Vince SUNTER v DISTRICT COURT OF NEW SOUTH WALES

The applicant appealed from the decision of the District Court on the grounds that the judge fell into jurisdictional error in that her Honour did not dispose of the conviction appeal on a certified transcript; did not consider the rider may not have been the applicant and did not instruct herself on the dangers of acting on identification evidence in considering whether the Crown had proved the offence beyond reasonable doubt; that her Honour gave no, or inadequate reasons; and that the orders made were not within the terms of the Crimes (Appeal and Review) Act 2001 (NSW), s 20. Held, dismissing the summons:

1. There was no jurisdictional error in using the transcript provided by the Local Court. The reference to certified transcripts in the Crimes (Appeal and Review) Act 2001 (NSW) s 18(1) does not render invalid the determination of a conviction appeal on the basis of the official transcript not bearing a formal mark of certification: [18], [19]. Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355

2. The primary judge was fully aware of the nature of the appeal as a rehearing and was dealing with the matter on that basis: [24].

3. The primary judge gave reasons adequate to express why she concluded that she was persuaded to the requisite standard by the evidence that the appellant was speeding. The primary judge identified the essential basis for her reasons resolving the relevant issue (identification) put by the parties: [35].

4. Any failure of the primary judge to remind or direct herself as to the caution with which identification evidence should be treated and the possibility that the appellant was not the rider was not a failure to undertake or complete her statutory task to determine the appeal and did not amount to jurisdictional error: [42], [43]. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40067/2008

ALLSOP P MACFARLAN JA JAMES J

25 November 2008 SUNTER v DISTRICT COURT OF NSW & ANOR Judgment 1 ALLSOP P: Before the Court is a summons for an order for relief in the nature of certiorari pursuant to s 69(1) of the Supreme Court Act 1970 (NSW) in respect of a determination by the District Court dated 6 December 2007, and for an order to review and quash such determination by reason of jurisdictional error. (There had been a claim for review for error of law on the face of the record, but this aspect of the application was abandoned in the light of the District Court Act 1973 (NSW), s 176 and the decision of this Court in Spanos v Lazaris [2008] NSWCA 74.) 2 The matter arises from the conviction of the applicant in the Queanbeyan Local Court on 28 September 2007 on one count of exceeding the speed limit by more than 45 kilometres per hour. The applicant defended the charge. The allegation was that on 30 December 2006 at Kosciusko Road, Sawpit Creek the applicant rode a red motorcycle at approximately 170 kilometres per hour in a 100 kilometre per hour zone. The only issues joined at the hearing were whether the applicant was the rider of the motorcycle and whether it was his motorcycle detected by radar operated by the constable who gave evidence and who identified the bike and rider. Before the Local Court the applicant testified that he was not the rider speeding. 3 The evidence before the magistrate included the evidence of the constable in question, the applicant and the video taken from the camera in the police car and at a nearby caravan park where the applicant was found by the constable and where a discussion took place with the constable. 4 The applicant appealed his conviction pursuant to the Crimes (Appeal and Review) Act 2001 (NSW) (the "Appeal Act") and the matter came on for hearing before a judge of the District Court, sitting at Queanbeyan on 6 December 2007. 5 The applicant's summary of argument asserted that the District Court judge fell into jurisdictional error in that her Honour did not dispose of the conviction appeal on a certified transcript of evidence, that the orders made by her were not within the terms of the Appeal Act, s 20, that her Honour did not consider, as a reasonable possibility, that the rider of the offending motorcycle may not have been the applicant and did not instruct herself on the dangers of acting on identification evidence in considering whether the Crown had proved the offence beyond reasonable doubt, and that her Honour gave no, or inadequate, reasons. The transcript question

6 The Appeal Act, s 11 provides for appeal and s 18 provides that an appeal against conviction is to be by way of rehearing on the basis of a certified transcript of evidence given in the Local Court proceedings, except as provided by s 19. (Section 19 dealing with evidence being given by a person is not relevant here.) Section 18(2) deals with fresh evidence. 7 By the Appeal Act, s 20(1), the District Court may determine an appeal against conviction by setting aside the conviction or by dismissing the appeal. By s 20(2), the District Court may determine an appeal against sentence by setting aside the sentence, or by varying the sentence, or by dismissing the appeal. 8 Reference may also be made to the District Court Act, ss 9 and 166 for the exercise of criminal jurisdiction by the District Court. 9 The simple point that was made is that there was no certified transcript. 10 The evidence on the application to this Court included an affidavit of Ms Margaret McGlynn, a solicitor employed in the office of the Director of Public Prosecutions. That evidence disclosed that as a matter of practice no separate certification is provided for a transcript of the evidence given in Local Court proceedings prepared for the purposes of appeal under the Act, s 18. This practice has been the case for a number of years. There could be no doubt, however, that the transcript upon which the District Court judge dealt with the appeal was provided by the Local Court and was in that sense the official transcript of the Local Court. There was no suggestion that the transcript was in any way inadequate. 11 There is no definition of the phrase "certified transcript" for the purposes of the Appeal Act, Pt 3 or in the Criminal Procedure Act 1986 (NSW). The Criminal Procedure Act, ss 285 and 286 contains provisions for the admission of depositions at the trial on indictment of an accused person. Section 287 provides for the evidentiary effect of certain transcripts. 12 Under the previous regime under the Justices Act 1902 (NSW) appeals against conviction were dealt with in s 132, which was in the following terms: (1) An appeal against any conviction or order made by a Magistrate is to be by way of rehearing on the transcripts of evidence heard before the Magistrate, except as provided by section 133. (2) For the purposes of subsection (1), a transcript is taken to be a correct transcript of a true record of evidence if the transcript is certified in the manner prescribed by the regulations. (3) On such an appeal, new evidence may be given only with the leave of the District Court, if the Court is of the opinion that it is in the interests of justice that the evidence be given. (4) A clerk of a Local Court must, at the request of an appellant or respondent, provide one copy of the transcript of evidence of any witness free of charge to the appellant or respondent. (5) A registrar is also required, at the request of an appellant or respondent, to provide one copy of the transcript of evidence of any witness free of charge to the appellant or respondent, if the registrar has been provided with a copy of the transcript by a clerk of the Local Court.

13 The Justices (General) Regulation 2000, reg 19 was in the following terms: The person by whom a transcript is prepared of depositions recorded by one of the means (other than writing) referred to in section 36(4) or 70(4) of the Act must certify that the transcript so prepared is a correct transcript of the depositions so recorded. 14 Provision is made in the Local Court (Criminal and Applications Procedure) Rule 2003 for the recording of evidence in Local Courts. These rules contain no reference to certification of transcript. 15 The Evidence Act 1995 (NSW), s 48 permits the tender of a document that is or purports to be a transcript of recorded words and also permits the tender of a document that is or purports to be a copy of a "public document" which is or purports to have been printed by authority of the government. 16 It was argued that there must be some official certification such as previously occurred under Reg 19 for there to be a certified transcript. 17 The word "certify" includes in its meanings, "to make (a thing) certain; to guarantee as certain; to declare or attest by certificate; ...": Shorter Oxford English Dictionary (Clarendon Press 1986) at 307. Not all of these meanings require a process of formal certification. In the absence of any relevant statutory definition, "certified" includes a situation where the transcript has been proven (to the requisite standard) to be what it purports to be. This occurred here because the transcript was admitted without objection as the transcript of the Local Court proceedings and there was no contradictory evidence as to its authenticity or accuracy. 18 In any event, there is no indication in the Appeal Act that the legislative purpose of the reference to certified transcripts in s 18(1) was to render invalid the determination of a conviction appeal on the basis of an official transcript not bearing a formal mark of certification: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 391-3. 19 There was therefore no jurisdictional error in using the transcript provided by the Local Court.

20 Further, even if the above be incorrect, because the transcript was admitted without objection at the hearing before the District Court judge, in all the circumstances, relief would otherwise be withheld, certiorari being a discretionary remedy. The terms of the order 21 The terms of the orders made orally by the District Court judge were as follows: The offence is proved. I confirm the orders of the learned magistrate as to the fine and period of disqualification. 22 It was submitted by the applicant that this language was not within the terms of the Appeal Act, s 20. 23 It is to be noted that under the Justices Act, s 133A the powers of the District Court on appeal were, relevantly, expressed as follows: (1) The District Court may, after hearing an appeal, determine the appeal by dismissing the appeal or by doing any one or more of the following: (a) confirming , quashing, setting aside or varying the conviction , order or sentence appealed against, (b) increasing or reducing the sentence appealed against, (c) making such other orders as it thinks just. … (Emphasis added)

24 The transcript of the District Court appeal makes plain that the learned District Court judge was fully aware of the nature of the appeal as a rehearing and was dealing with a matter on that basis. Her Honour clearly understood it to be an appeal by way of rehearing and not an appeal in the strict sense. 25 The transcript records that her Honour expressed the view that she was satisfied beyond reasonable doubt as to the identity of the applicant as the rider of the motorcycle in question. That language, for instance, is not consistent with her Honour considering only whether there had been error in the magistrate's determination of the matter. 26 The formal recording of the District Court judge's orders is found in the District Court records which are contained in the affidavit of Ms McGlynn. The continuation sheet written in handwriting signed by the judge contains the following: Offence proved A/D; C/C I confirm fine and disqualification period imposed by learned magistrate - disqualification from a period to commence today. Allowed 28 days to pay fine to CLC Queanbeyan. 27 The first line of her Honour's adjudication can be taken as shorthand for "offence proved, appeal dismissed, conviction confirmed". That clearly involves the language of the Appeal Act, s 20 in relation to the determination of a conviction appeal and again reflects a consciousness on the part of her Honour that the question to be addressed on such an appeal is "not whether error is shown, but whether the District Court judge is satisfied beyond reasonable doubt of the guilt of the claimant": Wood v The Director of Public Prosecutions [2006] NSWCA 240 at [7]. 28 During argument Mr Wendler, who appeared for the applicant, made clear that this part of the appeal was not pressed on any formalistic basis. He submitted that the transcript, including the pronounced orders, reflected a misapprehension by her Honour as to the nature of the appeal. For the reasons that I have expressed, I cannot agree. 29 No jurisdictional error has been shown in this respect.

The questions of reasons and identification 30 It is appropriate to deal with these matters together. 31 The transcript of the hearing discloses over five pages a discussion between the legal representative of the appellant and the judge about the only issue in dispute, the question of identification. The discussion took place over and in connection with the playing and viewing of the relevant evidence. Towards the end of that discussion, her Honour said: Well I'm not sure about that. But the fact is we have got a police officer who has got eleven years experience isn't it? Didn't he say that? Who has been a highway patrol man who made the observations of what he saw. The extraordinary coincidence of people - two people leading the - being the first drivers - motor bike on the road in certainly a similar coloured bike and similar colour helmets as the bike that appears now on the screen which the appellant identified as his son, and then further back a motor cycle the same colour and a person wearing the same clothing and the same coloured helmet as the appellant was wearing the same clothing and the same coloured helmet as the appellant was wearing who the officer spoke to within 30 seconds of observing that motor cycle, to my mind Mr Phillips that's overwhelming. 32 Further discussion took place as follows: PHILLIPS: … At around line 17 [the officer] is asked the question "Okay, is it uncommon to see people in a black jacket on a red motorcycle?" HER HONOUR: Yes, I appreciate that but you take all the other circumstances into account. PHILLIPS: [The officer] says, "Not, not at all". HER HONOUR: I appreciate that. But I'm saying look at the other circumstances. Within 30 seconds of seeing this motor bike go past maybe dressed similarly he's speaking to him at the place where it is just pulled in, the camping ground. He's pointing out to him precisely not on one occasions but many occasions you can see him talking about the direction. There is no response at all, "Well I was coming from the other way". PHILLIPS: Well with respect, that was discussed by the learned magistrate. People pointing - HER HONOUR: But the magistrate came to that decision. I'm not - don't have to be concerned about what the magistrate's view was. If he made credibility findings, I would have been constrained, but he didn't. He was doing exactly what I am doing, looking at the video and making an assessment and also quite frankly using common sense Mr Phillips. PHILLIPS: I accept that your Honour. But if a police officer in circumstances pulls over somebody where he's been riding around tracks in a camp site, he may have lost his sense of direction to some degree, Mr Sunter. And the police officer if he points well he may not be exactly pointing in the right direction himself, and if Mr Sunter isn't sure whether that's right direction or not, then he is entitled to remain silent about that. But again he might accept well maybe that is the right direction. "I thought I might have been the opposite direction". He may have thought that. And that in my submission your Honour is not conclusive. HER HONOUR: Well I find it so Mr Phillips. Unless the Crown has got something that she wants to say about the matter, I am satisfied beyond reasonable doubt that the rider of the motor cycle observed by the officer shown in that video, the motor cycle being clocked at 170 k's in a 100 zone was being driven by the appellant or ridden by the appellant. 33 The parties then dealt with penalty. No further reasons were requested. It was apparent from what the judge said, in the context in which it was said, why her Honour concluded as she did on identification. 34 A separate page of transcript was produced on which there was recorded what passed immediately thereafter. The page was headed "Judgment". It recorded the following: HER HONOUR: The offence is proved. I confirm the orders of the learned Magistrate as to the fine and period of disqualification. 35 The transcript of discussion between the judge and the legal representative of the appellant records the essential reasons of the judge: as to the need only for the essential reasons see Ainger v Coffs Harbour City Council [2005] NSWCA 424 at [47]-[48], applied by the Court of Criminal Appeal in Gianoutsos v Glykis [2006] NSWCCA 137; 65 NSWLR 539 at 550 [59]. The judge identified the essential basis for her reasons resolving the relevant issue (identification) put by the parties: Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247. 36 The formality of the page headed judgment does not undermine the clarity with which the primary judge expressed her conclusions as to identity. 37 Thus, there were reasons, adequate to express why the judge concluded that she was persuaded to the requisite standard by the evidence that the appellant was the person speeding. Some more formal recording of the reasons may have been advisable; but its absence did not undermine what had been done. 38 This conclusion makes it unnecessary to consider whether a failure to give reasons by a judge in this circumstance would be jurisdictional error: cf Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281; 125 FCR 433 at 451-455 and 456-460; and Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; 216 CLR 212. These cases were concerned with the exercise of executive power. It may be that the inherent content of judicial power and its usual incidents mean that an absence of reasons reflects a failure of the judicial process and an incomplete attempt to deploy judicial power, and so, in that sense, jurisdictional error. 39 Here some reasons were given. This is not a case where a judicial officer gave an edict or ukase without explaining herself or himself. Such an act may not only reflect an error of law (in not providing reasons when they were, in law, required) but may also reflect a misapprehension of the task at hand and the essential characteristic of judicial method. The character of error as jurisdictional can sometimes be expressed as the failure of some "essential", "indispensable" or "inviolable" requirement: see generally Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420; SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43 at [27]; Rockdale Beef Pty Limited v Industrial Relations Commission of New South Wales [2007] NSWCA 128 at [80]-[86]; Sasterawan v Morris [2008] NSWCA 70 at [36]-[49]; and Schokman v DPP [2001] NSWCA 334 at [21]. 40 If the reasons here were inadequate, that did not reflect a lack of appreciation of the judicial task of hearing and determining the appeal. 41 Given my view as to the essential adequacy of the reasons, it is unnecessary to reach a concluded view about jurisdictional error, on any different hypothesis. 42 Though reasons were given, there was no reference to the judge reminding, or directing, herself as to the caution with which identification evidence should be treated and to the possibility that the appellant was not the rider: see R v Clout (1995) 41 NSWLR 312 and Fleming v R [1998] HCA 68; 197 CLR 250. 43 It was submitted that the judge could not "determine" the appeal within the meaning of that word in the Appeal Act, s 20 without properly directing herself about the dangers of identification evidence. 44 Even if it be assumed (though I do not so conclude) that the judge did not have to her mind this question, I do not think that it can be concluded that her Honour failed to exercise the jurisdiction given to the District Court, constructively or otherwise. Her Honour dealt with the substantive issues thrown up by the appeal. She considered the evidence that was before her and came to the conclusion beyond reasonable doubt as to the appellant's identity. Any failure to consider one aspect of caution about the evidence (or to record that she had so considered the matter) was not, in my view, a failure of the judge to undertake or complete the statutory task of hearing the appeal. It may be an error of law; but it does not amount to jurisdictional error in the sense discussed in the cases to which I have referred above. To determine an appeal under s 20, and to exercise jurisdiction, may involve an error. But the nature of jurisdiction is the sphere within which there exists the capacity or privilege to bind even though some error or irregularity has occurred: Rubenstein A Jurisdiction and Illegality (Oxford Clarendon Press 1965) at 18-19. Here, an appeal was undertaken. The judge examined the evidence, reached a view about it and dismissed the appeal. The court embarked on and completed its jurisdictional task to determine the appeal.

45 For the above reasons the summons should be dismissed with costs. 46 MACFARLAN JA: I agree with Allsop P. 47 JAMES J: I agree with Allsop P. **********

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