar in circumstances where a person would otherwise be required to formally raise a plea in bar. 50 Although the s 73 memorandum is required to be endorsed on a person's conviction, the endorsement does not provide the same statutory protection from the laying of the same charge as is provided by the Criminal Procedure Act, s 206. It is possible that a prosecutor might seek to again bring an accused person to trial, in which case the person whose conviction had been set aside would be faced with the necessity of actively defending the proceedings on the basis of a plea in bar in respect of summary proceedings or autrefois acquit in respect of proceedings on an indictment. Accordingly, the question remains whether any order additional to the setting aside of the conviction ought to be made by the District Court so as to finally dispose of the matter. 51 A court of limited statutory jurisdiction has the express powers conferred by statute, as well as those powers which by necessary implication are required to enable the court to effectively exercise its jurisdiction: see Pelechowski v The Registrar; Court of Appeal [1999] HCA 19 at [50]-[51]; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129. In this context "necessary" does not mean essential, but means a power to make orders which are reasonably required or legally ancillary to the accomplishment of the express powers given by the relevant legislation. In this regard, the touchstone is "reasonableness": Pelechowski at [51], referring Pollock CB in The Attorney-General v Walker (1849) 3 Ex 242 at 255-256 [154 ER 833 at 838-839]. 52 In the present case, the question for consideration is whether the District Court, to effectively exercise its jurisdiction under s 20 so as to ensure that upon setting aside a conviction, a person is not at risk of being recharged (or at least not at the risk of having to actively defend any further charge by a formal plea in bar), has any implied power to finally dispose of the matter. There are at least two possibilities. The first is that in addition to setting aside the conviction, the District Court could make an order dismissing the charge. The other is to remit the matter to the District Court for the purposes of that Court dismissing the charge. 53 In Director of Public Prosecutions (NSW) v Emanuel [2009] NSWCA 42; 193 A Crim R 552, Basten JA, obiter, considered the question whether by implication the District Court could order that a matter in respect of which there had been an appeal pursuant to s 11 be remitted to the Local Court. His Honour adverted, at [61], to the possibility that there was an implied power of remitter, at least where the challenge to the original Local Court proceedings was as to their validity. His Honour did not express a concluded view on this and in any event, that is not this case. 54 If it was to be contended that an order remitting the matter to the Local Court should have been made, two further questions would arise. One possibility would be an order which directed the Local Court to dismiss the charge. An order that the Magistrate determine the matter according to law might be an unintended invitation to rehear the matter. However, there is nothing in the Crimes (Appeal and Review) Act, Pt 3 which indicates that an implication of remitter is reasonably required to enable the court to effectively exercise its jurisdiction and the confusion in an order of remittal underpins the unlikelihood of there being an implied power of remitter. Further, if that was the order to be made, a question would arise as to whether the processes specified by the Criminal Procedure Act, ss 205 and 206 would apply. I consider it is doubtful that they would, as the certificate of dismissal and the statutory bar to the bringing of further proceedings provided for by ss 205 and 206 are predicated by the Local Court itself determining a criminal charge and deciding the proceedings should be dismissed pursuant to s 202. 55 The other possibility is that the District Court has the implied power to dismiss the charge, in addition to exercising the express power of setting aside the conviction. However, I am not persuaded that such a power is necessary in the sense referred to above. Under the express powers, the conviction may be set aside: Crimes (Appeal and Review) Act, s 20 and the conviction must be endorsed to that effect: Criminal Proceedings Act, s 73. That is sufficient to notify the prosecuting authorities of the outcome of the appeal. Should the prosecuting authorities seek to again bring the person to trial, the person is entitled to raise a plea in bar.

Ground 2: bias (actual or apprehended) on the part of Nicholson DCJ

Apprehended bias 56 The DPP in ground 2 contended that a fair-minded lay observer might reasonably apprehend that his Honour prejudged the outcome of the appeal proceedings, thereby denying procedural fairness to the DPP. This is a pleading of apprehended bias. In the written submissions in support of this ground, the DPP referred both to actual bias and reasonable apprehension of bias, although no specific submissions were directed to a case of actual bias. 57 The DPP relies upon an accumulation of factors to establish the ground of bias. First, reliance was placed upon Nicholson DCJ's remark, at [2] of the judgment, where, after referring to the photographs and in particular the item which looked like a lipstick holder and which was said to be a lip balm, his Honour said: "It would appear [the Magistrate] had some special knowledge, which I must say that I had not possessed until I read the evidence, but may well be experience and knowledge that he gained in the course of his long and illustrious career as a prosecutor, that lip balm is used to lubricate item such as knives so that they will the more easily pass through items for the purposes of obtaining entry." 58 The DPP described these comments as "sarcastic, demeaning and misplaced". 59 Next, the DPP relied upon the following comments by Nicholson DCJ to counsel for the DPP, immediately prior to delivering judgment: "HIS HONOUR: It seems to me that in the interests of justice this matter ought to either be going to re-trial, I can't make that order, or that the accused should be acquitted.

[CROWN]: On the basis of lack of procedural fairness--

[CROWN]: Yes your Honour on that basis I couldn't argue with what your Honour's put.

HIS HONOUR: Right and I want that noted in any report that's going to be made of this, the Crown concedes that he couldn't argue with the proposition." 60 The third aspect of his Honour's conduct upon which reliance was placed to establish bias was his Honour's focus in his reasons on the Magistrate's questioning of Ms Burns in relation to the lip balm. 61 The DPP submitted that the "peremptory announcement" made by Nicholson DCJ that he intended to find the respondent not guilty indicated that his Honour had formed his decision based on conduct of the Magistrate, rather than the later reasons he sought to articulate. This was apparent, on the DPP's argument, when the three matters referred to were considered in combination, which, it was submitted, revealed a state of mind that he proposed to find the respondent not guilty simply by reason of the view that he held about the Magistrate's own prosecutorial bent or bias. 62 The DPP submitted that even though his Honour referred to the evidence of Ms Burns, from which he said he drew the inference that the respondent had a lawful excuse, the fact was his Honour had already made up his mind, stating he was proposing to find the respondent not guilty, not because of that evidence, but because the respondent did not have a fair trial. 63 In my opinion, the bias challenge to his Honour's conduct of the proceedings has not been made out. That is not to say that his Honour's remarks as to the conduct of the Magistrate were appropriate. It is apparent from the structure of Nicholson DCJ's judgment that, having expressed his view as to what had happened in the Court below, his Honour 'pulled himself back' and made it clear that he did not accept the Magistrate's conclusion as to Ms Burns' credit. That was a course open to him. Having done so, his Honour was entitled to conclude that the respondent was not guilty on the basis that lawful excuse had been established. 64 In this regard, his Honour's remark immediately after having said he intended to find the respondent not guilty is important. I have already referred to the remark, but it is helpful to repeat it in the context of the present argument, which was essentially based upon the inappropriate comments made by the trial judge and the alleged jurisdictional error. The remark to which I refer was: "Well I'll tell you this, let me just complete this. I have mentioned to you earlier - I want to highlight the reason that I am doing this but I mentioned to you earlier that [Ms Burns'] version of events was never challenged." 65 The DPP argued, contrary to his Honour's conclusion, that Ms Burns' evidence had been challenged by the prosecution. I think that is correct. It is apparent that when the Prosecutor asked the question as to how Ms Burns knew the respondent had reported to the police station 10 minutes before he was due to do so, he was seeking to test that evidence. Likewise, there was cross-examination about the colour of the handle of the screwdriver. However, as Nicholson DCJ observed, Ms Burns was not challenged to the effect that she was concocting her evidence. In my opinion, when her evidence is read as a whole, there was a reasonable basis for Nicholson DCJ not to defer to the credit finding made by the Magistrate. 66 In those circumstances, the question must be asked how there was a reasonable apprehension of bias? 67 The principles that govern an apprehended bias application are well-known. In Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 at 293-294 the High Court said: "[The] principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that [the judge] might not bring an impartial and unprejudiced mind to the resolution of the question involved in it." (emphasis added) 68 This test was confirmed in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, where Gleeson CJ, McHugh, Gummow and Hayne JJ said, at [8] 345: "The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an 'interest' in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed." 69 Relevantly for present purposes is the statement in the plurality judgment in Ebner, at [14], that a judge's later statement withdrawing or qualifying remarks might remove a perception of bias. In Concrete v Parramatta Design and Developments Callinan J endorsed the appropriateness of having regard to the reasons for judgment and to read those reasons in conjunction with the transcript references which were said to found the apprehension of bias, to see whether the cumulative effect was one of apparent bias. 70 In Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11]-[14] the Court also observed, at [12] 493, that the hypothetical observer is taken to be reasonable; and that the person being observed is "a professional judge whose training, tradition and oath or affirmation required [the judge] to discard the irrelevant, the immaterial and the prejudicial". A like comment was made by Callinan J in Concrete v Parramatta Design and Developments, at [177] 635, where his Honour stated: "It is axiomatic that the perception of a lay observer will not be as informed as the perception of a lawyer, particularly a litigation lawyer. But the notional lay person should not be taken to be completely unaware of the way in which cases are brought to trial and tried." 71 In my opinion, notwithstanding the remarks of Nicholson DCJ, the DPP's case on bias has not been made out.

Conclusion 72 It follows from the above that I consider that the application should be dismissed with costs. I would only observe that it may be necessary for the parties to make an application to Nicholson DCJ to correct the error in his order, so that it correctly records that the conviction is set aside. 73 BASTEN JA: I agree with Beazley JA that the application before this Court should be dismissed and that the Director should be ordered to pay the respondent's costs. 74 The application invoked the supervisory jurisdiction of this Court pursuant to s 69 of the Supreme Court Act 1970 (NSW). That jurisdiction is limited to grounds demonstrating jurisdictional error, the exercise of criminal jurisdiction in the District Court being subject to a privative clause: District Court Act 1973 (NSW), s 176; Spanos v Lazaris [2008] NSWCA 74 at [15]; Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552 at [18] (Spigelman CJ) and [45]. 75 The nature of the appeal from the Local Court to the District Court, in respect of a summary conviction, is an appeal by way of rehearing in accordance with the provisions of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act"), ss 18-20. The nature of the jurisdiction has been discussed in a number of cases, including Gianoutsos v Glykis [2006] NSWCCA 137; 65 NSWLR 539; Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39 and Emanuel (above). 76 Emanuel was superficially similar to the present case. The District Court purported to "quash" a conviction on the basis that the magistrate had acted without jurisdiction, so that the convictions recorded against Mr Emanuel were invalid: at [22]. As the Chief Justice noted, the District Court judge appeared to be exercising the supervisory jurisdiction vested in this Court, and not available in the District Court: at [23]-[24]. 77 Critical to that conclusion was the fact that the primary judge had relied entirely on the failure of the magistrate to grant an adjournment, in the face of a mandatory statutory requirement, and that there had been no discussion of the evidence in the District Court judgment. Neither of those factors exists in the present case. 78 One common element between the two cases is that in each the District Court judge purported to "quash" the conviction, whereas the statutory language is "set aside" the conviction: Appeal and Review Act, s 20. I expressed the view in Emanuel that such language should not be treated as determinative as it might merely reflect an ingrained habit arising from the use of both "quash" and "set aside" in the earlier provisions of the Justices Act 1902 (NSW), s 125. As appears from the joint judgment in Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; 53 CLR 220 at 225 (Rich, Dixon, Evatt and McTiernan JJ) in relation to s 125: "… the power given to the Quarter Sessions includes authority to quash and set aside convictions. These are familiar expressions and describe a jurisdiction exercisable at common law by Courts of error. The effect of the reversal of a conviction by proceedings in error has long been settled, and the same effect is produced by quashing it, or setting it aside upon a statutory appeal. The conviction is avoided ab initio ." 79 The error in Emanuel and, arguably, in the present case, was that the offender sought to appeal on the merits to the District Court, rather than seeking to set aside the conviction in the Supreme Court on the grounds of procedural unfairness. No doubt the cost involved and the need for prompt relief in circumstances where a relatively brief sentence of imprisonment has been imposed, together with geographical availability, make an appeal to the District Court a more attractive proposition. 80 On the basis that, the appeal to the District Court is by way of rehearing, as opposed to an 'appeal' where there is a fresh hearing in the higher court, the appellate court will usually be entitled to intervene where it finds a material error: Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 at [14] (Gleeson CJ, Gaudron and Hayne JJ). In the case of procedural unfairness invalidating a conviction, the failure of an intermediate appellate court to identify such error on an appeal may itself constitute jurisdictional error on the part of the intermediate appellate court: see Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531 at [108]. Although it is not necessary to decide the point, it is at least arguable that the jurisdiction of the District Court extends to setting aside a conviction invalidly obtained. 81 There are two complicating factors: first, it has been held that the District Court has no power to remit the matter to the Local Court for rehearing: see Gianoutsos at [39]; discussed in Emanuel at [19]-[21] (Spigelman CJ, Tobias JA agreeing). 82 The second problem, specific to the present case, was that the offender relied upon an affirmative defence, based largely upon the evidence of his sister, whom he called in the Local Court, but whose evidence was disbelieved. The fact that Nicholson DCJ considered that the manner in which her evidence had been addressed was unsatisfactory would have provided a substantial reason why, in the interests of justice, she should attend and give evidence again in the District Court, pursuant to s 19(1)(b) of the Appeal and Review Act. However, that application was not made and she did not give evidence in the District Court. 83 I agree with Beazley JA that the following steps were taken by Nicholson DCJ:

(a) consideration of all of the evidence presented in the Local Court; (b) consideration of the appropriateness of the cross-examination of the offender's sister by the magistrate; (c) rejection of the conclusions reached by the magistrate based on his own cross-examination; (d) acceptance of the sister's evidence as relevantly unchallenged, once the cross-examination by the magistrate was disregarded, and (e) satisfaction that the defence had been made good. 84 That approach did not demonstrate jurisdictional error on the part of Nicholson DCJ. Accordingly, the first and third grounds relied upon in the summons should be rejected. 85 I also agree with Beazley JA that ground 2, based on a complaint of reasonable apprehension of prejudgment on the part of Nicholson DCJ, should be rejected, for the reasons she gives. 86 CAMPBELL JA: I agree with Beazley JA. **********

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Justices Act 1902(NSW)

CITATION: Director of Public Prosecutions (NSW) v Earl Burns & Anor [2010] NSWCA 265

Battenberg v Union Club [2005] NSWSC 242; 53 ACSR 263 Bell v Stewart [1920] HCA 68; (1920) 28 CLR 419 Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39 Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; 203 CLR 194 Commissioner for Railways (NSW) v Cavanough [1935] HCA 45; (1935) 53 CLR 220 Director of Public Prosecutions (NSW) v Emanuel [2009] NSWCA 42; 193 A Crim R 552 Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Fox v Percy [2003] HCA 22; 214 CLR 118 Gianoutsos v Glykis [2006] NSWCCA 137; 65 NSWLR 539 Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 Jones v National Coal Board [1957] 2 QB 55; [1957] 2 All ER 155 CASES CITED: Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531 Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 Lynch v Hargrave [1971] VR 99 Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212 Pelechowski v The Registrar; Court of Appeal [1999] HCA 19 R v Esposito (1998) NSWLR 45 at 442; 105 A Crim R 27 R v Lapuse [1964] VR 43 R v Thompson [2002] NSWCCA 149; (2002) 130 A Crim R 24 Ratten v R [1974] HCA 35; (1974) 131 CLR 510 Rimanic v Business Licensing Authority [2002] VSCA 64 Spanos v Lazaris [2008] NSWCA 74 State Pollution Control Commission v Tallow The Attorney-General v Walker (1849) 3 Ex 242 at 255-256 Products Pty Ltd (1992) 29 NSWLR 517

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