Dogramaci v Director of Public Prosecutions

Judgment

1. MACFARLAN JA: By summons filed in this Court on 21 September 2021, Mr Abdullah Dogramaci seeks orders by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW) of a judgment given in the District Court by Judge Turnbull SC on 26 February 2021 dismissing an appeal by Mr Dogramaci against his conviction of a traffic offence in the Local Court on 8 December 2020. As Mr Dogramaci's summons was filed nearly four months out of time he requires an extension of the time for its filing (r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW)).
2. The proceedings in the Local Court arose out of the issue of an infringement notice to Mr Dogramaci by Senior Constable Wade Elliott for driving at a speed in excess of 20km/h over the applicable speed limit, contrary to r 20 of the Road Rules 2014 (NSW). Constable Elliott stopped Mr Dogramaci's vehicle after estimating that it was travelling at a speed of at least 75km/h on a road signposted with a limit of 50km/h. He had also used a speed measurement radar device which confirmed that the vehicle was travelling at 80km/h. The matter was heard by Magistrate Hockey at Blayney Local Court on 8 December 2020. Mr Dogramaci was unrepresented. Both he and Constable Elliott gave evidence. Other evidence included a certificate of Constable Elliott's competency and an in-car video of the incident taken by him. The Magistrate found Mr Dogramaci guilty, convicted him and fined him $250 which was a reduction from the amount of $481 stated on the infringement notice.
3. Mr Dogramaci then appealed to the District Court under s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (the "CAR Act") against his conviction and sentence. The appeal was heard by Judge Turnbull sitting at Bathurst. It proceeded on the basis of the evidence adduced in the Local Court and Mr Dogramaci was again unrepresented. The appeals against both conviction and sentence were dismissed.
4. Assuming that Mr Dogramaci is able to persuade this Court that he should be granted an extension of time, in order to succeed in his application he would then need to establish jurisdictional error on the part of Judge Turnbull (s 176 of the District Court Act 1973 (NSW); Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92; (2015) 250 A Crim R 154 at [32]; Garde v Dowd (2011) 80 NSWLR 620 at 623; [2011] NSWCA 115 at [9]-[10]). It is sufficient for present purposes to state that an inferior court such as the District Court will commit a jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist" (Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at 573-574; [2010] HCA 1 at [72]). It follows that many, if not most, errors of law or fact are errors within jurisdiction and do not constitute jurisdictional error.
5. The bases upon which Mr Dogramaci asserts that jurisdictional error occurred in the present case are diffuse, repetitive, and in many respects arguably without foundation because they amount to no more than complaints about the merits of the decisions below. Mr Dogramaci's complaints extend to the proceedings and the judgment in the Local Court but, as the Local Court decision has been superseded by that on appeal to the District Court, Mr Dogramaci can only succeed in this Court if he establishes that a jurisdictional error was committed in the District Court (Dyason v Butterworth [2015] NSWCA 52 at [34] citing Wishart v Fraser (1941) 64 CLR 470 at 478; [1941] HCA 8).
6. For the reasons that appear below, I do not consider that Mr Dogramaci has established that the District Court made any jurisdictional error. As a result, his application for judicial review should be dismissed with costs. Only the main points made by Mr Dogramaci are addressed below. Other submissions not raising any arguably relevant points are not addressed (see Mohareb v Saratoga Marine Pty Ltd [2020] NSWCA 235 at [44]-[45] as to the lack of necessity to do this).

The Local Court proceedings

1. When the matter commenced before Magistrate Hockey his Honour noted, as was appropriate, that Mr Dogramaci was unrepresented and that his Honour would assist him as much as he could, although not so as to give him legal advice.
2. Senior Constable Elliott then gave evidence, to which no objection was taken, by reading his typed statement onto the record. In the statement, he said that he had completed the "Highway Patrol Education Program which authorises for me to check and estimate the speed of moving vehicles on a daily basis". The certificate was tendered but it did not in terms indicate that the course extended to estimating the speed of vehicles. Relevantly, it said that Constable Elliott had completed the course and was authorised by the Commissioner to "drive NSW Police High Speed Pursuit Vehicles and to check the speed of moving vehicles", as well as "operate all NSW Police Force speed measurement devices".
3. Constable Elliott then indicated that the ticket he issued to Mr Dogramaci was based on his estimate of the speed of the vehicle, with the radar device being used only as a "back-up of [his] estimation". The in-car video that he took was tendered and played, without objection. It showed the number 80 in the target display. It did not indicate the presence of any other vehicles near Mr Dogramaci's vehicle and the Constable said he saw none.
4. Mr Dogramaci's first tranche of questions in cross-examination concluded with the following question: "[W]ell let me ask you this, when you started at 6 o'clock, exactly 6 o'clock, what have you done in the police station?".
5. Unsurprisingly, his Honour disallowed this question as the stopping of Mr Dogramaci's vehicle occurred just after midday on the relevant day. His Honour said, "[y]ou can only ask questions that are relevant to the matter that's before the Court okay" and then tried to direct Mr Dogramaci's attention to matters that might be relevant to the speed at which he was travelling, namely the Constable's evidence of his observations of Mr Dogramaci's vehicle and his estimation of its speed. Later, his Honour again attempted to assist Mr Dogramaci by having Mr Dogramaci articulate what his defence to the prosecution was and suggesting that he put these matters which he identified to the Constable in cross-examination. Mr Dogramaci then asked the Constable in cross-examination whether he was aware of the presence of any other vehicle when he first observed Mr Dogramaci's vehicle passing Osman Street. The Constable answered, "I didn't see any other vehicle. There was no other vehicle in front of [Mr Dogramaci]". It is not entirely clear whether the Constable meant that he saw no other vehicles in his entire field of vision or only within a certain proximity of Mr Dogramaci's moving vehicle. In any case, Mr Dogramaci did not pursue further questions on this point.
6. Mr Dogramaci then complained to the Magistrate that he had not received Constable Elliott's statement and the in-car video until a few days before the hearing. His Honour responded by indicating that there was no obligation on the police to provide documents any earlier and inviting Mr Dogramaci to continue the cross-examination. His Honour added that he was "not going to let [Mr Dogramaci] go off the point in relation to other matters that aren't relevant okay". When asked whether he had any more questions Mr Dogramaci said "I have plenty but I don't want to waste your time", thus concluding his cross-examination.
7. Mr Dogramaci then gave evidence. When he attempted to speak about previous driving incidents in which he had been involved, his Honour indicated, not unreasonably, that they were not relevant to the prosecution before him.
8. As a general observation about the hearing, it can be said that the transcript reveals that Magistrate Hockey treated Mr Dogramaci fairly and attempted to assist him in its conduct. There was no error in his Honour confining Mr Dogramaci's cross-examination of Constable Elliott to relevant matters and it cannot be said that Mr Dogramaci was in any way stopped from raising in cross-examination, or otherwise, matters that might have been relevant to the prosecution. Moreover it is clear that Mr Dogramaci had the opportunity to challenge Constable Elliott's expertise to estimate the speed of Mr Dogramaci's vehicle or put to Constable Elliott that he was not physically positioned where a reasonable estimate could be made, but Mr Dogramaci elected not to do so.
9. In his judgment, Magistrate Hockey accepted Constable Elliott's estimate of the speed of Mr Dogramaci's vehicle and found that no other vehicle was involved, contrary to Mr Dogramaci's evidence. His Honour accordingly convicted Mr Dogramaci.

The District Court proceedings

1. At the hearing in the District Court before Judge Turnbull, Mr Dogramaci was unrepresented, as he had been in the Local Court. The Crown tendered the transcripts of the hearing and judgment in the Local Court, together with the exhibits that were before that Court. Those exhibits included the in-car video footage taken by Constable Elliott and his certificate of competency.
2. Mr Dogramaci complained that he had only recently received a body-worn video taken by Constable Elliott which was not in evidence before the Local Court. He said that he had sought it from the Crown on a number of occasions. His Honour responded by saying that "none of us have seen it" and that it should be watched in court, which is what occurred. Mr Dogramaci did not seek an adjournment or make any further complaint about that video.
3. Mr Dogramaci told his Honour that he had not been given an opportunity in the Local Court to ask Constable Elliott to produce a certificate that showed that he was "an expert in estimation" but, as indicated in [14] above, Mr Dogramaci was not in fact prevented in the Local Court from asking this or any other relevant question. In any event, the inference could be drawn from Constable Elliott's evidence in the Local Court that the only relevant certificate he had was that which he produced and which was tendered. Both the Magistrate and Judge Turnbull relied on that certificate, and on Constable Elliott's evidence generally, to conclude that Constable Elliott had sufficient expertise to make, and give evidence of, his estimate of the speed of Mr Dogramaci's vehicle. If either or both were in error as to that, the errors were simple factual and/or legal errors which were not jurisdictional in character. Moreover, what occurred did not involve any procedural unfairness to Mr Dogramaci as he was able, as he did, to make to Judge Turnbull his point about the limited ambit of the certificate without needing to put that to Constable Elliott in cross-examination.
4. Mr Dogramaci then made some assertions to Judge Turnbull from the bar table which were not supported by any evidence. First, he said that police officers had to undertake the kind of training referred to in the certificate every three to five years and that Constable Elliott had not done so. Secondly he said that, after checking with the police department, he had ascertained that radars such as the one used by Constable Elliott could not, or perhaps should not, be used when the vehicle whose speed was being checked was approaching the Constable at more or less a perpendicular angle rather than going across his horizontal line of sight.
5. In response, Judge Turnbull fairly pointed out that there was no evidence on these topics, and that it had not been put to Constable Elliott in the Local Court that he did not have the relevant expertise. His Honour noted on four occasions that if Mr Dogramaci wanted to pursue the points he would need to make an application to call fresh evidence in the District Court.
6. During these exchanges, Mr Dogramaci asked, "Is there any way that I could subpoena the officer to come in [here] to answer and to prove that he has the certificate for the estimation?". His Honour replied by stating that in his view the certificate already produced "covers everything" and later said to Mr Dogramaci: "Unless there's a separate application to recall witnesses or to call fresh evidence and then I have to determine that application in the interest of justice. [sic] Now at the moment I don't even have that application. I'm not saying I would grant it."
7. Shortly after, Mr Dogramaci said, "[s]o you won't grant me to call him to make an application to call him?" [sic], to which his Honour said, "[n]o I won't grant it at this stage, there's no formal application" and "to be quite frank with you what's he going to say differently? This is a fellow who was biting back at you from the witness box". Mr Dogramaci then indicated that he had thought that "[Constable Elliott] would come in and I would ask him the questions" but did not seek an adjournment to enable him to apply to have the Constable brought to court or to adduce further evidence.
8. In my view there was nothing procedurally unfair about the way in which the District Court hearing was conducted. His Honour was conscious that, absent any successful application to adduce fresh evidence (see s 18(2) of the CAR Act), he was obliged to determine the appeal on the basis of the material before the Local Court. His Honour made it plain to Mr Dogramaci that this was the position and Mr Dogramaci did not seek an adjournment to make such an application. In any event, as his Honour indicated, he was not persuaded that any further cross-examination of Constable Elliott would be fruitful, at least in the absence of evidence to support the hearsay assertions that Mr Dogramaci made (see [19] above). Mr Dogramaci did not make any application to adduce that evidence.
9. Judge Turnbull rejected Mr Dogramaci's appeal. His Honour found that Constable Elliott's evidence and the certificate before the Local Court enabled him to conclude that Constable Elliott had sufficient expertise to estimate the speed of Mr Dogramaci's vehicle. He noted that Mr Dogramaci had not challenged the existence of that expertise in the Local Court and had not sought to adduce further evidence about it in the District Court.

Mr Dogramaci's other complaints and the responses to them

1. As I have indicated above, Mr Dogramaci's complaints are multifarious. The essence of them and the responses I make, in addition to what I have said above, are as follows.
2. First, Mr Dogramaci complained that Constable Elliott did not use his radar to determine the speed of the vehicle but simply estimated it. There was however no evidence that the Constable was required to use the radar. In any event, he did so by using it as a "back-up" to his estimate of speed. There was no evidence that he was not entitled to do this.
3. Secondly, Mr Dogramaci sought to challenge the Constable's expertise to make the estimate of speed but, as I have indicated above, it was open to the District Court (and Local Court), on the basis of the evidence that was before the Local Court, to make a finding that Constable Elliott had sufficient expertise.
4. Thirdly, Mr Dogramaci complained of asserted inconsistency between the findings in the Local and District Courts concerning the existence of another vehicle in front of his vehicle. The Magistrate accepted Mr Dogramaci's evidence that there may have been such a vehicle present (at least at some stage) which may have turned left onto Osman Street after Mr Dogramaci allegedly overtook it, despite no such vehicle appearing on the in-car video. His Honour however also accepted Constable Elliott's evidence that he did not see any such vehicle and ultimately weighed up the evidence in favour of the latter. In the District Court, Judge Turnbull did not make any explicit finding about the presence or absence of another vehicle in front of Mr Dogramaci's vehicle.
5. That there may have been some differences in the factual findings in the two Courts does not assist Mr Dogramaci because the appeal to the District Court was by way of rehearing and such differences are to be expected. The existence of them is not indicative of jurisdictional error on the part of the District Court which, for the purposes of the present judicial review application, is the relevant court, not the Local Court (see [5] above).
6. Fourthly, Mr Dogramaci complained about the non-attendance of Constable Elliott at the District Court hearing. His attendance was not however required in the absence of a direction of the District Court under s 19 of the CAR Act. Under s 19(1)(b) the District Court may direct a person to attend and give evidence if, inter alia, there are substantial reasons for that to occur. Section 19(2) requires a notice of an intention to make such an application to be served on the other party to the proceedings within such period as the District Court may direct. This requirement appears to contemplate that the application, or at least notice of the application, will be given prior to the appeal hearing in the District Court. As I have indicated above, Mr Dogramaci did not seek any adjournment to enable such an application to be made, nor did he advance any matters that suggested that any such application, if made, would or should have been granted.
7. Fifthly, Mr Dogramaci complained that the in-car video played in the District Court was different to the in-car video in evidence in the Local Court. This issue was resolved in the District Court when it was ascertained that Mr Dogramaci thought he had not seen the commencement of the video in the Local Court proceeding. When the whole of the video was played in the District Court proceeding, he confirmed that it depicted his vehicle on the day in question and did not seek to attach any significance to the commencement of the video which he had not previously seen.
8. Sixthly, Mr Dogramaci complained of inconsistencies between the Constable's statement and the in-car video regarding the precise location of the police vehicle, the distance and angle at which the Constable was positioned relative to Mr Dogramaci's vehicle, and whether the police vehicle was stationary or moving at the time the Constable made the estimation and deployed the radar device. Whether there were any inconsistencies in this respect was not raised by Mr Dogramaci in the cross-examination of the Constable in the Local Court, although he did raise them in this Court. In any event however, Mr Dogramaci's submission at best points to the existence of a factual issue and does not demonstrate any jurisdictional error on the part of Judge Turnbull.

Conclusions

1. For the reasons given above, Mr Dogramaci has not established the occurrence of any jurisdictional error that would ground his application for judicial review. As a result, he should be refused an extension of time for the filing of his summons, which should be dismissed with costs.
2. WHITE JA: The issue on this application for judicial review is whether the plaintiff, Mr Dogramaci, was denied procedural fairness in the District Court and the judge thereby committed jurisdictional error.
3. I agree with Macfarlan JA that there was no denial of procedural fairness and no jurisdictional error.
4. The Appeal Listing Notice, listing the appeal for callover on 5 February 2021, had advised Mr Dogramaci that the police officer involved in the case would not be at court unless a judge granted a request and directed his attendance.
5. Mr Dogramaci represented himself in the District Court, as he had done in the Local Court. To ensure that Mr Dogramaci had a fair hearing of his appeal to the District Court, having regard to the matters he sought to raise, it was incumbent on the judge to advise him of his right to apply for leave to adduce fresh evidence (Macpherson v The Queen (1981) 147 CLR 512; [1981] HCA 46 at 534 [31]). Because the hearing was to be conducted in a way that was fair to both parties, and because the judge was required both to be and to appear to be impartial, the judge was not required to advise Mr Dogramaci whether he should exercise his right to apply to be allowed to adduce fresh evidence or to recall witnesses (R v Gidley (1984) 3 NSWLR 168 at 181; Hamod v State of New South Wales [2011] NSWCA 375 at [312]).
6. In the passages of the transcript quoted by Macfarlan JA at [21] and by Simpson AJA at [57] the judge stated that he was obliged to deal with the appeal on the basis of the record of proceedings in the Local Court unless a separate application were made to recall witnesses or to call fresh evidence. That was an accurate statement of the effect of ss 18(1), 18(2) and 19 of the Crimes (Appeal and Review) Act 2001 (NSW). The judge told Mr Dogramaci that: "…the provisions of the Appeal Act mean that I am only allowed to deal with the matter on the papers unless there is a separate application to recall witnesses or to call fresh evidence, and then I have to determine that application in the interests of justice. Now at the moment I don't even have that application. I am not saying I would grant it…"
7. Mr Dogramaci asked whether he would be allowed to call Senior Constable Elliott, but made no application to do so. Section 19(2) would have permitted the District Court to make a direction for Senior Constable Elliott's attendance, but only if notice of Mr Dogramaci's intention to make such an application had been served within such period as the District Court directed (s 19(2)).
8. No such request had been made at the callover, nor at any time before the hearing. No doubt if an application had been made at the hearing the judge could have adjourned the hearing to permit Senior Constable Elliott to be recalled. But the judge was understandably sceptical as to whether that would be appropriate. No such application was made.
9. Nor did Mr Dogramaci make an application to adduce fresh evidence.
10. In the absence of any such application, the judge was correct to say that he had to deal with the matter on the basis of the evidence adduced in the Local Court.
11. Mr Dogramaci was advised of his rights. He was not denied procedural fairness. I agree with the orders proposed by Macfarlan JA, and with his reasons.
12. SIMPSON AJA: I have had the advantage of reading in draft the judgment of Macfarlan JA, in which the relevant facts and circumstances are set out. I will, therefore, deal with the background facts as briefly as possible and confine my references for those necessary for an understanding of the different view to which I have come.
13. At a little after midday on 6 February 2020 a police officer (Senior Constable Wade Elliott) issued Mr Dogramaci with a traffic infringement notice alleging an offence of driving at a speed in excess of 20 kilometres over the applicable speed limit in Adelaide Street, Blayney. The notice alleged that Mr Dogramaci had driven his vehicle at no more than 80 kilometres per hour and no less than 75 kilometres per hour in an area of road as to which the applicable speed limit is 50 kilometres per hour. The notice was based on Senior Constable Elliott's estimate, from his own observations, of the speed of the vehicle then being driven by Mr Dogramaci. Senior Constable Elliott also relied, as confirmatory of his estimate, on a measure of the speed of Mr Dogramaci's vehicle by a radar device in his possession.
14. Mr Dogramaci disputed the allegation and elected to have it dealt with by the Local Court. The proceedings took place in the Local Court at Blayney on 8 December 2020. Mr Dogramaci appeared unrepresented. Sergeant Ruming appeared as prosecutor. Senior Constable Elliott gave his evidence in chief by reading a prepared statemen (Evidence Act 1995 (NSW), s 33). He recounted his observations of Mr Dogramaci's vehicle. Admitted into evidence during his examination in chief was a certificate of the NSW Police Force certifying that Senior Constable Elliott had successfully completed the "Highway Patrol Education Course" and was authorised to:

• "drive NSW Police High Speed Pursuit Vehicles an to check the speed of moving vehicles;
• perform duty as a Specialist Highway Patrol Officer;
• operate all NSW Police Force speed measurement devices."

1. Reliance appears to have been placed on the certificate as evidence supporting Senior Constable Elliott's expertise in the assessment of vehicle speed (see Evidence Act 1995 (NSW), s 79).
2. Senior Constable Elliott was cross-examined by Mr Dogramaci. At an early point in the cross-examination, after establishing that Senior Constable Elliott had commenced work at 6 am, Mr Dogramaci asked what Senior Constable Elliott had done at the police station after commencing work. No objection was taken by the prosecutor, but the magistrate disallowed the question, saying that Mr Dogramaci was entitled only to ask questions "that are relevant to the matter that's before the Court".
3. After some further cross-examination, the magistrate asked Mr Dogramaci if he had any further questions. Mr Dogramaci replied: "I have plenty but I don't want to waste your time."
4. Mr Dogramaci then gave evidence. He denied that he had been travelling in excess of the speed limit.
5. Ultimately, the magistrate found the offence proved, convicted Mr Dogramaci and imposed a fine of $250.
6. Mr Dogramaci appealed to the District Court. He stated as the ground of appeal "because I am not guilty". He was sent an "Appeal Listing Notice" that showed 5 February 2021 as a date for callover, and advised: "You are required to attend to Court on that date. … The police officers involved in the case and police witnesses will not be at court unless a Judge grants a request by you and directs their attendance."
7. The appeal came before Turnbull DCJ in the District Court in Bathurst on 26 February 2021. Mr Dogramaci again appeared unrepresented. A Mr Cramer appeared as prosecutor. Senior Constable Elliott was not present, no request having been made by Mr Dogramaci for an order than he attend.
8. Mr Dogramaci raised an issue about Senior Constable Elliott's asserted expertise in the estimation of vehicle speeds. He complained that Senior Constable Elliott had been unable to give him an answer in the Local Court, and contended (correctly, in my view) that the Certificate in evidence did not attest to Senior Constable Elliott's expertise in estimating vehicle speeds. The judge said: "I can only proceed on the basis of the evidence in the Local Court." (T 7)
9. The following exchanges are then recorded in the transcript: "HIS HONOUR: So it started out being an estimate and unless I have got evidence, I hear what you say from the bar table, but unless I have got evidence or I find on the base of questions of this man who purports to be an expert, that unless we have got evidence to contradict his expertise - APPELLANT: Yes, yes I do. HIS HONOUR: - I am not in a position today to have that impugned because the law restricts me to dealing with just the evidence at the Local Court, that's it. APPELLANT: OK HIS HONOUR: Well what do you want to say about that difficulty sir?" (T 7-8, italics added)
10. Mr Dogramaci's reply to that question was unresponsive. There was then some discussion about other matters, and the judge said (as recorded in the transcript): "At the end of the day all that we're able to go on, I'm sure is this. This is the officer who alleges he's got some expertise. He's got a certificate to back him up. He was never contradicted about that expertise in the Local Court and there is no evidence to suggest that he's other than an expert. He's made an estimate, the estimate is there in the ticket. The corroboration is in the radar, but if I were to put to one side the radar, at the moment, what I'm unfortunately got to deal with is an uncontradicted suggestion that an expert has clocked you and estimated a speed in excess of the speed limit. So that's the difficulty I have. If you really wanted to take this point you would need to bring evidence before me and I just don't have any." (T 9, italics added)

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