HER HONOUR: Leonel Romero was convicted in the Local Court for an offence of common assault contrary to s 61 of the Crimes Act 1900 (NSW). At the same time the Magistrate made a final apprehended violence order. Mr Romero appeals against the conviction. The appeal is brought pursuant to s 55 of the Crimes (Appeal and Review) Act 2001 (NSW) and alternatively, as the position was evidently understood by the DPP, invokes the Court's supervisory jurisdiction.
[2]
Error conceded by the DPP
For reasons addressed in detail in the careful written submissions of the Crown Advocate, the DPP concedes that the Magistrate misconstrued her jurisdiction and accordingly made an error of law. The only dispute before me is as to the orders that should be made in the face of that concession.
Having regard to the importance of the issue raised by the proceedings it is appropriate to record, if only briefly, the basis for the appeal and the basis upon which the DPP conceded that the decision entailed error. The plaintiff was charged with the offence following a dispute with his wife, the relationship having ended a short time before the incident giving rise to the charge. As commonly occurs, police charged the applicant with the criminal offence and at the same time also made an application for an apprehended domestic violence order under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
Section 289H of the Criminal Procedure Act 1986 (NSW) provides:
289H Use of evidence in concurrent or related domestic violence proceedings
(1) This section applies if an application for an order under the Crimes (Domestic and Personal Violence) Act 2007 is made concurrently with proceedings for a domestic violence offence or arises from the circumstances of the alleged domestic violence offence.
(2) If evidence is given wholly or partly in the form of a recorded statement in the proceedings for the domestic violence offence, that evidence may also be given in that form in the proceedings relating to the application for the order. Any such evidence is to be given in accordance with any rules made under the Crimes (Domestic and Personal Violence) Act 2007.
Prior to the introduction of that section, there was no statutory provision conferring authority on the Local Court to hear criminal proceedings and proceedings under the Crimes (Domestic and Personal Violence) Act concurrently. The Magistrate appears to have apprehended, whether on the strength of s 289H or otherwise, that the introduction of that or some other legislation not identified in her Honour's decision authorised the hearing of the two proceedings concurrently. That is revealed in an exchange during argument arising out of the prosecutor's tender of the audio visual record of the complainant's complaint.
Most of that recording related to the alleged assault. Police asked the complainant questions as to what had occurred and invited her to walk them through the apartment to demonstrate what she alleged had taken place. That exchange concluded as follows:
Q41: Right, so with what's happened tonight, is there anything further you want to tell me that's happened?
A41: Um, this incident's happened two other times, so this is the third time it's happened. The second time occurred on the 18th of July where I was actually able to um, he wasn't successful in getting me into the shower, but he, I knelt on the ground and I, I scratched all my knees, um and my hand, sorry my right knee and my left hand was all scratched up um, from him dragging me from the entrance of the bedroom to the ensuite and then that was the day he smashed up my, um, bedside table lamps and kicked in the built-in that was in there. As you can see the lamps have been replaced, but. [sic] And the time before that, he success, [sic] the exact same as this evening, he got me into the shower.
The police officer then turned to the issue of the application for a domestic violence order:
Q43: So, I'm going to ask you some questions in relation to an application for an Apprehended Domestic Violence Order. So, you've just told us about this occurring previously. Have there been other instances where he's assaulted you before?
A43: Um, those were the three main, but, um, pushed and shoved and thrown bottles in my direction, but that's been over the last couple of months.
At the hearing, Mr Lowe, who appeared for the accused in the Court below and on the present application, objected to the tender of the material towards the end of the tape, submitting that it was not germane to the hearing. The Magistrate responded, "No, that's not correct. It's germane to the AVO and I am entitled to hear it".
Mr Lowe attempted to address the Magistrate again but her Honour interrupted, saying: "Well no, in domestic violence matters I am entitled to know as per the legislation whether there were other incidents". The exchange that followed makes plain that her Honour was proceeding on the basis that she was hearing the civil application for an apprehended violence order at the same time as the criminal action.
After a short period Mr Lowe attempted, without cavilling with the ruling, again to emphasise the basis of his application. In my respectful opinion, the submission he made at that point was incorrect. He submitted that her Honour had failed to comply with s 289H of the legislation because, as I understand the submission, the evidence of the audio visual recording could only be admissible under that section if the prosecutor made an application in the hearing of the criminal matter for that evidence to be admitted. Her Honour indicated that she proposed to "hear it all together", reserving assessment as to what weight could be placed on that part of the material which related only to the civil application.
The plaintiff's submissions in these proceedings continued what I would apprehend to be a misconception as to the proper application of s 289H, arguing that the Magistrate had no power to hear a criminal charge and an application for an apprehended domestic violence order together over the objection of the accused. Specifically, Mr Lowe submitted that the section does not confer power to hear both proceedings together "where there is no consent by the defendant in the criminal matter".
In response to those submissions, as already indicated, the DPP conceded error but analysed the issue somewhat differently from the manner in which it had been analysed in the submissions on behalf of the plaintiff. The DPP contends that the Local Court, being a Court of limited jurisdiction, has no power to hear a criminal charge and a civil application for an apprehended domestic violence order at the same time (whether by consent or otherwise). It was acknowledged in the submissions that the parties to a civil proceeding could take a pragmatic approach to the issues in dispute and the receipt of evidence in the civil proceedings, for example by having such proceedings determined immediately upon the conclusion of a related criminal proceeding. However the Crown Advocate, Mr Kell SC, made plain that, in the DPP's submission, the Local Court has no authority or jurisdiction, even with the consent of an accused person, to hear the two kinds of proceedings concurrently.
It is not necessary for present purposes to determine whether that is correct. It is arguable that, with the consent of an accused person, the two proceedings might be able to be heard concurrently, for example where there was a complete overlap of the evidence to be relied upon, notwithstanding the important matters adverted to in Mr Kell's submissions as to the differences between the two kinds of proceedings concerning, for example, rules of standing, procedure, onus and standard of proof and so on.
The significant issue in the present matter is that, even if the Local Court could, in a proper case, embark upon hearing the two different kinds of proceedings (civil and criminal) concurrently in that manner, it is something as to which the Court would have to hear from the parties and afford an opportunity to an accused person to make appropriate submissions. That did not occur in the present case.
The better analysis I think is to accept the position contended for by Mr Kell, that the Court has no authority to proceed on that basis, while observing that it is not necessary in the present matter to determine whether that is so. That is because the DPP rightly concedes that, in the present case, the matters proceeded in a manner that plainly involved a misconception of the Court's jurisdiction, the Magistrate evidently construing the relevant legislation to provide ordinarily for both proceedings to be heard together, which is plainly not the case.
[3]
Costs
The only issue outstanding by the time the written submissions had closed was whether in all the circumstances the DPP should pay Mr Romero's costs of these proceedings. The parties provided a number of authorities as to appropriate orders as to costs. The Court's jurisdiction is constrained where a matter is determined under s 55. Section 70 of the Crimes (Appeal and Review) Act provides:
70 Limit on costs awarded against public prosecutor
(1) Costs are not to be awarded in favour of an appellant whose conviction is set aside unless the appeal court is satisfied:
(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, or
(b) that the proceedings in the Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner, or
(c) that the prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter:
(i) that the prosecutor was or ought reasonably to have been aware of, and
(ii) that suggested that the appellant might not be guilty or that, for any other reason, the proceedings should not have been brought, or
(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecutor, it is just and reasonable to award costs in favour of the appellant.
(2) This section does not apply to the awarding of costs against a respondent acting in a private capacity.
(3) For the purposes of subsection (2), an officer of an approved charitable organisation (within the meaning of the Prevention of Cruelty to Animals Act 1979) is taken not to be acting in a private capacity if the officer acts as the respondent in any appeal arising from proceedings under that Act or section 9 (1) of the Veterinary Practice Act 2003.
Mr Lowe acknowledged that the only provision of that section which might apply in the present case is (d). In my view there was nothing in the conduct of the prosecutor in the present case which would amount to exceptional circumstances within the meaning of the section.
However, accepting, on the strength of Mr Kell's submissions, that the decision did entail a misconception by the Magistrate of her Honour's jurisdiction, the Court has power to determine the matter under s 69 of the Supreme Court Act 1970 (NSW), in which event the Court would have authority to order costs.
Ordinarily, costs follow the event. The decisions relied upon by the parties included two decisions of RS Hulme J sitting in this Division of the Court adopting that approach in relevantly similar circumstances, that is, where following a successful appeal by an accused person his Honour, without discussion, ordered the DPP to pay the plaintiff's costs: see Dawson v Director of Public Prosecutions [1999] NSWSC 1147 at [31]; Hashin v The Office of the Director of Public Prosecutions [2016] NSWSC 93 at [14].
Conversely, in Hansell v Director of Public Prosecutions (NSW) [2016] NSWCA 311, the Court of Appeal, rather than simply making a costs order on the basis that costs follow the event, proceeded to analyse the course of the appeal in a manner similar to that in which Mr Kell analysed it for the purpose of opposing a costs order in the present case.
Relevantly, drawing from the decision in Hansell, the following features of the present case may be observed. First, as already noted, the manner in which the objection was taken in the Local Court and indeed argued in the plaintiff's primary submissions in the appeal reflected what I would regard to be a misconception as to the proper application of section 289H. Secondly, as in Hansell, the Crown here promptly conceded jurisdictional error and indeed went some way to identifying the nature of the error in terms which probably more accurately reflect the error in the Magistrate's decision than is reflected in the grounds articulated in the plaintiff's summons. Further, in my opinion, nothing in the conduct of the prosecutor in the Court below is such as to attract criticism, although it would always be appropriate if a point occurred to a prosecutor contrary to a ruling given by a Magistrate for that matter to be raised.
Conversely, the plaintiff having been denied a hearing according to law, it does seem appropriate that, having succeeded in arguing that matter in these proceedings, he should have a portion of his costs, a course contemplated in the decision in Hansell at [12]. The fair course in my view is for the DPP to pay half of the plaintiff's costs of these proceedings.
[4]
Orders
Separately, as to the form of the orders sought, I note that both parties consented to an order remitting the matter "to a differently constituted Local Court". That was the order made in Hansell but in circumstances where the error that had been identified consisted in the fact that the Magistrate had seen material which it was considered undesirable for the Court determining the matter to have seen.
In my view, absent some particular reason why proceedings should not be remitted to the same judicial officer such as the kind of consideration in Hansell or some apprehension of bias or prejudgment, it is not for this Court to direct the Local Court as to the conduct of its business. I would not be inclined to make any order preventing the matter from being remitted to the same Magistrate.
For those reasons I make the following orders:
1. That Leonel Romero's conviction for common assault in the Local Court on 17 November 2016 at Burwood Local Court by Magistrate Goodwin (no 2016/237133) be set aside and that the matter be remitted to the Local Court to be heard and determined according to law.
2. That the final Apprehended Domestic Violence Order made by Magistrate Goodwin on 17 November 2016 at Burwood Local Court (no 2016/237119) be set aside and that the matter be remitted to the Local Court to be heard and determined according to law.
3. That the DPP pay half the plaintiff's costs of these proceedings.
[5]
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: 06 September 2017