Jamal v Director of Public Prosecutions

Judgment 1MEAGHER JA: I agree for the reasons given by Gleeson JA that the orders his Honour proposes should be made. 2GLEESON JA: Mr Jamal seeks relief in the nature of prerogative relief with respect to a judgment of the District Court which was an appeal from a conviction in the Local Court. The circumstances giving rise to the appeal to this Court are as follows. 3On 10 November 2011, Mr Jamal was found guilty in the Local Court of common assault of his wife - a statutory offence created by s 61 of the Crimes Act 1900 - and sentenced to a conditional good behaviour bond for 12 months: s 9, Crimes (Sentencing Procedure Act) 1999. He appealed against his conviction to the District Court: s 11, Crimes (Appeal & Review) Act 2001. 4Consequent upon the conviction for assault, the Local Court also made a final apprehended violence order against Mr Jamal for two years the protected persons being Mr Jamal's former wife and their three children: s 39(1), Crimes (Domestic & Personal Violence) Act 2007. Mr Jamal also appealed to the District Court against this order: s 84(2)(a) and s 84(3), Crimes (Domestic and Personal Violence) Act 2007. 5The appeals were heard over two days on 23 March and 1 June 2012. Relevantly, the appeal on conviction was dismissed. The District Court confirmed the conviction and the sentence imposed by the magistrate, but amended the terms of the apprehended violence order: Jamal v R (District Court of New South Wales, Nicholson DCJ, 1 June 2012, unreported). 6On 29 June 2012, Mr Jamal filed in this Court a summons naming the Director of Public Prosecutions as the respondent. The summons identified the type of claim as "Procedure - Fairness - Natural Justice". The summons did not identify the relief claimed but, it may be inferred, purported to seek judicial review of the dismissal of his conviction appeal by the District Court. 7An amended summons was filed on behalf of Mr Jamal on 17 July 2012 by JR Lawyers. The District Court was added as a second respondent. The District Court has filed a submitting appearance. On 30 August 2012, Mr Jamal's lawyers filed a second amended summons in the same terms as that originally filed by Mr Jamal. 8On 22 January 2013, Mr Jamal's solicitors filed a third amended summons together with written submissions confusingly headed "Criminal Appeal Act 2012". The amended summons claimed relief under s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth), in respect of which this Court has no jurisdiction. The grounds upon which relief is sought concern Mr Jamal's complaint that he was denied procedural fairness during the hearing of his appeal to the District Court. 9Subsequently, on 9 September 2013, Mr Jamal filed a further amended summons, together with further written submissions, which were expressed to be supplemental to the earlier written submissions. The relief claimed includes that the order of the District Court dismissing his appeal on conviction be quashed, that the order of the Local Court convicting Mr Jamal be set aside and that proceedings be remitted to the Local Court to be dealt with by a magistrate, other than the magistrate who dealt with the assault charge. 10Mr Jamal was represented before this Court by Mr Cairns of Counsel. Mr Pickering SC appeared for the Director of Public Prosecutions.

The basis for Mr Jamal's proceedings 11Mr Jamal invokes the supervisory jurisdiction of this Court conferred by s 69 of the Supreme Court Act 1970 to seek to quash the decision of Nicholson DCJ of 1 June 2012. Review under s 69 extends to relief formerly available by writ of certiorari. However, it is necessary to consider whether there is any legislative constraint on the Court's exercise of its powers to quash or otherwise review a decision: s 69(5). 12In the present case, the appeal function that the District Court performed was undertaken in the exercise of the criminal jurisdiction of that Court: s 9(2) and s 166 of the District Court Act 1973. Part 4 of the Act headed "The Criminal Jurisdiction of the Court" includes s 176 which provides: "No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court." 13The effect of s 176 is not to exclude proceedings by way of judicial review by this Court, but to limit their availability to cases involving jurisdictional error: Garde v Dowd [2011] NSWCA 115; (2011) 80 NSWLR 620 at [10] per Basten JA (Giles JA and McColl JA agreeing). See also Spanos v Lazaris [2008] NSWCA 74 at [15]; Director of Public Prosecutions v Emanuel [2009] NSWCA 42; (2009) 193 A Crim R 552 at [18] and [45]; and Elias v Director of Public Prosecutions [2012] NSWCA 302; (2012) 222 A Crim R 286 at [5]; Yousaf v Director of Public Prosecutions [2012] NSWCA 397 at [12] per Barrett JA (McColl JA and Meagher JA agreeing). 14Accordingly, the only question that may be agitated in this Court on the matters raised by the amended summons is whether the decision of the District Court on appeal from the Local Court is affected by jurisdictional error.

Jurisdictional error 15In Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, the High Court gave a broad description of jurisdictional error as follows (at 177): "An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction." 16Thus a jurisdictional error is a failure to comply with an essential precondition or limit to the valid exercise of a power, whether either the precondition or power arises under the general law or under statute: Spanos v Lazaris at [15]. 17One recognised form of jurisdictional error is a failure to accord procedural fairness during a hearing: Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [60]. Such a failure is susceptible to correction as jurisdictional error: Re Refugee Review Tribunals; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513 at [10].

Mr Jamal's complaints 18On the hearing of the application, counsel for Mr Jamal clarified that the only issue raised was that there had been a failure to afford Mr Jamal procedural fairness in the District Court appeal. This failure was particularised as relating to four matters: (1)Mr Jamal was not afforded the opportunity to be legally represented. (2)Mr Jamal's application for an adjournment (on 1 June 2012) was refused. (3)Mr Jamal was not afforded the assistance of an interpreter (on 1 June 2012). (4)The District Court refused to receive and consider further evidence on the hearing of the appeal and, in that respect, to exercise the power conferred by s 18(2) of the Crimes (Appeal and Review) Act 2001. 19Counsel for Mr Jamal informed the Court that he did not rely upon the failure particularised as (iv) in the third amended summons filed 22 January 2012, being refusal of Mr Jamal's request that the Crown particularise with certainty the date of the alleged assault. It should also be noted that Counsel for Mr Jamal did not press any of the complaints contained in the further amended summons filed by Mr Jamal on 9 September 2013, which largely related to refusal of access to subpoenaed documents. 20In support of the first three complaints, counsel for Mr Jamal drew attention to various passages of the transcript of the District Court appeal on 23 March and 1 June 2012 as indicative of the language barrier that may have posed problems for Mr Jamal. He acknowledged that Mr Jamal had a day-to-day command of the English language and had some legal training in the Egyptian system, but contended that Mr Jamal was out of his depth before an appeal court. (Mr Jamal gave evidence before the Local Court that he was a solicitor (in Egypt): Tcpt 51, line 14). 21Counsel for Mr Jamal submitted that the absence of an interpreter and the absence of legal representation were relied upon as distinct aspects of the failure to afford procedural fairness. He went on to submit that Mr Jamal also relied upon a combination of these two matters. 22In support of the fourth complaint, counsel for Mr Jamal submitted that Mr Jamal was attempting by the application to tender further evidence, to lead evidence of the victim's association with community groups and others to demonstrate that there was an abundant opportunity for the victim to complain of the alleged assault, but that no complaint was ever made. It was submitted that this information would have balanced the competing versions of the evidence of the victim and Mr Jamal as to whether he had assaulted the victim. 23It was further submitted that if Mr Jamal had legal representation on the District Court appeal, there was a prospect that better arguments would have been advanced as to the relevance of the 18-page bundle of documents which Mr Jamal unsuccessfully sought leave to tender as further evidence on the appeal.

Circumstances giving rise to first and second complaints 24The circumstances giving rise to Mr Jamal's complaints that he was not afforded the opportunity to be legally represented and was refused an adjournment on 1 June 2012 may conveniently be dealt with together. 25The issue of legal representation and the possibility of an adjournment of the appeal first arose on the hearing of the appeal on 23 March 2012. This was in the context of Mr Jamal's application to tender fresh evidence on appeal. After considering and ruling on the tender of a number of documents which were the subject of that application, Nicholson DCJ observed that it appeared that the time involved in completing that exercise seemed to be a couple of hours. The transcript records the following response by Ms Kotsis for the Crown: "KOTSIS: Indeed, at best. Can I say this, your Honour: I have indicated to the appellant earlier that if he intended to or wished to get legal representation and sought an adjournment on that basis, I certainly wouldn't oppose it, and he seemed to be in two minds as to whether he was going to do that. That might affect an estimate on the next occasion. Obviously this process could all be done by way of an affidavit if that were to happen. HIS HONOUR: He's unrepresented at the moment. KOTSIS: Yes. HIS HONOUR: I'm making allowances for that." 26Thus, the possibility of seeking an adjournment to obtain legal representation had already been brought to Mr Jamal's attention by the solicitor for the Crown on the first day of the hearing of the appeal. No such application was made by Mr Jamal on that day. It should also be noted that an interpreter was present on that day. 27When the hearing of the appeal resumed on 1 June 2012, Mr Jamal was again unrepresented. He did not, however, have the assistance of an interpreter. On this occasion, the issue of legal representation did not arise until near the very end of the hearing. It was raised by Mr Jamal. This occurred in the context of Nicholson DCJ having heard argument and ruled on the tender of further evidence from Mr Jamal (in respect of which leave was refused), and then adjourned for some time, apparently to read the papers. On his return to court, Nicholson DCJ informed Mr Jamal that he was in a position to give a decision on the matter. Before doing so, his Honour gave Mr Jamal the opportunity to raise any new matters that he wanted to address before giving his decision. The transcript records the following exchange: "HIS HONOUR: ... I'm going to stop you. I've asked you several times if there's anything new you want to say. All that you've told me even in this last lot I think I have heard before. It's time now for me to make a decision. APPELLANT: I'm asking the Court to give me time, I bring solicitor because I'm not understand everything. HIS HONOUR: No. APPELLANT: I feel I'm not understand my case well, I am not professional, I am not understand English well. That's why I'm asking for another time to bring solicitor because is the police officer he fight with me with the legal aid and he withdraw my solicitor. HIS HONOUR: This is your second appearance before me and I begged you to get a solicitor on the last occasion because-- APPELLANT: I have no money. HIS HONOUR: And you'll have no money next time - because I was concerned about your capacity to represent yourself in this Court notwithstanding your training in your own country. I really cannot see that a solicitor can pick up any matter that you have canvassed and develop it to such a point that it would change the position that I'm currently in and at the end of the day the question really is this, is there any reasonable basis for adjourning it and frankly I can't see it. In those circumstances I am going to give a judgment." 28Ms Kotsis for the Crown then informed the Court that at the conclusion of the hearing on 23 March 2012, she had urged Mr Jamal to obtain legal representation. He had not done so. Mr Jamal told his Honour that he had a letter from the Law Society advising him to ask the Court for time, "two, three weeks". His Honour replied that Mr Jamal should have shown him the letter at the beginning of the hearing on 1 June 2012, and Mr Jamal said he would go home and bring the letter to Court. Nicholson DCJ refused the request for an adjournment: "HIS HONOUR: No, but the point I just made would still hold which is that I just don't feel that any solicitor in what I have seen of the matter and the material you've put before me could find anything to salvage for you with fresh evidence or without it-- APPELLANT: It's the whole charge is not legally to coming before a court as the magistrate is not - as a direction as a magistrate she is acceptable, files document to pass the witness before here. ... That's why I am talking with you her now, give me a chance I'll bring a solicitor because I'm not understand what I do exactly, but I am believe I am not guilty, I don't believe that's what happened at all. That is true. ... She say I am assault her in eyes and shoulder. Her eyes she say I going to doctor. She didn't even bring any reference and she told the doctor I went to doctor after I heal from everything. So what, why she's going to doctor? HIS HONOUR: Thank you, we've been there. Would you sit down? APPELLANT: I'm sorry, sir, I need solicitor. HIS HONOUR: Would you sit down, please?" 29Nicholson DCJ then proceeded to give his judgment on the appeal on conviction, dismissing the appeal.

Circumstances giving rise to the third complaint 30The third complaint relates to the absence of an interpreter to assist Mr Jamal on 1 June 2012. An interpreter was available and had assisted Mr Jamal on the first day of the hearing of the appeal on 23 March 2012. An interpreter had also been available and provided assistance during the hearing of the Local Court criminal proceedings on 10 November 2011. 31Counsel for Mr Jamal drew attention to a comment by Nicholson DCJ on the first day of the hearing on 23 March 2012, that his Honour was having difficulty understanding Mr Jamal because of his accent, as indicative of a language barrier. On that occasion, Mr Jamal had the assistance of an interpreter. The transcript reveals the context of his Honour's comment (Tcpt 4, lines 29-30). This was that, notwithstanding the presence of an interpreter, Mr Jamal was conducting his appeal largely without the assistance of the interpreter. His Honour observed that his difficulty in understanding Mr Jamal was largely a product of Mr Jamal speaking too quickly and that he would be better served using the interpreter who was present on that occasion. Notwithstanding this suggestion, the transcript records that only some use was made of the interpreter by Mr Jamal on 23 March 2012 and that otherwise Mr Jamal communicated with the Court without the interpreter's assistance on that day. 32Counsel for Mr Jamal next referred to the following passage of the transcript partway through the hearing on 1 June 2012, as again indicative of a language barrier: "APPELLANT: Next one, we can go into transcript straight away. The reason for-- HIS HONOUR: I have difficulty with your accent. APPELLANT: Beg your pardon? HIS HONOUR: I'm having some difficulty with your accent. Just speak a little slower. APPELLANT: You ordered an interpreter for me but he didn't come, sorry about that. KOTSIS: I don't know that anyone's called the interpreter." 33Earlier during the hearing on 1 June 2012, when Ms Kotsis for the Crown was addressing the Court, Mr Jamal requested: "Could you speak slowly, because I not understand English very well." 34Later, towards the end of the hearing on 1 June 2012, Mr Jamal stated on a number of occasions that he did not "understand well". These exchanges between Mr Jamal and Nicholson DCJ occurred after his Honour had informed Mr Jamal that he was in a position to give his decision on the appeal. One such exchange was as follows: "HIS HONOUR: Most of this, if not all of it, I have heard from you before on the last occasion. I think quite a lot of it I've heard from you today. Is there anything new that you want to say before I ask you to sit down? APPELLANT: I am aware from court decision because my English is not well and I'm not understand well-- HIS HONOUR: All of that I know. Now is there anything new you want to say? APPELLANT: I find all document and I brought a statement before the Court. HIS HONOUR: You had time to find the documents and you have found what documents you've found and they have no value to me. Is there anything else you want to say? APPELLANT: No sir, but the Court it didn't allow to me to seize a subpoena because it's the police officer who when he arrested me he is not in charge in his duty."

Circumstances giving rise to fourth complaint 35The first day of the hearing of the appeal on 23 March 2012 was largely devoted to Mr Jamal's application to tender further evidence. The application was opposed by the Crown on the grounds of relevance. Nicholson DCJ allowed some of the evidence and rejected other pieces of evidence that Mr Jamal sought to tender. 36At the conclusion of the hearing on that day, Nicholson DCJ indicated to Mr Jamal that he should provide the Crown with any further documents that he intended to rely on. This did not occur until the morning of the adjourned hearing on 1 June 2012, when Mr Jamal provided the Crown with an 18-page bundle of documents which he then sought to tender as further evidence on the appeal. 37It appears from the transcript of 1 June 2012, that the 18-page bundle of documents was handed up to Nicholson DCJ on that day. The Crown objected to the tender on the grounds of relevance. Nicholson DCJ explained to Mr Jamal that the further evidence needed to be relevant to the assault. The transcript records the following exchange "HIS HONOUR: The task before the Court is this that there was an allegation which was determined by the Magistrate that on 1 June in 2006 in circumstances that the Magistrate heard you had assaulted your wife. So the evidence that the Court has got to be interested in is evidence that relates to the 1 June 2006 assault. Now if I look at the material that you are putting before me it talks about 2011, 2008, 2007. It can have no relevance to 1 June 2006. All of the material that you want leave to put in must be material that relates to 1 June 2006, and the events that were said to have occurred on that day, do you understand that? APPELLANT: I'm understand that issue. ... HIS HONOUR: Now that's not a matter that you can discuss with me. That is the material I need to focus on and if you've got a smiling wife in 2001, or 2007 or 2003, I don't want to know about it. It has nothing to do with what happened on 1 June 2006. APPELLANT: Correct. HIS HONOUR: Okay. APPELLANT: Okay." 38After some debate as to the relevance of the bundle of documents, his Honour refused leave to introduce the document.

Procedural fairness 39The obligation of procedural fairness is concerned with providing a person whose rights are potentially affected in a matter with the opportunity to deal with relevant issues. However, a party's failure to make proper use of that opportunity cannot be used to support the claim of procedural unfairness: Victims Compensation Fund Corporation v Nguyen [2001] NSWCA 264; (2001) 52 NSWLR 213 at 219 [37] per Mason P. 40Guidance as to what is meant by procedural fairness is given by Allsop P in Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367; (2010) 180 LGERA 1 at [6] as follows: "At the root of procedural fairness is the provision of a fair hearing to a litigant and the basal notion that the litigant has understood the proceedings before him or her and has had an adequate opportunity given to him or her, considering his or her attributes, qualities and deficiencies which render the litigant more or less able to vindicate his or her rights in court. A sharp line between rules and consequences cannot be drawn in this respect. Analogies of the rules of the game and how the game is played may be helpful at one level, but ultimately each circumstance has to be analysed and evaluated to see whether, in a human context, a fair hearing has been provided." 41In respect of litigants in person further considerations arise. As Allsop P observed in Jeray at [10]-[12], litigants in person suffer the dual strain of being both litigant and advocate. The balance required of a judge when dealing with a litigant in person is no simple task. What is required of a judge to afford the parties a fair hearing is a matter about which minds can differ.

Assistance to an unrepresented litigant 42The principles applicable to the Court's duty to unrepresented litigants in criminal proceedings are to be found in Dietrich v The Queen (1992) 177 CLR 292 and MacPherson v The Queen [1981] HCA 46; (1981) 147 CLR 512. In Dietrich's case, Mason CJ and McHugh J noted at 396 that Australian law did not recognise that an indigent accused on trial for a serious criminal offence has a right to the provision of counsel at public expense. Their Honours went on to observe: "Instead, Australian law acknowledges that an accused has the right to a fair trial and that, depending on all the circumstances of the particular case, lack of representation may mean that an accused is unable to receive, or did not receive, a fair trial. Such a finding is, however, inextricably linked to the facts of the case and the background of the accused." 43There is no absolute right to legal representation even where livelihood is at stake. However, as observed in Cains v Jenkins (1979) 28 ALR 219 at 230 per Sweeney and St John JJ: "But that is not to say that in all cases a tribunal can refuse it with impunity. The seriousness of the matter and the complexity of the issues, factual or legal may be such that refusal would offend natural justice principles." 44In MacPherson's case, the High Court held that a trial judge is obliged to give the accused advice concerning his right to a voire dire. This was a consequence of the obligation of the trial judge to ensure that the trial is conducted fairly and in accordance with the law. In MacPherson, Mason J remarked (at 534) that if the accused is allowed to remain in ignorance of a fundamental procedure, it can hardly be said that he or she has had a fair trial. Furthermore, Brennan J said (at 546): "If ... an unrepresented accused is kept in ignorance of the rules, procedural rules which are designed to protect an accused and so ensure a fair trial become a trap ... ." 45However, a very clear distinction was drawn in MacPherson's case between advising an unrepresented accused what his or her rights were in relation to various matters and advising the accused how he or she should exercise those rights: MacPherson at 524 per Gibbs CJ and Wilson J, at 534 per Mason J, at 537 per Aickin J and at 546 per Brennan J. 46Many of the cases dealing with the obligation of the Court to assist an unrepresented litigant are, in the main, concerned with assistance of an accused person. However, a court must also have regard to the capacity of a person to effectively represent his or her interests. This arises from the authorities dealing with the principles of procedural fairness and the right to representation. Relevant matters will include the person's familiarity with relevant rules and complexity of those rules, language difficulties and similar matters. The seriousness of the issue and any qualification which may place an opponent at an advantage will also be considered: Htut v Knowles [2010] WASC 84 at [49] per Hasluck J.

Assessment of the complaints 47Before addressing Mr Jamal's specific complaints, it is appropriate to say something about Mr Jamal, the nature of the case, and his intelligence and understanding of the case. 48First, as to Mr Jamal, the evidence before Nicholson DCJ revealed that he was a legally qualified practitioner in Egypt before coming to Australia. Although prone to speaking very quickly, the transcript of proceedings before the Local Court and in the District Court, indicates that Mr Jamal had a reasonable command of the English language. On the occasions when an interpreter was present, Mr Jamal made infrequent use of the interpreter. 49Secondly, the nature of a conviction appeal is different to a trial (either before a judge alone or a jury). A conviction appeal is a rehearing on the evidence before the Local Court, together with any fresh evidence that the District Court may admit subject to leave, only if it is satisfied that it is in the interest of justice that such fresh evidence be given: s 18 Crimes (Appeal and Review) Act; Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39 per Mason P (Kirby and Hoeben JJ agreeing) at [17]-[22], [24]. The applicant on the conviction appeal has the onus to satisfy the District Court why such evidence should be permitted. 50In the present case, the material before Nicholson DCJ comprised the transcript of the Local Court proceedings on 10 November 2011, and the two exhibits before the magistrate; being a report from Dr Tanya Singh (who became the victim's doctor in 2005 and was her doctor during the period when the assault was alleged to have occurred), and Dr Singh's notes for the period 28 July 2006 to 19 February 2007. Dr Singh gave an expert witness statement which included that the victim had told her several times about verbal and physical abuse from the applicant, but would not allow Dr Singh to document the injuries in her records. This was because the victim feared Mr Jamal would find out and it would be worse for her and her children. 51Thirdly, as to Mr Jamal's intelligence and understanding of the case, no submissions were advanced on appeal that he was lacking in intelligence, or unable to understand the nature of the proceedings the subject of the conviction appeal. This is unsurprising in view of Mr Jamal's Egyptian legal qualifications. Rather, the submission was made that Mr Jamal was out of his depth in representing himself and in attempting to persuade the Court to accept fresh evidence on the appeal. However, as noted above at [23], counsel for Mr Jamal did not put this submission any higher than that there was a prospect that, if legally represented, better arguments would have been advanced in support of this application to tender further evidence.

Refusal of adjournment and legal representation 52The decision of Nicholson DCJ to refuse the adjournment application was discretionary. The grounds upon which such decisions may be challenged on an appeal (which is not the present application) are confined to those identified in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-505. Thus on an appeal, it would have been necessary to show that the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight or sufficient weight to relevant considerations, or has made a mistake as to the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise that discretion. If the appellate court is satisfied that there has been an injustice to one of the parties as a result of the judge's exercise of discretion, it is under a duty to review the order made: R v Alexandroaia (1995) 81 A Crim R 286 at 290. 53Counsel for Mr Jamal contended that the refusal of an adjournment was a denial of procedural fairness, because Mr Jamal was not given a reasonable chance to present his case on appeal to the District Court with legal representation. 54It may be accepted that it is basic to the rules of procedural fairness that an accused must be given a reasonable chance to present his or her case, which necessarily includes a reasonable opportunity to prepare that case before being called upon to present it. The appearance that justice has been done is particularly important in a criminal trial, but nonetheless some limitation is required to be placed upon the right of an accused to delay his or her trial in order to prepare his case: R v Alexandroaia at 289. 55The same observation may be made in relation to an adjournment to obtain legal representation. There is no general test however, as to where the line should be drawn in every case involving an adjournment application: "each case must really depend upon its own circumstances": R v Alexandroaia at 289. 56It is clear from the transcript of 1 June 2012, that in rejecting the adjournment application, Nicholson DCJ attached primary significance to the timing and context of the application, the utility of an adjournment and the unlikelihood that a legal representative could meaningfully assist Mr Jamal with his submissions based on his Honour's assessment of the transcript and exhibits from the Local Court. In this regard, the following observations can be made. 57First, as to timing and context of the application, the nature of a conviction appeal was a significant factor for his Honour to take into account in refusing the adjournment. Having earlier refused the application to admit further evidence, his Honour was required to determine the appeal based on the evidence from the Local Court, where Mr Jamal was represented. In those circumstances, an adjournment to obtain legal representation was not as significant as it may have been in a different circumstance, such as if it was an application by an unrepresented person prior to a trial by jury. His Honour was entitled to take into account in refusing to grant the adjournment to seek legal representation, that the evidence on which the appeal was to be determined involved a hearing in the Local Court where Mr Jamal was legally represented when the actual evidence against him was called, and his counsel in the Local Court had an opportunity to cross-examine the victim and make submissions on his behalf. 58Secondly, Nicholson DCJ was entitled to regard the application as being significantly late in the proceedings and this was a relevant factor in refusing the application. 59Thirdly, Nicholson DCJ was entitled to take into account the utility of any adjournment application being granted. In this regard, Mr Jamal had not taken any steps to obtain legal representation after the first day of the hearing on 23 March 2012, other than apparently speaking with the Law Society shortly before the date of the adjourned hearing. He told Nicholson DCJ on 1 June 2012 that he could not afford legal representation. No complaint is made to this Court concerning his Honour's observation that it was unlikely that an adjournment would result in Mr Jamal ever being able to fund a legal representative. It is also relevant that Mr Jamal did not seek an adjournment at the beginning of the adjourned hearing on 1 June 2012, as apparently suggested in the letter from the Law Society. He freely chose to continue to represent himself on that day. He only sought an adjournment near the end of the hearing of his appeal, after his application to tender further evidence had been unsuccessful and his Honour was about to give his decision on the appeal. 60Fourthly, Nicholson DCJ was entitled to take the view that any legal representative could not meaningfully assist Mr Jamal with his submissions, based on his Honour's assessment of the transcript from the Local Court. 61The only submission advanced by counsel for Mr Jamal, in this Court was the possibility that a legal representative could have advanced better arguments in support of the application to tender further evidence. This turns on whether the further evidence was relevant and the sufficiency of any explanation for why it had not been sought to be tendered in the Local Court, when Mr Jamal was legally represented. For the reasons given below, there is no merit in relation to the complaint concerning the rejection of the further evidence on appeal. 62In my view, no error has been shown in Nicholson DCJ's exercise of discretion to refuse the adjournment application. Furthermore, there is no substance in Mr Jamal's complaint that the refusal of the adjournment application involved a denial of procedural fairness. No injustice has been demonstrated in this regard.

Refusal to allow an interpreter 63The transcript of 1 June 2012 does not record any specific application by Mr Jamal for an interpreter. However, Mr Jamal appears to have believed that Nicholson DCJ had made a request for an interpreter to be available on that date. 64In these circumstances, Mr Jamal's complaint should be viewed as a failure to ensure a fair hearing because Mr Jamal could not comprehend what was taking place. 65In my view, there is no substance in such complaint. 66First, an examination of the transcript in the Local Court proceedings and the District Court appeal (on 23 March 2012) reveals that when the interpreter was present, there were only infrequent occasions where he was used to interpret what was being said by the Court or the legal representative for the prosecution or during examination in chief and cross-examination of Mr Jamal in the Local Court. When the interpreter was used, this was often at the request of the magistrate in the Local Court proceedings and Nicholson DCJ in the District Court appeal on 23 March 2012. 67Secondly, although the transcript records occasions on both 23 March 2012 (when an interpreter was present) and on 1 June 2012 (when there was no interpreter) where either Mr Jamal made requests that the speaker slow down, or Nicholson DCJ made comments that he had not understood what Mr Jamal had said, it is apparent that his Honour ensured that time was given for further explanation by way of clarification for the benefit of Mr Jamal. 68Thirdly, it would appear from the transcripts of 23 March and 1 June 2012 that Mr Jamal had a reasonable command of the English language. 69Fourthly, when making his application for an adjournment towards the very end of the hearing on 1 June 2012, Mr Jamal advanced this application on the need for legal representation, not the lack of an interpreter. That is, he did not suggest that he did not understand what was occurring. 70Mr Jamal's request for an adjournment to obtain legal representation was undoubtedly promoted by his recognition that Nicholson DCJ was about to deliver his decision on the appeal, in circumstances where Mr Jamal's application to tender further evidence had been unsuccessful. Mr Jamal sought the adjournment to obtain a further opportunity to renew his application to tender further evidence. His Honour was not bound to afford Mr Jamal a further opportunity to apply to tender further evidence on the appeal. 71Fifthly, although Mr Jamal raised with Nicholson DCJ his belief that his Honour had made a request for an interpreter for 1 June 2012, procedural fairness did not necessarily require that an interpreter be made available on that day, or alternatively the hearing be further adjourned. 72His Honour was entitled to take into account his own observations of Mr Jamal's command of the English language both on that date, and on the prior hearing on 23 March 2012 where Mr Jamal had made limited use of the interpreter, and from his review of the transcript of the Local Court, when Mr Jamal had similarly made limited use of the interpreter. 73This complaint should be rejected.

Further evidence application 74Mr Jamal's complaint relates to the rejection by Nicholson DCJ of the tender of the 18 page bundle of documents on 1 June 2012. 75The material which Mr Jamal unsuccessfully attempted to tender was directed to the absence of any complaint by the victim during a five year period, notwithstanding what was submitted by Mr Jamal to have been the opportunity for complaint to have been made to various organisations which the victim had contact with. 76Counsel for Mr Jamal did not complain about the sufficiency of the explanation given by Nicholson DCJ to Mr Jamal, concerning the requirement that further evidence relate to the assault. 77Nor did counsel for Mr Jamal suggest that there was any error in the way in which the judge dealt with the application to adduce further evidence. He accepted that the documents were presented to Nicholson DCJ, and after consideration the judge ruled on the application adversely to Mr Jamal. 78Rather, counsel for Mr Jamal submitted that if Mr Jamal had legal representation at the time of the appeal, there was a prospect that better arguments would have been advanced as to the relevance of these documents. Such "better" arguments were not identified in the course of counsel's submissions. 79There is no substance to this complaint. Mr Jamal was not denied procedural fairness in the way in which Nicholson DCJ dealt with the application to tender further evidence.

Orders 80In my view, Mr Jamal's complaint that he was denied procedural fairness on the hearing of the District Court appeal is not made out. His application for review should be dismissed with costs.

Sentence 81There is one further matter which needs to be addressed. This concerns s 69C and s 69D of the Supreme Court Act, both of which, by virtue of s 69C(1), apply to proceedings in the Supreme Court for judicial review of a determination made by the District Court in appeal proceedings relating to a conviction or order made by the Local Court or a sentence imposed by the Local Court. The present proceedings meet that description. 82The sentence imposed on Mr Jamal by the Local Court and confirmed by the District Court of a conditional good behaviour bond for 12 months was stayed when the proceedings in this Court were commenced by summons filed on 29 June 2012: s 69C(2) Supreme Court Act. 83In his written submissions filed before the hearing of the application, the Director of Public Prosecutions submitted that the Court should exercise its powers under s 69D(1)(b) of the Supreme Court Act to recommence Mr Jamal's sentence in respect of the good behaviour bond. Section 69D provides: "(1) The Supreme Court may order that a conviction, order or sentence that is the subject of proceedings, or any part of it: (a) is to take effect on and from a day specified in the order, or (b) in the case of a sentence that has been served in part, is to recommence on and from a day specified in the order, being the day the order is made or an earlier day. (2) The order has effect even though a stay of execution may have been in force in respect of the sentence that is the subject of the proceedings." 84After the conclusion of the hearing, the Director of Public Prosecutions filed amended written submissions drawing the Court's attention to the erroneous belief underlying his initial written submissions on the issue of sentence. This was that Mr Jamal had in fact entered a bond on 10 November 2011 in accordance with the sentence imposed on that day at the Burwood Local Court following his conviction. An affidavit of Helen Christine Langley sworn 22 October 2013, deposed that her recent inquiries of the District Court Registry at Parramatta and the Registry at Burwood Local Court revealed that neither court held a copy of a signed bond under s 9 of the Crimes (Sentencing Procedure) Act entered by Mr Jamal. 85In light of Mr Jamal's apparent failure to sign the bond as required by order of the Local Court made on 10 November 2011, the Director of Public Prosecutions now seeks an order that the proceedings be remitted to the District Court for Mr Jamal to be dealt with under s 97 of the Crimes (Sentencing Procedure) Act. Section 97 provides: "If: (a) a court makes an order that provides for an offender to enter into a good behaviour bond, and (b) the offender fails to enter into such a bond in accordance with the order, the court may sentence the offender, or convict and sentence the offender, as if the order had not been made." 86It is not appropriate for the Court to remit the proceedings as requested by the Director of Public Prosecutions, without first affording Mr Jamal an opportunity to address this issue. The directions which I propose should be made will afford Mr Jamal that opportunity. I would propose that the question of remittal of the proceedings to the District Court be dealt with on the papers.

Conclusion 87The orders that I propose are: (1)Order that the third amended summons filed 22 January 2013 and the further amended summons filed 9 September 2013 be dismissed. (2)Order that the applicant pay the costs of the Director of Public Prosecutions of the proceedings in this Court. (3)Direct the applicant to file and serve short written submissions by 8 November 2013 on the issue of whether the proceedings should be remitted to the District Court for him to be dealt with under s 97 of the Crimes (Sentencing Procedure) Act. (4)Note that the Court will deal with the issue of remittal of the proceedings to the District Court on the papers. 88LATHAM J: I agree with Gleeson JA.

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: 25 October 2013