Vok v Director of Public Prosecutions - [2019] NSWCA 242 - NSWCA 2019 case summary — Zoe

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Vok v Director of Public Prosecutions

[2019] NSWCA 242

Court of Appeal (NSW)|2019-08-07|Before: Meagher JA, Payne JA, White JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2019-08-07

Before

Meagher JA, Payne JA, White JA

Catchwords

[1990] HCA 33 Bandara v Director of Public Prosecutions [2016] NSWCA 140 Craig v South Australia (1995) 184 CLR 163
[1995] HCA 58 Dranichnickov v Minister for Immigration and Multicultural Affairs [2003] HCA 26
(2003) 77 ALJR 1088 Fox v Percy (2003) 214 CLR 118
[2003] HCA 22 Garde v Dowd (2011) 80 NSWLR 620

Source

Original judgment source is linked above.

Catchwords

[1990] HCA 33 Bandara v Director of Public Prosecutions [2016] NSWCA 140 Craig v South Australia (1995) 184 CLR 163[1995] HCA 58 Dranichnickov v Minister for Immigration and Multicultural Affairs [2003] HCA 26(2003) 77 ALJR 1088 Fox v Percy (2003) 214 CLR 118[2003] HCA 22 Garde v Dowd (2011) 80 NSWLR 620[2017] NSWCA 105 Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359[2011] NSWCA 40 Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4

Judgment (15 paragraphs)

[1]

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

[2]

headnote [This headnote is not to be read as part of the decision] The applicant was convicted in the Local Court of knowingly contravening an apprehended personal violence order (APVO), contrary to Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1). He appealed to the District Court against his conviction under Crimes (Appeal and Review) Act 2001 (NSW), s 11. An issue before both courts was the construction of the APVO, which stated that the applicant was not to project water into an area "which is within a 4 metre radius of the window frame of the bedroom windows" of a particular apartment. In dismissing the appeal, the District Court judge found that the applicant had hosed into an area that was clearly within the prohibited area, irrespective of whether the APVO was construed as contended by the applicant or the Crown. The applicant sought judicial review of the order of the District Court. The principal issues before this Court were: (i) whether the District Court judge failed to consider the applicant's grounds of appeal and all of the evidence before the Local Court. (ii) whether the District Court erred in law and exceeded its jurisdiction in (1) upholding the applicant's conviction "based on" the decision of the Local Court magistrate, (2) finding the offence proven in the absence of any probative evidence, or (3) on an incorrect interpretation of the APVO. Held, dismissing the application (Meagher JA, Payne and White JJA agreeing): As to issue (i): (1) The District Court judge dealt with the applicant's arguments as to bias on the part of the Local Court magistrate; and considered all the evidence before the Local Court in coming to her conclusion that the offence was proven. In doing so, there was no constructive failure to exercise the District Court's appellate criminal jurisdiction. Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58; Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4; (2018) 92 ALJR 248 applied. As to issue (ii): (2) The District Court judge conducted the appeal by reference to the evidence before the Local Court, having regard to the "natural limitations" that arose from her Honour not having seen or heard the evidence given. That evidence provided a sufficient basis for her Honour to be satisfied that each element of the relevant offence was made out, irrespective of which of the competing interpretations of the APVO was adopted. The determination of those questions of fact and that question of construction was within the District Court's jurisdiction. Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245; Fox v Percy (2003) 214 CLR 118; [2003] HCA 22; AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218; Bandara v Director of Public Prosecutions [2016] NSWCA 140 referred to.

[3]

Judgment

MEAGHER JA: This is an application in the Supreme Court's supervisory jurisdiction under Supreme Court Act 1970 (NSW), s 69 to quash a decision of the District Court dismissing the applicant Mr Vok's appeal from a conviction in the Local Court of knowingly contravening a prohibition in an apprehended personal violence order (APVO): Vok v R (District Court (NSW), Baly SC DCJ, 5 March 2019, unrep). That appeal was brought under Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act), s 11. By his Summons, Mr Vok seeks an order for his "acquittal" and "compensation for expenses directly related to [his] District Court appeal and Court of Appeal (Supreme Court) and mental stress".
For the reasons which follow, that application should be dismissed with costs. Mr Vok's arguments do not identify any jurisdictional error on the part of the District Court in determining his appeal. Furthermore such an error would not necessarily have entitled him to an order from this Court setting aside his conviction (see CAR Act, s 20(1)(a)), and would not have entitled him to "compensation" from the respondent, Director of Public Prosecutions, for expenses incurred in relation to the District Court appeal or in the judicial review proceedings in this Court or for "mental distress". As to the question whether Mr Vok was entitled to an order for his "acquittal", see Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 at [10]; Supreme Court Act, s 69(3) as introduced by the Justice Legislation Amendment Act (No 2) 2018 (NSW), s 2(2), sch 1.21; and the Explanatory note to that amendment. The rejection of his claim to "compensation" would not have prevented Mr Vok from recovering under Civil Procedure Act 2005 (NSW), ss 3, 98 any costs or expenses reasonably incurred as a litigant-in-person in the proceedings in this Court had his application been successful: see also Preston v Commissioner for Fair Trading (2011) 80 NSWLR 359; [2011] NSWCA 40 at [183]-[185].

[4]

The underlying facts and proceeding in the Local Court

On 6 July 2018, after a hearing in the Local Court before Barko LCM, which took the best part of a day, Mr Vok was convicted of the offence of contravening an APVO, contrary to Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1) and fined $110. The relevant APVO was first made by Magistrate Barko on 22 March 2016 for the protection of a Ms Stead, and on 14 December 2017 it was varied and its operation extended until 20 October 2018. It is not clear whether that variation was also made by Barko LCM.
In the course of his ex tempore reasons given on 6 July 2018, Barko LCM recorded: … I am familiar with Mr Vok and I am familiar with Ms Stead because they have from time to time over the last couple of years appeared in this Court [the Local Court at Waverley] in relation to an ongoing dispute as to that occupancy of the subject premises at [X] Bondi Beach. Those premises are a large block of residential units, owned by the Department of Housing, in respect of which both Ms Stead and Mr Vok have the privilege of staying and it is a matter of public record that there has been this ongoing dispute.
The APVO as varied included the following prohibition directed to Mr Vok, named as "Defendant": 11. The Defendant is not to enter that part of the common property of [X] Bondi Beach NSW 2026 which is within a 4 metre radius of the window frame of the bedroom windows of unit numbered [Y] of those premises [or] a 2 metre radius of the window frame of the bathroom of the same unit. The Defendant is not to water or tend to any grass, tree, scrub or other vegetation within that portion of the common property [referred] to above. … The Defendant must not use any hose, or watering or gardening equipment to project water or any other substance within that portion of common property.
It was not controversial that the relevant bedroom window frame was in an exterior brick wall facing a lawn and garden area, which formed part of the common property of the residential units and bordered a public footpath. Nor was it controversial that the bottom of that window frame was more than a metre above the level of that area.
On 23 December 2017 Ms Stead attended Bondi Police Station and reported that shortly after 4:15pm on that day, Mr Vok had been standing "on the 4m border line from my bedroom window and was aiming the hose inside the boundary"; and that the "ground directly under my bedroom window was wet and there was a fresh puddle on the ground [which was] approximately 2m from my bedroom window". Ms Stead also produced still photographs and two short videos which she had taken on her phone immediately after that incident. The videos showed Mr Vok still holding a hose and watering plants, although not plants within the so-called "4m border line" to which she referred.
Ms Stead gave evidence to the same effect at the hearing on 6 July 2018, making clear that her references to distances in metres from the "bedroom window" were to distances from the base of the brick wall to the puddle or place where Mr Vok was standing. Thus, her "4 metre borderline" ran parallel with the brick wall over the width of the window frame at a distance of 4 metres and at least described a rectangular-shaped area, being part of the common property that Mr Vok was prohibited by the APVO from entering and from projecting water into by the use of a hose. Significantly, in her oral evidence, Ms Stead described the puddle shown in one of the still photographs that she had taken (which became Exhibit 4) as being "within 1 metre, 1 and a half metres, maybe up to 2 metres of my bedroom window".
The magistrate accepted that evidence, as well as the correctness of Ms Stead's understanding of the prohibition in the APVO. In doing so, he rejected Mr Vok's principal argument against his having breached that prohibition. That argument, which turns on an interpretation of order 11, was and remains that the outer limit of the prohibited area - stated as being "within a 4 metre radius of the window frame" - was the distance from the base of the wall to the point at ground level which was 4 metres from the centre of the top of the window frame. Applying Pythagoras' theorem to the height of the top of that window frame (measured as 2.95 metres), Mr Vok calculated that point to be 2.68 metres from the wall. Accordingly, adopting Mr Vok's construction - which treats the "4 metre radius" as a measure of the distance from a point on the top of the window frame to ground level and not as a measure of the width of the lawn and garden area under the window - he was prohibited from entering or projecting water into an area which was below the window and within 2.68 metres of the wall.
In rejecting that construction, Barko LCM concluded, bringing some common sense to this matter: The order is simply 4 metres of common property. It is not 4 metres of air space and it is clear, in my view, that the order was made in respect of the ground where the gardening was occurring and hosing was occurring. I am satisfied that Mr Vok was being disingenuous in that regard.
In the result, as the matter was dealt with in the Local Court the prohibition would have been breached, even if Mr Vok's construction had been accepted, because he used a hose to project water into an area of the common property which was below the window and within 2 metres of the brick wall.

[6]

The requirement that there be jurisdictional error

Judicial review of orders made in the exercise of the District Court's criminal jurisdiction in appeals from the Local Court is limited to relief for jurisdictional error: District Court Act 1973 (NSW), s 176; Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10]; Morgan v District Court of New South Wales at [10].
In Lazarus v Independent Commission against Corruption [2019] NSWCA 100, the Court made the following observations as to what is meant by "jurisdictional error": [3] To describe the decision of an inferior court as "'involving jurisdictional error' is to describe that decision as having been made outside jurisdiction and accordingly as one made in fact but 'lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it'": per Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection [2018] HCA 34; 92 ALJR 780 at [24]. [4] Thus there will be jurisdictional error if the District Court in exercising criminal appellate jurisdiction "[misconstrues] the relevant statute thereby misconceiving the nature of the function which [it] is performing or the extent of its powers in the circumstances of the particular case": Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72]. As Leeming JA observed in Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [39], jurisdictional error has been found where that Court has: … misapprehended its function by declining to state a case (Landsman v Director of Public Prosecutions [2013] NSWCA 369) or erroneously considered it had power to set aside a conviction ab initio (Roads and Maritime Services v Porret (2014) 86 NSWLR 467; [2014] NSWCA 30). But there was no jurisdictional error in (what was at best) "misapplying the applicable statutory test" giving rise to the offence (Boensch v Commissioner of Fines Administration [2017] NSWCA 13). It would be wrong to expect there to be bright-line rules delineating jurisdictional error from errors within jurisdiction, but a useful working guide may be found in WO v Director of Public Prosecutions (NSW) [2009] NSWCA 370 at [14]: … An erroneous application of the criminal law in the course of criminal proceedings will not generally demonstrate jurisdictional error."
As Leeming JA also emphasised at [39], it will seldom be the case that the misconstruction of a statute by a court constitutes jurisdictional error because it "is necessary further for that misconstruction to result in the court stepping outside the limits of what it was authorised to do".

[8]

Ground 1

Ground 1 is that the District Court judge did not consider the grounds of appeal and did not provide reasons for rejecting Mr Vok's arguments that (i) the magistrate was biased; (ii) he was deprived of a fair trial; (iii) the trial was an abuse of process; (iv) he was denied procedural fairness; and (v) the magistrate made errors of law.
Contention 1 made in support of this ground focusses on two matters: first, that Barko LCM did not disqualify himself at the hearing on 6 July 2018, he having made the APVO the construction of which was in issue, and having disqualified himself in the course of the hearing of an earlier prosecution of Mr Vok involving an alleged contravention of the original APVO; and secondly, that in the course of the hearing on 6 July 2018, Barko LCM interrupted his cross-examination of two prosecution witnesses, Constable Moffitt and Ms Stead, and made comments in the course of argument, which are said to have been "irrational" or "wrong". Four examples are given of instances in the first category, and one of instances in the second.
This first ground, in terms, contends that Baly SC DCJ did not consider Mr Vok's arguments in relation to there being actual or apprehended bias on the part of the magistrate in the circumstances outlined above. A failure on the part of the District Court to deal with such arguments in an appeal under s 11 of the CAR Act could possibly constitute a jurisdictional error if it involved in some way a constructive failure to exercise that appellate jurisdiction: see Dranichnickov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 at [24], [25]; (2003) 77 ALJR 1088; and Torbey Investments Corporated Pty Ltd v Ferrara [2017] NSWCA 9 at [67].
However, Mr Vok's argument in those respects fails at the outset because, as his written submissions accept, her Honour sufficiently dealt with his argument, albeit briefly, in her ex tempore judgment as follows: The appellant [Mr Vok] presented this Court with a folder of materials. In it, he seeks to do several things: Firstly, he makes all sorts of unsubstantiated claims against the magistrate. This is, in my view, an appalling attack on a judicial officer. I am not going to go into detail, suffice to say, the claims made are rejected by this Court. It is clear to me that the learned magistrate conducted a fair and unbiased hearing.
The correctness or otherwise of her Honour's conclusion in these respects does not call into question the District Court's jurisdiction to decide them in an appeal under the CAR Act: see Craig v South Australia (1995) 184 CLR 163 at 179-180; [1995] HCA 58; and the observations of Gageler J in Probuild Constructions (Aust) Pty Ltd v Shade Systems Pty Ltd [2018] HCA 4 at [73]ff; (2018) 92 ALJR 248. Accordingly, ground 1 should be dismissed.

[11]

Ground 4

Ground 4 is that the District Court judge erred in law in upholding the conviction "based on" the magistrate's decision in circumstances where the magistrate had earlier "admitted he could not bring [an] impartial and unprejudiced mind to the resolution of questions at the hearing" on 6 July 2018 as he had presided over the hearing of Ms Stead's initial application for the making of the APVO in March 2016. There is no specific contention which addresses this ground, the subject matter of which overlaps that of ground 1 and contention 1.
The allegations of apprehended and actual bias on the part of the magistrate were dismissed by Baly SC DCJ. More fundamentally, contrary to the assertion made by this ground, her Honour did not uphold the conviction "based on" the decision of the magistrate. As ss 18 to 20 of the CAR Act required, the appeal was conducted by reference to the oral evidence given in the Local Court, her Honour recording that she was bound to observe the "natural limitations" on fact-finding, including those arising from her not having seen or heard Ms Stead give evidence: see Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 at [23]. In so proceeding, her Honour did not misconceive the nature of the appellate function of the District Court: as to which see AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 at [5]; and Bandara v Director of Public Prosecutions [2016] NSWCA 140 at 10. Accordingly, ground 4 should also be dismissed.
It should be added that there was no application by Mr Vok in the proceeding in the Local Court for the magistrate to disqualify himself, either because he had made the initial APVO, or was involved in an earlier prosecution for breach of it. Neither of those matters on their face, and without more, would have provided a sound basis for a finding of actual or apprehended bias. Furthermore, the District Court judge was right to dismiss the assertion made in Mr Vok's first contention that the magistrate conducted the hearing in the Local Court other than in a "fair and unbiased" manner. The four examples of comments made in the course of Mr Vok's cross-examinations of Constable Moffitt or Ms Stead are of instances in which the magistrate was wholly justified in intervening in response to inadmissible or unclear questioning. The remaining example reveals a question asked in the course of oral argument which was fairly directed to a proper understanding of Mr Vok's submission.

Vok v Director of Public Prosecutions

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Judgment (15 paragraphs)

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Legislation Cited (5)

Cases Cited (33)

Cited By (8)