[1998] HCA 76
Charara v The Queen (2006) 164 A Crim R 39
[2006] NSWCCA 244
Commonwealth v Bank of New South Wales (1949) 79 CLR 497
[1950] AC 235
Costa v Public Trustee of NSW [2008] NSWCA 223
Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192
Source
Original judgment source is linked above.
Catchwords
[2000] HCA 40
CDJ v VAJ (1998) 197 CLR 172[1998] HCA 76
Charara v The Queen (2006) 164 A Crim R 39[2006] NSWCCA 244
Commonwealth v Bank of New South Wales (1949) 79 CLR 497[1950] AC 235
Costa v Public Trustee of NSW [2008] NSWCA 223
Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192[1970] HCA 43
Driclad Pty Limited v Federal Commissioner of Taxation (1968) 121 CLR 45[1968] HCA 91
Dyason v Butterworth [2015] NSWCA 52
Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 221 CLR 309[2015] HCA 29
Fleming v The Queen (1998) 197 CLR 250[1998] HCA 68
Fox v Percy (2003) 214 CLR 118[2003] HCA 22
Gianoutsos v Glykis (2006) 65 NSWLR 539[2006] NSWCCA 137
Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186[2006] NSWCA 187
In re ChennellJones v Chennell (1878) 8 Ch D 492
Jackmain (a pseudonym) v R (2020) 102 NSWLR 847[2020] NSWCCA 150
Knaggs v Director of Public Prosecutions [2007] NSWCA 83
Liberato v The Queen (1985) 159 CLR 507[1985] HCA 66
Liristis v Director of Public Prosecutions (NSW) [2016] NSWCA 66
(2016) 75 MVR 127
Lunney v Director of Public Prosecutions (NSW) [2021] NSWCA 186
M v The Queen (1994) 181 CLR 487
[2007] NSWCA 121
Mulder v Director of Public Prosecutions (Cth) (2015) 250 A Crim R 154
[2015] NSWCA 92
Ponnamma v Arumogam [1905] AC 383
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1
[2018] HCA 4
R v Kurtic (1996) 85 A Crim R 57
Re Coldham
Ex parte Brideson [No 2] (1990) 170 CLR 267
Judgment (20 paragraphs)
[1]
ll (1878) 8 Ch D 492
Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150
Knaggs v Director of Public Prosecutions [2007] NSWCA 83
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
Liristis v Director of Public Prosecutions (NSW) [2016] NSWCA 66; (2016) 75 MVR 127
Lunney v Director of Public Prosecutions (NSW) [2021] NSWCA 186
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
McKellar v Director of Public Prosecutions (NSW) [2011] NSWCA 91
Mordaunt v Director of Public Prosecutions (NSW) (2007) 171 A Crim R 510; [2007] NSWCA 121
Mulder v Director of Public Prosecutions (Cth) (2015) 250 A Crim R 154; [2015] NSWCA 92
Ponnamma v Arumogam [1905] AC 383
Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd (2018) 264 CLR 1; [2018] HCA 4
R v Kurtic (1996) 85 A Crim R 57
Re Coldham; Ex parte Brideson [No 2] (1990) 170 CLR 267; [1990] HCA 36
Sasterawan v Morris (2007) 69 NSWLR 547 [2007] NSWCCA 185
Spanos v Lazaris [2008] NSWCA 74
Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344
Victorian Stevedoring (1931) 46 CLR 73
White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277
Wood v The Director of Public Prosecutions [2006] NSWCA 240
Woodhouse v Director of Public Prosecutions (NSW) [2015] NSWCA 40
Texts Cited: Crimes (Appeal and Review) Act 2001 - Report on the Statutory Review of the Act August 2008, par 5.7, pp 27-28
New South Wales Legislative Council, Parliamentary Debates (Hansard), 17 September 1998
Category: Principal judgment
Parties: Andrew Graham McNab (Applicant)
Director of Public Prosecutions (NSW) (First Respondent)
District Court of New South Wales (Second Respondent) (Submitting appearance)
Representation: Counsel:
[2]
B K Lim (Applicant)
D Kell SC with E S Jones (First Respondent)
[3]
Makinson d'Apice Lawyers (Applicant)
Office of the Director of Public Prosecutions (NSW) (First Respondent)
Crown Solicitor's Office NSW (Second Respondent)
File Number(s): 2021/111247
Publication restriction: N/A
Decision under appeal Court or tribunal: District Court of New South Wales
Jurisdiction: Criminal
Date of Decision: 25 March 2021
Before: McLennan SC DCJ
File Number(s): 2020/82903
[4]
[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.]
[5]
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 18 November 2020, Mr Andrew Graham McNab (the Applicant), a medical practitioner, was convicted in the Local Court of New South Wales at Lismore on a charge of committing an aggravated sexual act contrary to s 61KF(1)(a) of the Crimes Act 1900 (NSW), without the consent of the Complainant. She was both his patient and employee.
In essence, the Crown case was that during a medical examination on 5 December 2019, the Applicant removed the Complainant's underwear for a sexual purpose. The circumstance of aggravation was the Applicant's position of authority over the Complainant. Although there was no issue that the Applicant removed the Complainant's underwear, the issue was his purpose for doing so. To prove a sexual purpose, the Crown relied centrally on the Complainant's oral evidence to the effect that the Applicant made certain statements of a sexual nature to her immediately after removing her underpants.
The Complainant was challenged on her evidence as to this conversation, and the Applicant gave evidence in his defence including a different account of the conversation that occurred after he removed the Complainant's underpants. The Applicant specifically denied making the statements alleged by the Complainant, and denied having any sexual purpose.
In the Local Court, the magistrate was satisfied that the offence was proved, and twice described the Complainant as "an outstanding witness", finding that the "conversation that she alleges took place, in fact took place". Although the magistrate recorded no express findings about the Applicant's credit, it was implicit in the finding as to the conversation that the magistrate rejected the Applicant's denial that it took place in the terms attested to by the Complainant.
On appeal to the District Court of New South Wales pursuant to ss 11 and 18 of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act), the District Court Judge indicated that he was to form his own view of the facts, taking into account the advantage enjoyed by the magistrate who saw and heard the witnesses, and that he was "entitled to consider findings of credibility by the magistrate". The District Court Judge held that he did not accept the Applicant's evidence as to his lack of sexual purpose, that he regarded the Complainant's evidence as coherent and compelling, and that he was satisfied beyond a reasonable doubt of the Applicant's guilt, thereby dismissing the Applicant's appeal against conviction.
The Applicant commenced the present proceedings for judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). The principal issues on review were:
1. whether the District Court Judge committed jurisdictional error by having regard to the magistrate's reasons, and the magistrate's assessment of the Complainant as an "outstanding witness";
2. whether an appeal to the District Court under s 18 of the CAR Act required the demonstration of error;
3. whether the onus remained on the Crown to establish on appeal that the appellant was guilty beyond reasonable doubt.
The Court held, dismissing the application for judicial review:
1. The District Court Judge did not commit jurisdictional error by having regard to the magistrate's reasons and the magistrate's assessment of the Complainant as an "outstanding witness". As was required, the District Court Judge formed his own judgment as to the facts and of the Applicant's guilt beyond reasonable doubt. The reference in s 18(1) of the CAR Act to the appeal being by way of rehearing "on the basis of evidence given" in the Local Court proceedings did not preclude, either expressly or impliedly, reference to the reasons of the magistrate and any findings by the magistrate as to the credibility of witnesses: [29]-[41] (Bell P); [69]-[82] (Basten and McCallum JJA).
Charara v The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244; Federated Carters' and Drivers' Industrial Union of Australia v Motor Transport and Chauffeurs' Association of Australia (1912) 6 CAR 122; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; Knaggs v Director of Public Prosecutions [2007] NSWCA 83; Mordaunt v Director of Public Prosecutions [2007]; Director of Public Prosecutions [2006] NSWCA 240, considered.
1. An appeal to the District Court under s 18 of the CAR Act does require demonstration of a factual, legal or discretionary error in order to succeed: [24] (Bell P); [83]-[90] (Basten and McCallum JJA).
AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 at [8]-[37]; Charara v The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244; Dyason v Butterworth [2015 WCA 121; 171 A Crim R 510; Spanos v Lazaris [2008] NSWCA 74; Wood v The] NSWCA 52; Lunney v Director of Public Prosecutions (NSW) [2021] NSWCA 186; McKellar v Director of Public Prosecutions (NSW) [2011] NSWCA 91; Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92, considered and applied.
Gianoutsos v Glykis (2006) 65 NSWLR 539; [2006] NSWCCA 137, doubted.
1. The fact that an appellant must demonstrate error on appeal does not reverse the onus of proof, in that the prosecution at all material times bears the onus of establishing guilt beyond reasonable doubt: [26] (Bell P); [91] (Basten and McCallum JJA).
Charara v The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244 at [22]; Gianoutsos v Glykis (2006) 65 NSWLR 539; [2006] NSWCCA 137 at [42], considered.
[6]
Judgment
BELL P: Before this Court is an application for judicial review brought by Mr Andrew McNab (the Applicant) of the decision of McLennan SC DCJ (the District Court Judge), dismissing the Applicant's appeal against conviction in the Local Court of New South Wales at Lismore on 18 November 2020 for the offence of aggravated sexual act contrary to s 61KF(1)(a) of the Crimes Act 1900 (NSW).
The appeal to the District Court of New South Wales was brought pursuant to ss 11 and 18 of the Crimes (Appeal and Review) Act 2001 (NSW) (the CAR Act). Section 18(1) provides that "[a]n appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19".
In short, the Applicant's contention was that the District Court Judge committed a jurisdictional error by having regard to the magistrate's reasons and, in particular, the magistrate's assessment of the Complainant as an "outstanding witness". It was put that, in an appeal "by way of rehearing" under s 18 of the CAR Act, the District Court could only have regard to evidence that was before the Local Court, together with any further evidence given by a witness required to attend to give evidence pursuant to s 19 of the CAR Act. The corollary of this, it was submitted, was that the District Court was not permitted to have regard to the reasons of the magistrate and, in particular in the context of the present matter, the magistrate's positive observations in those reasons bearing on the credit of the Complainant.
This argument, skilfully developed by Dr Lim, entailed a challenge to a series of decisions of this Court, starting with the reasoning of Mason P in Charara v The Queen [1] and, if correct, would have potentially significant ramifications for the conduct of appeals to the District Court from convictions in the Local Court, at least where issues of credit loomed large (as they invariably do in cases of sexual assault where there is a dispute between the Complainant and the accused as to what may have transpired between them in a setting where no other person was present).
The argument advanced on behalf of the Applicant also squarely raised two related questions: first, whether an appeal to the District Court under s 18 of the CAR Act required the demonstration of error, and, secondly, whether the onus remained on the Crown to establish on appeal that the appellant was guilty beyond reasonable doubt. As to the first of these questions, there is a qualified divergence of authority in this Court as exemplified in the reasons of Basten JA and Simpson JA in AG v Director of Public Prosecutions (NSW), [2] albeit that Simpson JA expressed her opinion in AG somewhat cautiously. The decision of the Court of Criminal Appeal in Gianoutsos v Glykis [3] stands for the proposition that error is not required to be established, whilst Charara (and a number of decisions following it) is to the opposite effect.
[7]
Factual background
The Applicant is a medical practitioner. On 18 November 2020, he was convicted in the Local Court of an aggravated sexual act without the consent of the Complainant contrary to s 61KF(1)(a) of the Crimes Act. She was both his patient and employee. [reason: avoid ambiguity]
The Crown case was, in essence, that the Applicant, during a medical examination on 5 December 2019, removed the Complainant's underwear for a sexual purpose. The circumstance of aggravation was the Applicant's position of authority over the Complainant.
Although there was no issue that the Applicant removed the Complainant's underwear, the issue was his purpose for doing so. To prove a sexual purpose, the Crown relied centrally on the Complainant's oral evidence to the effect that the Applicant made certain statements of a sexual nature to her immediately after removing her underpants. It is convenient to refer to this as "the conversation". The Complainant was challenged on her evidence as to the conversation, and the Applicant gave evidence in his defence including a different account of the conversation that occurred after he removed the Complainant's underpants (a fact that was not in dispute). The Applicant specifically denied making the statements alleged by the Complainant, and denied having any sexual purpose.
The reasons of the magistrate were brief and were as follows:
"This defendant is charged with a Crimes Act offence under s 61KF(1)(a) that is;
'Any person that is the "alleged offender" who without the consent of another person that's the "alleged victim" and knowing that the alleged victim does not consent and in circumstances of aggravation intentionally carries out a sexual act with or towards the alleged victim.'
This does not come before the Court without its difficulties, that is the background is that the alleged victim and the defendant were respectively what has been called a scrub nurse and a medical practitioner respectively, working together in a practice in Maclean. The relationship up to but not including 5 December 2019 over a period of about two years had been extremely amiable. Amiable to the extent that some unusual documents were sent by the alleged victim to the doctor involving tattoos on vaginas that was some two weeks before what occurred on the fifth. On the fifth, the alleged victim had an appointment to see the defendant for the removal of a wart or some other object off her foot. During the course of the examination and following that there was consent for her to have her spine looked at.
She gave evidence and I agree she was an outstanding witness, she gave evidence to the effect that she was touched at one point near her backside there was no problem with that because she was asked whether she was comfortable. Her underwear was rolled down a bit. She says the defendant's palms touch her back, then on her undies and she says that she said, "No, no, no", while those underpants were being removed, taken off completely. She says she sat up, got redressed and there was a conversation where upon certain matters were said to have occurred between her and the defendant. As I said she was, in my view, an outstanding witness. The doctor defendant denied that any such conversations did take place and the question has become, was what occurred an act in a reasonable manner.
With respect the evidence from Professor Roche is to the extent that he was asked this, "Do I believe the frilly underpants [of] the type demonstrated could possibly make an effective examination difficult or impossible?" He said this,
'Yes, conceivably but uncommonly this could happen. In this case I would adopt the principles outlined above, namely I would explain to the patient why I was asking them to remove an article of clothing or underwear.'
It is conceded that that didn't take place. "I would check that they are comfortable with the recommendation action", that was not undertaken and in the end I am satisfied that the underpants were removed in a manner that the alleged victim has indicated and I am satisfied that the conversation that she alleges that took place, in fact took place and then having formed that view.
I am satisfied that the offence is proved." (emphasis added).
[8]
The District Court judgment
On appeal, the District Court Judge indicated that he was to form his own view of the facts, taking into account the advantage enjoyed by the magistrate who saw and heard the witnesses, and that he was "entitled to consider findings of credibility by the magistrate". [5]
The District Court Judge noted that the appeal "turn[ed] on issues of credibility", that the magistrate twice referred to the Complainant as being an "outstanding witness", and that implicit in the result was the conclusion that the Applicant was assessed as not being truthful. His Honour indicated that, from his own reading of the transcript, the Applicant appeared "to have been argumentative, arrogant and belligerent when giving evidence and particularly in cross-examination". [6]
The District Court Judge said that he approached the appeal by "put[ting] to one side the reasons for decision of the magistrate but for the one finding that he had made concerning the way in which the Complainant impressed him as a witness", given the fact that the reasons of the magistrate were "so brief" and "omitted to discuss so much". [7]
The District Court Judge concluded:
"To put it simply, I do not accept the appellant's evidence as to his lack of sexual purpose. I regard his conduct that he himself admits he engaged in as demonstrating conduct which would support an inference that he had an improper sexual purpose. I regard the complainant's evidence to be coherent and compelling and I regard the fact that she recently complained in a broadly consistent manner to her mother, her husband and to the police as demonstrating everything that one could possibly do if one was a woman who was a victim of this kind of betrayal.
To put it simply, I am satisfied beyond a reasonable doubt of the accused's guilt and I dismiss the appeal and I uphold the conviction." [8]
[9]
Grounds of review
The Applicant's amended summons outlines the following two grounds of review:
"[1] An appeal against conviction governed by s 18 of the Crimes (Appeal and Review) Act 2001 is not error-based, and the District Court judge misapprehended the nature of his jurisdiction by relying on demeanour-based credit findings of the magistrate instead of calling the complainant and the plaintiff as witnesses in the appeal or otherwise resolving issues of credit according to the criminal onus and standard of proof.
[2] In the alternative… if an appeal governed by s 18 of the Crimes (Appeal and Review) Act 2001 is error-based, the District Court judge misapprehended the nature of his jurisdiction in that respect and thereby failed to deal with the plaintiff's grounds of appeal alleging error (which misapprehension and failure were material because, at least, the judge was not permitted to rely on demeanour-based credit findings of the magistrate in assessing the plaintiff's guilt for himself in any available materiality inquiry)."
[10]
The nature of a s 18 appeal - error-based or not?
In Fleming v The Queen, [9] the High Court observed that "[t]he phrase 'by way of rehearing' has been used to identify various characteristics of the appellate process and does not necessarily have a fixed or settled meaning." Two years later, in Allesch v Maunz, [10] Gaudron, McHugh, Gummow and Hayne JJ observed that:
"the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance." (footnotes omitted, emphasis added).
In Gianoutsos, [11] McClellan CJ at CL took the view that there was, in the CAR Act, such an indication. A different view was taken in Charara, McKellar v Director of Public Prosecutions (NSW), [12] Dyason v Butterworth [13] and AG at [8]-[37] per Basten JA (cf. the "tentative" reasons of Simpson JA to the contrary at [76]ff); see also Lunney v Director of Public Prosecutions (NSW). [14] There are thus competing views in this Court.
What a s 18 appeal by way of rehearing plainly is not is a hearing "de novo". Such an appeal does not involve the demonstration of error cf. Da Costa v Cockburn Salvage & Trading Pty Ltd, [15] quoted by Mason P in Charara at [20]. That a s 18 appeal is not a hearing de novo is confirmed by s 19 of the CAR Act, the text of which is set out in the joint judgment of Basten and McCallum JJA below at [52].
For my part, contrary to McClellan CJ at CL in Gianoutsos, I fail to see any clear statutory indication in the CAR Act which would support a conclusion that the s 18 rehearing is not one that requires error to be demonstrated. For the reasons given in the joint judgment, and in AG, the preferable view, supported by the weight of authority, is that error is required to be demonstrated for an appeal pursuant to s 18 of the CAR Act to succeed.
An appeal is from orders, not reasons, [16] and such error will be identified, if at all, by the process of rehearing. The task for a District Court judge in hearing a s 18 appeal is to form his or her own judgment on the facts and to determine, on the basis of the evidence that was before the magistrate (supplemented by any further evidence received pursuant to s 18(2) of the CAR Act or as a result of the calling of a witness pursuant to s 19), whether that evidence was sufficient to demonstrate the appellant's guilt beyond reasonable doubt. [17] If it did not, error will have been established. Error of law in reaching the conviction may also be established and the rehearing will involve the Court reaching a fresh conclusion as to the appellant's guilt on the basis of evidence given in the Local Court, but without the error of law which tainted the result at first instance. Such a hearing will, however, not be a hearing de novo cf. an appeal pursuant to s 17 of the CAR Act. [18]
[11]
Relevance of Local Court decision for District Court appeal
I also agree with Basten and McCallum JJA at [73] that the reference in s 18(1) of the CAR Act to the rehearing being "on the basis of evidence given in the original Local Court proceedings" does not operate as a code so as to preclude reference, where appropriate, to any findings by the magistrate as to a witness' performance in the witness box.
It is to be appreciated that credit is a wider concept than simply demeanour and conclusions on questions of credit do not invariably depend upon considerations of demeanour. [20] Whilst a magistrate or judge who has seen a witness give his or her evidence will have some advantages which a judge on appeal necessarily will not have, the most important consideration is whether the disputed evidence is consistent with the incontrovertible facts, facts that are not in dispute and other relevant evidence in the case.
An appeal in which the District Court judge has regard to findings on questions of demeanour and credit by the magistrate will still meet the description of a hearing "on the basis of evidence given in the original Local Court proceedings". Advertence to such findings simply involves a recognition of the advantages enjoyed by a judge at first instance in assessing such evidence as was given in the Local Court. Decisions such as Fox v Percy [21] make plain that this does not result in an appeal by way of rehearing losing that character. Nor is or should this be controversial.
In Federated Carters' and Drivers' Industrial Union of Australia v Motor Transport and Chauffeurs' Association of Australia, [22] cited with approval in Re Coldham; Ex parte Brideson [No 2], [23] which was in turn cited in Allesch in support of the final sentence in the passage extracted at [21] above, Higgins J said:
"the appellant is entitled to have ... a re-hearing, a 'review' of the decision ... He is entitled to such judgment as I can bring to bear upon the question, independently of the Registrar, although, of course, I should attach a good deal of weight to the Registrar's view."
In other words, the fact that the District Court Judge in the present case adverted, in the context of the rehearing he conducted, to the magistrate's view as to the performance of the Complainant in the witness boxes was entirely orthodox.
Whilst it may be accepted that the reasons of a magistrate are not "evidence given in the original Local Court proceedings", it simply does not follow that it is impermissible for a District Court judge to refer to the reasons of a magistrate in discharge of the appellate function conferred by s 18(1) of the CAR Act. So much was expressly held in Charara. [24]
[12]
Statutory framework
The right of appeal from a decision of the Local Court is conferred by s 11 of the Appeal and Review Act, which relevantly provides:
11 Appeals as of right
(1) Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both).
(1A) Subsection (1) does not apply in respect of a conviction if the person was convicted in the person's absence or following the person's plea of guilty.
The distinction between these provisions is that the right with respect to a conviction is limited to the circumstances where there has been a hearing and does not apply where the person was not present or had entered a plea of guilty. However, the applicant submitted that the distinction was of little substance because, pursuant to s 12, the District Court might grant leave in such circumstances, in which case there would be an appeal to be determined in the same way as if there had been a conviction following a hearing. In a case where a defendant withdrew a guilty plea, it would be necessary to hear all the evidence relied on by the prosecutor, there having been no hearing of the evidence in the Local Court. That was said to have consequences for the way in which the provisions dealing with the determination of appeals were to be understood.
These provisions were ss 18 and 19, with respect to conviction appeals, and s 17 with respect to sentence appeals. Because the applicant placed reliance on differences in language with respect to sentence appeals and conviction appeals, it is convenient to set out all three provisions:
17 Appeals against sentence to be by way of rehearing of evidence
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.
18 Appeals against conviction to be by way of rehearing on the evidence
(1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19.
(2) 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.
(3) The parties to an appeal are each entitled to be provided with one free copy of the transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence.
19 Circumstances in which evidence to be given in person
(1) The District Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied -
(a) in the case of an appeal that relates to an offence involving violence against that person, that there are special reasons why, in the interests of justice, the person should attend and give evidence, or
(b) in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence.
(2) An application for such a direction may be made by a party to the proceedings in relation to a particular person only if notice of the party's intention to make such an application has been served on each other party to the proceedings within such period as the District Court may direct.
(3) If an application for such a direction is refused, the District Court must give reasons for the refusal.
(4) A direction may be withdrawn only on the application, or with the consent, of the appellant.
(5) The regulations may make provision for or with respect to the determination of special or substantial reasons for the purposes of subsection (1).
(6) Without limiting subsection (5), in determining whether special or substantial reasons exist, the District Court must have regard to whether or not the appellant was legally represented for the whole or any part of the original Local Court proceedings.
There are no regulations made pursuant to s 19(5).
[13]
Applicant's case for a different construction
On one view, this appeal turned on whether the court believed the evidence of the victim, and rejected, as failing to raise a reasonable doubt, the evidence of the defendant. These are sometimes described as "she says - he says" cases. However, that label tends to underestimate the exercise to be undertaken by the fact-finder. Circumstances may render one person's evidence inherently plausible, or the other's inherently implausible. There may be evidence of complaint (as in this case) which provides support for the victim's claims. The fact-finder may assess the action of the defendant (in this case removing the victim's underpants) as inconsistent with the defendant carrying out a genuine medical examination. Nevertheless, there is no doubt that the fact-finder who heard each witness giving evidence will be in the best position to assess where the truth lies on issues such as a denial of consent and the subjective purpose of the defendant's actions. That, after all, is the underlying assumption of the oral hearing.
It follows that if, on an appeal, the court does not hear the evidence being given, it is denied a particular advantage enjoyed by the primary fact-finder, in this case the magistrate. It may be inferred from the outcome of the case, as well as the reasons, that the magistrate formed a particular opinion about each person as a witness. Similar assumptions are made by criminal appeal courts reviewing decisions of juries. Nevertheless, in a case where the fact-finder gives reasons for his or her decision (a jury does not) an appellate court will be assisted by, and will be in a position to review, the reasons for critical findings of fact.
Findings as to the credibility and reliability of particular witnesses, if informed by the process of hearing them give evidence, are sometimes described as "demeanour-based findings". That too is not a precise term. It reflects the possibility that a particular view as to the credibility of a witness may be based on observing the witness give evidence, but it does not seek to distinguish how much weight was placed on that aspect and how much on a consideration of the whole of the evidence in the context of the events described.
The primary ground on which the applicant sought review was that the judge had mistaken his function in having regard to the credit finding made by the magistrate. That submission was based upon three related propositions, namely that (i) the appeal was to be determined on the basis of the evidence before the Local Court, which did not include the reasons for judgment; (ii) the appellant was not required to establish error on the part of the magistrate, and (iii) to require the appellant to establish error would be to reverse the onus of proof by which the prosecutor was required to satisfy the judge beyond reasonable doubt of the guilt of the applicant. The applicant had a second position, namely that if it were necessary to establish error on the part of the magistrate, that was made good by demonstrating that no sufficient reasons were given for the credibility finding, and that finding could therefore not be relied upon. On either approach, the District Court judge could not be satisfied of the prosecution case beyond reasonable doubt without hearing the victim and the applicant give evidence. He should therefore have acquitted.
[14]
(a) construing the statute
The applicant's contentions were carefully formulated, but also inter-related. It is convenient to deal first with the proposition that there was a fundamental error on the part of the District Court judge in having regard to the reasons of the magistrate, quite apart from any inadequacy of those reasons in the present case. The argument was based on the reference in s 18(1) to the appeal being by way of rehearing "on the basis of evidence given" in the Local Court proceedings. That language, it was submitted, did not include having regard to the judgment in the Local Court.
As a matter of linguistics, that submission may be accepted. However, to demonstrate jurisdictional error on the part of the District Court judge in having regard to the reasons of the magistrate it was necessary for the applicant to establish that such a course was prohibited. There being no express prohibition to that effect, the prohibition relied upon must be implied from the nature of the statutory scheme and a proper characterisation of the function imposed on the District Court.
Where an "appeal" is in effect a new hearing it may well be that the findings of fact made by the primary fact-finder must be disregarded. However, that is not this case. While between 1902 and 1999 the appeal from the Local Court to the District Court did provide for a new hearing, the 1998 Amendment Act repealed those provisions and replaced them with a form of appeal broadly in conformity with the present legislative regime. The available implication that a judge conducting a new hearing, where evidence is called afresh, should disregard the reasoning of the primary fact-finder cannot be applied to circumstances where the judge is, subject to exceptions, neither required nor permitted to hear witnesses give oral testimony. The provision in s 18(1) that the appeal is to be conducted "on the basis of evidence given" in the Local Court is a way of stating that witnesses will not generally be called. It says nothing by way of constraint on what other material the court may consider.
First, even with respect to evidence, it is by no means clear that the language of "evidence given" is apt to include documents tendered, although clearly reference to the documentary evidence in the Local Court is, by implication, permitted. There is no reason why regard should not also be had to submissions made in the Local Court, which may demonstrate what issues were in dispute and what were not. Further, it cannot be doubted that, although not expressly referred to, the District Court should have before it the court attendance notices by which proceedings were commenced in the Local Court. In short, the statement as to evidence in s 18(1) is not to be taken as an exclusive statement as to the material and matters which the District Court may or must take into account. Some things go without saying. One such thing is the entitlement of the parties to make submissions in the District Court which the Court must consider.
[15]
(b) caselaw authority
This conclusion, reached as a matter of statutory construction, is consistent with authority. [28] In Charara v The Queen [29] the changes wrought by the 1998 Amendment Act were summarised by Mason P in the following passage:
"[14] These reforms have altered the manner in which appeals from the Local Court to the District Court are to be conducted, apparently more significantly than may be generally appreciated. Before 1998, Part 5 Div 4 of the Justices Act 1902 allowed an appeal to the District Court against conviction. Section 126 of that Act permitted the deposition of any witness called and examined at the hearing before the justice to be read as evidence for either party at the hearing of the appeal if the other party consented or if certain prescribed conditions were fulfilled. Subject to those provisions, however, the evidence was taken afresh. The power of the District Court judge hearing an appeal under Div 4 of Pt 5 was set out in s 125. The Court's obligation was to determine the matter of the appeal afresh.
[15] This 'all grounds' appeal was often referred to as being by way of rehearing (see eg Sweeney v Fitzhardinge (1906) 4 CLR 716 at 728, 730), 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 Gianoutsos … v Glykis [2006] NSWCCA 137, this Court held that the clear language of s 18 precludes the District Court from treating an appeal of this nature as a hearing de novo (… at [24]-[31]).
[17] The appeal is to be by way of rehearing on the Local Court transcripts (s 18(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 (s 18(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) 89 CLR 212, Fox v Percy (2003) 214 CLR 118).
[19] The nature of an appeal 'by way of rehearing' has been discussed in many cases. The procedure to be adopted, powers to be exercised and function to be performed must first be sought in the language of the particular statute. One thing, however, is clear. 'The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits' (Fox at 118 [22] per Gleeson CJ, Gummow and Kirby JJ). Referring to the 'requirements, and limitations, of such an appeal', their Honours continued (at [23], footnotes omitted):
'… On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.'"
[16]
Whether appellant must demonstrate error
The applicant submitted that suggestions that the appeal jurisdiction was error-based [42] were wrong. That approach, it was submitted, undermined the proposition that, even on the appeal, the prosecutor bore the onus of establishing the charge beyond reasonable doubt. Further, recent suggestions that the appellant needed to demonstrate error were inconsistent with earlier authority, including Gianoutsos. [43]
The applicant's concern was misplaced for two reasons. First, the need to identify "error" is not a statutory requirement and is used with different meanings in different circumstances. Secondly, the need to demonstrate error does not place a burden of proof on the appellant in the sense that it must demonstrate a fact to a certain standard. It is therefore not necessarily inconsistent with the proposition that the judge should set aside a conviction if he or she entertains a reasonable doubt as to the guilt of the applicant.
The difficulty with the use of the term "error' in this context is revealed in the early authority relied on by the applicant, namely Gianoutsos v Glykis. The critical passage in the reasoning in Gianoutsos is that, generally, the difference between an appeal by way of rehearing and a fresh hearing is that the former requires demonstration of error. The reasoning was as follows:
"[37] In Allesch v Maunz (2000) 203 CLR 172, the High Court considered the appeal provisions under the Family Law Act 1975 (Cth). In the course of the joint judgment of Gaudron J, McHugh J, Gummow J and Hayne J their Honours said …:
"[23] For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error (see CDJ v VAJ (1998) 197 CLR 172 at 201-202), whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised regardless of error."
(Emphasis added)
[38] In the present case, the legislation does indicate that the District Court's appellate powers may be exercised regardless of error. Section 20 of the Crimes (Local Courts Appeal and Review) Act provides that on an appeal from a magistrate the District Court may either set aside a conviction …, or it may dismiss the appeal. The District Court is not limited to ordering fresh proceedings in the court below. Indeed, unlike the Supreme Court (see s 55(1)(b) of the Crimes (Local Courts Appeal and Review) Act), the District Court is given no express power to remit the matter back to the Local Court for redetermination in accordance with its directions. In R v Kurtic (1996) 85 A Crim R 57, Hunt CJ at CL noted that the power to determine an appeal otherwise than by ordering fresh proceedings would indicate that a court with such a power is not a court of error (at 59-60).
[39] The District Court has power to rehear issues at trial but does not have power to remit the matter back to the Local Court. It follows that the District Court's powers under s 18 of the Crimes (Local Courts Appeal and Review) Act are not dependent upon a finding of error at the original trial."
[17]
Need to establish error would reverse onus of proof
Turning to the third matter raised by the applicant, the fact that the appellant must demonstrate error says nothing about the onus of proof. If a defendant in civil proceedings brings an appeal by way of rehearing, it does not thereby incur responsibility to disprove the plaintiff's case. Demonstration of error may mean no more than satisfying the District Court judge that the magistrate should not have been satisfied beyond reasonable doubt as to the appellant's guilt.
[18]
Dealing with demeanour-based findings
As counsel for the applicant observed, if the appeal did not depend on the appellant establishing error on the part of the magistrate, and if the District Court judge could not rely upon findings as to the credibility of the witnesses, particularly in circumstances where it was word against word, the prosecutor would only be able to demonstrate the correctness of a conviction by calling the victim to give evidence in the District Court. The need for such a course, it was submitted, would constitute a "special reason" for the purposes of s 19(1)(a).
That reasoning is unpersuasive, primarily because to give such a broad scope to the concept of "special reasons" would subvert an important feature of the statutory scheme. That may be explained as follows.
First, whatever the reasons of the magistrate may reveal, it will be apparent from the outcome that the magistrate has been satisfied beyond reasonable doubt by the victim's evidence and has not accepted contradictory evidence given by the defendant. That conclusion will not be immune from challenge.
Secondly, as explained above, it is not possible to divide cases into groups, one of which turns on demeanour-based findings and the other of which does not. Most cases involving violence against a victim will turn in part on the fact-finder's assessment of the victim in giving evidence and partly upon surrounding circumstances. Where possible, placing undue weight upon demeanour is avoided. The plausible liar and the inarticulate truth teller are well known to judges and magistrates.
Thirdly, the category of offences involving violence against a person who is called as a witness will be very large. If in every such case the prosecutor were compelled to apply for, and the court obliged to give, a direction that the victim be called, it would make a mockery of the requirement that the court has a discretionary power to direct the attendance of the victim, but only where satisfied that there were "special reasons why, in the interests of justice" that person should attend and give evidence again. A generic requirement, having broad application, could not sensibly constitute a "special reason".
The proper scope of the phrase "special reasons" must be determined in accordance with its intended purpose, it being a phrase of indeterminate scope absent identification of that purpose, understood in its statutory context. The context is the imposition of a limitation on the need for victims of relatively minor crimes of violence to submit to more than one court hearing. The statutory scheme admits of exceptions; to be "special", the reasons should be exceptional and not apply generically to that category of witness and offence. The applicant's characterisation of the circumstances which must allow for the victim to be recalled does not satisfy that requirement.
[19]
Conclusion and Orders
Each of the carefully crafted submissions of the applicant must be rejected, consistently with both principle and authority. The application for judicial review should be refused; the applicant must pay the respondent's costs in this Court.
In dismissing the summons, the Court should consider making an order pursuant to s 69D of the Supreme Court Act. That is because, as noted at the beginning of these reasons, the execution of the sentence was stayed, first by the lodgement of an appeal to the District Court, and then pursuant to s 69C(2) of the Supreme Court Act upon the applicant commencing proceedings in this Court. That occurred with the filing of the summons on 15 June 2021.
The orders in the District Court were made on 25 March 2021. There was, however, a curiosity about the form in which those orders were recorded. There was only one offence, but the orders were restated twice, in slightly different terms. After noting the dismissal of the appeal and confirming the orders of the magistrate, the order of the magistrate was repeated as follows:
"The offender, Andrew Graham McNab, is convicted and sentenced to a Community Correction Order for a period of 12 months to commence on 18 November 2020 and expiring on 17 November 2021."
Further, the offence was repeated a third time followed by the statement:
"The stay granted in relation to the following orders is lifted:
Convicted dated 18 November 2020".
Finally, the orders as entered did not conform to the orders made in Court. As recorded at the end of the judgment, the orders were:
"I dismiss the appeal and I uphold the conviction."
Two important issues arise. First, there is a strong inference that the record of the orders was made in the Registry. Unless the record is checked by the judge before the orders are entered, that course is fraught with risks. Unless formally varied, the orders entered in the court records should conform to the orders made in open court. Departure from that course is contrary to principle. Orders should be made in open court. While a Community Correction Order, subject only to the mandatory conditions imposed by s 88 of the Crimes (Sentencing Procedure) Act 1999 (NSW), is no more intrusive on the liberty of an offender than a good behaviour bond, orders should be made with a degree of formality and attention to detail. The period of the order will be critical if there is any allegation of breach.
[20]
Endnotes
(2006) 164 A Crim R 39; [2006] NSWCCA 244 (Charara).
(2000) 203 CLR 172; [2000] HCA 40 at [23] (Allesch).
Gianoutsos at [38]-[39].
[2011] NSWCA 91 at [16] (McKellar).
[2015] NSWCA 52 at [27]-[28] (Dyason).
[2021] NSWCA 186 at [28].
(1970) 124 CLR 192 at 208-209; [1970] HCA 43.
See Commonwealth v Bank of New South Wales (1949) 79 CLR 497 at 625; [1950] AC 235 at 294; Driclad Pty Limited v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64; [1968] HCA 91.
Mulder v Director of Public Prosecutions (Cth) (2015) 250 A Crim R 154; [2015] NSWCA 92 at [28].
See also Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 at [92].
See Gianoutsos at [42]; Charara at [22].
See, for example, White Constructions Pty Ltd v PBS Holdings Pty Ltd [2020] NSWCA 277 at [106], noting that demeanour is not to be overemphasised; see also Goodrich Aerospace Pty Ltd v Arsic (2006) 66 NSWLR 186; [2006] NSWCA 187 at [16]-[27].
(2003) 214 CLR 118; [2003] HCA 22.
(1912) 6 CAR 122 at 123.
(1990) 170 CLR 267 at 274-275; [1990] HCA 36.
At [23]-[24]; see also McKellar at [18]; AG at [101]; Dyason at [27]; Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344 at [80]-[81]; Woodhouse v Director of Public Prosecutions (NSW) [2015] NSWCA 40 at [11]; Liristis v Director of Public Prosecutions (NSW) [2016] NSWCA 66; (2016) 75 MVR 127 at [46]-[47]; Spanos v Lazaris [2008] NSWCA 74 at [35]-[38]; Mordaunt v Director of Public Prosecutions (NSW) (2007) 171 A Crim R 510; [2007] NSWCA 121 at [53].
Crimes (Appeal and Review) Act 2001 (NSW), s 63(2)(a).
Supreme Court Act 1970 (NSW), s 69C(2)(a).
Parties
Applicant/Plaintiff:
McNab
Respondent/Defendant:
Director of Public Prosecutions
Legislation Cited (11)
Crimes (Appeal and Review) Amendment Act 2009(NSW)
The Crown Advocate, Dr Kell SC, who appeared with Ms Jones for the Director of Public Prosecutions, contended that there was no jurisdictional error which would engage this Court's supervisory jurisdiction, that there was no relevant restriction on a District Court judge having regard to the reasons of a Local Court magistrate, and that the Charara line of authority was well-established and should be followed. Alternatively he submitted that, if the District Court Judge's reference in his reasons dismissing the appeal to the magistrate's findings on credit amounted to a jurisdictional error, it was not material so as to warrant this Court's intervention. That was because, it was argued, the District Court Judge, although referring to the magistrate's findings on credit in his ex tempore reasons for judgment, did not in fact draw upon them in reaching his own conclusion that he was satisfied beyond reasonable doubt that the Applicant was guilty of the offence charged.
In relation to the question raised on the Applicant's argument as to the correctness of Charara, as noted at [5] above, the Crown Advocate submitted that the preferred view was that a s 18 appeal required the demonstration of factual, legal or discretionary error.
Before turning to a consideration of the judgment of the District Court Judge and the grounds seeking a review of this decision, a brief factual background to these proceedings is required.
It will be seen that the magistrate twice in what were very brief reasons described the Complainant as "an outstanding witness" and found that "the conversation that she alleges took place, in fact took place". The magistrate recorded no express findings about the Applicant's credit, although it is implicit in the finding as to the conversation that the magistrate rejected the Applicant's denial that it took place in the terms attested to by the Complainant.
The Applicant, in appealing from his conviction to the District Court, lodged a Notice of Appeal in the District Court contending that the magistrate failed to "provide adequate reasons", failed to "deal with the defence of genuine medical purpose", failed to "deal with [the] issue of consent" and "failed to give direction[s] or follow principle in accordance with Liberato", the reference to Liberato being a reference to Liberato v The Queen. [4]
The appeal to the District Court proceeded on the basis, consistent with AG, that the Applicant needed to establish error on the part of the magistrate.
No shifting of the burden of establishing guilt beyond reasonable doubt will have occurred on either scenario. The prosecution at all material times bears the onus of establishing guilt beyond reasonable doubt. [19]
A dismissal of a s 18 appeal against conviction pursuant to s 20(1)(b) of the CAR Act will necessarily carry the conclusion that the magistrate did not commit "some legal, factual or discretionary error": Allesch at [23]. Conversely, the upholding of an appeal leading to the setting aside of a conviction pursuant to s 20(1)(a) will be because the judge on the rehearing will have concluded that the appellant's guilt was not (and thus should not have been found to have been) established beyond reasonable doubt. This will necessarily involve a conclusion that the magistrate committed some legal, factual or discretionary error. In reaching such a conclusion, the District Court judge will be forming his or her own judgment as to the facts by way of the rehearing.
Ultimately there is much to be said for the observation of Basten and McCallum JJA, expressed at [90] below, that it is "unhelpful to describe the jurisdiction as error-based". The merit of that observation is borne out by the Director's submission that:
"Judge McLennan was required to determine, for himself, whether the complainant's account was established beyond reasonable doubt and, relatedly, whether the applicant's account was excluded as a reasonable possibility. His Honour made that determination upon a review of the transcript of the evidence given in the Local Court without having seen or heard the complainant or the applicant give evidence. If that approach was deficient - in the sense that it constituted a more limited form of rehearing than his Honour was required by s 18(1) to undertake - the Director submits that it does not matter whether that impugned 'rehearing' followed the identification of some error or, instead, was part of a fresh determination without error having been established."
In the present case, there is no basis for this Court to conclude that the District Court Judge did not form his own judgment as to the facts and the Applicant's guilt beyond reasonable doubt. As his Honour said, "[t]o put it simply, I am satisfied beyond a reasonable doubt of the accused's guilt".
Whilst a necessary consequence of this conclusion is that the District Court Judge must be taken to have concluded that no error was established in respect of the Local Court proceedings and the magistrate's order convicting the Applicant, the more important point is that, subject to consideration of the matter discussed below, the rehearing he conducted was not vitiated by jurisdictional error. The Applicant had a rehearing of the kind that s 18 of the CAR Act contemplates.
There may be circumstances where, in view of evidence given in the Local Court proceedings, in respect of which the District Court judge will have a transcript, he or she considers that it is an appropriate case for the making of a direction pursuant to s 19 of the CAR Act. But the existence of such a discretionary power, only to be exercised where there are "special" (s 19(1)(a)) or "substantial" (s 19(1)(b)) reasons, does not supply a reason why regard could or should not be had to the magistrate's assessment as to how a "witness" performed when giving his or her evidence. It also does not follow, contrary to a central submission on behalf of the Applicant, that having regard to the magistrate's assessment of a witness' demeanour in the witness box means that "demeanour-based credit is essential to proof of guilt beyond reasonable doubt": cf. AS at para 3. That will turn entirely on the facts of any given case.
As the Director submitted:
"In a particular case where it is said that a credit issue is intractable, there may [be] special or substantial reasons for a particular witness being called under s 19(1). But, firstly, that it is a different proposition from the plaintiff's proposition that a District Court Judge's jurisdiction under s 18 cannot be discharged by consideration of the Magistrate's reasons and/or by reviewing the transcript of the Local Court. And, secondly, this case would not fall into that category in any event. As noted above, the complainant's evidence in this case was corroborated and it was readily open to Judge McLennan to reach a favourable view as to the complainant's credibility and to resolve the credibility issues on that bas[is]."
Importantly, reference to aspects of the reasons of the magistrate which recorded any findings as to the evidence based upon his or her special advantage in seeing and hearing the witnesses does not mean that the District Court judge conducting a s 18 appeal has not conducted a "real review" of the evidence on the rehearing. If anything, the existence of the two gateways supplied by ss 19(1)(a) and (b) of the CAR Act militates against a conclusion that resort could not be had on appeal to the magistrate's assessment of the credit of a particular witness. And, as earlier observed, such recourse would be entirely orthodox on a rehearing.
It should also be observed that a refusal by a District Court judge hearing a s 18 appeal to make a s 19 direction in a given case where credibility was critical would not amount to jurisdictional error; if any such decision was erroneous, it would be an error within jurisdiction. In the present case, in any event, no such application was made.
It follows from the above that the District Court Judge did not commit either of the jurisdictional errors relied upon to found this application for judicial review. It should be dismissed.
I agree with the additional orders proposed by Basten and McCallum JJA.
BASTEN AND McCALLUM JJA: On 18 November 2020 the applicant, Andrew Graham McNab, a medical practitioner, was convicted in the Lismore Local Court on a charge of committing an aggravated sexual act contrary to s 61KF(1)(a) of the Crimes Act 1900 (NSW). The term "sexual act" is defined to mean "an act (other than sexual touching) carried out in circumstances where a reasonable person would consider the act to be sexual": s 61HC(1). A factor to be taken into account is that the person does the act "for the purpose of obtaining sexual arousal or sexual gratification": s 61HC(2)(b). It does not include an act "carried out for genuine medical or hygienic purposes": s 61HC(3). The act in question was undertaken by the applicant in his surgery in the course of medical treatment.
The act involved the removal of the victim's underpants, the issue being whether the act was undertaken with the patient's consent as part of a medical examination, or whether it was undertaken for sexual gratification. The physical conduct was not in dispute, although a conversation which accompanied the conduct was, the victim and the applicant giving markedly different accounts of the conversation. In the Local Court, the magistrate believed the victim and, at least impliedly, refused to accept that the defendant's account gave rise to a reasonable doubt as to his guilt. The applicant was convicted and was sentenced to serve a community correction order for a period of 12 months. Because of the appeal to the District Court [25] and the present application, the sentence has been stayed. [26]
The applicant lodged an appeal against his conviction pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act"). The notice of appeal identified four errors in the reasoning of the magistrate, namely that he failed (i) to provide adequate reasons, (ii) to deal with the defence of genuine medical purpose, (iii) to deal with the issue of consent, and (iv) to give himself directions or follow the principles stated in Liberato. [27]
The appeal was heard by Judge McLennan SC in the District Court at Lismore. On 25 March 2021 the judge, being satisfied beyond reasonable doubt of the applicant's guilt, dismissed the appeal and upheld the conviction.
There is no appeal from a judgment of the District Court on an appeal from the Local Court. The present proceedings were brought by way of judicial review of the District Court judgment, pursuant to s 69 of the Supreme Court Act 1970 (NSW). Because of the privative provision in s 176 of the District Court Act 1973 (NSW), the exercise of this Court's supervisory jurisdiction depends upon a finding of jurisdictional error. The jurisdictional error identified by the applicant was that the judge relied upon demeanour-based findings of the magistrate as to the credibility of the victim and the defendant, and could not be satisfied of the applicant's guilt to the criminal standard without hearing the victim's evidence himself.
The applicant's case, expertly argued by counsel, relied upon a constrained reading of two particular provisions in the Appeal and Review Act, being s 18 and s 19 dealing with the nature of the appeal and the evidential basis upon which the Court was required to determine the appeal. Counsel's construction of the statutory language turned to a significant extent on the legislative history. The alternative approach, contended for by the respondent, involved reading the provisions in accordance with a conventional understanding of the language used at the date of their enactment in 1999.
In order to assess the correctness of the applicant's approach, it is convenient first to set out the key provisions from the Appeal and Review Act and then turn to the legislative and institutional context in which they are to be construed, including their history.
Both s 17 and s 18 characterise the respective appeals as appeals "by way of a rehearing", but s 17 refers to "a rehearing of the evidence" given in the Local Court, while s 18(1) refers to a "rehearing on the basis of evidence" given in the Local Court. There is a further difference with respect to "fresh evidence": there is an entitlement to call "fresh evidence" on an appeal against sentence; with respect to an appeal against conviction, fresh evidence may only be adduced by leave of the District Court, such leave being available only where the court is affirmatively satisfied that it is "in the interests of justice" that such evidence be given: s 18(2). The term "fresh evidence" is defined in s 3(1) of the Appeal and Review Act to mean "evidence in addition to or in substitution for the evidence given in the proceedings from which the appeal proceedings have arisen." This meaning is broader than the conventional understanding of "fresh" evidence, namely evidence which was not available at the original trial, and could not have been obtained then in the exercise of reasonable diligence. The expanded concept bears comparison with this Court's power to admit "further evidence" on an appeal by way of rehearing under s 75A of the Supreme Court Act.
Clearly s 17 provides a broader basis for both parties to run their cases on a sentence appeal; however, beyond that conclusion, it is not clear what assistance is obtained from the language of s 17 in construing s 18(1). There are differing characteristics of appeals "by way of rehearing", each turning on its own statutory description. This case involving an appeal against conviction, the focus must be on ss 18 and 19.
It may be doubtful whether any useful insight is obtained with respect to conviction appeals by considering why the words "on the basis of evidence" are used in s 18, rather than a rehearing "of the evidence" as appears in s 17. It is clear from s 18(3) that, at least in part, the evidence that was given in the Local Court will be found in transcripts of evidence from the Local Court, being transcripts of evidence "relevant to the appeal".
The applicant accepted that evidence "given" in the Local Court would include documents tendered in the court proceedings, although the term "given" is inapt for that purpose. It may also be assumed, although it was not directly addressed in argument, that an audio-visual recording of a statement by a vulnerable witness, or evidence given by closed-circuit television, generally admissible under the Criminal Procedure Act 1986 (NSW), Pt 5, would also constitute evidence "given" in the Local Court.
Before considering the text of ss 18 and 19 further, it is convenient to note briefly their legislative history. Provision for an appeal by way of "rehearing" was first made in the Justices Act 1902 (NSW) as amended by the Justices Legislation Amendment (Appeals) Act 1998 (NSW) ("1998 Amendment Act"), which commenced on 1 March 1999. Read in isolation, the term "rehearing" gives no clear indication as to the nature of the proceeding. However, it is not to be read in isolation. The 1998 Amendment Act repealed provisions in Pt 5 of the Justices Act (including s 122) under which there had been an "appeal" to the District Court, which involved a fresh hearing of the whole case in the District Court. That did not necessarily mean that all the witnesses were recalled to give their evidence and be cross-examined again: s 126 of the Justices Act provided that the "deposition" of any witness called and examined before a justice who made the conviction could be read as evidence at the hearing of the appeal in prescribed circumstances. The prosecution case could be dealt with in that way with the consent of the defendant, and often was. Nevertheless, in principle the proceedings were commenced afresh (or, as sometimes described, de novo). The appeal was not identified as an appeal "by way of rehearing".
Reading the phrase "by way of rehearing" in s 18 in context, it is clear not only that the appeal is to be conducted on the documentary record of evidence in the Local Court, with further evidence adduced only by leave and witnesses not to be recalled unless the criteria set out in s 19 are satisfied.
Although s 19(1) requires that a judge direct a person to attend and give evidence, and could apply to fresh or further evidence, it is clear from s 18(1) that s 19 operates only as a proviso to the requirement in s 18 that the appeal be conducted on the basis of the evidence given in the Local Court. Thus s 19(1) constrains the circumstances in which a witness who gave evidence in the Local Court can be directed to attend and give evidence on the appeal. The relevant criteria differentiate between the victim of an offence involving violence ("against that person"), and other witnesses. Thus a victim of such an offence (often referred to as a complainant) cannot be recalled unless the District Court judge is satisfied that there are "special reasons" why the person should attend and give evidence again. Although the distinction between the need for "special reasons" in the case of the victim and "substantial reasons" in the case of any other witness, is undefined, the intention must be to give additional protection to the victim. The apparent intention that the victim, and indeed other witnesses, not be subjected twice to the trauma of attending court to give evidence and be cross-examined is reflected in s 19(6), which requires the District Court to have regard to whether or not the appellant was legally represented in the Local Court.
Further, while the phrase "an offence involving violence against [the person]" is not defined, it is apt to include any offence within Pt 3 of the Crimes Act, entitled "Offences against the person", and also many property offences within Pt 4, such as those involving robbery, demanding property with menaces and by force, and break and enter accompanied by violence to a person.
There appears to be another criterion for the engagement of s 19(1), namely that an application for such a direction be made by a party to the proceedings in relation to a particular person: s 19(2). It will usually be the prosecutor who seeks to call the victim, although it is possible that the appellant might seek to have the victim attend and give evidence, so that there can be further cross-examination.
The fact that an application for a direction may only be made if notice of the party's intention to make an application has been served on the other party provides a strong indication that the District Court's power to direct attendance of a witness who gave evidence in the Local Court is only to be exercised upon application. In the present case no application was made for such a direction. It would be a surprising result if, as the applicant contends, the whole of the proceeding in the District Court was a nullity for failure to call a witness when neither he nor the prosecutor made such an application.
There is an oddity in s 19(4), which provides that a direction may only be withdrawn on the application or with the consent of the "appellant". That suggests that the appellant has control of the process whereby a direction is sought and takes effect. That may assume that it is the appellant who seeks to call or cross-examine the victim or other witness from the Local Court proceeding. When this provision first appeared, in s 133 of the Justices Act introduced by the 1998 Amendment Act, it stated that "[a] direction may be withdrawn only on the application, or with the consent, of the applicant": s 133(3). As the parties were then otherwise referred to as the appellant and the respondent, either of whom could apply for a direction under s 133, it appears that "applicant" referred to the party who had applied for the direction. Whether the change in language with the repeal of the Justices Act and its replacement by the Appeal and Review Act was intended to effect a change in the meaning of the provision is unclear. The change may have been based on an assumption that it was only the appellant who would seek to have the court direct persons to attend and give evidence again, presumably, in the case of prosecution witnesses, in order to cross-examine them further. If that be the correct understanding, it leaves little room for a contention that the prosecutor is obliged to seek a direction and call the prosecution witnesses again.
The foregoing analysis of the statutory scheme suggests that (i) the District Court will not have failed to carry out its function according to law by not directing that witnesses who gave evidence in the Local Court be recalled, in the absence of any application that they be recalled, and (ii) the general principle is that they not be recalled, so that identification of a large category of cases in which they generally must be recalled would tend to subvert the purpose of the legislation.
As noted above, the description of an appeal as being "by way of rehearing" is inherently uncertain: it is to be found in many statutes, where it is accompanied by an indication as to the evidential material which the court can and cannot consider. This is the purpose of ss 18 and 19 in the Appeal and Review Act. They do not provide a procedural code for the matters which can be taken into account. The applicant did not suggest any other appeal by way of rehearing where the appeal court was denied access to the reasons for judgment in the court below. As a matter of statutory construction, no such prohibition should be implied in relation to an appeal against conviction under s 11 of the Appeal and Review Act.
The President then dealt with the question of the availability of the reasons of the Local Court in the following passage:
"[23] Howie and Johnson, Criminal Practice and Procedure NSW state [4-s 19.10(g)] that the reasons of the magistrate for finding the offence proved are not 'evidence' and that the District Court may not have regard to those reasons unless the parties consent to that course. The point has not been argued before us, but I wish to express my doubts as to the correctness of this opinion of the learned authors. District Court judges traditionally and understandably refrained from reading the reasons of the Local Court when the appeal was [de] novo. But the nature of an appeal by way of rehearing on the transcript indicates to me that this approach is no longer justified. The magistrate's reasons are not part of the 'certified transcripts of evidence' referred to in s 18(1) any more than the exhibits tendered in the Local Court. Nevertheless, as I see it, the District Court is impliedly directed to consider the reasons because the stated appellate function could not properly take place without reference to them.
[24] The Local Court reasons will doubtless include an explanation why the conviction was entered at first instance, including an assessment of the credibility issues touching any factual dispute. Without reference to the reasons the District Court would be driven to speculation or deciding the issue entirely afresh. Neither such course would be consonant with the statutory scheme. In civil appeals, the court of appeal is not entitled to ignore the reasons in which findings based on credibility are to be found (Paterson at 222-4). There is no basis in principle for a different approach in the criminal law."
The applicant's case involved a direct challenge to this reasoning. Although not set out in the passage extracted above, Mason P had careful regard to the second reading speech in respect of the 1998 Amendment Act and the scope of the power to recall witnesses on appeal. [30] In this context it is necessary to note one other passage in the reasoning of the President:
"[22] The appellate role of the District Court in the present context is further reinforced by the references to 'appeal' in ss 18 and 19 and by the power, conferred by s 20, to determine the appeal against conviction by setting aside the conviction or by dismissing the appeal. It is true that the Court moves to the disposition of the appeal by considering the totality of the material before it, including any 'fresh evidence' that has been admitted, and making up its own mind on the critical issue of guilt. The prosecutor continues to carry the onus (Gianoutsos at [42]-[43]). But, as indicated in the passages quoted from Fox and Da Costa, the District Court must of necessity observe the 'natural limitations' stemming from proceeding wholly or substantially on the transcript record."
In the present matter, counsel for the applicant cast doubt upon the weight which could be given to the use of the term "appeal", noting that that term had been used to describe the appeal by way of a fresh hearing in the District Court from the commencement of the Justices Act in 1902 until the amendment in 1999. He then noted that the requirement in s 14(2) of the Appeal and Review Act that a notice of appeal must state "the general grounds of appeal" was also to be found in the earlier form of the Justices Act, in s 122. These observations must be accepted; the weight to be placed on such language in the Appeal and Review Act is accordingly reduced. However, it does not follow that because the term "appeal" was used in the 1902 Act, that it has the same meaning where it appears in the Appeal and Review Act. In each case, it must be read in its statutory context and takes its meaning from that context. The context, as described by Mason P in Charara, demonstrates that the meaning of the word "appeal" has changed significantly. Applying the exercise of statutory construction set out above, the reasoning of Mason P in Charara should be accepted. There is no basis for concluding that, in an appeal under s 11 of the Appeal and Review Act against conviction, the District Court judge may not have regard to the findings of the Local Court and, in particular, findings as to the credibility of witnesses where the magistrate has had the advantage of hearing the oral testimony.
The subsequent caselaw is also important. Following the judgment in Charara, this Court noted in Wood v The Director of Public Prosecutions [31] that in accordance with the principles stated in Charara and Gianoutsos v Glykis, [32] "the principles set out in Fox v Percy [33] are still relevant, so that the judge has regard to the circumstances that he or she is deciding the case on a transcript and that the magistrate had the advantage of seeing and hearing the witnesses." In other words, the judge is entitled to have regard to the findings of the magistrate based on the advantage of seeing and hearing the witnesses. In Knaggs v Director of Public Prosecutions, [34] Campbell JA (Mason P and Tobias JA agreeing) stated that an appeal governed by s 18 of the Appeal and Review Act "is not a hearing de novo, but rather an appeal conducted on the same principles as an appeal from a judge sitting without a jury". In such appeals, careful attention is given to the reasons of the judge.
Similar propositions were articulated in Mordaunt v Director of Public Prosecutions: [35]
"[53] In such an appeal the Crown bore the onus of proving that the claimant had breached the interim Apprehended Violence Orders; the District Court judge had to determine the matter by reference to the evidence tendered in the Local Court, and any further evidence admitted on appeal: Gianoutsos … at [42] …. If the appeal had proceeded, it fell to be determined in accordance with the principles governing appeals from judges sitting without a jury. The appellate judge had to form his or her own judgment of the facts, while recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called in the lower court and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record. While the Magistrate's reasons were not part of the transcript of evidence, recourse could be had to them, on appeal, as otherwise the appellate function could not properly take place: Charara … at [17]-[24] …."
Charara was followed again in Sasterawan v Morris, [36] holding that a power of amendment available in the Local Court was available in the District Court. Spanos v Lazaris [37] also applied Charara, noting that Mason P had held "that it was entirely appropriate for the District Court to consider the reasons for judgment in the Local Court".
All these judgments had been delivered before the Parliament amended s 18 in March 2009. The fact that the amendments did not seek to vary the established principle with respect to the entitlement of the District Court judge to have regard to the reasons of the magistrate has significance as a matter of statutory construction. In Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [38] the High Court said "[i]t would have been a strong thing" for this Court not to follow its own earlier authority in circumstances where Parliament had, subsequent to that authority, made "substantial amendments" to the provisions of the legislation, but had made no amendment to alter the effect of the decision being followed. While the 2009 amendment to s 18 cannot be described as a "substantial amendment", nevertheless it involved a change to the language, and a restructuring, of the very section on which Charara was based.
Sometimes, as noted by Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers' Union [39] "there are circumstances in which it is artificial, and unpersuasive, to attribute to Parliament a consciousness of a judicial interpretation which might have been placed upon an expression, perhaps years before, and in some different context." [40] However, there is no artificiality in drawing such an inference in the present case: in August 2008, prior to the amendment of s 18, the Attorney General's Department produced a report which addressed this specific issue. [41] The report quoted Charara at [23]-[24], and noted a submission by the Legal Aid Commission that the entitlement of the judge hearing an appeal to refer to the magistrate's reasons should be "put beyond doubt". The report made no recommendation for amendment and cast no doubt on the correctness of Charara. Adapting the statement in Probuild, the subsequent amendment of s 18, without interference with the Court's conclusion that the District Court was entitled to take account of the reasons of the magistrate, provided "a powerful reason for rejecting any suggestion that the understanding of the legislation adopted in [Charara] … was other than a faithful reflection of the intention of the legislature."
The critical reasoning at [38] relies upon the fact that the District Court hearing the appeal has the powers of the Local Court and has no express power to remit the matter to the Local Court. As the applicant observed, reference could also have been made to s 28 ("the District Court may exercise any function that the Local Court could have exercised") as well as s 20 (the District Court may set aside the conviction, or dismiss the appeal). However, the conferral of a power to determine the matter could hardly be the basis upon which demonstration of error was not required; that function is common to any appeal by way of rehearing. Nor can the fact that the District Court has no express power to remit (an unusual characteristic in relation to an appeal by way of rehearing) affect that analysis. The key to the reasoning in this passage is to be found in the reference to the judgment of Hunt CJ at CL in R v Kurtic, stating that the Court of Criminal Appeal "is not a court of error".
The term "court of error" is a term of art; it is wrong to suggest that any appeal requiring demonstration of error must be vested in a "court of error". Indeed, such an understanding would be inconsistent with the statement extracted from Allesch v Maunz in Gianoutsos at [37]. That Hunt CJ at CL had something quite different in mind is demonstrated by the passage in Kurtic, dealing with the Court of Criminal Appeal, upon which reliance was placed in Gianoutsos. That passage reads as follows: [44]
"On appeal against conviction pursuant to s 5 [of the Criminal Appeal Act 1912 (NSW)], this Court acts as a court of error. Under the old practice at common law, a court of error, if it thought that error was established, could only order a new trial. This Court is in the same position, subject only to the proviso to s 6(1) whereby it may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred. Except where specifically provided by s 6A, it has no power under ss 5, 6 or 8 to rehear the issues at the trial. It has no power to make any finding which could have been made in the court of trial. That is clear from the structure of the Act to which I have referred. Although this Court will - in well-defined circumstances - permit further evidence to be admitted on the hearing of an appeal pursuant to s 5, that evidence is used by it only for the purpose of determining whether a new trial should be granted by reason of the miscarriage of justice resulting from the absence of that evidence at the original trial, and not for the purpose of deciding for itself what could or should have been found in the court of trial."
What is required to demonstrate error will depend upon whether the error is to be found in the fact-finding exercise, the identification of the law, the application of the law, or in exercising a discretionary power. So much was explained by each member of the Court in Costa v Public Trustee of NSW. [45] The following observations were made in Costa in relation to criminal jurisdiction:
"[78] In relation to criminal convictions, there is a right of appeal where, on any ground, there has been a miscarriage of justice: Criminal Appeal Act 1912 (NSW), s 6(1). That language, traditionally, has not been said to require 'error' but rather 'some irregularity': see R v Cutter [1944] 2 All ER 337 at 339, quoted with approval by Brooking JA in R v Gallagher [1998] 2 VR 671 at 677. As explained by Gleeson CJ in Nudd v The Queen [2006] HCA 9; 80 ALJR 614 at [7]:
'The concept of miscarriage of justice is as wide as the potential for error. Indeed, it is wider; for not all miscarriages involve error.'
[79] Examples of miscarriages which may occur without error in the traditional sense of that term may include circumstances where there has been prejudicial pretrial publicity, where jurors have carried out their own investigations, where there have been attempts to tamper with a juror or counsel have misconducted themselves."
The fact that the District Court can make findings which could have been made by the Local Court, but cannot order a retrial, demonstrates that it is not a "court of error" in the sense used in Kurtic. It does not demonstrate that the appellant need not demonstrate error to succeed on the appeal; consistently with Allesch, that is a common characteristic of appeals by way of rehearing. There is nothing in the Appeal and Review Act to contradict that general understanding. As indicated in Allesch, that understanding was not novel; a similar point was made in CDJ v VAJ, [46] where McHugh, Gummow and Callinan JJ, stated:
"[111] … In Attorney-General v Sillem, [47] Lord Westbury LC pointed out that '[a]n appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below'. [48] Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable. [49] In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal. [50] Speaking of the similar jurisdiction of the English Court of Appeal, the Master of the Rolls, Sir George Jessel, said that the appeal is a 'trial over again, on the evidence used in the Court below; but there is a special power to receive further evidence'. [51] …"
This position was thus an established legal principle in 1998, before the introduction of the new appellate regime in the Justices Act in 1999. To the extent that Gianoutsos suggested that there is no need for the appellant to demonstrate error, it is based on a false premise and should not be followed. However, in relation to the appellate jurisdiction of the District Court under the Appeal and Review Act, it is unhelpful to describe the jurisdiction as "error-based", although, subject to an important consideration discussed below, a decision of the Local Court will not be overturned unless the District Court judge is satisfied that it was in some respect wrong.
Furthermore, the generic difficulty of reviewing credibility findings on an appeal is well-understood. In dealing with a conviction for an indictable offence following a trial by judge alone, the High Court in Filippou v The Queen [52] stated, adapting the language of M v The Queen: [53]
"It is only where a [judge's] advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred … If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the [judge], there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence."
A similar point was made by Gageler J at [82]-[83].
This is not an error-based approach; nor does it depend on whether or not the appeal court obtains assistance from the judge's reasons. Although reference has been made in the cases to the natural advantage of the trial judge as addressed in civil proceedings, such as Fox v Percy, [54] it is preferable to rely upon reasoning in relation to criminal appeals (albeit concerning indictable offences) in dealing with the criminal appeal jurisdiction of the District Court.
In addressing the scope and extent of the changes made in 1999, the Court was taken to passages in the second reading speech for the Justices Legislation Amendment (Appeals) Bill, introduced by the Attorney General, the Hon J W Shaw. [55] The first purpose of the reforming legislation was identified by reference to institutional changes over the previous century. The Attorney stated: [56]
"The reasons District Court appeals are heard de novo have their origins in appeals from a single justice in petty sessions to a bench of justices in quarter sessions. Because the latter could not review the former, the appeal was heard afresh by the panel of justices. Despite the change from lay justices to legally qualified magistrates, and from sessions of justices to District Court judges, the nature of the appeal jurisdiction has remained the same."
The Attorney also identified a pragmatic consideration, namely the time taken in the District Court in hearing appeals from decisions of magistrates and, "because of the delay in dealing with all-ground appeals, by the time they are heard the prosecution often has trouble obtaining the witnesses to reappear and give evidence again before the District Court."
Noting that the criteria for calling the victim of an alleged offence involving violence to give evidence for a second time involved a compromise, the Attorney stated: [57]
"I have already alluded to the problem of victims having to give evidence twice in relation to the same matter. As with committal hearings, the adoption of the test set out in section 48E of the Justices Act would reduce the incidence of this happening, particularly in relation to victims of crime. Indeed, the rationale for section 48E appears to apply equally in the case of District Court appeals, that is, witnesses should not be called to give evidence and be cross-examined more than on the one occasion, unless there are good reasons for doing so."
The Attorney stated that the Victims Advisory Board supported the proposed changes, "because it considered one of the clear intentions of the new procedure was to reduce the trauma of victims by not requiring them to give, unnecessarily, the same evidence twice." That rationale applies with particular force in relation to victims of sexual assaults who would be required to revisit the trauma and humiliation of the assault, in public, in open court on more than one occasion, were it not for the constraint imposed by s 19(1)(a).
It would be inconsistent with this purpose to read down the protection by giving the phrase "special reasons" a broad operation not confined to the circumstances of the particular case.
The submission that the trial judge was bound in law to direct the prosecution to call the victim to give evidence in the District Court or, if that course were not taken, to uphold the appeal, should not be accepted. Even if there were no condition that application be made to recall the victim, there was no jurisdictional error on the part of the District Court judge in failing to do so.
Secondly, by restating the order made by the magistrate in its precise terms, the District Court record ignores the fact that there was in place a stay of execution which operated pursuant to s 63(2)(a) of the Appeal and Review Act, from the date when the notice of appeal was lodged until the dismissal of the appeal. The papers before this Court do not contain a copy of the notice of appeal bearing a date stamp; it may, however, be assumed that it was lodged on or about 16 December 2020, being the date a copy was emailed to the appellant's solicitor. On that assumption, the community correction order commenced on 18 November 2020, and ran for four weeks before the statutory stay took effect.
That stay operated until the judgment in the District Court, given on 25 March 2021. The community correction order recommenced on that day and continued to run until 15 June 2021, a period of 12 weeks. The sentence will recommence on the date on which this judgment is delivered and will, on these calculations, have a period of 36 weeks to be served. That should be reflected in this Court's orders.
If it is necessary to vary the orders made by this Court, the parties may either file a consent order, or advise the Court as to what order should be made in lieu of the order (2) set out below, by motion filed, in the usual way, within 14 days.
The Court should make the following orders:
1. Dismiss the summons for judicial review of the judgment of the District Court given on 25 March 2021.
2. Pursuant to s 69D of the Supreme Court Act, order that the sentence imposed by the Local Court recommence on the date of this judgment and terminate on the date 36 weeks thereafter.
3. Order that the Applicant pay the First Respondent's costs in this Court.
Referring to the reasoning of Brennan and Deane JJ in Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66, that a criminal conviction is not to be based on the fact-finder's preference for the evidence of the victim over that of the defendant, but requires the absence of reasonable doubt as to the truth of the former.
As first enacted, s 18 provided for an appeal "on the basis of certified transcripts of evidence" in the Local Court. The reference to "certified transcripts of" was removed in 2009: Crimes (Appeal and Review) Amendment Act 2009 (NSW), Sch 1 [6], [7].
[2006] NSWCCA 244; 164 A Crim R 39 (Mason P, Kirby and Hoeben JJ), considering the 1998 form of s 18; nothing turns on the minor amendment in 2009.
Charara at [12], [13].
[2006] NSWCA 240 at [7] (Hodgson JA, Ipp and Tobias JJA agreeing).
(2006) 65 NSWLR 539; [2006] NSWCCA 137 (McClellan CJ at CL, Sully and Hislop JJ agreeing).
(2003) 214 CLR 118; [2003] HCA 22.
[2007] NSWCA 83 at [89].
[2007] NSWCA 121; 171 A Crim R 510 (McColl JA, Beazley and Hodgson JJA agreeing).
(2007) 69 NSWLR 547; [2007] NSWCCA 185 at [33], [34] (Basten JA, Grove and Hidden JJ agreeing).
[2008] NSWCA 74 at [38] (Basten JA, Beazley and Bell JJA agreeing).
(2018) 264 CLR 1; [2018] HCA 4 at [52].
(2004) 221 CLR 309; [2004] HCA 40 at [8].
See further the cases discussed by Leeming JA (Bathurst CJ, Johnson, Button and Wilson JJ agreeing) in Jackmain (a pseudonym) v R (2020) 102 NSWLR 847; [2020] NSWCCA 150 at [168]-[176].
Crimes (Appeal and Review) Act 2001 - Report on the Statutory Review of the Act August 2008, par 5.7, pp 27-28.
See, eg, Dyason v Butterworth [2015] NSWCA 52 at [27], [28] (McColl JA, Barrett and Gleeson JJA agreeing); Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 at [28] (Gleeson JA, Ward JA and Johnson J agreeing); AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 at [12] (Basten JA).
See fn 8 above.
R v Kurtic (1996) 85 A Crim R 57 at 59-60 (footnotes omitted).
[2008] NSWCA 223 at [18] (Hodgson JA); [32]-[37] (Ipp JA) and [68]-[83] (Basten JA).
(1998) 197 CLR 172; [1998] HCA 76.
(1864) 10 HLC 704 [11 ER 1200].
Sillem (1864) 10 HLC 704 at 724 [ 11 ER 1200 at 1209].
Ponnamma v Arumogam [1905] AC 383 at 388; Victorian Stevedoring (1931) 46 CLR 73 at 109.
Victorian Stevedoring (1931) 46 CLR 73 at 107.
In re Chennell; Jones v Chennell (1878) 8 Ch D 492 at 505.
(2015) 256 CLR 47; [2015] HCA 29 at [12] (French CJ, Bell, Keane and Nettle JJ).
(1994) 181 CLR 487; [1994] HCA 63.
(2003) 214 CLR 118; [2003] HCA 22 at [29] (Gleeson CJ, Gummow and Kirby JJ).
NSW Parliamentary Debates (Hansard), Legislative Council, 17 September 1998, p 7594ff.
Hansard, p 7595 (col 1).
Hansard, p 7596 (col 1).
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Decision last updated: 08 December 2021