Lazarus v Independent Commission Against Corruption

Court of Appeal (NSW)|2018-11-23|Before: Basten JA, Meagher JA

Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; 1996 [HCA] 24 Keramianakis v Regional Publishers Pty Ltd (2007) 70 NSWLR 395; [2007] NSWCA 375 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Lazarus v Director of Public Prosecutions [2015] NSWCA 162 Lazarus v Director of Public Prosecutions NSW [2016] NSWCA 47 Lazarus v Director of Public Prosecutions (NSW) [2015] NSWCA 408 Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426 Lazarus v DPP (NSW) [2015] NSWSC 487 Lazarus v Independent Commission Against Corruption [2018] NSWCA 262 Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 Lazarus v New South Wales Director of Public Prosecution [2015] NSWSC 1116 Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151 Spanos v Lazaris [2008] NSWCA 74 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588 Williams v Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255; (2000) Aust Torts Reports 81-578 Category: Principal judgment Parties: Sandra Lazarus (First Applicant) Michelle Lazarus (Second Applicant)

Michael Kane (First Respondent) Independent Commission Against Corruption (Second Respondent) Director of Public Prosecutions (Third Respondent) District Court of New South Wales (Fourth Respondent) Local Court of New South Wales (Fifth Respondent) Representation: Counsel: C Waterstreet (Applicants) R Mansted (Second and Third Respondents)

Solicitors: Leigh Johnson Lawyers (Applicants) Crown Solicitor (Respondents) File Number(s): 2017/213601

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

headnote [This headnote is not to be read as part of the judgment] In 2014, each of the applicants was convicted of various offences and sentenced in the Local Court. Under the provisions of the Crimes (Appeal and Review) Act 2001 (NSW), the first applicant appealed to the District Court from her conviction and sentence. The second applicant appealed her conviction. Each appeal against conviction was summarily dismissed for a failure to appear. In the appeal against sentence, the first applicant's total effective non-parole period was reduced by 3 months but the length of her total effective sentence was not varied. Each of the applicants sought judicial review of the orders dismissing their respective appeals. The issues in the application were: (i) Whether in summarily dismissing the applicants' conviction appeals, each having failed to appear, there was any jurisdictional error. (ii) Whether the determination of the sentence appeal involved jurisdictional error on the basis that the District Court did not have regard to all of the evidence in both the conviction and sentencing phases of the Local Court proceedings. (iii) Whether the challenged orders of the District Court "usurp the judicial function and are incompatible with the institutional integrity of the Courts of New South Wales". Held, the Court dismissing the application (per Meagher JA, Basten JA and Sackville AJA agreeing) As to issue (i):

The District Court has power under Crimes (Appeal and Review) Act 2001 (NSW), ss 21(1), 22 to dismiss an appeal because of an appellant's failure to appear: at [33] - [34]. Keramianakis v Regional Publishers Pty Ltd (2007) 70 NSWLR 395; [2007] NSWCA; Herald & Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7 referred to.
The manner in which that power was exercised to dismiss each appeal disclosed no jurisdictional error: at [35]. As to issue (ii):
Sentence appeals by way of rehearing are to be conducted by reference to evidence given in both the conviction and sentencing phases of Local Court proceedings: at [54]. Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 applied.
There was no jurisdictional error because the parties were given the opportunity to put all of that material before the Court: at [58] - [60].
Conducting appeals by reference to selective evidentiary material on which the parties seek to rely is necessary in the interests of efficient and expeditious determination of appeals: at [58]. State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 73 ALJR 306; [1999] HCA 3; Williams v Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255; (2000) Aust Torts Reports 81-578 referred to. As to issue (iii):
The principle for which Kable v Director of Public Prosecutions (NSW) stands is directed to the constitutional validity of State or Territory legislation. It does not assist the applicants in identifying jurisdictional error in the orders of the District Court: at [61] - [62]. Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; 1996 HCA 24 referred to.

Judgment

BASTEN JA: I agree with the reasons given by Meagher JA (other than those relating to the recusal application directed to him) and the orders he proposes.
MEAGHER JA: By their "new further amended summons" filed 5 March 2018 the applicant sisters (referred to by their given names, Sandra and Michelle) seek relief under Supreme Court Act 1970 (NSW), s 69, with respect to orders of the District Court made in the exercise of its criminal jurisdiction in appeals from the Local Court under Crimes (Appeal and Review) Act 2001 (NSW) (Appeal and Review Act), Pt 3, Divs 1, 3. By reason of District Court Act 1973 (NSW), s 176, judicial review of orders made in the exercise of that appellate jurisdiction is limited to relief for jurisdictional error: Spanos v Lazaris [2008] NSWCA 74 at [15]; Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 at [10].
To describe the decision of an inferior court as "'involving jurisdictional error' is to describe that decision as having been made outside jurisdiction and accordingly as one made in fact but 'lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it'": per Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 at [24].
Thus 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]. As Leeming JA observed in Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [39], jurisdictional error has been found where that Court has: … misapprehended its function by declining to state a case (Landsman v Director of Public Prosecutions [2013] NSWCA 369) or erroneously considered it had power to set aside a conviction ab initio (Roads and Maritime Services v Porret (2014) 86 NSWLR 467; [2014] NSWCA 30). But there was no jurisdictional error in (what was at best) "misapplying the applicable statutory test" giving rise to the offence (Boensch v Commissioner of Fines Administration [2017] NSWCA 13). It would be wrong to expect there to be bright-line rules delineating jurisdictional error from errors within jurisdiction, but a useful working guide may be found in WO v Director of Public Prosecutions (NSW) [2009] NSWCA 370 at [14]: … An erroneous application of the criminal law in the course of criminal proceedings will not generally demonstrate jurisdictional error."
The applicants' proceedings were commenced by a summons filed on 13 July 2017, and first amended on 18 July 2017. Whereas the summons and amended summons sought relief only in respect of orders of the District Court made on 19 and 20 June 2017, the new further amended summons extends the relief sought to orders made on 14 July and 12 December 2017. In the argument of the appeal leave was sought to add to those orders an order made on 18 August 2017. For the reasons which follow that last application should be refused and the new further amended summons dismissed.

Two preliminary matters

Before outlining the circumstances in which these orders of the District Court were made, it is necessary to consider the disqualification and adjournment applications dealt with and dismissed at the commencement of the argument in this Court.
First, the applicants requested that I disqualify myself from sitting on their application for reason of apprehended bias. In effect it was said that I might not bring an impartial mind to that task because in refusing their earlier application to vacate the hearing date, I had expressed the view that the applicants' claim as then formulated did not have good prospects of success: see Lazarus v Independent Commission Against Corruption [2018] NSWCA 262. I declined to disqualify myself and reserved my reasons for doing so. Those reasons follow.
The relevant question is whether a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the final resolution of the issues in these proceedings: see Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]. As that formulation makes clear, the ground of disqualification "is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he [or she] will decide the case adversely to one party": per Mason J in Re JRL; Ex parte CJL (1986) 161 CLR 342; [1986] HCA 39 at 352. The applicants' concern based on my reasons for rejecting their earlier application is not one which might be shared by the hypothetical fair minded lay observer. That observer is taken to appreciate that a professional judge, having dealt with such an application, is required and expected to put aside any earlier and tentative views, and to address the matters in question in the final hearing on their merits: see Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12], [13]. For that reason, the fact that a preliminary view may have been formed and expressed did not suggest pre-judgment or provide any basis for a reasonable apprehension that I might not decide the case impartially and on its merits.
Secondly, the applicants moved for the relief described in paragraphs 1, 2 and 5 of their notice of motion filed 19 November 2018. Proposed orders 1 and 5 sought the adjournment of these proceedings for judicial review: order 1 pursuant to Legal Aid Commission Act 1979 (NSW), s 57; and order 5, because of the existence of proceeding S296 of 2018 commenced by the applicants in the High Court on 16 November 2018 naming as respondents the Commonwealth of Australia, Governor-General of the Commonwealth of Australia, Prime Minister of Australia, Commonwealth Attorney-General, State of New South Wales, and State of New South Wales Attorney-General. Each of these bases for an adjournment was rejected. As to the former, I joined in that order because I was not satisfied that Sandra's appeal from the refusal of her application for legal aid on 9 November 2018 was "bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct" of these proceedings (s 57(b)). As to the latter, there was in my view no respect in which the existence of the High Court proceedings against those named parties could possibly require the adjournment of these proceedings.
Finally, order 2 sought that "the presiding Judges in this proceeding disqualify themselves, and admit Judges from other States of Australia to preside over this proceeding, as by continuing to preside over this proceeding, the Judges within the State of New South Wales are in error and are in breach of the provisions of s 72 and Chapter III of the Constitution …." The terms of this proposed order did not identify any reason why this Court as constituted should not proceed to hear and determine the applicants' substantive application. For that reason I joined in the order dismissing this recusal application.

Circumstances in which District Court appellate criminal jurisdiction is invoked

In 2010 and 2011 the Independent Commission Against Corruption (ICAC) conducted an investigation into corrupt conduct in at least two Sydney hospitals. Michelle gave evidence under oath during the course of that investigation. Following its completion, criminal proceedings were commenced in the Local Court against Sandra and Michelle, in each case by a court attendance notice dated 1 March 2013.
The 58 charges against Sandra concerned frauds allegedly committed between 2008 and 2009 involving the Royal Hospital for Women in Randwick and the Royal North Shore Hospital at St Leonards. The Crown case concerned the misuse of requisition forms used in those hospitals for the supply of goods and services. Sandra was alleged to have forged a number of signatures of doctors and professors at the hospitals, and to have lodged invoices in the names of companies in which she or her sister was sole director or shareholder, claiming substantial payments for work which had not been done or materials which had not been provided.
The court attendance notice issued to Sandra charged 16 offences contrary to Crimes Act 1900 (NSW), s 178BB, and 42 offences contrary to Crimes Act 1900 (NSW), s 300(1). Those sections relate to the obtaining of a financial advantage by making a false or misleading statement (s 178BB) or the inducing of a third person to act to his or her prejudice by the making of a copy of a false instrument (s 300(1)). The 7 charges against Michelle alleged the giving of false or misleading evidence during the ICAC inquiry contrary to Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act), s 87(1).
These prosecutions were commenced following an ICAC report recommending consideration be given to obtaining advice from the DPP concerning the possible prosecution of Sandra, and separately, Michelle (ICAC Act, s 74A(2)). In each case the court attendance notice, when issued, named as "Prosecutor", Michael Kane, an officer or employee of ICAC, and described his "Organisation" as ICAC.
On 23 May 2014, Barnes LCM found Michelle guilty on each of the 7 charges under s 87(1). On 14 July 2014 the learned magistrate imposed a sentence of four months imprisonment on the first charge and 5 months imprisonment on the remaining charges, and suspended both terms of imprisonment pursuant to Crimes (Sentencing Procedure) Act 1999 (NSW), s 12, on condition that Michelle enter into a bond to be of good behaviour. On the same day Michelle appealed to the District Court against her conviction under Appeal and Review Act s 11(1). In that notice only option B "I am appealing the above conviction/order" is circled as identifying the relevant ground and none of the other grounds are struck out, as the form provides should occur. Because Michelle was not in custody when this appeal was filed (cf s 63(2)(c)) the execution of her sentence was stayed from the time it was lodged until that appeal was finally determined (s 63(3)).
On 27 November 2014, Keogh LCM found Sandra guilty of 16 offences against Crimes Act, s 178BB, and guilty of 28 offences against s 300(1). Sandra brought proceedings in the Supreme Court to quash her conviction and prohibit the magistrate from proceeding to sentence her, in each case for apprehended bias. That application was dismissed by Garling J on 16 April 2015: Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426. On 16 December 2015 an application made out of time for leave to appeal from that decision was dismissed by me and Gleeson JA: Lazarus v Director of Public Prosecutions (NSW) [2015] NSWCA 408. On 27 April 2015 Keogh LCM sentenced Sandra to a total effective sentence of one year and nine months, and an effective non-parole period of one year and four months. On the same day, Sandra filed a notice of appeal to the District Court against her conviction and sentence. Keogh LCM also granted Sandra "appeal bail" that day, on the same terms as those on which she was first granted bail on 27 November 2014. Accordingly, the execution of that sentence was stayed from 27 April 2015 until the final determination of her appeal: Appeal and Review Act, s 63(3).

District Court proceedings involving Michelle

Michelle and Sandra's appeals were listed for hearing on 19 June 2017. Sandra appeared in person and also sought to appear on behalf of Michelle. King DCJ refused that application and summarily dismissed Michelle's conviction appeal because of her "failure to appear": Appeal and Review Act, s 21(1). The delay in the determination of that appeal, filed nearly three years earlier, is partly explained by the fact of other proceedings taken by Michelle. In February 2015, she commenced proceedings in the Supreme Court for judicial review of her conviction. That application was dismissed by Garling J on 21 August 2015: Lazarus v New South Wales Director of Public Prosecution [2015] NSWSC 1116. Michelle's application for leave to appeal from that order was refused by Basten and Ward JJA on 14 March 2016: Lazarus v Director of Public Prosecutions NSW [2016] NSWCA 47.

District Court proceedings involving Sandra

On 19 June 2017 King DCJ also heard and dismissed Sandra's application to adduce fresh evidence on the hearing of her conviction appeal. The hearing of that appeal was then stood over until 20 June 2017. On that day Conlon DCJ summarily dismissed Sandra's conviction appeal in view of her "failure to appear" and adjourned her severity appeal to 28 June 2017.
Sandra then sought under Appeal and Review Act, s 22, that the order dismissing her conviction appeal be set aside, and a further order that the District Court rehear that appeal "including fresh evidence". The application for the first order was dismissed by Hoy DCJ on 18 August 2017. Sandra's sentence appeal was then heard by Hoy DCJ on 7 and 8 December 2017, and determined on 12 December 2017. His Honour varied the non-parole period of the sentence for counts 24, 25, 27-31 and 40-53 from 10 months to 7 months, with the result that, while the total effective sentence remained one year and nine months, the total effective non-parole period was reduced to one year and one month. The orders as entered record the outcome of the sentence appeal in respect of those counts as: Sentence Appeal Dismissed - Order Varied The sentence with respect to counts/sequences 25, 25, 27-31 and 40-53 is confirmed however varied…
Appeal and Review Act, s20(2) confers a power to set aside a sentence, or vary a sentence, or dismiss an appeal. It is not consistent with the exercise of that power to say that an appeal has been dismissed where the sentence or one of the sentences has been varied, as here. Moreover the language of "confirmation" may not be correct in the context of the exercise of the power under s 68, where the sentence has been varied because once the sentence was varied "the operative order became an order of the District Court": see Roads and Traffic Authority of NSW v Higginson [2011] NSWCA 151 at [17]-[19] (Giles JA) and [117]-[125] (Young JA). However, nothing in this review application turns on the form of these orders, the District Court having power to vary Sandra's sentence as it did, and in her favour.

Relief sought by the new further amended summons

The present proceedings, originally for judicial review of the orders dismissing Michelle and Sandra's respective conviction appeals, were commenced on 13 July 2017. That summons was then amended on 18 July 2017 and further amended on 5 March 2018.
Six grounds are relied upon in support of the claimed relief that the orders in [5] be set aside or quashed. As the second and third respondents (together the DPP) submit, some of these grounds are "somewhat difficult to understand". Nevertheless, in his written submissions, the DPP has, in my view accurately, identified the following six issues which arose with respect to the relief sought: 1. Whether in the making of the District Court orders of 19 June (King DCJ), 20 June (Conlon DCJ), 14 July (Hoy DCJ) and 12 December 2017 (Hoy DCJ) contravened Ch III of the Constitution by reason that they "usurp the judicial function and are incompatible with the institutional integrity of the Courts of New South Wales invested with federal jurisdiction" (grounds 1(a), 2(a)). 2. Whether in summarily dismissing the conviction appeals of each applicant in her absence the District Court failed to exercise its jurisdiction to conduct an appeal by way of rehearing (grounds 1(b), 2(b)). 3. Whether the District Court misapplied ss 17 and 18 of the Appeal and Review Act, in some way involving jurisdictional error (grounds 1(b), 2(b), 3 and 4). 4. Whether the court appearance notices by which the underlying criminal proceedings were commenced in the Local Court were invalid because they were executed by an officer of ICAC without lawful authority (grounds 3 and 4). 5. Whether the District Court failed to act independently, and if so whether it contravened the Constitution in some way in doing so (grounds 5 and 6). 6. Whether the orders made by the District Court (Hoy DCJ) on 14 July and 12 December 2017 were beyond power because the operation of Supreme Court Act 1970 (NSW), s 69C, required that the proceedings be adjourned (ground 6).
In the course of argument in this Court, Mr Waterstreet, who appeared on behalf of Sandra and Michelle from the afternoon of the first day of the hearing, sought leave to amend the current summons to include in the challenged orders an order said to have been made by Hoy DCJ on 18 August 2017 dismissing Sandra's application to adduce fresh evidence on the further hearing of her conviction appeal.
It is convenient first to deal with issues 2, 3 and 6 together, as they arise in relation to each of the orders sought to be set aside. In the course of doing so I will deal with the application to amend. I will then deal with issues 1, 4 and 5.

19 June 2017 order dismissing Michelle's conviction appeal (King DCJ)

Sandra appeared for herself and also sought to appear on behalf of Michelle, at least for the purpose of making an adjournment application. King DCJ refused Sandra's application to appear on behalf of Michelle. The Crown then applied to have Michelle's appeal summarily dismissed for want of prosecution. Sandra claimed that her sister was ill and produced to the Court her mobile telephone, which displayed what was said to be an electronic copy of a medical certificate referring to Michelle and dated 17 June 2017. The relevant terms of that certificate were recorded in the transcript as being: "This is to certify that Ms Michelle E Lazarus has a medical condition that will be unfit to attend to litigate at a court hearing on 19 June 2017". The certificate was signed by a Dr Teh and on the letterhead of the Engadine Central Medical Centre.
With respect to that medical certificate, King DCJ observed: A medical certificate dated 17 June 2017 has been shown to the Court by Sandra Lazarus on behalf of her sister, the report being attached to an SMS message on her phone from her husband. No printed copy has been provided to the Court, although of course there has been an adequate time since 17 June for that to occur. In short, the medical certificate provides no reason as to why it is said that Michelle Lazarus is to "unable to litigate the matter today two days post the date of the report".
King DCJ's reasons for acceding to the Crown's application to dismiss Michelle's appeal incorporate a chronology of the progress of the appeal proceeding, which was interrupted by the following judicial review proceedings brought by Michelle: see Lazarus v DPP (NSW) [2015] NSWSC 487 (Wilson J); Lazarus v Director of Public Prosecutions [2015] NSWCA 162 (Beazley P and Macfarlan JA); Lazarus v New South Wales Director of Public Prosecution [2015] NSWSC 1116 (Garling J); Lazarus v Director of Public Prosecutions NSW [2016] NSWCA 47 (Basten and Ward JJA); Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 (Leeming JA, McColl and Simpson JJA agreeing).
That chronology included that on 24 April 2017 Zahra DCJ listed Michelle and Sandra's appeals for hearing on 19 June 2017 with a combined hearing time estimate of five days. His Honour also made directions requiring Michelle's written submissions to be filed and served by 9 May 2017. That direction was not complied with. On 24 May 2017 when the matter was again before Zahra DCJ, his Honour made a further order that Michelle (and Sandra) file and serve written submissions in support of their appeals, and any application to adduce fresh evidence. The direction in relation to the filing and service of submissions was not complied with. On 16 June 2017 the DPP filed written submissions directed to the issues in each of the appeals.
Having referred to this history, his Honour concluded: I note that in the past and during the extensive history of this matter that Ms Michelle Lazarus has from time to time availed herself of the benefit of a legal practitioner in relation to the progress of the matter through the Court and/or the argument of appeals. In the circumstances I accept that the explanation for the failure of Michelle Lazarus to attend today is inadequate, and in those circumstances her appeal will be dismissed.
Michelle submits that in proceeding in her absence and dismissing her conviction appeal without a rehearing (Appeal and Review Act, s 18) King DCJ acted beyond the Court's jurisdiction to hear appeals from the Local Court. This submission raises two questions. The first is whether there was a denial of procedural fairness in what occurred on 19 June 2017, the exercise of that jurisdiction being subject to an obligation to accord procedural fairness: see Kirk v Industrial Relations Commission of New South Wales at [60]; Bagshaw v Director of Public Prosecutions (NSW) [2018] NSWCA 14 at [57] (McColl JA, Payne JA and Sackville AJA agreeing). The second is whether the District Court has power to dismiss an appeal summarily for want of prosecution, at least in circumstances where there has been a "failure to appear"; or is required to proceed in all appeals against conviction to conduct a rehearing in accordance with s 18.
As to the first, Michelle had notice of the fact that her appeal was listed on that day and accordingly was given the opportunity to be heard, either by appearing herself or seeking to be represented by a lawyer. She did not avail herself of that opportunity. Nor did she produce to the Court on that day any satisfactory explanation for her failure to appear. There was no denial of procedural fairness.
As to the second question, it is not necessary to determine the extent of the District Court's implied power to summarily dismiss an appeal for want of prosecution. The implied powers of the Court in the exercise of its statutory criminal appellate jurisdiction conferred under Appeal and Review Act, Pt 3 include everything necessary "for the exercise of that jurisdiction": per Dawson J in Grassby v The Queen (1989) 168 CLR 1; [1989] HCA 45 at 16 applied in John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324 at [24] - [37] (Spigelman CJ, Handley JA and Campbell AJA agreeing); and for an application of that principle to the District Court of South Australia in the exercise of its civil jurisdiction as supporting an implied power to dismiss an action for want of prosecution: see Beverage Bottlers (SA) Ltd (in liq) v Abode Enterprises Pty Ltd [2009] SASC 272 at [139], [140] (Kourakis J, Vanstone J agreeing).
Such generally implied powers aside, the power of the District Court to determine an appeal summarily "because of the appellant's failure to appear" is specifically assumed and necessarily conferred by Appeal and Review Act ss 21(1) and 22, the latter of which provides: 22 Revocation of orders dismissing appeals and applications for leave to appeal (1) An application may be made to the District Court for the setting aside of an order under section 21 that has dismissed an appeal or application for leave to appeal because of the appellant's failure to appear (a dismissal order). … (3) After hearing such an application, the District Court may set aside the dismissal order, either unconditionally or subject to conditions, if it is satisfied: (a) that the appellant has shown sufficient cause for the failure to appear, and (b) that it is in the interests of justice that the appeal or application be heard.
On orthodox principles of statutory construction, a power may be conferred by a provision that expressly subjects that power to a constraint, even though there is no express conferral of the power itself: Keramianakis v Regional Publishers Pty Ltd (2007) 70 NSWLR 395; [2007] NSWCA 375 at [95] (Basten JA, Beazley JA agreeing). That can be explained as an application of the principle that where, as here, a provision assumes the existence of a power, that "power is to be implied" as "a matter of necessity" because "without it, the [relevant] provision could not operate": Herald & Weekly Times Pty Ltd v Victorian Civil and Administrative Tribunal [2006] VSCA 7 at [24] (Maxwell P, Eames and Nettle JJA agreeing). Thus ss 21(1) and 22 provided a statutory basis for the District Court's power to dismiss Michelle's appeal because of her failure to appear.
The manner in which that power was exercised discloses no jurisdictional error. King DCJ heard and determined the DPP's application for summary dismissal of Michelle's conviction appeal in circumstances where she had failed to appear. In doing so, his Honour addressed whether Michelle's explanation for her failure to attend was satisfactory and having regard to what his Honour described as the "extensive history" of the matter. The Court undoubtedly had the power to dismiss the appeal summarily in circumstances where Michelle had failed to appear and it is not to the point that King DCJ may not have expressly referred to the source of that power in his reasons for exercising it. On the exercise of that power, no question as to the application of Appeal and Review Act s 18 arose because the conviction appeal was to be dismissed in the absence of the appellant.

Dismissal of Sandra's conviction appeal

Sandra's conviction appeal was dismissed by Conlon DCJ on 20 June 2017, also for want of prosecution and in the absence of her appearance. On 18 August 2017 Hoy DCJ dismissed Sandra's application made under Appeal and Review Act, s 22, for the setting aside of that earlier "dismissal order". That application was made by par 1 of a notice of motion identified as "motion A" filed on 17 August 2017. The application made by that paragraph was refused, in part because as Hoy DCJ recorded, he did not have "any additional evidence that would suggest there is what might be described as sufficient cause for the failure to appear or any additional material to suggest that it is in the interests of justice that appeal be heard here in the District Court". The order dismissing that application is not challenged in the present proceedings. Instead Sandra seeks to quash the earlier "dismissal order", the efficacy of which was accepted and maintained by the later order refusing Sandra's application to set it aside.

19 June 2017 order rejecting Sandra's application to adduce further evidence (King DCJ)

At the hearing on 19 June 2017 Sandra said in relation to her application to lead fresh evidence: … the reason why fresh evidence is required. The charges are under s 300 of the Crimes Act and s 178B(b) of the Crimes Act in relation to creating false documents in terms of forgeries. A forensic document examination report and an additional examination was required, hence the reason why an application for fresh evidence was filed that's in regards to the conviction that that material be allowed to be heard in regards to the conviction itself.
However that proposed evidence was not produced at the hearing on 19 June 2017. Furthermore, as was subsequently accepted in argument in this Court by Mr Waterstreet, no evidence was produced at that time because no such evidence existed or had been obtained, at any time before 17 September 2017.
At the conclusion of the argument concerning this motion, King DCJ ruled: Mr Crown it seems to me that it would be appropriate to refuse leave to adduce any fresh evidence on the appeal in the circumstances where the court orders have been ignored in the past and no documentation has been provided to the court as to any proposed fresh evidence and I note what you have said in relation to representation at least from the period 21 April to 24 May involving Mr Waterstreet and Mr Juweinat. In those circumstances and considering the state of the matter at the moment I refuse leave for any fresh evidence to be adduced on the appeal.
This order was made in exercise of the power conferred by Appeal and Review Act, s 18(2), which permits fresh evidence to be given on the hearing of an appeal against conviction "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 fresh evidence be given". Addressing that question King DCJ concluded that leave should be refused in circumstances where the proposed evidence was not produced, and earlier orders of the Court had not been complied with. There is no basis for contending that order was affected by jurisdictional error.

Order dismissing Sandra's conviction appeal 20 June 2017 (Conlon DCJ)

On 19 June 2017, having rejected that application to lead fresh evidence, King DCJ said in Sandra's presence: HIS HONOUR: So I'm going to list the matter to continue tomorrow in Court 3.1 on the basis of the conviction and severity appeal. The conviction appeal to proceed on the transcript of evidence from the Local Court with as I've indicated a refusal to allow the adducing of any fresh evidence and Ms Lazarus if you wish to eventually make some application to the Court about your medical health you will need to provide documentation. APPELLANT LAZARUS: Sorry your Honour I'm going to write this down, documentation. HIS HONOUR: Documentation to support any health issues that you have which might be relevant to your severity appeal. There are two different appeals, one is the conviction appeal which can proceed and the other is your severity appeal which can proceed but if you [want] a judge to take into account that you have had some significant medical problems arise since you were dealt with in the Local Court, you will need to produce appropriate documentation, that means medical reports outlining what the problem is and how it affects you. That's not a medical certificate saying you're unfit for gaol. Do you follow me? APPELLANT LAZARUS: Yes. HIS HONOUR: It needs to be something that provides real information.
When Sandra's conviction and severity appeal was called for hearing on the following day before Conlon DCJ, there was no appearance by or on her behalf. The Crown then applied for her appeal to be dismissed for want of prosecution.
Having summarised the history of the proceedings in the District Court, and of the related judicial review proceedings in the Supreme Court, and having referred to Sandra's failures to comply with the directions made by Zahra DCJ on 24 April and 24 May 2017, Conlon DCJ continued: Ms Lazarus has not appeared at court today. Indeed, rather remarkably my associate has received an email purportedly from Helen Lazarus said to be the appellant's mother claiming the appellant had presented to Westmead Hospital in the early hours of the morning in respect of "cardiac issues" and indicating she would not be able to attend court today.
Dismissing Sandra's conviction appeal, his Honour described that e-mail communication as "totally unsatisfactory" as an explanation for her non-appearance.
Sandra's argument that the making of this order involved jurisdictional error raises the same questions as are dealt with in relation to the summary dismissal of Michelle's conviction appeal. The Court undoubtedly had power to dismiss summarily Sandra's appeal in circumstances where there had been a failure to appear. Furthermore there was no denial of procedural fairness in circumstances where Sandra was aware of the fact of the hearing and of the need to appear, either in person or by a legal representative, and of the further requirement that any medical evidence in support of an adjournment application identify the particular medical condition and explain how it prevents her attendance. The email sent to the Court by her mother did not answer that description. Sandra's argument does not identify any jurisdictional error in the making of the order summarily dismissing her conviction appeal.

18 August 2017 order dismissing application to adduce fresh evidence in application under Appeal and Review Act s 22 (Hoy DCJ)

Paragraph 2 of motion A filed on 17 August 2017 sought an order for the giving of fresh evidence on the further hearing of Sandra's conviction appeal, assuming an order was made under s 22 setting aside the earlier dismissal order. That motion was heard on 18 August 2017, Mr Waterstreet appearing for Sandra. The relief sought by par 2 was not pressed. The relief sought by par 1 was pressed and rejected, as appears above.

Application to amend to include further 18 August 2017 order

As indicated above, in this Court, Mr Waterstreet sought to amend the new further amended summons to include in the orders that are the subject of the claim for judicial review the order made disposing of paragraph 2 of motion A. As formulated before this Court the proposed argument was: That it was a breach of natural justice to refuse to hear fresh evidence in an application under s 21(2) to have a rehearing or a revisit of the magistrate's decision on conviction …
This application is misconceived. There was no refusal by Hoy DCJ to hear or determine Sandra's application made by par 2, or to receive fresh evidence when hearing that application. That part of her motion was not pressed, and the only order made by his Honour in relation to it was "by consent" to delete par 2 from the motion. Nor was Sandra in a position to identify or lead any relevant "fresh evidence" had the hearing of that part of her application proceeded on 18 August 2017. As was earlier conceded in this Court, at that time the foreshadowed forensic evidence of Mr Anderson had not been formulated.

14 July 2017 order adjourning Sandra's sentence appeal (Hoy DCJ)

The materiality of this order to the challenge to the order determining Sandra's sentence severity appeal made on 12 December 2017 is not apparent. On 14 July 2017 that appeal was listed before Hoy DCJ for directions. The Court was advised that Sandra and Michelle had commenced the current proceedings in this Court. On their application, and over the objection of the DPP, Hoy DCJ adjourned the hearing of the sentence appeal to 18 August 2017. At the same time his Honour made directions for service by 11 August 2017 of Sandra's submissions "identifying [the] basis for [the] severity appeal and findings of fact and any further subjective material relied on". None of this ultimately delayed the determination of the sentence appeal because of the making of necessary directions.
During the course of the discussion which preceded the adjournment of the sentence appeal, Sandra argued that it was automatically stayed by the operation of Supreme Court Act, s 69C. In this proceeding the applicants submit that Hoy DCJ erred in not making an order which stayed the prosecution of Sandra's appeal.
Section 69C(1) and (2) relevantly provide: (1) This section and section 69D apply to proceedings in the 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 part of such a conviction or order) or sentence imposed by the Local Court. (2) The execution of the following is stayed when proceedings seeking judicial review are commenced: (a) a sentence imposed as a consequence of a conviction, (b) any order other than an apprehended violence order under the Crimes (Domestic and Personal Violence) Act 2007.
Section 69C(2) automatically stays the execution of a sentence imposed as a consequence of a conviction which is the subject of proceedings in the Supreme Court for judicial review of a determination made by the District Court in its criminal appellate jurisdiction. It does not stay sentence appeal proceedings in the District Court where, as here, the proceedings for judicial review have been commenced before the determination of an appeal against sentence.

12 December 2017 order determining Sandra's sentence appeal (Hoy DCJ)

Following a two day hearing on 7 and 8 December 2017, in which Sandra was represented by Mr Waterstreet, Hoy DCJ dismissed her sentence appeal having varied the non-parole period from 1 year and 4 months to 1 year and 1 month.
Appeal and Review Act, s 17, provides that an appeal against sentence "is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings". In Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 the majority (McColl and Macfarlan JJA, Leeming JA dissenting) held that s 17 requires a rehearing on the evidence given in both the conviction and sentencing phases of the relevant Local Court proceedings, plus any fresh evidence adduced.
Sandra's argument in this Court is, or suggests that, Hoy DCJ misapprehended the nature of his power under s 17 by not having regard to all of the evidence in both phases of the Local Court proceedings. That submission must be rejected. It misunderstands the nature of the error in Engelbrecht and mischaracterises the way in which Hoy DCJ determined the sentence appeal.
The record of the District Court proceedings shows that his Honour was referred to the decision in Engelbrecht at the first directions hearing on 28 June 2017. His Honour understood that the sentence appeal rehearing was to be by reference to all of the evidence given in the Local Court proceedings. He therefore did not misapprehend the nature of his function or the extent of his powers in the way that the District Court had in Engelbrecht.
In this case, the proceedings in the Local Court were conducted over 36 days from 25 August to 22 October 2014. There were 151 exhibits and a number of witnesses called, although the evidence in this Court does not indicate exactly how many. To accommodate the volume of transcript and evidentiary material available from the trial Hoy DCJ made directions that Sandra file whatever material was to be relied on in the appeal to challenge or dispute facts found in the Local Court and relevant in the sentencing appeal. Later in his Honour's sentencing judgment he recorded: Despite orders and requests for relevant material potentially challenging and/or disputing those facts I have received no material nor been referred to any aspects that are in dispute other than the endeavours to adduce evidence apparently challenging the handwriting material through Mr Anderson and therefore [to] dispute the figures.
Appeals by way of rehearing are conducted by reference to the issues which the parties identify and the evidentiary or other material that they seek to rely on in support of their arguments. In that context the appellate court is "taken to selected passages, chosen by the parties so as to advance their respective arguments": State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 160 ALR 588 at [90] - [91] (Kirby J); applied in Williams v Minister Aboriginal Land Rights Act 1983 [2000] NSWCA 255; (2000) Aust Torts Reports 81-578 at [138] (Heydon JA, Spigelman CJ and Sheller JA agreeing); see also the observation in Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23] (Gleeson CJ, Gummow and Kirby JJ) that "the appellate court does not typically get taken to, or read, all of the evidence taken at trial". This approach is necessary in the interests of the efficient and expeditious disposal of appeals. For the majority in Engelbrecht, the critical jurisdictional question in the sentence appeal was whether the appellant had been afforded a "sufficient opportunity" to bring to the attention of the judge the material that he sought to "rely upon" or "contend ought be the basis of his sentence": Engelbrecht at [102] (McColl JA) and [118] (Macfarlan JA).
Here, there was no jurisdictional error in the sentencing judge's decision making. The parties were aware of the breadth of the material on which the appeal by way of rehearing was to proceed. They were directed to identify and put before the District Court such of that material relied on as relevant to the arguments to be made in the sentencing appeal and they had ample opportunity to put such material before the Court.
The rehearing on appeal was conducted, so far as the objective facts of the offending were concerned, by reference to a statement of facts together with related particulars of each of the charges. In relation to the "subjective material" his Honour recorded that he "received very little material in admissible form relevant" to the sentence appeal but had nonetheless "carefully considered all the contents of the affidavits and exhibits and annexures together with the annexures to the various notices of motion… filed by the appellant". None of this discloses any jurisdictional error of the kind suggested in the conduct or determination of the sentencing appeal. Nor is there any submission before this Court that any putative error could have materially affected the outcome of Sandra's sentence appeal: see Hossain v Minister for Immigration and Border Protection at [30] (Kiefel CJ, Gageler and Keane JJ).

Issue 1

This issue misunderstands the principle for which Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; 1996 [HCA] 24 stands. That principle is directed to the validity of State or Territory legislation. It provides that "because the Constitution establishes an integrated court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State legislation which purports to confer upon such a Court a power or function which substantially impairs the Court's institutional integrity, and which is therefore incompatible with that Court's role as a repository of federal jurisdiction, is constitutionally invalid". See also Attorney General (NT) v Emmerson (2014) 253 CLR 393; [2014] HCA 13 at [40], [42].
The applicants do not contend that the relevant provisions of the Appeal and Review Act, conferring jurisdiction on the District Court, are constitutionally invalid because they confer any power or function which substantially impairs its institutional integrity. Rather they contend that in dismissing the applicants' conviction appeals on 19 and 20 June 2017 in the circumstances outlined above, King DCJ and Conlon DCJ acted in a way which gave "rise to Ch III of the Commonwealth Constitution on the ground that they usurp the judicial function and are incompatible with the institutional integrity of the courts of New South Wales". This is not an allegation which could attract the operation of the principle in Kable. That leaves the jurisdictional question whether in the circumstances of this case, and accepting the validity of the provisions of the Appeal and Review Act, the Court misconceived the nature of its function or the extent of its powers. Those questions are raised by issues 2, 3 and 6 and dealt with above.

Issue 4

The applicants argue that the court attendance notices issued to them were invalid because no officer of ICAC was authorised under the Criminal Procedure Act 1986 (NSW) to commence proceedings in respect of offences under the Crimes Act and ICAC Act. It is said to follow that the criminal proceedings initiated in the Local Court were without lawful authority. That argument was addressed and rejected by Garling J in the judicial review proceedings commenced by Michelle in February 2015 and directed to the orders of the Local Court: [2015] NSWSC 1116 at [68] - [75]. It was also rejected as a proposed ground of appeal to this Court on the leave application heard by Basten and Ward JJA: [2016] NSWCA 47 at [10] - [12].
The relevant provisions of the Criminal Procedure Act are: 14 Common informer A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons. 173 Commencement of proceedings by police officer or public officer If a police officer or public officer is authorised under section 14 of this Act or under any other law to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division.
Mr Kane, the prosecutor named on each of the court attendance notices was a public officer for the purpose of s 173. The presumption that he was acting in his capacity as an officer or employee of ICAC was not displaced: Criminal Procedure Act, s 3(3). Accordingly he was authorised by s 14 to institute the proceedings, and acted in accordance with s 173 in doing so.
More relevantly in the present context, this argument does not identify any question of jurisdictional error on the part of the District Court in the exercise of its criminal appellate jurisdiction. That jurisdiction included deciding whether the court attendance notices were invalid and, if so, what the consequences were for the convictions made in the Local Court: see Morgan v District Court of New South Wales at [24], [28]; and the observations of Leeming JA on this very point in Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [142]. Accordingly, this argument does not identify any jurisdictional error on the part of the District Court in summarily dismissing, or otherwise dealing with, the appeals of Michelle and Sandra.

Issue 5

The applicants contend that the District Court did not act "independently" in making each of the challenged orders due to the application of ICAC Act, ss 5, 6A, 64A and Sch 1, cl 2. It is not necessary to set those provisions out. They concern the constitution of the ICAC (s 5), the appointment and functions of Assistant Commissioners (s 6A) and the power of the Joint Committee (s 3) to veto a proposed appointment of a Commissioner (s 64A, Sch 1, cll 1, 2). Reference is also made to Oaths Act 1900 (NSW), ss 8, 9 and Sch 4, which relate to the form of the judicial oath which judicial officers are required to take.
It is not at all apparent how these provisions in some way impede the institutional integrity of the District Court or the reality and appearance of the independence and impartiality of the judges of that Court. Nor is there any evidence to suggest that the judges of the District Court who made the relevant decisions and orders acted other than independently and without bias, or in circumstances where there could be any apprehension of bias. This issue does not identify any relevant jurisdictional error.

Conclusion

The applicants' new further amended summons should be dismissed. In so concluding I have addressed matters raised by the 6 pleaded grounds and in respect of the orders which are sought to be quashed or set aside for jurisdictional error. I have not dealt with matters raised in the applicants' written submissions which are not reasonably raised by those grounds or in relation to those orders. As there is no reason why costs should not follow the event, the applicants should be ordered to pay the costs of the second and third respondents.
It follows that the orders of the District Court made in relation to Sandra and Michelle stand and that, on the making of the order dismissing these proceedings, the stay of execution of the sentences imposed on each comes to an end: Supreme Court Act, ss 69C(2)(a), (4).
There remains the question whether, as the DPP proposes by its notice of motion filed 9 November 2018, this Court should make any order under Supreme Court Act, s 69A(5) or 69D in relation to the date on which the sentences imposed on Sandra and Michelle commence or recommence and take effect.
In relation to Sandra, the orders made by Hoy DCJ on 12 December 2017 provided for her sentence for counts 1 to 7 to commence on 12 December 2017 and for the non-parole period in relation to her last expiring sentence for counts 24, 25, 27-31 and 40-53 to expire on 11 January 2019. As no part of that sentence has been served the removal of the stay of execution will permit Sandra to be taken into custody with the first of those sentences to commence at that time.
In relation to Michelle the position is more complex. On 19 June 2017 King DCJ dismissed her conviction appeal and confirmed the sentence imposed by the Local Court. His Honour also directed that Michelle enter into good behaviour bonds pursuant to s 12 Crimes (Sentencing Procedure) Act 1999 (NSW) by 4pm on 26 June 2017 and that, if she had not done so by that date, a bench warrant should issue for her immediate arrest. It is not known whether Michelle entered into s 12 bonds in accordance with that direction, and thus before 13 July 2017 when the present proceedings and the stay of execution of that sentence under s 69C(2)(a) commenced. If Michelle entered into the s 12 bonds as directed then she will have served some part of her suspended sentences totalling 9 months. If she did not, she may be liable to be taken into custody, and held until such time as she enters into the required bonds.
In these circumstances there is no reason to make any order in aid of the application of s 69C(4). Furthermore, if the respondents wish to contend otherwise Uniform Civil Procedure Rules 2005, Pt 36 r 36.16(3A) enables them within the specified time to make an application to vary the orders I propose be made.
In the result the orders I propose are: 1. Dismiss the applicants' new further amended summons. 2. Dismiss the applicants' notice of motion filed 19 November 2018. 3. Dismiss the applicants' application to amend the new further amended summons to include an order made on 18 August 2018. 4. Dismiss the second and third respondents' notice of motion filed 9 November 2018. 5. Applicants pay the second and third respondents' costs of the proceedings.
SACKVILLE AJA: I agree with Meagher JA.

Amendments 07 August 2019 - citation in [4] amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 August 2019

At a glance

Court

Decision date

Before

Source

Judgment (24 paragraphs)

Parties

Legislation Cited (9)

Cases Cited (46)