Khatib v Director of Public Prosecutions

HEADNOTE [This headnote is not to be read as part of the judgment] Following a trial in the Local Court, on 14 July 2021, the applicant, Mr Basil Esam Khatib, was convicted on one charge of sexual touching contrary to s 61KC(a) of the Crimes Act 1900 (NSW). The conduct the subject of the charge occurred during the course of the applicant's former employment as an Ola Rideshare driver. It was the prosecution's case that, early in the morning of 19 September 2020, the applicant persistently stroked the thigh of the complainant and attempted to hold her hand while driving her from Newtown to her home in Freshwater, knowing or being reckless to the fact that she was not consenting to that contact. The prosecution also alleged that the applicant had forced part of the cash fare agreed by the parties as the price of the trip between the complainant's legs when she refused to receive it from the applicant. The applicant was represented by counsel at trial and did not give evidence. An electronically recorded interview conducted at Auburn Police Station between detectives and the applicant was adduced into evidence. On the strength of the complainant's evidence, which was corroborated by the evidence of her father and by contemporaneous text messages sent to her friends, the magistrate found that the prosecution had proven the offence beyond reasonable doubt and entered a conviction against the applicant. Pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW), the applicant appealed as of right against his conviction to the District Court. On the appeal, the applicant was represented by senior and junior counsel. Primarily, counsel conducted the applicant's appeal on the basis that the account of events proffered by the applicant in his interview with police gave rise to a reasonable doubt as to his guilt. As at trial, no issue was taken with the fact that, if the complainant's account of events were accepted, the conduct that had occurred answered the description of "sexual touching" in s 61HB of the Crimes Act. Prior to the delivery of judgment, which was anticipated to be given the following day, the applicant sacked his counsel and overnight provided his own written submissions, without leave, to the primary judge. Those written submissions contained matters that the applicant asserted his counsel had failed to raise on his behalf, and were predominantly concerned with supposed inconsistencies in the complainant's evidence and alleged misconduct on the part of the magistrate in the conduct of the trial. Having considered the applicant's self-authored submissions, the primary judge confirmed the conviction entered in the Local Court and dismissed the applicant's appeal. On the record before the District Court, and by recourse to the magistrate's reasons, the primary judge found the complainant to be an entirely persuasive and compelling witness, whose evidenced was corroborated and given in a measured manner. The primary judge directed herself pursuant to s 293A of the Criminal Procedure Act 1986 (NSW) as to inconsistencies in the complainant's account, which her Honour found not to impact upon the complainant's credit, and pursuant to s 66 of the Evidence Act 1995 (NSW) in respect of the complaint evidence given by the complainant's father. The primary judge further found that the alternative account of events given by the applicant in his interview with police was marred by inconsistencies, evasive and vague in nature, and was both implausible and absurd. No appeal lay from the primary judge's dismissal of the applicant's appeal against conviction. By reason of s 176 of the District Court Act 1973 (NSW), the grounds of judicial review were confined to jurisdictional error. On the applicant's application for judicial review of the decision of the District Court, the issues before the Court were: (i) Whether a reasonable-minded lay observer might consider that the primary judge might not have brought an impartial mind to the applicant's appeal, arising from the primary judge's intimation that her Honour intended to direct herself in accordance with s 293A of the Criminal Procedure Act and to apply s 66 of the Evidence Act; (ii) Whether the primary judge had denied the applicant procedural fairness in the hearing of the appeal, both in refusing to be addressed personally by the applicant at a time at which he was represented by counsel and by making observations as to the perceived ages of the applicant and complainant in the absence of evidence on that matter; (iii) Whether the primary judge had constructively failed to exercise jurisdiction by failing to respond to a number of substantial and clearly articulated arguments, raised by the applicant in his self-authored submissions; (iv) Whether the primary judge had mistakenly denied the existence of the District Court's criminal appellate jurisdiction by accepting the prosecution's submissions on the applicant's credit and by giving herself a direction under s 293A of the Criminal Procedure Act, in circumstances where the applicant's appeal was prescribed to be by way of rehearing rather than an appeal de novo; (v) Whether the primary judge had purported to make a finding of fact said to be relevant to the commission of the offence in the absence of an evidentiary basis for such finding; (vi) Whether the primary judge had made a legally unreasonable or irrational finding of fact as to the commission of the offence; and (vii) Whether the primary judge had made sufficiently serious errors of law in the conduct of the appeal, including by entertaining and disposing of the matter in the absence of a jurisdictional fact, said to be the mens rea for an offence of sexual touching. The Court (per White JA, Simpson and Griffiths AJJA agreeing), dismissing the application for judicial review, with costs, held: As to issue (i): (1) No reasonable-minded lay observer would have considered the primary judge's intimations that her Honour would direct herself in accordance with s 293A of the Criminal Procedure Act and s 66 of the Evidence Act might entail that her Honour might not bring an impartial mind to the resolution of the appeal. Far from evincing prejudgment, the primary judge's exchanges with counsel on these matters demonstrated that her Honour was dealing with the issues raised by the appeal: [39]-[47] (White JA); [101] (Simpson AJA); [102] (Griffiths AJA). As to issue (ii): (2) The primary judge was right to refuse the applicant leave to address the Court personally when he had legal representation. Such an approach avoided splintered advocacy and prevented the potential advancement of untenable submissions that might have borne upon the applicant's credit. Moreover, a party to litigation is ordinarily bound by the conduct of his or her counsel and the manner in which counsel chooses to conduct and present the party's case to the Court. In any event, the primary judge considered the applicant's self-authored submissions. There was no denial of procedural fairness: [48]-[53] (White JA); [101] (Simpson AJA); [102] (Griffiths AJA). Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29, applied. Malouf v Malouf (2006) 65 NSWLR 449; [2006] NSWCA 83, followed. (3) There was no procedural unfairness in the primary judge's observation that the applicant was an "older driver" who was driving the complainant home. Whether or not the primary judge was mistaken about the difference in age between the complainant and the applicant, there was no denial of procedural fairness. Nor was any error in that regard a jurisdictional error as the issue of the applicant's and complainant's ages was neither a central or critical element in the disposition of the appeal nor raised as a clearly material issue for determination by the primary judge: [54]-[56] (White JA); [101] (Simpson AJA); [102] (Griffiths AJA). Day v SAS Trustee Corporation [2021] NSWCA 71, cited. As to issue (iii): (4) There was no error in the primary judge's not expressly referring to, and dealing with, the applicant's contention that the magistrate had impermissibly interfered with the complainant's examination-in-chief, in circumstances where such contention was not raised by the applicant's counsel and was advanced for the first-time, faintly, in the applicant's submissions filed without leave at the conclusion of the appeal: [58]-[65] (White JA); [101] (Simpson AJA); [102] (Griffiths AJA). (5) There was no error in the primary judge failing to give reasons with reference to the facts concerning the mens rea of an offence of sexual touching and the complainant's lack of consent. Those matters were the subject of explicit concession both at trial and at the hearing of the appeal, such that no constructive failure to exercise jurisdiction could be established by the primary judge acting upon the basis of that concession: [66]-[67] (White JA); [101] (Simpson AJA); [102] (Griffiths AJA). (6) There was no error in the primary judge's failing to respond to an argument advanced by the applicant that there was no evidence supporting the contact alleged by the complainant when the complainant had given evidence of that contact, nor in failing to respond to a submission that the applicant was denied procedural fairness by the magistrate on an issue that had not been raised at trial: [68], [71]-[73] (White JA); [101] (Simpson AJA); [102] (Griffiths AJA). (7) There was no error in the primary judge rejecting the applicant's submissions that the inconsistencies in the complainant's evidence undermined her credibility and that the magistrate had interfered with the complainant's cross-examination so as to prevent the giving of exculpatory evidence. Those submissions were only raised in the applicant's unauthorised submissions and consisted of unsubstantiated assertions rather than substantial clearly articulated arguments: [69], [74]-[78] (White JA); [101] (Simpson AJA); [102] (Griffiths AJA). As to issue (iv): (8) Acceptance of the prosecution's submissions on the appeal as to the credibility of the account proffered by the applicant in his interview with police did not involve a mistaken denial of the District Court's criminal appellate jurisdiction. The primary judge did not simply accept the prosecution's submissions without satisfying herself as to their accuracy, but even if any parts of her Honour's findings were not substantiated by the interview itself that would not amount to jurisdictional error: [84]-[86] (White JA); [101] (Simpson AJA); [102] (Griffiths AJA). (9) While s 293A applies in terms only to directions to be given to a jury in proceedings in respect of prescribed sexual offences, the primary judge was tasked with determining whether the magistrate had committed error in accepting the complainant's evidence. In so determining, the primary judge had to consider whether asserted inconsistencies in the complainant's evidence indicated that the substance of her complaint was untruthful and that the magistrate should have so found. It was, thus, appropriate for the judge to have reminded herself of s 293A in making that determination: [88]-[90] (White JA); [101] (Simpson AJA); [102] (Griffiths AJA). As to issue (v): (10) A finding of fact for which there is no evidence is an error of law, but it is not on that account a jurisdictional error, a judge having jurisdiction to make errors of both fact and law. In any event, the alleged error on the part of the primary judge had not in fact been committed: [81]-[82] (White JA); [101] (Simpson AJA); [102] (Griffiths AJA). NRMA Insurance Ltd v Ainsworth [2011] NSWCA 292; (2011) 59 MVR 195, followed. As to issue (vi): (11) In circumstances where the applicant's challenge to the impugned finding of fact involved no more than a challenge to a finding of fact based on acceptance of the complainant's evidence, there was no legal unreasonableness or irrationality disclosed: [79] (White JA); [101] (Simpson AJA); [102] (Griffiths AJA). As to issue (vii): (12) No error of law was disclosed by the primary judge acting on counsels' concession that if the complainant's account of events were accepted, then the touching alleged would meet the description of sexual touching for the purposes of s 61HB of the Crimes Act. Even if the judge were wrong in deciding that that contact constituted sexual touching, that would be an error within jurisdiction: [92]-[93] (White JA); [101] (Simpson AJA); [102] (Griffiths AJA). (13) The presence or absence of mens rea is not a jurisdictional fact upon which the Court's power to convict is enlivened. Rather, it is a fact within the jurisdiction of the Court to determine: [95]-[98] (White JA); [101] (Simpson AJA); [102] (Griffiths AJA). (14) The primary judge did not err in failing expressly to state the elements of the offence, nor in having no regard to s 106 of the Evidence Act: [99] (White JA); [101] (Simpson AJA); [102] (Griffiths AJA).

JUDGMENT

1. WHITE JA: This is a summons for judicial review of an order of a judge of the District Court (Judge O'Rourke SC) dismissing an appeal by the applicant from his conviction on 14 July 2021 in the Local Court on a charge of sexual touching (Crimes Act 1900 (NSW) s 61KC).
2. The appeal to the District Court was by way of rehearing on the basis of the evidence given in the Local Court (Crimes (Appeal and Review) Act 2001 (NSW) s 18).
3. No appeal lies from the orders of the District Court. By reason of s 176 of the District Court Act 1973 (NSW), judicial review in the supervisory jurisdiction of the Supreme Court is confined to review on the grounds of jurisdictional error.
4. The applicant was an Ola Rideshare driver. The complainant gave evidence that, in the early hours of 19 September 2020, whilst the applicant was driving her from Newtown to Freshwater, she was sitting in the passenger seat of the car. They agreed that the applicant would drive her to her home in Freshwater for $35, which was the amount of cash that she had available. During the trip, the applicant started touching her leg and trying to hold her hand. The applicant stroked the top and side of her right leg with his left hand whilst her hands were in her lap holding her phone. She placed the $35 in cash in a centre console and the applicant took $10 and tried to put it in her hands. She placed the $10 in the passenger door trim and when they were stopped at a set of lights he leant over and took the note and put it back between her legs.
5. The Local Court magistrate accepted the complainant's evidence. The applicant did not give evidence. The transcript and video of his electronically recorded interview with police at the Auburn Police Station on 24 September 2020 was tendered. The magistrate found that the applicant's version of events in that interview did not give rise to a reasonable doubt. Her Honour found that the applicant's version was not credible and was untruthful. She gave extensive reasons for that conclusion.
6. The applicant appealed from his conviction to the District Court. Judge O'Rourke SC directed herself as to the nature of the appeal in accordance with Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39 at [17]-[22]; Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245; (2017) 269 A Crim R 298 at [69]; and McNab v Director of Public Prosecutions (NSW) (2021) 106 NSWLR 430; [2021] NSWCA 298 at [24] and [83]-[90]. Her Honour gave herself a direction pursuant to s 293A of the Criminal Procedure Act 1986 (NSW) as to any inconsistencies in the complainant's account.
7. Like the magistrate, the judge also found that the evidence of the complainant was entirely persuasive and compelling (at [24]) and was strongly supported by the evidence of her father (at [25]) to whom the applicant made a complaint when the facts were fresh in her memory (Evidence Act 1995 (NSW) s 66). The father's evidence of the complaint was unchallenged. Her Honour said that she took into account inconsistencies in the complainant's account for which the applicant contended, which she regarded as immaterial, and found the Crown case to be overwhelming and satisfying her beyond reasonable doubt that the applicant did what he was alleged to have done on the basis of the complainant's evidence. Her Honour then considered whether the applicant's version of events in his interview with police raised a reasonable doubt as to his guilt. She gave reasons as to why it did not. Her Honour described various inconsistencies in the applicant's interview, both between what he said at different parts of the interview, and with some objectively observable facts (eg at [43]).
8. The applicant raises 16 grounds of review, which may be grouped as follows.

Apprehended bias: Ground 9

1. Ground 9 asserted apprehended bias on the part of the judge. The applicant contended that: "…the judge showed interest in convicting the appellant because she suggested sect 293A and sect 66 from the bench to the crown to use and apply them in the case that goes against the appellant case [sic] even though these acts were not mentioned in the crown submissions in which [sic] didn't give the appellant enough time to reply."

Denials of procedural fairness (Grounds 3, 4, 5, 6, 11 and 12)

1. Ground 3 asserted that there was a denial of procedural fairness because the judge erred by finding that the magistrate did not commit an error of law by putting words in the complainant's mouth and leading her in examination-in-chief. This was also said to be a constructive failure to exercise jurisdiction. As a ground of denial of procedural fairness, it goes nowhere as it is not a complaint about the procedure at the hearing in the District Court. In the District Court, the applicant was represented by senior and junior counsel. They made no submission on the question. This ground is considered below in relation to the grounds asserting a constructive failure to exercise jurisdiction.
2. Ground 4 asserted a denial of procedural fairness because the judge refused to hear the applicant at the end of the hearing and said "no" when he asked if he could say something. This was at a time when he was represented by counsel.
3. Ground 5 asserted a denial of procedural fairness because it is said that "the judge had incorrect external information (which is not in evidence) concerning the age of the complainant which affected her final judgment".
4. Ground 6 asserted a denial of procedural fairness in that, so it is said, the judge failed to respond to a substantial, clearly articulated argument, relying upon established facts. The alleged failure was that the judge did not address submissions concerning the asserted failure by the magistrate to give reasons concerning whether the elements of the offence were not made out by reason of either an absence of mens rea or because the complainant consented to the conduct constituting sexual touching. Again, this is not an allegation of denial of fairness in procedure and will be considered under the heading of "Constructive failures to exercise jurisdiction" below.
5. Grounds 11 and 12 also asserted failures to respond to allegedly substantial, clearly articulated arguments, and will be dealt with under the heading immediately below.

Constructive Failures to Exercise Jurisdiction: Ground 3, 6, 11, 12, 14 and 15

1. Ground 3 asserted that the judge failed to address the applicant's submission that the magistrate had asked the complainant leading questions during her examination-in-chief and put words in the complainant's mouth.
2. Ground 6 is referred to at [13] above.
3. Ground 11 asserted that the judge failed to address the applicant's submission that the magistrate's finding was not supported by any evidence concerning stroking of the complainant's inner thigh on the Harbour Bridge.
4. Ground 12 asserted that the judge did not address the applicant's submission concerning a part of the complainant's evidence where it is said that the complainant made contradictory statements and gave conflicting answers during cross-examination.
5. Ground 14 asserted that the judge did not rule on the applicant's submission that the magistrate stopped the complainant from giving evidence about a contemporaneous message "all good Josh" which, so it was contended, would disprove the elements of the alleged offence.
6. Ground 15 asserted that the judge failed to address the applicant's denial of procedural fairness submissions and apprehension of bias submissions on the part of the magistrate concerning the magistrate's alleged interference with cross-examination of the complainant which resulted in the complainant's changing her evidence.

Irrationality or legal unreasonableness: Ground 7

1. Ground 7 asserted that the judge made an irrational or legally unreasonable finding of fact, namely, that the applicant had sexually touched the complainant's inner thigh in circumstances where she was seated with her hands on her lap such that the stroking of her thigh would be impossible as her forearm was blocking her thigh.

No evidence for a finding of fact: Ground 10

1. Ground 10 is related to ground 14. It asserted that it was not open for the judge to make her finding that the message "all good Josh" had been sent before the car was travelling on the Harbour Bridge.
2. Plainly, this ground does not raise a question of jurisdictional error, even if the finding were erroneous.

Misapprehension of the nature and limits of the primary judge's function and mistaken denial of jurisdiction: Grounds 1 and 2

1. Ground 1 asserts that the judge relied on inaccurate Crown submissions to discredit the applicant instead of relying on evidence given in the Local Court and thus did not conduct the appeal by way of rehearing on the basis of the evidence given below.
2. Ground 2 asserted that the judge misapprehended the nature of the appeal by giving herself a direction under s 293A of the Criminal Procedure Act where the appeal was not a de novo appeal and that the direction was only required to be given during the original trial.

Errors of law in the conduct of the appeal: Grounds 8, 13 and 16

1. Ground 8 asserted that the judge erred in finding that the alleged stroking of the top and right side of the complainant's thigh met the legal definition of sexual touching in the Crimes Act (s 61HB(2)(a) and (b)).
2. Ground 13 asserted that both the magistrate and the judge failed to address the mens rea requirements for proving an offence under s 61KC(a) of the Crimes Act and failed to give adequate reasons as to how they were satisfied beyond reasonable doubt that the complainant did not consent at the time of committing the alleged offence.
3. Ground 16 asserted that the judge failed to have regard to s 133(2) of the Criminal Procedure Act by not mentioning the elements of s 61KC(a) of the Crimes Act, and did not consider s 106(a) and (e) of the Evidence Act concerning witness reliability and credibility where the prosecution case relied on a single witness.

Hearing in the District Court

1. As has been noted, the applicant was legally represented in the Local Court and in the hearing in the District Court. At the conclusion of the hearing in the District Court the applicant said: "APPELLANT: Your Honour, I wish to say something. HER HONOUR: No. APPELLANT: No. HER HONOUR: I'll give judgment at 10 o'clock tomorrow morning."
2. That evening, the applicant, without leave, sent an 18 page submission to the judge.
3. A party has no right, without leave, to make additional submissions in writing after the conclusion of the hearing of an appeal. The judge could properly have ignored the submission. The Crown had had no opportunity to respond to it. The judge nonetheless considered the submission. Her Honour said: "[16] In the meantime, from the time of the hearing yesterday, I understand that Mr Khatib has sacked his counsel and his solicitor, and has submitted some further submissions which I obtained yesterday and I have read this morning. They included in summary, the contradictions of what he said and inconsistencies in the complainant's evidence and he has outlined those. Some of those he raised include, that for example, she gave evidence that the accused placed money between her legs in the excess of the ten dollars while her legs were pressed together, submitting how could that have occurred. [17] Further, he outlined certain parts of the evidence given and outlined why he says that that is inconsistent with her evidence - for example that she gave him her actual address and yet in his phone, the only address that was put in there was Wxxx Avenue which is not the house number. [18] He then goes on to various other aspects of her evidence that she has given and submits that it demonstrates her inconsistency, placing particular emphasis on the address that was given and outlines the evidence in relation to that. Further, he relies on the text messages that were sent to Josh, for example "Sorry Josh I worked it out, don't stress I called Hanna but it's all good" that was at 2.43am, and then her asking him to please call me at 2.56am, indicating and submitting that these text messages and calls, do not add up. That the CCTV demonstrated that they left the store between 2.31am and 2.33am. [19] He submitted that her evidence demonstrated that she was not effectively a credible witness in relation to various aspects. He also submitted that the findings made by the magistrate were not supported by evidence and he refers, he says, to the transcript in relation to those areas and he has set them out. Finally, he submits that the magistrate was 'putting words in the complainant's mouth' and stopped certain evidence from being given concerning the text message sent from her phone to her friends which he said was crucial. He also then outlines various aspects of the law and that she now has a motive to make up these accusations against the accused. I have read those submissions."
4. Although the applicant had legal representation in the Local Court and the District Court, he appeared for himself in this Court. It is clear from his formulation of grounds of review that he was cognisant of the fact that judicial review lay only on the grounds of jurisdictional error and sought to bring his application on those grounds.
5. For the reasons which follow, no jurisdictional error is established. In substance, the applicant seeks merely to challenge the findings of fact in the Local Court and the District Court.

The Judge's Reasons

1. O'Rourke SC DCJ directed herself that an appeal to the District Court under s 18 of the Crimes (Appeal and Review) Act requires a demonstration of factual, legal or discretionary error which refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected or, put negatively, that the trial judge's decision should not be set aside unless the appellate judge is satisfied that the judgment is wrong. Her Honour also said that a miscarriage of justice warranting intervention may occur in the absence of error in the ordinary meaning of that term and that the requirement that the appellant demonstrate error does not reverse the onus of proof. The prosecution at all times bore the onus of establishing guilt beyond reasonable doubt. The extent of the review of the evidence depends on the circumstances of each case and the kind of error alleged. It is clear that the judge reviewed the whole of the evidence before the Local Court.
2. The applicant does not challenge the judge's directions as to the nature of the appellate review.
3. After reviewing the facts, the judge addressed the submissions made by Mr Özen SC for the applicant, and, as indicated above, also addressed the submissions made by the applicant personally after judgment had been reserved.
4. Her Honour said: "[20] The central issue is whether the Crown can prove beyond reasonable doubt that on that journey from the city to Freshwater the accused sexually touched the complainant. There is no issue that what has been alleged would amount to the legal definition of 'sexual touching'. The Crown submitted in a nutshell, but with comprehensive written and oral submissions, that the conviction was sound. It was submitted that the evidence of the complainant was persuasive, and it was supported by other evidence in the Crown case, and that the said inconsistent version provided by the appellant in his ERISP did not raise a reasonable doubt. [21] I have listened to the ERISP which is quite lengthy, and I have read all of the evidence that was given in court on 3 May 2021, and I have also read the comprehensive and detailed reasons of the learned magistrate given on 14 July 2021. Whilst appreciating that the learned magistrate had the advantage of seeing and hearing the witnesses give their evidence in person and could use their demeanour and manner in answering questions, the time they took to answer questions, it also appears to me that an assessment of the witness's evidence can be adequately gleaned from the reading of the transcript of the evidence. [22] I have also viewed the exhibits, including the photographs and the text messages sent between the complainant and her two friends named Joshua and Hanna. I have also read the submissions prepared by the appellant's legal representatives and his own and the Crown's written submissions. In my consideration of the evidence, I also remind myself that the onus of proof is borne upon the Crown and the standard of proof is beyond reasonable doubt. This, of course, is not altered by the fact the appellant elected not to give evidence and he exercised his right to silence. [23] I also remind myself that if I was to reject the account of the appellant given in his ERISP then that does not mean his guilt has been determined. The onus still rests upon the Crown to prove its case beyond reasonable doubt. I further remind myself that I am not comparing versions and it is simply not a matter of picking the version I prefer. At all times the onus lies upon the Crown. [24] I also give myself a direction pursuant to s 293A of the Criminal Procedure Act as to any said inconsistencies in the complainant's account, and a complaint direction pursuant to s 66, in light of the unchallenged evidence of her father. To my mind, the evidence which I have read of the complainant was entirely persuasive and compelling. She gave her evidence in a very straightforward way and with no axe to grind, she did not know the appellant and was matter of fact. She made appropriate concessions. For example, the amount of alcohol that she had consumed that night, what she could have done in hindsight, and explained some of her conduct in the way she was thinking at the time. That is, whilst he had his hand rubbing and stroking her leg and holding her hand, she was uncomfortable by his actions but not totally frightened until he turned down towards the unlit section of the beach, which was going deliberately away from her home. [25] Her evidence, I note was strongly supported by the evidence of her father - that she called at 3.09am in the morning as she immediately got out of the appellant's vehicle, which goes in law to both the truth of what she alleges and the consistency of her account. I note they both then immediately drove to the police station at Manly and made a formal complaint. She is also supported by the text messages sent to Joshua and Hanna as they have been outlined and exhibited. In relation to the message sent at 2.43am "All good Josh", it is clear that they just left at 2.33am from Newtown, and that can be seen from the CCTV stills including from the BWS, which was nearby (it would be approximately 100 metres away) The touching did not allegedly occur until the crossing of the Sydney Harbour Bridge. When one considers, with common sense, the distance, the traffic lights and the route to the Sydney Harbour Bridge, it is entirely plausible that the message was sent prior to the touching. In any event, regardless of that, I note the other messages that were sent to both witnesses which was clearly a cry for help."
5. The judge then addressed the account given by the applicant in his ERISP (the applicant not having given evidence at the trial). For various reasons that, in substance, are not challenged on the application for judicial review, the judge found that the applicant's account in his ERISP did not give rise to a reasonable doubt as to his guilt. Her Honour concluded: "[43] The Crown has outlined the contradictions that were contained within the ERISP. They include, he first did and then did not have a camera in his car. That he did not have his phone at the store, then he did, noting of course the CCTV footage which shows that. That he did not know she was charging her phone to call a ride share then he did know that. That the complainant was not intoxicated and then she was very drunk. That he entered the address in his phone and then she did so. That they shook hands and then it was only that he grabbed her hand in self-defence. That she wanted him but then she attacked him. That she wanted a cigarette on the beach so he drove there but not to the well lit car park, to a street where there was not much lighting. That he did not trust her but did not want to know her address, noting of course he was driving her as an Ola driver. That she wanted him and drove to his place to keep drinking but then she tried to run away. [44] Underpinning all of the ERISP, it is clear that the appellant considered the actions of this young girl on that night by speaking to him as an indication, erroneously he thought, that she wanted to have some sexual involvement with him which clearly, she did not. [45] When I have looked at all of that evidence in totality, I am clearly satisfied that no error has been established by the learned magistrate and that there is simply no justification to challenge or to change the orders of the Local Court. To my mind, the offence has been proven beyond reasonable doubt. I dismiss the appeal and I confirm the conviction of the Local Court."

Apprehended bias: Ground 9

1. As noted above, the applicant submitted that the judge showed interest in convicting him because she suggested "sect 293A and sect 66 from the bench to the crown to use and apply them in the case that goes against the appellant case [sic] even though these acts were not mentioned in the crown submissions in which [sic] didn't give the appellant enough time to reply".
2. The contention seems to be that a reasonable bystander might apprehend that the judge might not have brought an impartial mind to the resolution of his appeal because of her Honour's unprompted intimation that she should direct herself pursuant to those provisions.
3. In oral submissions, the applicant referred to a statement made by the judge during the submissions of Mr Özen SC where the judge said "she also gives complaint evidence under s 66". Mr Özen SC's response was: "Yes your Honour of course I concede that but my point is this…"
4. In the course of submissions of counsel for the Crown, the judge also observed that s 66 applied to the evidence of the complainant's father with which counsel for the Crown agreed.
5. No issue was, or could be taken with the accuracy of the judge's reference to s 66. That section provides: "66 Exception: criminal proceedings if maker available (1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact. (2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by - (a) that person, or (b) a person who saw, heard or otherwise perceived the representation being made, if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation."
6. The father's evidence of complaint was unchallenged. It was clearly relevant to the issue the judge had to decide. No reasonable person could consider that the judge might have been biased by referring to the provision.
7. The applicant also asserted that there was a ground for apprehension of bias on the part of the judge because she referred to s 293A of the Criminal Procedure Act. In the course of submissions of counsel for the Crown there was the following remark: "HER HONOUR: I would have to give myself a s 293A direction in any event, would I not under the Criminal Procedure Act as to inconsistency of an alleged victim of sexual assault?"
8. Mr Özen SC (incorrectly referred to in the transcript as "the Appellant") agreed.
9. These exchanges could not possibly give rise in the mind of an hypothetical reasonable observer that the judge might not bring an impartial mind to the resolution of the issues before her. Rather, they show that the judge was engaging with those issues.

Denial of procedural fairness: Grounds 4, 5 and 6

1. I leave aside for the moment the grounds of denials of procedural fairness that can also be characterised as asserted constructive failures to exercise jurisdiction. Ground 4 is that the judge refused to hear the applicant at the end of the hearing and said "no" when he asked if he could say something. The exchange is quoted at [29] above. Earlier in the hearing the applicant had sought to be heard for himself. There was the following exchange: "BROOKMAN: Yes, your Honour, and it includes obviously exhibit 5 which is the video of the ERISP along with the transcript. ABBAS: Sit down, please. HER HONOUR: Please sit down. ABBAS: Basil, sit down, please. APPELLANT: This is the Criminal Procedure Act, your Honour, inadmissible, it's not - HER HONOUR: You're not doing yourself any good, you have counsel. ABBAS: Basil, please, sit down for a second, calm down. APPELLANT: I can represent myself. ABBAS: We get it, sit down …"
2. (Mr Abbas was junior counsel for the applicant).
3. The judge was right to refuse the applicant leave to address the Court himself when he had legal representation. In Malouf v Malouf (2006) 65 NSWLR 449; [2006] NSWCA 83, Mason P, with whom McColl and Bryson JJA agreed, said: "[170] A litigant is entitled to be self-represented or to retain one or more practising lawyers to act as his or her advocate(s). But the litigant has no entitlement to address or otherwise conduct the case at a time when represented before the Court. This prohibition cannot be circumvented by the device of dismissing the lawyer whose services are no longer required part way through the hearing. A choice must be made at the outset. [171] Splintered advocacy has the tendency of much mischief. [172] Proceedings are likely to be prolonged unnecessarily through overlapping. [173] The device would enable the litigant to propound untenable or scandalous submissions that would not be advanced if the matter remained in the hands of lawyers who may have greater cause to fear disciplinary or costs sanctions than the lay client. This may of course happen if the litigant is wholly unrepresented, but that is the consequence of the right of the self-represented to appear. It does not suggest a reason why the Court should countenance what I would term a right of dual or splintered advocacy."
4. Moreover, as the judge observed, a litigant who seeks to put submissions that his or her counsel or solicitor has not put, can do himself or herself a disservice. Such a submission can weaken the submissions that have been put by the party's legal representative. They might be untenable and thus weaken the party's credibility and the credibility of the submissions put on his or her behalf in the eyes of the tribunal. They might invite questioning from the Bench to which the party, having taken it upon himself or herself to make submissions, is obliged to respond to his or her detriment.
5. Thus, there is good reason that a party to litigation is ordinarily bound by the conduct of his or her counsel and the manner in which counsel chooses to conduct and present the party's case to the Court. In Patel v The Queen (2012) 247 CLR 531; [2012] HCA 29 at [114], French CJ, Hayne, Kiefel and Bell JJ said "it is a cardinal principle of litigation, including criminal litigation, that parties are bound by the conduct of their counsel".
6. After the applicant dismissed his legal representatives, he provided his own written submissions to the judge. Her Honour took those submissions into account, although it is doubtful that she should have done so. He cannot complain that he was denied procedural fairness.
7. Ground 5 alleged a denial of procedural fairness in that it was said that the judge had "incorrect external information (which is not in evidence) concerning the age of the complainant which affected her final judgment".
8. No evidence was adduced at the trial concerning the complainant's age. The magistrate, having observed the complainant's giving evidence and having observed the applicant in court and on his ERISP referred to them respectively as a "young woman" and a "middle-aged man". A similar observation was made by the judge during Mr Özen SC's submissions where her Honour referred to him as "…an older driver that's driving her home".
9. No doubt the judge's statement was based upon the observation of the magistrate who had seen the complainant give evidence and who had seen the applicant in court and on his ERISP. Whether or not the magistrate or the judge was mistaken about the difference in age between the complainant and the applicant, there was no denial of procedural fairness. Nor was any error in this regard a jurisdictional error. Their respective ages was not a "central or critical" element in the disposition of the appeal (Day v SAS Trustee Corporation [2021] NSWCA 71 at [37]). It was not an issue that was raised as a clearly material issue for determination by the magistrate or the judge.
10. Having reviewed the transcript of the hearing in the District Court, I am satisfied that there was no denial of procedural fairness. Both the Crown and counsel for the applicant were fully and courteously heard. No issue of substance raised was not addressed.

Constructive failure to exercise jurisdiction: Grounds 3, 6, 11, 12, 14 and 15

1. Ground 3 contended that the judge erred by finding that the magistrate did not commit an error of law by putting words in the complainant's mouth and leading her during her examination-in-chief.
2. The judge made no such finding. As I understand the contention, it is not that the judge made such a finding, but that she erred in not making a finding that the magistrate did commit such an error. Any such error would not be an error outside jurisdiction.
3. The evidence in the Local Court which gives rise to the applicant's contention was as follows: "CLOSED-CIRCUIT TELEVISION ACTIVATED HER HONOUR Q. Can you hear me again? A. Yes. SHAW Q. When you finally stopped at Freshwater and got out of the car, there was a bit of argy-bargy between you about whether you were going to pay $25 or $35? A. Yep. HER HONOUR: Sorry, did you hear the question? SHAW: Yes, she answered it. WITNESS: Sorry, sorry, was the question - when we stopped at Fresh - SHAW: Q. When you got out the car at Freshwater, there was a bit of argy-bargy between you and the driver? A. No. Q. To pay, whether you were going to pay $35 or $25? A. No, he just asked me for the extra $10. Q. You were suggesting to him that you weren't going to pay? A. No. No, I just - he said "Fine, just give me the other $10" and I just gave it to him. Q. You threw it at him as you exited the car? A. Yeah. I just got it out of my, my - Q. You had a bit of an argument and he said to you something like "I don't like this shit. You know, we agreed on something, you know you have to do it." What do you say about that? A. Sorry, I don't know - Q. You had a conversation - HER HONOUR: Hang on, wait there. Q. Can you hear Mr Shaw? A. Yeah, I can, I just, I don't, I that, that, the, the, that conversation never happened. Are you saying when we got out - are you saying at Freshwater? SHAW Q. Yes. A. When I got out that that's - no, that conversation didn't happen. Q. Then as you got out of the car, you went to push him to his face, and he grabbed your hand? A. No. Q. You went to give him a low-level sort of assault? A. No."
4. The magistrate was obviously concerned as to whether the complainant had heard the question which had been taken over audiovisual link. There were other voices on the line.
5. The magistrate did not intervene to suggest an answer to the complainant.
6. Counsel for the applicant made no submission to the judge that the magistrate's question indicated bias, or impropriety on the part of the magistrate in her conduct of the hearing. But in his written submissions, delivered without leave after the conclusion of the hearing, the applicant submitted that the magistrate had interfered with the complainant's evidence and had led the complainant to change her evidence from "yes" to "no" and that this was because the magistrate did not like the first answer, which was consistent with a version that the applicant said he had provided in his ERISP. In his written submissions, he submitted that the magistrate thought that she had to interfere; an allegation of actual or apprehended bias.
7. No such contention had been advanced at the hearing before the judge. The judge was not required to address this submission, which was provided without leave.
8. An allegation that the exchange quoted above showed that the magistrate was actually biased, or that a reasonable lay observer might apprehend that she might be biased, would need to be clearly articulated. Responsible counsel would not have advanced such a submission and did not. That the applicant, in his written submission delivered without leave, alluded to such a contention, did not mean that the judge committed jurisdictional error by failing to address it.
9. Ground 6 asserts that the judge failed to respond to a substantial and clearly articulated argument concerning the magistrate's failure to give reasons with reference to the facts concerning the basic elements of the offence of mens rea and lack of consent.
10. The short answer to this submission is that, both in the Local Court and in the District Court, counsel appearing for the applicant accepted that if the complainant's version of the facts were accepted, the elements of the charge would be established. That concession was obviously right. The judge did not commit jurisdictional error by acting on the concession.
11. Ground 11 asserted that the judge failed to respond to an argument that there was no evidence concerning stroking of the complainant's inner thigh on the Harbour Bridge. The magistrate found that the applicant touched the complainant's inner thigh. The complainant gave evidence to that effect. The judge made no error in accepting that evidence, let alone a jurisdictional error.
12. Ground 12 asserts that the judge failed to respond to a substantial and clearly articulated argument relying upon established facts by ignoring the applicant's submission that the complainant made contradictory statements and gave conflicting answers during cross-examination.
13. The judge did not ignore the submission. She rejected it. Her Honour found that such inconsistencies as there were in the complainant's evidence (which were minor) did not affect the credibility of her account.
14. Ground 14 contended that the judge constructively failed to exercise jurisdiction by not ruling on the applicant's submission that he was denied procedural fairness by the magistrate's stopping the complainant from giving evidence concerning the contemporaneous message "all good Josh" which he contended would disprove elements of the offence. It is related to ground 10 ([22]-[23] above).
15. This ground relates to a text message sent by the complainant to a friend, Joshua, at 2.43am saying "Sry Josh, I've worked it out. Don't stress. I've called Hannah but it's all good". The applicant's submission was that this message contradicted the complainant's evidence that she was being touched without her consent.
16. The submission was made in the applicant's written submissions delivered without leave after the hearing. It was not the subject of submissions made by counsel for the applicant before the judge in the District Court. There were obvious reasons for that. Although she was asked questions in examination-in-chief by the prosecutor in the Local Court in relation to text messages to Joshua, she was not asked about the particular text message either in chief or in cross-examination. Any submission in relation to that text message was not a clearly articulated argument that the judge was required to address. At best, it was one matter that might go to the credibility of the complainant, but it did not detract from an overall assessment of the complainant's credibility.
17. By grounds 12 and 15, the applicant contended that the judge failed to respond to his substantial, clearly articulated arguments that the complainant had made contradictory statements and had given conflicting answers during cross-examination (ground 12) and that the magistrate had interfered with her cross-examination that resulted in her changing her answers (ground 15).
18. No such submissions were advanced during the hearing of the appeal before the judge. They were not substantial and clearly articulated arguments based on established facts with which the judge was required to deal. Inconsistencies in the complainant's evidence is not a sufficient basis for challenging the magistrate's and the judge's acceptance of the complainant's credibility. No submission along these lines was advanced during the hearing before the judge. In his late and unauthorised submissions, the applicant contended that the magistrate had improperly intervened in the cross-examination of the complainant so as to allow her an opportunity to change her answers that otherwise would have been exculpatory, and that the magistrate had put words into the complainant's mouth and stopped evidence being given that would have proved his innocence. He submitted that this showed that the magistrate did not want to hear the evidence.
19. Some of the interruptions of the magistrate were clearly referable to the fact that her Honour was taking a handwritten note of the evidence being given. Her Honour asked the complainant to stop so that she could complete her note taking.
20. Some of the interruptions were explicable by doubt as to whether the question had been heard (see [61] above). None of the matters referred to indicated any impropriety in the conduct of the hearing in the Local Court that would justify setting aside the conviction on the grounds that there had been a denial of procedural fairness in that court.
21. Even if the judge had been required to address the submissions made without leave, her Honour did not commit jurisdictional error by not addressing submissions which, although asserting denial of procedural fairness in the Local Court, provided no substantial basis for the allegation.

Legal unreasonableness: Ground 7

1. Ground 7 is described at [21] above. It is no more than a challenge to a finding of fact based on acceptance of the complainant's evidence. It discloses no irrationality or unreasonableness.

No evidence for a finding of fact: Ground 10

1. Ground 10 is described at [22] above.
2. The challenged finding was: "[25]… In relation to the message sent at 2.43am 'All good Josh', it is clear that they just left at 2.33am from Newtown, and that can be seen from the CCTV stills including from the BWS, which was nearby (it would be approximately 100 metres away) The touching did not allegedly occur until the crossing of the Sydney Harbour Bridge. When one considers, with common sense, the distance, the traffic lights and the route to the Sydney Harbour Bridge, it is entirely plausible that the message was sent prior to the touching. In any event, regardless of that, I note the other messages that were sent to both witnesses which was clearly a cry for help."
3. A finding of fact for which there is no evidence is an error of law. It is not on that account a jurisdictional error: NRMA Insurance Ltd v Ainsworth [2011] NSWCA 292; (2011) 59 MVR 195 at [12]-[13]. A judge has jurisdiction to make errors of both fact and law. In any event, there was no error.

Misapprehension of judge's function and mistaken denial of jurisdiction: Grounds 1 and 2

1. Grounds 1 and 2 have been described at [24] and [25] above.
2. In support of ground 1 the applicant submitted that the judge erred by taking into account the Crown's submissions as to his credibility instead of relying on the applicant's ERISP.
3. The judge said: "[39] The appellant's account, as can be seen, contained in this lengthy ERISP, was a denial of any wrongdoing. As that outline has demonstrated, it contained an implausible and absurd account of the events of that early morning. The appellant, during the interview, was argumentative. He was non responsive. He was aggressive to police. He was evasive. He was belligerent and he contradicted himself on many occasions. [40] In relation to his evidence as to the camera, it is clear he knew from the moment he spoke to the police that there was no such camera in his car. This is evidenced by what he said during the interview and how he back tracked as the interview progressed and he ultimately conceded as much that he needs to go and buy one. It is also evidenced from the other police evidence that police went to his car and retrieved a GPS and there was no obtaining or pointing out or retrieval or seizing of any camera. [41] In relation to raising DNA, it must be looked at in light of the totality of the evidence. Indeed he did refer to it at the same time as the camera but he also gave himself an out - that is, towards the interview he started saying he may have touched her there and then later on he said he may have touched her leg, knowing of course the allegation involved the touching of the leg and the hand. [42] I also note the way he acted in relation to the phone. He did not want the police to have it. He refused the pin. He kept trying to grab it. The police calmly but firmly informed him they had the right to seize such an item and that he was not to hold it but to leave the phone on the table so it could be accessed and nothing deleted. [43] The Crown has outlined the contradictions that were contained within the ERISP. They include, he first did and then did not have a camera in his car. That he did not have his phone at the store, then he did, noting of course the CCTV footage which shows that. That he did not know she was charging her phone to call a ride share then he did know that. That the complainant was not intoxicated and then she was very drunk. That he entered the address in his phone and then she did so. That they shook hands and then it was only that he grabbed her hand in self-defence. That she wanted him but then she attacked him. That she wanted a cigarette on the beach so he drove there but not to the well lit car park, to a street where there was not much lighting. That he did not trust her but did not want to know her address, noting of course he was driving her as an Ola driver. That she wanted him and drove to his place to keep drinking but then she tried to run away."
4. It is clear that the judge considered the ERISP for herself. She did not simply accept the Crown's submission as to what it revealed without satisfying herself as to the accuracy of the submission. If any parts of her Honour's findings were not substantiated by the ERISP that would not amount to jurisdictional error.
5. Ground 2 is described at [25] above.
6. Section 293A is contained in subdiv 4 of Div 1 of Pt 5 of Ch 6 of the Criminal Procedure Act. Section 290(1) provides that Div 1 applies to proceedings in respect of a prescribed sexual offence, including committal proceedings.
7. Section 293A in terms applies only to directions to be given to a jury. The applicant submitted that by giving herself a direction in accordance with s 293A the judge impermissibly converted what should have been an appeal by way of rehearing into an appeal de novo.
8. I do not accept that submission. The judge had to determine whether the magistrate committed error in accepting the complainant's evidence. In so determining, the judge had to consider whether asserted inconsistencies in the complainant's evidence indicated that the substance of her complaint was untruthful and that the magistrate should have so found. It was appropriate that the judge should have reminded herself of s 293A in making that determination. The directions to be given to a jury under s 293A reflect what a judge or magistrate sitting alone should consider when assessing a complainant's credibility.

Errors of law in the conduct of the appeal: grounds 8, 13 and 16

1. These grounds are described at [26]-[28] above.
2. As to ground 8, it was conceded in the Local Court and appeal to the District Court that, if the complainant's account were accurate, sexual touching had occurred. The judge did not commit any error, let alone jurisdictional error, by proceeding accordingly. Even if the judge were wrong in deciding that the touching described by the complainant was sexual touching within the meaning of s 61KC of the Crimes Act, that would be an error within jurisdiction.
3. But the judge committed no error. Mr Özen SC conceded that, if the primary judge were satisfied that the complainant's account of events were accurate, then the applicant's stroking of the complainant's inner and upper right thigh was a sexual touching. The primary judge noted (at [15]) that there was no issue that what was alleged constituted sexual touching.
4. Ground 13 is described at [27] above.
5. The applicant submitted: "The next one is also adduced dictional [scil. jurisdictional] error. Because both the Local and the District Court have entertained the matter, in the absence of a jurisdictional fact. The mens rea. Both the Local Court and the District Court did not, neither address nor determine how they were satisfied beyond a reasonable doubt, that if it's the case and there was a touching of a complainant, how the prosecution satisfied them beyond a reasonable doubt, that the accused knew she was not consenting, which is a statutory pre-condition: it's an exercise of power. Kirk v Industrial at 72B. The Court fell into a jurisdictional error, if there is an absence of a jurisdictional fact."
6. Contrary to the applicant's submission, the asserted error, even if established, would not be jurisdictional error. Nor was the court's satisfaction that the complainant did not consent to the touching a jurisdictional fact (Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; [2000] HCA 5 at [28]).
7. Rather, it was a fact that the Local Court, and on appeal the District Court, had jurisdiction to determine.
8. The judge did address the issue of mens rea, albeit indirectly and shortly. At [43] and [44] of her Honour's reasons quoted at [38] above, her Honour considered but rejected the applicant's statements in his ERISP and concluded that "clearly" the complainant did not want his advances.
9. Ground 16 is described at [28]. It comprises two parts. As to the first, there was no necessity for the judge to state the elements of the offence. As to the second, s 106 of the Evidence Act was irrelevant.

Conclusion

1. For these reasons none of the grounds for judicial review is established. The amended summons for judicial review of the orders of the District Court of 20 September 2022 should be dismissed with costs.
2. SIMPSON AJA: I agree with White JA.
3. GRIFFITHS AJA: I agree with White JA.

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