Young v Director of Public Prosecutions

The proceedings in the District Court

1. On the same day as the Local Court convicted and sentenced Mr Young, he lodged a conviction appeal pursuant to s 11(1) of the Appeal and Review Act. Lodging that appeal stayed the execution of the conditional release order, by operation of s 63(2) of the Appeal and Review Act.
2. The appeal was initially listed for hearing on 10 March 2021 before Judge McLennan SC. However, on the morning of the hearing Mr Young filed written submissions and an affidavit in which he made allegations regarding the conduct of Mr Walsh and the prosecutor. His Honour granted leave to Mr Young to rely on the affidavit and submissions, but adjourned the matter for mention on 14 May 2021 to enable the DPP to obtain responsive evidence. On 14 May 2021, the DPP filed an affidavit of Mr Walsh and an affidavit of Senior Constable Ferreira, the prosecutor in the Local Court, and provided copies to Mr Young. The matter was listed for hearing on 27 September 2021.
3. In advance of the hearing, Mr Young filed a notice of motion dated 20 September 2021 ("the District Court Motion"), seeking 18 orders. Mr Young contended that he had promptly alerted the Local Court, his representative and the prosecutor of his "extreme" disability of deafness and that he required a hearing ring to be able to stand trial and hear and comprehend the proceedings properly. The orders he sought detailed his contention that in proceeding without making reasonable adjustments there had been non-compliance with s 6(4) of the Disability Discrimination Act. It followed, in his submission, that ss 5 and 6 had been contravened (which respectively define direct disability discrimination and indirect disability discrimination for the purposes of the Act). Mr Young alleged that Mr Walsh and the prosecutor were 'persons' for the purposes of s 122 of the Disability Discrimination Act and could therefore be taken to have contravened ss 5 and 6, which by virtue of s 12A of the Act constituted criminal conduct. The transcript of the hearing was the product of this criminal conduct and could thus be characterised as "proceeds of crime" which should therefore "be stricken from the record" and the court file.
4. In the document Mr Young prepared for the District Court, he contended, in summary, that the trial was unfair on a number of bases. He submitted that: he was deprived of legal counsel and discriminated against due to his deafness; his representative was negligent, engaged in professional misconduct, failed to follow instructions and was guilty of a criminal offence under the Disability Discrimination Act and s 319 of the Crimes Act; and the prosecutor engaged in misconduct because he failed to serve exculpatory evidence and brought the prosecution for an improper purpose of intimidating him. On the issue of self-defence, Mr Young submitted that the Magistrate erred in finding that his response was not reasonable and that self-defence was not made out.
5. On 27 September 2021, the District Court, constituted by Judge McLennan SC, heard the appeal. Mr Young appeared by audio-visual link. At the outset of the hearing, Mr Young referred to the District Court Motion and noted that his cross-examination of Mr Walsh and Senior Constable Ferreira, "would probably tend to touch on details in that notice of motion and tend to prove the points raised". Judge McLennan SC noted that he had the District Court Motion before him, which he described as seeking "the making of various orders on the appeal".
6. Mr Young cross-examined Mr Walsh at some length, on matters including his knowledge of the applicant's hearing difficulties prior to the Local Court hearing. Mr Walsh maintained what he said in his affidavit about the basis on which he said his instructions about Mr Young's lack of hearing capacity were fresh. However, he accepted that he saw Mr Young cupping his ears during the Local Court hearing. Mr Young also put to Mr Walsh that he had not acted in accordance with his instructions for the conduct of the hearing and had failed to make requests for disclosure of evidence (both of which Mr Walsh denied). Mr Young then cross-examined Senior Constable Ferreira on matters including his knowledge of Mr Young's hearing difficulties during the Local Court hearing, and the collection and disclosure of video evidence prior to the hearing. Senior Constable Ferreira could not recall whether Mr Young was cupping his ears during the hearing.
7. After hearing submissions from Mr Young, his Honour reserved and gave judgment on 8 October 2021, dismissing the appeal pursuant to s 20(1)(b) of the Appeal and Review Act and confirming the orders of the Local Court. His Honour summarised the applicant's allegations as follows: "1. The hearing in the Local Court was unfair and the appellant was disadvantaged by the absence of a hearing loop to compensate for his audio disability. 2. The hearing was conducted incompetently by his solicitor. 3. The prosecutor failed to disclose exculpatory material. 4. The learned magistrate was wrong in concluding that the appellant's conduct was not a reasonable response to the situation he believed he was facing. 5. The learned magistrate was also wrong in concluding that the applicant acted intentionally or recklessly in respect of any of the alleged assaults or damage."
8. In relation to the first allegation, his Honour concluded that the conduct of the hearing did not amount to a denial of natural justice, nor did it create a risk that an innocent person was convicted. His Honour did not determine whether the Disability Discrimination Act applied to State courts because his Honour was of the view that, in any event, reasonable adjustments were made to overcome Mr Young's disability (within s 6(4) of that Act). His Honour referred in this context to: 1. Mr Young's evidence on oath in the Local Court that he had read the statements of the witnesses which were tendered; 2. the playing in Court of the mobile phone footage; 3. the adjustments to the seating arrangements that were made at Mr Young's request and suggestion, following which, on his review of the transcript, there was no point where Mr Young indicated to the Court that he could not hear; 4. the only reference to a disability affecting his understanding of proceedings was when Mr Young referred to a horse having kicked him in 2012 which had left him, in his words, "a little bit slow"; 5. Mr Young's answers in cross-examination were responsive; and 6. Mr Young did not indicate to the Magistrate that he was not following the reasons for the decision even though he was invited to say so at the outset.
9. His Honour stated that while the position may not have been perfect from Mr Young's point of view, that was not the test. In his Honour's formulation, "[t]he question is whether the proceedings were so unfair as to amount to a denial of natural justice, or perhaps were conducted in such unfair circumstances as to create a risk that an innocent person has been convicted". His Honour was not satisfied that the circumstances in which the hearing was conducted amounted to a denial of natural justice or created the risk to which his Honour referred. Having reached that view, his Honour considered it unnecessary to consider the conflict that was "suggested by the appellant concerning his asserted instructions [to] Mr Walsh and Mr Walsh's evidence concerning his understanding of the extent of the appellant's hearing disability".
10. As to the second allegation (see [32] above), his Honour concluded that the forensic decisions that Mr Walsh made about the conduct of the Local Court hearing were not negligent. The mobile phone footage was, in his Honour's view, "powerful evidence" for the prosecution, in the face of which little could be gained from cross-examining those who were present on the day. His Honour found that Mr Walsh had advised Mr Young to that effect, and that Mr Young had accepted his advice at that time.
11. His Honour also dismissed Mr Young's third allegation, as to prosecutorial misconduct, finding that all relevant information was disclosed and the prosecution was not brought for an improper purpose.
12. On the fourth issue of self-defence and the reasonableness of Mr Young's response, his Honour agreed with the Magistrate that Mr Young's actions on the day, in resorting to violence in respect of persons and property, were not a reasonable response to the circumstances as he perceived them to be and was satisfied that the prosecution had established that beyond reasonable doubt.
13. On the final issue, which related to the mental element of the offences, on the s 195 charge, his Honour was satisfied, having watched the footage, that the risk of damage to the boring machine was present in Mr Young's mind. The proposition that he would not have had a realisation of that possibility "cannot be accepted". As to the assault charges, his Honour was satisfied that the evidence demonstrated that in each case Mr Young had the requisite intention.

The application for review of the District Court's decision

1. It is apparent from Mr Young's opening brief document, his affidavit, and his annexing of the District Court Motion to the Summons, that his central focus in this application was, again, what occurred in Local Court. In the opening brief, Mr Young described his "appeal" as raising a number of fundamental questions. Mr Young took issue with the continuation of the Local Court hearing in circumstances where the Court and Mr Walsh were advised that he had a 'major disability' affecting his ability to hear, understand and actively participate. He contended that the Court did not alleviate that disability as required by the Disability Discrimination Act or adjourn the trial; and it was necessary to prove that it was reasonable to continue the trial in the face of his disability (referring to s 6 of the Disability Discrimination Act). Mr Young also reiterated that Mr Walsh was negligent, acted in bad faith, violated the uniform rules of conduct or committed perjury or an act of malpractice, relying on the emails to which I referred at [19].
2. Mr Young appeared in this Court by telephone. He indicated that he could hear the Court and counsel appearing for the DPP. Mr Young made oral submissions in chief and in reply to the oral submissions of counsel for the DPP, the latter of which extended in some respects beyond responding to what counsel had said. Mr Young likened his situation to the circumstances in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 ("Dietrich"), in terms of his capacity to participate. He submitted that the lack of hearing equipment in the Local Court, which meant he could not hear the proceedings, could not be justified given the prevalence of hearing loss issues in the community. He relied upon the hearing test that he had tendered in the District Court to evidence his own hearing difficulties.
3. Mr Young submitted that the District Court had not addressed the District Court Motion (see [28] above). He also submitted that s 6(4) of the Disability Discrimination Act required the Local Court, if it was to proceed notwithstanding his objections, to "put on the record" why it was going to proceed and detail the steps it had taken to remedy the issue. The evidence underpinning that finding needed to be proven to the criminal standard.
4. Mr Young submitted that Mr Walsh acted incompetently in that he failed to seek an adjournment and did not call some of the witnesses, which should have been taken into account in relation to procedural fairness. He also submitted that the District Court should not have proceeded on the basis of the written transcript as it was "unlawful", on the basis that it was produced during the Local Court proceedings which involved a denial of procedural fairness. Additionally, the Local Court had not released the audio tape of the proceedings which (he contended) would have revealed him telling Mr Walsh that he could not hear.
5. In the course of his submissions, this Court asked Mr Young, by way of clarification, whether he was submitting that he encountered difficulties with his hearing in the District Court proceedings. Mr Young replied that he was put in a special room with hearing equipment which did not work, and that he had brought that to the Court's attention on a number of occasions. He acknowledged, however, that the final hearing on 27 September 2021 took place by audio visual link. He said that "even in that hearing" he had trouble hearing, "but … I wanted to get it behind me". Mr Young also accepted that he did not make an application under s 19 of the Appeal and Review Act for the witnesses from the Local Court to be recalled, saying that he was advised by the Registrar that witnesses in re-hearings were "frown[ed] on". He acknowledged that he "probably should have pressed the issue".

Consideration

1. The errors that Mr Young raised in the District Court's determination of his appeal were limited to its reliance on the transcript of the Local Court hearing on the basis that it was the product of an unfair, if not unlawful and/or criminal, procedure, and its alleged failure to consider his Notice of Motion. In so far as Mr Young submitted orally that he experienced hearing difficulties in the District Court, he did not point to any passage in the transcript of the 27 September 2021 hearing to support that contention. The DPP also reviewed the District Court transcript for any passages where Mr Young had raised a difficulty with hearing the proceedings and found nothing of that character. My own review of the transcript did not reveal any passages of that nature.
2. I did not understand Mr Young to submit that the arguments he made about the Local Court hearing affected the District Court's jurisdiction to hear and determine his appeal, but for abundant caution I note that such a submission would be answered by what Meagher JA said in Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 at [24] (Beazley P and Macfarlan JA agreeing) ("Morgan"): "Under [the Appeal and Review Act], s 11, the District Court has jurisdiction to hear and determine an appeal against conviction or sentence (or both) by a person 'who has been convicted or sentenced by the Local Court'. In construing such a provision, references to 'conviction' (and persons 'convicted') are presumed to include purported convictions that are liable to be set aside as made without jurisdiction (and persons so convicted)."
3. However, in continuing to take issue with what occurred in the Local Court, in particular the alleged unfairness in the procedure that Court adopted, Mr Young's submissions were premised on the Local Court's decision continuing to have operative effect. The nature of an appeal from the Local Court to the District Court is of significance to that premise. Section 18 of the Appeal and Review Act provides that an appeal is by way of rehearing, on the basis of evidence given in the Local Court proceedings, although fresh evidence may be adduced with leave. I have referred above to the question that was asked of Mr Young about why he did not apply to call the witnesses from the Local Court trial on his appeal, his response to which acknowledged that avenue was available and that he "probably should have pressed the issue".
4. Relevantly for present purposes, the Appeal and Review Act provides that the District Court may determine an appeal against conviction by setting aside the conviction (s 20(1)(a)) or by dismissing the appeal (s 20(1)(b)). The effect of the District Court having exercised its appellate jurisdiction is that the orders it makes supersede the orders of the Local Court: Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121 at [52]; Rahman v Director of Public Prosecutions (NSW) [2023] NSWCA 1 at [35]. At that point, it is "too late" to seek an order in the nature of certiorari in respect of the orders of the Local Court: Jamal at [52]; Firth v Director of Public Prosecutions [2018] NSWCA 78 at [25] (Basten JA, McColl JA and Barrett AJA agreeing). As McColl JA explained in Dyason v Butterworth [2015] NSWCA 52 at [35], referring to Wishart v Fraser, the judgment of the District Court operates "as a judicial determination by a competent and higher authority that the Magistrate's order was correct and 'holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary'". Her Honour continued: "Further, as an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an "apparent legal effect" it will not be available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 88 ALJR 52 (at [25]) per French CJ, Crennan, Bell, Gageler and Keane JJ."
5. In oral submissions, counsel for the DPP drew this Court's attention to the statement of Basten JA in Garde v Dowd [2011] NSWCA 115 at [14], to the effect that orders made in the Local Court are not irrelevant, because "if the order exceeded the jurisdiction of [the Local Court], a challenge to the order made by the District Court, on the grounds of the same jurisdictional error, would be available". However, as counsel for the DPP submitted, it does not follow from that statement that an applicant may judicially review a District Court decision on the basis of (relevantly) an alleged denial of procedural fairness in the Local Court. To the contrary, as Meagher JA clarified in Blissett v Director of Public Prosecutions (NSW) [2021] NSWCA 253 at [27] (Gleeson JA and Simpson AJA agreeing): "As was observed in Garde v Dowd, a challenge to an order of the District Court may be made on the basis that it made the same jurisdictional error as was made in the Local Court. The circumstances in Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 at [30]-[31] provide an example." (Emphasis added.)
6. The case of Morgan, to which Meagher JA referred, involved the District Court dismissing the applicant's appeal from her conviction in the Local Court on the merits, in circumstances where the Local Court did not have jurisdiction to hear that charge (see [9]). Meagher JA concluded that having regard to the absence of jurisdiction in the Local Court to hear the charge, the District Court's jurisdiction was limited to setting aside the conviction on that basis. In dismissing the appeal on the merits, the District Court had exceeded the jurisdiction conferred on the Local Court: at [30]-[31].
7. In the present case, Mr Young does not make any complaint about the procedure by which the District Court heard his appeal. The transcript of that hearing indicates that Mr Young cross-examined Mr Walsh and Senior Constable Ferreira on their affidavits at some length. The Court then viewed three video clips. Mr Young then made submissions expanding upon the outline he had provided to the Court (and which his Honour told Mr Young he had read). When Mr Young submitted that the third of the clips was not before the Local Court (this clip showed him attempting to operate a bobcat, in advance of the conduct the subject of the charges), his Honour sought confirmation from the DPP's representative that all three clips were before the Local Court.
8. In relation to Mr Young's submission that the District Court did not consider the District Court Motion, there was an overlap between the content of Mr Young's outline and the content of the Motion. The focus of the latter was the alleged contraventions of the Disability Discrimination Act by Mr Walsh and the prosecutor, and the absence of reasonable adjustments. His Honour concluded that reasonable adjustments had been made, on the assumption that the Disability Discrimination Act applied (an assumption that was favourable to Mr Young's case).
9. His Honour's conclusion on the issue of reasonable adjustments was determinative of Mr Young's further submission, that the Local Court transcript was the product of unlawful conduct and should not have been relied on by the District Court. A difficulty with that submission was that Mr Young relied on the Local Court transcript to establish what he alleged was the negligent conduct, if not misconduct, of Mr Walsh, the misconduct of the prosecutor, and the discriminatory conduct of the Court itself. In both the District Court Motion, and in his oral submissions to the District Court, Mr Young invited his Honour to consider the transcript in support of his arguments that the hearing was unfair in a manner that contravened the Disability Discrimination Act and Article 14 of the International Covenant on Civil and Political Rights. In those circumstances, his Honour's reliance on the transcript was not erroneous, let alone in a manner going to the Court's jurisdiction.
10. In any event, Mr Young's submission that the transcript was tainted by unlawful conduct misunderstood the operation of the Disability Discrimination Act. Conduct that is unlawful under the Act is prescribed in Part 2. Even if Mr Young could establish that a provision of Part 2 was applicable to the circumstances of the Local Court hearing (Mr Young relied on s 24, which deals with disability discrimination in the provision of goods or services and making facilities available), s 41 provides that doing an act that is unlawful because of a provision of Part 2 is not a criminal offence, except as expressly provided by Division 4 of Part 2 (no provision of which is relied on here). Further, s 125(1) provides that the Act does not confer on a person a right of action in respect of the doing of an act that is unlawful under Part 2 unless a provision of the Act expressly provides otherwise.
11. As the DPP submitted, the real question in an application for judicial review is whether the applicant was afforded procedural fairness in the sense of being given a proper opportunity to present his case. The District Court concluded that he had been given that opportunity in the Local Court. Mr Young's reliance on Dietrich does not assist him in this regard. Although that case refers to general notions of fairness, it did so in the context of the trial of an unrepresented accused for serious criminal charges. Mr Young was represented in this case by a solicitor, allegations as to the incompetence of whom were run in the District Court and dismissed.
12. In so far as Mr Young seeks to reagitate in this Court what Mr Walsh said in the Local Court about the recency of instructions about his hearing difficulty, Judge McLennan took the view that in light of his conclusion that reasonable adjustments were made, it was not necessary to resolve this issue. His Honour's description of that issue, as one that suggested a conflict between Mr Young's account and Mr Walsh's evidence, indicated that his Honour was aware of the issue. The conclusion that it was not necessary to determine the issue does not disclose reviewable error.
13. Ultimately, Judge McLennan addressed each of the issues that Mr Young raised, albeit in a manner that was adverse to him. That included an assessment of Mr Young's arguments regarding the fairness of the Local Court hearing. Although his Honour did not address the provisions of the Disability Discrimination Act in detail, he adopted that course on the basis of his conclusion that the steps taken in the Local Court constituted reasonable adjustments to overcome Mr Young's disability. His Honour's findings on those issues were within the Court's jurisdiction to make, following an appeal that, on any view, was conducted fairly.

Conclusion

1. It follows from the above that the Summons must be dismissed. The DPP has sought costs and I propose that order should also be made.
2. In dismissing the summons, the Court should consider making an order pursuant to s 69D of the Supreme Court Act, which provides as follows: 69D Court may confirm conviction, order or sentence (1) The Supreme Court may order that a conviction, order or sentence that is the subject of proceedings, or any part of it - (a) is to take effect on and from a day specified in the order, or (b) in the case of a sentence that has been served in part, is to recommence on and from a day specified in the order, including a day specified by reference to a future event. (2) The order has effect even though a stay of execution may have been in force in respect of the sentence that is the subject of the proceedings.
3. As Mr Young is self-represented it is important to provide clarity on the issue of how long the conditional release order has left to run.
4. The Magistrate recorded the sentence on the CAN Master Coversheet in the following terms (with his signature and the date): "CRO - 18 months - sect 9(1)(b) Sentencing Act."
5. That order did not commence on the date it was made, because Mr Young filed his appeal in the District Court on the same day and s 63(2)(a) of the Appeal and Review Act operated to stay its execution. After the District Court dismissed his appeal, the statutory stay was lifted. Counsel for the DPP noted that there was a month between the District Court's decision and the filing of the Summons in this Court. Upon that occurrence, s 69C of the Supreme Court Act operated to stay the sentence.
6. Counsel for the DPP referred to s 69D(2) of the Supreme Court Act as conferring some flexibility on the Court in setting the date from which the sentence is to be served "either taking into account or ignoring the operation of the stays". Counsel for the DPP also made passing reference to s 69 of the Appeal and Review Act, but ultimately submitted that the DPP was not advancing a particular position on what order the Court should make.
7. In describing s 69D(2) as conferring flexibility on the Court, counsel may have had in mind the consideration of s 69D(2) in cases such as Lazarus v Director of Public Prosecutions (NSW) [2019] NSWCA 125, in which Bell P and Basten JA described the apparent purpose and effect of s 69D(2) as follows (at [21]): "[i]ts apparent purpose is to provide that a sentence may be ordered to take effect from an earlier day, being a day on which the stay of execution was in force. Its effect is, therefore, similar to an initial sentencing in which pre-sentence custody is taken into account by backdating the commencement date of the sentence, even if the commencement date falls in a period when the offender was in fact at large."
8. Orders have been made pursuant to s 69D in similar circumstances to those arising in the present case. In Nabi, for example, the applicant commenced a conviction and sentence appeal to the District Court on 8 April 2021, which was the same day the Local Court convicted and sentenced him to a three-year community corrections order. This Court (Ward P, Meagher JA and Basten AJA) noted that on his filing of that appeal, s 63(2) of the Appeal and Review Act operated to stay the execution of the Local Court order. When the District Court dismissed the appeal on 10 September 2021, the stay was lifted and the community corrections order commenced (at [4]), and ran for four weeks until the applicant filed a Summons in this Court and the stay under s 69C of the Supreme Court Act took effect (at [5]). In dismissing the Summons, the Court ordered pursuant to s 69D of the Supreme Court Act that the community corrections order recommence on 9 June 2022, being the date of the Court's order, and terminate on 11 May 2025 (at [21]).
9. A similar approach was taken in McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298 ("McNab"). The applicant in that case sought judicial review of a decision of the District Court, which had confirmed conviction orders of the Local Court for an aggravated sexual act committed by the applicant contrary to s 61KF(1)(a) of the Crimes Act. This Court dismissed the application for judicial review and considered making an order pursuant to s 69D of the Supreme Court Act. The Local Court had sentenced the applicant to a community corrections order for a period of 12 months to commence on 18 November 2020. It ran for four weeks until the notice of appeal was lodged in the District Court on 16 December 2020. At that point, the statutory stay of execution took effect pursuant to s 63(2)(a) of the Appeal and Review Act. The Court considered that the stay operated until judgment in the District Court was given on 25 March 2021, on which date the community corrections order recommenced and ran for a further 12 weeks until the summons was filed in the Supreme Court on 15 June 2021 (at [110]-[111]). On the date of that filing, the execution of the sentence was stayed pursuant to s 69C of the Supreme Court Act.
10. Basten and McCallum JJA (Bell P agreeing) ordered, pursuant to s 69D, that the sentence imposed by the Local Court recommence on the date on which their judgment was delivered and terminate on the date 36 weeks thereafter (at [42], [111]). The 16 weeks already served prior to the date of their Honour's judgment, in addition to the 36 weeks to be served thereafter, resulted in the applicant serving a 12-month community correction order, as ordered by the Local Court.
11. I consider it appropriate to exercise the discretion conferred by s 69D of the Supreme Court Act in a manner similar to the exercise of the power in Nabi and McNab, taking into account the four weeks of the conditional release order that Mr Young served between the dismissal of his appeal in the District Court and the filing of the Summons. If either of the parties wishes to contend for a different order, I propose to grant the parties liberty to apply within 14 days.
12. Accordingly, I propose the following orders: 1. The Summons is dismissed with costs. 2. Pursuant to s 69D of the Supreme Court Act 1970 (NSW), order that the sentence imposed by the Local Court recommence on the date of this judgment and terminate on 19 September 2024. 3. Grant liberty to the parties to apply within 14 days of the date of this judgment for any variation of order 2.

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: 20 April 2023