Nabi v Director of Public Prosecutions

Nabi v Director of Public Prosecutions - [2022] NSWCA 92 - NSWCA 2022 case summary — Zoe

Judgment

THE COURT: By a court attendance notice returnable before Liverpool Local Court on 28 July 2020, the applicant, Mohammed Farid-Un Nabi, was charged with a single offence of sexually touching another person without consent, contrary to s 61KC(a) of the Crimes Act 1900 (NSW). The offence was said to have been committed between 7:30am and 8:30am on 10 February 2020 at Sydney. The conduct the subject of the charge took place whilst the applicant and the victim were seated next to each other on a crowded train travelling from Ingleburn to St James station. The conduct involved the applicant persistently pressing his elbow against the victim's breast whilst they were seated on the train and, when she got up to get off the train, sliding his hand under her dress (but over shorts she was wearing under the dress) and cupping her buttock.
On 26 February 2021, the applicant was convicted following a trial in the Local Court conducted by Magistrate Freund. On 8 April 2021, he was sentenced to a 3-year community correction order.
On 8 April 2021, he filed a notice of appeal in the District Court, pursuant to the Crimes (Appeal and Review) Act 2001 (NSW), ss 11 and 18. (One effect of the filing of the notice of appeal was to stay the operation of the sentence. [1] )
On 10 September 2021, Judge Craigie SC delivered judgment dismissing the appeal against conviction. The appeal against sentence was discontinued and dismissed. (The stay of the sentence was lifted and the sentence commenced to run on that day.)
By a summons filed in this Court on 8 October 2021, the applicant sought judicial review of the judgment of the District Court. (The effect of filing that summons was to stay the sentence, which had run for four weeks. [2] ) There is no right of appeal from a judgment of the District Court in an appeal from the Local Court; accordingly, the proceeding in this Court must engage the supervisory jurisdiction of this Court under s 69 of the Supreme Court Act. Although that jurisdiction, if unqualified, may include errors of law which appear on the face of the record of the inferior court or tribunal, no such basis of review is available in the present matter as a result of the restrictive operation of s 176 of the District Court Act 1973 (NSW). Accordingly, the only available ground of review is jurisdictional error. [3] That means that this Court will not intervene unless satisfied that, in some material respect, the court below has misconceived its function, so as to exceed its jurisdiction or fail to carry out the jurisdiction conferred on it by statute. [4]
Given the limited nature of this Court's jurisdiction, care is required in formulating grounds of review which properly engage its power to set aside a judgment or orders. This requires more than adopting formulae used in judicial reasoning to describe jurisdictional error. [5]
Ground 1 relied upon by the applicant stated: "1 That the decision of Appeal Judge on 10 September 2021 was vitiated by jurisdictional error in not referring to submissions made for Mr Nabi and evidence relating to the failure of other persons on the subject train carriage sitting to the right of Mr Nabi, and persons standing on the carriage facing the direction of Mr Nabi, to react to the conduct alleged by the complainant to have occurred and so amounting to: a. a failure to accord procedural fairness in that the Appeal Judge did not to respond to a substantial argument and evidence put for Mr Nabi; b. further, and in the alternative, a failure to accord procedural fairness in that the Appeal Judge did not give adequate reasons regarding a substantial argument and evidence put for Mr Nabi; and c. further, and in the alternative, a constructive failure by the Appeal Judge to exercise jurisdiction by the Appeal Judge not taking into account important facts and submissions and so misunderstanding the nature of the opinion to be formed."
The focus of this ground is a factual matter, namely that persons on the carriage in the vicinity of the applicant and the victim did not 'react' to the alleged misconduct of the applicant. The error on the part of the judge was said to be not to 'refer to' either the evidence that they did not so react, or the submission for the applicant, to the effect that, if the conduct complained of had occurred, (i) it would have been observed by persons in the carriage, (ii) some reaction would have been expected from them, and (iii) that reaction would have been the subject of evidence before the court. Counsel relied upon the fact that there was no evidence of any such reaction to demonstrate at least a reasonable possibility that the misconduct did not occur.
Counsel for the applicant appearing in the District Court did in fact make that submission. The reasons given by the District Court judge did not refer to that submission. How does that combination of circumstances constitute jurisdictional error?
First, as explained by Gummow and Callinan JJ in Dranichnikov v Minister for Immigration and Multicultural Affairs: [6] "To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice." The joint reasons further noted that such a failure might also be characterised as "a constructive failure to exercise jurisdiction". [7]
While it may be accepted that the argument before the District Court judge was clearly articulated, it was patently speculative and did not rely upon established facts, but an absence of evidence. Although the factual assumption was that no-one saw and reacted to the conduct complained of, all that the evidence revealed was that (i) the victim herself perceived no-one reacting (she not having vocally or assertively objected), and (ii) no reaction was to be perceived on the CCTV footage.
The evidence before the magistrate (which constituted the evidence on appeal) involved the tender of a brief (two minute) extract from the CCTV footage taken within the train carriage. Apart from confirming the presence of the applicant and the victim in the carriage in positions described by the victim, very little else could be discerned from that footage.
Further, two questions were put to the victim in cross-examination, although they took the matter, as might be expected, no further. Counsel asked: [8] "Q. Madam, did anyone in the train raise with you what's happening, is there something wrong, did anything like that happen? A. No." The cross-examiner tried to repeat the question shortly thereafter and, in the course of dealing with an objection, the magistrate noted that, "this witness can't give evidence as to what other people saw or didn't see". [9] The question was, however, repeated: "Q. … No-one, you perceived, reacted to say what's going on what's going on what's happening here, nothing like that? A. No-one reacted."
The judge expressly addressed the quality and nature of the CCTV footage. He did so by reference to the possibility that the actions of the defendant might be visible; he found no such support for the victim's account. That being so, there was also no evidence of reaction by other passengers. The fact that people did not react, from the victim's observation, is only significant if the inference could be drawn that people would have seen what was happening, as she described it, and understood the nature of the conduct. There was no "established fact" on which to base the submission. To invite the judge to consider whether people must have observed and understood the conduct if it occurred, and would have reacted in a way which would have been observed by the victim, cannot be described as a "substantial argument". Rather, the submission involved an invitation to speculate on the basis of unfounded assumptions. It was not something that the judge was obliged to "refer to" in his judgment, absent which he failed to carry out his judicial function.
Counsel for the applicant in this Court put the submission in two ways. First, he contended that the judge had to engage with the submission and had not done so. However, there is no reason to suppose that the judge did not understand and engage with the submission. In fact, as the transcript of the submissions reveals, he questioned counsel for the applicant as to the underlying premise. [10]
Secondly, he contended that, if the submission were to be rejected, it had to be addressed in the judge's reasons. The submission fell squarely into the category of those which would not warrant a reference in the reasons given by a busy court which was properly focused upon the substantial matters in dispute. As counsel for the Director submitted, it is appropriate to have regard to the observations of Gleeson CJ, McHugh and Gummow JJ in Whisprun Pty Ltd v Dixon, [11] albeit with respect to a judge of the Supreme Court, and not dealing with an issue so fundamental as jurisdictional error: "[62] … Further, it should not be accepted that Newman J failed, at least in a general way, to consider the matters to which the Court of Appeal referred. The fact that his Honour did not refer to these matters in his judgment is not decisive. A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case. [63] … To suggest that a trial judge has not properly considered a party's case is a serious charge. Such a suggestion should be accepted only when the record of the trial or other evidence persuasively suggests that the judge failed to discharge that paramount judicial duty."
It follows that none of the ways in which ground 1 was formulated gave rise to an arguable case of jurisdictional error.
Ground 2 adopted a similar structure, but relied upon a separate factual consideration, namely that the prosecution did not tender more than a brief extract from the CCTV footage of the whole of the train journey. From that, the applicant's counsel argued that the available (untendered) footage did not corroborate the complaints of the victim.
It was, of course, open to the applicant to submit in the trial and in the District Court, as counsel did, that the untendered CCTV footage provided no corroborative evidence. However, the prosecutor did not suggest that it did, nor did the judge find any corroborative evidence in the footage which was tendered. No response was required to that submission. The case turned upon the credibility of the complainant who gave evidence and was cross-examined, together with evidence of distress, complaint immediately she arrived at work and a further complaint when she was able to contact her father. The question was whether the judge had a reasonable doubt as to the credibility and reliability of her account. The applicant did not give evidence, but an electronically recorded police interview was tendered. But his conduct on the day in question, and answers he gave to the police, tended to undermine his out-of-court denials.
The judge focused squarely on these issues. He explained the nature of the appeal and the approach he was required by statute to take in terms which are not the subject of challenge. In doing so, he demonstrated, as might be expected, a clear understanding of his function.
The application for judicial review is without substance. The summons must be dismissed with costs. It is appropriate to make an express order as to the recommencement and duration of the sentence, pursuant to s 69D of the Supreme Court Act. The appropriate orders are as follows: 1. Dismiss the summons filed in the Court's supervisory jurisdiction. 2. Order that the applicant pay the respondent's costs in this Court. 3. Order that the community correction order recommence on 9 June 2022 and terminate on 11 May 2025.

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