Wood v. The Director of Public Prosecutions & Ors. [2006] NSWCA 240

CATCHWORDS: CRIMINAL LAW - Appeal - Appeals from magistrates - Appeal against conviction - Whether necessary for error by magistrate to be shown - Application of principles of Fox v. Percy.

CASES CITED: Charara v. The Queen [2006] NSWCCA 244 Gianoutsos v. Glykis [2006] NSWCCA 137

Leroy John Wood - claimant PARTIES: The Director of Public Prosecutions - 1st opponent The Judges of the District Court of NSW - 2nd opponent

COUNSEL: Mr. P.A.G. O'Connor for claimant Ms. J.A. Girdham for first opponent

SOLICITORS: G.J. Donaghy & Company, Lismore for claimant

LOWER COURT JURISDICTION: District Court

LOWER COURT DATE OF DECISION: 22 November 2005

LOWER COURT MEDIUM NEUTRAL CITATION: Not applicable

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40050/06

HODGSON JA IPP JA TOBIAS JA

Thursday 24 August 2006 WOOD V. THE DIRECTOR OF PUBLIC PROSECUTIONS & ORS. Judgment 1 HODGSON JA: On 24 June 2005, Mr Thompson, Magistrate, heard proceedings in which the claimant was charged with assault occasioning actual bodily harm. The magistrate found the offence proved but dismissed the charge, conditional upon the claimant entering into a bond to be of good behaviour for twelve months pursuant to s.10 of the Crimes (Sentencing Procedure) Act 1999. The claimant appealed to the District Court, and on 22 November 2005 his Honour Judge Black QC dismissed the appeal and confirmed the order and finding of the Magistrate. 2 The claimant has applied to this Court for an order in the nature of certiorari quashing those orders, and an order in the nature of mandamus directing the District Court to determine the claimant's appeal according to law. The claimant's appeal to the District Court was brought pursuant to part 3 of the Crimes (Local Courts Appeal and Review) Act 2001 (the Act). Sections 18 and 19 of the Act as follows. 18 Appeals against conviction to be by way of rehearing on the transcripts of evidence (1) An appeal against conviction is to be by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by section 19. (2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given. (3) The parties to an appeal are each entitled to be provided with one free copy of the certified transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence.

19 Circumstances in which evidence to be given in person (1) The District Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied: (a) in the case of an appeal that relates to an offence involving violence against that person, that there are special reasons why, in the interests of justice, the person should attend and give evidence, or (b) in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence. (2) An application for such a direction may be made by a party to the proceedings in relation to a particular person only if notice of the party's intention to make such an application has been served on each other party to the proceedings within such period as the District Court may direct. (3) If an application for such a direction is refused, the District Court must give reasons for the refusal. (4) A direction may be withdrawn only on the application, or with the consent, of the appellant. (5) The regulations may make provision for or with respect to the determination of special or substantial reasons for the purposes of subsection (1). (6) Without limiting subsection (5), in determining whether special or substantial reasons exist, the District Court must have regard to whether or not the appellant was legally represented for the whole or any part of the original Local Court proceedings. 3 In his judgment disposing of the appeal, the primary judge expressed the issue he was determining and his reasons for determining it as follows: Now as far as I am concerned, it is not tor me to think what I might have done, because I did not hear the witnesses. It is for me to look at the material before the magistrate, and decide first of all whether there is material before him, justifying him reaching the conclusion which he did, and then further examining the material to see whether the magistrate applied any wrong principles, or reached a conclusion which no reasonable person on the material could conceivably have reached.

Well as I have already indicated, there was material entitled the magistrate to reach the conclusion that he did, namely to find that after the un-pleasantries were over, there was a further gratuitous insult from Mr Fittler whereupon, the appellant seized a piece of timber and turned and attacked Mr Fittler.

There have been careful submissions by Mr Donaghy as to why there would be no reason to accept the evidence of Mr Fittler. There has been reference to Mrs Fittler. I have considered those with care, but I am satisfied there was appropriate material before the magistrate entitling him to form the view that he did, which was to accept the evidence of Mr Fittler as to this particular aspect of the incident, and what he seems to have done was to give full effect to the conduct of Mr Fittler in giving rise to that situation in the nature of the sentence he felt appropriate.

As far as the finding of guilt is concerned, there was material entitling the magistrate to make the finding he did, and in those circumstances it is not for me to substitute anything that I think I might have done, even if I were minded to do so. 4 Since that decision was given, there have been two cases which authoritatively determine the correct approach to be taken towards appeals of this nature, those cases being Gianoutsos v Glykis [2006] NSWCCA 137, and Charara v The Queen [2006] NSWCCA 244. 5 The former case establishes that in cases of appeals pursuant to s.8 of the Act, the issue for the District Court judge is not whether error is shown in the decision of the magistrate, but whether the District Court judge is satisfied beyond reasonable doubt of the guilt of the claimant. 6 The following appears in paras [37] and [38] of that decision: 37 In Allesch v Maunz (2000) 203 CLR 172 the High Court considered the appeal provisions under the Family Court Act . In the course of the joint judgment of Gaudron, McHugh, Gummow and Hayne JJ their Honour's said at 180: "For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error (see CDJ v VAJ (1998) 197 CLR 172 at 201-202), whereas, in the latter case, those powers may be exercised regardless of error. At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised regardless of error. " (emphasis added)

38 In the present case, the legislation does indicate that the District Court's appellate powers may be exercised regardless of error. Section 20 of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) provides that on an appeal from a magistrate the District Court may either set aside a conviction (or in this case an APVO), or it may dismiss the appeal. The District Court is not limited to ordering fresh proceedings in the court below. Indeed, unlike the Supreme Court (see s 55(1)(b) of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW)), the District Court is given no express power to remit the matter back to the Local Court for redetermination in accordance with its directions. In R v Kurtic (1996) 85 A Crim R 57, Hunt CJ at CL noted that the power to determine an appeal otherwise than by ordering fresh proceedings would indicate that a court with such a power is not a court of error (at 59-60). 7 The latter case establishes that the principles set out in Fox v Percy (2003) 214 CLR 118, are still relevant, so that the judge has regard to the circumstances that he or she is deciding the case on a transcript and that the magistrate had the advantage of seeing and hearing the witnesses. This case, nevertheless, leaves undisturbed the principles set out in Gianoutsos that the question to be addressed is not whether error is shown, but whether the District Court judge is satisfied beyond reasonable doubt of the guilt of the claimant. 8 Having regard to those principles, it is clear from the passage I have quoted that the District Court judge in this case did not approach the question before him as required by law, and the claimant has not had the appeal which the statute provides. 9 In those circumstances, it is common ground that the orders sought by the claimant should be made. 10 For those reasons, I propose to make orders 1, 2 and 3 in the Amended Summons and an order that the first opponent pay the claimant's costs of these proceedings. 11 IPP JA: I agree. 12 TOBIAS JA: I also agree. 13 HODGSON JA: Those are the orders of the Court.

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.