Jamal v Director of Public Prosecutions

Jamal v Director of Public Prosecutions - [2019] NSWCA 121 - NSWCA 2019 case summary — Zoe

[4]

Judgment

GLEESON JA: On 16 August 2017, Mr Jon Jamal was convicted in the Local Court at Parramatta of two property offences, both of which were alleged to have occurred between 1.10am and 1.40am on 20 December 2016 at Baulkham Hills.
Mr Jamal had pleaded guilty to the offence of break and enter dwelling house with the intent to commit an indictable offence, by attempting to break and enter a property at Baulkham Hills owned by Mr Marcos Zaki with intent to damage the property of Mr Zaki, contrary to s 113(1) of the Crimes Act 1900 (NSW). He pleaded not guilty to the offence of destroying or damaging property, being a Subaru Outback motor vehicle owned by Mr Zaki, contrary to s 195(1)(a) of the Crimes Act. He was legally represented in the Local Court.
The magistrate imposed the following sentences: 1. on the break and enter offence, a term of imprisonment of 7 months, suspended from 16 August 2017 on condition that he enter into a good behaviour bond for a term of 7 months under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW). 2. on the destroying or damaging offence, a good behaviour bond for a period of 2 years to commence on 16 August 2017 under s 9 of the Crimes (Sentencing Procedure) Act, on condition that he attend for treatment with a psychologist, Mr Robert Matek, or other psychologist in that practice.
Consequent upon the convictions, the Local Court made a final apprehended personal violence order (AVO) against Mr Jamal for 2 years commencing from 16 August 2017, the protected person being Mr Marcos Zaki who lived at the Baulkham Hills property where the offences occurred: s 19(1), Crimes (Domestic and Personal Violence) Act 2007 (NSW). That order was made by consent and without admissions.
Mr Jamal appealed to the District Court against the convictions and sentences and against the AVO. On 29 March 2018, her Honour Judge Culver declined to allow Mr Jamal to withdraw his guilty plea to the break and enter offence, dismissed Mr Jamal's conviction and severity of sentence appeals, and also dismissed his appeal against the AVO.
By his amended summons in this Court, Mr Jamal seeks relief by way of judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) for orders in the nature of certiorari quashing the judgments of Culver DCJ and consequential relief. The first respondent, the Director of Public Prosecutions (NSW), opposed the relief sought.
Mr Jamal requires an extension of the three-month period allowed by the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.10(1) to commence proceedings for judicial review. The short delay in filing the summons within time arose in circumstances where Mr Jamal had lodged, but not filed, a summons and applied for a waiver of payment of the filing fees, which was initially unsuccessful. There is no suggestion of any prejudice to the first respondent, and it is in the interests of justice that an extension be granted.

[5]

The basis of Mr Jamal's application

There is no right of appeal from a decision of the District Court on appeal from the Local Court in a criminal matter. Further, any exercise of the supervisory jurisdiction of this Court is constrained by s 176 of the District Court Act 1973 (NSW), so that it is not sufficient to identify an error of law on the face of the record as a basis for quashing or setting aside an order of the District Court. For review under s 69 of the Supreme Court Act it is necessary for an applicant to demonstrate jurisdictional error: Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10] (Basten, Giles and McColl JJA agreeing); Templeton (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 335 at [3] (Basten, Meagher JJA agreeing) and [15] (Macfarlan JA).
In Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1, the plurality (Kiefel CJ, Gageler and Keane JJ) explained at [24] (citations omitted): To describe a decision as "involving jurisdictional error" is to describe that decision as having been made outside jurisdiction. …. a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as "no decision at all". To that extent, in traditional parlance, the decision is "invalid" or "void".
In Lazarus v Independent Commission Against Corruption [2019] NSWCA 100 at [4] Meagher JA (Basten JA and Sackville AJA agreeing) explained: … there will be jurisdictional error if the District Court in exercising criminal appellate jurisdiction "[misconstrues] the relevant statute thereby misconceiving the nature of the function which [it] is performing or the extent of its powers in the circumstances of the particular case": Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72].
One 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) 239 CLR 531; [2010] HCA 1 at [60]. Such a failure is susceptible to correction as jurisdictional error: Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513 at [10].
On the other hand, 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]; and mere error of fact is, likewise, not jurisdictional error: Ghaderi v Director of Public Prosecutions (NSW) [2018] NSWCA 119 at [11] (McColl JA, Leeming JA and Simpson AJA).

[6]

Relevant legislative provisions

Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both): Crimes (Appeal and Review) Act 2001 (NSW), s 11(1). However, there is no right of appeal, except by leave of the District Court, in respect of a conviction following a guilty plea: ss 11(1A) and 12(1).
An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings: s 18(1). That is subject to the exception provided by s 19 which permits the Court to direct a person to attend and give evidence in proceedings on an appeal against conviction in certain circumstances, which are not presently relevant: s 18(1). Fresh evidence may be given, but only by leave of the District Court, which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given: s 18(2).
The standard of proof of the prosecution case on a rehearing before the District Court is proof beyond reasonable doubt: Evidence Act 1995 (NSW), s 141(1).
An appeal against sentence is also to be by way of rehearing of the evidence given in the Local Court proceedings, although fresh evidence may be given on the appeal: Crimes (Appeal and Review) Act, s 17.
A defendant may appeal to the District Court against the making of an AVO by the Local Court: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 84(2)(a). However there is no right of appeal, except by leave of the District Court, against an AVO that was made with the consent of the defendant: s 84(2)(a). The Crimes (Appeal and Review) Act applies to an application or appeal arising under s 84 of the Crimes (Domestic and Personal Violence) Act: s 84(4).
The standard of proof for the making of an AVO is satisfaction on the balance of probabilities. Section 19(1) of the Crimes (Domestic and Personal Violence) Act provides: (1) A court may, on application, make an apprehended personal violence order if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears: (a) the commission by the other person of a personal violence offence against the person, or (b) the engagement of the other person in conduct in which the other person: (i) intimidates the person, or (ii) stalks the person, being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.
A "personal violence order", as referred to in s 19(1)(a), is defined to include an offence under s 195 of the Crimes Act - destroying or damaging property: s 4(a), Crimes (Domestic and Personal Violence) Act.

[7]

Proceedings in the District Court

Mr Jamal filed a notice of appeal in the District Court on 29 August 2017 against the convictions and severity of sentences and a separate notice of appeal on 22 September 2017 against the AVO. On 12 October 2017, Mr Jamal also filed a motion and an affidavit seeking, in effect, to traverse his plea of guilty to the break and enter charge.
No procedural objection was taken by the prosecutor before the District Court that the appeal against the conviction on the break and enter offence and the appeal against the making of the AVO both required leave: see [13] and [17] above.
The appeals to the District Court were listed for hearing before Culver DCJ on 13 February 2018. The Crown expressly stated that it did not take any issue with the District Court dealing with the application to withdraw the plea of guilty to the break and enter charge and to withdraw the consent to the making of the AVO, in the form of the appeals filed by Mr Jamal. Mr Jamal appeared unrepresented with the assistance of an interpreter. He sought and obtained an adjournment to obtain legal advice. At the adjourned hearing on 29 March 2018, Mr Jamal again appeared unrepresented with the assistance of an interpreter.
The evidence before the primary judge included: 1. The court attendance notices in respect of the two charges; 2. The transcript of the Local Court proceeding on 16 August 2017; 3. The exhibits tendered in the Local Court which included: 1. statements of the investigating police: Constable Mitchell Price, Scene of Crime Officer, Amie Allotta, and Constable Katherine MacKenzie, 2. CCTV footage from the Baulkham Hills property on 20 December 2016; 3. still images from the CCTV footage; 4. ERISP of Mr Jamal dated 9 February 2017; 5. Parts invoice quotation from Trivett Subaru Parramatta for $906.25. 1. Additional material tendered by Mr Jamal comprising evidence obtained on subpoena from NRMA and Suttons (Ex 2) (the complainant's insurer and the car mechanic from which the complainant obtained a quote respectively) and the COPS entry in respect of the incident (Ex 3).

[9]

Evidence before the Local Court - 16 August 2017

Constable Price gave evidence that he attended the Baulkham Hills property on 22 December 2016 at about 2pm and spoke with the owner, Mr Zaki, who showed him the CCTV footage captured on two different cameras located on the property, one at the front of the property and the other at the rear. Constable Price described the CCTV footage as showing: a man entering the property at around 1.10am on 20 December 2016, after which: … the man attempts to open the front door and then proceeds to go around the back and attempt to open the rear door; the man then returns to the front of the property and attempts to open the front window with a hand-held tool. The man then appears to give up trying to gain entry into the window and cracking noises can be heard as the man nears the vehicle belonging to Mr Zaki which was parked on the driveway.
Constable Price agreed that there was no fingerprint match between Mr Jamal's fingerprints and the fingerprints obtained at the scene. In cross-examination, Constable Price gave evidence that the two side view mirrors had been snapped and removed and taken out and the rear windscreen wiper, whilst still attached to the car, was snapped.
Senior Constable Allotta gave evidence that she attended the Baulkham Hills property at about 12.25pm on 22 December 2016, spoke with the complainant, Mr Zaki, and took photographs of the property and the Subaru vehicle. She said that she observed damage to the two flyscreens attached to the front-facing lounge room windows, damage to both side mirrors of the Subaru vehicle, in particular, they did not contain any mirror panels in the mirror units and the wiring was exposed. In addition, the rear wiper blade was cracked.
The statement of Senior Constable MacKenzie exhibited the photographs taken from the CCTV footage which were shown to Mr Jamal during his record of interview.
The complainant, Mr Zaki, gave evidence that he and his family were away on holidays between 9 December and 22 December 2016 and on their return, he was informed by his father-in-law that his house had been broken into. Mr Zaki then reviewed the CCTV footage and described what he saw recorded at around 1.13am-1.15am on 20 December 2016. It is unnecessary to summarise this evidence in view of the summary given by Constable Price.
Mr Zaki said that initially he did not recognise the person in the CCTV footage and then he looked closer and he thought, "I think I know this person". After speaking with some friends who confirmed that he had the right person in mind, Mr Zaki said he identified the person as Mr Jamal who was known to him by a different name, as a person who had attended the Coptic Church at Rhodes where his father was the priest.
Mr Zaki gave evidence that he initially obtained a quote for the repairs to the Subaru for $900 and had recently obtained a quote from Suttons for $2,500. He explained the difference was that the original quote was only to replace the glass, whereas the more recent quote was to replace the whole mirror given that the connectors and the wires were missing or torn. Mr Zaki rejected the proposition put by the legal representative for Mr Jamal that he had caused further damage to the motor vehicle when attempting to repair the damaged side view mirrors.
Mr Jamal gave evidence in his defence. In his evidence-in-chief, when taken to the incident on 20 December 2016 at 1.10am he immediately responded through the interpreter, "I don't remember anything". After being shown photographs taken from the CCTV footage, he maintained, "I don't remember anything". When taken to extracts from his record of interview, Mr Jamal responded: Yes, I, that's me, I'm telling you that's a me, yes. I can't refuse it. That's my photos I can't say no.
When asked to explain why he was in the CCTV footage, Mr Jamal responded: I think this video is duplicated.
Mr Jamal maintained that he had never been to the Baulkham Hills property and had not encountered a vehicle belonging to Mr Zaki. However, he also gave evidence that he did not recall what happened on the night.

[12]

Conviction appeal - destroying or damaging property

Her Honour stated that she approached the conviction appeal on the basis that it was not necessary for Mr Jamal as the appellant to demonstrate error by the magistrate. Her Honour took the approach of considering the available evidence and determining whether the prosecution could sustain guilt beyond reasonable doubt of the offence, that is, whether each and every element of the offence had been proven.
After noting that Mr Jamal did not dispute that damage was caused to the complainant's vehicle, the primary judge addressed Mr Jamal's contentions that the evidence did not support a finding beyond reasonable doubt that he had caused such damage. Her Honour found that nothing turned on the different times at which police officers attended the complainant's premises to investigate the crime scene, the first such attendance being on 22 December 2016. While the three fingerprints that were found on the damaged parts from the vehicle did not include Mr Jamal's fingerprints, her Honour found that this was neutral given that Mr Jamal did not need to touch any particular item of the vehicle when causing damage.
Her Honour rejected Mr Jamal's contention that the complainant had attempted to claim further damage to the vehicle as being the responsibility of Mr Jamal, because the repair quote given to the NRMA included an item for painting as part of the repairer's quote. Her Honour found that given the evidence of the damage to parts of the vehicle there may well need to have been some sort of paint work in respect of damage to the side mirrors.
Her Honour rejected Mr Jamal's contentions that the CCTV footage taken from the camera outside the house of the complainant was of a dubious origin or that the complainant had photo-shopped images of Mr Jamal into images of the complainant's property. Her Honour noted that Mr Jamal conceded that he was depicted in the CCTV footage and that he did not remember being at the Baulkham Hills property, but at no stage did he give evidence that he was never at the property.
Her Honour was satisfied that the police attended the complainant's premises and retrieved the CCTV footage and found that the integrity of the CCTV footage had not been in any way impugned. While the CCTV footage did not show Mr Jamal actually damaging the complainant's vehicle, her Honour found that the footage revealed Mr Jamal being present at the complainant's property at a point in time when the sound on the footage was entirely consistent with the vehicle being damaged in the way it was damaged and the vehicle had previously been left totally intact with respect to mirrors and the back wiper before the damage was discovered on 20 December 2016 by the complainant's father-in-law.
Her Honour concluded that the prosecution had made out its case beyond reasonable doubt, the only available inference being that the damage was intentionally inflicted by Mr Jamal.

[15]

Mr Jamal's complaints

Mr Jamal was self-represented in this Court. He appeared with the assistance of an interpreter, although in the main he addressed the Court directly in English. In his written submissions Mr Jamal identified six grounds, which were expanded upon in his supplementary written submissions dated 28 March 2019. The following issues are raised: 1. Whether the District Court failed to exercise its jurisdiction to conduct an appeal by way of rehearing by: 1. approaching the conviction appeals on the basis that it was necessary to find error in the reasons of the magistrate and that the onus was on Mr Jamal to satisfy the District Court in this regard (ground 1); 2. not reviewing any evidence (ground 3); 3. failing to give adequate reasons for its decision (ground 5). 1. Whether the District Court should have found that the convictions were based on insufficient evidence, including in the form of CCTV footage and photos which had been "corrupted" and not been properly investigated by the police, and in some way this involved jurisdictional error (ground 2); 2. Whether Culver DCJ should have disqualified herself for apprehended bias on the ground of prejudgment or actual bias (ground 4). 3. Whether Culver DCJ failed to afford Mr Jamal procedural fairness in the District Court (ground 6). This failure was particularised as follows: A. Refused the applicant to afforded (sic) the opportunity to present his case at the hearing of his case in 29/3/2018. B. Refusing the applicant evidence and described it, as new evidence but it's not. C. Refused to take in her account or to read the applicant written submission and what outcome of the NRMA subpoena document. D. Struck off all applicant ground of appeals without applicant consent.
Insofar as Mr Jamal's submissions included complaints about the conduct of proceedings in the Local Court, the orders of the Local Court are no longer open to challenge. The "all grounds" appeals to the District Court have resulted in orders of that Court which supersede the orders made in the Local Court: Templeton (a pseudonym) v Director of Public Prosecutions (NSW) at [4], citing Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8; Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 at [32] (Meagher JA, Beazley ACJ and Macfarlan JA agreeing); Firth v Director of Public Prosecutions [2018] NSWCA 78 at [25]; Dyason v Butterworth [2015] NSWCA 52 at [34] (McColl JA, Barrett and Gleeson JJA agreeing).
In accordance with Concrete Pty Ltd v Parramatta Design and Development Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2], [117] cf [172], the issue of bias and, by extension, procedural fairness will be addressed first. Given the outcome of these grounds of appeal, it is not necessary to address the internal inconsistency with what Kirby and Crennan JJ said at [117] and their general agreement with the remarks of Callinan J, see in particular at [172]. See also Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 at [9] (Basten JA).

[19]

Actual bias

In Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [12], the following summary of principles was stated: [68] A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited. [69] Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was "so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented": Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127]. [70] As Gleeson CJ and Gummow J observed in that case at [71]: The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. [71] In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case. [72] His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded. [73] The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (Bilgin v Minister) (1997) 149 ALR 281 at 289-290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290: The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned.

[21]

Procedural fairness

Mr Jamal also asserted that he was denied procedural fairness because he was not given a fair hearing in the District Court on 29 March 2018. The particulars of this complaint have been set out at [51(4)] above.
The complaint that her Honour refused Mr Jamal an opportunity to present his case is not borne out on a fair reading of the transcript. At the commencement of the hearing, recognising Mr Jamal's difficulties with the English language and that he was unrepresented, her Honour stated that if he did not understand anything, or if he needed to leave the courtroom to make a telephone call to a lawyer, he should let her know. While her Honour did later indicate on two occasions that Mr Jamal needed to "wrap up" his submissions with respect to the appeal against conviction on the destroying or damaging property offence, there was no unfairness in her Honour identifying for Mr Jamal those aspects of his submissions that were repetitive or not relevant.
The complaint that her Honour refused to accept Mr Jamal's further evidence is not a fair reflection of what occurred at the hearing. It is correct that early in the hearing, her Honour did not formally accept certain documents sought to be relied upon by Mr Jamal, indicating that they were not relevant to the application which her Honour was then dealing with, namely, the withdrawal of the guilty plea in respect of the break and enter offence. However, as mentioned, her Honour subsequently received those documents when dealing with the conviction appeal against the destroying or damaging property offence.
Insofar as her Honour described this material as "fresh" evidence when Mr Jamal complains that it was not, the characterisation of the subpoenaed material as fresh evidence or further evidence is immaterial, given that the prosecution did not object to the District Court receiving this further evidence on appeal.
As to the complaint that her Honour ignored the material subpoenaed from the NRMA, this should be rejected given that in the second judgment her Honour took into account and expressly addressed the matters raised in Mr Jamal's written submissions concerning the probative value of the documents from NRMA and Suttons. Her Honour rejected Mr Jamal's submission that Mr Zaki had made a claim for painting which extended beyond the damage to the two side mirrors and the rear window wiper, finding: It is evident from the photographs of the damage that there may well need to be some sort of paint work in respect of the damage to the mirrors.
Whether or not that factual finding was correct, it did not involve jurisdictional error.
As to the complaint that her Honour struck out all of his grounds of appeal without his consent, this complaint goes nowhere. Mr Jamal was afforded a reasonable opportunity to present his appeals by way of oral submissions, in addition to his written submissions, and by tendering further evidence. That Mr Jamal was unsuccessful does not mean that there was a failure to afford him a fair hearing. The assertion of a denial of procedural fairness is not made out.

[23]

Conviction appeals

Mr Jamal submitted that there was jurisdictional error by the District Court by way of a constructive failure to exercise its jurisdiction on appeal because her Honour did not proceed by way of rehearing. The submission continued that her Honour adopted the erroneous approach of requiring Mr Jamal to demonstrate error in the Local Court and that the onus was on Mr Jamal to satisfy the District Court in this regard. This submission should be rejected.
Her Honour did not approach the conviction appeals on the basis that Mr Jamal had to establish error in the Local Court. Nor did her Honour apply the incorrect standard of proof. In her second judgment dealing with the conviction appeal against the destroying or damaging property offence, her Honour said: This Court does not have the role on appeal of determining whether there is any error made by the magistrate. Instead, this Court looks at the available evidence and determines whether the prosecution can sustain guilty beyond reasonable doubt of the offence, that is, whether each and every element of the offence has been proven.
Her Honour's approach to the conviction appeals - that there was no need for Mr Jamal to establish error by the Local Court - was the most favourable approach for Mr Jamal. It is consistent with the view of Simpson JA in AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 at [75]-[76] that an appeal under s 11 of the Crimes (Appeal and Review) Act is not limited to the identification of error in the Local Court and is not determined simply by concluding that no error has been demonstrated on the part of the Local Court magistrate. This is to be contrasted with the judgment of Basten JA, in which his Honour indicated a preference for the view that the District Court's power to set aside a conviction depends upon a finding of error by the Local Court (at [12]). Sackville AJA stated that he preferred not to express an opinion until it is necessary to do so: at [110]. It is not necessary to address these differences of view.

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Judgment (31 paragraphs)

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Legislation Cited (9)

Cases Cited (42)