Director of Public Prosecutions (NSW) v Richardson

The proceedings below

1. The parties agreed that the hearing of the charges which Mr Richardson defended went seriously awry. On the evidence there can be no doubt that how the hearing was conducted, did not accord with the requirements of the Criminal Procedure Act 1986 (NSW), which were recently discussed by Adamson J in DPP v Ridley [2015] NSWSC 1478.
2. The charges which Mr Richardson was defending concerned events alleged to have occurred in January, February and April 2014 at Port Macquarie. Three different complainants claimed to have been the victims of a stranger's acts. The offender was described to have been a Caucasian, with shaved or short hair and tattoos, who had masturbated in their presence, while each was alone. In the last case it was alleged that the offender had ejaculated on the victim's back. DNA extracted from semen collected from her back was found on testing a sample of DNA taken from Mr Richardson, to have had the same profile.
3. Section 38 of the Criminal Procedure Act required that the procedures and practice for the examination and cross-examination of witnesses, and the right to address the court on the case in reply or otherwise, was, as far as practicable, to be conducted in accordance with Supreme Court procedures for the trial of an indictable offence. Section 194(1) required that a plea of not guilty having been entered, the Local Court hear the prosecutor, any witnesses and other evidence of the prosecutor, as well as Mr Richardson and any witnesses and other evidence he called. Section 202(1) required that the summary proceedings be determined after Mr Richardson, prosecutor, witnesses and evidence were heard in accordance with the Act.
4. The prosecution had given Mr Richardson a coincidence notice under the Evidence Act 1995 (NSW). It had also served a brief containing various statements and DNA evidence. Mr Richardson had given an alibi notice.
5. At the outset of the hearing, Mr Hannaway, also then appearing for Mr Richardson, was given the opportunity to address an objection which he raised to coincidence evidence being called on a voir dire. In opening he explained that objection by reference to a written submission which he then provided. He also addressed another written submission by which an objection was taken to the tender of the DNA evidence. Those submissions had not earlier been served on the prosecution.
6. After the basis of the prosecution's case on those matters was shortly explained, his Honour retired. Without indicating that he proposed to give a decision on resumption at 2pm, or permitting the parties first to lead the evidence on which the issues lying between them on the voir dire turned, on resumption Hodgson LCM gave a brief decision in these terms: "HIS HONOUR: All right Mr Richardson before the Court. I have regard to the evidence tendered on the voir dire and the comprehensive submissions made together with the decided authorities referred to. The defendant is charged with three counts of commit act of indecency. The prosecution seek to tender coincidence evidence, which is objected to by the defence. The defence rely on the written submissions set out in proper detail by the defendant's solicitor. He refers to the appropriate authorities and outlines the differences in testimony of the proposed witnesses. In addition to that the defence challenge the validity of the matters and I have given those matters proper consideration. The prosecution also seek to educe(sic) DNA evidence and the defence object to that on the basis it is alleged the prosecution have not complied with the formalities required by the Act, and I have regard to the authorities referred to in relation to that. The prosecution appear to have been caught somewhat by surprise and have submitted that the notice in relation to coincidence evidence is supported by the statements that were served. In relation to the DNA evidence the prosecution submit that on the evidence of the police officers, the defendant has afforded his rights according to the law. Essentially the matter is one in which it is alleged the DNA of the defendant was located on the back of one of the complainants. There had been a number of indecent assaults in the area around that time and the defendant's DNA was allegedly found on one of the complainants and at the time the defendant was working in close proximity. In the notice the prosecution set out why they are relying on the coincidence. The defence say well that is always the case in matters of this nature. The description of the defendant by each witness differs as to where he had his tattoos or if he had tattoos and estimates of his age, he is somewhere in the middle of the various estimations of age. The defence submits that one of the witnesses said she could identify the defendant. In an identification parade she could not. IT IS MY OPINION THAT THE PREJUDICIAL NATURE OF THE COINCIDENCE EVIDENCE FAR EXCEEDS ITS PROBATIVE VALUE AND I DISALLOW THAT EVIDENCE. The question of the DNA sought to be educed(sic) is a different matter. It has come by statute and the prosecution have to comply with the requirements of the legislation. I have regard to the cited authorities referred to by the defence and they say they have to be complied with strictly and if they are not the evidence is not admissible. The defence submits that the information provided to the defendant about need for consent was incomplete and misleading. They submit that it was implied to him that he had no choice, it was automatic, if he did not consent then the senior officer would conduct the procedure and he was not properly informed he could object. There was no caution during the taking of the swab as required by the legislation and the proper information required by the legislation was not supplied to the defendant. The defence submit that there was at least five breaches of the Act and each breach rendered the taking of the DNA inadmissible in court because it was illegally obtained and they set out the authority for that. It is submitted that the warning given to the defendant was misleading, that the procedure for the taking of the DNA did not comply with the Act and I agree with the defence submissions. I have read the statements of the police officers and they do not comply with the requirements of the Act. It would appear at least for one of the offences the prosecution may well have had a very strong case, however the evidence they obtained in my opinion is illegal and I cannot allow it. IN RELATION TO THE ADMISSIBILITY OF THE DNA EVIDENCE I FIND IT IS NOT ADMISSIBLE AND DECLINE TO ALLOW IT IN THE HEARING."
7. His Honour then asked whether the prosecutor could prove the case without that evidence. Discussion then ensued as to how the matters might proceed. The prosecutor sought an adjournment. Hodgson LCM initially considered that there were two courses available to the prosecutor, either to proceed with the hearing, or to seek an adjournment, so that an appeal could be pursued.
8. The prosecutor pressed for an adjournment, submitting that he ought to have the opportunity to pursue an appeal on the interlocutory decision which had been given on the voir dire on a point of law, submitting that meant that his Honour was not, as a result, part heard in respect of the three charges.
9. His Honour considered that he was part heard and the following exchange ensued: "HIS HONOUR: Well what I might do Mr Prosecutor is invite you to tender any evidence on the hearing, I'll make a determination and then the Supreme Court can reopen the matter but because it's a hearing, he's in custody, I've got to determine the matter, that's the problem. PROSECUTOR: And your Honour whilst I hear what you're saying and I can appreciate what you're saying as I previously stated in my -- HIS HONOUR: I'm not like the Supreme Court with a jury where they can stop the hearing and spear it off-- PROSECUTOR: Yeah and I know and that's a good thing and a bad thing, a good thing and a bad thing but your Honour as I previously stated I cannot run the matters here today without the witnesses and I as a prosecutor am failing in my duties as such if I continue without having the witnesses here because I -- HIS HONOUR: So you're seeking to offer no further evidence today that's admissible. PROSECUTOR: Your Honour I cannot offer no evidence because there is evidence but I need the witnesses here to provide that evidence to the Court so your Honour I'm asking - I have five days to submit this appeal to start it, it will be submitted on Monday. I-- HIS HONOUR: I haven't had someone ask me to stop a matter midway between the hearing before. I understand the Supreme Court likes you to determine the matter and then they can overturn that decision. I know there's some provisions in the District Court trials where they can do that, get a legal opinion but this is not one of those. For that reason THE ADJOURNMENT IS REFUSED. ON THE EVIDENCE BEFORE ME I CANNOT FIND THE OFFENCES PROVED AND ON EACH MATTER THE DEFENDANT IS NOT GUILTY AND THE MATTERS ARE DISMISSED."

The proceedings ought not to have been dismissed - ground (vii)

1. As was properly conceded by Mr Richardson, his Honour erred not only in how the proceedings were conducted, but also in failing to give adequate reasons for the decisions which he reached, both as to the coincidence evidence and the DNA evidence. His Honour also failed to apply the applicable tests under the Evidence Act to the coincidence evidence and under s 82 of the Crimes (Forensic Procedures) Act 2000 (NSW) in relation to the DNA evidence.
2. His Honour also erred in dismissing the proceedings, which were not conducted as required by law. In the result, the appeal must be allowed.

Inadequate reasons - grounds (i) and (ii)

1. His Honour's errors in the conduct of the hearing prior to the adjournment ought to have become apparent to him, while he was considering the reasons he would give for the conclusions he had reached on the issues lying between the parties as to the coincidence and DNA evidence. At that point, he ought to have heard further from the parties. Instead, on resumption, he delivered entirely inadequate reasons for his decisions.
2. As was explained by Johnson J in Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343; (2006) 67 NSWLR 402 at [19], it is necessary that magistrates keep in mind the obligation to provide reasons when determining summary proceedings under s 202 of the Criminal Procedure Act, so that both the parties and an appeal court can understand the basis on which the decision was reached. As the parties here agreed, it was not sufficient, for example, for his Honour to have resolved the issues lying between the parties as to the coincidence evidence by simply stating: "IT IS MY OPINION THAT THE PREJUDICIAL NATURE OF THE COINCIDENCE EVIDENCE FAR EXCEEDS ITS PROBATIVE VALUE AND I DISALLOW THAT EVIDENCE."
3. It is settled that failing to give adequate reasons can amount to an error of law (see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278-279 per McHugh JA; Mifsud v Campbell (1991) 21 NSWLR 725). Properly, there is no issue lying between the parties in this case, that his Honour fell into such error.
4. The need to make proper allowance for ex tempore decisions given in a busy Local Court has often been discussed (see Acuthan v Coates (1986) 6 NSWLR 472 at 478 - 479 (Kirby P) and 485 (Mahoney JA); Neighbourhood Association DP295386 v Forgeron [2005] NSWCA 150 at [15]; Colosimo v Director of Public Prosecutions (NSW) [2005] NSWSC 854; (2005) 64 NSWLR 645 at [36], for example). It is the critical findings and the reasons for them which must be revealed, when such a decision is given (see Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449 at [41]). That obligation was not here met.
5. As well as stating his conclusions, what was also necessary for his Honour to do was to give an explanation of the basis on which the conclusions he had reached on each issue lying between the parties rested, by reference both to the relevant evidence and the applicable law. That he failed to do, no doubt in part because he had not given the parties the opportunity to lead the evidence on which what lay between them turned. That failure thus led him into further error.
6. Accordingly, this appeal must be upheld on this ground alone.

Wrongly disallowing evidence - grounds (iii) and (v)

1. That his Honour was not able to properly explain the reasons for the conclusions he had reached in relation to the issues lying between the parties in respect of the coincidence and DNA evidence, ought to have alerted him to the fact that on the voir dire, he had not received all of the evidence on which those issues turned. He ought to have remedied that difficulty, before giving his decision.
2. While hearing the submissions advanced by Mr Hannaway, his Honour had asked to be provided with a copy of the coincidence notice, as well as the statement of the officer who had administered the DNA notice. Before he retired both parties understood that they had been given the opportunity to open their cases on the issues lying between them, but they had not been given the opportunity to lead evidence or address their submissions to it.
3. From the submissions which had already been made, however, his Honour's attention had been drawn to the necessity to consider the statements on which the coincidence notice rested, as well as the evidence on which the DNA case was being advanced, which had been discussed in Mr Hannaway's written submissions. These were adversarial proceedings. The parties had to be given the opportunity to lead that evidence, in order for the issues lying between them to be resolved.
4. While his Honour had been provided with the coincidence notice and the statements of the police officers, when he asked for them during Mr Hannaway's opening, other evidence, including the coincidence evidence and a DVD to which the parties had referred and which Mr Hannaway had submitted had to be watched, had not been tendered at the point that his Honour announced: "What I'm going to do I'm going to adjourn this matter to 2 o'clock. Can you give your cases to the court officer, she'll bring them to chambers."
5. Mr Hannaway then provided copies of two decisions and his Honour retired, returning to give his decision, without giving the parties the opportunity to conclude their cases.
6. As discussed by Adamson J in DPP v Ridley at [41], there in the context of a voir dire on the admissibility of a police brief, on such a voir dire his Honour was obliged to: (1) invite defendant's counsel to identify, in respect to each part of the evidence objected to, the basis for the objection; (2) obtain, where relevant, information from the prosecutor as to the purpose of the tender; (3) hear submissions from both parties as to each objection; (4) if s 137 of the Evidence Act applied, identify the probative value and the prejudicial effect, weigh them and decide whether the probative value is outweighed by the prejudicial effect thereby leading to the exclusion of the evidence; or whether it is not, thereby leading to the admission of the evidence and give sufficient reasons to explain the ruling: R v Harker [2004] NSWCCA 427 at [47] per Howie J, Santow JA and Bell J agreeing; see also R v Blick [2000] NSWCCA 61 at [19]- [20] per Sheller JA; (5) if s 138 of the Evidence Act applied, address the alleged illegality or lack of propriety as referred to in s 138(1) and s 138(2); take into account the matters referred to in s 138(3) and undertake an "evaluative and balancing exercise" (Beckett v R [2014] NSWCCA 305 at [68] per Beazley P, R A Hulme and Bellew JJ agreeing; see also Varty v Director of Public Prosecutions (NSW) [2015] NSWSC 304 at [37]- [38] per Adamson J) before making a ruling and giving reasons for such ruling; (6) make a ruling on the admissibility of evidence objected to, either by admitting it, rejecting it, or admitting it for limited purposes; and (7) give reasons for each ruling in sufficient detail to deal with the objection.
7. In this case, it was the requirements of s 98 and s 101 of the Evidence Act which had to be applied. His Honour did not adhere to those obligations.
8. Litigation such as this ought not to be conducted by ambush or surprise, either by the parties or by a trial judge. As has been discussed in cases such as Director of Public Prosecutions (NSW) v Wililo [2012] NSWSC 713; (2012) 222 A Crim R 106 and the authorities Johnson J there referred to at [52], a trial judge must ensure that natural justice and procedural fairness is extended to the prosecutor, as well as to the accused. That requires, amongst other things, that the parties be given a reasonable opportunity to advance their cases (see Adamson v Ede [2009] NSWCA 379 at [53] - [63]).
9. Here the prosecutor was not given any opportunity either to consider or respond to the written submissions on which Mr Richardson advanced his case, which had not earlier been served, or to lead evidence on which the prosecution case rested, before the decision to exclude the disputed evidence was made. Nor was Mr Richardson given an opportunity to respond. In the circumstances, that the parties had not understood that his Honour intended to deliver his decision immediately on resumption after the adjournment, was entirely understandable.
10. While Mr Hannaway's oral explanation of Mr Richardson's position in opening had identified the scope and basis for his objections to the coincidence and DNA evidence and the prosecutor was given an opportunity to respond, what lay between the parties had to be determined by reference to the relevant evidence. As the appellant submitted, it was the informality with which the voir dire was conducted, which may well have led his Honour into error.
11. In his reasons his Honour said that he had regard to the evidence tendered on the voir dire, but the parties had not been given an opportunity to tender the relevant evidence, which included the coincidence evidence in respect of which the notice had been given. Nor had other relevant evidence, including a forensic information procedure sheet and a consent form signed by Mr Richardson, as well as the DVD which the parties had earlier referred in their openings.
12. Had the normal course been pursued before a decision was made, these difficulties would have been avoided. That required the parties being given the usual opportunity of tendering the evidence on which their cases rested; that evidence being marked as exhibits on the voir dire; and his Honour then hearing their final submissions, which needed to be advanced by reference to that evidence.
13. In the result, these grounds of appeal must also be upheld.

Failing to apply the relevant tests under the Evidence Act - ground (iv)

1. The issues lying between the parties on the coincidence evidence depended on the requirements of s 98 and s 101 of the Evidence Act. They provide: "98 The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. Note. One of the events referred to in subsection (1) may be an event the occurrence of which is a fact in issue in the proceeding. (2) Subsection (1) (a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100, or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party. Note. Other provisions of this Act, or of other laws, may operate as exceptions to the coincidence rule. … 101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution (1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98. (2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant. (3) This section does not apply to tendency evidence that the prosecution adduces to explain or contradict tendency evidence adduced by the defendant. (4) This section does not apply to coincidence evidence that the prosecution adduces to explain or contradict coincidence evidence adduced by the defendant."
2. What his Honour had to resolve thus included the sufficiency of the coincidence notice which had been given; whether the coincidence evidence had significant probative value; and whether its probative value substantially outweighed any prejudicial effect it may have on Mr Richardson. Reasons for the conclusions reached on each of these matters also had to be given.
3. As discussed in R v Gale; R v Duckworth [2012] NSWCCA 174; (2012) 217 A Crim R 487 at [31], the correct process in determining the admission of such coincidence evidence involves a series of steps: the first step is to identify the "particular act of a person" or the "particular state of mind of a person" that the party tendering the evidence seeks to prove; the second step is to identify the "two or more events" from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the "particular act" or had the "particular state of mind"; the third step is to identify the "similarities in the events" and/or the "similarities in the circumstances in which the events occurred" by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events; the fourth step is to determine whether "reasonable notice" has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement); the fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, "have significant probative value"; in a criminal proceeding, if it is determined that the evidence would have "significant probative value", the sixth step is the determination whether the probative value of the evidence "substantially outweighs" any prejudicial effect it may have on the defendant (s 101(2)). the sixth step necessarily involves some analysis both of the probative value of the evidence in question and any prejudicial effect it might have: R v RN [2005] NSWCCA 413, and a balancing of the two.
4. His Honour did not attempt such an exercise. Instead the evidence was dismissed on a basis not provided for by the Evidence Act, namely, simply because his Honour considered that its prejudicial nature far exceeded its probative value. Reasons for even that conclusion were not given.
5. The result of his Honour's approach was that he decided that the coincidence evidence was to be excluded, without actually considering the evidence itself. That was contrary to the requirements of justice discussed by Barr J in DPP v CAD [2003] NSWSC 196. There, his Honour observed at [42] that: "… When a court is required to decide on an objection to the admissibility of evidence it is necessary for the court to inform itself what the evidence is. The magistrate was bound to acquaint himself with the substance of the evidence before he could decide whether or not to admit it."
6. That obligation is met by giving the parties the opportunity to tender the relevant evidence. It cannot be met simply on the basis of an acceptance of the written submission advanced for Mr Richardson, especially without the prosecution being given even a proper opportunity to consider and respond to the description of that evidence.
7. Accordingly, this ground of appeal must also be upheld.

Failing to apply the s 82 of the Crimes (Forensic Procedures) Act 2000 - ground (vi)

1. His Honour found that the DNA evidence had been illegally obtained. Why he concluded that the requirements of the Crimes (Forensic Procedures) Act had not been complied with, was not explained. His Honour made no reference either to those requirements, or to the prosecution's case on what lay in issue between the parties and no explanation was given as to why its case was rejected. Nor did his Honour explain what impact the authorities which had been cited, had on the conclusions which he had reached.
2. Further, his Honour made no reference to what the evidence revealed as to the various failures to comply with the statutory requirements alleged by Mr Richardson. The bare acceptance of the submission that the warning given was misleading and that the procedure followed did not comply with the requirements of the Act, does not reveal anything about either the requirements of this legislative scheme, or any failure to abide by them.
3. Nor did his Honour refer to relevant aspects of what the statements in evidence revealed, which included, amongst other things, that Mr Richardson's solicitor had been present when the words in issue between the parties had been spoken.
4. Even if the conclusion that the requirements of the legislative scheme had not been complied with was correct, s 82(4)(b) gave the Court a discretion to permit the tender of the disputed DNA evidence, if the desirability of admitting that evidence was found to outweigh the undesirability of admitting evidence that was not obtained in compliance with the provisions of the Act.
5. His Honour made no reference to the section. Either he failed to consider whether, in the circumstances, the statutory discretion ought to be exercised, or he failed to give the required explanation of his reasons for not exercising that discretion in the circumstances. Given the presence of Mr Richardson's solicitor at the time that Mr Richardson's consent was sought, to which no reference was made and what his Honour found to have been a very strong case for at least one offence, why that discretion would not be exercised in this case, is difficult to see.
6. In the circumstances, the proper inference is that his Honour failed to consider whether the discretion granted to the Court should be exercised. This is yet a further reason why this appeal must be upheld.

Certificate under the Suitors' Fund Act

1. In this case there can be no question that Mr Richardson is entitled to a certificate under the Act.
2. Dixon CJ discussed the purpose of the Act in Gurnett v The Macquarie Stevedoring Co Pty Ltd (No 2) [1956] HCA 29; (1956) 95 CLR 106. At 113 it was explained to be "to relieve litigants of the burden of costs that might be imposed upon them by reason of erroneous decisions upon questions of law."
3. The principles applying to such an application were considered by Kirby P and Samuels JA in Mir Bros Developments Pty Ltd v Atlantic Constructions Pty Ltd (1985) 1 NSWLR 491. They observed at 494 that the object of s 6 was to ensure that litigants do not bear the costs inevitably occasioned when an error of law requiring correction is disclosed on appeal. At 499 the discretionary considerations, it was noted, include the question of whether there was any fault on the part of the litigants, in the subordinate court's legal error.
4. Here, I am satisfied that the parties were not responsible for the series of legal errors into which his Honour fell.
5. Accordingly, it must be concluded that the discretion granted by s 6, must in this case be exercised in Mr Richardson's favour.

Costs

1. The usual order as to costs is that they follow the event, which in this case is an order in the plaintiff's favour. It was not suggested that there should be any departure from that course in this case.

Orders

1. For the reasons given I make orders in the terms agreed between the parties: 1. Appeal allowed. 2. Pursuant to section 59(2) of the Crimes (Appeal and Review) Act 2001 (NSW) that the order of his Honour Magistrate Hodgson made on 8 May 2015 at Port Macquarie Local Court dismissing proceedings against the Defendant for the offences of "Assault with act of indecency" pursuant to section 61L Crimes Act 1900 (NSW); and two counts of "Commit act of indecency" pursuant to section 61N(2) Crimes Act 1900 (NSW), be set aside. 3. Matter be remitted to the Local Court to be dealt with according to law. 4. An order that the Defendant pay the Plaintiff's costs of and incidental to this summons. 5. The Defendant to have a certificate under the Suitors' Fund Act 1951 (NSW) in relation to the said costs of appeal if otherwise qualified.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 November 2015