Reznitsky v Director of Public Prosecutions

Introduction 7In his amended summons filed pursuant to s 69 of the Supreme Court Act 1970 the applicant, who was self represented, sought, relevantly, an order quashing the decision of his Honour Judge Hughes of the District Court of 11 November 2009 dismissing his application pursuant to s 22(3) of the Crimes (Appeal and Review) Act 2001 (the Appeal and Review Act). By that application the applicant sought to set aside an order of Acting Judge Graham of 3 June 2009 dismissing his appeal against his conviction in the Local Court by Magistrate Ellis on three offences (the s 22 application). 8To succeed in obtaining prerogative relief it was necessary for the applicant to establish that Judge Hughes, who was exercising the District Court's criminal jurisdiction, had committed jurisdictional error. Although prerogative relief in the nature of certiorari is normally available for error of law on the face of the record as well as jurisdictional error, the effect of s 176 of the District Court Act 1973 (NSW) is to deny the removal of an adjudication on appeal of the District Court in the exercise of its criminal jurisdiction into the Supreme Court. However, it was accepted by the fifth respondent (the Director), being the only respondent to take an active part in the proceedings, that s 176 did not exclude proceedings by way of judicial review by this Court but limited their availability to cases involving jurisdictional error: Garde v Dowd [2011] NSWCA 115; (2011) 80 NSWLR 620 at [9]-[10].

The history of the proceedings involving the applicant 9On 27 January 2008 the applicant was charged with two offences under s 171(2)(a) of the Road Transport (General) Act 2005, namely that as a driver of a vehicle he refused to comply with a requirement of, respectively, a constable and then a sergeant of police to produce his drivers licence. He was also charged with an offence under s 546C of the Crimes Act 1900 of resisting the constable and the sergeant in the execution of their duty as a consequence of the same incident. 10After a hearing in the Local Court at Burwood before Magistrate Ellis on 15 August 2008, the applicant was convicted of all three offences. He was fined $800.00 with respect to each offence and ordered in each case to pay court costs of $73.00. 11On 12 September 2008 the applicant filed an appeal to the District Court against his conviction by Magistrate Ellis pursuant to s 11(1) of the Appeal and Review Act. The grounds upon which the applicant appealed against his conviction are not presently relevant although in his amended summons filed in this Court, he sought the quashing of that conviction. However, this Court in the present proceedings had no jurisdiction to enquire into the correctness or otherwise of that conviction. That has been a matter within the sole prerogative of the District Court at all times. 12The applicant's appeal against his conviction initially came before his Honour Judge Ellis on 17 March 2009. The applicant appeared in person before his Honour. However, as he had only just received a copy of the transcript of the proceedings in the Local Court, he was unable to proceed with his appeal on that date. His Honour adjourned the matter to 3 June 2009. The transcript of proceedings before Judge Ellis indicates that the applicant stated that that date was "fine". His Honour also granted leave to the applicant to call fresh evidence on the appeal. 13Although not immediately relevant to the issue which was before this Court, I would observe that Judge Ellis, with commendable patience and clarity, spent some time explaining to the applicant precisely what he was required to establish for his appeal against his conviction in the Local Court to be successful. If and when the applicant's appeal against his conviction is heard on its merits, he would be well advised to carefully consider his Honour's remarks if he is to have any chance of successfully setting aside his conviction. 14Notwithstanding that the applicant was present when Judge Ellis fixed 3 June 2009 for the hearing of the appeal, he was required to be notified of that date by the registrar of the District Court pursuant to clause 9 of the Criminal Procedure Regulation 2005 (which was the relevant regulation in force at the time) which provided as follows: 9 Notice of Listing (1) As soon as practicable after fixing a date for the hearing or mention of any criminal proceedings, the Criminal Listing Director must give notice of the listing to the registrar of the relevant court. (2) As soon as practicable after receiving notice of the listing, the registrar must cause written notice of the listing to be served, in accordance with the rules of court, on the Director of Public Prosecutions and each accused person or appellant in the proceedings. 15The applicant asserted in his submissions to this Court that he was not so notified, and that may be relevant if and when his s 22 application is determined on its merits. 16The proceedings then came before his Honour Acting Judge Graham on 3 June 2009. The applicant did not appear although the Crown was represented by a solicitor from the office of the Director, Mr Kiru. His Honour was informed as to what had occurred before Judge Ellis and that there had been no indication from the applicant, whether by fax or medical certificate, as to any reason why he was not able to be present in court. Accordingly, after noting that there had been no appearance of the applicant as at 11:50am, Acting Judge Graham dismissed his appeal for want of prosecution and confirmed the convictions, fines and orders for court costs made by Magistrate Ellis. 17On or about 3 July 2009 the applicant filed his s 22 application with the District Court. Such an application is made pursuant to s 22(1) of the Appeal and Review Act where the dismissal of an appeal is due to the appellant's failure to appear. By s 22(2) such an application must be made within 12 months after the date on which the dismissal is made. The applicant's application clearly complied with that requirement. 18Section 22(3) then provides as follows: After hearing such an application, the District Court may set aside the dismissal order, either unconditionally or subject to conditions, if it is satisfied: (a) that the appellant has shown sufficient cause for the failure to appear, and (b) that it is in the interests of justice that the appeal or application be heard. 19I pause to observe that s 22(3) contemplates a hearing on the merits of a s22 application. A primary issue in the present case was whether there was in fact such a hearing for in my opinion it is a condition precedent for the determination of such an application that there be a "hearing". It is only after there has been such a hearing that the District Court may uphold or dismiss the application. Furthermore, to qualify as a hearing, an applicant must be afforded the opportunity to reasonably and fairly advance his or her case by the tendering of evidence and the making of submissions necessary to satisfy the requirements of s 22(3). In other words, there can be no relevant hearing unless an applicant is afforded natural justice or procedural fairness. 20The s 22 application next came before her Honour Judge Payne for mention on 16 September 2009. The applicant appeared in person and the Director was represented by Mr Kiru. On that occasion the applicant sought to explain to her Honour the reasons why he did not attend before Acting Judge Graham on 3 June 2009. However the details of the discussion between her Honour and the applicant relating to this issue are not presently relevant. Only three matters need be mentioned in relation to the hearing before Judge Payne. The first is that in the applicant's s 22 application he referred to dates in July 2009 whereas he intended to refer to June 2009. Her Honour permitted him to change July to June. The second is that her Honour adjourned the hearing of the application to 11 November 2009. The third is that her Honour ordered that any further evidence to be relied on by the applicant as to why he did not attend the hearing before Acting Judge Graham on 3 June 2009 was to be filed seven days prior to the adjourned hearing. No such evidence was filed.

The proceedings of 11 November 2009 21The hearing of the s 22 application came before Judge Hughes on 11 November 2009. Again, the applicant appeared in person whereas the Crown was represented by Mr Kiru from the office of the Director. The course of the proceedings before his Honour needs to be fleshed out in a some detail. 22Having announced his appearance the applicant advised Judge Hughes that he would require about 20 minutes maximum to make submissions in relation to his application. The applicant informed the Court that although his appeal had been dismissed by Acting Judge Graham because he did not attend the hearing, there were reasons for him failing to do so. Judge Hughes then stood the matter in his list until 2:00pm. 23When the matter eventually commenced his Honour initially called upon Mr Kiru, rather than the applicant who was told to sit down. Mr Kiru informed Judge Hughes that the applicant had filed "some papers saying that he wants to reinstate the appeal". His Honour asked Mr Kiru whether the applicant had given a reason why he had not turned up. Mr Kiru then referred to a letter that had been filed in the District Court by the applicant on 16 September. (The transcript later makes clear that the letter being referred to was the applicant's s 22 application dated 1 July 2009). The following exchange then occurred: APPELLANT: May I check this one? It was filed-- HIS HONOUR: No, no, just be quiet. 24It would then appear that his Honour read a document from the court file to the effect that the applicant was making an application to set aside the order of dismissal made by Acting Judge Graham and noting that the matter was listed for hearing on 11 November 2009. 25At this point it becomes necessary to set out a substantial part of the transcript verbatim: HIS HONOUR: All right. Now what was the reason for him not appearing? KIRU: I believe he filed a letter, your Honour, on the last occasion. I don't know whether he has got a copy of the letter. HIS HONOUR: Is this it here? APPELLANT: Yes it's dated - it was served on District Court about 1 July, so shortly about hearing date, not on 16 September, it was 1 July. HIS HONOUR: I see. This is sort of a raving of some kind of lunatic here, if I might say so, Mr - why weren't you here on the occasion when the appeal was held? APPELLANT: May I proceed with my application just to-- HIS HONOUR: Pardon? APPELLANT: May I proceed with my application just to do-- HIS HONOUR: No, l want to know why you weren't here on the day it was set down. APPELLANT: The day it was set down for a hearing was 17 March. HIS HONOUR: Right. APPELLANT: 17 March. HIS HONOUR: Yes. APPELLANT: Not 17 June. On 17 March prosecution didn't serve a transcript-- HIS HONOUR: Why weren't you here? APPELLANT: I was not here because I was here - I was here because I mixed - we had the - okay, just I'll just put down, I'll simply read from my submissions. HIS HONOUR: I don't want you to read from your submissions, I want to tell you why weren't you here on the day it was set down for hearing. APPELLANT: I was not here on that day. HIS HONOUR: Where were you? APPELLANT: The question is - I was at home. I mixed up the dates. I had 5 June on my calendar and mostly it's because of what happened on 17 March because on 17 March we had this discussion in court and the date of the next appearance was between the Iines. We had a very broad discussion and I was taken out of court. Mr Kiru he was not here and there was a barrister who tried to advise me on behalf of Department of Public Prosecutions and actually everything went wrong on 17 March. So - and I didn't make any notes and I just had something in my memory. HIS HONOUR: That doesn't seem much of an excuse to me. APPELLANT: The question is that there is-- HIS HONOUR: Just sit down. Yes-- 26It is reasonably apparent from the foregoing that at least initially the Judge and the applicant were at cross-purposes. It would seem that his Honour was asking the applicant why he was not present on 17 March 2009 when in fact he was. That was the date upon which the matter was "set down for hearing". However, at the request of his Honour the applicant provided some reasons why he was not present in court on 3 June although he was cut short and told to sit down when he attempted to continue his explanation. 27Following the above exchange Mr Kiru informed his Honour that the applicant was present before Judge Ellis on 17 March 2009 when the matter was listed for hearing on 3 June. He then stated that on that date the Crown had had present the two police officer witnesses who had waited around until midday. Mr Kiru further advised his Honour that Acting Judge Graham had the matter called three times but as there was no appearance by the applicant he then dismissed his appeal. 28The following further exchange then occurred: KIRU: There is no merit whatsoever in relation to this application. He was physically present when the matter was listed for hearing. APPELLANT: That's what Department of Public Prosecutions can say after I-- HIS HONOUR: I believe them. The appeal is dismissed. APPELLANT: And - but I haven't-- HIS HONOUR: I don't give you leave-- APPELLANT: But I even haven't submitted my-- HIS HONOUR: I don't want to hear any further. APPELLANT: I appeal against your decision because I even haven't submitted my application. HIS HONOUR: You can do what you like, you can do what you like. APPELLANT: Okay, thank you, thanks. HIS HONOUR: I uphold the dismissal by Judge Graham. Leave is refused. KIRU: Thank you, your Honour. APPELLANT: Okay. Can I have - may I ask where to ..(not transcribable).. your decision? HIS HONOUR: No. Come forward - I'll call the next matter. APPELLANT: Thanks. ADJOURNED

Was the applicant denied procedural fairness by Judge Hughes? 29Before he had heard the applicant at all, Judge Hughes stated that "this is sort of a raving of some kind of lunatic here". Not only was this highly insulting of, and disrespectful to, the applicant but also it was entirely inappropriate for such a remark to be made in public. It revealed a gross departure by Judge Hughes from the desirable standard of behaviour expected of a judicial officer and a senior one at that. It gave a clear signal to any reasonable person observing proceedings that his Honour did not propose to hear the applicant at all and in fact he did not do so. Furthermore, if Judge Hughes was referring to the s 22 application filed on 3 July 2009, then what he said was not only unjustified but also was simply wrong. 30It is true that in the exchange which I have set out at [25] above the applicant did state, at least in part, a reason why he did not appear before Acting Judge Graham on 3 June and to which the primary judge responded "That doesn't seem much of an excuse to me". However, when the applicant wished to make further submissions his Honour told him to "just sit down". 31But it is the exchange which I have recorded at [28] above that makes it clear that his Honour was not prepared to give the applicant a hearing let alone provide reasons for his peremptory decision to "believe" the Director's legal representative and to dismiss the "appeal", which was an incorrect description of the application before him. The lack of reasons was indicative of his Honour's potentially dismissive attitude towards the applicant and reflected his apparent desire to see him off, as it were, in the shortest possible time. 32In my opinion there can be no doubt that the applicant was contumeliously denied procedural fairness: he was simply not heard and, therefore, there was no "hearing" within the meaning of s 22(3) of the Appeal and Review Act. 33In her written submissions, senior counsel for the Director noted that the applicant expressed a desire to read from his submissions. It was nevertheless contended that it appeared from the transcript that Judge Hughes had looked at the application dated 1 July 2009. However this is far from clear. In any event, even if his Honour had read the s 22 application, it is more than apparent from the exchange between he and the applicant that the latter wished to support his application with further submissions, an opportunity denied to him. 34The Director further submitted that it was not known what other submissions the applicant was referring to when he stated that he wished to read from his submissions. However the point was that Judge Hughes denied him the right to read from those submissions, a right which he was clearly entitled to exercise if he was to be accorded procedural fairness. It was simply inadequate for the Director to submit, as he did in his written submissions, that his Honour was entitled to reject the sole excuse proffered before him to the effect that the applicant mixed up the dates when he had denied the applicant the opportunity to make the submissions he wished to make presumably in support of that excuse. 35It will be appreciated from the two preceding paragraphs that the Director initially made what I would regard as a lame attempt to support Judge Hughes' decision. I say that attempt was lame as the submissions never grappled directly with his Honour's conduct. Ultimately, when senior counsel for the Director realised from the nature and tone of the questions from the members of the Court that her attempt to support the decision was entirely without merit, she wisely sought a short adjournment to seek further instructions. Upon the Court reconvening, senior counsel indicated that she had been instructed to concede that there had been a denial of procedural fairness and that the Director no longer opposed the granting of the relief sought by the applicant with respect to the orders of Judge Hughes. 36That concession should have been made long before the summons was listed for hearing. As a model litigant, the Director or those advising him should have appreciated well before he or they did that the applicant had been subjected to a gross injustice by Judge Hughes. Why the Director continued up to and including the hearing to defend the indefensible remains a mystery. It is nevertheless disturbing not least because it involved a waste of this Court's resources and the possible imposition upon the applicant of unnecessary stress and anxiety. 37Notwithstanding the foregoing in his written submissions the Director conceded, correctly, that a failure to afford procedural fairness during a hearing or a breach of the rules of natural justice may amount to jurisdictional error. This is clearly so: Re Refugee Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [27] per Gaudron and Gummow JJ; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2009) 239 CLR 531 at [60]; Wang v Farkas [2014] NSWCA 29 at [41] per Basten JA (with whom Bathurst CJ and Beazley P agreed). In the last mentioned case Basten JA said: [W]here the law imposes obligations of procedural fairness, a failure to comply with those obligations will constitute jurisdictional error, although the precise boundaries of the obligation in a particular case may appear to fall within the discretion of the court or tribunal in determining its own procedures. 38The rider to his Honour's statement that a failure to provide procedural fairness will constitute jurisdictional error has no application to the present case. In my view as there was a clear denial of procedural fairness it follows that Judge Hughes committed jurisdictional error in dismissing the applicant's s 22 application. Procedural fairness mandated that the applicant be provided with the opportunity to fairly put his case. That opportunity was denied to him and he was treated in an arrogant, rude and inappropriate manner. 39As I have noted, the applicant's amended summons also sought an order quashing both his conviction in the Local Court as well as the decision of Acting Judge Graham of 3 June 2009 dismissing his appeal from that conviction. Whether or not his conviction before Magistrate Ellis was justified or not will be determined on any appeal to the District Court from the learned Magistrate's decision if, on the further hearing of the application under s 22 of the Appeal and Review Act, Acting Judge Graham's order dismissing that appeal is set aside. For that to occur it is first necessary for the applicant to persuade the District Court that he has shown sufficient cause for his failure to appear and that it is in the interests of justice that his appeal be heard. Upon the quashing of Judge Hughes' order that his s 22 application be dismissed, that application can now be determined on its merits. 40Three further matters should be mentioned. The first concerns the applicant's delay in initiating proceedings for judicial review of Judge Hughes' decision. He originally filed his s 69 summons in the Common Law Division of the Court on 21 November 2012. Pursuant to s 48(2)(d) of the Supreme Court Act the proceedings were assigned to this Court. The delay between the decision and filing the application on 21 November 2012 was some three years, which was a factor capable of impacting upon the Court's discretion to grant or withhold relief. The second matter was whether the applicant's s 22 application was likely to fail when considered on its merits so that to grant the relief sought would be an exercise in futility. The third related to a possible argument that to grant relief would be futile as the applicant's appeal against his conviction in the Local Court was doomed to failure. 41None of these matters were raised by the Director in his written submissions. When they were brought to the attention of his senior counsel at the commencement of the hearing before this Court, she advised with appropriate and commendable candour that she was not instructed to raise any of the matters referred to notwithstanding that those matters, and in particular the element of delay, had the potential to influence the Court's discretion to grant relief pursuant to s 69 of the Supreme Court Act if a denial of procedural fairness was established. 42Accordingly, having formed a firm view that the applicant had been denied procedural fairness by Judge Hughes and that that denial constituted jurisdictional error, the Court exercised its discretion to grant the applicant the relief he sought. 43It is for the foregoing reasons that I joined in the orders referred to at [5] above.

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: 26 March 2014