El Hassan v NSW DPP & Anor

C: Mr A J Bellanto QC, Mr W C Barber COUNSEL : 1O: Mr P A Johnson SC 2O: Submitting Appearance C: Grahame W Howe & Co SOLICITORS : 1O: S E O'Connor 2O: I V Knight, Crown Solicitor's Office CATCHWORDS : Judicial Review - certiorari sought in relation to judgment of District Court of NSW - whether denial of natural justice - whether the grant of leave by the Court to amend notice of appeal to appeal against sentence only denied claimant's right to pursue defence of honest and reasonable mistake - nature of defence of honest and reasonable mistake. Supreme Court Act 1970, s 69 LEGISLATION CITED : Traffic Act 1909, s 7A Justices Act 1902, ss 131A, 132, 146 He Kaw Teh v The Queen (1985) 157 CLR 523 R v Wampfler (1987) 11 NSWLR 541 Maher v Hodgson (Studdert J, 20/4/90, unrep) Maxwell v The Queen (1996) 184 CLR 501 CASES CITED: R v Clarence Hugh Jones (CCA, 14/4/94, unrep) R v Toro-Martinez [2000] NSWCCA 216 Ex parte Blackwell; Re Hateley (1965) 83 WN(NSW) 109 Anderson v Judges of the District Court of NSW (1992) 27 NSWLR 701 Parker v DPP (1992) 28 NSWLR 282 DECISION : Summons dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER JA BEAZLEY JA DAVIES AJA

Nathil (Neil) EL HASSAN v NEW SOUTH WALES DIRECTOR OF PUBLIC PROSECUTIONS & ANOR

JUDGMENT 1 MEAGHER JA: I have read the judgment of Davies AJA and agree with it. 2 In my view no principle of law is involved in this application. The claimant had to establish that there was some evidence that he had made an honest and reasonable mistake, leading to a belief that he was not disqualified from driving. On the facts there is no reason to think that the claimant's belief (if he held it, which I doubt) was either honest or reasonable. 3 The summons should be dismissed with costs. 4 BEAZLEY JA: I agree with Davies AJA. 5 DAVIES AJA: This application under s 69 of the Supreme Court Act, 1970 seeks the issue of a writ of certiorari in relation to the confirming of a conviction and the imposing of a sentence upon the claimant, Nathil (Neil) El Hassan, by a Judge of the District Court of New South Wales, his Honour Judge Hosking. 6 The matter came before his Honour by way of appeal from a conviction and sentence imposed upon the claimant by the Bankstown Local Court on 29 April 1999 in respect of a charge of driving a motor vehicle upon a road whilst disqualified, in breach of s 7A of the Traffic Act, 1909 ("the Act"). The Local Court rejected a defence of honest and reasonable mistake which had been put forward on behalf of the claimant and did so on the basis that the belief of which the claimant gave evidence was not based on reasonable grounds. 7 When the matter came before the learned trial Judge on 12 August 1999, the claimant was represented by his solicitor, Mr P K Bruckner. Mr Bruckner informed his Honour that the appeal was against both conviction and sentence and that the claimant intended to rely upon a defence of honest and reasonable mistake. It was, however, impracticable for the matter to proceed as an all grounds appeal on that day as the transcript of the proceedings and of the reasons for judgment of the Local Court were not available. Section 132 of the Justices Act, 1902 provides that an appeal against any conviction by a Local Court is to be by way of rehearing on the transcripts of the evidence heard before the Magistrate, save in circumstances prescribed in s 133 which are not presently relevant. Section 131A of the Justices Act provides that an appeal against the severity of a sentence is by way of rehearing and that new evidence, in addition to or in substitution for the evidence given before the Local Court, may be given in relation to the sentence. 8 In the course of the discussion between Mr Bruckner and his Honour, his Honour indicated a doubt as to whether the defence of honest and reasonable mistake applied to an offence under s 7A of the Act. His Honour also indicated that, if the claimant had believed he was not disqualified, that was a matter which his Honour would take into account on sentence, if the matter were to proceed before him. His Honour said:- "We have not got any depositions so prima facie I suppose Mr El Hassan is entitled to an adjournment until we get some, that is the way it seems to me. I have got to say Mr Bruckner, it is a matter for you, look I have to grant your adjournment I think if you really want one because as I have said I am supposed to deal with the thing on the depositions, and if there aren't any then we will have to get some, but that as far as I am concerned if it is the fact, if it is the fact that your client thought he was not disqualified when he was that would seem to me to be a very substantial matter in mitigation of penalty and if I was dealing with the matter on penalty I would take that very much into account. Quite frankly if he could show that in my view it wouldn't be a case that would call for a gaol penalty." 9 There was then a short adjournment and, on resumption of the hearing, Mr Bruckner informed his Honour that the claimant sought to amend his appeal so that the matter would proceed as an appeal against the severity of the sentence. His Honour granted leave to amend and the matter proceeded in that way. 10 The claimant gave evidence that he had been disqualified until 31 December 1999 when, at the Sutherland Local Court on 8 May 1997, he had been convicted of driving with an excessive blood alcohol level and driving whilst disqualified. Subsequently, in late October 1998, the claimant phoned the Road Traffic Authority ("the RTA") and asked whether he could get his licence back. He was informed that, subject to paying some outstanding fines, he could do so and that they, the RTA, would send a list of the outstanding fines to him by mail. It appeared from the cross-examination of the claimant that the officer of the RTA to whom the claimant spoke may have been misled because some of the records relating to the claimant were held in the name of "Neil El Hassan" rather than "Nathil El Hassan". The claimant was cross-examined about the two names and about two different licence numbers. 11 In the course of his evidence, the claimant gave no express evidence that he had believed that he was not disqualified, although it was possible to infer such a belief from his conversation with the officer of the RTA. 12 The Bankstown Local Court, on 29 April 1999, convicted the claimant and sentenced him to six months' imprisonment. On 12 August 1999, the trial Judge confirmed the conviction, the appeal being as to sentence only, and varied the sentence by imposing a sentence of six months' imprisonment to be served by way of periodic detention. 13 Senior Counsel for the claimant has submitted that the trial Judge erred in that the evidence before his Honour disclosed that the claimant was innocent of the offence charged, that he had honestly and on reasonable grounds believed, at the time that he was driving, that he was not disqualified. Counsel submitted that once the defence of honest and reasonable mistake was raised, his Honour was bound to hear the appeal as an all grounds appeal. 14 It is not in dispute that a defence of honest and reasonable mistake is available to a defendant charged with an offence under s 7A of the Act (see He Kaw Teh v The Queen (1985) 157 CLR 523). At pp 590-591, Dawson J said:- "It is said that the creation of a statutory offence takes place in the wider context of the common law which does require a criminal act to be accompanied by a guilty mind before the crime is complete. The nature of the mens rea required for particular crimes may differ, but it is sufficient to say that at common law criminal conduct must be accompanied by a state of mind or, more precisely, the state of mind which the crime requires. Since a statute is to be construed as far as possible so as to observe principles embedded in the common law, there is support for those who think that there is a strong presumption that in creating a criminal offence the legislature intends a guilty intent appropriate to the nature of the offence to be an ingredient of the offence: see, eg, Cameron v Holt (1980) 142 CLR 342, at p 346, per Barwick CJ. On the other hand, the view has been expressed that such a presumption no longer exists with modern statutory offences and that, at most, there is a weak presumption that the legislature intended to create strict liability rather than absolute liability by leaving available the defence of honest and reasonable mistake: see Proudman v Dayman (1941) 67 CLR 536, at pp 540-541."

See also R v Wampfler (1987) 11 NSWLR 541 and Maher v Hodgson (NSW Supreme Court, Studdert J, 20 April 1990, unreported). 15 It may also be accepted that a judge should not accept a plea of guilty if the facts adduced in evidence disclose to the judge that the accused was innocent or if there are facts which show that the plea was not a true admission of guilt. In Maxwell v The Queen (1996) 184 CLR 501, Dawson and McHugh JJ said, at pp 510-511:- "An accused is entitled to plead guilty to an offence with which he is charged and, if he does so, the plea will constitute an admission of all the essential elements of the offence. Of course, if the trial judge forms the view that the evidence does not support the charge or that for any other reason the charge is not supportable, he should advise the accused to withdraw his plea and plead not guilty. But he cannot compel an accused to do so and if the accused refuses, the plea must be considered final, subject only to the discretion of the judge to grant leave to change the plea to one of not guilty at any time before the matter is disposed of by sentence or otherwise (see R v Inglis [1917] VLR 672; R v Kardogeros [1991] 1 VR 269). The plea of guilty must however be unequivocal and not made in circumstances suggesting that it is not a true admission of guilt. Those circumstances include ignorance, fear, duress, mistake or even the desire to gain a technical advantage. The plea may be accompanied by a qualification indicating that the accused is unaware of its significance. If it appears to the trial judge, for whatever reason, that a plea of guilty is not genuine, he or she must (and it is not a matter of discretion) obtain an unequivocal plea of guilty or direct that a plea of not guilty be entered … But otherwise an accused may insist upon pleading guilty." 16 Thus, in Regina v Clarence Hugh Jones (Court of Criminal Appeal, 14 April 1994, unreported), Carruthers, Abadee and Blanch JJ held that, where an intellectually disabled accused had pleaded guilty but had given evidence of facts which suggested his innocence, the trial Judge ought to have declined to entertain the plea of guilty. More recently, in Regina v Toro-Martinez [2000] NSWCCA 216, the Chief Justice, Newman and Adams JJ approved the general principle. 17 In written submissions, counsel for the claimant submitted that, not only did the trial Judge have before him evidence of an honest belief on reasonable grounds, but his Honour imposed upon the claimant an onus which the claimant did not bear. Counsel referred to remarks of Dawson J in He Kaw Teh v The Queen at p 593, where Dawson J said that:- "There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It is sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted." 18 Counsel referred to a comment by the trial Judge before the short adjournment, where his Honour said, "Bear in mind what I have said if he can demonstrate to me that he actually held that belief then I think he would be entitled to some leniency". Counsel submitted that the word "demonstrate" placed an onus upon the claimant which he did not bear. In my opinion, however, the trial Judge was not then dealing with the issue of honest belief on reasonable grounds, but merely expressing the attitude he would take if the matter proceeded merely as a severity appeal. 19 The evidence before the trial Judge certainly did not establish that the claimant had made an honest and reasonable mistake. As the claimant had already served a term of imprisonment for driving whilst disqualified, it may be doubted that any belief he had on the matter was based on reasonable grounds. Although the claimant gave evidence of a telephone call to an officer of the RTA, in that call he neither mentioned the name "Neil El Hassan", which he appears to have used from time to time whilst driving, nor the specific convictions which resulted in the two years' disqualification. He did not ask whether his disqualification had terminated. And his belief, insofar as he had one, was not that he was innocent but merely that his offence was of less seriousness than the offence for which he was charged. 20 The elements of the defence of honest and reasonable mistake are a belief in a state of facts which, if true, would make the accused's conduct innocent, honesty in that belief and reasonable grounds for holding it. Having regard to the claimant's past history of driving whilst disqualified and the fact that he was again, within a period of disqualification, intentionally driving without a licence, the prospects of such a defence succeeding in the claimant's case would seem to have been negligible. 21 That was also the view of the trial Judge. At the conclusion of the hearing of the evidence, his Honour said:- "Well I have got to say to you candidly Mr Bruckner your client hasn't lost anything by withdrawing his all grounds appeal. I mean an all grounds appeal would have been just hopeless, absolutely hopeless." 22 His Honour did not rule upon the defence. There is one passage in his Honour's reasons on sentence which may suggest that he did. The trial Judge said:- "It was put to me by Mr Bruckner who appeared for the appellant that the appellant had an honest and reasonable belief that he was entitled to drive, at least entitled to drive if he paid some fines. I must say I have grave reservations about accepting that proposition as I must say I found the evidence given by the appellant somewhat difficult to accept, but even if that is correct then it is quite clear on any view of the facts that the appellant was driving whilst he did not have a licence and was not entitled to hold a licence. Accordingly his appeal which is now only a severity appeal should be dismissed." 23 However, I do not read that passage as indicating that the trial Judge was dealing with a defence of honest belief on reasonable grounds. I read the passage as stating that the trial Judge had reservations about accepting that the claimant had a belief that he would be entitled to drive if he paid some fines and that, on any view of the facts, he was driving whilst he did not have a licence and was not entitled to hold a licence. 24 The application seeks an order in the nature of a writ of certiorari. This application encounters s 146 of the Justices Act which provides:- No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court.

It has been held, however, that s 146 does not preclude the making of an order of certiorari where the act or order under review was made outside jurisdiction or where there was a breach of the rules of procedural fairness. See Ex parte Blackwell; Re Hateley (1965) 83 WN(NSW) 109; Anderson v Judges of the District Court of New South Wales (1992) 27 NSWLR 701; Parker v Director of Public Prosecutions (1992) 28 NSWLR 282. No point has been taken concerning the jurisdiction of this Court to deal with the application. 25 The case as presented by Senior Counsel for the claimant was that the trial Judge had been informed that the claimant had a defence of honest and reasonable mistake and that, by accepting the application to limit the appeal to a severity appeal, his Honour denied the claimant's right to a full and fair hearing. Counsel submitted that the matter proceeded as a severity appeal notwithstanding that the evidence given to the trial Judge disclosed honest mistake on reasonable grounds, or at least, that the Crown had not negatived that defence. 26 In my opinion, there was no such procedural unfairness in the proceedings before the trial Judge. His Honour made it clear that the claimant was entitled to an adjournment if he wished to go ahead with an all grounds appeal. Nevertheless, the claimant chose to seek to limit the appeal to a severity appeal, a course which permitted the case to proceed before his Honour. 27 Evidence given to the Court by affidavit shows that the claimant made his choice knowing that the case would be adjourned if he wished to proceed with an appeal against his conviction but that he preferred to proceed with a severity appeal. He was anxious to avoid an adjournment for some months and considered that he could persuade the trial Judge that he had believed that he was not subject to disqualification whilst he was driving. 28 In my opinion, the claimant was given a fair opportunity to make an informed choice and did so after having had the opportunity to discuss the matter with his solicitor. The claimant chose to seek an amendment to his notice of appeal. The trial Judge granted that amendment. Neither the claimant nor Mr Bruckner was unaware of the consequences. 29 The matter then proceeded as a severity appeal. Senior Counsel for the claimant has submitted that the case for the claimant, as presented to the trial Judge, was that the claimant had been driving under an honest mistake based on reasonable grounds and that his Honour was bound in law, on hearing the claimant's evidence, not to proceed further with the hearing. 30 In my opinion, the issue debated before his Honour was not that of honest belief on reasonable grounds, which would have been a defence to the charge, but whether, when the claimant was driving, he had a belief that he was not disqualified, a fact which, if established, was relevant to the sentence. The trial Judge dealt with that issue in the manner I have indicated. The evidence before him certainly did not show that the claimant was innocent of the charge. 31 I see no procedural unfairness or other error in the manner in which his Honour dealt with the case before him. In my opinion, the application should be dismissed with costs. 32 It has been pointed out to the Court that, whilst in gaol as a result of not complying with the terms of his periodic sentence, the claimant was attacked and injured. Counsel submitted that the claimant faced a risk of bodily harm or worse if returned to gaol. This is not a matter to be dealt with by this Court. I therefore do no more than indicate that it is a matter to which the appropriate authorities should give their attention. **********

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