McNab v Director of Public Prosecutions

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:

B K Lim (Applicant) D Kell SC with E S Jones (First Respondent)

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

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

HEADNOTE [This headnote is not to be read as part of the judgment] 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.

Judgment

1. 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).
2. 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".
3. 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.
4. 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).
5. 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.

Factual background

1. 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]
2. 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.
3. 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.
4. 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).

The District Court judgment

1. 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]
2. 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]
3. 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]
4. 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]

Grounds of review

1. 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)."

The nature of a s 18 appeal - error-based or not?

1. 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).
2. 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.
3. 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].
4. 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.
5. 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]

Relevance of Local Court decision for District Court appeal

1. 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.
2. 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.
3. 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.
4. 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."
5. 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.
6. 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]

Statutory framework

1. 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.
2. 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.
3. 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).

Applicant's case for a different construction

1. 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.
2. 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.
3. 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.
4. 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.

(a) construing the statute

1. 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.
2. 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.
3. 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.
4. 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.

(b) caselaw authority

1. 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.'"

Whether appellant must demonstrate error

1. 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]
2. 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.
3. 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."

Need to establish error would reverse onus of proof

1. 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.

Dealing with demeanour-based findings

1. 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).
2. 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.
3. 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.
4. 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.
5. 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".
6. 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.

Conclusion and Orders

1. 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.
2. 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.
3. 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".
4. 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."
5. 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.

Endnotes

1. (2006) 164 A Crim R 39; [2006] NSWCCA 244 (Charara).
2. [2015] NSWCA 218 (AG).
3. (2006) 65 NSWLR 539; [2006] NSWCCA 137 (Gianoutsos).
4. (1985) 159 CLR 507; [1985] HCA 66.
5. District Court judgment at 2.
6. District Court judgment at 2.
7. District Court judgment at 16.
8. District Court judgment at 24-25.
9. (1998) 197 CLR 250; [1998] HCA 68 at [21].
10. (2000) 203 CLR 172; [2000] HCA 40 at [23] (Allesch).
11. Gianoutsos at [38]-[39].
12. [2011] NSWCA 91 at [16] (McKellar).
13. [2015] NSWCA 52 at [27]-[28] (Dyason).
14. [2021] NSWCA 186 at [28].
15. (1970) 124 CLR 192 at 208-209; [1970] HCA 43.
16. 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.
17. Mulder v Director of Public Prosecutions (Cth) (2015) 250 A Crim R 154; [2015] NSWCA 92 at [28].
18. See also Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 at [92].
19. See Gianoutsos at [42]; Charara at [22].
20. 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].
21. (2003) 214 CLR 118; [2003] HCA 22.
22. (1912) 6 CAR 122 at 123.
23. (1990) 170 CLR 267 at 274-275; [1990] HCA 36.
24. 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].
25. Crimes (Appeal and Review) Act 2001 (NSW), s 63(2)(a).
26. Supreme Court Act 1970 (NSW), s 69C(2)(a).