Truong v Director of Public Prosecutions

Court of Appeal (NSW)|2023-03-17|Before: Ward P, Brereton JA

Solicitors: Office of the Director of Public Prosecutions (First Respondent) Crown Solicitor for NSW (Second Respondent) File Number(s): 2022/00362538 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 26 April 2019 Before: Shead DCJ File Number(s): 2017/00341531

HEADNOTE [This headnote is not to be read as part of the judgment] On 15 October 2018, the applicant, Mr Bach Cong Truong, was found guilty and convicted by a magistrate of the Local Court of the offence of assault occasioning actual bodily harm against the complainant, the applicant's then-wife, contrary to s 59(1) of the Crimes Act 1900 (NSW). The incident which led to the applicant's conviction was the scalding of the complainant's neck, shoulders and back in the kitchen of the applicant and the complainant's home. It was alleged (and accepted by the Local Court magistrate) that, after an argument between the couple, the applicant picked up a pot of hot soup and poured it over the complainant's back, causing significant injuries. On 26 November 2018, the applicant was sentenced to a 20 month custodial sentence with a non-parole period of 15 months. The applicant lodged a conviction appeal in the District Court. The District Court judge dismissed the appeal and confirmed the orders of the Local Court. The applicant filed a summons invoking the supervisory jurisdiction of the Supreme Court and seeking judicial review of that decision on 28 November 2022, over four and a half years from the date of the District Court decision. Ward P (with whom Brereton JA and Griffiths AJA agreed) held that this was not an appropriate case in which to grant an extension of time for the filing of the summons seeking judicial review. The matters about which the applicant complained did not reveal any jurisdictional error. Rather, the applicant's fundamental complaint was as to his conviction in the Local Court. Were leave to be granted the summons would be dismissed in any event: [59] per Ward P, [104] per Brereton JA, [105] per Griffiths AJA.

JUDGMENT

WARD P: By summons filed on 28 November 2022, invoking the supervisory jurisdiction of the Court pursuant to s 69 of the Supreme Court Act 1970 (NSW) (Supreme Court Act), the applicant (Bach Cong Truong) seeks judicial review of a decision of the District Court of New South Wales dismissing his conviction appeal in respect of his conviction by a magistrate in the Local Court at Campbelltown on 15 October 2018 of the offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW) (Crimes Act). The offence arose from a domestic violence incident on 10 November 2017 at the applicant's home. The complainant is the applicant's now ex-wife.
On 26 November 2018, the applicant was sentenced to a 20 month custodial sentence commencing 26 February 2018 and concluding on 25 October 2019 with a non-parole period of 15 months (concluding on 25 May 2019).
On 30 November 2018, the applicant lodged a conviction appeal pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (Crimes (Appeal and Review) Act). That appeal was heard in the District Court on 3 and 26 April 2019, following which the appeal was dismissed pursuant to s 20(1)(b) of the Crimes (Appeal and Review) Act. The District Court judge, Shead DCJ, confirmed the orders of the Local Court.
The applicant, as well as filing the summons seeking judicial review in this Court, has sent an email to the Registry attaching a notice of motion dated 5 January 2023, naming numerous Courts, Tribunals, the Minister of Home Affairs & Immigration Citizenship, Australian Border Force, and two immigration detention centres, in which the relief sought is as follows: 1. [Office of Director of Prosecution & Home Affairs & Immigration citizenship Department and related department grant Criminal Justice Visa and or grant Bridging visa to release Applicant without delay] 2. Detention center must stop all kind of coercive control including torture and harassment 3. Order that the Applicant is innocent - not guilty of all charges and clear the applicant criminal history 4. Compensation for the Applicant
That notice of motion does not appear to have been accepted for filing but in any event it was not before the Court on the judicial review application. It clearly claims relief that is not within the jurisdiction of this Court (see in particular the relief sought at 1).
The applicant had the assistance of a "McKenzie friend" (albeit via AVL remotely) on the hearing of the present application.
Finally by way of introduction, it should be noted that in circumstances where the applicant is not represented, there was confusion as to whether he had read or understood the respondent's written submissions, and the applicant sought an opportunity to respond to the respondent's brief oral submissions, orders were made permitting the applicant to file brief written submissions after judgment was reserved in response to the respondent's written and oral submissions.
Following judgment being reserved, the applicant has complained in correspondence about various matters, including his assertion that the interpreter was not permitted to interpret the respondent's oral submissions. In fact, the applicant had made clear when the hearing resumed after the luncheon adjournment that he did not require the services of an interpreter (a second interpreter had been arranged for his assistance that day) and wished to speak "directly" to the judge(s). When the respondent's oral submissions (three brief points and an answer to two questions from the bench) commenced, the applicant continuously interrupted and talked over the respondent's counsel and it was only then that the applicant suggested that he wished to have a translation of the oral submissions. In circumstances where the applicant was to be given the opportunity of considering and responding to the respondent's written submissions, and transcript of the oral submissions, the Court proceeded (as appears from the transcript) to allow the respondent the opportunity to make those submissions uninterrupted. It may be noted that the applicant's disruptive conduct in this regard mirrors that which appears from a review of the District Court transcript.
The applicant has since filed written submissions, which we have considered, and forwarded copies of a number of references and other material that he says were omitted from the Court Book. The relevance of this material (which largely goes to the applicant's character and his level of comprehension of English, seemingly in support of an application that he not be deported, but also records his assertions of innocence) to the judicial review application before this Court is not apparent but it has also been considered.
The applicant has complained that he only received the transcript of the hearing in this Court on 22 March 2023 "and without attached Video Audio and errones [sic]" but confirmed that what he said in the transcript basically met all of the respondent's submissions.
For the reasons set out below, the applicant's summons should be dismissed with costs.

Background

The incident which led to the applicant's conviction was the scalding of the complainant's neck, shoulders and back in the kitchen of the applicant and complainant's home. The Crown case was that, after an argument between the couple as to the medical care for their daughter, the applicant picked up a pot of hot soup from the stove and poured it over the complainant's back. The couple's daughter was in the house (but not the kitchen) at the time. The applicant denied that he had done so. The complainant suffered significant injuries.

Local Court hearing

The hearing in the Local Court was held over two days on 31 August 2018 and 15 October 2018. The applicant was not represented on the first day of the hearing (having declined representation by Legal Aid) (see Local Court Transcript 31/8/18 at T 3ff). An application for the applicant to be assisted by a "McKenzie friend" was refused by the magistrate on the basis that the applicant had put himself in the position where he was unrepresented by voluntarily declining Legal Aid (see Local Court Transcript 31/8/18 at T 4.27ff). On the second day of the hearing, the applicant received some assistance from a lawyer at the request of Legal Aid (see Local Court Transcript 15/10/18 at T 2ff) but the lawyer was not formally engaged to represent the applicant. There were two Vietnamese interpreters who gave assistance during the hearing (one for the applicant and another for the complainant).
At the hearing, oral evidence was given by each of the complainant (via audio-visual link), the officer in charge, and the couple's 16 year old daughter. Videos of electronically recorded police interviews of the complainant, the daughter, and the applicant were played in the court and documentary evidence was tendered (and admitted without objection) including photographs of the complainant's injuries, photographs of the kitchen and living area, a diagram drawn by the daughter of the rooms in the house and the locations of the persons present, and a diagram of the residence drawn by the applicant. The applicant, as was his right, did not give evidence.
After closing submissions on 15 October 2018, the magistrate gave ex tempore reasons, finding the offence of assault occasioning actual bodily harm proven beyond reasonable doubt (Local Court Transcript 15/10/18 T 17ff). In the course of those reasons, the magistrate noted that the matters to be determined were in relatively brief compass, the matter in dispute being whether or not the complainant was accidentally burnt or was burnt as a result of the applicant pouring the boiling soup over the complainant. The magistrate said that the only other factual dispute was whether one or both of the applicant or the daughter had taken the complainant to the shower (but considered that this did not matter because the magistrate accepted that both were concerned about the complainant after the incident).
The magistrate noted that the Crown's primary witness was the complainant and summarised her evidence as to the incident before referring to the applicant's electronically recorded police interview (ERISP), noting that the applicant's evidence in the ERISP was that he was not in the kitchen but was in the lounge room on the couch at the time.
The complainant's evidence was that the applicant was in the kitchen with her but that she did not see him pick up the pot. The magistrate considered that it would be almost impossible for a person to pour the contents over a pot between 4-10 litres of liquid over the person's own neck, back and shoulder only, noting that this was primarily the applicant's explanation for what had happened. Relevantly, the magistrate noted that, when interviewed by the police some hours later the next day, the applicant gave an explanation as to the complainant's injuries consistent with an accident where someone is pouring a hot substance into a plastic bowl but either drops the pot or spills the pot onto her chest; and that the applicant in his ERISP had physically indicated the chest and stomach area as the point of injury.
The magistrate said that the applicant appeared (in the ERISP) to be somewhat surprised when presented with the photographic evidence of the injuries (Exhibit 1) and that the applicant was unable to give an explanation for how the applicant could be burnt on her back, neck and shoulders (and had suggested that perhaps the complainant was burnt by the boiling soup while lying on the floor) but that this was unlikely because the applicant had bare feet when he walked into the kitchen (when according to him the soup was on the floor) and the applicant did not suffer any burns to his feet or any injuries anywhere on him.
The magistrate referred to the complainant's evidence that she did not bump the stove or the pot and again said that it was unlikely that the pot would fall from the stove and only pour on one part of her back and shoulders. The magistrate considered that the specific injuries that the complainant suffered reflected a controlled exit of the hot liquid from the pot, i.e., that it was poured from the pot; and said that it was not a case where the pot had been bumped and dislodged from the stove. It was noted that the complainant had made a complaint to the applicant early on that he was responsible for her injuries (referring to the applicant's ERISP in this regard). The magistrate accepted the complainant's evidence that she did not accidentally bump the stove; and the daughter's evidence that she was not involved and did not see how her mother was burnt.
The magistrate concluded that there was only one logical possibility as to how the complainant was injured, that being that the applicant poured the pot of boiling soup on the complainant. The magistrate considered that there was no other reasonable scenario, possibility or likely way in which the complainant was injured. The magistrate was satisfied that the couple had an argument and that shortly after the complainant suffered the injuries.
Accordingly, the magistrate was satisfied that the applicant intentionally poured the pot of soup on the complainant, which was an assault, and that the injuries the complainant received amounted to actual bodily harm (not being trifling or small). Hence, the applicant was convicted and the matter was adjourned to 26 November 2018 for a subsequent hearing on sentence. As noted above, a custodial sentence was imposed on the applicant.

District Court conviction appeal

The conviction appeal in the District Court was also heard over two separate days (3 April 2019 and 26 April 2019), following which the District Court judge gave ex tempore reasons for her decision, dismissing the conviction appeal.
As the District Court judge made clear to the applicant, a conviction appeal to the District Court under s 11 of the Crimes (Appeal and Review) Act is by way of rehearing on the basis of the evidence that was before the Local Court as well as any further evidence which leave is given to adduce (see s 18 of the said Act). There is a discretion to recall witnesses to give evidence where there are special or substantial reasons in the interests of justice for so doing so (see s 19) but this did not arise in the present case.
In McNab v Director of Public Prosecutions (NSW) (2021) 106 NSWLR 430; [2021] NSWCA 298 (at [24] per Bell P, as his Honour then was, [83]-[90] per Basten and McCallum JJA), it was noted that the statutory task on such an appeal is error-based in that a factual, legal or discretionary error must be established in order for the appellant to succeed; but the presiding judge then went on to say that the description of the appellate jurisdiction as "error-based" focuses unduly on the identification of error as distinct from the task of rehearing (see at [25]-[28]).
In Lunney v Director of Public Prosecutions (NSW) (2021) 105 NSWLR 236; [2021] NSWCA 186 this Court (at [4] per Meagher JA; [44] per McCallum JA, White JA agreeing at [8]) noted that the appellate task on such a rehearing does not involve the District Court undertaking a complete review of the evidence in order to form its own views of the applicant's guilt, regardless of the issues raised by the applicant; rather, the appeal is correctly disposed of by reference to the arguments made and issues identified on the appeal.
In the present case, the applicant was unrepresented in the appeal (although on the first day he was offered, but declined, an opportunity for some assistance from senior counsel who was appearing in an unrelated matter before the Court that day) (District Court Transcript 3/4/19; T 3.12 ff). The applicant again had the assistance of a Vietnamese interpreter at the hearing (though much of the communication by the applicant with the District Court judge was in English, as it was on the present application).
On the conviction appeal, the Crown tendered all of the exhibits that were before the Local Court (including the videos of the applicant's ERISP and the police interviews of the complainant and the daughter) together with two aide memoire transcripts that had been before the Local Court, as well as the transcript of the Local Court hearing. The District Court judge also gave leave for additional material to be admitted as fresh evidence (see below).
As to the transcript, the applicant contended (as he does on the present application) that the transcript of his interview with the police had been modified and indicated that he wished the Court to inspect each of the videos (i.e., his ERISP and the recorded police interviews of the complainant and the daughter) and for the court to inspect those (District Court Transcript 3/4/19 T 16ff). The applicant also indicated that he wished to check the Local Court transcript and, in the course of argument with the District Court judge (during which he was informed by the District Court judge that the Local Court transcript was certified), the applicant questioned whether he could get a fair hearing if he did not have a chance to inspect the Local Court transcript (District Court Transcript 3/4/19 T 18ff).
After lengthy debate in which the applicant insisted that he needed to have the discs of the video recordings to examine (rather than that the recordings be played in the Court in his presence), the Crown made available to the applicant the videos of his ERISP and of the police interviews of the complainant and the daughter. The District Court judge indicated that the proceedings would be adjourned to give the applicant an opportunity to watch the videos but said that if for any reason he was unable to do so or did not do so then the videos would be played when the hearing resumed. As to the Local Court transcript, the District Court judge indicated that she was satisfied that the professionally provided Local Court transcript was accurate and said that it would be used for the hearing, refusing the applicant's request to be provided with a disc of the Local Court hearing itself.
There was an application by the applicant on the first day of the hearing for leave to issue a subpoena in order to obtain the recording of two triple-0 calls that the applicant said he had made to the ambulance service on 10 November 2017. Instead, the District Court judge asked the Crown (to save the applicant the challenge of issuing a subpoena for the ambulance records) to make enquiry as to the triple-0 calls before the resumption of the adjourned hearing (District Court Transcript 3/4/19; T 40ff).
At the resumed hearing on 26 April 2019, at which the applicant again had the assistance of a Vietnamese interpreter, the applicant confirmed that he had had an opportunity to review the recordings (though indicating that he did not have enough time or privacy in that regard) and said that he had found a lot of mistakes (District Court Transcript 26/4/19 T 43ff).
As to the question of any recording of the triple-0 ambulance call, the Crown indicated that the police had made an enquiry but that it was not yet known whether the recordings were in existence. The District Court judge explained to the applicant that he needed to make a decision as to whether to proceed with his appeal that day or whether he wished to make an adjournment application until the outcome of the enquiry (as to the ambulance calls) was known. It appears that the applicant ultimately elected to proceed with the appeal (District Court Transcript 26/4/19; T 45- 47).
The Crown indicated that, because the applicant had been given an opportunity to review the recordings against the transcript, it did not intend to play the recordings on the appeal. Her Honour was also advised by the Crown that, at the hearing in the Local Court, the complainant's recorded interview was only played up until the end of question 62 (the Crown not relying on the balance of that interview, which on the present application was said to be prejudicial to the applicant and not relevant to the issue before the Local Court) (see District Court Transcript 26/4/19; T 48-50). (This is of relevance to some of the many complaints the applicant now makes as to the conduct of the District Court hearing.)
The District Court judge indicated that the applicant would be given an opportunity to go through the transcripts and identify any corrections that he wished to make or where he thought the transcript was wrong. That exercise was carried out in relation to the applicant's ERISP (Exhibit 4) (District Court Transcript 26/4/19; T 52-77), following which the applicant said that there was no more transcript that he wanted to look at (before adding that the transcript of the Court had been "obviously changed badly") (District Court Transcript 26/4/19; T 77.31-36). (This is relevant to the applicant's complaint on the present application that the transcript was incomplete.)
The applicant was granted leave to adduce further evidence on the appeal, consisting of a number of reference letters (Exhibit 4) the contents of which were read onto the transcript; a police statement of the complainant (Exhibit 3); and photographs of the scene (Exhibit 2).
Following oral submissions, the District Court judge gave ex tempore reasons for judgment. Having noted that the appeal by way of re-hearing required her to form her own judgment of the facts based on the evidence given at the Local Court and any fresh evidence, while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses and observing the natural limitations stemming from proceedings that are wholly or substantially on the transcript record, her Honour outlined the elements of the offence. Her Honour then noted that the Crown relied on the pouring of the soup onto the complainant as the assault and relied on the burns suffered to the complainant's upper body as the actual bodily harm; also noting that during the hearing of the Local Court proceedings the facts that the injuries were suffered and that they amounted to actual bodily harm were not in issue. Her Honour said that, in any event, from the photographs themselves the injuries were substantial and her Honour was satisfied that the element of actual bodily harm was made out.
The District Court judge noted that the sole issue at the hearing both in the Local Court and on the conviction appeal was whether or not the applicant had assaulted the complainant by pouring a pot of hot liquid over her or whether there had been an accident (or, as the applicant had suggested, the injuries were self-inflicted).
Her Honour then summarised the evidence and noted that the applicant had identified various corrections to be made in the transcript of his record of interview. Her Honour expressly recorded in her ex tempore reasons for judgment that she accepted each of those corrections and that she had considered his record of interview as corrected by the applicant following the provision to him of the disc and the opportunity for him to ensure its accuracy.
The District Court judge then summarised the Crown submissions and noted the applicant's oral submissions. Her Honour accepted that, as the Crown case was circumstantial, she needed to be satisfied that the only reasonable explanation for the hot liquid falling onto and injuring the complainant was that the applicant was the person who did that.
Her Honour concluded that there was no reasonable possibility other than that the appellant was the person responsible for pouring the hot soup onto the complainant and that this had been established beyond a reasonable doubt.
The District Court judge noted the submissions that had been made by the applicant, including his reliance on the complainant's statement that was not before the Local Court to establish some inconsistencies in her evidence. Her Honour accepted that the complainant was a truthful witness and expressly accepted her evidence. Her Honour concluded that the injuries could not have been self-inflicted and did not occur accidentally. Her Honour was not persuaded that any asserted inconsistencies in the complainant's evidence were sufficient to cause reasonable doubt in relation to any element of the offence.
Her Honour then referred to other submissions by the applicant (as to the complaint that the police did not perform a proper investigation and that the complainant had made wrongful allegations in the past) as well as alleged inconsistencies in the photographs and reliance on the daughter's transcript. Her Honour took into account the fact that the applicant was unrepresented and referred to the assistance provided by the Court and counsel to an unrepresented litigant who had mental health difficulties (noting that as a result of his self-represented status and mental health difficulties she had considered additional material that she would not normally have entertained).
Her Honour concluded that she was satisfied beyond reasonable doubt of each of the elements of the offence charged, convicted the applicant of assault occasioning actual bodily harm, and dismissed the appeal.

Summons seeking judicial review

The summons seeking judicial review seeks two orders: 1. Applicant is innocent - not guilty of all charges 2. An extention [sic] of time to lodge this summons applications logged NiA attempts to Supreme Court - CCA.
The first of the orders sought reflects the applicant's misunderstanding (understandable though this is for an unrepresented lay party) of the scope of the Court's jurisdiction in relation to judicial review applications such as the present. It is convenient here both to restate this (as the futility of the present application is a relevant factor on the issue as to whether an extension of time should be granted) and to note that it was set out carefully and clearly in the respondent's written submissions, which the applicant (after no little confusion or, perhaps, obfuscation) said that he had read in advance of the hearing in this Court but to which he was given leave to respond in writing within a seven day period after the hearing. Hence, even if not clear to the applicant before or during the hearing, he has been given every opportunity to address the submissions made by the respondent as to why the matters he seeks to raise are not within the scope of judicial review.
As the respondent has noted, there is no right of appeal to this Court from a decision of the District Court on appeal from the Local Court in a criminal matter (Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 (Jamal) at [8]). Nor is any application for review of the District Court's decision or orders an appeal or review of the Local Court proceedings (since the orders of the Local Court have been superseded by the orders of the District Court made on the appeal pursuant to s 11 of the Crimes (Appeal and Review) Act and are not amenable to review - see Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 (Garde) at [10]-[11] and Jamal at [52]). Hence the complaints here made by the applicant as to the conduct of the Local Court proceedings are of no relevance on the present application.
An application for review of the District Court's decision, under the supervisory jurisdiction of this Court, is available under s 69 of the Supreme Court Act; hence, no doubt, the manner in which this proceeding was instituted. However, what the applicant must establish on such a review is jurisdictional error (see s 176 of the District Court Act 1973 (NSW); Nabi v Director of Public Prosecutions (NSW) [2022] NSWCA 92 at [5] per Ward P, Meagher JA and Basten AJA; Quinn v Commonwealth Director of Public Prosecutions (2021) 106 NSWLR 154; [2021] NSWCA 294 at [20]-[23] per Leeming JA; Simpson AJA and Johnson J agreeing; Stanley v Director of Public Prosecutions (NSW) (2021) 107 NSWLR 1; [2021] NSWCA 337 at [28]-[37] per Bell P, as his Honour then was, which was not disturbed on appeal to the High Court in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3 at [51] per Gordon, Edelman, Steward and Gleeson JJ).
Mere errors of law or fact which are errors made within the scope or confines of the District Court's authority to decide matters do not ordinarily constitute jurisdictional error (see Ming v Director of Public Prosecutions (NSW) [2022] NSWCA 209 (Ming) at [10] per Kirk JA, with whom White and Mitchelmore JJA agreed). Rather, the concept of jurisdictional error in respect of the exercise of the District Court's appellate function that would warrant that Court's decision being set aside is a failure to take into account or comply with some condition of the District Court's jurisdiction. In Oakey Coal Action Alliance Inc v New Acland Coal Ply Ltd (2021) 272 CLR 33; [2021] HCA 2 (Oakey) at [48], the High Court explained that a failure "to comply with a condition of its jurisdiction to perform a judicial function renders any judicial order it might make in the purported performance of that judicial function lacking in legal force".
Earlier, in Craig v South Australia (1995) 184 CLR 163 at 179-180, the High Court at 179-180 made clear that: [T]he 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. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error. [Emphasis added]
Thus, to put it in lay terms, what the applicant is here required to establish is not that the decision by the District Court judge was wrong (i.e., that contrary to her Honour's finding he is innocent of the offence of which he was convicted) or that the District Court judge made a mistake in assessing the factual evidence or erred in relation to the admissibility of some piece of evidence or made an error of legal principle (that being what might be described as an error "within jurisdiction") but, rather, that her Honour made a mistake because her Honour acted "outside" the Court's jurisdiction (say, by failing to take into account or do something that was a condition of the exercise of the Court's jurisdiction).
While a failure to observe procedural fairness in the exercise of the jurisdiction can amount to jurisdictional error (see Oakey at [47]), what amounts to procedural fairness in a particular case depends on the circumstances of the case (see Condon v Pompano Pty Ltd (2013) 252 CLR 38; [2013] HCA 7 at [68] per French CJ and [156] per Hayne, Crennan, Kiefel and Bell JJ).
The respondent points in this context to what was said by this Court in Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [13]-[14] as to jurisdictional error: 13. Jurisdictional error arises where the decision-maker has misunderstood the limits of his or her legal authority or has otherwise acted outside the scope of that authority, or failed to exercise the powers conferred by that authority. A failure to accord a party procedural fairness in a material respect will constitute jurisdictional error, because procedural fairness is an essential characteristic of the exercise of judicial power, being the power exercised by the District Court judge in the present case. 14. Procedural fairness requires that an adverse finding not be made in circumstances where the party adversely affected has not had an opportunity to address the basis upon which the finding is made. It is rare that experienced judges conduct proceedings in a manner which is not procedurally fair in the sense noted, but on occasion it can happen, usually through inadvertence. For example, the judge may proceed on the basis that a party has a particular document, or that particular evidence has been admitted, when that is not the case.
Reference is also made by the respondent to what was said in Ming by Kirk JA (with whom White and Mitchelmore JJA agreed) as to constructive failure to exercise jurisdiction amounting to jurisdictional error (at [12]-16]).
All of this points to the difficulty faced by the applicant in the present case, insofar as his grounds (which are considered below) raise a raft of complaints as to matters relating to the conduct of the Local Court proceedings (such as alleged tampering with transcript of the police interviews and of the Local Court hearing itself) and the police investigation into the incident, and as to matters unrelated to the incident itself (such as complaints of police abduction and the like), without any focus on what is, or could possibly be said to be, the jurisdictional error on the part of the District Court judge in relation to the conviction appeal. Again, in lay terms, just getting the ultimate answer wrong (in the applicant's eyes) is not enough to establish jurisdictional error.

Extension of time

Turning then to the application for an extension of time for lodgment of the summons, as to which the applicant did not at first focus any particular submissions, the need for such an extension arises as the summons was filed over four and a half years from the date of the decision in question, well outside the time for the filing of a summons seeking judicial review of that decision (see r 59.10(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR)).
The principles applicable to such an application are well-known (see Barrett v Director of Public Prosecutions (NSW) [2020] NSWCA 270 at [17] per Brereton JA, with whom Basten and Meagher JJA agreed; see also Tomko v Palasty (No 2) (2007) 71 NSWLR 61; [2007] NSWCA 369, albeit in the context of considering factors relevant to UCPR 51.16(2)). Matters relevant to be taken into account (see rule 59.10(3)) include possible prejudice if the extension were to be granted and any relevant public interest. Clearly relevant also are matters such as the length and reasons for the delay and whether the claim is fairly arguable (Dyason v Butterworth [2015] NSWCA 52 at [65] per McColl JA, with whom Barrett and Gleeson JJA agreed), particularly given that proceedings for judicial review should generally be determined quickly, and many decisions reflect the need for timeliness (Insurance Australia Group trading as NRMA Insurance v Keen [2021] NSWCA 287 per Leeming JA at [64], with whom Basten JA and Simpson AJA agreed). The applicant bears the onus on the application.
In the present case, the applicant's explanation for the delay in commencing proceedings in this Court as gleaned from the summons itself appears to be that he had tried to lodge a notice of intention to appeal from the District Court decision but this was refused. Attached to his submissions is a link containing email communications between the applicant and the registry which reveal that a duty registrar informed the applicant on 17 July 2019 (correctly) that no further appeal lay to the Court of Criminal Appeal and that the applicant should seek legal advice as to his options. (This no doubt explains the rejection of any attempt by the applicant to lodge a notice of appeal or notice of intention to appeal.) It would appear that the last of the communications with the registry in this regard was around 23 November 2021. There is no explanation for the delay in the filing of the summons since that time, and although one might infer that the applicant may have experienced some practical difficulties while in detention, it is very commonplace for prisoners and persons in immigration detention to make applications to the Courts.
The respondent submits that the applicant's lengthy delay in commencing proceedings for judicial review in this Court, together with the fact that the applicant's custodial sentence has been served (and hence the practical utility of the application is minimal) and the unarguability of the claim, is reason to refuse the application for judicial review. The respondent argues that the applicant's summons raises no relevant issues of principle or questions of public importance and maintains that the applicant has not demonstrated that he has suffered a particular injustice in the sense of going beyond what is merely arguable (referring to what was said in Singh v Hicks and Nissan [2021] NSWCA 80 at [15] per Gleeson JA, Leeming JA agreeing).

Determination

This is not an appropriate case in which to grant an extension of time for the filing of the summons seeking judicial review. Leaving aside the delay in the filling of the summons, the matters about which the applicant complains do not reveal any jurisdictional error. No complaint of jurisdictional error is discernible in his summons or in his submissions. Rather, the applicant's fundamental complaint is as to his conviction, and what led to his conviction, in the Local Court. There is no issue of principle or public importance which warrants the grant of leave to extend time for the filing of a summons that is doomed to failure. Were leave to be granted the summons would be dismissed in any event.

Grounds of review

In the summons, the applicant sets out eight handwritten grounds of review, each of which is reproduced in due course (though it should be noted that there is a possibility that some of the handwriting has not been correctly deciphered).
In summary, however, as outlined in the applicant's reply submissions, the applicant maintains that: first, there was an error of fact (in that the District Court judge overlooked critical evidence (being the daughter's interview with the police - and, in particular her statement that he was sitting on the couch in the living room, not in the kitchen with the victim, at the time of the incident, which the applicant claims contradicts the prosecution's theory and calls into question the basis for the conviction); second, misconduct by the prosecution by withholding exculpatory evidence, namely, the ambulance call records and the daughter's statement (which the applicant argues could have demonstrated the consistency of his and the daughter's testimonies and revealed the complainant's attempt to hide her injuries) and thereby denying the applicant a fair trial; and, third, that new evidence in the form of ambulance call records is said to corroborate the accounts given by the applicant and the daughter of the injuries (the applicant saying that the complainant claimed to have burns on her chest and stomach, but photographs later showed injuries to her neck, back, and shoulder), which inconsistency the applicant says further undermines the prosecution's case and supports his claim of innocence.
Turning then to the specific grounds of review (without alteration), these are dealt with in sequence.

Ground 1 - complaint as to falsification of evidence 1. Campbelltown district court failed to inspect false evidents and fraud document and intentioning to admiss falsified and fraudulent evidence/false allegation a) false transcript police interview ERISP with Bach Cong Truong 11/11/2017 (Judge Shead and Magistrate Clisdell admitted that the transcript is modified and editted. Tampered the evidence & the video ERISP is also cut short over 5 minutes b) DVEC interview police with Quynh Nhu Nguyen on 11/11/2013 Transcript is modified and the video recorded by police phone, no date and time, number and the image are distorted and the clip is cut short. (highly suspect) c) Police interview daughter [redacted name and date of birth] on 10/01/2013 the video is cut short, the transcript is erroneous and Judge Shead only accept first 11 pages of the transcript and said to Mr Bach Truong "You cannot contest the admissibility of the evidence". Please note that the whole transcript has 18 pages and daughter [redacted name] said, "I don't think he actually pour hot water ontop but it's just what every one said. Q It's just what everyone said. Why do you not think it? A Because like, Dad … he was just on the couch and if he actually did pour water on her, he wouldn't help her … words d) The transcripts of 3 court hearing at Campbelltown local court 31/08/2018, 15/10/2018, 26/11/2018 are badly edited, tamper and made fraud and more important is the voice records of these transcripts are edited and mixed to make them seem consisting with these fraud transcripts. Please note that on 11/04/2019 at Supreme Court Bail Court, (2018/00390259) R v Bach Cong Truong-Bail is refused Judge Davies J said - write "There is no evidence at all that the transcript has been modified. No application has, in any event, been made by him in the appeal to do so. At that period, I was in prison but now I have proof to show the court. Fresh evidence e) AAT transcript ([redacted]), Federal Court [redacted] Federal Court [redacted] transcripts are also edited.

It is apparent from this ground that the applicant contends that the recorded evidence in the proceedings was falsified. Both in the District Court and on the present application, the applicant raised suspicions as to the accuracy of the recorded evidence. Indeed the applicant makes clear in his most recent written submissions that he also contends that the transcript of a directions hearing on 12 December 2022 is "faulty too" and that the Supreme Court bail transcripts "are falsity and fraudulent too".
As noted earlier, the applicant was given the opportunity, at his insistence, to review the disc of the ERISP and police interviews (and the hearing was adjourned for precisely that purpose). At the resumed hearing the applicant was given the opportunity to identify any corrections that he considered should be made to the transcript. He did so in relation to the transcript of his ERISP and, as noted above, her Honour accepted each of those corrections and expressly stated that the transcript would be read as so corrected. The applicant did not identify any errors in the transcripts of the police interviews of the complainant or the daughter (though he was given an opportunity to do so).
Although the applicant complains that the District Court judge only accepted the first 11 pages of the transcript of the complainant's police interview, the respondent points out that this was because the remainder of the questions and answers in the police interview were not in evidence before the Local Court (as her Honour explained to the applicant).
Insofar as the applicant complains that he was not permitted to contest the record of the transcript Local Court proceedings, it is clear that this was because that transcript was a certified Court transcript and the District Court judge considered that there was no risk of it being modified. Although the applicant asserts that the Local Court transcripts are badly edited and have been fraudulently tampered with, the applicant pointed to no parts of the transcript in support of that contention, nor did he explain how the alleged modification related to any particular issue in the trial. (The reference to modifications to which the applicant says the District Court judge admitted must be understood in light of her Honour's explanation as to how transcripts are prepared from the aural perception of what is said and the possibility of human error - see T 17.32-50 as to the first day of the District Court proceedings.)
The respondent submits, and this is evident from a careful review of the transcript of the District Court proceedings, that there was no denial of procedural fairness in the manner in which the District Court dealt with the applicant's submissions about the transcripts; noting that the applicant was given an appropriate opportunity to review the recorded evidence and to identify any corrections required to be made to the transcripts to ensure their accuracy.
In his written submissions in reply, the applicant maintains that the District Court judge failed to inspect all evidence and documents in the Local Court proceedings and says that the respondent's claim that this complaint is without foundation does not refer to any evidence. The applicant submits that: (a) The applicant reasoned that at the time of receiving the district court transcripts was only until the court book was served and only till recently the applicant was able to review these transcripts. There's evidence that show that the applicant was rejected by the district court to play and review the recorded interviews. (b) The applicant has requested the recorded interviews to be played in comparing the errors found in the transcript. However, this request was denied multiple times based on the reason that the applicant had access to them prior and therefore would not need to play it. (c) However the access of those recording was limited by the Corrective services and that there wasn't enough time to review the interviews fully. Although it was noted that the Judge had assured in the previous court hearing that the applicant would have the opportunity to watch the recorded interviews again at the next hearing date if he was unable to do so beforehand. (d) However, this was not the case for the applicant and therefore was not given a fair hearing to thoroughly review the recorded interviews. Note: the Transcript of District court are faulty and erones and under standard of Proof- Evident( Falsity and fraudulent) Mention in Transcript of Court of appeal hearing 17/03/2023
In response to the respondent's oral submission as to the opportunity to review the transcript, the applicant says that in fact what he said was not "Actually there's no more transcript I want to look at", but that the transcripts have been edited to have the word 'no' included in that line of the transcript, so as "to allow the Judge to discontinue the review of the transcripts of the victim and the applicant daughter interview". (This is inconsistent with what transpired after the statement that the applicant now claims was incorrectly transcribed.)
The applicant says that his intention in the District Court hearing was to review all the transcripts and recordings of the interview including the transcripts of the Local Court but that he was rushed by the judge to make the submissions and therefore was denied by the Court the time necessary effectively to review the transcripts of the interviews of the complainant and the applicant's daughter.
No jurisdictional error is here established. There is no substance to the complaint that there was not a fair hearing because the recorded interviews were not played in the Court. The District Court judge accepted all of the applicant's corrections to the transcript.
The applicant had clearly had the opportunity to listen to the disc, since he identified numerous corrections he sought to have made. The fact that her Honour on the previous occasion had indicated that if he did not have the opportunity to do this, the disc would be played in Court is not therefore inconsistent with the course ultimately adopted by the trial judge.
There is no foundation for the complaint (now made in respect of almost every transcript) that the recordings were falsely or fraudulently tampered with (and bad editing seems to be a complaint as to the need for corrections to the transcript not their content).
Even if the District Court judge misunderstood the applicant's position as to whether there was more transcript he wished to correct (and it is relevant here to note that the transcript accords with the District Court judge's understanding) that would not amount to a denial of procedural fairness in circumstances where it is not apparent from what transpired thereafter that the applicant had any further corrections to make to the transcripts (and this Court was taken to no such corrections). The applicant has failed to demonstrate any practical injustice (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [36]-[38] per Gleeson CJ).

Ground 2 - complaint as to initial charge of grievous bodily harm with intent 2.a) There are multiple of H number and police, DPP, lawyer and the court tried to hide to me. e.g +166268164 initially the charge is grievous bodily harm with intent - si but the police and court also make another charge with same H number as Assault occasioning bodily harm DVT2 there are 3 sequence 2017/00341531, My matter supposed to be listed before district, stand trial and DPP matter, they also tag my case with section 32,33 police arrested me multiple times without warrant and detain, search and arrange crime scene (tamper evident and pervert course of justice. Police entered my house, obtained my daughter statement but the magistrate and DPP hide, obstruct to bring into the brief and the hearing. The same they do with paramedic report. There are 2 different of crime scene on 11/11/2017 and 12/11/2017 and the photos were given to Judge Shead but since then Judge Shead never mention on this important fact. Police just declare they enter my house on 12/11/17.

The applicant was initially charged with assault occasioning grievous bodily harm contrary to s 33 of the Crimes Act. That charge was not ultimately pressed. The respondent says (and this is clearly correct) that the District Court's jurisdiction was limited to the offence that was before the Court on appeal; any other charges being irrelevant to the outcome of the appeal. The applicant's complaint appears to be that there was some attempt by police, the legal representatives and the Court to conceal from him that there had initially been another charge.
The applicant also makes allegations about police misconduct when searching his house and contends that there was a discrepancy in the photographs of the scene that were tendered in evidence. The applicant complains that this was not taken into account by the District Court judge.
The respondent notes that it is clear from the transcript of the District Court proceedings that the applicant made submissions about the photographs (and different items shown in the photographs), relying on these discrepancies for his submission that the police tampered with the scene; and that the District Court judge addressed those submissions in her judgment (stating that she had carefully considered them). The respondent says that, inferentially, her Honour rejected the photographs as having any significance for her findings as to the applicant's guilt. The respondent submits that there is no basis for a finding that the District Court judge failed to take this evidence, or the applicant's submissions in relation to it, into account on the appeal.
This ground also appears to complain as to the prosecution brief concealing the daughter's statement and a paramedic report. Again, the District Court judge noted the submissions made by the applicant as to the daughter's statement.
In reply submissions, the applicant says that what was relevant is that the daughter's statement and the paramedic report on the incident were not disclosed by the prosecution. The applicant maintains that he raised evidence of the daughter's interview which was paramount to his innocence, but that this was ignored due to the Court being at the submission phase and therefore such evidence was not considered in the conviction.
The complaint about the paramedic report is not clear. The Court was not taken to the contents of any paramedic report, nor it appears, was the District Court judge.
There is no foundation for the complaint that the evidence of the daughter's earlier statement was not considered by the District Court. The District Court judge expressly addressed the applicant's submissions on the inconsistence in the daughter's evidence.
There is no jurisdictional error established in relation to ground 2.

Ground 3 - subpoena issue and allegation of malicious prosecution and misconduct 3. The Clisdell Magistrate repeatedly refused me, my witness to give evident and refused me to subpoena, subpoena the triple zero - ambulance call record x 2 which are important evidence for my innocent. Before the incident on 10/11/2017 I have contacted Cabramatta police 4 times to seek, insist for help and intervention but these event are never input in the brief or fact. All the Judges and Magistrates ignored or seem to agree for police to charge false charge such as fail to report, fail to pay taxi, faire when I hired a taxi and the taxi stop in front of Cabramatta Police station to wait for me to come in to get bail report but police forced me to pay right away while I still need that taxi, after paid the faire, I was arrested and charged for and police alleged and put in my criminal history. Malicious prosecution and missconduct.

This ground of review raises a number of matters. First, it is asserted that the Local Court magistrate refused to allow the applicant and other witnesses to give evidence and refused to grant leave to issue a subpoena to recover the recordings of the emergency calls made following the complainant's injury.
As the respondent notes, a review of the District Court decision on the basis of complaints as to the conduct of the proceedings in the Local Court is not available to the applicant. The decision of the Local Court has been superseded by the decision of the District Court on the s 11 conviction appeal (again, see Garde at [11]-[13]).
In the District Court, the issue as to the subpoena was dealt with (as noted above) by the applicant being given an opportunity not to proceed with the appeal until the enquiries of the ambulance service were answered.
Second, complaint is made by this ground of review as to police misconduct and malicious prosecution in charging the applicant with the subject offence and other offences. Complaint also seems to be made as to a failure of the police to investigate other matters (the applicant insisting in oral submissions that it was he who was the victim of domestic violence).
As the respondent notes, this second complaint is of no relevance to the question of whether the District Court's decision is affected by jurisdictional error.
No jurisdictional error is established by ground 3.

Ground 4 - further allegation of police misconduct 4. Police abduction and pervert course of justice, obstruction police always use four different police station to create charge and Brief 4 [B] different courts: Fairfield, Cabramatta, Liverpool, Campbelltown to may be legalized their false arrest. I was arrested on 26/02/2018 without a warrant and police report and corrective service - prison show the date I was received to custody is 03/03/2018, about 07/03/2018 my previous lawyer who I terminate due to misrepresentation (withdraw, plead guilty the contravene AVO charge. My wife called me by her phone). My lawyer tried to persuade me to tell everyone that I did not report on bail 4 days 25, 26, 27, 28 12/2018! I told her that how can I not report on bail while I was already arrested on 26/02/2018. She promised by "don't worry, we already fix it"! Recently on 09/11/2022, the Advice of Court result of Fairfield Local Court ordered detetion application 2/3/201 but there is a warrant issued on 1/03/2018 from Campbelltown Local Court linked document 63682205 H62235509 / Jaime Douglas Page. Perverting - specially my phone which was seized by the police has photos made in the train on 01/03/2018. My Facebook account also there are post on 28/2/201/ and 01/03/2018, there are some phone call from my phone to my lawyer on 01/03/2018 and 02/03/2018 xxxx xxx xxx. [number redacted]

Ground 4 is a complaint of police abduction and perversion of the course of justice (including a complaint that the applicant was arrested without a warrant and complaints as to hearings at various courts) as well as complaint as to the conduct of his former legal representative in relation to bail proceedings and complaints as to separate charges under the Crimes (Domestic and Personal Violence) Act 2007 (NSW).
The respondent submits, correctly, that none of those matters has any relevance to the District Court proceedings that are the subject of review. No jurisdictional error is here shown.

Ground 5 - further allegations of police misconduct 5. False contravene AVO and false arrest and 22/11/2017 detention. My wife called me by her Facetime on phone 20/11/2017 and police came to my company questioned me, I showed police the missed called on my phone [xxxx xxx xxx number redacted] showing the call was inflicted by my wife phone number in fact she tried to called and text me on 12/11/2017 but police seized my phone and arrested me over 2 days police kept my phone until July 2019! Obstruction of justice.

Further complaints of police misconduct are here raised in relation to the applicant's arrest on separate charges of contravening an apprehended personal violence order.
Again, the respondent submits, correctly, that none of these matters has any relevance to the District Court proceedings that are the subject of review. No jurisdictional error is shown in relation to ground 5.

Ground 6 - complaint as to apprehended violence orders 6. 4 years AVO (2 x 2 years) preventing me having contact with my belove daughter without any sufficient evidence or her statement my daughter DOB [redacted]. Note: I have family court order to have custody with my daughter.

By ground 6, the applicant complains that apprehended violence orders (which he says were without sufficient evidence) have prevented him from contacting his daughter. As the respondent submits, this has no relevance to the District Court proceedings that are the subject of review.
No jurisdictional error is here shown.

Ground 7 - complaint as to judicial response to applicant's complaints and failure of complainant and daughter to attend court in person 7. All the magistrates and Judges have no conscience or awareness when I mentioned about police misconduct and obstruct me to give evidence. - At Campbelltown Local Court, my ex-wife Quynh Nhu Nguyen and my daughter [name redacted] were only appear on 31/08/2018; they did not attend on 15/10/2018 and 26/11/2018 and they just appear via AVL. Beyond reasonable doubt not meet - At Campbelltown District Court, they did not attend this appeal court. - Various police misconduct, abduction, pervert course of justice.

By ground 7, the applicant complains first as to the judicial response to his complaints of police misconduct and obstruction of the applicant giving evidence; and second as to the failure of the complainant and the daughter to appear in person (only via AVL) at the Local Court on 15 October and 26 November 2018 and failure to appear at all in the District Court on the appeal. The applicant asserts that the "beyond reasonable doubt" test could not be satisfied.
The respondent notes that the complainant and the daughter gave evidence in the Local Court on a closed-circuit link from the domestic violence evidence room on 31 August 2018; and each was cross-examined on that day. The respondent says that there was no reason for either of them to be present after they had completed giving their evidence. The respondent further notes that this matter was not raised by the applicant in his submissions on the appeal to the District Court but that, in any event, the conduct of the proceedings in the Local Court has no relevance to the validity of the order of the District Court on appeal. That is undoubtedly correct.
No jurisdictional error is here shown.

Ground 8 - Delay 8. The incident happened on 10/11/2017 and the court let the hearing final 26/11/2018 at Campbelltown Local Court which is too lengthy unfair, imprison, obstruct me to defence my innocent.

By ground 8, the applicant complains about the delay between the date of the offence (10 November 2017) and the finalisation of the Local Court proceedings (26 November 2018). The applicant says that this was too long, and complains that he was unfairly imprisoned and obstructed in defending his innocence.
The respondent points out that this is not a matter that affects the jurisdiction of the District Court in determining the applicant's appeal from his conviction for the charged offence but notes that, in any event, the applicant's conviction for the offence occurred at a hearing on 15 October 2018 (which is within the Local Court's published time standards for summary criminal trials).
No jurisdictional error is shown by this ground of review.

Conclusion as to jurisdictional error

The applicant complains that "the lower court procedure and Jurisdiction and misconduct of police, lawyers, and DPP and Local and District courts are amounted to Miscrarriage of Justice [sic], and Pervert Course of Justice!", that the conviction should be overturned and acquittal should be ordered.
The applicant has not established any jurisdictional error that would justify the claim for relief in the summons. Accordingly, even had leave been granted to extend the time for filing of the summons, the summons would be dismissed. As the electronically submitted notice of motion is not before this Court it is not necessary to make any order in that regard.

Order

The orders of the Court are therefore: 1. Refuse leave for the extension of time for the filing of the applicant's summons seeking judicial review. 2. Summons dismissed with costs.
Brereton JA: I agree with Ward P.
Griffiths AJA: I agree with Ward P.

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: 12 April 2023

(2021) 105 NSWLR 236

(2021) 106 NSWLR 430

(2021) 106 NSWLR 154

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