[2009] HCA 41
Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302
[1976] HCA 62
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
CDJ v VAJ (No 1) (1998) 197 CLR 172
[1998] HCA 67
Charara v The Queen (2006) 164 A Crim R 39
[2006] NSWCCA 244
Chester v R (1988) 165 CLR 611
Source
Original judgment source is linked above.
Catchwords
[2009] HCA 41
Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302[1976] HCA 62
Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
CDJ v VAJ (No 1) (1998) 197 CLR 172[1998] HCA 67
Charara v The Queen (2006) 164 A Crim R 39[2006] NSWCCA 244
Chester v R (1988) 165 CLR 611[1988] HCA 62
Cheung v The Queen (2001) 209 CLR 1[2001] HCA 67
Chin v Teague [2014] NTCA 5
Craig v South Australia (1995) 184 CLR 163[1995] HCA 58
Director of Public Prosecutions (Cth) v Ede (2014) 289 FLR 82[2014] NSWCA 282
Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124[2008] HCA 13
Dyason v Butterworth [2015] NSWCA 52
Eastman v R (2000) 203 CLR 1[2000] HCA 29
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125
Fleming v The Queen (1998) 197 CLR 250[1998] HCA 68
Garde v Dowd (2011) 80 NSWLR 620[2011] NSWCA 115
GAS v R (2004) 217 CLR 198[2004] HCA 22
Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478[2002] HCA 22
Gianoutsos v Glykis (2006) 65 NSWLR 539
[2006] NSWCCA 137
Gilham v R (2007) 73 NSWLR 308
[1991] HCA 9
Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661
Hoare v The Queen (1989) 167 CLR 348
[1989] HCA 33
Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1
[2015] HCA 14
Kelly v The Queen (2004) 218 CLR 216
[2004] HCA 12
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531
The offender, Mr Timothy John Engelbrecht, was found guilty of one offence of aggravated indecency, contrary to s 61O(1A) of the Crimes Act 1900 (NSW). He was found not guilty of four other charges which were tried at the same time in the Local Court. A critical difference between the offences with which the offender was charged was that the conduct giving rise to the count on which he was found guilty was observed by an independent witness, Mr Dowling, who was also tasked with caring for intellectually impaired young men (as was the offender), and that witness was not relevantly challenged in cross-examination.
The conclusions expressed by the Magistrate were as follows:
"Although Mr Dowling's independent evidence essentially was unchallenged, I exercise caution in evaluating it.
I bear in mind the accused's clean criminal record and prior excellent character.
However, for all of the reasons given in my earlier analysis of Mr Engelbrecht's evidence in respect of sequence 3, I find that it utterly lacks credibility and I reject it.
I apply R v Barrass [2005] NSWCCA 131 and adopt the reasoning and findings in my judgment recorded on 12 September 2014 at pp 2-5.
I find beyond reasonable doubt that Mr Ferguson was in Mr Engelbrecht's direct line of sight when Mr Ferguson was in the kitchen at the time of the sequence 3 incident.
I find beyond reasonable doubt that Mr Engelbrecht intended Mr Ferguson to see him walking with his genitals exposed.
I accept beyond reasonable doubt Mr Dowling's unchallenged evidence to the effect that, and I infer from it that, Mr Ferguson saw Mr Engelbrecht with his genitals exposed and drew that to Mr Dowling's attention.
I FIND THE SEQUENCE 3 OFFENCE PROVED BEYOND REASONABLE DOUBT."
There was no appeal against conviction. The maximum penalty which could have been imposed was imprisonment for two years. The Crown did not seek a custodial order. A sentence of 300 hours community service was imposed.
The sentencing Magistrate expressly incorporated his earlier judgment on guilt into his sentencing judgment, thereby including the passage reproduced above. His Honour considered that he was unable to find that the offence was committed for sexual gratification, and that the offender had a clean criminal record and was of prior excellent character. However, he concluded from a presentence report that there remained a significant risk of reoffending, and noted the absence of any genuine contrition or remorse. His Honour gave less weight to prior excellent character and the clean criminal record than would otherwise be the case, because of his position of trust. His Honour also gave substantial weight to general deterrence for the same reason.
An appeal against severity was filed on the same day, invoking the right conferred by s 17 of the Crimes (Appeal and Review) Act 2001 (NSW). The effect of filing that appeal was to stay the operation of the sentence until the "final determination" of that appeal: s 63 of that Act. The notice of appeal stated, "I am appealing the above sentence BECAUSE THE PENALTY IS TOO SEVERE". No grounds were specified.
McColl JA has summarised the submissions made in support of the application for an adjournment when the appeal was listed for hearing. I would add the following.
First, the Crown said, repeatedly and without opposition from Mr Mantaj, that the facts as to which Mr Mantaj claimed there had been agreement amounted (in relation to the only relevant offence) to a single paragraph. The document was not itself in evidence, either in the court below or in this Court.
Secondly, Mr Mantaj said initially that the matter "ought to proceed on the basis of an analysis of the entire transcript", and rejected what was immediately put to him, that the reference in s 17 was a reference to the evidence in the sentencing proceeding.
Thirdly, Mr Mantaj then accepted that the evidence on which he submitted the Court was bound to conduct the appeal included evidence relating to matters on which the offender was found not guilty. He then acknowledged that much would be irrelevant, and that he would seek to agree with the Crown aspects which were irrelevant.
Fourthly, Mr Mantaj concluded his submissions by saying that the Court was required to consider "at least as much of the transcript of the Local Court hearing as the parties wish to refer the Court to". He accepted that he had no authority for the submission.
As McColl JA has recorded, the adjournment was refused. The appeal proceeded. Mr Mantaj was permitted to tender the remarks on sentence and parts of the evidence from the eight day trial. The appeal against sentence was dismissed.
The offender invoked this Court's supervisory jurisdiction. The sole ground (it is wrongly described in the summons as a ground of appeal) is:
"That the presiding Judge erred in that, contrary to the provisions of section 17 of the Crimes (Appeal and Review) Act 2001, his Honour refused to have regard to the transcript of the evidence given in the Local Court proceeding in determining the appeal over which he was presiding, constituting jurisdictional error."
[2]
The construction of s 17 of the Crimes (Appeal and Review) Act
McColl JA has reproduced ss 17 and 18 of the Crimes (Appeal and Review) Act 2001 and the definitions of "fresh evidence" and "original Local Court proceedings". Neither party suggested there was any authority on point.
Although I can see some force in the submission that "the evidence given in the original Local Court proceedings" in s 17 is a reference to the evidence given leading to both conviction and sentence, I do not consider, on balance, that that is the proper construction of s 17.
Sections 17 and 18 are to be read as a whole and harmoniously. So too must the definitions of "fresh evidence" and "original Local Court proceedings": Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70].
The concluding words "from which the proceedings under this Act arise" in the definition of "original Local Court proceedings" and the cognate words "proceedings from which the appeal proceedings have arisen" in the definition of "fresh evidence" are likewise to be read harmoniously. They naturally refer to the various rights of appeal, including under ss 17 and 18. The exercise of those rights gives rise to separate proceedings, variously described as "proceedings under this Act" and "appeal proceedings".
The difference between the power to adduce fresh evidence in an appeal under s 17 and in an appeal under s 18 is that s 17 provides that "fresh evidence may be given in the appeal proceedings" while s 18 imposes a precondition, namely, that the Court is satisfied that fresh evidence is in the interests of justice.
It is quite plain that the "evidence given in the original Local Court proceedings" for the purposes of a conviction appeal in s 18 is only the evidence which involved the making of the conviction. (Either there will have been no sentencing hearing, or, if one has occurred, it will, at least ordinarily, be irrelevant to the determination of the conviction appeal.)
The rules of evidence will apply to the proceedings leading to conviction. However, at least ordinarily, they will not apply to proceedings which relate to sentencing: Evidence Act 1995 (NSW), subss 4(1)(d) and (2). However, ss 17 and 18 proceed on the basis that there will be a "rehearing" of the "evidence" before the Magistrate, and so I put to one side the fact that, as Spigelman CJ observed, "the process of adducing evidence and making findings for the purposes of sentencing is quite distinct from what is required for purposes of determining criminal liability": Gilham v R (2007) 73 NSWLR 308; [2007] NSWCCA 323 at [66].
[3]
Conclusion
The premise of ss 17 and 18 is that a conviction has been entered, or a sentence imposed, in the Local Court following a summary procedure. Unlike a guilty verdict from a jury, a finding of guilt will not be "inscrutable". It will instead be accompanied by findings and reasons for those findings. That is what occurred in the present case. It is not necessary to say anything further as to whether principles developed in relation to sentencing appeals following a jury's verdict of guilty apply in such cases.
It suffices to conclude that the single proposition of law presented in this proceeding is resolved adversely to the offender. A severity appeal under s 17 is based on the evidence before the sentencing Magistrate, plus such other "fresh evidence" as may be relevant. The reasons of the primary judge do not disclose error, still less jurisdictional error. The primary judge made no error in rejecting a submission founded on the text of s 17. To the extent that the offender sought to tender evidence from the eight day trial on his severity appeal, he was permitted to do so. I should not be taken to be expressing any view about the nature of the power to admit fresh evidence contained in s 17, something which again was not argued in this Court.
[4]
Supplementary matters
I would add the following three supplementary matters. First, the basis of the adjournment sought before Sides DCJ was expressed to be so that the entirety of the evidence at trial could be tendered. It is true that Mr Mantaj during the course of his submissions advanced a lesser proposition, namely than only a part of the transcript should be tendered. However, in the proceedings in this Court's original jurisdiction, Mr Mantaj read an affidavit, in which he swore that the following proposition was true and correct to the best of his recollection:
"The basis of this application was to allow the Applicant to place before the Court the transcript of the evidence given by the various witnesses in the Local Court hearing. The Applicant's submission was (and continues to be) that by virtue of s 17 [of the] Act, the court hearing the severity appeal was obliged to have regard to that evidence in determining the appeal."
I proceed on the basis that the affidavit was sworn by an experienced solicitor seriously and solemnly. In those circumstances, not lightly would I treat the claim in this Court as being different from what was addressed by Mr Mantaj's sworn evidence.
Secondly, even if the question were whether some part of the evidence over eight days be tendered, that part was never identified. Even during the hearing in this Court, Mr Mantaj was unable to identify with any precision what he would have sought to tender on the appeal. Indeed during the hearing, Mr Mantaj submitted that he wished to tender some of the exhibits tendered before the Magistrate, something which had never been articulated either in the District Court, or in his summons or submissions in this Court.
Thirdly, during the course of the hearing, it became clear that Mr Mantaj sought to depart from the ground formulated in his summons, and in his affidavit and submissions. The Crown opposed any reliance upon a complaint that there had been a denial of procedural fairness, on the basis that it was unpleaded, not contained in the submissions, and different evidence would have been obtained had that ground been advanced. Mr Mantaj made no response to that opposition. I accept the Crown's submission.
[5]
Orders
For those reasons, I would dismiss the summons. Costs should follow the event.
[6]
Endnotes
Engelbrecht v R (District Court (NSW), Sides DCJ, 30 September 2015, unrep) (Sentence judgment).
Section 17 appeals are commonly referred to as "severity appeals".
Supreme Court Act 1970 (NSW), s 69.
(2006) 164 A Crim R 39; [2006] NSWCCA 244 (Charara) (at [23]) per Mason P (Kirby and Hoeben JJ agreeing).
But not those findings, already determined by the Magistrate, which underpin the finding of guilt.
Referring to Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197 (Blazevski) (at 200).
Dyason v Butterworth [2015] NSWCA 52 (at [31]), referring with approval to Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 (at [10]); Director of Public Prosecutions (Cth) v Ede (2014) 289 FLR 82 (at [18]); [2014] NSWCA 282.
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (Kirk) (at [73]).
Ibid (at [72]), quoting Craig v South Australia (1995) 184 CLR 163 (at 177); [1995] HCA 58 (Craig).
Kirk (at [72]) referring to Craig (at 178); Bandara v Director of Public Prosecutions [2016] NSWCA 140 (at [46]).
Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381; [2014] NSWCA 451 (at [54]) per Basten JA (although his Honour was in dissent as to the outcome, Sackville AJA (at [100]) approved Basten JA's statements of principle); see also Goodwin v Commissioner of Police [2012] NSWCA 379 (at [19] - [25]) per Basten JA (Allsop P and Young AJA agreeing).
Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 (at [15]) per Basten JA (McColl and Macfarlan JJA agreeing); Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 (at [30] - [31]) per Basten JA; (at [125] - [126]) per Barrett JA.
Veen v R (No 2) (1988) 164 CLR 465 (at 472); [1988] HCA 14 per Mason CJ, Brennan, Dawson and Toohey JJ; (at 485 - 486) per Wilson J; (at 490 - 491) per Deane J; (at 496) per Gaudron J; Chester v R (1988) 165 CLR 611 (at 618); [1988] HCA 62; Hoare v The Queen (1989) 167 CLR 348 (at 354); [1989] HCA 33 per curiam.
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 (at [27]) per curiam.
[7]
Amendments
24 October 2016 - Amendment to name of counsel (Acting Crown Advocate)
08 November 2016 - Catchwords updated
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: 08 November 2016
Parties
Applicant/Plaintiff:
Engelbrecht
Respondent/Defendant:
Director of Public Prosecutions
Legislation Cited (14)
Courts Legislation Amendment Act 1999(NSW)
Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006(NSW)
Crimes (Local Courts Appeal and Review) Act 2001(NSW)
(1993) 32 NSWLR 683
CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
Charara v The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244
Chester v R (1988) 165 CLR 611; [1988] HCA 62
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Chin v Teague [2014] NTCA 5
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Director of Public Prosecutions (Cth) v Ede (2014) 289 FLR 82; [2014] NSWCA 282
Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13
Dyason v Butterworth [2015] NSWCA 52
Eastman v R (2000) 203 CLR 1; [2000] HCA 29
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115
GAS v R (2004) 217 CLR 198; [2004] HCA 22
Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478; [2002] HCA 22
Gianoutsos v Glykis (2006) 65 NSWLR 539; [2006] NSWCCA 137
Gilham v R (2007) 73 NSWLR 308; [2007] NSWCCA 323
Goldfinch v R (1987) 30 A Crim R 212
Goodwin v Commissioner of Police [2012] NSWCA 379
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661
Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 247; [2011] HCA 48
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
Parker v DPP (1992) 28 NSWLR 282
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Alexandroaia (1995) 81 A Crim R 286
R v Holten (2007) 4 DCLR(NSW) 187; [2007] NSWDC 58
R v Isaacs (1997) 41 NSWLR 374
R v Longshaw (1990) 20 NSWLR 554
R v Lupoi (1984) 15 A Crim R 183
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Reischauer v Knoblanche (1987) 10 NSWLR 40
SL v Secretary, Department of Family and Community Services [2016] NSWCA 124
Sweeney v Fitzhardinge (1906) 4 CLR 716; [1906] HCA 73
The Queen v Pilgrim (1870) LR 6 QB 89
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Yousaf v DPP [2012] NSWCA 397
Texts Cited: Crimes (Local Courts Appeal and Review) Bill, Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 4 December 2001
Howie and Johnson, Criminal Practice and Procedure NSW, LexisNexis
Justices Legislation Amendment (Appeals) Bill, Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard), 17 September 1998
New South Wales Law Reform Commission, Report 140, Criminal Appeals, (March 2014)
NSW Attorney General's Department, Statutory Review of the Crimes (Appeal and Review) Act 2001, (August 2008)
Watson, Blackmore and Hosking, Criminal Law NSW, Lawbook Co
Category: Principal judgment
Parties: Timothy John Engelbrecht (Applicant)
Director of Public Prosecutions (NSW) (First Respondent)
District Court of New South Wales (Second Respondent)
Representation: Counsel:
Mr M Mantaj (Applicant)
Mr D Kell (Acting Crown Advocate), Mr M Pulsford
(First Respondent)
Further, the words "evidence given in the original Local Court proceedings" which are common to ss 17 and 18 are to be read with the defined term "original Local Court proceedings". I see no reason to displace the ordinary approach whereby the Court is to "read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome": Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [103]. Thus, applying the definition to the defined term in each of ss 18 and 17 and bearing in mind that "making" is apt to apply in an appeal against conviction, while "imposition" will apply in an appeal against sentence:
1. in s 18 the words "evidence given in the original Local Court proceedings" are to be read as meaning "evidence given in the proceedings in the Local Court that involved the making of the conviction from which the proceedings under this Act arise", while
2. in s 17 the words "evidence given in the original Local Court proceedings" are to be read as meaning "evidence given in the proceedings in the Local Court that involved the imposition of the sentence from which the proceedings under this Act arise".
Read in that way, which I regard to be their ordinary grammatical meaning, the two statutory concepts of evidence in proceedings which involved the making of a conviction and evidence in proceedings which involved the imposition of a sentence require a distinction to be drawn between the evidence leading to conviction, and the evidence leading to sentence. The latter does not include the former.
That construction is supported by the less constrained power to adduce fresh evidence in an appeal under s 17. As was common ground at the hearing, some of the evidence given prior to conviction may be relevant to an appeal against sentence. Of course, it is not possible in such an appeal to traverse any findings which are essential to the finding of guilt. But there may be many matters going to culpability which are not determined by the finding of guilt. Examples may be found in Gleeson CJ's judgment in Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [9]-[10].
That construction is also, in my view, supported by the legislative history and the extrinsic materials. As McColl JA has explained, for many decades the Justices Act 1902 (NSW) made provision for an appeal to the Courts of Quarter Sessions, later to the District Court. Until 1999, there was a single provision applicable to appeals against conviction and appeals against sentence. By the Courts Legislation Amendment Act 1999 (NSW), that provision was altered, and a new section 131A inserted into the Justices Act. New s 131A provided:
"131A Appeals against sentence to be by way of rehearing of evidence
An appeal against the severity of a sentence is to be by way of a rehearing of the evidence heard before the Magistrate who imposed the sentence, and new evidence or evidence in addition to, or in substitution for, the evidence given in relation to the sentence appealed against may be given on appeal."
Plainly enough, s 131A preserved the structure of s 17 of the current legislation insofar as the same provision both describes the nature of the right of appeal and confers a power to adduce fresh evidence. However, s 131A is drafted a little differently. Two terms have been used to describe the same thing. I think it must be concluded that the words "the evidence heard before the Magistrate who imposed the sentence" mean the same as "the evidence given in relation to the sentence appealed against". Ordinarily, of course, a difference in language - particularly in the same section - would suggest a difference in legal meaning. However, the connecting words "in addition to" and "in substitution for" compel the conclusion that both terms refer to the same evidence.
Further, "the evidence given in relation to the sentence appealed against" is in my view naturally read as a reference only to the evidence given after conviction. The words "in relation to the sentence appealed against" stand in contrast with the unqualified description of the evidence in s 132(1) (as amended) for an appeal against conviction. Read naturally, those words "in relation to the sentence appealed against" do not include evidence given to secure the conviction for which the offender was sentenced.
In short, the amendments made in 1999 were slightly clearer in identifying the evidence on which an appeal against sentence would proceed than the current provisions. Given that the Crimes (Appeal and Review) Act 2001 was expressed to be legislation which consolidates and simplifies existing provisions, regard may be had to the former legislation.
GAS v R (2004) 217 CLR 198; [2004] HCA 22 (at [30]) per curiam.
Ibid (at [31]).
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (Cheung) (at [38]) per Gleeson CJ, Gummow and Hayne JJ.
Cheung (at [7]).
Cf Cheung (at [12]).
(1997) 41 NSWLR 374 (Isaacs) (at 378) per curiam, referred to with approval by the plurality in Cheung (at [14]).
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (at [27]) per Gleeson CJ, Gaudron, Hayne and Callinan JJ; R v Lupoi (1984) 15 A Crim R 183 (Lupoi) (at 184) per White J (King CJ and Millhouse J agreeing).
Isaacs (at 378), referring to Lupoi.
(1992) 28 NSWLR 282 (Parker).
As will be explained, s 122 is the legislative forebear of s 17.
Parker (at 284).
Ibid (at 295) (Handley and Sheller JJA agreeing).
Yousaf v DPP [2012] NSWCA 397 (at [37]) per Barrett JA (McColl and Meagher JJA agreeing).
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) (at [78]) per McHugh, Gummow, Kirby and Hayne JJ.
Project Blue Sky (at [69]); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 (at [47]) per Hayne, Heydon, Crennan and Kiefel JJ; see also French CJ (at [4]).
Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13 (Dwyer) (at [2]) per curiam.
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 (Fleming) (at [19]). Glass JA attempted to identify the different litigious processes with what his Honour described as having "few unifying characteristics" in respect of which the term "appeal" is loosely employed in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 (at 297 - 298): Gianoutsos v Glykis (2006) 65 NSWLR 539; [2006] NSWCCA 137 (Gianoutsos) (at [27]) per McClellan CJ at CL (Sully and Hislop JJ agreeing).
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 (at 619); [1976] HCA 62 (Sperway) per Mason J (Barwick CJ and Stephen J agreeing); Fleming (at [21]); R v Longshaw (1990) 20 NSWLR 554 (Longshaw) (at 558) per Gleeson CJ (Wood and Badgery-Parker JJ agreeing).
Cf Eastman v R (2000) 203 CLR 1; [2000] HCA 29 (at [130]) per McHugh J, referred to with approval in Dwyer (at [2]).
A "rehearing, in the widest sense of the term … [is] a hearing de novo": Longshaw (at 561) per Gleeson CJ (Wood and Badgery-Parker JJ agreeing).
Sperway (at 620); Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 (at [57]) per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; see also Turnbull v New South Wales Medical Board (at 297 - 298) per Glass JA.
Sperway (at 620).
CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67 (at [109]) per McHugh, Gummow and Callinan JJ; see also Sperway (at 619); Longshaw (at 558 - 559); Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 (at 666) per Sperling J (Spigelman CJ agreeing).
(1906) 4 CLR 716; [1906] HCA 73 (Sweeney); see also Longshaw (at 559 - 561).
Sweeney (at 729), quoting The Queen v Pilgrim (1870) LR 6 QB 89 (at 95) per Lush J; Sperway (at 619).
Sperway (at 620); Harris v Caladine (1991) 172 CLR 84 (at 124); [1991] HCA 9 per Dawson J; Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (at 686) per Kirby P (Campbell and James JJ agreeing).
Longshaw (at 558, 561).
District Court Act 1973 (NSW), s 166, s 167.
Longshaw (at 561).
(1987) 30 A Crim R 212 (Goldfinch) (at 218 - 219); see also Reischauer v Knoblanche (1987) 10 NSWLR 40 (at 44) per Kirby P; Budget Nursery (at 87).
See also Budget Nursery Pty Ltd v Commissioner of Taxation (1989) 42 A Crim R 81 (Budget Nursery) (at 87) per Hunt J (Grove and Allen JJ agreeing).
Goldfinch (at 219).
Justices Legislation Amendment (Appeals) Bill, Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard), 17 September 1998. The 1998 Amendment Act commenced on 1 March 1999.
In Charara (at [12] - [15]), Mason P referred to such appeals as "all grounds" appeals of the nature of those discussed in Sweeney.
NSW Attorney General's Department, Statutory Review of the Crimes (Appeal and Review) Act 2001, (August 2008) (2008 Report) (at [5.8]) referred to the Attorney General's statement about sentence appeals as "not intended to be understood in a legal technical sense." The author(s) referred with apparent approval to Gleeson CJ's description in Longshaw of such an appeal as a hearing de novo.
See below (at [82] - [83]).
The 1999 amendments were referred to in Appendix D to the 2014 New South Wales Law Reform Commission Report 140 on Criminal Appeals (Report 140). However, the text of Report 140 did not refer to the enactment of s 131A, nor the explanation for that provision given in the Explanatory Note.
(at [28]) (Sully J and Hislop J agreeing).
The Appeal and Review Act commenced on 7 July 2003: s 2 and Government Gazette No 104 of 27 June 2003, p 5975. The name was amended to its current form in 2006 pursuant to the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW) when additional provisions were inserted, meaning it no longer dealt exclusively with Local Court appeals: s 4; Sch 2 [2]; Report 140 (at [2.42]).
Crimes (Local Courts Appeal and Review) Bill, Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 4 December 2001.
(at [14]).
Charara (at [15] - [22]); this view of the analysis in Charara has been confirmed in the authorities referred to in Dyason v Butterworth [2015] NSWCA 52, referred to below (at [89]).
Watson, Blackmore and Hosking, Criminal Law NSW (Lawbook Co) (Watson) (at [4.18832]).
Ibid (at [4.18834]).
As can be seen this was substantially an amalgamation of s 132(1) and (2) of the Justices Act prior to the enactment of the Appeal and Review Act.
Gianoutsos (at [24], [36], [39]).
Charara (at [12] - [17]).
Ibid (at [22]).
Ibid (at [23]).
Ibid.
2008 Report, Recommendation 12; (at [5.12]) the Report described the reference to a "certified" transcript as an "historic vestige" of s 132 of the Justices Act; see also AG v Director of Public Prosecutions [2015] NSWCA 218 (at [97] - [100]) per Simpson JA.
Applied in Bandara v Director of Public Prosecutions [2016] NSWCA 140 at [10(3)] per Leeming JA (Simpson and Sackville AJA agreeing); see also AG v Director of Public Prosecutions (NSW) (at [12], [21]) per Basten JA.
See [60] above; see also Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 (at [6]) per Bathurst JC (Whealy JA agreeing).
Goldfinch (at 219); Budget Nursery (at 87).
Interpretation Act 1987 (NSW), s 34(1)(b).
See Reischauer v Knoblanche (at 44) per Kirby P; Longshaw (at 559).
(at [23]).
R v Alexandroaia (1995) 81 A Crim R 286 (at 290) per curiam.
Cf Blazevski (at 200); applied in Chin v Teague [2014] NTCA 5 (at [24]) per curiam.
(2007) 4 DCLR(NSW) 187; [2007] NSWDC 58 (Holten).
See Holten (at [29] - [30]).
Construction of s 18
In Charara, Mason P commented that the reforms effected by the 1998 Amendment Act had "altered the manner in which appeals from the Local Court to the District Court [were] conducted, apparently more significantly than may be generally appreciated." [57] At the time Charara was decided, s 132 of the Justices Act had been substantially re-enacted in s 18 of the Appeal and Review Act. It is apparent from Mason P's reasons that on his construction of s 18, an appeal against conviction did not proceed as a de novo hearing but, rather, as an error based appeal. [58]
Watson, Blackmore and Hosking were of much the same view about the 1998 amendments as Mason P, describing their effect as "far reaching". [59] They commented that the concept of "rehearing" introduced by Part 5A constituted "a very significant departure from how appeals had previously been conducted" and meant the nature of the appeal was "more limited than before the introduction of the former Pt 5A." [60]
When first enacted, s 18 of the Appeal and Review Act provided that an appeal against conviction was "to be way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings…". [61]
Mason P's conclusion in Charara that a s 18 appeal against conviction was an error based appeal was based in part on applying McClellan CJ at CL's reasoning in Gianoutsos that a s 18 appeal was not a de novo hearing, [62] on the explanation in the Second Reading Speech to the Bill which became the 1998 Amendment Act, to the effect that "the government had … decided to limit appeals to the District Court to a rehearing on the depositions of the Local Court, with provision for fresh evidence to be given by leave", the fact that prior to the 1998 Amendment Act, although evidence given before the Magistrate could be read on appeal, otherwise the evidence was taken afresh and the authorities holding that a pre-1998 appeal was de novo. [63]
His Honour also found support for his analysis in the fact that the "appellate role of the District Court … [was] reinforced by the references to 'appeal' in ss 18 and 19 and by the power, conferred by s 20, to determine the appeal against conviction by setting aside the conviction or by dismissing the appeal." [64]
On a different subject, Mason P considered the view expressed in Howie and Johnson, Criminal Practice and Procedure NSW (at [4-s 19.10(g)]) that "the reasons of the magistrate for finding the offence proved are not 'evidence' and that the District Court may not have regard to those reasons unless the parties consent to that course." [65] His Honour disagreed with the latter proposition, saying:
"District Court judges traditionally and understandably refrained from reading the reasons of the Local Court when the appeal was de novo. But the nature of an appeal by way of rehearing on the transcript indicates to me that this approach is no longer justified. The magistrate's reasons are not part of the 'certified transcripts of evidence' referred to in s 18(1) any more than the exhibits tendered in the Local Court. Nevertheless, as I see it, the District Court is impliedly directed to consider the reasons because the stated appellate function could not properly take place without reference to them." [66]
Section 18 was amended after Mason P's observation in Charara and the recommendation in the 2008 Report reviewing the operation of the Appeal and Review Act to exclude the words "certified transcripts of". [67]
The nature of a conviction appeal pursuant to the Appeal and Review Act, s 18 in its current form was summarised in Dyason v Butterworth, [68] as follows:
"[26] A s 18(1) appeal is not an appeal de novo: Charara v R [2006] NSWCCA 244; (2006) 164 A Crim R 39 (at [16] - [24]) per Mason P (Kirby and Hoeben JJ agreeing). Although s 18(1) is no longer precisely in the same form as it was when considered in Charara, the amendment does not detract from Mason P's reasoning: B v Director of Public Prosecutions [2014] NSWCA 232 (at [39]) per Beazley P (Barrett JA and Tobias AJA agreeing).
[27] The approach to be taken on a s 18(1) rehearing is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [23]): McKellar v Director of Public Prosecutions [2011] NSWCA 91 ('McKellar') (at [8]) per Basten JA (Beazley P and Whealy JA agreeing). The 'judge is to form his or her judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court': Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 (at [23]) per Beazley JA (Basten and Campbell JJA agreeing). While the Magistrate's reasons are not part of the transcript of evidence, recourse can be had to them on appeal as otherwise the appellate function cannot properly take place: Charara v R (at [23]).
[28] The powers of the District Court on a s 18(1) rehearing are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at [23]) per Gaudron, McHugh, Gummow and Hayne JJ."
Orders
I propose the following orders:
1. An order in the nature of certiorari that the record of the proceedings in the District Court in its criminal jurisdiction in the case Timothy John Engelbrecht v Regina (2013/00386765) be removed into this Court;
2. An order in the nature of certiorari quashing the determination of his Honour Judge Sides of 30 September 2015 dismissing the sentence appeal brought by Timothy John Engelbrecht against the sentencing decision of Magistrate Bartley;
3. Direct that the proceedings be returned to the District Court in its criminal jurisdiction to be heard and determined according to law;
4. Order the Crown to pay the applicant's costs of the application for judicial review.
MACFARLAN JA: This is an application pursuant to s 69 of the Supreme Court Act 1970 (NSW) for judicial review of a District Court decision of 30 September 2015 dismissing an appeal against a sentence imposed on the applicant, Mr Timothy Engelbrecht, by the Local Court on 4 August 2015. Mr Engelbrecht contends that the District Court committed jurisdictional error by acting on a misunderstanding of the effect of s 17 of the Crimes (Appeal and Review) Act 2001 (NSW) (the "CAR Act") in relation to the material to which it was to have regard on the appeal.
Section 17 of the CAR Act is in the following terms:
"17 Appeals against sentence to be by way of rehearing of evidence
An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings."
"[O]riginal Local Court proceedings" are defined in s 3 as follows:
"original Local Court proceedings means the proceedings in the Local Court that involved the making or imposition of a conviction, sentence or order from which the proceedings under this Act arise."
Following an eight day hearing, Magistrate Bartley, on 10 June 2015, found Mr Engelbrecht guilty of an offence of aggravated indecent assault and not guilty of various other charges of aggravated indecent assault. On 4 August 2015 the magistrate sentenced Mr Engelbrecht to 300 hours of Community Service Work, incorporating his reasons for judgment on conviction into his Remarks on Sentence.
Mr Engelbrecht then appealed to the District Court pursuant to s 17 of the CAR Act against this sentence. The appeal was heard and determined by Sides DCJ on 30 September 2015. His Honour rejected an adjournment application made on Mr Engelbrecht's behalf by his solicitor, Mr Mantaj. Mr Mantaj contended, inter alia, that Mr Engelbrecht was prejudiced because the prosecutor had only recently resiled from an agreement with Mr Mantaj that an Agreed Statement of Facts be put before the Court, the prosecutor instead indicating an intention to rely upon the Magistrate's reasons for judgment given on conviction. Mr Mantaj asserted that he had not had sufficient time to review the evidence adduced at the Local Court conviction hearing and was not therefore in a position to identify what of it might be relevant to be referred to on sentence.
Sides DCJ gave the following reasons for rejecting this basis for an adjournment:
"It has been further contended on the appellant's behalf that, because the goalpost has now been moved, he is prejudiced because he does not have a transcript of the evidence of any of the witnesses given before the magistrate which it is argued is the material referred to in s 17 of the Crimes (Appeal and Review) Act. The Court does not accept that submission. The evidence referred to there is the evidence given at the sentence hearing and, in an appeal against severity of a sentence imposed after a conviction recorded following a hearing, it is legitimate for the magistrate's reasons at the end of the hearing to determine guilt to be tendered so that the factual matrix upon which the … appeal [is] to proceed can be established."
It is evident from this reasoning that the judge took the view that on an appeal to the District Court against sentence "the evidence given in the original Local Court proceedings", as referred to in s 17 of the CAR Act, was a reference only to evidence specifically tendered at the sentencing hearing and did not extend to evidence given at the earlier hearing at which the offender's guilt was determined. In my opinion, this view was erroneous.
The conviction and sentence of offenders is dealt with in one set of proceedings. There is not one proceeding for the determination of guilt or innocence and another for the determination of sentence. Initiation of proceedings by the filing of an indictment or, as in the present case, the filing of a Court Attendance Notice leads, if a conviction occurs, not only to that conviction but also to the sentencing of the offender. Commonly, and desirably, the same judge or magistrate presides at both the conviction and sentencing hearings, if separate hearings are held. In sentencing, the judicial officer is able to have regard to the evidence given when guilt was determined without the need for that evidence to be adduced again.
In the case of a jury trial, it will often be necessary for the judge, in reliance upon the evidence given at the trial, to make factual findings on "matters of potential importance to an assessment of the offender's culpability" which are not implicit in the jury's verdict and not inconsistent with it (Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [4]-[20]; GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30]). There is no need to re-tender evidence given at the trial because it is already before the judge if the judge presided at the trial. If the sentencing judge is different to the trial judge, the parties are entitled to refer to the trial evidence. Whether, as a matter of convenience, the transcript of that evidence, or part of it, is marked as an exhibit is of no significance.
The position is the same where a judge, and not a jury, has determined guilt. Considerations of common sense and case management may lead to the parties agreeing to limit the conviction transcript and exhibits provided to the sentencing judge, or to obviate the need for their use at all by providing an Agreed Statement of Facts or simply relying upon the judge's reasons for conviction. Whilst those reasons are not, in the words of s 17 of the CAR Act, "evidence given in the original Local Court proceedings", the section impliedly authorises their use as "the stated appellate function could not properly take place without reference to them" (Charara v The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244 at [23] referring to a presently analogous statutory provision).
For these reasons, Mr Engelbrecht had a right to refer the District Court judge to any evidence given at the conviction hearing that was relevant to his sentencing. If the facts had justified it, the District Court judge could have rejected the adjournment application on the basis that Mr Engelbrecht and his advisors had already had sufficient opportunity to consider which parts of the transcript, if any, they wished to rely upon. However the application was rejected upon the basis of the Court's misunderstanding that the evidence given at the conviction hearing was not evidence to which Mr Engelbrecht was entitled to refer because it was not evidence specifically tendered at the sentence hearing. This was a misunderstanding by the District Court judge of his powers and duties in connection with the disposition of the appeal and for that reason constituted jurisdictional error rendering his decision reviewable by this Court (Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at [11] and [12]; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1).
In conclusion three further points require mention.
The respondent DPP contended that the application that Mr Mantaj made in the District Court was that the whole of the Local Court conviction evidence be put before the District Court. In theory at least, if not in hard copy form, the whole of that evidence was already before the Local Court magistrate when he was sentencing but common sense and propriety dictated that the practitioners only seek to refer to such of that evidence as they asserted to be relevant. Consistently with this, on the District Court appeal Mr Mantaj only sought the opportunity to identify and refer to that part of the Local Court conviction transcript that he considered relevant. This is evident from his references to seeking to "tender a lot more than just the decision of" the magistrate (p 1), seeking "to sit down with the Crown and identify the relevant evidence" (p 5), to the Court needing to consider "at least as much of the transcript of the Local Court hearing as the parties wished to refer the Court to" (p 6) and to him tendering "the parts of the transcript which I propose to rely upon" (p 6). In light of these clear statements, his statement, apparently interrupted by the judge before it was completed, that the appeal "ought to proceed on the basis of an analysis of the entire transcript" should not be taken as indicating otherwise. A literal reading of that statement would be inconsistent with his other statements and with the tenor of his application to be afforded time to examine the transcript to identify relevant parts.
Secondly, after the adjournment application was refused, the District Court judge allowed Mr Mantaj to tender the transcript of certain character evidence given at the conviction hearing in the Local Court. That Mr Mantaj was able to tender this evidence did not indicate that, contrary to his assertion to the Court, he had in fact had the opportunity to consider the whole of the transcript. Nor did it indicate that the judge's view had been, all along, that the evidence from the conviction hearing could be used at the sentence hearing. Rather, it was an implicit qualification to his earlier expressed view, made when limited evidence was tendered without objection.
Thirdly, contrary to the respondent's contention, Mr Engelbrecht is able on the present application to this Court to challenge the erroneous basis upon which his adjournment application was refused. The error in that respect occurred in the course of his Honour making an interlocutory decision that "affected the final result", that is, led to the dismissal of the appeal on the same day (see by analogy Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478; [2002] HCA 22 at [6]; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 247; [2011] HCA 48 at [78]).
For these reasons, the orders proposed by McColl JA should be made.
LEEMING JA: I have had the advantage of reading the reasons for judgment of McColl JA in draft, which allows me to pass over much of the factual and procedural background, and to state my reasons concisely.