Woodhouse v Director of Public Prosecutions

Court of Appeal (NSW)|2015-03-02|Before: Basten JA, Macfarlan JA

Background

The applicant was convicted on 20 February 2014 in the Downing Centre on a charge of larceny, contrary to s 117 of the Crimes Act 1900 (NSW). The applicant was represented in the Local Court by a solicitor, Mr Younan. The charge on which the applicant was convicted was that: "at 6.20 pm on 20/06/2013 at Potts Point he did steal certain property of the value of $137.00, to wit, [one] dozen bottles of Rymill Cabernet Merlot 2008, the property of Adam Barnes." The applicant was directed to enter into a good behaviour bond for 12 months, pursuant to s 9(1) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
On 20 February 2014, the applicant lodged an appeal with the District Court against his conviction. The effect of lodging the appeal was to stay the operation of the sentence: CAR Act, s 63.
On 12 September 2014, the applicant filed a motion in the District Court (First Motion) seeking an order vacating "the current hearing date of 22 September 2014 until the matters relating to evidence to be allowed in appeal are finalised". A schedule to the motion set out further orders sought, as follows: "1 Audio recording of case; 2 Email evidence to and from solicitor representing appellant at Local Court; 3 Evidence under oath of two witnesses not previously called: Jason Fargie and Christo Steenkamp; 4 Written statements of the above two witnesses; 5 Email evidence of Strata Managers."
Item 2 in the schedule to the First Motion refers to two emails passing between the applicant and the solicitor who represented him in the Local Court. The emails are dated 23 and 26 February 2014, respectively, and read as follows: "To [Mr] Younan My clear recollection is that Magistrate Buscombe read from written notes in handing down his judgement immediately after, and directly following-on from, your closing submissions. Is that your recollection too please? Thank you Andrew Woodhouse Hi Andrew Sorry for the delay in replying. Yes I agree. His Honour had already decided the outcome of the case prior to submissions and appeared to be reading from his judgment. Regards, [Mr] Younan"

The Primary Judgment

In his ex tempore judgment, the primary Judge described the subject matter of the appeal to the District Court as follows: "The matter that is the subject of an appeal is an allegation of larceny of a box containing wine. As I understand the matter, the case is alleged against the appellant that he took possession of a box that was said to contain 12 bottles of wine delivered by Dan Murphy. An issue at the hearing of the appeal will be whether the box referred to as the subject of the charge was in fact a box of wine. There is some closed-circuit television footage of the accused in possession of the box. Whether it is a box of wine from Dan Murphy Wines, or some other box is one of the issues apparently to be resolved. At the Local Court the critical issue was whether the appellant intended to permanently deprive the owner of the contents of the box and the box itself. However, from what I am told, there are wider issues to be considered, one going to the fundamental question of what was in fact the property that was allegedly stolen by the appellant."
Having noted that the Crown did not oppose some of the orders sought by the applicant, his Honour observed that the applicant: "initially sought the attendance of Mr Younan, the solicitor who acted for the [applicant] at the court below, to give evidence about matters that were directed at instructions obtained and other considerations or issues. These, in my view, have nothing at all to do with what ultimately the Court, exercising proper function under the [CAR Act], would need to consider. Thus the application for that person to attend and emails concerning instructions given to him by the [applicant] and the like which are sought to be produced, have no purpose, in my view, in the proceedings. Thus, I do not see it in the interests of justice that Mr Younan be required to attend or a direction be given for him to attend to give evidence nor produce any evidence relating to his contact with the [applicant]."
After his Honour pronounced orders, the applicant courteously reminded him that it was necessary to deal with the application concerning the Magistrate's Bench notes. His Honour responded as follows: "I decline to make orders for the production of Mr Younan and the emails. That seems to be otiose to the requirements of the appeal. I further decline to make any order for the production of any purported notes made by the presiding Magistrate at the hearing of the matter at the Local Court. With respect to that application, those "notes" could not have any relevance whatsoever to the determination of the appeal without having had the opportunity to consider the question of privilege that arose or may arise in relation to judicial notes in the recording of proceedings. The proceedings have been transcribed. There are mechanical recordings of the voices. A judgment has been given which is transcribed. The notes could not in any way determine any issues required to be considered by the District Court, bearing in mind, in accordance with judgments such as Longshaw, the Court is to form its own view of the evidence. It may be in a particular case that the notes of a particular judicial officer may be relevant to issues of 'apprehended bias' and the like raised at the time. But that issue is well and truly past as the magistrate is functus officio and the Court is not required, subject to the observations in Charara of the Court of Appeal in 2005, to review the decision of the learned Magistrate."

The Application for Judicial Review

The applicant initially sought to challenge the decision of the primary Judge by filing a notice of appeal in the Supreme Court. This was met by the DPP filing an objection to competency.
The applicant then filed a summons seeking judicial review of the District Court decision. As amended, the Summons seeks the following relief in this Court: "1 His Honour Judge Norrish's decision be set aside in so far as it relates to refusal to allow fresh evidence to be adduced. 2 Evidence sought to be adduced be so allowed to be considered by the NSW District Court."
The grounds identified in the Summons are as follows: "1 His Honour Judge Norrish failed to correctly apply sections 18 & 19 of the Crimes (Appeals and Review Act) in relation to allowing fresh evidence to be adduced in the interests of natural justice. Evidence in relation to the motion to allow production of emails etc as indicated in His Honour's decision was refused with inadequate justification. 2 His Honour failed to read submissions on the court file regarding the notice of motion or adequately allow submissions to be put by the appellant. 3 His Honour failed to provide reasons for refusal as required by section 19(3) of the Crimes Appeal and Review Act - as evidenced in the transcript. 4 His Honour failed to apply the legal principles relating to jurisdictional error …"

Interference with the Criminal Process

There is a long line of authority to the effect that the power of judicial review of decisions of inferior courts should not be exercised so as to interfere with the orderly conduct of criminal proceedings. In Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, Kirby P summarised (at 599-600) the principle as follows: "The High Court of Australia and this Court have repeatedly emphasised the undesirability of interference - whether by declaration or otherwise - in the conduct of criminal proceedings. Such interference is reserved to exceptional or special cases: see Sankey v Whitlam (1978) 142 CLR 1 at 22, 23, 24; Barton v The Queen (1980) 147 CLR 75 at 104; Lamb v Moss (1983) 76 FLR 296 at 307-308; 49 ALR 533 at 545; Bacon v Rose [1972] 2 NSWLR 793 at 797: Cain v Glass (No 2) (1985) 3 NSWLR 230 at 235. More than lip service must be given to injunctions of this kind. They are based upon the high public interest in the orderly conduct of criminal proceedings, which include the sentencing of persons convicted following a plea. They rest upon the avoidance of interruption of such proceedings by those who have access to funds and a determination to manipulate criminal prosecutions. The availability of appellate procedures following conviction and sentence and the possibility that many problems disappear, or are resolved, at first instance if only cases are allowed to take their ordinary course provide further reasons to restrain an over-enthusiastic response to interlocutory claims for judicial review of criminal proceedings." See also Chief Executive Officer of Customs v Jiang [2001] FCA 145; 111 FCR 395 at [7]-[12] per curiam (collecting the authorities).
Most of the authorities concern attempts by an accused person to interfere with committal proceedings or other proceedings where the accused has other avenues to pursue his or her complaints. As has been explained, the applicant has only a limited entitlement to seek review of a decision by the District Court to dismiss his appeal (should the District Court so decide). Nonetheless, there seems to be no reason in principle to adopt a different approach to proceedings which have the effect of fragmenting an ongoing appeal to the District Court from a Local Court conviction. Whether an application for judicial review is brought before or after the District Court resolves the appeal, an applicant seeking judicial review will have the same hurdle to overcome, namely the need to demonstrate jurisdictional error. If the District Court dismisses an appeal but commits a jurisdictional error in doing so, the aggrieved person will be able to challenge the decision after the proceedings in the District Court have been concluded.
It is difficult to see why this case could fall into the "exceptional" or "special" category justifying the intervention of this Court before the District Court appeal has concluded. The application for judicial review necessarily delays the hearing of the District Court appeal. Even if the applicant is able to show that the refusal to admit fresh evidence is affected by jurisdictional error, the conviction will stand unless the appeal succeeds. Of course, the appeal may succeed in any event, thus rendering the application for judicial review unnecessary. If the appeal is dismissed, the applicant will still be entitled to seek judicial review of the decision on the ground of jurisdictional error.
Counsel for the DPP did not contend in her written submissions that this Court should dismiss the Summons on the basis of the principle stated in Chow v DPP. Counsel frankly acknowledged that the contention should have been raised, but was not. In these circumstances, particularly as the applicant is unrepresented, it would be unfair to decide the application for judicial review on this ground.

The Applicant's Grounds

The applicant complains of four matters. These are the primary Judge's conclusions that: (i) leave should not be given to tender the exchange of emails between the applicant and his former solicitor; (ii) no direction should be made for Mr Younan to attend and give evidence in the District Court appeal; (iii) leave should not be given to require production of the Magistrate's Bench notes; and (iv) leave should not be given to tender the tape recording of the Local Court proceedings insofar as it records matters other than the applicant's evidence (the tape recording of which the primary Judge directed should be admitted as fresh evidence). In addition, the applicant complains that the primary Judge gave inadequate reasons for his refusal to grant the leave or make the directions sought in the First and Second Motions.

The Emails and the Solicitor

The applicant submitted that evidence of the email exchange between him and his former solicitor was relevant to his contention that the Magistrate's decision was affected by a reasonable apprehension of bias and a denial of procedural fairness. Similarly, the applicant said he wished to adduce evidence from his former solicitor to support that contention. There was nothing before this Court indicating the nature of the evidence the solicitor might give, other than what can be inferred from his email to the applicant.
We are prepared to assume (without deciding) that there may be circumstances in which a legal representative can give evidence showing that a Magistrate hearing a criminal case failed to have regard to submissions made on behalf of the defendant and, further, that such evidence might be probative of a reasonable apprehension of bias or want of procedural fairness on the part of the Magistrate. The difficulty facing the applicant is that the emails he wishes to tender in the District Court appeal are incapable of constituting probative evidence of bias, a reasonable apprehension of bias or a denial of procedural fairness. The exchange merely consists of the applicant making a suggestion to his former solicitor and the solicitor, in response, expressing an opinion that the Magistrate had decided the case before submissions and appeared to be reading the judgment. The opinion is irrelevant and inadmissible.
The proffered evidence is also irrelevant because it is neutral. There are many perfectly legitimate reasons why a judicial officer might read from notes in delivering an ex tempore judgment. Such notes might be prepared during the hearing, for example, to assist in recounting events in chronological order or to record the judicial officer's impressions of the evidence given by key witnesses. The fact that a judicial officer is reading from notes does not suggest a reasonable apprehension of bias or that there has been a denial of procedural fairness. The impression apparently gained by the solicitor (who happens to have been responding to a leading question posed by a client convicted of an offence) as to the Magistrate's decision making process carries the matter no further.
We should add that the transcript reveals that the applicant, in the course of discussions with the primary Judge, accepted that he (the applicant) would not be needing Mr Younan as a witness in the District Court appeal. The primary Judge would have been entirely justified in concluding that the applicant no longer pressed his claim that a direction should be made that the solicitor attend for the purpose of giving evidence or producing documents.
No error has been established in relation to the primary Judge's decision in relation to the emails and the attendance of the applicant's former solicitor. It is therefore not necessary to consider whether the alleged errors could be characterised as jurisdictional errors.

Bench Notes

The precise basis on which the applicant seeks the Bench notes of the Magistrate is not clear. His contention appears to be that the notes might show that the Magistrate had made up his mind before hearing oral submissions.
The short answer to this contention is that there was no material before the primary Judge that could have justified, much less compelled his Honour to find that the notes would or might support an inference that the Magistrate disregarded any submissions made to him on behalf of the applicant. The Magistrate's reasons were recorded (although they were not included in the Appeal Books) and they will be before the District Court when the appeal is heard. If the Magistrate's reasons reveal that the Magistrate failed to take into account significant evidence or did not address submissions made on the applicant's behalf, the applicant will be entitled to submit that the District Court should give the Magistrate's reasons little or no weight.
The applicant was unable to point to any material (other than the self-serving emails) before the primary Judge that suggests that the Bench notes would assist the applicant's appeal to the District Court. There was no error in the primary Judge's conclusion that he was not satisfied that it was in the interests of justice that the Bench notes constitute fresh evidence on the appeal. No question of jurisdictional error therefore arises.
The DPP submitted that even if the Bench notes were potentially relevant, the Magistrate could not be compelled to produce them. The Evidence Act 1995 (NSW) (Evidence Act) s 129(1) excludes evidence of the reasons for a decision made by a judge (including a magistrate) or the deliberations of the judge in relation to such a decision. The exclusionary rule applies to a document prepared by the judge: s 129(2). However the exclusionary rule does not apply to a proceeding that is by way of an appeal from, or judicial review of, a judgment, decree, order or sentence of a court: s 129(5)(c).
The DPP's submissions acknowledged that no reliance could be placed on the exclusionary rule stated in s 129 of the Evidence Act. Counsel for the DPP instead relied on the general law principle that a judge of a court of record cannot be compelled to testify as to the consideration which led him or her to the decision, or as to the manner in which the judge has exercised judicial powers: Zanetta v McCleary [1976] 1 NSWLR 230 at 239 (Samuels JA); Wentworth v Rares [1990] NSWCA 185 (Samuels JA) (setting aside a subpoena served on a court reporter and a Judge's associate seeking notes of an unrevised judgment delivered in court); Karmas v New South Wales Land and Housing Corporation [1999] NSWSC 157 (Dunford J).
The Local Court of New South Wales is a court of record: Local Court Act 2007 (NSW) s 7(1). The DPP's submission therefore appears to be correct. If so, it provides a further basis for refusing relief to the applicant in relation to the Magistrate's Bench notes. Since the matter was not fully argued, however, it is not necessary to express a final view on the DPP's submission.
We make an additional point. The primary Judge gave as a reason for refusing to order production of the Bench notes that the issue of apprehended bias was "well and truly past as the Magistrate is functus officio". If his Honour was saying that a question of apprehended bias on the part of a Magistrate can never be raised on an appeal under the CAR Act to the District Court, we are not to be taken as necessarily endorsing his Honour's view. While it is correct to say that the District Court is not undertaking a review of the magistrate's decision on grounds of, for example, procedural unfairness, material indicating a reasonable apprehension of bias (or even actual bias) might, in a particular case, lead the District Court to reconsider credit findings. However, that would not make the evidence proffered in this case admissible.

The Tape Recording

The primary Judge directed that the sound recording of the applicant's own evidence in the Local Court should be treated as "fresh evidence". The applicant submitted that the sound recording of other parts of the proceedings in the Local Court might be relevant to the District Court appeal. This submission appeared to rest on a misconception as to what is meant by the "demeanour" of a witness: cf Fox v Percy [2003] HCA 22; 214 CLR 118 at [29]-[30] (Gleeson CJ, Gummow and Kirby JJ). No error has been shown in the primary Judge refusing to make a direction that the sound recording of the proceedings other than the applicant's evidence be regarded as fresh evidence. No question of jurisdictional error arises.

Reasons

The primary Judge's reasons are brief, as is to be expected in an ex tempore judgment on interlocutory issues. The reasons adequately identify the basis for the conclusions his Honour reached. In particular, the reasons disclose why the applicant failed to obtain the entirety of the relief he sought in the First and Second Motions.

Costs

The applicant submitted that if this Court dismissed the Summons no costs order should be made in favour of the DPP because the application for judicial review was brought in the public interest. The Summons does not raise any issue of principle and the application to this Court cannot be said to have been brought in anyone's interests other than the applicant's. Accordingly, the Court ruled that costs should follow the event.

Orders

The orders made by the Court were as follows: 1 Direct that the first respondent be the Director of Public Prosecutions (NSW). 2 Direct under Uniform Civil Procedure Rules 2005 (NSW) r 59.3(4) that the District Court of New South Wales be the second respondent. 3 Dismiss the proceedings commenced under s 69 of the Supreme Court Act 1970 by way of summons in the Court. 4 Applicant to pay the Director of Public Prosecution's costs of the proceedings in 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. Decision last updated: 10 March 2015

Justices Act 1902(NSW)

(Repealed) Justices Legislation Amendment (Appeals) Act 1998(NSW)

(Repealed) Local Court Act 2007(NSW)

Justices Legislation Amendment (Appeals) Act 1998(NSW)

Legislation

Any person who has been convicted and sentenced by a Local Court is entitled to appeal to the District Court against the conviction or sentence, or both: CAR Act s 11(1). Sections 18 and 19 of the CAR Act relevantly provide as follows: "18 Appeals against conviction to be by way of rehearing on the evidence (1) An appeal against conviction is to be by way of rehearing on the basis 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. … 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: … (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. … (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."
The CAR Act defines "fresh evidence", in relation to appeal proceedings, to mean (s 3): "evidence in addition to or in substitution for the evidence given in the proceedings from which the appeal proceedings have arisen." Section 28(2) of the CAR Act provides that on a conviction appeal pursuant to s 18, the District Court may exercise any functions that the Local Court could have exercised in the original Local Court proceedings.
There is no right of appeal from a decision of the District Court on an appeal against a conviction in the Local Court. Section 176 of the District Court Act 1973 (NSW) provides that no adjudication by the District Court is to be removed by any order into the Supreme Court. Section 176 does not entirely exclude proceedings by way of judicial review, but limits relief to cases in which the applicant can demonstrate jurisdictional error by the District Court: Garde v Dowd [2011] NSWCA 115; 80 NSWLR 620 at [10] (Basten JA, Giles and McColl JA agreeing); Jamal v Director of Public Prosecutions [2013] NSWCA 355 at [13] (Gleeson JA, Meagher JA and Latham J agreeing). In addition, it is open to an aggrieved party in the District Court's criminal appellate jurisdiction to ask the District Court Judge to submit a question of law arising on the appeal to the Court of Criminal Appeal: Criminal Appeal Act 1912 (NSW) s 5B; Lavorato v Regina [2012] NSWCCA 61; 82 NSWLR 568 at [5] (Basten JA).

Nature of the District Court Appeal

In Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39, Mason P (Kirby and Hoeben JJ agreeing) pointed out (at [12]) that ss 18 and 19 of the CAR Act substantially re-enact ss 132 and 133 of the Justices Act 1902 (NSW), which were introduced by the Justices Legislation Amendment (Appeals) Act 1998 (NSW). His Honour also pointed out (at [14]) that the 1998 amendments significantly changed the procedures governing appeals to the District Court from criminal proceedings in the Local Court. Prior to 1998, subject to certain qualifications, the evidence was taken afresh and the matter determined afresh. The District Court conducted a hearing de novo.
Under the current provisions, the appeal is a rehearing on the Local Court transcripts and exhibits: s 18(1). Fresh evidence may be given by leave, if the District Court is satisfied it is in the interests of justice to do so: s 18(2). The District Court Judge is then to form his or her own judgment on the facts, recognising the advantage enjoyed by the Magistrate: Charara at [18]. However, the District Court must of necessity observe the "natural limitations" stemming from proceeding wholly or substantially on the transcript record: at [22].
"Fresh evidence" refers, at least usually, to evidence which was not called in the Local Court and was not reasonably available at the time of the Local Court hearing. Fresh evidence aside, witnesses who were called in the Local Court may be recalled on the appeal, but only if the judge is affirmatively satisfied in the manner set out in s 19(1). That is the means available to allow the District Court to reconsider issues of credit. The constraints in s 19(1) are not to be evaded by seeking to have the judge listen to an audio recording of the Local Court proceedings, or watch an audio-visual recording, on the basis that any record of the "evidence given in the original Local Court proceedings" satisfies ss 17 and 18(1).
In Charara, Mason P expressed the view (at [23]) that, although District Court Judges traditionally refrained from reading the reasons of the Local Court when considering a de novo appeal, that approach is no longer justified. The current provisions impliedly direct the District Court to consider the reasons given by the Local Court because otherwise the appellate function could not properly be performed. Mason P also observed (at [26]) that: "s18(2) is not available for the blanket trumping of s18(1). Subsection (2) is the exception rather than the rule, and the judge must turn his or her mind to the particular "fresh evidence" whose nature attracts the exceptional grant of leave." See too Landsman v R [2014] NSWCCA 328 at [20]-[21] (Beazley P, Hidden and Fullerton JJ agreeing).

At a glance

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Judgment (12 paragraphs)

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Legislation Cited (13)

Cases Cited (14)