Transport for NSW v Chapoterera

Factual Background

1. The defendant was charged with one count of "using a mobile telephone whilst driving" contrary to r 300 of the Road Rules. The matter was listed on 1 December 2021 for its first return date in the Local Court at Gosford.
2. On that date, the defendant entered a plea of not guilty and then the Local Court proceedings descended into a rather remarkable exchange between George LCM, the defendant in person and the legal representative for the prosecutor. It is appropriate to reproduce in full the transcript of the proceedings because it demonstrates the farcical nature of the process undertaken and makes it readily understandable why this Court must intervene: see Director of Public Prosecutions (NSW) v Peckham [2022] NSWSC 713 at [7] (Hamill J) (Peckham). The transcript, which was tendered by the plaintiff and not contested by the defendant, is as follows: "HIS HONOUR: Felix Chapoterera, Mr Chapoterera can you hear me? CHAPOTERERA: Hi, Yes I can. HIS HONOUR: The paperwork in front of me suggests that Transport for NSW is charging you with using a mobile phone when you're not permitted to - camera detected. Are you guilty of that offence? CHAPOTERERA: I would say no, I'm not guilty. HIS HONOUR: You're saying you're not guilty? Were you touching the phone in any way? CHAPOTERERA: I was passing it to a friend. l was putting my, um my fingerprint in. HIS HONOUR: I'm sorry ... CHAPOTERERA: I was not using the phone. Yes. HIS HONOUR: Say again - what were you doing? CHAPOTERERA: We were driving to Newcastle on the Easter weekend and we were picking music. So, then my phone um turned off and I was putting my fingerprint in to tum the phone on while passing it to my friend and that's when I got caught. I was not using my phone. HIS HONOUR: So, the photograph would reveal, would it, that you're passing it to your friend? CHAPOTERERA: Ah, It probably would, yes sir. HIS HONOUR: Can I see the photograph then, if Mr Khoury has it there? CHAPOTERERA: Yes please. HIS HONOUR: He is just handing me the photograph. Where is your friend sitting in the car? CHAPOTERERA: Um, he is sitting on my left. HIS HONOUR: Have you got these photographs? You're looking ... CHAPOTERERA: I think so. HIS HONOUR: You're looking at the same photographs as I am? CHAPOTERERA: Yes. HIS HONOUR: Can you point out to me where there is somebody else in the car? CHAPOTERERA: Ah, there's that KHOURY: Your Honour there should be. There does appear to be a passenger. HIS HONOUR: Okay. (chuckling) After, if you tell me that that's a passenger that's fine, I'm having a great deal of difficulty with the photograph. But I, I CHAPOTERERA: [continues inaudible] HIS HONOUR: Just be quiet for a moment please. Just be quiet for a moment. KHOURY: I'd just confirm it's Felix's CAN in front of you. HIS HONOUR: So Mr Khoury you're saying that wouldn't fall within the exception? KHOURY: Well no Your Honour, the exception is that he is passing the phone. The images don't indicate that and he has just admitted that he was unlocking his phone. So that's an, that's an act of using. HIS HONOUR: Well he is in the process of passing it though, isn't he? KHOURY: But he has admitted that he's unlocking it with his thumb. That's use in my submission, Your Honour. HIS HONOUR: It's a nice legal point Mr Chapoterera. Um Chapa-toe-ara? Is it Chaptoeara? CHAPOTERERA: Chapoterera. HIS HONOUR: I'm trying my best. What is the background for the name? CHAPOTERERA: I'm Zimbabwean. HIS HONOUR: I'm sorry? CHAPOTERERA: Zimbabwean. HIS HONOUR: Zimbabwean, oh sorry. I'm going to have a reasonable doubt, Mr Khoury. Not guilty. It may fall within the exception given what he said to me. I know he's not under oath but I can't see the point of bringing the matter back in the diary. KHOURY: Shouldn't it go to a hearing Your Honour? HIS HONOUR: Sorry? KHOURY: Should it go to a hearing? HIS HONOUR: No, I don't believe a hearing is justified. I believe the result would be the same. Mr Chapoterera I'm finding you not guilty but it's a, it's a marginal thing. You have to understand that you cannot touch a phone to open it, even if you are in the act of passing it to the person beside you. Touching a phone in any way is a distraction from your driving responsibilities. So please, don't make this mistake again. Is that understood? CHAPOTERERA: lt is understood. Thank you so much. HIS HONOUR: Very well sir. I'm finding as I say a reasonable doubt in this matter and I'm finding in your favour. Ah, I don't wish to waste the Court's time um by bringing the matter back when I think there is every possibility that a different Magistrate would find the same thing. So that's it sir. The matter is at an end, Thank you. You can hang up. CHAPOTERERA: Thank you so much."
3. In addition to the transcript, the bench sheet was provided to this Court, which contained two markings. The first was to record the name of the legal representative for the prosecutor and that the defendant appeared in person. The second marking was a tick to the box that corresponded to the words "Not guilty (after hearing) Dismissed". It appears to be signed by the Magistrate and dated. The bench sheet did not record that a not guilty plea was entered and the date that that plea was entered.

Denial of Procedural Fairness

1. It is well-settled the requirement of procedural fairness applies to criminal proceedings and applies equally to all parties to such proceedings: Peckham at [20]. A fundamental aspect of procedural fairness is that the parties must be given the opportunity to be heard. Thus, procedural fairness is denied if a party is not given a reasonable opportunity to make relevant submissions, give evidence or call witnesses. There are countless authorities for this orthodoxy including Annetts v McCann (1990) 170 CLR 596; Director of Public Prosecutions (SA) v District Court of South Australia (2005) 92 SASR 94; [2005] SASC 260; Beckner v Minister for Immigration, Local Government and Ethnic Affairs (1991) 30 FCR 49.
2. In Director of Public Prosecutions (NSW) v Gatu [2014] NSWSC 192 (Gatu), Button J summarised the fundamental principle of the right to be heard from the judgment of Heydon J in International Finance Trust Company Ltd v NSW Crime Commission (2009) 240 CLR 319; [2009] HCA 49 at 379-380 [141]-[143]. I respectfully adopt the view of Button J at [26] as follows: "First, in an adversarial system it is essential that each party have an opportunity to give evidence and make submissions. Secondly, hearing both sides of an issue or story "tends to quell controversies and discontents", and helps to prevent the judicial officer from "reaching unsound conclusions". Thirdly, "hearing both sides ... respects human dignity and individuality". Fourthly, his Honour went on to explain that affording each party an opportunity to be heard in proceedings helps ensure that they respect and abide by the final decision made."
3. In this case, the Magistrate received a brief submission from the defendant without evidence that could be tested in cross-examination, which was not tested by cross-examination. After observing the photograph handed up by the plaintiff, the Magistrate observed that there "appear[s] to be a passenger" and that he had "a great deal of difficulty with the photograph".
4. When the plaintiff's representative responded by saying that the defendant had admitted that he was unlocking the phone, the Magistrate described it as a "nice legal point" but then concluded that "I'm going to have a reasonable doubt". This appears to be because "[i]t may fall within the exception given what [the defendant] said to me".
5. When the prosecutor asked whether these issues should go to a hearing, the Magistrate responded: "No, I don't believe a hearing is justified…I can't see the point of bringing the matter back in the diary". Respectfully, his Honour was plainly wrong. By refusing a hearing, the Magistrate denied the plaintiff the ability to properly and fully address whether the conduct of the defendant fell within the exception to the definition of "use" in r 300(4) of the Road Rules.
6. The transcript makes clear that the Magistrate proceeded to dismiss the charge based on a predicted or assumed verdict of not guilty in the event of a future hearing conducted properly. This was in circumstances where the plaintiff sought a contested hearing and was denied. This highlights, in my view, the egregious nature of the Magistrate's breach of procedural fairness. It is clear that his Honour knew and understood that the matter should have proceeded to a contested hearing and had been prompted by the plaintiff to have a hearing. Yet, his Honour refused to do so because a hearing was apparently not "justified" and "I don't wish to waste the Court's time…by bringing the matter back".
7. The obligation to accord procedural fairness does, of course, vary according to the circumstances and cannot be reduced to a package of rules that must always be observed: TCL Air Conditioner (Zhongshan) Co Ltd v Castel Electronics Pty Ltd (2014) 232 FCR 361; [2014] FCAFC 83 at 388 [85] (Allsop CJ, Middleton and Foster JJ). I am mindful that Local Court Magistrates face a "sometimes absurd workload": Peckham at [23]. Due allowance should be given for the fact that this proceeding occurred in a busy list at a very busy court location with limited resources: see generally Poliakov v Magistrate Andrew George (2009) 212 A Crim R 461; [2009] NSWSC 1133 at 476 [31] (Buddin J); Miles v Slack [2022] NSWSC 926 at [121] (Walton J). Nevertheless, the obligation of the Local Court in criminal proceedings to accord procedural fairness to all parties does not disappear. It was incumbent on the Magistrate to hear the evidence and submissions of the prosecutor and defendant before determining whether the defendant was guilty or not guilty of the charge.
8. There can be no doubt that the plaintiff was contumeliously denied procedural fairness. It was an error of law for the Magistrate to dismiss the charge against the defendant without giving the plaintiff an opportunity to be heard or to cross-examine the evidence of the defendant. In my view, the Magistrate's description that a hearing was not "justified" and would "waste the Court's time" was indicative of his Honour's potentially dismissive attitude towards the matter. The ground of appeal is established.

Other Grounds of Appeal

1. Since the procedural fairness ground is established, it is unnecessary to determine all the other grounds of appeal. I will make brief remarks on the other grounds where they were canvassed in the written submissions of the parties. It is desirable to make brief remarks on the other grounds to provide guidance for any future Local Court proceedings. The latter is especially poignant because, at the conclusion of the hearing, counsel for the defendant submitted that a practice such as what occurred in this matter has been "creeping" into the Local Court.

Failure to Comply with Statutory Provisions

1. Parts 2 and 3 of Chapter 4 of the Criminal Procedure Act 1986 (NSW) (CP Act) provides the legislative framework for summary proceedings in the Local Court. These provisions make plain the following: 1. If the accused pleads not guilty, the Court "must proceed to hear and determine the matter": CP Act s 194(1). The date, time and place for hearing and determining the matter must be set on the first return date for a court attendance notice or at a later time: CP Act s 190(1); 2. At the hearing, the Court "must hear the prosecutor, any witnesses and other evidence of the prosecutor and must hear the accused person and any witnesses and other evidence of the accused person": CP Act s 194(2). Relevantly, both the prosecutor and accused may examine and cross-examine the witnesses giving evidence for the parties: CP Act s 195. The procedures and practice for the examination and cross-examination of witnesses, and the right to address the court on the case in reply or otherwise, are, as far as practicable, to be conducted in accordance with Supreme Court procedure for the trial of an indictable offence: CP Act s 38. The evidence of each witness must be recorded: CP Act s 39(1); and 3. Lastly, "after hearing the accused person, prosecutor, witnesses and evidence", the Court must determine the summary proceedings by convicting the accused person or making an order as to the accused person, or by dismissing the matter: CP Act s 202.
2. In my view, it can also be made out that the Magistrate had failed to comply with relevant statutory obligations contained in the CP Act. The Magistrate failed to conduct a hearing; set a place, time and date for the hearing; give the prosecutor and accused an opportunity to examine or cross-examine any witnesses; and permit the prosecutor and accused to be heard on submissions before determining whether the defendant was guilty. The breaches of these statutory provisions involve errors of law: see Gatu at [34]-[35] (Button J); Carly Anne Coles v Director of Public Prosecutions (NSW) [2022] NSWSC 960 at [26] (Yehia J). This ground of appeal must succeed.
3. If there is a practice in the Local Court of determining matters without a hearing after an accused person enters a plea of not guilty (and I do not draw such a conclusion), I am of the view that it would be contrary to law. While the speedy determination of criminal matters is a worthy aim, that in no way justifies adopting wrongful procedures: Gatu at [37] (Button J). There is virtue in the quick disposition of proceedings in the interests of justice but the CP Act makes very clear that a contested hearing is to be conducted before summary proceedings are determined where there is a not guilty plea. In a hearing, the prosecutor and accused person is to be given an opportunity to examine and cross-examine any witnesses they wish to call and make submissions to the Court. Only then, after affording the parties procedural fairness, should the Court determine whether the accused is guilty or not guilty.

Failure to Give Adequate Reasons

1. The plaintiff submitted that the Magistrate failed to give adequate reasons. The requirement to give reasons has been described as an "incident of the judicial process": Housing Commission (NSW) v Tatmar Pastoral Co (1983) 3 NSWLR 378 at 386 (Mahoney JA); Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 667 (Gibbs CJ).
2. It is a breach of fundamental principle for a Magistrate to not provide reasons explaining why the charge had been dismissed: Gatu at [29] (Button J) and the authorities cited therein. Without adequate reasons, justice has not been seen to be done: Stoker v Adecco Gemvale Constructions Pty Ltd [2004] NSWCA 449 at [41] (Santow JA with whom Mason P and Sheller JA agreed). In ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti (2008) 21 VR 559; [2008] VSCA 274, Hargrave AJA (with whom Ashley and Dodds-Streeton JJA agreed) said at 566 [20]: "[I]t is established that adequate reasons will provide an intelligible explanation of the process or path of reasoning which led the judge to the conclusion reached, and that a judge is required to consider and give adequate reasons in determining each of the substantial issues raised for determination."
3. In my view, this ground can also be established. In this case, it is difficult to say that the Magistrate gave adequate reasons. The Magistrate does not refer to the factual background, the elements of the offence, the evidence before him or give an intelligible explanation of the steps by which his Honour reached the conclusion that there was a reasonable doubt.
4. There may be a skerrick of reasoning in the Magistrate's statement that "[i]t may fall within the exception given what [the defendant] said to me". But even on this view, the statement "[does] not enlighten the reader as to the reasoning process" which led to his Honour's conclusion that he is going to have a reasonable doubt: Sasterawan v Morris [2008] NSWCA 70 at [48] (Tobias JA with whom Beazley JA (as Her Excellency then was) and McClellan CJ at CL agreed).
5. A reasonable observer would only be able guess which exception the Magistrate was actually referring to. The Magistrate does not address any of the brief remarks made by the plaintiff except to say that it is a "nice legal point". Here, the reasons were inadequate because a necessary step to the final conclusion and the resolution of competing arguments were not explained: DL v The Queen (2018) 266 CLR 1; [2018] HCA 26 at 12-13 [32]-[33] (Kiefel CJ, Keane and Edelman JJ); AK v Western Australia (2008) 232 CLR 438; [2008] HCA 8 at 468 [85] (Heydon J).

Erroneous Interpretation of Rule 300

1. The plaintiff submitted that the Local Court erred in its interpretation of r 300 of the Road Rules. The term "use" is defined in r 300(4) of the Road Rules as follows: "use, in relation to a mobile phone, includes any of the following actions by a driver - (a) holding the body of the phone in her or his hand (whether or not engaged in a phone call), except while in the process of giving the body of the phone to a passenger in the vehicle, (b) entering or placing, other than by the use of voice, anything into the phone, or sending or looking at anything that is in the phone, (c) turning the phone on or off, (d) operating any other function of the phone."
2. The plaintiff submitted that: "The [Local] Court did not consider whether the "exception" can only be a reference to the definition of the word "use" in Road Rule 300(1)(a) [sic] which excludes "the process of giving the body of the phone to a passenger in the vehicle". The [Local] Court did not consider whether the "exception" in the definition applied in light of the Defendant's statement that he: "…. was putting [his] fingerprint in to turn the phone on while passing it to my friend and that's when I got caught. I was not using my phone." If the matter had proceeded as a hearing, with evidence called, and the Prosecutor provided an opportunity to make submissions, the Court would have been aware of the precise terms of the legislative provision."
3. In essence, the plaintiff submitted that the exception of "giving the body of the phone to a passenger" applies when the only "use" is the "holding [of] the body of the phone in [the driver's] hand" in paragraph (a). The plaintiff submitted that the act of putting one's fingerprint to turn on the phone may fall within paragraphs (c) or (d) of the definition of "use".
4. In my view, it is not appropriate in this case to conclusively determine the proper construction of the definition of "use" in the Road Rules for three reasons. First, there is some doubt as to whether this ground "involves a question of law alone" as required by s 56(1) of the CAR Act. Generally, the question of what an ordinary English word or phrase in a statute means is one of fact, not law, although the meaning of a technical legal term may be question of law: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138 (Jordan CJ with whom Halse Rogers J agreed); Federal Commissioner of Taxation v Broken Hill South Ltd (1941) 65 CLR 150 at 155 (Starke J), 160 (Williams J); Kostas v HIA Insurance Services Pty Ltd trading as Home Owners Warranty [2007] NSWSC 315 at [159] (Rothman J). Secondly, the defendant did not make submissions in this Court on this issue. Thirdly, it is also not necessary nor proper, given that evidence has not properly been given to establish the facts in the Local Court, to determine conclusively whether the defendant's conduct breached r 300 of the Road Rules.
5. However, I do observe that the plaintiff has at least an arguable case for their construction of this provision. Given that the plaintiff's construction of the Road Rules may be open to be accepted, the Magistrate's assertion that "I believe the result would be the same" and "I think there is every possibility that a different Magistrate would find the same thing" only serves to highlight the danger of determining judicial proceedings without proper argument, submissions and consideration.

Disposition

1. In light of the denial of procedural fairness, the orders of the Local Court must be set aside or quashed.
2. In my view, this matter should be remitted to the Local Court. In circumstances where there had been a denial of procedural fairness, remittal is usually the preferred remedy: O'Neil-Shaw v The Queen [2010] NSWCCA 42 at [32] (Basten JA), [56] (Johnson J); R v Palu (2002) 134 A Crim R 174; [2002] NSWCCA 381 at [43] (Howie J). As the facts have not been properly established, the Local Court is the more appropriate forum for resolving any factual disputes: Director of Public Prosecutions (NSW) v Belani [2005] NSWSC 1013 at [68] (Johnson J). Remittal would also preserve the ordinary appeal rights of the parties, including a right to appeal to the District Court: Peckham at [32].
3. In Lake Macquarie City Council v Morris (2005) 63 NSWLR 263; [2005] NSWSC 387, Johnson J said at [61]: "Having found error of law, I consider that it is appropriate to remit the matter to the Local Court to enable that Court, as the trial Court, to hear and determine the matter according to law. Such an approach is consistent with the proper relationship between the Supreme Court and the Local Court in statutory appeals with respect to criminal matters: Mitchell v Nestle Australia Limited (1988) 36 A Crim R 199 at 125; Downes v Director of Public Prosecutions [2000] NSWSC 1054 at paragraphs 26-32."
4. It was raised in the written submissions of the defendant that this matter may be dealt with by an order in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW) that removes the record of the Local Court to this Court, quashes the orders of the Local Court and remits the proceedings to that Court to be heard and determined according to law.
5. At the hearing before me, it was resolved by both parties that this matter should be disposed pursuant to the CAR Act. I accept that the parties' joint position at the hearing is the proper course for two reasons.
6. First, disposition under the CAR Act is consistent with the recent observation of Dhanji J in Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147 at [73] that "relief in the nature of prerogative relief will generally not be granted if there is another equally effective and convenient remedy": see also Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501. In the circumstances of this case, a remedy under the CAR Act would substantially be as effective as prerogative relief.
7. Where an appeal, like this one, is made by the prosecutor under s 56(1)(c) of the CAR Act, this Court has the power to set aside the Local Court's order and make "such order as it thinks just": CAR Act s 59(2)(a). In Wise v Schneider [2015] NSWSC 725 (Wise), Beech-Jones J (as his Honour then was) stated at [58] that: "Subsection 59(2)(a) of the [CAR Act] enables the Court, in setting aside a challenged order, to 'make such order as it thinks just'. There is no reason to doubt that this includes an order remitting the proceedings to the Local Court for redetermination according to law."
8. In Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308, Johnson J stated at [162]-[163]: "[162] A prosecutor may appeal to this Court against an order dismissing a summary criminal matter: s.56(1)(c) [of the CAR Act]. The Court may determine an appeal against an order referred to in s.56(1)(c) by setting aside the order and making such other order as it thinks just: s.59(2)(a) [of the CAR Act]. The appropriate course is to remit the matter to the Local Court to enable that Court to hear and determine the matter according to law: Director of Public Prosecutions v Belani (2005) 64 NSWLR 319 at 333 [68]. [163] I reject Mr Segal's submission that it is not open to this Court, on a statutory appeal under the [CAR Act], to quash an order of dismissal. The process of setting aside an order of acquittal, and remitting a matter to the Local Court to be heard and determined according to law was well recognised on appeals by way of stated case from the Local Court to this Court under the repealed Justices Act 1902: Hampson v Whitehouse (1971) 2 NSWLR 194 at 199-200; Corporate Affairs Commission (NSW) v Singleton (1988) 13 ACLR 385 at 393; Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 at 684E-F. That power is expressly available under s.59 [of the CAR Act], as a well-recognised exception to the rule against double jeopardy"
9. Further, the power in s 59(2)(a) of the CAR Act includes making an order that the proceedings be heard by a different Magistrate to the one who heard the original proceedings: see Wise at [59] (Beech-Jones J, as his Honour then was); Director of Public Prosecutions (NSW) v Lopez-Aguilar [2013] NSWSC 1019 at [27] (Harrison J). Given the views expressed by George LCM, I consider it appropriate in the circumstances that the matter be remitted to a different Magistrate. This course was not opposed by the parties.
10. Secondly, the Local Court was not a defendant in these proceedings. If prerogative relief is to be made against the Local Court, it is undoubtedly appropriate and perhaps even necessary that the Local Court be joined as a defendant: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [54]ff (Basten JA); Uniform Civil Procedure Rules 2005 (NSW) r 59.3(4).
11. There should be no criticism of the parties for not joining the Local Court as a defendant in the proceedings in this Court. This is because there is no requirement to join the Local Court as a defendant in an appeal under the CAR Act, which is what the plaintiff brought: Supreme Court Rules 1970 (NSW) pt 51B rr 10(2)-(3). However, the consequence of not having the Local Court as a defendant means that disposition under the CAR Act would be the more appropriate course.
12. I add, for completeness, that none of my reasons above should be understood as departing from the approach of Hamill J in Peckham at [28]ff. In that case, his Honour was considering an appeal from a prosecutor against sentence under s 56(1)(a) of the CAR Act. As his Honour noted at [28], the Supreme Court may determine an appeal against sentence by setting aside a sentence and imposing a different (more or less severe) sentence: CAR Act s 59(1). Unlike this case, the Court in Peckham did not have a statutory power to set aside the orders of the Local Court and remit the matter to that Court for redetermination. Remittal was only available by an order in the nature of certiorari in Peckham and, respectfully, Hamill J advances very compelling reasons for taking that course. This case is distinguishable because both the available remedies under the prerogative writs and statutory appeal permit remittal.

Conclusion

1. The process in the Local Court leading to the dismissal of the charge was fundamentally flawed for clear and obvious reasons. It has been established that the Magistrate denied procedural fairness to the plaintiff. And it can be made out that the Magistrate failed to comply with statutory provisions and the obligation to provide adequate reasons. The orders of the Local Court must be set aside and the matter remitted to that Court. I agree with the joint position of the parties that no order be made for costs.

Amendments 26 July 2022 - Delete the word "the" at [40] 26 July 2022 - Amendment to [23]. 25 October 2022 - Correction of typographical errors in [6], [15], [16], [35] and [40]. 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: 25 October 2022