Yenuga v Director of Public Prosecutions

[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.]

Judgment (ex tempore)

1. BRERETON JA: On 15 January 2021, Miller LCM in the Local Court at Cessnock convicted the applicant, Sreenivasa Mukherjee Yenuga, of three offences of a domestic violence character: first, intimidating his daughter (to whom, for the sake of convenience, I will refer as "RY") with the intention to cause fear of physical or mental harm; secondly, intimidating his now estranged wife (to whom I will refer as "SJ") with the intention to cause fear of physical or mental harm; [1] and thirdly, common assault of SJ. [2] In the course of his reasons, the Magistrate observed that the applicant was not a forthcoming witness; that the daughter was a compelling witness; that while there were some inconsistencies between the evidence of RY and of SJ, there was no collusion and his Honour accepted their evidence; and that the applicant admitted to having been angry at the time of the incident, and in fact was extremely angry, that anger having accumulated from an incident on the preceding day. The applicant was sentenced to two concurrent 30 month Community Correction Orders for the intimidation offences, together with a $700 fine for the first of them, and a conviction without penalty under Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A, was recorded in respect of the assault. An Apprehended Domestic Violence Order for a period of two years was also made.
2. On 8 April 2021, following a hearing on 31 March 2021, Girdham DCJ ("the primary judge") dismissed the applicant's appeal against conviction. In the course of her Honour's reasons, her Honour recorded: [3] "Fundamentally, the accused accepts that if the Court is satisfied that each complainant's account is both truthful and reliable, there is no issue that the evidence is sufficient to establish each charge."
3. Her Honour was satisfied that the evidence of each complainant was credible and reliable, and thus upheld the convictions and confirmed the penalties.
4. On 3 June 2021, following applications initially made by email by the applicant, Girdham DCJ refused to state a case for the Court of Criminal Appeal pursuant to Criminal Appeal Act 1912 (NSW) ("Criminal Appeal Act"), s 5B. In the course of her Honour's reasons, her Honour recorded that on the hearing of the appeal the applicant had been represented by Mr Koh, who expressly stated: [4] "If the Court was to find the facts as alleged by the Crown, it is not in dispute that those facts are capable of satisfying all of the elements of each count."
5. Mr Koh further stated that "this is an appeal on the evidence more than anything else." [5] Her Honour then added: [6] "No argument was advanced arising from any lay opinion, no application made to exclude irrelevant or inadmissible evidence and no application made for further cross‑examination of the complainant child. There was no argument that the legislation was either unconstitutional or discriminatory. There was no challenge to the definition in s 7(2) of the Crimes (Domestic and Personal Violence) Act."
6. Her Honour concluded that the issues formulated and posed as questions did not satisfy the requirements of the Criminal Appeal Act, s 5B, and were not suitable for submission; thus her Honour refused to state a case.
7. By Summons filed in this Court on 25 August 2021, the applicant seeks judicial review of the decisions of the District Court, both of 8 April 2021, dismissing his appeal against conviction, and of 3 June 2021, refusing to state a case. The Summons was filed within time so far as the judgment of 3 June 2021 is concerned, but was filed out of time so far as concerns the judgment of 8 April 2021. There is a sufficient explanation for why it was out of time in that respect. No objection was taken to the delay, and I will proceed on the basis that an extension of time may be granted for the filing of the Summons in respect of the 8 April 2021 judgment.
8. No right of appeal lies from a decision of the District Court on an appeal from the Local Court in a criminal matter. [7] Moreover, by reason of the provisions of District Court Act 1973 (NSW), s 176, judicial review is limited to the ground of jurisdictional error.
9. In his Summons, the applicant identified ten grounds upon which review of the judgments below were sought.
10. The first complained that both judgments were void, as they were given at a time when the Court was functus officio. This complaint is apparently directed to the provision of the written transcripts of the primary judge's oral reasons at times after those reasons had been delivered in open court. This ground is entirely misconceived. The relevant orders of her Honour were made in court on 8 April 2021 and 3 June 2021 respectively, accompanied by oral reasons given in court on those dates. All relevant judicial acts were performed on those dates. As is orthodox, her Honour revised the transcripts of her reasons before they were provided to the parties. That does not change the fact that the relevant judicial acts were performed on the dates to which I have referred. Insofar as it might be complained that the refusal to state a case occurred after the appeal judgment of 8 April 2021 had been given, her Honour was plainly entitled to consider the application for a stated case and deal with it after the substantive proceedings were disposed of. [8]
11. The applicant's second ground is one of denial of natural justice, on the basis of an apprehension of bias arising from an email sent by the primary judge's associate to the Director of Public Prosecutions and copied to the applicant on 24 May 2021. That email was sent after her Honour had received, by email, the applicant's request to state a case. In the email, her Honour's associate relevantly stated: "Her Honour has asked for the Crown to file written submissions about whether the questions identified by the Applicant are 'questions of law' arising on the appeal, and also any submissions as to whether, even if they are, there is a good reason why the questions should not be 'stated' for consideration by the Court of Criminal Appeal."
12. Thus, in response to the applicant's request that the primary judge state a case, assistance by way of submissions was sought from the Crown in respect of the questions which ought properly to have exercised her Honour's mind in considering the application for a stated case. As I have said, the applicant was copied on that email; no reasonable observer might from that transaction consider that her Honour might not bring an open and impartial mind to the resolution of the issues on which she sought submissions by sending that email. [9]
13. The third ground raised in the Summons is a complaint that her Honour refused to state a case under s 5B of the Criminal Appeal Act when requested to do so. Section 5B is in the following terms: (1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit. (2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow. (3) The Court of Criminal Appeal may, in connection with the determination of a question of law in the circumstances referred to in subsection (2), quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court.
14. That section creates an exception to the general proposition that no appeal lies from decisions of the District Court on conviction and sentence appeals from the Local Court. However, the stated case procedure is a confined one, and permits the Court of Criminal Appeal to consider pure questions of law only, and not questions of fact, nor mixed questions of law and fact. [10] Section 5B does not provide a general right of appeal and is not intended to provide a means of challenging the ultimate determination made or to be made by the District Court. [11] For the purposes of s 5B, a question of law is concerned with an issue involving a principle which is capable of general application, as opposed to a ruling which is dependent upon an assessment of particular facts and which is therefore not readily capable of wider application. [12]
15. There are differences in the authorities as to whether if a question of law is identified, a District Court judge is bound to state a case - at least unless the question is a frivolous or vexatious one - or has some further discretion as to whether or not to do so. [13] There is no occasion on this application to resolve those differences.
16. The applicant's request to state a case is comprised in a document of some 73 pages. That document does not identify with any precision any question of law in the sense in which that term is comprehended by s 5B. Subsequently, the applicant lodged further written submissions shortly before the hearing, para [2] of which purported to identify a number of questions, designated (a) through (n) respectively. It would have sufficed for the primary judge to state, as in the passage to which I referred above, that none of the questions raised in the applicant's application to her Honour involved a question which had arisen on the hearing of the appeal and could be determinative or affect the outcome of the appeal. Her Honour nonetheless went further and addressed many of the questions in a manner which disclosed that they were misconceived.
17. Some of the questions do no more than seek a general right of appeal and are incapable of giving rise to a question of principle of the kind referred to in s 5B. Question (a), which asked whether a case was made out under the relevant sections of the CDPV Act, and question (b), which asked whether the elements of those sections were proved beyond reasonable doubt, are examples of that.
18. In respect of question (c), which focused on the absence of any "pattern of violence", [14] her Honour rightly observed that while the Court is permitted to have regard to a pattern of violence, the absence of such a pattern does not mean that an offence is not committed.
19. Question (d) asked whether elements of the domestic violence offences were the same as common law assault. That was entirely irrelevant to the disposition of the appeal. Question (e) was consequential on question (d), as was question (f).
20. Question (g) asked whether certain evidence given by witnesses were lay opinions or conjectures, and therefore inadmissible. As her Honour observed, no objection to their admissibility was taken, and this was, therefore, not a question which arose at, and not one which could have affected the outcome of, the hearing of the appeal. In any event, it is far from apparent that the evidence about which complaint is made was anything other than evidence of observed fact or admissible lay opinion necessary to understand those observations of fact. Question (h) was consequential on question (g).
21. Questions (i), (j), (k), (l) and (m) all were, in one way or another, attempts to challenge the findings of fact made by the primary judge. Finally, question (n) focused on a particular factual and credibility issue, but that does not affect the position that it was a question of fact, not a question of law.
22. In the context of an appeal which the applicant's advocate indicated was factual and turned on the credibility of the witnesses, it is unsurprising that no material question of law could be identified. No error, let alone jurisdictional error, is apparent in the primary judge's refusal to state a case.
23. Ground 4 in the applicant's Summons complains that there was collusion between the witnesses, and that acting on a weak finding of credibility, where there was collusion between witnesses, amounted to acting without jurisdiction. The possibility of collusion and fabrication was referred to, particularly before the Magistrate and, more briefly, by the primary judge. Consideration as to whether evidence might be affected by contamination or collusion or has been fabricated is part of the fact‑finding process. Her Honour's decision to accept the evidence of the complainants as proving the case beyond reasonable doubt was a finding of fact. No error of law, let alone jurisdictional error, is apparent.
24. Ground 5 complains that her Honour relied unduly on credibility findings, without addressing doubts created by other evidence. Self‑evidently, that is a complaint about her Honour's findings of fact.
25. Ground 6 complains about the admissibility of the alleged lay opinion evidence, to which I have already referred in the context of the application for a stated case. For the same reasons, no error of jurisdiction arises in the way in which the lay evidence was received and acted upon, in the absence of any objection having been taken to it.
26. Ground 7, which complains that the judgments of the District Court are legally unreasonable insofar as they do not eliminate reasonable doubt, is self‑evidently an attempt to impugn the ultimate finding of the primary judge that her Honour was satisfied beyond reasonable doubt. It does not demonstrate jurisdictional error.
27. Ground 8 complains that specific intent was not proved by the prosecution. Specific intent is an element of the offences under the intimidation provision of the CDPV Act. [15] However, as noted above, before the District Court judge, it was conceded on behalf of the applicant that if the evidence of the complainants was accepted, all elements of the offences would be made out. That self‑evidently includes the element of specific intent. This ground therefore also fails.
28. Ground 9 repeats the complaint, advanced in the context of the stated case, that her Honour misconstrued the provision of the CDPV Act which permits the Court to have regard to any pattern of violence. As this issue was not raised at any stage in the appeal, it does not arise in any event. However, her Honour rightly construed the provision as providing that the Court may have regard to a pattern of violence, but that a pattern of violence is not necessary to proof of the offences in question.
29. Ground 10 raises what might be characterised as a number of constitutional complaints and objections. The applicant submitted that the relevant provisions of the CDPV Act (ss 7 and 13) were inconsistent with Commonwealth law and, thus, presumably invalid pursuant to Commonwealth Constitution, s 109. However, no Commonwealth law with which they were supposedly inconsistent was identified. [16] Additionally, no question of proportionality arises. [17] Complaint was made that there was a lack of consonance between CDPV Act, ss 7 and 13, and the principles in the Declaration on the Elimination of Violence against Women. [18] It is not by any means apparent that there is any such lack of consonance but, in any event, what the CDPV Act purports to do is to give effect to principles reflected in that provision, [19] not to enact or incorporate it as part of domestic law. As it is not part of domestic law, even if there were a lack of consonance that would have no effect on the validity of the provisions.
30. Ultimately, it is manifest that the applicant is aggrieved by the finding of the District Court as a matter of fact. He disputes the correctness of the primary judge's factual findings and, thus, of his convictions, but, there already having been an appeal from the Magistrate's decision to the District Court, the law gives him no further right of appeal from that decision on grounds of error of fact. The attempt to circumvent this by resort to s 69 of the Supreme Court Act 1970 (NSW) must fail.
31. I propose that the application be dismissed with costs.
32. BASTEN JA: I agree with Brereton JA.
33. GLEESON JA: I also agree with Brereton JA.
34. BASTEN JA: The orders of the Court are: 1. Grant the applicant an extension of time to apply for review of the judgment of 8 April 2021 up to the date of filing his Summons on 25 August 2021; 2. Dismiss the Summons seeking review of the judgments in the District Court of 8 April 2021 (dismissing his appeal) and of 3 June 2021 (refusing to state a case); and 3. Order that the applicant pay the Director's costs of the proceedings in this Court.

Endnotes

1. Both contrary to Crimes (Domestic and Personal Violence) Act 2013 (NSW) ("CDPV Act"), s 13(1), and see also the definition of 'intimidation' in s 7.
2. Contrary to Crimes Act 1900 (NSW), s 61.
3. Yenuga v R (District Court (NSW), (Girdham SC DCJ, 8 April 2021, unrep) at 4.
4. Yenuga v R (District Court (NSW), Girdham SC DCJ, 3 June 2021, unrep) at 2 ("3 June Judgment").
5. 3 June Judgment at 2.
6. 3 June Judgment at 2.
7. Mulder v Director of Public Prosecutions (Cth) (2015) 250 A Crim R 154 at 161 [32] (Gleeson JA; Ward JA and Johnson J agreeing); [2015] NSWCA 92.
8. Criminal Appeal Act, s 5B(2).
9. See, eg, Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); [2000] HCA 63.
10. Sasterawan v Morris (2007) 69 NSWLR 547 at 551 [10] (Basten JA; Grove J and Hidden J agreeing); [2007] NSWCCA 185.
11. R v Madden (1995) 85 A Crim R 367 at 370 (Hunt CJ at CL; Allen J and Dunford J agreeing).
12. Duarte v Director of Public Prosecutions (NSW) [2020] NSWCCA 351 at [29] (Bellew J; Hoeben CJ at CL and Harrison J agreeing).
13. See, inter alia, Forrest v Director of Public Prosecutions (NSW) (2020) 286 A Crim R 191 at 204-206 [46]-[55] (Basten JA; Leeming JA agreeing), 209 [71]-[73] (McCallum JA); [2020] NSWCA 162; Jankovic v Director of Public Prosecutions (NSW) (2020) 281 A Crim R 378 at 399-402 [89]-[95] (Barrett AJA; Macfarlan JA and White JA agreeing); [2020] NSWCA 31; Charara v Director of Public Prosecutions (NSW) (2001) 120 A Crim R 225 at 232-233 [31]-[35] (Giles JA; Powell JA and Ipp AJA agreeing); [2001] NSWCA; West v Commonwealth Director of Public Prosecutions [1999] NSWCA 398 at [13]-[14] (Priestley JA; Meagher JA and Beazley JA agreeing); Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 at 164-167 (Kirby P; Priestley JA and Powell JA agreeing); Ex parte McGavin; Re Berne (1945) 46 SR (NSW) 58 at 60-61 (Jordan CJ).
14. CDPV Act, s 7(2).
15. CDPV Act, s 13(3).
16. Tcpt, 19 November 2021, pp 5(15)-6(25).
17. Reference was made by the applicant to McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34.
18. UN GAOR, UN Doc A/Res/48/104 (20 December 1993).
19. CDPV Act, s 9(1)(c). 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: 01 December 2021