Yousaf v Director of Public Prosecutions

Court of Appeal (NSW)|2012-10-30|Before: McColl JA, Meagher JA, Barrett JA, Coll JA

econd Respondent Representation: Applicant in person Ms C A Webster SC - First Respondent Applicant in person S C Kavanagh - First Respondent I V Knight, Crown Solicitor - Second Respondent File Number(s): 2012/173560 Decision under appeal Date of Decision: 2012-03-15 00:00:00 Before: Keleman SC DCJ File Number(s): 2010/329591

Judgment 1McCOLL JA: I agree with Barrett JA's reasons and the orders his Honour proposes. 2MEAGHER JA: I agree with the orders proposed by Barrett JA for the reasons that his Honour gives. 3BARRETT JA: On 31 May 2012, Kamal Yousaf filed in this Court a summons naming the Director of Public Prosecutions as sole defendant. A further summons (obviously intended to be an amended summons superseding the first) was filed on 24 September 2012. The District Court of New South Wales was added as second defendant by order made by the Registrar on 3 October 2012. The District Court has filed a submitting appearance. 4The complaints Mr Yousaf brings before the Court of Appeal by means of his amended summons arise from the outcome of his appeal to the District Court from a decision of the Local Court adverse to him. He had been adjudged guilty of stalking and intimidation of his wife (or former wife) - a statutory offence created by s 13 of the Crimes (Domestic and Personal Violence) Act 2007 - and sentenced to imprisonment for a term of seven months, with the sentence to be served by way of intensive correction in the community in accordance with the Crimes (Administration of Sentences) Act 1999. The appeal from the Local Court to the District Court was pursuant to Division 1 of Part 3 of the Crimes (Appeal and Review) Act 2001. 5The appeal was heard on 15 March 2012. The appeal on conviction was dismissed. The appeal on sentence was ultimately withdrawn (in circumstances to be mentioned presently) and the order of the magistrate that the sentence of seven months imprisonment be served by way of intensive correction order was confirmed by the District Court. The formal orders were made on 25 May 2012. 6In addition to his amended summons, Mr Yousaf has filed in this Court a notice of motion seeking an order for the return to him of a document tendered by him in the District Court proceedings, received as an exhibit and retained by the District Court. For the moment, I put the notice of motion to one side and concentrate on the claims in the amended summons. 7Mr Yousaf appeared in person before this Court. He participated through an Urdu interpreter, as he had in the District Court. Ms Webster SC appeared for the Director of Public Prosecutions.

The basis for Mr Yousaf's proceedings 8Mr Yousaf did not articulate in any clear or concise way the legal basis for the claims advanced by the amended summons or for the proposition that it is open to this Court to make the orders he seeks, being principally an order setting aside his conviction and sentence on the charge of stalking and intimidation. 9It is obvious, however, that the principal claim is one for prerogative relief in the nature of certiorari. Having regard to s 9(2) and s 166 of the District Court Act 1973, the appeal function that the District Court performed was undertaken in the exercise of the criminal jurisdiction of that court. Section 176 of the District Court Act therefore applies. That section is within Part 4 of the Act headed "The Criminal Jurisdiction of the Court" and is in these terms: "No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court." 10The effect of s 176 was described by Basten JA (with the concurrence of Giles JA and McColl JA) in Garde v Dowd [2011] NSWCA 115 as follows (at [10]): "It is accepted that the effect of this provision is not to exclude proceedings by way of judicial review by this Court, but to limit their availability to cases involving jurisdictional error: see, eg, Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 272 ALR 705 at [133]-[134]. No greater intrusion on the powers of this Court would be constitutionally valid: Kirk v Industrial Relations Court of New South Wales [2010] HCA 1; 239 CLR 531 at [54]-[55]." 11Reference may also be made, in that connection to other cases, including Spanos v Lazaris [2008] NSWCA 74 at [15], Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552 at [18] and [45] and, more recently, Elias v Director of Public Prosecutions [2012] NSWCA 302 at [5]. 12It is thus clear that the only question that may be agitated in this Court on the matters raised by the amended summons is whether the decision of the District Court on appeal from the Local Court is affected by jurisdictional error. This Court's power of review is limited and constrained accordingly.

Mr Yousaf's complaints 13Mr Yousaf's complaints about the District Court decision focus on three matters. 14First and principally, Mr Yousaf complains about the District Court's refusal to receive and consider further evidence on the hearing of the appeal and, in that respect, to exercise the power conferred by s 18(2) of the Crimes (Appeal and Review) Act 2001. 15Second, Mr Yousaf says that the judge was biased against him or, at least, that there were grounds for a reasonable apprehension of bias. 16Third, there are several complaints the substance of which is that the decision of the magistrate was unsupported by the evidence and that the District Court should therefore have allowed the appeal.

Circumstances giving rise to the first complaint 17I address first the refusal to receive further evidence. That evidence was contained in what was said by Mr Yousaf to be an affidavit of his wife or former wife (who was the victim of the alleged offence) prepared for the purposes of the Local Court proceedings but not placed before that court. The primary judge concluded, on the basis of evidence given by the purported deponent and the solicitor before whom the affidavit was purportedly sworn (together with a letter the solicitor had written concerning the possibility of the signature's being his), that neither of them had signed the document. There was, the judge said, evidence from Mr Yousaf that he had received the document "in the post unsolicited and essentially anonymously". Mr Yousaf was thus unable to give any evidence about the circumstances in which any signing of the document occurred; nor did he seek to adduce evidence from any other person on that matter. 18On the basis of the evidence before him, the judge found that the purported affidavit of the wife was "a false affidavit that was never sworn by the complainant". That being so, his Honour held that it was not, in terms of s 18(2) of the Crimes (Appeal and Review) Act, in the interests of justice that the content of the supposed affidavit be admitted into evidence on the appeal. He therefore declined to receive it.

Circumstances giving rise to the second complaint 19The allegation of actual or apprehended bias on the part of the District Court judge is based on two things. The first is an exchange between his Honour and the parties' representatives before the hearing of the appeal began. Two appeals by Mr Yousaf were listed for hearing. The other concerned an apprehended violence order. Mr Yousaf had instructed different lawyers for the two matters. The judge made an observation about this as follows: "How bizarre, I don't think I've ever had that situation arise, ever in now almost thirty years of doing this sort of work. It's always interesting to see what happens. But it's extremely unusual. Apart from being extremely expensive I would have thought. All right and then there's the other matter." 20Mr Yousaf saw this as an attempt by the judge to "dishearten my lawyers". 21The second basis for the bias complaint comes from a particular approach the judge took to both the sentence appeal and the separate appeal concerning the apprehended violence order. 22After stating reasons for dismissal of the appeal against conviction, the judge asked Mr Yousaf's lawyer, Ms Paraska, whether she was proceeding with the sentence appeal. An affirmative answer was given. The following exchange then took place: "HIS HONOUR: What was the outcome in relation to the severity? Or in relation to the sentence I should say. PARASKA: The sentence was a seven month intensive correction order, I have referred your Honour to the matter of Owen Cameron which is really the only authority on what the purpose of ICO is-- HIS HONOUR: Your client is lucky he didn't go to gaol full time, having regard to this material. PARASKA: Is that a form of warning your Honour. HIS HONOUR: I'm happy to give it to you in the circumstances, yes. I am giving you a Parker warning. PARASKA: Then the appeal against the severity is withdrawn. HIS HONOUR: Do you oppose the granting of leave to withdraw the severity appeal? PROWSE: No your Honour. HIS HONOUR: I just note the conviction appeal is dismissed and the conviction confirmed, in relation to the severity appeal I will just note that leave is granted to withdraw the severity appeal." 23The District Court then heard argument on the separate appeal concerning the apprehended violence order upon which a different lawyer appeared for Mr Yousaf. At the conclusion of submissions on that appeal, the judge said, in relation to the magistrate's decision on extension of the apprehended violence order: "I think he did very well before the magistrate, because quite frankly if the matter proceeds before me I am minded to impose a much longer period in respect of which he will be subject to an AVO." 24And later: "And the only thing I disagree with is the length of time that he granted the extension for, in my view it should have been considerably longer in order to provide the complainant with the appropriate protection." 25At that point, Mr Yousaf's lawyer sought instructions and informed that court that Mr Yousaf did not wish to proceed with the appeal, whereupon the judge granted leave to withdraw the appeal and confirmed the orders made by the magistrate.

Circumstances giving rise to the third complaint 26As to Mr Yousaf's third complaint (that the District Court failed to address and deal with alleged factual errors on the part of the magistrate), it is sufficient to note that no further evidence was before the District Court, that the judge, in his reasons, summarised the evidence that had been given in the Local Court (including, in particular, evidence of the wife of various instances of ill-treatment of her by Mr Yousaf and Mr Yousaf's denial of any such conduct) and the magistrate's observations and findings on the questions of credibility that loomed large in the case. 27The judge then said: "In a case such as this, where one is looking at oath on oath, particularly in appeal proceedings such as these, the findings of the magistrate in relation to credit are of particular importance. From my perusal of the transcript the findings of the magistrate in relation to credit, in my view, are indeed more than supported. Having regard to the totality of the evidence adduced in the Local Court and the findings of the magistrate in relation to credit, I am satisfied beyond reasonable doubt that the appellant has committed the offence with which he has been charged and, accordingly, I find him guilty. Accordingly the conviction appeal is dismissed."

The jurisdictional error concept 28As I have said, this Court may review the decision of the District Court only if it is shown that that decision is affected by jurisdictional error. The relevant concept of jurisdictional error has been explored in a number of key cases. In Craig v v South Australia [1995] HCA 58; (1995) 184 CLR 163, the High Court gave a broad description of jurisdictional error as follows (at 177): "An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction." 29The court then (at 177-8) gave examples: "Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers." "Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do." "Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case." "Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case." 30Significantly, for present purposes, in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ recognised (at [60]) as one form of jurisdictional error "a failure to accord procedural fairness during a hearing". Lack of procedural fairness or denial of natural justice in the form of apprehended or ostensible bias on the part of a decision-maker is therefore susceptible to correction as jurisdictional error: see, for example, Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513 at [10].

Assessment of the first and third complaints 31Neither the first nor the third of the complaints advanced by Mr Yousaf (that is, the complaint about refusal to receive further evidence and the complaint going to factual matters) can possibly on the basis on which it is put come within any category of jurisdictional error. 32The position in relation to those matters may be summarised briefly. The District Court judge had before him appeals that were clearly within the criminal jurisdiction of the District Court. His Honour addressed the matter of the additional evidence in the way the relevant statutory provision required it to be addressed and made a decision of the kind that provision envisaged. He then determined the appeal on conviction by reference to the submissions he had received and the evidence that had been before the Local Court, relying on the Local Court transcript for that purpose and taking into account all relevant factual matters arising from that evidence. That was precisely the course his Honour was required by the applicable legislation to take. Under s 18(1) of the Crimes (Appeal and Review) Act, an appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings. The stated conclusion was that his Honour was satisfied beyond reasonable doubt that Mr Yousaf had committed the offence. 33In relation to the further evidence issue and the consistency of the decision with the evidence, his Honour proceeded in due and proper exercise of the relevant jurisdiction. There is no room for any finding that, as regards either of those matters, he acted in excess of jurisdiction or in any other way amounting to or entailing jurisdictional error. If there was any error in relation to either of those matters (and I hasten to say that I do not think that any has been shown), it was an error within jurisdiction.

Assessment of the second complaint 34The allegation of bias or apprehended bias raises different issues since such an allegation, if made good, entails lack of procedural fairness or denial of natural justice which is an established category of jurisdictional error. 35The governing principle is that a judge must not hear and determine a case if a fair minded observer might reasonably apprehend that the judge will not bring an impartial mind to resolution of the questions the judge is required to determine. A recent statement of the principles may be found in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 particularly at [32] and following (French CJ), [78] and following (Gummow J) and [139] and following (Heydon, Kiefel and Bell JJ). This makes it necessary to assess the two aspects of the judge's conduct about which Mr Yousaf complains under this heading. 36The first such aspect concerns the judge's comments on the fact that Mr Yousaf had instructed different lawyers to deal with the two appeals. The comments are set out at [19] above. Those comments cannot be the source of any reasonable apprehension of the relevant kind. The judge did no more than to observe that the situation was, in his long experience, very unusual - even "bizarre" - and that it involved additional expense for Mr Yousaf. Those observations did not indicate in any way that the judge had formed views adverse to Mr Yousaf and his case or had (or might have) compromised his ability to approach the case before him fairly and impartially. Nor did they have any capacity to deflect either lawyer from the due performance of the lawyer's duties. A judge who is of the opinion that the procedural course a litigant has taken is unusual and productive of unwarranted expense for the litigant does not, by expressing that opinion, say or imply anything at all about the ultimate determination of the litigant's case. In particular, the judge does not thereby show that he or she will not or may not decide the case otherwise than according to its merits. 37The second aspect of the apprehended bias complaint concerns the judge's "Parker warnings" - that is, the indication by the judge at the end of argument with respect to both sentence and the extension of the apprehended violence order that he considered the decision of the magistrate to be unduly favourable to Mr Yousaf, the clear message being that he was minded to substitute an order more burdensome from Mr Yousaf's viewpoint. The giving by the judge of those indications did not bespeak bias or constitute grounds for any apprehension of bias. Having formed the relevant opinion after hearing both parties, the judge was ensuring that the aspect of procedural fairness and natural justice discussed by this Court in Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 was afforded to Mr Yousaf. It would have been irregular for the judge to order a result more burdensome to Mr Yousaf than that against which he appealed without first indicating an intention of doing so, so that Mr Yousaf might decide whether he preferred to settle for the status quo. It was an unexceptionable exercise of the judge's functions for him to state the position he had reached on the questions of sentence and duration of the apprehended violence order and to give Mr Yousaf an opportunity to decide whether, in the light of that, he wished to press his appeals. 38It may be that when Mr Yousaf heard, through the interpreter, words of the judge indicating a "warning" (as in "Parker warning") to him or his lawyer, he thought that some form of threat had been made by the judge and that such a threat was intended to deflect Mr Yousaf from the due pursuit of his rights or the lawyer from the due protection of those rights. But there was, in reality, no "warning" in any such threatening sense. The word "warning" was used in a purely non-intimidatory sense as part of the terminology employed by lawyers in connection with the effectuation of a particular aspect of natural justice and procedural fairness.

Conclusion on the principal claims 39Mr Yousaf has not shown that any aspect of the decision of the District Court was affected by jurisdictional error. Since jurisdictional error is the only basis on which this Court could intervene, the amended summons should be dismissed.

The notice of motion 40It remains to consider Mr Yousaf's notice of motion by which he seeks an order of the Court of Appeal for the return of an exhibit tendered by him and marked upon the hearing of motion for the reception of further evidence in the District Court. 41The exhibit included the original of the purported affidavit of the wife that the judge refused to receive into evidence and the envelope in which, according to Mr Yousaf, he received it through the post. 42After the appeal had been fully dealt with, Mr Yousaf's lawyer sought the return of the exhibit. The judge did not accede to that application. He said: "No. All of that is staying with the court file. It may well be that the authorities will want to pursue that further, but none of that material is going to leave the court file." 43Ms Webster SC has assisted the Court by providing submissions on the provisions concerning exhibits in District Court proceedings of the type under discussion. The central provision is Part 53 rule 9 of the District Court Rules 1973. Part 53 is headed "Criminal Procedure Rules"; and Part 53 rule 1(1) states that Part 53 applies to proceedings in the criminal jurisdiction of the District Court. As I have said, the appeal function that the District Court performed on the application of Mr Yousaf was undertaken in the exercise of the criminal jurisdiction. Part 53 rule 9 is in these terms: "(1) Exhibits in any proceedings, whether produced on subpoena or otherwise, may be returned to the person who produced them to the Court or registrar: (a) where the Court makes an order for the return of the exhibits, forthwith, and (b) where, within a period of 90 days after sentence is passed or deferred or a final order is made, the Court makes no order for the return or retention of the exhibits, and no notice is given to the registrar of any appeal in the proceedings, forthwith after the expiration of that period. (2) A person to whom exhibits may be returned under subrule (1) shall obtain the return of, and give to the registrar a receipt for, the exhibits as soon as practicable, and the registrar shall be responsible for the safe custody of any exhibits in his keeping for a period only of 14 days after the first day on which the exhibits may be so returned." 44The terms in which the District Court judge dealt with the application for return of the exhibit (set out at [42] above) make it clear that there was an order that the exhibit should be retained by the court. In those circumstances, rule 9(1)(a) does not allow the exhibit to be returned; nor, since there was an order "for the . . . retention of" the exhibit, does rule 9(1)(b) allow the exhibit to be returned. 45Furthermore, it is by no means clear that, if this Court were to set aside the judge's order concerning retention of the exhibit, the situation would become one in which return was permitted by rule 9(1)(b). I say this because, for the purpose of computing time, the order subsequently set aside might be regarded as having been in force at the end of the period of ninety days to which rule 9(1)(b) refers. It is not necessary to express any view about this. 46There is, in any event, a question as to this Court's power to set aside or countermand the District Court's order and, in that way, to direct return of the exhibit. There is no right of appeal in that respect under s 127 of the District Court Act since the appeal proceedings before the primary judge did not constitute an "action" as referred to in s 127(1) (the definition of "action" in s 4(1) excludes proceedings under Part 4 which is concerned with the District Court's criminal jurisdiction). The order concerning the exhibit is no doubt susceptible to the exercise of this Court's discretion to grant prerogative relief, but whether the privative provision in s 176 of the District Court Act applies depends on whether the particular order is within the description "adjudication on appeal of the District Court". If the essentially procedural order were such an "adjudication", relief in this Court would be available only to correct jurisdictional error; while if it were not, relief would be available also to deal with error of law on the face of the record. 47It is not necessary to determine the question just mentioned. There is no conceivable basis on which the order of the District Court judge concerning retention of the exhibit involved either jurisdictional error or error of law on the face of the record. The order was made after a hearing which, although brief, was sufficient for the purpose. It clearly lay within the court's power to make the order which entailed due exercise of a plainly available discretion. 48No ground has been shown for review by this Court of the order concerning the exhibit. But even if such a ground did exist and certiorari lay, the fact that the order was made with a stated possibility in view, that more than seven months have now passed and that there is no barrier to Mr Yousaf's going back to the District Court to argue for the return of the exhibit in the light of circumstances now prevailing would be relevant to the question whether this Court should exercise the discretion to intervene.

Sentence 49There is one final matter. It concerns s 69C and s 69D of the Supreme Court Act 1970, both of which, by virtue of s 69C(1), apply to proceedings in the Supreme Court for judicial review of a determination made by the District Court in appeal proceedings relating to a conviction or order made by the Local Court or a sentence imposed by the Local Court. These present proceedings are of that description 50It may be that, by operation of s 69C(2), the sentence imposed on Mr Yousaf by the Local Court and confirmed by the District Court was stayed when the proceedings in this Court were commenced by the summons filed on 31 May 2012. Whether such a stay came into operation depends, in part at least, on whether Mr Yousaf was, as referred to in s 69C(3), "in custody" at the time of commencement of these proceedings. As to that, it is relevant to note that, on the evidence before this Court (in the form of a report from Corrective Services NSW dated 23 October 2012), Mr Yousaf has not yet commenced to serve his sentence or to be dealt with under any intensive correction order. 51This last-mentioned circumstance makes it unnecessary, in my view, to come to any view about whether s 69C(2) created a stay. Section 69D is in these terms: "(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, being the day the order is made or an earlier day. (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." 52Guidance concerning s 69D is provided by the joint judgment of Mason P, Handley and Stein JJA in Whiteside v Director of Public Prosecutions [1999] NSWCA 454 at [35]: "The power conferred by s69D necessarily requires this Court to assess the real impact of the sentence served or not served pending the application. . . . While it is not exercising an appellate jurisdiction as on a rehearing, its power under s69D is obviously available to be used in a way that addresses the substantive issue as regards the reinstatement of the penalty that properly should have been served. The limit is that this power is only available to be exercised in the manner contemplated by s 69D(1). 53The circumstance that Mr Yousaf has not served any part of his sentence (a sentence of imprisonment for a term of seven months commencing on 4 June 2012 and expiring on 3 January 2013, to be served by way of intensive correction in the community), coupled with the results in both the District Court and this Court, makes it wholly appropriate that this Court should make an order under s 69D(1) that reinstates the sentence and, as it were, causes it to recommence. Having regard to the closing words of s 69D(1), the date of recommencement specified in such an order must coincide with, or be earlier than, the day on which the order is made. Since no part of the sentence has yet been served, recommencement should be from the date of the order. The Corrective Services report of 23 October 2012 states that Mr Yousaf has been re-assessed as suitable for an intensive correction order.

Disposition 54The orders that I propose are:

Order that the amended summons filed on 24 September 2012 and the notice of motion filed on 18 October 2012 be dismissed.
Order that the sentence imposed on Kamal Yousaf by the Local Court and confirmed by the District Court by order made on 25 May 2012 take effect on and from today, 6 December 2012.
Order that Kamal Yousaf pay the costs of the Director of Public Prosecutions of the proceedings in this 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: 06 December 2012

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