Yenuga v Attorney General

2d 569 (Or 1982) Yenuga v Attorney General of New South Wales [2023] NSWSC 107 Yenuga v Director of Public Prosecutions (NSW) [2021] NSWCA 293 Texts Cited: 1951 Refugee Convention, Art 1F(b) Category: Principal judgment Parties: Mr SM Yenuga (Applicant) Attorney General (NSW) (First Respondent) Supreme Court (NSW) (Second Respondent) Representation: Counsel: Mr SM Yenuga (Litigant in Person) Ms J Davidson (First Respondent)

Solicitors: Crown Solicitor's Office (NSW) (First Respondent) File Number(s): 2023/167419 Publication restriction: Pseudonyms adopted in accordance with substantive proceedings and s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2023] NSWSC 107 Date of Decision: 23 February 2023 Before: Button J File Number(s): 2020/233492

[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.]

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant sought judicial review of a decision and an order made by Button J, dismissing the applicant's request (or application) under Pt 7 s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act) for an inquiry into his convictions. The applicant was convicted in the Local Court of two counts of intimidation with intent to cause fear of physical harm contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act), and one count of common assault contrary to s 61 of the Crimes Act 1900 (NSW). The victims were his wife and daughter. All three convictions were subsequently confirmed on appeal to the District Court. In his s 78 application before Button J, the applicant claimed that the District Court's upholding of the convictions was "absurd"; the evidence (for a multitude of reasons) was not credible and could not reasonably be relied upon, nor could it otherwise prove the applicant's guilt beyond reasonable doubt; insufficient reasons were given; the applicant should not have been convicted under two separate pieces of legislation (as was repeated on appeal); and, due to the stigma that attaches to domestic violence, the criminal justice system had failed to analyse the evidence rationally. Button J found that there was no doubt or question about the applicant's guilt under any of the three offences per the requirements of s 79(2) of the CAR Act, and dismissed the application. On judicial review, the principal issues were: (i) whether Button J fell into jurisdictional error due to an unreasonableness in the level of satisfaction his Honour had under ss 78 and 79 of the CAR Act; (ii) whether Button J's dismissal of the application was unreasonable in so far as his Honour's reasoning was allegedly circular, biased and illogical; (iii) whether Button J fell into jurisdictional error by allegedly failing to consider that the fault and physical elements of the offences were not proved by the prosecution "because of various specified principles"; (iv) whether ss 7(1)(c) and 13 of the CDPV Act are constitutionally invalid; (v) whether Button J was biased and/or took into account an irrelevant consideration; (vi) whether Button J failed to adhere to the hearing rule limb of procedural fairness; (vii) whether Button J's decision was supported by no evidence or was irrational; (viii) whether Button J acted contrary to the scope of his statutory function in so far as he allegedly "asked the wrong question" in making his decision under ss 78 and 79 of the CAR Act; (ix) whether Button J fell into jurisdictional error for unreasonableness, in so far as his Honour allegedly failed to take into account that the decision of the District Court was based on personal biases of the applicant's solicitor; (x) whether Button J failed to consider the applicant's argument regarding an alleged error of the District Court to reconcile "inconsistencies" in the complainants' evidence; (xi) whether Button J fell into jurisdictional error by failing to consider that evidence should have been excluded; (xii) whether Button J fell into jurisdictional error by accepting alleged "word against word" evidence and his Honour's alleged "tacit approval" of the failure below to take into account a Liberato direction; and (xiii) whether the applicant should have been convicted for two offences for the same act, which allegedly failed to recognise "developments in the principle of double jeopardy". The Court (Griffiths AJA, Ward P and Adamson JA agreeing) held, dismissing the application for judicial review, with costs: As to issues (i), (ii), (ix), and (xii): (1) There was no unreasonableness in Button J's dismissal of the s 78 application. It was not unreasonable in meeting the requisite state of satisfaction under s 79 of the CAR Act, as the applicant claimed, for his Honour not to make a finding that the applicant's daughter, to whom some of the relevant intimidating threats were directed, did not have a 100 per cent understanding of Telugu: [34]-[35]. Nor was the decision unreasonable by reason of "illogical" or "circular reasoning". The applicant misconstrued Button J's reasoning and attempted to rely upon irrelevant case law: [38]-[39]. Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783; [2013] NSWCA 383; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28; FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 88 ALJR 754, considered. (2) The applicant did not raise any claim before Button J regarding the alleged personal biases of his legal representative in the District Court, thus no error arose from his Honour's failure to consider it: [67]. Even if it had been raised before Button J, any error by the legal representative could not provide a basis for finding his Honour fell into reviewable error: [69]. Button J did not otherwise "baldly deny" the case as one that was not "word against word"; this was a case involving two complainants whose evidence generally corroborated each other's account: [75]. Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, considered. As to issues (iii) and (xiii): (3) There was no jurisdictional error in Button J's alleged failure to consider that the prosecution had not proven the elements of the offence in relation to the statutory scheme under which the applicant was convicted. The applicant misstated the terms of the terms of s 13 of the CDPV Act and claimed Button J did not have regard to material that the applicant himself had not put to him: [41]-[42]. There was no issue of "double jeopardy" as also claimed - it is uncontroversial that one act can constitute two offences: [80]. Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57, considered. As to issue (iv): (4) The applicant's constitutional challenge was not raised before Button J, nor was it the subject of any prayer for relief in the amended summons. It otherwise misconstrues the provision and is based on a misunderstanding of the provision: [43]. Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24; Coleman v Power (2004) 220 CLR 1; [2004] HCA 39, considered. As to issues (v), (vi) and (vii): (5) Button J did not make an error of law, nor did his Honour take into account an "irrelevant consideration".His Honour had sufficient regard to the relevant extracts of the transcripts as annexed to the District Court judgment and both the applicant's and the first respondent's submissions below: [55]. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63, considered. (6) There was no procedural unfairness owing to the oversight. There was no apprehended bias nor a breach of the hearing rule: [59]-[60]. (7) The applicant misconceived what is meant by the "no evidence" ground at common law. Button J had regard to ample, and probative, evidence in reaching his determination: [63]-[64]. Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707, considered. As to issue (viii): (8) Button J correctly applied ss 78 and 79 of the CAR Act, forming his own conclusion regarding the daughter's understanding of Telugu: [66]. As to issues (x) and (xi): (9) Button J squarely addressed the "inconsistencies" in the complainants' evidence: [72]. There was otherwise no jurisdictional error (or error of law) arising from Button J's failure to consider whether evidence should be excluded: [77].

JUDGMENT

1. WARD P: I agree with Griffiths AJA.
2. ADAMSON JA: I agree with Griffiths AJA.
3. GRIFFITHS AJA: The applicant seeks judicial review of a decision and an order made by Button J on 23 February 2023 (see Yenuga v Attorney General of New South Wales [2023] NSWSC 107 (for convenience I will refer to the decision as primary judgment or PJ)). Button J dismissed the applicant's request (or application) dated 1 August 2022 under s 78 of Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). The request was for an inquiry into the applicant's convictions. Button J declined to deal with the request peremptorily (as permitted by s 79(3)) and proceeded to review the request substantively, but nonetheless declined to take either of the steps under s 79(1) because his Honour was not satisfied for the purposes of s 79(2) that "it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case". The applicant seeks orders in the nature of certiorari, mandamus and a declaration in relation to Button J's decision.
4. For the following reasons, the amended summons filed on 22 August 2023 will be dismissed, with costs.

Some background matters

1. The applicant was convicted in the Local Court of three offences arising from events which occurred on 10 August 2020 at the home of the applicant and his now estranged wife. Their daughter (then aged 10) and their son (then aged almost 4) also lived at the home and were present on the night in question. The applicant was convicted of two offences of intimidation intending to cause fear of physical harm (contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (CDPV Act)) in relation to both his wife and daughter. He was also convicted of an offence of common assault against his wife, contrary to s 61 of the Crimes Act 1900 (NSW) (Crimes Act). He was sentenced to a Community Correction Order for 30 months and ordered to pay a $700 fine for the first two offences. No penalty was imposed for the common assault pursuant to s 10A of the Crimes Act.
2. The applicant's appeal to the District Court was unsuccessful (see Sreenivasa Yenuga v R (District Court (NSW), Girdham DCJ, 8 April 2021, unrep) (DCJ)). The applicant then unsuccessfully sought the District Court Judge to state a case. His subsequent applications for judicial review in this Court and special leave to appeal in the High Court in relation to that matter were both unsuccessful (see respectively Yenuga v Director of Public Prosecutions (NSW) [2021] NSWCA 293 and [2022] HCASL 87).
3. The matters which resulted in the applicant's conviction, both at first instance and on appeal to the District Court, may be summarised as follows (drawing on the reasons of Girdham DCJ, the District Court Judge) and noting that, as will be developed below, the applicant challenges some of the findings.
4. Turning to some background facts, as at 10 August 2020 (when the relevant events occurred), the applicant and his wife had been married for approximately 11 years. As noted above, they had two children. Adopting the same pseudonyms as those used by Button J, I shall refer to the wife as "Wendy" and to the daughter as "Deborah".
5. The applicant was legally represented in the Local Court and the District Court. It is appropriate to focus primarily at this stage on the District Court proceeding (while not overlooking the requirement for the applicant to demonstrate reviewable error on the part of Button J). The District Court Judge said that she had reviewed a DVD of the interviews conducted by the police with both Wendy and Deborah on the night of the offences, together with an interview by the police with the applicant early the following morning. Her Honour said that she had read the transcripts with which she had been provided and she annexed as a schedule to her reasons for judgment a detailed summary of that evidence (which included references to parts of the transcript of the Local Court proceedings).

Button J's reasons summarised

1. At the time of filing his application pursuant to s 78 of the CAR Act (by email, on 1 August 2022), the applicant provided the Court with a copy of the application itself, together with Annexures A to D which annexed transcripts on which he relied, together with a zip folder titled "Judgments". The zip folder contained the transcripts of both the Local Court and District Court proceedings.
2. Button J stated at PJ[3] (see also PJ[46]) that he had not been provided with transcripts from the Local Court or District Court proceedings, nor did he have the entirety of the exhibits. It is common ground in this Court that this was wrong, because copies of both those transcripts had been included in the zip folder provided by the applicant by email to Button J. As will emerge, the applicant claims that this error constituted procedural unfairness, a claim which should be rejected for reasons which I will explain.
3. His Honour summarised the submissions made by the applicant in relation to the grounds of his Pt 7 application at PJ[50]-[68], and addressed those submissions (other than the complaint as to Deborah's understanding of the Telugu language) at PJ[69]-[80]. As to the issue of Deborah's understanding of the Telugu language, his Honour relied upon the contents of the applicant's submissions, including extracts of the applicant's interview with the police annexed to his application (as well as extracts from the Local Court transcript that were included in the annexure), in which the applicant said that the child could understand "eighty percent" or "most of" Telugu: at PJ[83]. Button J then noted at PJ[84] that other parts of the recorded interview were "less inculpatory" in that, as the annexure to the application indicated, the applicant's evidence then "moved away from his original position". Nevertheless, his Honour found that the applicant's own words in his police interview were significant because they strongly supported the proposition that the daughter was in a position to understand offensive words in that language: at PJ[84]. Accordingly, having regard to what the applicant said in his police interview, and as recorded by him in the annexure to his s 78 application, Button J said that he did not "experience any doubt or question based upon this particular aspect of the facility in the particular language of Deborah" (PJ[85]). This is a clear reference to the terms of s 79(2) of the CAR Act.

Consideration and determination of the judicial review application

1. The amended summons filed on 22 August 2023 contained 16 claimed errors, including a claim of constitutional invalidity which was raised for the first time before us. As the first respondent correctly pointed out, the amended summons is "discursive" and "at times difficult to understand". It appears, however, to be common ground that for the applicant to succeed he needs to establish either jurisdictional error, or arguably, error on the face of the record. I will have something more to say about those matters below. It was also common ground that principles of judicial review of administrative action apply to this proceeding because Button J was not exercising judicial power (see Patsalis v Attorney General for New South Wales (2013) 85 NSWLR 463; [2013] NSWCA 343 at [2] per Bathurst CJ, at [7] per Beazley P, agreeing with Basten JA at [22] and [32], and Buttrose v Attorney General (NSW) [2015] NSWCA 221 at [4] per Beazley P and Leeming JA).
2. The applicant represented himself in this Court. He has legal qualifications in India but has not practised as a lawyer in Australia. He provided lengthy written outlines of submissions both in chief (filed on 16 May 2023) and in reply (filed on 31 August 2023). He also made lengthy oral submissions in support of his case.
3. The first respondent filed an outline of written submissions on 24 August 2023 and his counsel, Ms Joanna Davidson, also made brief and focused oral submissions.
4. It is convenient to address each of the so-called grounds of judicial review in turn (as opposed to the order in which they were presented before us) and explain why none discloses reviewable error. For convenience, however, some of these grounds will be grouped where there are overlapping arguments.

Ground 1: unreasonableness as a result of "prevailing uncertainty" by the District Court concerning "understanding ability of the child witness"

1. Ground 1 claims that Button J fell into jurisdictional error "due to unreasonableness of his statutory satisfaction" under ss 78 and 79 of the CAR Act. As best understood, the applicant's complaint was that Button J erred in not finding that there was some doubt regarding the applicant's guilt because of "the prevailing uncertainty in the minds of the applicant, the mother and [the District Court Judge] as to [the] understanding ability of the child witness". The applicant claimed that the "inference of guilt" by Button J "on the basis of indeterminate and slender evidence" is unreasonable.
2. This ground appears to confuse the criminal standard of proof (referred to in paragraph (a) of the ground) with unreasonableness in administrative law (referred to in paragraph (b)). In any event, the claimed unreasonableness appears to be on the basis of there being a "prevailing uncertainty" on the part of Girdham DCJ as to "understanding ability of the child witness" and that, given this uncertainty, Button J should not have "[d]raw[n] the inference of guilt". The DCJ does not reflect any such "prevailing uncertainty" on Girdham DCJ's part. Her Honour accepted that Deborah's level of comprehension of Telugu was not as high as that of her mother and that this provided an explanation for the more detailed account given by her mother. Furthermore, Button J did not draw any inference of guilt. He was performing an assessment function for the purposes of s 79 of the CAR Act, noting that the Court's power to make a referral or direction under s 79(1) is enlivened only if the "gateway" in subsection (2) is "passed": Sinkovich v Attorney General of NSW (2013) 85 NSWLR 783; [2013] NSWCA 383 at [25] per Basten JA.
3. The applicant's contention that Button J's approach involved jurisdictional error (or an error of law) because there had to be a finding that his daughter had a 100 per cent understanding of Telugu is rejected. His Honour's approach was correct in law, having regard to his fair and balanced assessment of the applicant's own evidence on this issue. Moreover, it is important not to lose sight of the elements of the various charges, which did not in their terms rely upon the offensive words which the applicant admits he said in Telugu. Necessarily, therefore, the daughter's understanding of those particular and offensive words is largely beside the point. More importantly, there can be no complaint about the daughter's ability to understand what she said was a threat made by her father to slit her throat. Even though the applicant denied saying those words, his evidence was rejected. His daughter's evidence (together with that of her mother) was accepted. It is notable that the applicant himself repeatedly said that he always spoke to his daughter in English, not Telugu. Accordingly, her understanding of that dialect has no bearing on that particular threat.

Grounds 2 and 15: unreasonableness as a result of "recourse to credibility, circular reasoning, inductive inferencing [sic] and using hindsight bias"

1. It is convenient to deal with grounds 2 and 15 together. In brief, the applicant claims that the rejection of his review application was unreasonable and "violated several other legal principles and statutory criteria", citing Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28. In support of ground 15, the applicant also referred to FTZK v Minister for Immigration and Border Protection [2014] HCA 26; 88 ALJR 754 (FTZK). The applicant claimed that the District Court Judge had fallen into error (as did Button J) by applying illogical circular reasoning and by taking judicial notice of stereotyped behaviours.
2. For the following reasons, both grounds are rejected.
3. It is not clear how Button J is said to have had "recourse to credibility, circular reasoning, inductive inferencing, and using hindsight bias" (ground 2) or provided "illogical circular reasoning" (ground 15). Ground 2 appears to flow from the applicant's claim of his Honour "determining conflicts in evidence as normal without regard to particular circumstances". That mistakes his Honour's reasoning at PJ[89], where his Honour referred to "the fact that each prosecution witness generally corroborated the other, and did so in a way that featured natural inconsistencies". His Honour's reference to "natural inconsistencies" did not involve any failure to have regard to the circumstances of the offending. Rather, his Honour recognised that an aspect of the Crown case was that, as Girdham DCJ had found, there was "a general measure of consistency combined with some inconsistencies, entirely as one would expect in a natural, truthful versions (sic) of events from two prosecution witnesses": at PJ[40]. Her Honour had ultimately accepted that any inconsistencies between the applicant's wife and daughter were natural, and Button J did likewise, in the context of a "prompt delineation" (by each witness) of what the applicant was alleged to have said and done: at PJ[87]. This does not involve any circularity, inference or "hindsight bias".
4. The applicant's reliance on FTZK is also entirely misplaced. That case related to a very different context. The issue there concerned Art 1F(b) of the 1951 Refugee Convention, (in its intersection with s 36(2)(a) of the Migration Act 1958 (Cth)) which only applied to a person if there were "serious reasons" for considering that the person had committed a serious non-political crime outside the country of refuge. That is far removed from any of the language in the relevant provisions of the CDPV Act. This is not an isolated example of the applicant referring to numerous Australian and overseas cases, plucking from them a statement of principle made in entirely different legal and factual circumstances, and claiming that the principle applied to his case.

Ground 3: failure to consider that fault elements were not proved

1. This ground claims that Button J fell into jurisdictional error because his Honour failed to consider the fact that "fault elements or physical elements" were not proved by the prosecution because of various specified principles, including those relating to what the prosecution had to prove under s 13(3) of the CDPV Act. The applicant's claim seemed to be that, in his case, it could not be proven that he intended to intimidate his daughter because he knew that his daughter did not understood Telugu fully, or being uncertain of her understanding ability, he still used the Telugu language. He claimed that the fault element of his knowledge that his conduct was "likely to cause fear" was not made out when the understanding of threats by the child "was a remote chance".
2. For the following reasons, this ground is rejected. First, as to the applicant's claim that the prosecutor failed to prove that the applicant knew that his conduct was likely to cause fear in his daughter within the meaning of s 13(3) of the CDPV Act, this claim seems to rely on the applicant's assertion that his daughter did not have a 100 percent understanding of Telugu. The claim is misconceived having regard to what is said at [27] and [35] above on this subject.
3. Secondly, it appears that the applicant claims that Button J failed to consider that "the fault element of knowledge of the applicant that his conduct (sic) likely to cause fear was not proved when the understanding of threats by the child was a remote chance", having regard to Simpson v The Queen (1998) 194 CLR 228; [1998] HCA 46 (Simpson) and Boughey v The Queen (1986) 161 CLR 10; [1986] HCA 29 (Boughey). Before Button J, the applicant did not rely on any principle drawn from Simpson or Boughey, or concerning the construction of s 13(3) of the CDPV Act. Accordingly, no jurisdictional error could arise by any failure to consider such an argument.

Ground 4: allegedly unconstitutional "process of mixing lawful and unlawful facts"

1. The applicant appears to raise a constitutional challenge to s 7(1)(c) of the CDPV Act (being part of the definition of the word "intimidation"). This matter was not squarely raised before Button J, and is not the subject of any prayer for relief in the amended summons. The argument also reflects a misunderstanding of s 7(1)(c) and should be dismissed.
2. The drafting of ground 4 took up almost two pages of single-spaced typing in the amended summons, much of it being in a narrative and argumentative form. At one point, the following statement appears in ground 4: …The process of mixing lawful and unlawful facts without distinguishing them reduces the proof beyond reasonable doubt to a ridiculing level of standard of proof. In other words, the facts that are capable of causing doubt become incapable of causing doubt due to mixing of lawful and unlawful acts and proving beyond reasonable doubt by the courts is a mockery of the court's function. Thus S 7(c) of Crimes (domestic and Personal Violence) Act 2007 offends the Constitutional integrity of the Courts as decided in Kable v Director of Public Prosecutions (NSW) [1996] HCA. Section 13 of the Act mandates lawful acts are to be taken as punishable acts regardless of the nature of the acts. As held by United States Supreme Court in Southeastern Fisheries 453 So.2d at 1353, "A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application"…
3. In light of that statement, the first respondent, acting presumably out of an abundance of caution, issued notices under s 78B of the Judiciary Act 1903 (Cth). No other Attorney General sought to intervene.
4. In oral address, the applicant appeared to expand his constitutional argument so as to include not only a challenge to the validity of the definitional provision in s 7(1)(c) of the CDPV Act, but also to s 13 (which is the substantive provision that creates the offence of stalking or intimidation with intent to cause fear of physical or mental harm).
5. In addition to relying on Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; [1996] HCA 24 (Kable), the applicant said in oral address that he relied upon the High Court's decision in Coleman v Power (2004) 220 CLR 1; [2004] HCA 39 at [188]. The passages in that case to which he referred are directed to the implied freedom of political communication. Those passages need to be read in that context. I do not consider that they have any wider application or have any relevance to the constitutional validity of the relevant provisions in the CDPV Act.

Ground 5: bias and taking into account "irrelevant facts"

1. Ground 5 alleges that Button J took into account an irrelevant consideration or was biased as a result of his statements at PJ[3] and [46], concerning the material before him and the absence of the District and Local Court transcripts. For the following reasons, this ground is also rejected.
2. First, Button J's error (or oversight) in stating that the transcripts were not before him is an error of fact, not law.
3. Secondly, this error of fact does not mean that his Honour took into account an irrelevant consideration in the sense described in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39; [1986] HCA 40.
4. Thirdly, even if (contrary to the above) the error is properly described as one of law, the applicant failed to establish its materiality. There were extensive extracts from or references to the transcript of the Local Court in: 1. the annexure to the applicant's own application for a s 78 review; 2. the annexure to the DCJ; and 3. the Attorney General's submissions in the proceeding before Button J.
5. There is no reason to doubt Button J's concluding statement that he had reflected upon "all of the material and submissions that have been placed before me by both parties" (at PJ[90]).
6. The applicant was asked at the hearing to identify any part of the transcripts other than those referred to in the material described above which supported his case. He was unable to do so other than to say in a general way that Button J needed to have the entirety of those transcripts in order to determine the application. This falls far short of establishing the requisite materiality of any error, having regard to authorities such as Nathanson v Minister for Home Affairs [2022] HCA 26; 96 ALJR 737.
7. Turning now to the applicant's claim of procedural unfairness, Button J's error regarding the transcripts not being before him does not satisfy the requirements for establishing apprehended bias, as established in cases such as Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [7] (Ebner). Application of the Ebner test first requires the identification of what it is said might lead a decision maker to decide a case other than on its legal and factual merits. Secondly, there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can be assessed: Charisteas v Charisteas (2021) 273 CLR 289; [2021] HCA 29 at [11]. The applicant failed to point to any logical connection, as required by the second step. As the first respondent pointed out, this is perhaps unsurprising given the difficulty of articulating a logical connection between a misunderstanding of whether the transcripts were available for the purpose of deciding the Pt 7 application and a feared deviation from impartiality on Button J's part.

Ground 6: breach of procedural fairness

1. Ground 6 contends that Button J failed to bring to the applicant's attention "the critical issue or factor on which the Supreme Court is likely to turn", for the purpose of the hearing rule limb of procedural fairness. It appears that the relevant "critical issue or factor" is said to be the "absence" of the transcripts.
2. For the reasons given immediately above, there was no procedural unfairness having regard to the extensive material based on the transcripts which was before Button J. Nor was the entirety of the transcripts the critical issue. Moreover, as explained above, there is in any event a fundamental problem of materiality.

Ground 7: no evidence/irrationality

1. Ground 7 asserts that Button J based his decision on "no evidence" by relying on the "information submitted in the application", stating that "rational and logical conclusions cannot flow from limited extracts in annexures submitted by the applicant". The applicant claimed that Button J's decision was based on no evidence as his Honour "relied on the information submitted in the application which lacks probative value when removed from the full evidence". This appears to be a further complaint that Button J was wrong in stating that he did not have copies of the transcripts. What is said above on this subject is repeated here.
2. Furthermore, as the first respondent correctly pointed out, the applicant has misconceived what is meant by a "no evidence" ground at common law. Such a ground cannot succeed where there is even a skerrick of evidence for the relevant finding: Australian Retailers Association v Reserve Bank of Australia (2005) 148 FCR 446; [2005] FCA 1707 at [575] per Weinberg J. Button J relied not only on the material in the Pt 7 application, including the transcript extracted in the parties' submissions, but also on the judgments provided to him (including the lengthy annexure to the DCJ), which constituted probative evidence for the purposes of his determination (noting again that in determining the Pt 7 application he was performing an administrative function persona designata, not a judicial function to which the law of evidence applied: see Attorney-General (Cth) v Huynh [2023] HCA 13; 97 ALJR 296 at [17], [132]). Nor was it irrational or unreasonable for Button J to proceed on the basis that the applicant, in preparing the annexures to his Pt 7 application, had extracted those portions of the evidentiary material that he relied upon.
3. Ground 7 is rejected.

Grounds 8 and 14: asking the wrong question

1. These grounds may conveniently be addressed together because both of them allege that his Honour misunderstood his statutory function under the CAR Act and/or asked himself the wrong question on the basis that he "alter[ed] the findings of the District Court" in relation to his daughter's understanding of Telugu language.
2. His Honour did not "alter" the District Court's finding, but rather formed his own conclusion as to whether Deborah's understanding (or otherwise) of Telugu gave rise to any "doubt or question" for the purposes of Pt 7 of the CAR Act: at PJ[81]-[85]. His Honour's consideration of his own state of satisfaction for the purposes of ss 78 and 79 of the CAR Act reflected an accurate understanding of his statutory task.

Ground 9: unreasonableness as a result of failure to take into account an argument

1. The unreasonableness alleged in ground 9 flows from an alleged "failure to take into account that the decision of the District Court was a product of personal biases of the applicant's solicitor". This was not an argument raised before Button J and his Honour therefore could not have fallen into jurisdictional error by failing to consider it.
2. In addition, the applicant's reliance on what was said in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 regarding what the applicant describes as a lack of "inevitable (sic) and intelligible justification", is another example of the applicant seeking to transplant a statement of general principle which is appropriate in one context to an entirely different context.
3. Any error on the part of the applicant's solicitor (and I do not suggest that there was in fact any such error) in the submissions he made either in the Local Court or the District Court could scarcely provide a basis for concluding that Button J fell into reviewable error in making his s 79 decision. All the more so when the point was not even raised before his Honour.

Grounds 2, 10 and 12: failure to take into account that courts below made insufficient findings of fact

1. The applicant grouped grounds 2 and 12 in his oral address and it is convenient also to add ground 10. Ground 2 has been rejected for reasons given above.
2. Ground 10 appears to claim that Button J failed to consider the applicant's argument that the District Court did not resolve the "inconsistencies" in the complainants' evidence to which he pointed: see his Honour's reasons at PJ[68].
3. Button J did not fail to consider this argument. Indeed, his Honour addressed the adequacy of the District Court Judge's reasons at PJ[72]. He found that the concept of indispensable intermediate facts had no application (see at PJ[74]). His Honour also described the inconsistencies between the complainants' accounts to be "natural" (at PJ[89]). His Honour adequately addressed the applicant's claims regarding inadequacies in the fact finding process in the District Court.
4. In oral address, the applicant also complained that no Liberato warning (see Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66) had been given with respect to the complainants' evidence. This complaint could scarcely ground jurisdictional error on the part of Button J in circumstances where no such warning had been requested in either of the two lower courts.
5. The applicant also criticised what Button J said at PJ[89]: Finally, of course, proof of criminal allegations beyond reasonable doubt is not a matter of simplistically "adding up" the number of witnesses on this side or that side of the Bar table. Even so, the fact that each prosecution witness generally corroborated the other, and did so in a way that featured natural inconsistencies, is important. This was not a "word against word" criminal prosecution based upon the evidence of a single witness, contradicted by the applicant on oath.
6. This criticism was based on a misreading of that paragraph. In particular, the applicant gave insufficient attention to the final sentence of that paragraph, where his Honour made plain that the applicant's circumstances did not simply involve contrasting evidence given by a single witness which contradicted the applicant's evidence. Here, the circumstances involved evidence given by two complainants which were found to be reasonably consistent with each other notwithstanding some acknowledged "minor" and inconsequential inconsistencies which were explicable on the basis, for example, of Deborah's youth and the emotional reactions caused by the applicant's conduct.

Ground 11: failure to consider "presence of prejudicial facts in the evidence"

1. This ground alleges jurisdictional error on the basis of a failure to consider that evidence should have been excluded pursuant to s 137 of the Evidence Act 1995 (NSW). This matter was raised in ground 10 of the s 78 review application to Button J. The applicant contended that the complainants' evidence should have been excluded under s 137 of the Evidence Act because of its alleged "low probative value" and lack of an "inner causal nexus". The alleged inconsistencies in the complainants' evidence were adequately addressed by Button J at PJ[89]. It is also significant that the material before Button J did not indicate that any issue regarding s 137 of the Evidence Act was raised by the applicant's legal representative in the proceeding before the District Court Judge. Accordingly, no jurisdictional error (or error of law) has been established in relation to Button J.

Ground 13: "word against word" and "tacit approval" of failure to take into account a Liberato direction

1. This ground relates to his Honour's reasons at PJ[89], alleging that Button J's decision was unreasonable "for baldly denying the case…as not a case of 'word against word'". As pointed out above, this reflects a misunderstanding of his Honour's reasons at PJ[89], where his Honour distinguishes between a "word against word" case involving a single complainant contradicted by a criminal defendant on oath, and the present case, in which the applicant's wife and daughter generally corroborated each other's account. His Honour was not making any comment as to failure of the lower courts to give a Liberato-type direction (in any event, Girdham DCJ refers to part of such a direction on p 4 of her reasons on the appeal and see also her Honour's consideration of the evidence at p 15).
2. No jurisdictional error (or error of law) is made out on the part of Button J.

Ground 16: failure to recognise "developments on the principle of double jeopardy"

1. The applicant chose not to elaborate upon this ground in oral address but said that it was pressed. The ground appears to be a repetition of the applicant's argument before Button J that he should not have been convicted under two separate pieces of legislation: see at PJ[66]. As his Honour correctly noted at PJ[75] in rejecting the argument, "since the decision of the High Court in Pearce v the Queen (1998) 194 CLR 610; [1998] HCA 57, it has been abundantly clear that one act can constitute two offences".
2. The ground is baseless and is rejected

Conclusion

1. For these reasons, I propose that the amended summons be dismissed, with costs.

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