Ghaderi v Director of Public Prosecutions

Court of Appeal (NSW)|2018-05-30|Before: McColl JA, Leeming JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Judgment

THE COURT: Mr Mohsen Ghaderi (in some of the documents, he is referred to as Mr Mohsen Ghaderi-Araghi) was found guilty on 7 July 2017 following a hearing in the Local Court at Parramatta of two offences of intimidation contrary to ss 13 and 14 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). A fine of $500 was imposed in each case. The Local Court made a final Apprehended Domestic Violence Order against Mr Ghaderi for a period of 12 months.
All proceedings had commenced in the Local Court at Hornsby. On 13 September 2016, in circumstances addressed in more detail below, they were transferred to the Local Court at Parramatta for hearing.

The nature of the jurisdiction invoked by Mr Ghaderi

It will assist at the outset to delineate the limited nature of this Court's jurisdiction to supervise the pending appeal to the District Court and to review interlocutory orders made in that appeal by the District Court.
First, there is no appeal from any order made by the District Court in the exercise of its appellate jurisdiction on appeal from summary criminal proceedings in the Local Court. For that reason, although Mr Ghaderi's summons does not identify any basis for the orders sought, it will be treated as being brought pursuant to s 69 of the Supreme Court Act 1970 (NSW).
Secondly, even in cases where an appeal does lie, there is a well established reticence to intervene in criminal proceedings: see for example Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [23].
Thirdly, the position is even clearer in cases where, as here, no appeal lies. Thus, in Jenkins v Director of Public Prosecutions [2013] NSWCA 406 at [85], Gleeson JA referred to the "reticence regarding the use of the supervisory jurisdiction of this Court to interfere in criminal proceedings at an interlocutory stage", and the authorities supporting that reticence.
Fourthly, there is a further reason, in the particular case of orders made in appeals in the District Court which may be subject to this Court's supervisory jurisdiction, telling against interlocutory intervention at an early stage. If proceedings seeking judicial review are brought, then s 69C of the Supreme Court Act generally provides for a further stay of execution of the sentence. If the appeal is ultimately allowed, and the conviction is quashed or the sentence reduced, it will not be necessary to invoke this Court's supervisory jurisdiction. If the appeal is dismissed, then invoking this Court's supervisory jurisdiction after the conviction or sentence has been confirmed will still effect a stay of execution.
Fifthly, it is not enough for an appellant to show error. It is necessary to establish jurisdictional error by the District Court. That is the effect of s 176 of the District Court Act 1973 (NSW). It is well established that s 176 confines judicial review of the District Court exercising its appellate jurisdiction to cases of jurisdictional error: see for example Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [9]-[10]. The metes and bounds of jurisdictional error cannot readily be stated, which gives rise to difficulties, especially in the case of unrepresented litigants. However, that uncertainty is ameliorated by two matters. First, even if an applicant can show that the District Court made a legal error in the course of hearing and determining an appeal, that of itself is not enough. Mere error of law when made by a court is not jurisdictional error: see for example Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245 at [4] and [72]. Secondly, mere error of fact is, likewise, not jurisdictional error.
For all those reasons, the jurisdiction of this Court to intervene in an interlocutory decision by the District Court seized of an undetermined appeal from the Local Court will be exercised only in exceptional cases.

Mr Ghaderi's claims

The summons fails to identify grounds said to give rise to the requisite jurisdictional error. Instead, Mr Ghaderi has attached 13 pages of submissions, contrary to the requirement in Uniform Civil Procedure Rules 2005 (NSW) r 59.4(c) that the summons state "with specificity, the grounds on which the relief is sought". Those submissions agitate a large number of complaints. They include: 1. that from time to time (and especially during the proceedings in the Local Court) he has been provided with Farsi interpreters who are women, rather than a specific (male) interpreter whom he had requested (one basis of his appeal against conviction is what he says is the poor ability of the interpreter provided for him); 2. complaints of what he described as impoliteness and indeed "illegal behaviour" by officers in the Registry of the District Court in Parramatta, 3. complaints relating to obtaining access to materials in support of his hearing, 4. a complaint that because he pleaded not guilty, the prosecutors "deliberately sent the case to Parramatta Court and Parramatta Court issued an AVO plus two charges against me!!!" [sic, as in original.] 5. a complaint that the prosecutor had "touched me and pushed me and had tried to attack me" and had "deliberately and illegally" not provided evidence of recording cameras at Hornsby Court, and that "in many issues he illegally encouraged and asked of the applicants to said lie very clear" [sic], 6. complaints about the conduct of the Magistrate too lengthy to summarise and matters which are entirely directed to the substance of his appeal.
In this Court, in addition to the submissions attached to his summons in lieu of grounds, Mr Ghaderi relies on submissions in the form of letters dated 19 February, 12 March, 14 May and 29 May 2018, and an oral submission made with the assistance of an interpreter. (In fact, there are two letters dated 12 March, both of which were filed in this Court on 15 May, which are in different terms; regard has been had to both letters.) The written and oral submissions displayed much the same character as the summary given above. The Court has also had regard to a further letter from Mr Ghaderi dated 31 May 2018, supplied after judgment was reserved.
At present, the correctness of the convictions and sentences imposed by the Local Court is the subject of Mr Ghaderi's undetermined appeal to the District Court. There can be no occasion for this Court to intervene based on those complaints; so to do would subvert the appeal as of right to the District Court provided by s 11 of the Crimes (Appeal and Review) Act. These reasons do not purport to summarise those matters in full.
However, it is clear from Mr Ghaderi's written submissions, and the majority of his oral submissions in this Court, that he remains disaffected by the decision to transfer his prosecution from the Local Court in Hornsby to the Local Court at Parramatta. This, together with his ongoing complaints about interpreters, is the most voluminous aspect of his concerns. There is no reason to think that Mr Ghaderi does not genuinely believe that it was wrong for his trial to have been transferred. However, two points should be made in this respect. 1. First, the contemporaneous records of the Local Court point to a different reason for the matter being transferred to Parramatta from that on which Mr Ghaderi's complaint is founded. The respondent tendered copies of the record from the Local Court which disclosed that Mr Ghaderi had been represented in the Local Court on 27 July 2016, when an estimate of 5 hours was given for the hearing. On the next time the matters were before that Court, on 13 September 2016, Mr Ghaderi was not present, but his agent was, and on that day the matters were transferred to Parramatta, with an annotation on the file "may need more than one day". The Director also relied upon a solicitor's affidavit which stated that she was aware from her professional experience that Parramatta Local Court "has more sitting Magistrates and thus capacity to hear longer matters". 2. Secondly, the decision was wholly irrelevant to the only issue of which complaint is presently made, being the decision to fail to transfer separate proceedings (namely, his appeals from the Local Court), commenced by Mr Ghaderi in a different court, the District Court at Parramatta, to that court sitting in the Sydney CBD.
What matters for present purposes is what Mr Ghaderi says was the basis for his application for a change of venue from Parramatta to the Sydney CBD, and what complaints he makes as to the way in which that application was addressed.
Mr Ghaderi makes four particular submissions in relation to the Parramatta Court. He says that (a) he does not feel safe while in the Parramatta Court building and that he "started shaking and be worried, because of impolite behaviour by registry and the man that I was told he is superintendent sheriff"; (b) he is afraid of the man who he understands to be the head of police in the Parramatta Court building, (c) he is "sure they all judge, magistrate, prosecutor, registrars, most staff of registry deliberately have put me in trouble high pressure and tried have made me angry to do something wrong, then they would have some reason charge/offence me even put in prison, because they have not any reason because I have not done anything illegally so far" and (d) he complains that it is geographically inconvenient for him to travel to Parramatta rather than to the CBD.
He also makes a series of complaints about the primary judge. Many concern the topic which occupied more time in the numerous directions hearings in that Court than any other, namely, his dissatisfaction with interpreters. He says, for example, that "finally Judge Bennett made a trickery by made an order for requesting of providing the specific interpreter ... that I had requested within last one year for my courts in Parramatta, but never ever even in one single court day that interpreter was booked for me". He also complains about the way in which his motion for transfer of venue was treated. Although his submissions invoke the same emotive language, for example, concluding that "there were no fair or justice court for me at all courts in Parramatta!!", it is necessary to examine the procedural history in order to assess this aspect of the complaint.

Procedural history of the appeal in the District Court

To return to the proceedings in the District Court, on 27 October 2017, Mr Ghaderi filed a notice of motion seeking to have his appeals transferred from Parramatta to the Sydney District Court. The affidavit in support very substantially reproduces much of the 13 pages attached to the summons in this Court. The uncontested evidence of the respondent is that there is no record of the notice of motion or affidavit having been served, and that it was only belatedly discovered.
The appeals came before the primary judge sitting in the District Court at Parramatta on 10 November and 23 November 2017, which dates almost match the two dates identified in Mr Ghaderi's summons. On 10 November 2017, Mr Ghaderi was assisted by a (male) Farsi interpreter. The transcript records that, through the interpreter, Mr Ghaderi asked that his appeals be transferred to the "City". The primary judge rejected that application, saying that he had "not established a proper basis upon which I can change the venue of proceedings".
On 23 November 2017, the matter returned before the primary judge. There was a dispute about interpreters, but eventually a (male) interpreter was supplied and interpreted for Mr Ghaderi. On that occasion, Mr Ghaderi handed a letter to the primary judge which reiterated a request to move the proceedings to Sydney and asked for the reasons of the primary judge. His Honour was of the view that he had already ruled on that issue. The transcript records: "APPELLANT: Did you respond my request ... (not transcribable) ... please? HIS HONOUR: Your request for? APPELLANT: For moving to city. HIS HONOUR: I've already done that. I've ruled the matter will be heard in this Court. APPELLANT: I haven't received any response in written from you. HIS HONOUR: I'm not providing you with a written response. I have given reasons on the record. If you want a copy of that, you can ask the registry and I'll have it typed up and publish it as a judgment. APPELLANT: Because I didn't hear ... (Not transcribable) ... my request. HIS HONOUR: Well, in fact I will circumvent this. I'll order a copy of the transcript of the last occasion and revise that as a judgment."
Once again, the transcript does not record any mention of the notice of motion. Mr Ghaderi maintains that he said there was a notice of motion, although that is not recorded on the transcript. Mr Ghaderi is concerned that the transcript of those days is inaccurate. In one of his written submissions relied on in this Court (one of the two dated 12 March 2018), the substance of which was reiterated orally, he said: "On 8 Dec, 2017, I had requested for having a CD recording sound of district courts mention days of 10 and 23 of Nov 2017, but Judge Bennett without any legal reason refused my request for having a copy of CD recording sound and told because I was given the transcripts of those courts days, then I told him the reason of my request for CD recording sound of those two courts is because of the registrar deliberately had changed some of my words and what I had said at those courts, were changed at the transcripts and there is not on the transcripts exactly what I had said at the courts, judge Bennett said nothing and did nothing!! I do believe that changing my words at transcripts by registrars and registry is illegally and against the law and is criminal action and matter, but Judge Bennett had not taken his responsibility and had not taken any required action for it …" [sic].
The matter was relisted for mention on 14 December 2017, so that Mr Ghaderi could review the material served by the Crown and advise whether the appeal would be ready to proceed on 7 February 2018.
It appears that Mr Ghaderi did not appear on 14 December when the matter was originally called, at midday, nor later that afternoon. The primary judge said (in the absence of Mr Ghaderi): "I'll note that the appellant hasn't arrived. I won't make orders dismissing the appeal; I'll leave it in the list for hearing on 7 February 2018."
The transcript also records that Mr Ghaderi's appeal was number 19 on the list of matters before the primary judge on 14 December 2017. The record does not show precisely how many matters were in the list. However, it is plain that the number was large. Considerable latitude is to be given to a judge dealing with a busy list.
Later in the day, after the interpreter had been excused, Mr Ghaderi appeared and renewed his complaints about the interpreters who had been available (this occurred without the assistance of an interpeter - although Mr Ghaderi's English skills are poor, they are not wholly lacking).
On 7 February 2018, Mr Ghaderi's appeal was listed for hearing. The Court was told that Mr Ghaderi had filed a summons in this Court two days earlier. The primary judge vacated the hearing, saying: "So [lest] it be suggested that he has not [been] allowed procedural fairness, to which he is entitled, I'm minded to vacate the hearing today, I'll set it down again for another date after the return date of the summons."
His Honour then delivered a short judgment containing reasons for the vacation of the appeal. The reasons include the following: "On the first occasion the matter came before me, the appellant sought to vacate the appeals from the District Court at Parramatta and have them moved to the Sydney Registry. My recollection, without referral to notes or transcript, is that the premise upon which he advanced that request or application was that it was more convenient to him because of his place of residence. I was not prepared to grant that request or application upon that reason."
His Honour was taken to the transcript of 10 November 2017 (seemingly by his Associate during the course of his ex tempore reasons) which recorded Mr Ghaderi's concerns that the Parramatta registry "are not considering my rights and they have put pressure on me and I do not think that the Court that I have been through has done justice and they have deliberately sent these files to Parramatta." His Honour said that those concerns succinctly stated Mr Ghaderi's attitude throughout the conduct of his appeal. His Honour recorded that he had arranged for the presence of Sheriff's Officers in the court "because of the emotion to which the appellant has surrendered from time to time".
Following the delivery of judgment on 7 February 2018, Mr Ghaderi requested the primary judge to exclude from the court the "head of police in this Court". He said: "The presence of that person puts me under mental torture. I'm scared of that person and I'm fearful. I don't feel safe in this Court. If I am supposed to come back to this Court I'm requesting you to ban the presence of that person in Court, and also to ban him from following me in this building, so that I could feel safe. Thank you."
The primary judge did not call upon the Crown. He rejected the application, giving reasons: "In response to that I simply observe that the extent to which the appellant has demonstrated his emotional investment in these proceedings, and the conduct upon which he engaged in Court was such, that in anticipation of the risk that there might be disruption to the Court and those members of the community who were also before the Court I have required the Sheriff to be present, and insofar as the appellant was concerned, while ever he was in the building, to be proximate to him to ensure that there was no disruption to the Court or the business of the Court or interference with those who are employed by the Department of the Attorney General in providing services to the Court. I am not going to exclude any of the Sheriff's Officers from this Court or any part of the building in relation to or in the course of the conduct of these proceedings. They have not, according to my perception of the matters, behaved other than in an appropriate manner and their presence was the direct product of the conduct of the Appellant."
When the matter returned, on 23 February 2018, seemingly for the first time the Court was apprised of Mr Ghaderi's notice of motion. The Crown representative said: "[O]ne thing that I would like to bring to your attention and the matter may need to be dealt with later today for this very reason. In preparing the matter for the Court of Appeal it became apparent that there's a Notice of Motion on file that Mr Ghaderi had filed with the Court in October of last year and it doesn't appear from the transcript of 10 November that that Notice of Motion was actually read or dealt with by your Honour. HIS HONOUR: No one brought it to my attention. CROWN: It was a failing of the Crown, your Honour, to not bring that to your attention ..."
Mr Ghaderi appears to have been present at that time, and the transcript also records the presence of an interpreter. The matter was stood down in the list. It was not reached until 2pm. It seems that Mr Ghaderi left the court before the motion could be dealt with. The matter was stood over to 9 March.
On that date, Mr Ghaderi did not appear. The Crown advised that it did not oppose Mr Ghaderi's motion to transfer the matter to the city, accepting that it was a matter for the Court, but also noted that the matter would more likely get a hearing date sooner in Parramatta than in the city.
Ultimately, the primary judge gave reasons dismissing Mr Ghaderi's notice of motion, and formally making orders to that effect, on 15 March 2018. Again, Mr Ghaderi did not appear.
His Honour's reasons record the procedural history in that Court, including Mr Ghaderi's difficulties with interpreters, and the occasions where Mr Ghaderi did not appear. Those reasons addressed the procedural irregularity that had occurred, by reason of the Court being unaware of the notice of motion filed by Mr Ghaderi. His Honour said that when the notice of motion was brought to his attention, he "remained of the view that it was unlikely that his application would be successful in this Court but the final conclusion would not be reached until I had given some attention to the documents he provided."
His Honour then reviewed, in considerable detail, the procedural history of the appeal in the District Court. The reasons included the following: "On 7 February 2018 I delivered a judgment which I have reviewed and it is available. It outlines what occurred on that day and my perception of the history of the matter at that time. His criticism as I there reflect included the attitude of registry staff and the Sheriff's Officers responsible for security in this Court. The reasons advanced in court for wanting to have the matter moved to the Sydney Registry were not in my judgment sufficient to justify that course. However complications arose. The Appellant had filed a Notice of Motion and material in support of his wish to have the proceedings transferred. I was unaware that there had been such a document filed. At no time according to my memory of the matter did he bring to my attention the fact that there was a Notice of Motion and a document purporting to be an affidavit in support of the orders that he wanted. This was a matter that the Crown had similarly not appreciated, but when aware that there was such a document, accompanied by others, the Crown brought the matter immediately to my attention. Accordingly the proceedings were adjourned so that I might consider the application assisted by the information that the Appellant wanted thereby to advance in his quest to have to proceedings removed from this Registry to the Sydney Registry."
The primary judge in considerable detail summarised the affidavit upon which Mr Ghaderi relied at pp 14-24 of his reasons. His Honour referred to r 53.7 of the District Court Rules 1973 (NSW), which provides that in the case of an appeal pursuant to s 11 of the Crimes (Appeal and Review) Act 2001, the venue for the hearing of proceedings shall be "the proclaimed place nearest to the Local Court at which was made the conviction order or was imposed a sentence appealed, or sought to be appealed against". His Honour also recorded the power to transfer the proceedings for hearing at a different venue. His Honour referred to the complaints about the registry of the District Court at Parramatta, the failure to make available the specific interpreter that he requested, and the presence of Sheriffs in the court because of disruption which had from time to time been caused by him.
His Honour then said: "[O]n 7 February 2018 I delivered an ex tempore judgment refusing what I thought had been an oral application for a change of venue. For the reasons given on that occasion, I was and now remain of the view that it was not appropriate to make the order for a change of venue for the reasons upon which the appellant ... represented in the course of his oral submissions."
His Honour then explained why he considered that Mr Ghaderi's complaints of maltreatment within the registry were unfounded. His Honour said that it was apparent that Mr Ghaderi was "capable of misrepresenting facts to achieve his goals, perhaps through his perception of injustice, even though upon my assessment of the matter he has not, in this Court at least, been subject to any injustice." His Honour dealt with the complaints about an interpreter and the presence of a Sheriff's Officer in the court.
His Honour was also conscious of the consequences of his rejection of Mr Ghaderi's submissions and said: "Against the risk of there being an apprehension of bias, though I am confident I could hear and determine these appeals with appropriate objectivity, and notwithstanding my perception of this appellant and the conduct of the matter so far, it would seem to me that the matter on the next occasion ought to be allocated to another judge for determination."

Disposition of the summons

As noted above, Mr Ghaderi's summons contains no grounds, and his submissions in support cover a wide range of complaints, most of which have no application to any jurisdictional error in the refusal by the primary judge to transfer his appeal from Parramatta to the Sydney CBD.
It is true that there was an error insofar as his application was refused without regard to the affidavit on which he relied. There is nothing to suggest, however, that the primary judge was conscious of the notice of motion and affidavit at any time prior to February 2018. The transcript powerfully suggests that neither Crown nor the Court were aware of it, and the evidence is that it had not been served. As soon as the Court was apprised of the notice of motion and affidavit, the primary judge proceeded to review the application on the basis of the whole of the evidence. No error is apparent in the course taken by his Honour after he became aware of the notice of motion, even if that were the question. But that is not the question. Mr Ghaderi must fail unless the decision is affected by jurisdictional error. There is no jurisdictional error in the court taking the course it did.
In the course of rejecting aspects of Mr Ghaderi's claims, the primary judge considered that he could not accept everything that Mr Ghaderi said about his treatment by the Registry and other Court staff. It was open to his Honour to take that course (and, to be quite clear, there was certainly no jurisdictional error in doing so; that is precisely the task which is entrusted to a court). It is true that there would be difficulty by reason of apprehended bias if the primary judge proceeded to hear and determine Mr Ghaderi's appeals, having regard to the adverse findings made on the motion. But the primary judge was alive to that, and has stated that the appeals will be determined by another judge.
No basis has been made out for accepting the serious allegations made by Mr Ghaderi as to the conduct of the primary judge, the registry and Sheriff's Officers.
It is not clear that Mr Ghaderi raised his complaint about geographical inconvenience before the primary judge, but, even if he did, the primary judge's refusal to accept such a submission in rejecting the transfer request could not constitute jurisdictional error.
No jurisdictional error is identified by Mr Ghaderi. Because he is unrepresented, these reasons have taken the course of considering the entirety of the record, and such of his submissions which might relate to any error. However, no such error is made out. The summons must be dismissed.
Three final matters should be mentioned. First, insofar as Mr Ghaderi complains that his appeal has not been determined, and (as he mentioned in oral submissions in this Court) that the Apprehended Domestic Violence Order which he challenges will shortly expire, he is at least in large measure the author of the delay. The District Court has already twice vacated the hearing of his appeal, in light of the summons filed by him in this Court.
Secondly, Mr Ghaderi submitted orally that once he had commenced proceedings in this Court, being a higher court than the District Court, it was not necessary for him to appear in the District Court. That is incorrect.
Thirdly, Mr Ghaderi has invoked this Court's supervisory jurisdiction, in civil proceedings to which UCPR r 42.1 applies. Ordinarily, costs follow the event. However, in the particular circumstances of this summons, which was filed at a time when the District Court had not considered Mr Ghaderi's notice of motion, it is appropriate that there be no order as to costs. Accordingly, the Court's order is that the summons filed 5 February 2018 be dismissed.

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: 07 June 2018

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