Reznitsky v Director of Public Prosecutions

Court of Appeal (NSW)|2015-10-27|Before: Basten JA, Adamson J

Solicitors: Crown Solicitor's Officer (First Respondent) Office of the Director of Public Prosecutions (NSW) (Second Respondent) File Number(s): 2014/334031 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 14 October 2014 Before: Maiden DCJ File Number(s): 2008/14539

[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.]

Judgment

BASTEN JA: In 2008 the applicant was convicted in the Local Court at Burwood of three offences, two involving traffic offences (failure to produce a driver's licence), and a minor criminal offence (resist police in the execution of their duty). He appealed to the District Court. On 3 June 2009, he failed to appear at the hearing of his appeal, which was dismissed in his absence. He then sought to reinstate his appeal by having the dismissal set aside pursuant to s 22(1) of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act"). This application was refused by Maiden DCJ on 14 October 2014. There is no appeal from the orders in the District Court; accordingly the applicant seeks relief pursuant to s 69 of the Supreme Court Act 1970 (NSW).
To succeed, the applicant must demonstrate jurisdictional error on the part of the District Court judge. [1] The grounds set out in the second amended summons, dated 4 June 2015 included (i) breach of procedural fairness, (ii) failing to provide adequate reasons for the decision and, (iii) what may be identified as apprehended bias. At least the first and third, and possibly the second, of these grounds, if made good, would constitute jurisdictional error. The second ground may be available if it alleges a breach so serious as to constitute a constructive failure on the part of the District Court to carry out its judicial function. [2]
The applicant also seeks to have quashed an order of Acting Judge Graham, made in the District Court on 3 June 2009. Graham ADCJ dismissed the applicant's appeal against conviction in the Local Court. The applicant had two courses open to him in challenging the decision of Graham ADCJ: one was to seek to have the order set aside by the District Court (which he did); the other was to seek review in this Court. For reasons which will be explained, the application to this Court must be rejected.

Background

These proceedings commenced more than seven years ago, when on 27 January 2008, the applicant was charged with refusing to produce a driver's licence and resisting police. He appeared at Burwood Local Court on 15 August 2008, at which time evidence was given by the police officers; the applicant merely made submissions. He did not give evidence himself, nor did he call evidence, although his mother was a potential witness on his behalf. He was convicted and fined $800 on each offence.
On 12 September 2008 he filed an appeal to the District Court against the convictions. That appeal came before Ellis DCJ on 17 March 2009. As a transcript of the proceedings in the Local Court had only become available on the previous day, Ellis DCJ agreed to adjourn the appeal. In the course of the hearing, Ellis DCJ explained in careful detail the fact that (a) his exchanges with the magistrate indicated that they had not hit it off; (b) that his failure to give evidence or call evidence resulted in the magistrate having before her only one side of the story, and (c) that he was prepared to give the applicant leave to call fresh evidence, including evidence himself, and if he wished, calling his mother, because he had been unrepresented in the Local Court and because he and the magistrate "didn't hit it off too well".
Having offered an adjournment, the judge asked the applicant how long he needed to read the transcript and prepare his appeal. The applicant sought two months, and was offered a hearing on Monday, 1 June 2009. He indicated the Monday was not suitable but he could do it on a Wednesday. The judge then said Wednesday 3 June, to which the applicant agreed. The appeal was stood over to 3 June 2009, with a grant of leave to call fresh evidence, being the evidence of himself and his mother and any supporting photographic or documentary evidence he might decide to proffer.
On Wednesday, 3 June, the matter was listed before Acting Judge Graham. The applicant did not appear. The officer appearing for the Director of Public Prosecutions noted that there was no indication that the applicant had contacted the court registry, the DPP or the police officers involved in the case. At 11.50am, the officer sought to have the appeal dismissed. Noting that there had been no appearance of the appellant by that time, the judge dismissed the appeal against the convictions.
On 1 July 2009 an application (apparently filed on 8 July 2009) was made to have the appeal relisted. It was, in substance, an application pursuant to s 22(1) of the Appeal and Review Act. The applicant gave three reasons for his failure to attend on what he had typed as "3 of July 2009" on several occasions in the document. The first reason was that the date of the hearing had been marked in his calendar as "not the 3 but the 5 of July 2009". Secondly, he said that he was seriously ill "during that week" and, thirdly, the Registrar had failed to cause written notice of the hearing on 3 July 2009 to be sent to him. He included with that application, a notice of intention to appeal, also dated 1 July 2009, which referred to the dates of trial and sentence hearings as, "Burwood LC: 15 August 2008 (trial); Parramatta DC: 3 June 2009 (appeal not heard)."
The incorrect references to 3 July, rather than 3 June were noted by Payne DCJ, when the matter came before her for mention on 16 September 2009. As she noted, the error cast some doubt on his explanations for not having attended. The judge eventually set the matter down for hearing on 11 November 2009.
It is not necessary to deal with the hearing on that day: the application was dismissed in unfortunate circumstances, which then came before this Court in its supervisory jurisdiction. Orders were made on 4 March 2014, quashing the order made on 11 November 2009 and remitting to the District Court the application pursuant to s 22(1) of the Appeal and Review Act, to be determined according to law. [3]
In granting that relief, the Court noted that three matters had not been taken into account as constituting discretionary bases for withholding relief, because the Director had not been instructed to raise them. The matters were (a) a delay of three years in filing the application under s 69 of the Supreme Court Act; (b) a real issue as to whether the s 22 application was likely to fail, and, (c) whether the appeal against conviction was itself doomed to fail.
After a number of mentions in the District Court, the matter came before Judge Maiden for hearing on 13 October 2014. The first part of the transcript of that day involved an extensive set of exchanges, mainly between the applicant and the bench, as to the nature of the application. The applicant stated on a number of occasions that he was there to proceed with an application under s 22 of the Appeal and Review Act, namely to set aside the dismissal of his appeal. The judge, on the other hand, sought to find out whether the applicant wished him to read the transcript of what had happened before the magistrate. The applicant, not unreasonably, appears to have assumed that the judge was proposing to deal with the substance of the appeal from the Local Court.
Had the matter stopped there, there might well have been merit in the allegation of procedural unfairness. However the matter did not stop there. Part way through the morning, the matter was adjourned to 2pm. The matter returned before Maiden DCJ following the luncheon adjournment, at which time the judge took the applicant to the advice given him by Judge Ellis. The judge stated: [4] "And in that document, in a lengthy discussion he set out what was required under s 22, that we are dealing with today, that is material or evidence to support or to give the basis for the leave being granted and that material was repeated by you in paragraph 17, that is, the Act was repeated in paragraph 17.3 on page 15, for your submissions to the Court of Appeal …."
The judge then took the applicant to s 22(3) and noted that what was required was either material "in a sworn affidavit or it would be evidence given under oath in this Court." He then noted that there did not appear to be anything in the material supplied by the applicant which constituted an affidavit or which otherwise could be described as evidence. [5] The following exchange then occurred: "HIS HONOUR: I've read it all. Now, I just want to tell you this having read all the material there is no affidavit or document in an evidentiary form which is admissible today before me, that I'm aware of. Do you have an affidavit which sets out the material that you want this Court to take into account today? APPELLANT: I don't have it in writing, I can make just a sort of verbal evidence, a chronology. HIS HONOUR: No, no, not a chronology. You say you seek leave to give oral evidence today going to subs 3(a) and (b), do you?"
The appellant then explained that he had an outline of submissions relating to subs (3)(b). The lengthy excursus ended with the following exchange: [6] "APPELLANT: This is submission in relation to s 22(3)(b). HIS HONOUR: Yes, that's a submission. It is not evidence. Evidence is what are set out either given from the witness box after a witness either gives an oath to tell the truth or an affirmation, that is, to tell the truth under the Oaths Act of New South Wales or - please don't - are you smiling or ? APPELLANT: No, no, no I'm not smiling I just ‑ HIS HONOUR: I'm just trying to tell you ‑ APPELLANT: I understand yeah. HIS HONOUR: ‑ what your difficulty is. APPELLANT: I understand. HIS HONOUR: No you don't, I don't think because what I've been trying to tell you, I think what Mr Crown has said to you earlier today is that you do not have any material that tells the Court what evidence, what you say on your oath which answers s 22(3)(a) and (b). This is what the Crown has said to you originally and to me and I accept that now having read this material now, I've got your submission but I don't have any evidence."
Further attempts to have the appellant understand that he needed to call evidence to explain why he had failed to attend on 3 June 2009 ended with the judge explaining that his application would be dismissed unless he sought an adjournment to put on evidence. [7] The application was eventually made. [8] The matter was then adjourned to the next afternoon, being Tuesday, 14 October 2014, at 2pm.
When the matter was called the following day the applicant did not appear. An officer appearing for the Director said, although there was no evidence to support the statement, that there had been an offer from the Parramatta Legal Aid Office to provide assistance, which had not been taken up. He further noted the advice given by Ellis DCJ and the advice given on the previous day. Any further adjournment was opposed.
Maiden DCJ then delivered a judgment dismissing the application. In the course of it the following reasons were given: "The events that give rise to this application are set out succinctly in the decision of the Court of Criminal Appeal [sic] and I do not propose to go over or to repeat those findings. The history set out in the judgment that was provided to me by the appellant. Yesterday this Court told the appellant that there did not appear to be anywhere on the file or in the material which he had provided to the Court yesterday which amounted to evidence which would support his application pursuant to s 22 of the Crimes Criminal Appeal Act [sic]. Today I've been provided with a facsimile transmission apparently signed by the appellant dated today (14 October 2014) addressed to Registrar/Judge of this Court. Omitting the formal parts it reads, 'I [the applicant's name and address], a party in the proceedings, give a notice and seek adjournment in the proceedings application under s 22 of the Crimes (Appeal and Review) Act 2001 on the medical ground. The matter can be relisted not before 5 November 2014. Supporting evidence will be provided on the next court appearance date.'"
The judge continued: "… Yesterday the Court adjourned the matter to 2pm today and indicated to the appellant that he must put on his material, that is evidential material, by 2pm today and then it could be decided how the matter will then proceed. The Court indicated that there had been a number of unfortunate adjournments and the history of the matter going back to 2008 made it essential that the matter be dealt with. The Court is of a view that the applicant now has an understanding of court process …. The Court gave the appellant the opportunity to put that material on before 2pm today and the facsimile transmission which is timed today at what appears to be 08.48 to the registry is entirely unsatisfactory. Although the appellant is unrepresented, he was on notice that an attendance was required and it cannot assist the interests of justice that this matter continue on. Accordingly the Court is of the view that the adjournment should not be granted and the application should be dismissed."
The judgment went on to deal with some other matters at the request of the officer for the Director, to which it is not necessary to refer as they do not advance the reasons for refusing the adjournment or dismissing the application under s 22.

Grounds of review

It is convenient to deal first with the allegation, as it appears to be, of a reasonable apprehension of bias on the part of Judge Maiden. Although it was put on the basis that the judge was rude to the applicant and the applicant felt stressed and oppressed, the only material before the Court which could support that ground, other than the subjective feelings of the applicant, is the transcript of the hearing on 13 October 2014.
It is true that there were fractious exchanges between the applicant and the Court prior to the luncheon adjournment. Three observations may be made in that regard. First, there was undoubtedly a misunderstanding as to the scope of the proceeding, which may in part have been caused by the applicant filing, with the application to reinstate the appeal, a further notice of intention to appeal (out of time), to which reference has already been made. It is true, however, that the applicant was correct and the judge may have failed to appreciate the substance of what was being put, perhaps because applications under s 22 of the Appeal and Review Act are not common. On the other hand, the judge may have wanted to know if he should read the transcript of the hearing in the Local Court, which he may have considered relevant to the discretionary evaluation required by s 22(3)(b). On any view, the applicant and the judge were at cross purposes.
Secondly, it is apparent from the transcript of the appearance before Judge Payne that even where there was no element of misunderstanding, the Court was frequently required to use stern language to maintain control over the applicant.
Thirdly, and critically for present purposes, on the afternoon of 13 October and despite the failure or refusal of the applicant to attend to what was being put to him, the exchanges with the Court were to the point and were designed to give the applicant every opportunity to do that which he had failed so far to do, namely put on evidence as to why he had failed to attend before Judge Graham on 3 June 2009 and why it was in the interests of justice that the appeal be heard. The application based on a reasonable apprehension of bias has not been made out.
The second ground of review is based upon an allegation of procedural unfairness. The applicant had been given the clearest and most sympathetic advice by Judge Ellis on 17 March 2009. Reference to that advice had been made on occasions thereafter. It is true that this advice or explanation of the court process was given in relation to the conduct of the proposed appeal. The applicant asserted that he did not understand the need to file medical evidence, or evidence as to the alleged failure of the registrar to give him notice of the hearing on 3 June 2009, or as to the alleged failure to serve a copy of the decision made on that day.
Nevertheless on 13 October 2014 Judge Maiden reiterated the advice and made it clear that evidence was needed with respect to the application under s 22, including s 22(3)(a), of the Appeal and Review Act. The applicant at all stages in the course of the hearing before Judge Maiden on the afternoon of 13 October purported to understand the advice. It also appears that in his view it was not necessary for him to give evidence to explain factual matters. In any event it is not possible to say that he was not given a reasonable opportunity to call or give the evidence essential to his s 22 application. It may further be noted that when the applicant put on evidence in this Court, he again asserted medical conditions without any supporting material from a medical practitioner. The proposed review on the ground of procedural unfairness of the District Court must be rejected.
The third ground, which may or may not constitute jurisdictional error, was a supposed failure by Maiden DCJ to give adequate reasons for rejecting the s 22 application. It may be accepted for the purpose of this matter that such a ground, if made out, could constitute a constructive failure to exercise the function conferred on the District Court. The ground is not, however, made out. The reasons given have been adequately extracted above. They demonstrate with sufficient clarity why the adjournment application was refused and why the application to reinstate the appeal was to be dismissed. The adjournment application was dismissed for the reasons already given, namely that the applicant had had many opportunities to rectify the absence of evidence in support of the application and that the purported reliance upon his poor health had not been supported by any material of a medical kind. The reason why the application to relist was rejected was because of the absence of evidence to support it. There is no basis to review the decision on the ground of inadequate reasons.

Conclusion

None of the available grounds of review with respect to the judgment of Maiden DCJ and the orders made on 14 October 2014 have been made good. So much of the summons as sought to challenge that judgment should be dismissed.
There remains a question as to whether the applicant is entitled to challenge in this Court the decision of Graham ADCJ to dismiss the appeal on 3 June 2009. There are two broad reasons why that option is not available. First, the applicant had the opportunity to seek to have the dismissal order set aside by showing sufficient cause for his failure to appear and that it was in the interests of justice that the appeal be heard. It would be an abuse of process to allow a challenge on those grounds in the District Court and then, when that failed, or was not properly pursued, to seek review in this Court of the original dismissal order. [9]
Secondly, there are no grounds for challenging the dismissal order. Given the failure to appear, without explanation or an application for an adjournment, and at a time of which, as the judge was correctly informed, the applicant was aware, having been in Court when the date for hearing was fixed and having given explicit consent to the date, there was no error of law, let alone jurisdictional error, in making the dismissal order.
In those circumstances the summons must be dismissed. The application for costs not being pressed by the Director, the Court will make no order as to the costs of the summons.
TOBIAS AJA: I agree with the orders proposed by the presiding judge and the reasons that he has given.
ADAMSON J: I agree with the reasons of Basten JA and with the orders his Honour has proposed.

Endnotes

District Court Act 1973 (NSW), s 176; Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [9]-[10].
See generally, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [69] (McHugh, Gummow and Hayne JJ); Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 at [60]-[62].
Reznitsky v Director of Public Prosecutions (NSW) [2014] NSWCA 79.
Tcpt, 13/10/14, p 12(36).
Tcpt, p 13(15).
Tcpt, p 15(25).
Tcpt, p 16(20).
Tcpt, p 18(20).
Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 at [8]. 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: 02 November 2015

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