Rahman v Director of Public Prosecutions

Some relevant background summarised

1. Section 13 of the Crimes (Domestic and Personal) Violence Act provides: 13 Stalking or intimidation with intent to cause fear of physical or mental harm (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. Maximum penalty - Imprisonment for 5 years or 50 penalty units, or both. (2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship. (3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm. (5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.
2. The s 13 offence which the Local Court found established related to events which occurred on a train and primarily at Lidcombe railway station on 12 March 2020.
3. Significantly, the applicant appealed the guilty verdict to the District Court pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). The notice of appeal to the District Court simply stated as the ground of appeal that: "I am appealing the above conviction/order BECAUSE I AM NOT GUILTY". That appeal was heard by Pickering SC DCJ on 10 August 2022. His Honour gave ex tempore reasons for judgment for dismissing the appeal and confirming the magistrate's orders. The reasons for judgment were subsequently revised (see the affidavit dated 25 January 2023 by Ms Belinda Jane Fitzpatrick, a solicitor employed in the office of the Director of the Public Prosecutions (DPP)).
4. It is desirable to say something more about the District Court's decision because it must be the central focus of the proceeding by way of judicial review in this Court. As was made clear by the applicant's counsel at page 2 of the transcript of the hearing in the District Court (line 3), no issue was raised as to the magistrate's finding of stalking. The appeal was confined to the issue whether the applicant had the intention of causing his wife to fear physical or mental harm. The evidence relating to that issue included that given by a Mr Gilmore (who was in the company of the applicant's wife both on the train and at the railway station). Mr Gilmore's evidence was that, whilst on the train, the applicant had become agitated, was shouting and made offensive comments about the size of Mr Gilmore's penis, made allegations about Mr Gilmore having sex with his wife and demanded that she have nothing to do with Mr Gilmore. Mr Gilmore also gave evidence that a third person wearing a yellow "hi vis" shirt intervened and told the applicant to calm down. The CCTV evidence, which captured the events which occurred on the railway station as opposed to inside the train, had been described by the magistrate as "extremely compelling evidence" and made "for a strong prosecution case". The CCTV footage recorded the applicant as following his wife and Mr Gilmore for around 9 minutes, during which time he screamed abuse at them, gestured to them and filmed them. The magistrate also found that, based on the CCTV footage, the applicant appeared to be agitated.
5. Having reviewed the CCTV footage himself, Judge Pickering found that, by this stage, it was difficult to accept that the applicant was not intending through his actions to cause his wife to fear physical or mental harm. His Honour made reference to the evidence that the applicant continued to pursue his wife at the railway station after alighting from the train, which drew ongoing attention from the third party as well as involvement by railway station staff. His Honour found that the applicant physically confronted his wife, "either grabbing her bag or her arm in an action that would have amounted to an assault at law but … was not charged". Nevertheless his Honour considered this action to be part of the applicant's intended control and humiliation of his wife. At page 5 of the revised reasons for judgment, Judge Pickering stated at: I have absolutely no doubt that he sought to intimidate her and stalk her in this fashion, that he wanted her to feel concerned, that was both for physical harm he in fact even acted in a physical way towards her in grabbing her in a manner that was aggressive. But also the aspect of humiliation is in itself (sic) would amount to mental harm.
6. Judge Pickering then referred to the meaning of mental harm for the purposes of s 13 of the Crimes (Domestic and Personal Violence) Act and suggested that it involved a "very low threshold". His Honour concluded that the applicant was "well worthy of being found guilty of the offence". The appeal was dismissed and the orders of the magistrate were all confirmed, including that, without proceeding to conviction, the applicant was sentenced to a Conditional Release Order for 12 months, expiring on 16 February 2023.

Some fundamental flaws in the applicant's judicial review challenge

1. The original summons filed in this Court by the law firm representing the applicant named the police officer with the responsibility for prosecuting the charges in the Local Court as respondent (acting on behalf of the applicant's wife). The District Court of NSW was stated to be the decision-maker below.
2. Although the front cover of the original summons made express reference to the Court's "supervisory jurisdiction", the filing details stated that the "Appellant appeals against the guilty verdict in respect of the stalking charge pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001". The reference to that provision was erroneous as it applies only to an appeal to the District Court by a person who has been convicted or sentenced by the Local Court.
3. The original summons identified the following three grounds (without alteration): 1 Identified a wrong issue, relied on irrelevant material, ignored relevant material, abuse of discretion by the judge. 2 Procedural unfairness, being not transparent in actions/decisions, made a decision in bad faith, wrong legal 'test'. 3 Taking into account irrelevant considerations or failing to consider relevant considerations.
4. The original summons sought orders that the "Appellant" (sic) should be found not guilty of the stalking charge and any other order which the Court considered appropriate.
5. An amended summons was filed by the applicant's solicitor on 7 November 2022. The DPP and the District Court were named as the first and second respondents respectively. Otherwise, the deficiencies in the original summons described above were repeated.
6. On 30 January 2023, following an enquiry from the Court, the solicitor on the record stated that the applicant would appear at the hearing personally as he was not available to appear.
7. Prior to the day before the hearing in this Court, the applicant had filed no evidence in support of his judicial review challenge. Late on 30 January 2023, the applicant personally forwarded various materials to the Court in support of his case, namely: 1. a subpoena to produce dated 6 May 2021 issued on behalf of the applicant in the Local Court requiring the Commissioner of Police to produce various materials relating to the charges against him; 2. a separate subpoena to produce dated 6 May 2021 issued on behalf of the applicant in the Local Court addressed to the applicant's wife requiring her to produce various materials relating to the charges against him; 3. a subpoena to produce dated 15 September 2021 issued on behalf of the applicant in the Local Court addressed to the applicant's wife requiring her to produce various materials relating to the charges against him; 4. a subpoena dated 6 June 2022 issued on behalf of the applicant in the Local Court addressed to the applicant's wife requiring her to produce various materials , which was issued after the Local Court decision and related to the ADVO; 5. transcripts of the hearings and delivery of judgment in the Local Court before Magistrate Horan (parts of the transcripts appear to have been modified by a third party, with some parts appearing in red font and/or highlighted in yellow and the addition of comments in the margin presumably by the applicant as indicated by the initials "FR"; 6. further written submissions dated 30 January 2023 and signed by the applicant's solicitor 7. an unidentified email from the applicant which was allegedly sent to the Court referring to family law proceedings, which email was not admitted into evidence on the basis of relevance; and 8. orders dated 17 October 2022 of the Federal Circuit and Family Court of Australia which were also not admitted into evidence on the basis of relevance.
8. Ms Fitzpatrick's affidavit, which was read by the first respondent without objection, annexed a copy of the revised reasons for judgment, the transcript of the hearing in the District Court and the written submissions in that Court filed on behalf of the applicant and the DPP respectively. At the Court's request, shortly before the hearing copies of the Court Attendance Notice, notice of appeal to the District Court and the reasons of the magistrate were provided, together with documents recording the results of the proceedings in both the Local and District Courts. These documents were tendered in evidence without objection. Neither party adduced a copy of the CCTV footage which was in evidence in both the Local Court and the District Court, and was relied upon by Judge Pickering in concluding that the charge of stalking was established.
9. As was pointed out by the DPP in this Court, the applicant's written submissions dated 27 September 2022 did not address any of the three grounds as postulated in the original summons and repeated in the amended summons. Instead, those submissions simply recited large portions of the submissions made on the applicant's behalf in his unsuccessful appeal to the District Court.
10. The applicant's additional submissions dated 30 January 2023 took the matter a little further. First, those submissions referred to the four subpoenas issued on behalf of the applicant, as described at [19] above. The applicant submitted that "we were informed nothing was produced, no motion/application to the local court under s45 of the act 2007 and/or part 4, rules 2009 to set aside" and that his wife was in breach of court orders. The additional submissions cross-referred to various pages of the Local Court transcripts, where the issue of the applicant's wife's compliance with the subpoenas was raised in closing address by the applicant's then counsel. The magistrate said that she knew nothing about the background to the subpoenas. The applicant's counsel contended that the applicant's wife's non-compliance was relevant to an assessment of her credibility. The prosecutor was unable to assist the Local Court on the issue whether or not a particular subpoena had been complied with. The magistrate said that she would "think about" the submission but indicated that, "with nothing before me on it, I'm not sure that I can do much with it". The applicant's then counsel is recorded as saying that if the magistrate was against him, "it doesn't matter" and that his submission on the matter was "not the strongest part of [his] case", but then added that it was one of the elements that he was obliged to bring to the magistrate's attention.
11. The magistrate made no reference to this issue in her reasons. Significantly, however, the applicant did not raise the issue in his appeal to the District Court. Unsurprisingly, therefore, there is no reference to the matter in Judge Pickering's reasons for judgment. In these circumstances, there is no basis for any submission that Judge Pickering fell into jurisdictional error in respect of this matter. It appears that the applicant has failed to appreciate that the proceeding in this Court is directed to the question whether the District Court fell into jurisdictional error and not whether the Local Court fell into any error, whether jurisdictional or not.
12. Secondly, the applicant's submissions dated 30 January 2023 include claims in the following terms: 5 Perhaps the strongest part of our case - not that we are required to prove anything as PINOC is not living there matrimonial home since separation on 12 March 2020 and kept the appellant and their both children out of home with ill motive. The magistrate ignored to hear ADVO application and extended ADVO for further 12 months which will end on 16 February 2023. Judge Pickering also failed to observe a requirement of procedural fairness. 6 The appellant S157 [referring to Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2002] HCA 2] established that denial of procedural fairness is jurisdictional error (at 508) as the court below disregarded subpoenas and was breaching natural justice.
13. As to paragraph 5 of those submissions, there is no evidence before this Court that the applicant's wife did what she is accused there of doing, including keeping the applicant and the children "out of home with ill motive".
14. As to the complaints regarding the ADVO, any claim of procedural unfairness by Magistrate Horan ought to have been raised below. I have emphasised several times the limited nature and scope of this Court's jurisdiction on a judicial review, as opposed to an appeal. For what it is worth, however, the claim of procedural unfairness in the Local Court is without foundation. It is incorrect to say that Magistrate Horan did not hear the ADVO application. The Local Court transcript records the prosecutor informing Magistrate Horan that there was an ADVO still on foot and the prosecution was seeking its extension for a period of two years. Magistrate Horan said that she was required by s 39 of the Crimes (Domestic and Personal Violence) Act to make an order on the ADVO and she invited submissions from the applicant's then counsel. In sentencing the applicant (it may be noted that s 39(1A) of that Act requires the court to make a final ADVO whether or not an application for such an order has been made), Magistrate Horan noted that there had been no breach of the provisional ADVO that had been in place for nearly two years and that, as noted above, she would make a final ADVO to run for only one year (and not two years as sought by the prosecutor). The transcript of the delivery of judgment in the Local Court later records Magistrate Horan as saying that the police ordinarily seek a two year period for a final ADVO but that, in this case, "[t]hey are only seeking one year in recognition of the fact that [it] has already been on foot for quite some time". It may be inferred that during the parties' addresses on penalty (which were not transcribed) the police prosecutor varied his initial position and reduced the requested period from two years to one year.
15. Magistrate Horan explained to the applicant the terms of the final ADVO and the importance of his continuing compliance. She then asked whether the applicant had any questions about the final ADVO because it was important that he understood it. The applicant said that he understood and did not need the interpreter to explain anything to him.
16. For these reasons, the applicant has not demonstrated any procedural unfairness by Magistrate Horan. On the contrary, her Honour went to great lengths to provide the parties with a reasonable opportunity to be heard on the terms of the final ADVO and issues relating to it.
17. More significantly, however, given the nature of the proceeding in this Court, there is no basis for the applicant's claim that Judge Pickering failed to observe procedural fairness. It is notable that the applicant's appeal to the District Court did not raise any claim of procedural unfairness on the part of Magistrate Horan. Nor has any basis been demonstrated to support the applicant's contention that Judge Pickering also failed to observe any procedural fairness requirements. For the first time, in his oral address, the applicant claimed that Judge Pickering painted him as a "bad person". If this was intended to raise a claim of apprehended or actual bias, there is not a scintilla of evidence to support it and it is rejected. Nor is there any basis for the serious allegation of "bad faith" on the part of Judge Pickering, which allegation seemed to be based entirely on the applicant's lack of success in the District Court.
18. Thirdly, in his additional written submissions, the applicant contends that Judge Pickering fell into jurisdictional error by identifying a wrong issue and ignoring relevant material. In support of that claim, the applicant set out various parts of the Local Court transcript concerning the applicant's evidence, with particular reference to his evidence whether or not he intended to cause his wife to fear physical or mental harm. The applicant then made the following written submission (without alteration): The appellant intentions were initially to find out where his wife was going in that approximately two hour period each morning on those days and some whole days on weekday and weekend when she was going to Lidcombe Station on the way to work. He had disguised himself so as not to be seen, not to be capable of being recognised. It was clear that from that fact at least that he didn't intend to cause her fear of any physical or mental harm because he didn't expect her to recognise him. He didn't want her to recognise him. Judge Pickering did fall into jurisdictional error in dismissing the appeal by misleading the facts
19. It is not clear what is meant by the claim that Judge Pickering "[fell] into jurisdictional error in dismissing the appeal by misleading the facts". His Honour's reasons for judgment explicitly address the fact that the applicant was disguised so as to hide from his wife (see the transcript of the delivery of judgment in the District Court at page 5). It is plain, however, that Judge Pickering gave great weight to the fact that, despite his disguise, the applicant's wife recognised him and, from then onwards, the applicant was not worried about whether he was hidden from her and he proceeded to humiliate her (and Mr Gilmore) and act in an aggressive manner in various ways. No jurisdictional error has been established in respect of this part of Judge Pickering's fact-finding or reasoning.
20. Fourthly, the applicant also set out various extracts from the Local Court transcript dated 17 February 2022 relating to the issue whether or not the applicant had told the police that he had a video of his wife kissing Mr Gilmore. He points to the fact that Magistrate Horan found that the applicant was not consistent in his cross-examination about this matter, which led to her conclusion that his evidence was unreliable. The applicant then submitted that Magistrate Horan had "misleaded/misinterpreted the facts" and that Judge Pickering "failed to identified (sic) a wrong issue and did fall into jurisdictional error in dismissing the appeal".
21. These submissions are rejected. They are primarily directed to alleged errors by Magistrate Horan, not Judge Pickering. Again, this fails to appreciate the nature of the proceeding in this Court. It is also notable that the applicant's appeal to the District Court did not raise any ground to the effect that Magistrate Horan misled or misinterpreted the facts regarding the question whether or not the applicant had a video which showed his wife and Mr Gilmore kissing. The applicant's failure to raise this issue in his appeal to the District Court is also fatal to his claim that Judge Pickering fell into jurisdictional error by failing to identify a wrong issue.
22. For these reasons, no jurisdictional error has been demonstrated on the part of Judge Pickering in respect of any of the matters raised by the applicant.
23. It is evident from what I have said above that the nature and character of the present proceeding has been fundamentally misconceived by the applicant. The proceedings are not an appeal (or a judicial review) in relation to the Local Court proceedings. The magistrate's orders cannot be challenged in these proceedings. Those orders have been superseded by the orders of the District Court made on the appeal pursuant to s 11 of the CAR Act (see Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10]-[11] and Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [52]).
24. As the DPP also correctly pointed out, this Court's supervisory jurisdiction in respect of decisions of the District Court on appeal from the Local Court in a criminal matter are constrained by the privative clause in s 176 of the District Court Act. To succeed in such proceedings, the applicant needs to establish jurisdictional error. As the Court observed in Nabi v Director of Public Prosecutions (NSW) [2022] NSWCA 92 at [5], this Court will not intervene with orders made by the District Court in an appeal from the Local Court in a criminal matter "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".
25. The applicant confirmed in the course of his oral address that his essential case was that Judge Pickering had made various erroneous findings of fact and that those erroneous factual findings constituted one or more jurisdictional errors. That position seriously misstates the law and the well-established principle of the limited nature of jurisdictional error in reviewing findings of fact by an inferior court (see Craig v South Australia (1985) 184 CLR 163 at 177-179; [1985] HCA 58). As the Court said there at page 179: "… the ordinary jurisdiction of a court of law encompasses authority to decide questions of law ,as well as questions of fact, involved in matters which it has jurisdiction to determine". None of the alleged factual errors by Judge Pickering was said to be a jurisdictional fact, to which different considerations might apply. Rather, the applicant erroneously approached the presentation of his case in this Court on the basis that it was a full rehearing of the merits of the criminal law case against him. This was misconceived.
26. This case is quite unlike the proceedings in Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1; [2021] NSWCA 337, in respect of which the High Court allowed the appeal on 15 November 2022 (see [2022] HCATrans 202) for reasons which remain to be published.

Conclusion

1. For these reasons, the amended summons should be dismissed, with costs. It seeks relief which is beyond this Court's jurisdiction and, in any event, no jurisdictional error has been established so as to warrant this Court's intervention. It is also appropriate to make an order under s 69D of the Supreme Court Act 1970 (NSW) to remove any uncertainty concerning the fact that the Conditional Release Order will expire on 16 February 2023.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 January 2023