[2006] NSWCCA 244
Director of Public Prosecutions (NSW) v Burns (2010) 207 A Crim R 362
[2010] NSWCA 265
Director of Public Prosecutions v Emanuel (2009) 193 A Crim R 552
Source
Original judgment source is linked above.
Catchwords
[2000] HCA 40
Bell v Stewart (1920) 28 CLR 419[1920] HCA 68
Charara v R (2006) 164 A Crim R 39[2006] NSWCCA 244
Director of Public Prosecutions (NSW) v Burns (2010) 207 A Crim R 362[2010] NSWCA 265
Director of Public Prosecutions v Emanuel (2009) 193 A Crim R 552[2009] NSWCA 42
Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124[2008] HCA 13
Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290
Fox v Percy (2003) 214 CLR 118[2003] HCA 22
Garde v Dowd (2011) 80 NSWLR 620[2011] NSWCA 115
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531[2010] HCA 1
Lazarus v Independent Commission Against Corruption [2019] NSWCA 100
Liberato v The Queen (1985) 159 CLR 507[1985] HCA 66
McKellar v Director of Public Prosecutions [2011] NSWCA 91
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541[2018] HCA 30
Paterson v Paterson (1953) 89 CLR 212[1953] HCA 74
Schokman v Director of Public Prosecutions [2001] NSWCA 334
SKA v The Queen (2011) 243 CLR 400[2011] HCA 13
Wany v Director of Public Prosecutions (2020) 103 NSWLR 620
Judgment (13 paragraphs)
[1]
Solicitors:
Susan Warda, Mills Oakley (Applicant)
Office of the Director of Public Prosecutions (Respondent)
File Number(s): 2020/357300
Publication restriction: Nil
Decision under review Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 03 August 2020
Before: Weber SC DCJ
File Number(s): 2019/99344
[2]
[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.]
[3]
HEADNOTE
[This headnote is not to be read as part of the judgment]
The applicant sought judicial review of a decision of the District Court dismissing his appeal from the Local Court against his conviction of a domestic violence offence. The appeal to the District Court was brought under s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW). In accordance with s 18 of that Act, the appeal was to be "by way of rehearing on the basis of evidence given in the original Local Court proceedings" (an application to give fresh evidence having been refused). The question raised by the judicial review application was whether the District Court had failed to conduct a rehearing in accordance with that section.
The applicant's appeal to the District Court had identified two specific alleged errors on the part of the Local Court, neither of which was made out. The applicant nonetheless contended that the primary judge failed to discharge his appellate function in that he could not properly determine the appeal without considering the whole of the evidence before the magistrate and forming his own view as to the applicant's guilt. The principal issue raised by the application was the correctness of that contention.
Held, dismissing the summons:
An appeal against conviction under s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) is to be determined by reference to the issues identified by the parties. The direction in s 18 of the Act as to the nature of such an appeal does not require the District Court, in every case, to undertake a complete review of the whole of the evidence and form its own view as to the applicant's guilt regardless of the issues raised by the appellant: at [4] (Meagher JA); [44] (McCallum JA, White JA agreeing at [8]).
In the present case, there was no clearly articulated argument the resolution of which required the primary judge to review the whole of the evidence once he had rejected the submission that the magistrate had not determined the case by reference to her findings as to credit: at [7] (Meagher JA); [86] (McCallum JA, White JA agreeing at [8]).
[4]
Judgment
MEAGHER JA: I agree with McCallum JA that this application for judicial review should be dismissed with costs. The subject matter of the application is the primary judge's dismissal of the applicant's conviction appeal to the District Court brought under Crimes (Appeal and Review) Act 2001 (NSW) (CARA), s 11(1).
In this Court, neither party disputed that the appeal by way of rehearing described in CARA, s 18 is an appeal for the correction of error. Nor was it disputed that it was necessary for the primary judge to conduct a "real review" of the magistrate's conclusions, and to form his own view of issues of fact, taking account of the "natural limitations" involved in reviewing evidence by reference to the transcript alone: Charara v The Queen [2006] NSWCCA 244 at [18]-[19]; Bandara v Director of Public Prosecutions [2016] NSWCA 140 at [10].
Finally, the applicant accepted that the parameters of his rehearing were confined by reference to the arguments made and issues identified by the parties to the appeal, and principally by him: AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 at [35] (Basten JA). As was explained in Lazarus v Independent Commission Against Corruption [2019] NSWCA 100 at [58] (dealing with a sentencing appeal under CARA, s 17):
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".
That is, the obligation of the primary judge to conduct a "real review" of the evidence and the magistrate's reasons was qualified and shaped by the matters put in issue on the appeal and the extent to which the resolution of those issues required a review of the transcript of evidence and other materials.
[5]
Extension of time
Before turning to the substantive issue raised by the appeal, it is necessary to consider a motion filed by the applicant seeking an extension of time. The application was not opposed by the Director of Public Prosecutions. The summons seeking judicial review was not filed within the period of 3 months allowed for the commencement of such proceedings: r 59.10(1) of the Uniform Civil Procedure Rules 1995 (NSW). However, the delay was adequately explained in affidavits sworn by the applicant and his solicitor. The explanation was that, acting on what appears to have been informal advice from a friend who was legally trained, and at a time when the applicant was unrepresented, he initially attempted to commence appeal proceedings in the Court of Criminal Appeal, to which no appeal lies. He acted promptly to rectify the error once identified. The time for filing the summons should be extended to 17 December 2020, the date on which the summons in this Court was filed.
[6]
The nature of a conviction appeal to the District Court
The applicant's appeal to the District Court was brought under s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW). That section provides for an appeal as of right from the Local Court to the District Court against conviction or sentence (or both).
The nature of any right of appeal is determined by the proper construction of the terms of its grant: Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13 at [2]. In Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 at [29], Gageler J noted that, "as appeals are creatures of statutes, incidents of appeals can vary from statute to statute". In the case of the Crimes (Appeal and Review) Act, the incidents of the several rights of appeal conferred by that Act vary within the statute. It is clear from the text of the Act that it was intended to create several different kinds of appeal.
The single ground for review pressed by the applicant in this Court contended that the District Court (Weber SC DCJ):
"erred in failing to conduct a rehearing of the plaintiff's appeal on the basis of the evidence in the original Local Court proceedings."
That contention focusses on the fact that an appeal against conviction is directed to be "by way of rehearing". The question is what that means in the context of a conviction appeal to the District Court. The word "rehearing" is used in the description of both kinds of appeal under s 11(1) (conviction appeals and sentence appeals): s 17 and 18 of the Act. However, those provisions direct different appellate processes for each kind of appeal. An appeal against sentence is directed to be "by way of a rehearing of the evidence" given in the Local Court proceedings (s 17 of the Act) whereas an appeal against conviction is directed to be "by way of rehearing on the basis of evidence" given in the Local Court (s 18 of the Act). The different wording indicates that, while a sentence appeal requires the appellate court to consider "the evidence", a conviction appeal involves a different task; one in which evidence in the Local Court forms the basis on which the appellate Court's function will be exercised but not one in which the fresh consideration of that evidence is the task.
A further indication that, although the two rights of appeal under s 11(1) both carry the label "rehearing", they were intended to be of a different kind is that, in a sentence appeal, each party has an unqualified entitlement to give fresh evidence whereas, in an appeal against conviction, leave is required and the power to grant leave is constrained, as are the circumstances in which the Court may compel the attendance of witnesses (ss 17-19 of the Act).
[7]
The proceedings in the Local Court
The applicant faced two charges in the Local Court. The principal charge alleged an offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW). The second, a charge of common assault contrary to s 61 of the Act, was relied upon only as a back-up charge.
It is not the task of this Court to review for itself the evidence given in the Local Court. However, for the purpose of determining the issue raised by the present application, it is necessary to have some context.
The hearing in the Local Court proceeded over two non-consecutive days, on 1 July 2019 and 18 September 2019. The prosecutor called evidence from the complainant and her mother. He also tendered the video-recorded "domestic violence evidence-in-chief" (commonly called a DVEC), photographs of the complainant showing bruising to her face, statements from the two police officers who recorded the DVEC, a simple diagram of the relevant space drawn by the complainant and screenshots of amiable text messages they exchanged the day after the assault. One of the police officers was cross-examined as to his evidence that he observed a bruise on the complainant's face. The applicant gave evidence. He also tendered photographs of himself including a close-up showing an abrasion to the side of his face where he said the complainant had punched him.
In short summary, the evidence before the magistrate was that the applicant and the complainant had been in a relationship for seven years and had two children together. At the time of the events giving rise to the charges, the relationship was deteriorating and it appears the couple was in the process of separating or at least that separation was imminent. However, they were still living under the one roof, being the home of the complainant's parents.
The assault was alleged to have been committed on a morning when the applicant returned home at 5 o'clock in the morning after spending the whole night out. The complainant said that the applicant had said he would be home for dinner the night before but that he had not turned up or contacted her again. The applicant gave evidence that, after he had returned home, he was in his dressing room getting changed for work when the complainant confronted him as to whether he was in a relationship with another person. Her evidence on that issue was not dramatically different. She said she asked him to let her know what was "going on" with him and had said that it was not fair to the children or to her.
[8]
The appeal to the District Court
A notice of appeal to the District Court was filed on 21 January 2020. The content of the form supplied by the District Court for the purpose of such an appeal was commented upon by Mason P in Charara at [3] in remarks echoed by Basten JA in AG at [37]. The form requires a person wishing to commence an appeal against conviction from the Local Court to the District Court to circle the option "I am appealing the above conviction/order because I am not guilty". Both judgments drew attention in that context to the requirement of s 14(2) of the Crimes (Appeal and Review) Act to state "the general grounds of appeal". As noted by Basten JA in AG at [37], that requirement implies the need to state at least in general terms some basis upon which an appellant alleges the magistrate erred.
The material before this Court also includes an "instruction sheet" for an "all grounds appeal", apparently also a form provided by the District Court for completion by an applicant in a conviction appeal from the Local Court. The description of such an appeal as an "all grounds" appeal is an anachronism. As explained by Mason P in Charara at [12]-[15], that was the term used before 1998 to describe the earlier kind of appeal which, as explained by the then Attorney General in the second reading speech for the amending legislation, involved "a full de novo hearing before the District Court requiring the court to rehear all the available evidence in relation to the matter" (New South Wales Parliamentary Debates, Legislative Council, 17 September 1998, p7595, cited by Mason P in Charara at [12]. The legislation that instead introduced the kind of appeal directed by s 18 of the Crimes (Appeal and Review) Act was intended to address a concern as to "the amount of time the District Court was having to allocate to the hearing of appeals from decisions of magistrates" and difficulties securing the attendance of witnesses to give evidence a second time before the District Court: Charara at [12].
The continued use of the old forms is apt to confuse and, with respect, could helpfully be revisited. In particular, it would no doubt assist the judges of the District Court if the requirement under s 14(2) of the Act to state the general grounds of appeal was reflected in the processes of the Court. I do not mean to suggest that the absence of such a statement would render an appeal incompetent. The practical reality is that such appeals must often be commenced urgently by unrepresented defendants in custody or in other constrained circumstances. My point is that, in circumstances where the legislation no longer allows for an "all grounds" appeal involving hearing the evidence of the witnesses afresh, it would be helpful if there was at least a procedural requirement to identify the general grounds of appeal in advance of the hearing rather than encouraging the misapprehension that there is no need to identify any grounds because all grounds are in play.
[9]
Issues raised in the appeal to the District Court
In any event, the issues raised in the applicant's appeal to the District Court emerge clearly enough from the written outline of submissions provided to the judge by senior counsel for the applicant, Mr Greg James AM QC. The submissions identified two principal complaints concerning the decision of the magistrate. First, it was submitted that her Honour's reasoning process "did not accord with that mandated by the High Court in Liberato" (Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66). That signalled a complaint that the magistrate had taken the erroneous approach of simply deciding whether she preferred the evidence of the complainant to that of the defendant without appreciating that, even if she preferred the evidence of the complainant, she could not find the applicant guilty unless satisfied beyond reasonable doubt of the truth of the complainant's evidence.
Secondly, it was submitted that the magistrate's reasoning process "did not accord with the application of ss 418-419 of the Crimes Act 1900". The reference to those provisions identified the premise of the second complaint, namely, that one of the matters to be proved beyond reasonable doubt by the prosecution was that the applicant did not carry out the conduct constituting the offence (here, the alleged punch to the face) in self-defence. The submissions identified a number of matters which Mr James submitted it was necessary for the magistrate to consider, and which it was contended she did not consider, in determining whether the prosecution had discharged that onus.
The two complaints may be distilled as follows:
1. the magistrate erred in that she failed to consider whether she was satisfied beyond reasonable doubt of the truth of the complainant's evidence (the Liberato ground);
2. even if she was satisfied beyond reasonable doubt of the truth of the evidence that the applicant punched the complainant in the face, the magistrate erred in that she failed to consider whether the prosecution had proved beyond reasonable doubt that he did not do so in self-defence (the self-defence ground).
The written submission also addressed the issue of credit. Rather than attempting to summarise what was put on that issue, I will set out the relevant submission in full:
"The Magistrate's decision was based on 'objective' evidence as thought to support the account of the complainant or as to adversely affect the account of the appellant. At no point does the magistrate [state] that her findings depend upon any position of advantage she might have had in seeing and hearing the witnesses thus the determinations as to credit do not depend on the magistrate's perceptions so that this court is well able to determine this Appeal on the transcript having regard to the evidence in the transcript it is submitted the Court could not be satisfied on reasonable doubt and is the appeal should be upheld. The magistrate errors of reasoning and approach makes clear that the evidence to which she had regard did not rebut the possibility."
[10]
Course of the hearing in the District Court
By way of opening address, Mr James indicated that the central issue in the proceedings in the Local Court was whether "whatever was going on did not admit of the possibility of self-defence" (in the language of the Crimes Act, whether the prosecution had proved beyond reasonable doubt that any conduct proved against the applicant was not done in self-defence). Mr James outlined the basis for the application to give fresh evidence, which was said to be relevant to the "the belief of the [applicant] concerning the reasonableness of his actions" (which could only be relevant to the element of self-defence required to be proved by the prosecutor).
Mr James then opened at some length on the facts. He touched on the Liberato ground in that context, asserting that, although the magistrate had "referred to what she had to examine concerning issues of self-defence", she had gone about that task in a way that was "completely contrary to what the High Court had said in Liberato in effect determining that she believed the complainant and therefore she rejected the appellant". Mr James concluded that point as follows:
"Now all of that is simply given to your Honour by way of an opening of a somewhat confusing situation [from] which it may not be possible to distil that which would in the circumstances of this case adequately enough displace beyond reasonable doubt the raised defence of self-defence."
Mr James then briefly outlined the self-defence ground, identified the material he relied upon and concluded his opening address at that point.
The parties then addressed the judge on the application to lead fresh evidence and the judge adjourned the matter until 2:30pm, evidently to give himself time to read the material to which he had been taken.
When the matter resumed, Mr James addressed the judge on the closing submissions made to the magistrate, submitting that the prosecutor had led the magistrate into error with a submission that the case came down to "who was the more believable witness". Mr James submitted that that was the wrong approach and would obviously have led the magistrate into error (the Liberato ground). The judge remarked "except it didn't lead her into an error about the onus and standard of proof".
Mr James indicated that he would return to that issue and continued to take the judge through the transcript of closing addresses in the Local Court, concluding "in essence [the applicant's solicitor] is putting to the magistrate what we have in the first paragraph of our written submissions coupled with the proposition that the complainant as a result of his not having come home, as a result of the finding of the [Viagra-like] medication, was angry and upset at him". Those submissions made only passing reference to the transcript of the evidence given in the Local Court.
[11]
Decision in the District Court
The primary judge gave an ex tempore judgment immediately at the conclusion of the closing submissions. His Honour first addressed the application to give fresh evidence; he rejected the application. The summons in this Court initially included a ground for review challenging that aspect of the decision but that ground was not pressed.
As to the appeal proper, his Honour noted that, although the mother had given evidence as to what she saw shortly after the events in question, the relevant events occurred when only the complainant and the applicant were present. He briefly summarised their respective accounts but observed that the applicant's guilt was not to be determined simply by a comparison of which of the two versions was to be preferred but rather by determining whether the Crown had established the case against the appellant, including the issue of self-defence, beyond reasonable doubt.
The judge then identified the two principal contentions put by the applicant (discussed above) and indicated that he rejected those contentions, saying:
"True it is that the learned Magistrate ultimately rejected the evidence of the appellant, but she did so in circumstances where she made perfectly clear that having done so her task was not over, rather that it was then necessary for her to proceed to consider whether on the totality of the evidence the Crown had established its case beyond reasonable doubt."
His Honour concluded that the magistrate was "well and truly cognisant of the relevant principles" concerning onus and standard of proof and that she had applied those principles.
The judge then turned to the applicant's submission concerning findings of credit. As I have explained, the gist of the argument was that, while it was acknowledged that the authorities recognize the duty of an appellate court reviewing findings of fact to recognise the advantages enjoyed by the judge who conducted the trial, those authorities had no application in the present case because there was "no suggestion" in the magistrate's judgment that her conclusions turned on "demeanour and perception". The judge rejected that submission:
"I find, reading the totality of her Honour's judgment, that it is impossible to conclude other than she rightly used the benefit of having seen the witnesses and assessed their credit in a manner which is simply not available to me."
[12]
Orders
Accordingly, the orders I propose are:
1. extend the time within which the summons may be filed to 17 December 2020.
2. dismiss the summons with costs.
[13]
Amendments
25 August 2021 - Typographical error in par [31]
Typographical error in par [41]
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Decision last updated: 25 August 2021
The applicant's counsel in this Court frankly conceded that counsel in the District Court had not given the primary judge all of the assistance which his Honour might reasonably have expected, principally by directing him to the passages of the transcript and other materials relevant to the applicant's arguments. It was nevertheless submitted that the arguments made on the applicant's behalf required the judge to undertake a detailed consideration of the evidence given at trial, and that it was to be inferred from his Honour's reasons (and, perhaps, the fact of their ex tempore delivery shortly after the close of submissions) that he had not done so.
Identifying the factual and evidentiary issues raised before the primary judge is complicated by the fact that in his written and oral submissions counsel for the applicant in the District Court gave significant attention to two arguments now accepted to be erroneous. The first was that the magistrate had committed a "Liberato error" (Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66) in failing, after rejecting the applicant accused's version of events, to consider whether on all of the evidence the prosecution case had been proved beyond reasonable doubt. That case included that the applicant did not punch the complainant in self-defence. The second was that the magistrate's findings had not been affected by her Honour's advantage in assessing the two witnesses' credibility, and accordingly that they were not entitled to deference on the appeal.
The difficulty for the present application is that in his argument the applicant's counsel did not maintain a clear conceptual distinction between the alleged Liberato error and any alleged factual error in the magistrate having been satisfied beyond reasonable doubt of the applicant's guilt. In relation to the latter, it was not clearly put that the magistrate's factual findings based on her acceptance of the complainant's evidence were erroneous as inconsistent with aspects of the complainant's evidence or the evidence of her injuries and bruising after the event. Rather, as McCallum JA concludes, there was no clearly articulated argument the resolution of which required the primary judge to review the whole of the evidence once he had rejected the submission that the magistrate had not determined the case by reference to her findings as to credit.
WHITE JA: I agree with McCallum JA.
McCALLUM JA: This application raises an interesting question as to the nature of the function conferred on the District Court in an appeal against conviction from the Local Court.
The applicant was convicted in the Local Court of an assault against his then wife. He appealed unsuccessfully to the District Court. The argument in the District Court focussed primarily on aspects of the magistrate's reasoning process. The judge's decision in turn addressed those particular complaints and otherwise included little analysis of the evidence. The applicant contends that, in taking that approach, the judge failed to discharge his appellate function in that he could not properly determine the appeal without considering the whole of the evidence before the magistrate and forming his own view as to the applicant's guilt. It is the correctness of that contention that is in issue in the present application.
There is no right of appeal from a decision of the District Court in its appellate jurisdiction. The present application invokes the only avenue for challenging such a decision in this Court, which is to seek judicial review in exercise of the Court's supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). While s 69 also contemplates review for error of law on the face of the record where allowed, the effect of s 176 of the District Court Act 1973 (NSW) is to limit this Court's power concerning a decision of the District Court in its appellate jurisdiction to review for jurisdictional error: Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10] (Basten JA, Giles and McColl JJA agreeing).
The ground for review relied upon by the applicant in the present application would, if made out, establish jurisdictional error. The applicant's essential point is that the provisions under which the appeal to the District Court was brought impose a requirement on that Court to undertake an independent assessment of the evidence before the Local Court, and to form its own view of the facts, regardless of the issues raised in the appeal. If that were the effect of the provisions in question, a failure to undertake that task would indicate a misapprehension of the nature of the function conferred by the Act, and so would be an example of the first kind of jurisdictional error described in the decision of the High Court in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72].
However, as I will explain, that is not the effect of the provisions under which the appeal to the District Court was brought. I am not persuaded that the judge misconceived his jurisdiction or failed to perform his statutory function having regard to the issues raised by the applicant for determination by the District Court.
It has been accepted that the statutory incidents of the right under s 11(1) to appeal against sentence, particularly the entitlement to a rehearing of the evidence coupled with the unqualified entitlement under s 17 to give fresh evidence, indicate that the nature of such an appeal is more akin to a hearing de novo and that the function of the District Court in determining such an appeal is properly characterised as a fresh sentencing task requiring the Court to consider all available sentencing options and to form its own view as to the appropriate sentence: Wany v Director of Public Prosecutions (2020) 103 NSWLR 620; [2020] NSWCA 318 at [27]-[28]; citing Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 at [91]-[92].
The applicant does not contend that an appeal against conviction, although a right conferred by the same section, is an appeal of the same kind. There used to be a right of appeal of that kind, requiring the prosecutor to prove the charge afresh in the District Court by calling the witnesses again. Such an appeal was commonly referred to as an "all grounds" appeal, which is perhaps a lawyerly way of describing an "appeal" that is not really an appeal at all but rather a process invoking the original jurisdiction of the District Court: cf Schokman v Director of Public Prosecutions [2001] NSWCA 334 at [5] (Mason P).
The changes effected by the reforms that replaced the old kind of appeal are explained in the helpful judgment of Mason P in Charara v R (2006) 164 A Crim R 39; [2006] NSWCCA 244. That case went to the Court of Criminal Appeal as a case stated by an experienced judge of the District Court who, after the reforms had been introduced, continued to apply the process that was no doubt familiar to his Honour by directing that an appeal against conviction under s 11(1) of the Crimes (Appeal and Review) Act was to proceed by way of the witnesses giving evidence, even though neither party had sought that course. The judge stated a case pursuant to s 5B of the Criminal Appeal Act 1912 (NSW) asking whether he had erred in so doing. The Court of Criminal Appeal held that he had. Mason P (with whom Kirby and Hoeben JJ agreed) explained the appellate function under s 11(1) of the Crimes (Appeal and Review) Act as follows at [15]-[18] (the passage begins with a discussion of the old kind of appeal):
15 This "all grounds" appeal was often referred to as being by way of rehearing…but always in a context explaining that the District Court (as successor to the Quarter Sessions) was obliged to hear the matter de novo. In R v Longshaw (1990) 20 NSWLR 554, Gleeson CJ (at 561) described Sweeney as holding that "the appeal was by way of re-hearing, in the widest sense of the term, that is to say a hearing de novo".
16 Appeals to the District Court are no longer of this nature. Recently, in Gianoutsas v Glykis [2006] NSWCCA 137, this Court held that the clear language of s18 precludes the District Court from treating an appeal of this nature as a hearing de novo (see the reasoning of the Chief Judge at Common Law at [24]-[31]).
17 The appeal is to be by way of rehearing on the Local Court transcripts (s18(1)), obviously supplemented by reference to any exhibits tendered in the Local Court. Fresh evidence may be given by leave, subject to the District Court being satisfied that it is in the interests of justice that this should occur (s18(2)).
18 The District Court is then required to apply the principles governing appeals from a judge sitting without a jury. The Judge is to form his or her own judgment of the facts so far as able to do so, ie recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court (Bell v Stewart (1920) 28 CLR 419 at 424-5, Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212, Fox v Percy (2003) 214 CLR 118).
Consistently with those remarks, the applicant accepts that his appeal did not require the prosecutor to prove the assault charge afresh by calling the witnesses again. He contends, however, that the judge had to consider, on the basis of the evidence given in the Local Court, whether the prosecution had discharged its onus of proof beyond reasonable doubt.
At the same time, the applicant accepts that the jurisdiction of the District Court in a conviction appeal under s 11(1) is error-based and that he was accordingly required to demonstrate in the District Court that the decision of the magistrate was the result of some legal, factual or discretionary error. I note that, in AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218, this Court was divided on the issue of whether an appellant in a conviction appeal under s 11(1) must establish error. As it turned out, the issue did not have to be determined in that case. As a result of the position taken by the applicant, it does not have to be determined here either. The applicant's submissions accepted that the jurisdiction is error-based, citing the decision of the High Court in Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 at [23]. Had it been necessary to decide the question, I would have taken the same view for the reasons given by Basten JA in AG.
The applicant's central proposition is that, at a rehearing, the judge is to form his or her own judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate. In his written submissions, the applicant supported that proposition by reference to the decision of this Court in Director of Public Prosecutions (NSW) v Burns (2010) 207 A Crim R 362; [2010] NSWCA 265 at [23]. That paragraph simply summarises what Mason P said in Charara at [18] with a small omission that may seem trivial but is potentially significant. Mason P said in Charara at [18], "the Judge is to form his or her own judgment of the facts so far as able to do so, ie recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court." The use of the abbreviation "ie" qualifies the clause "so far as able to do so" and thus implicitly recognises that, in some cases, the advantage enjoyed by the magistrate would be such that the judge would not be able to form his or her own judgment of the facts.
In the summary of that paragraph in Burns at [23], the abbreviation "ie" is omitted, with the result that the passage reads as providing support for the contention that the judge must form his or her own judgment of the facts in every case even if the magistrate enjoyed an advantage that could never be replicated on the papers. That is precisely the argument put by the applicant here. He accepts that the authorities call upon appellate judges to recognise the trial judge's advantages over appellate judges in receiving "evidence of a particular nature". However, he submits that, equally:
"the authorities emphasise that an appellate judge is not by reason of that disadvantage released from his or her statutory duty to undertake a review of the trial judge's reasons and the underlying evidence and come to his or her own conclusions. Under s 18(1) of the Appeal and Review Act, that duty extends to a full rehearing of the matter on the basis of the material before the court below."
The amended summons specified two discrete alleged failings on the part of the judge, first, that he did not form his own judgment of the facts relevant to appeal but instead confined himself to an assessment of the magistrate's reasons and, secondly, that his Honour did not consider whether the prosecution had discharged its burden of proving the charge (including disproving self-defence) beyond reasonable doubt.
The applicant's ground for review as framed (that the judge "erred in failing to conduct a rehearing of the plaintiff's appeal on the basis of the evidence in the original Local Court proceedings") echoes but does not exactly replicate the language of s 18(1) of the Crimes (Appeal and Review) Act. That section does not, in terms, direct a rehearing of the evidence. As already noted, the section directs that the appeal is to be "by way of rehearing on the basis of evidence" given in the Local Court. It is not (as in the case of a sentence appeal) a rehearing "of the evidence", or even a rehearing "on the basis of the evidence" given in the Local Court.
The Director of Public Prosecutions contends that, on the proper construction of s 18 and having regard to the issues raised in the appeal in the District Court, the judge was not called upon to undertake a full review of all of the evidence in the present case. The Director submitted that, in a conviction appeal under s 11(1) of the Crimes (Appeal and Review) Act, the District Court is not required to undertake "a free-standing review of the evidence" in the absence of guidance and particular submissions by the parties. He noted that the applicant's argument took issue with two particular aspects of the reasoning process of the magistrate who found him guilty in the Local Court. He submitted that, having rejected the two particular complaints raised, the judge was not obliged to proceed to review the whole of the record with a view to forming his own judgment as to the applicant's guilt.
I agree. The applicant's submissions implicitly assume that the term "rehearing" has the same meaning wherever used. It is clear from the authorities to which I have referred (amongst others) that that is not the case. The guiding principle must always be to go to the statute and examine the statutory incidents of a right of appeal in order to determine what kind of appeal it is.
It is important to recall that the remarks of Mason P in Charara at [18] applied in Burns at [23] were directed to explaining the difference between a hearing de novo of the old kind (in effect, a second bite at the cherry) and a rehearing of the kind contemplated by s 18 of the Crimes (Appeal and Review) Act. The Court was not called upon in that case to determine the complete scope of the function conferred by s 18; the ratio of the decision is that it is not a hearing de novo.
As Basten JA has noted more recently, the decision in Director of Public Prosecutions v Emanuel (2009) 193 A Crim R 552; [2009] NSWCA 42 provides an example of "the other extreme" where the District Court treated itself "not as reviewing or assessing the evidence before the Local Court, but apparently conducting an exercise in judicial review": McKellar v Director of Public Prosecutions [2011] NSWCA 91 at [9]. That was also wrong.
It is clear from those decisions that a conviction appeal under s 11(1) of the Crimes (Appeal and Review) Act is neither a hearing de novo requiring (or permitting) the prosecution to prove the charge afresh nor, at the other end of the spectrum, a species of judicial review in which the judge is relieved of any obligation to consider the case on its merits.
However, it does not follow that the function conferred by ss 11(1) and 18 requires the District Court in every case to review the whole of the record of the proceedings in the Local Court and to form an independent assessment of the applicant's guilt. That is not what the decision in Charara holds.
For convenience, I repeat the relevant passage from the judgment of Mason P at [18]:
"The District Court is then required to apply the principles governing appeals from a judge sitting without a jury. The Judge is to form his or her own judgment of the facts so far as able to do so, ie recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court (Bell v Stewart (1920) 28 CLR 419 at 424-5, Paterson v Paterson [1953] HCA 74; (1953) 89 CLR 212, Fox v Percy (2003) 214 CLR 118)."
In those remarks, Mason P was describing in general terms the function of the appellate court in an appeal from a judge sitting without a jury. His Honour was not purporting to give a definitive exposition of the appellate process to be applied in such an appeal in every case. For the reasons already explained, that requires a careful analysis of the statutory incidents of the right of appeal in question, an exercise which was not necessary in order to answer the case stated for the Court in Charara.
None of the authorities to which Mason P there referred considered s 11(1) of the Crimes (Appeal and Review) Act. Further, none of those decisions supports the contention that a complete review of the evidence is mandatory in every appeal by way of rehearing regardless of the issues raised by the appellant. Bell v Stewart (1920) 28 CLR 419; [1920] HCA 68 was a decision of the High Court on appeal from the Petty Sessions by means of orders nisi to review pursuant to s 73 of the Constitution, which specifies the appellate jurisdiction of the High Court. The issue was whether the High Court was constrained in the same way as the Supreme Court in such an appeal to uphold the decision if it were "such as a reasonable man might give" rather than reconsidering the evidence and giving its own independent judgment. Unsurprisingly, the High Court held that the appeal rules did not limit the right of appeal given by the Constitution. The Court then said at 424-425: "it follows that it is the duty of this Court in the present case to give its own judgment according to its own opinion in the same manner as on appeals from a judge sitting without a jury".
The decision in Paterson v Paterson (1953) 89 CLR 212; [1953] HCA 74 goes further and provides a measure of support for the approach taken by Weber SC DCJ in the present case. As hinted by the name of the case, that was a matrimonial cause. The husband had brought a suit for dissolution of marriage on the ground of the wife's alleged adultery. The factual context in which the proceedings were brought was familiar enough:
"He seems to have complained that she went out and manifested too much interest in other men. She was not satisfied with his conduct."
After the couple separated, the husband had the wife kept under surveillance. The observations made by the private investigator provided a circumstantial case of adultery which both the wife and her alleged lover denied. The judge at first instance heard their evidence, disbelieved them and found adultery proved. The joint judgment of Dixon CJ and Kitto J (which repays careful reading) discusses the long-recognised distinction between cases in which the result depends on a view taken of conflicting evidence and cases in which it depends on inferences drawn from uncontroverted facts. Their Honours noted in that context the "antinomy in a duty to rehear and a restriction to recorded material". The decision provides clear support for the proposition that, while the appellate court must discharge its statutory function, there will be cases in which the trial judge's assessment of the general credibility of the witnesses and the reliability of their observations will be decisive: "these are matters in which [the trial judge's] opinion could not be reversed by a court of appeal notwithstanding its undoubted jurisdiction to re-examine the whole case": at 224
The third authority cited by Mason P in Charara was Fox v Percy (2003) 214 CLR 118; [2003] HCA 22. That decision was concerned with the nature of an appeal by way of rehearing in this Court under s 75A of the Supreme Court Act 1970 (NSW). In the joint judgment of Gleeson CJ, Gummow and Kirby JJ, their Honours were careful to make clear that earlier statements by the High Court concerning the need for appellate respect for the advantages of trial judges, "especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not", remained "the instruction of this Court to appellate decision-making throughout Australia": at [26]-[27]. The judgment continues:
"However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute."
The instruction that "such courts must conduct the appeal by way of rehearing" was made in the context that s 75A(5) of the Supreme Court Act provides "Where the decision or other matter under appeal has been given after a hearing, the appeal shall be by way of rehearing". At the risk of undue repetition, in order to determine what is required to be done in order to "perform the appellate function as established by Parliament" in the present case, it is necessary to examine the statutory incidents of the grant of the right of appeal against conviction under ss 11(1) and 18 of the Crimes (Appeal and Review) Act.
The applicant's contention that a statutory requirement to conduct an appeal by way of rehearing requires the appellate court to undertake "a full rehearing of the matter" echoes the well-established obligation imposed on the Court of Criminal Appeal, in an appeal under s 6(1) of the Criminal Appeal Act 1912 (NSW) on the ground that the verdict is unreasonable, or cannot be supported, having regard to the evidence, to "make an independent assessment of the whole of the evidence, to determine whether the verdicts of guilty could be supported": SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [22]. If that is what is meant by the applicant's insistence that District Court in an appeal from the Local Court must undertake "a full rehearing of the matter", that proposition finds no support in Fox v Percy. The joint judgment in that case acknowledges at [23] that the appellate court in a rehearing under s 75A of the Supreme Court Act "does not typically get taken to, or read, all of the evidence taken at the trial".
Other decisions of this Court since Charara was decided in the Court of Criminal Appeal have acknowledged that the scope of the Court's function in an appeal under s 11(1) of the Crimes (Appeal and Review) Act is properly informed by the scope of the issues raised by the applicant: see AG at [35] (Basten JA); Lazarus v Independent Commission Against Corruption [2019] NSWCA 100 at [58] (the relevant remarks concerned a sentence appeal governed by s 17). The Director also relied on a remark to like effect in the judgment of Simpson JA in AG at [103] but it must be acknowledged that the remark was made in the context that her Honour considered that a conviction appeal under s 11(1) requires the District Court judge to form his own judgment as to the facts and whether they warranted the conclusion (the judge's conclusion) that the applicant was guilty.
In any event, I am not persuaded that the direction in s 18 of the Crimes (Appeal and Review) Act that a conviction appeal under s 11(1) of the Act is to be "by way of rehearing on the basis of evidence given in the Local Court proceedings" is to be construed as a direction that the District Court must, in every case, undertake a complete review of the whole of the evidence and form its own view as to the applicant's guilt regardless of the issues raised by the appellant. The extent of the review required in any individual case will depend on the circumstances of the case and the kind of error alleged (as to which see AG at [34] (Basten JA) and the authorities to which his Honour refers).
Accordingly, in order to determine whether the judge failed to discharge his statutory function in the present case, it is necessary to consider the conduct of the appeal in the District Court. For that purpose, it is appropriate first to explain the circumstances in which the appeal to that Court was brought.
It appears to have been common ground that an argument developed and that it became physical. It also appears to have been common ground that, at some point, the complainant struck the applicant with the side of her hand (resulting in her suffering a broken bone; she explained that she had poor bone density and could break a bone "doing a push-up") and that at some point the applicant pushed her to the chest causing her to fall to the ground. The complainant gave evidence that, while she was on the ground, the applicant put his fist into her "jawline" and then punched her in the area of the mouth or chin, resulting in bleeding inside her mouth. She said her hand was injured when she tried to push him away with a "hammer strike" movement.
The complainant's mother gave evidence that she was downstairs and heard her daughter scream. She went upstairs and saw her daughter sitting on the floor distraught with her head in a paper towel which was bloodied. She said the applicant was standing over the complainant yelling at her to be quiet.
The applicant's evidence was that the complainant started the physical fight by punching him to the side of the head while they were both standing up. He said he did not respond to her initial punch; that she continued to punch him and that after several punches he pushed her away. It was put to the complainant by the applicant's counsel that, upon being pushed, she spun around and threw herself to the ground. However, the applicant's evidence in chief was that he pushed her away and that she "went backwards…stumbled backwards" and "tripped over" or "fell over". He said that the complainant had hold of his right shoulder with her left hand as she hit him, so he pushed her "partly to break that hold" and to move her away from him. He denied punching her. He denied that he was standing over the complainant when the mother arrived; he said at that time he was kneeling next to her checking to see if she was alright.
The magistrate reserved her decision and delivered her judgment orally on 13 November 2019. Her Honour found the charge of assault occasioning actual bodily harm proved beyond reasonable doubt. Noting that the charge of common assault was a back-up charge, her Honour dismissed that charge.
It may be noted that, while the submission invited determination of the appeal "on the transcript", that invitation was predicated (appropriately) on acceptance of the proposition that the magistrate's decision involved the errors of reasoning complained of.
Separately, there was an application to adduce fresh evidence. Section 18(2) of the Crimes (Appeal and Review) Act provides that fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. Section 19(1) imposes an additional constraint, providing that, in the case of an appeal relating to an offence involving personal violence (as here), the Court may only require the attendance of the complainant if satisfied that there are special reasons why, in the interests of justice, the person should attend and give evidence.
Mr James then addressed the standard of review to be applied by the judge. He submitted that the function to be performed was not the same as that required of the Court of Criminal Appeal ("to construe the judgment"); he said "this is a rehearing". He acknowledged the authorities that hold that an appellate court reviewing factual findings should defer to the advantage enjoyed by the trial court in seeing and hearing the witnesses but submitted that the magistrate had not embarked on any inquiry turning on the issue of demeanour and perception in the present case. Shorn of any context, those submissions implicitly invited the judge to form his own view of the facts; the question is, to what end? The only submissions that had been put as to any error in the magistrate's reasoning were those I have set out above. Further and in any event, the submission implicitly recognised that, if the judge considered that the findings of the magistrate were based on "demeanour and perception", he would not intervene with them.
The prosecutor made a single, short submission in response, which was that the magistrate had clearly turned her mind to the requirement for the prosecution to discharge the onus, directing his Honour's attention to a passage of the judgment in which the magistrate directed herself that she could not find the applicant guilty unless satisfied beyond reasonable doubt that the complainant's account was both honest and accurate after examining that evidence very carefully.
Having rejected the submission that this was not a case in which he was at any disadvantage to the magistrate in respect of the evaluation of the credibility of the witnesses, the judge turned to consider the principles that govern such appeals. He cited the decision in Charara which he understood (with respect, correctly) to hold that criminal appeals of the kind he was hearing are governed by the same principles that govern the review of facts in appeals in civil cases decided by a judge without a jury including the principles stated in Fox v Percy.
The judge noted that magistrates hearing criminal matters do have the benefit of having seen the witnesses and also "the benefit of seeing the entirety of the evidence in circumstances where they can place all that evidence in context in a manner in which a judge sitting on appeal, such as myself, cannot."
The judge concluded that the magistrate accepted the essence of the complainant's evidence beyond reasonable doubt; that in dealing with the defence of self-defence she clearly appreciated the need to consider both limbs of that defence and that, after a thorough analysis of the evidence, she was satisfied that the defence had been "negatived beyond reasonable doubt".
The judge's decision concluded:
"Consequently, conscious as I am of the requirements of me to give due deference to the decision making of the magistrate who has seen the witnesses below, and more importantly has been exposed to the totality of the evidence, I am of the view that the appeal lacks merit and it is dismissed."
The applicant submitted that the judge misconceived his jurisdiction because he proceeded on the basis that, because the magistrate had made credibility findings, his Honour was absolved from the need to reach his own conclusion about the applicant's guilt having regard to his own assessment of the evidence.
I do not accept that submission. In addressing the credibility findings, the judge was of course addressing the argument that the magistrate had not decided the case on the basis of credibility findings. That was an ambitious argument. This was the paradigm of a case in which the magistrate who saw and heard the witnesses called in the lower court enjoyed an advantage that could not be replicated in the appeal. Senior counsel for the applicant in this Court submitted that the judge should at least have watched the DVEC. The High Court in SKA rejected a similar complaint. The majority at [28]-[29] endorsed the correctness of the observation of Simpson JA in the Court of Criminal Appeal that "viewing the recording might create an imbalance, given that the Court would not be viewing the evidence of other witnesses". Crennan J, with whom the majority and Heydon J agreed on this issue at [26] and [37] respectively, noted at [116] that the applicant's counsel had not identified "any forensic purpose to be served by having the Court of Criminal Appeal view the video recording" and that defence counsel had not urged that course upon the Court. The position is the same here.
The applicant noted that counsel appearing in the appeal in the District Court asserted on a number of occasions that the judge would have to "read the whole of the rest of the material". He acknowledged that those submissions were made in support of the application to give fresh evidence but submitted they were also "properly seen in the context of the applicant's case on the appeal and the specific references [set out in the submissions] which directed the District Court to the record in general and to specific evidentiary issues".
As already noted, the judge adjourned after hearing the submissions on the fresh evidence application. The transcript does not disclose the length of the adjournment except that it was the luncheon adjournment and he adjourned until 2.30. The transcript also does not indicate whether or the extent to which the judge had an opportunity to read the papers before the hearing began. What is clear is that his Honour reached the view that this was a case of the kind contemplated in the authorities referred to by Mason P in Charara in which the magistrate's decision was critically informed by her Honour's impression about the credibility of witnesses she saw and the judge did not.
The submissions in the District Court did not seek to impugn the magistrate's assessment about the credibility of witnesses she saw. Rather, it was submitted that issues of "demeanour and impression" had not come into play (when they clearly had) and two particular points were made about the magistrate's reasoning, both of which were rejected by the judge.
In short, there was no clearly articulated argument the resolution of which required the judge to review the whole of the evidence once he had rejected the ambitious submission that the magistrate had not determined the case on the basis of credibility findings.
Mr Strickland SC, who appeared with Ms Poukchanski for the Applicant, submitted that the judge had to undertake a "real review" in accordance with the principles stated in Fox v Percy at [25]:
"Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect".
However, as submitted by the Director, that principle does not require the Court to undertake a free-standing review of the evidence in the absence of guidance and particular submissions by the parties.
The course the judge took in the present case responded to the manner in which the appeal was argued by senior counsel. A submission was put that the magistrate's decision was not based on credit findings whereas it plainly was. The submissions were otherwise directed to the magistrate's reasoning process and dealt with by the judge on the same terms. It may be noted in that context that the magistrate's reasons were careful and thorough. No doubt the quality of the judgment and the narrow scope of the submissions on appeal emboldened the judge to give an ex tempore judgment.