Director of Public Prosecutions (NSW) v Swellings

1. [1]

   By summons filed on 9 July 2021 the plaintiff, the Director of Public Prosecutions (NSW) (“DPP”), appeals under s 56(1)(c) of the Crimes Appeal and Review Act 2001 (NSW) (“CAR Act”) against the decision of Magistrate George on 24 March 2021 at Hornsby Local Court dismissing proceedings against the defendant, Paul John Swellings, for the offence of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW). The DPP seeks orders that the decision be set aside and remitted to the Local Court to be dealt with according to law.

2. [2]

   On 6 April 2021, an extension of time within which to institute the appeal was granted by the learned Magistrate until 14 July 2021: Pt 51B r 6 of the Supreme Court Rules 1970 (NSW).

3. [3]

   On 6 August 2021, the plaintiff amended the summons to seek, in the alternative, judicial review of the decision of the Magistrate in this Court’s supervisory jurisdiction as regulated by s 69 of the Supreme Court Act 1970 (NSW). This alternative basis for relief was only relied in on the event that the Court was not satisfied that the appeal concerned a “question of law alone” within the meaning of s 56(1) of the CAR Act.

4. [4]

   The three grounds of appeal are that the learned Magistrate George erred in law in:

   1. (1)

      Failing to make relevant findings of fact, including as to whether the defendant committed the act alleged to constitute the offence charged, as an aspect of his duty to give reasons for his decision;

   2. (2)

      Failing to provide adequate reasons for his decision to dismiss the charge; and

   3. (3)

      Dismissing the matter.

5. [5]

   The sole ground for seeking judicial review in the alternative is that Magistrate George erred in law by failing to provide adequate reasons for his decision to dismiss the charge.

6. [6]

   This appeal was heard on 22 February 2022. Mr Balodis of counsel appeared for the plaintiff and Mr Jauncey of counsel appeared for the defendant.

The Local Court Hearing

1. [7]

   The defendant was charged on 16 June 2019 following events which took place the previous evening. At that time, the complainant, Rachel Lloyd, and the defendant had been in a relationship for about 18 months.

2. [8]

   The complainant participated in a Domestic Violence Evidence-in-Chief (“DVEC”) at Hornsby Hospital at approximately 1am on 16 June 2019. A DVEC is a pre-recording of a complainant’s evidence-in-chief in domestic violence matters recorded as close as possible to the alleged assault which can then be played in court as all or part of the complainant’s evidence-in-chief: Ch 6, Pt 4B of the Criminal Procedure Act 1986 (NSW). Consistent with that practice, the DVEC was played at the Local Court hearing of the defendant’s charge. The appeal book did not provide a transcript of the DVEC, although it contained a typed summary of it. Mr Jauncey objected to that summary and it was agreed that the DVEC would instead be played at the hearing of this appeal and tendered. The following summary is taken from that recording.

3. [9]

   After introductory questions by police, the complainant described how at about 9.30pm that evening (that is, 15 June 2019), after she had consumed about four glasses of wine, she and the defendant were discussing that he would have to move out because of legal proceedings against him regarding her son. The complainant became upset about this at which time the defendant was said to have “got aggressive” about the fact that she was upset and said, "[w]ell just get suicidal". She described how he then got “really aggressive” and would not let her leave the bedroom. As the defendant would not move out of the doorway, the complainant slapped him across the face to try to get out. She described this as follows:

4. [10]

   The complainant agreed that she slapped the defendant to get him to move out of the way so she could leave the bedroom. At some point, she did get out. She tried to find her phone but the defendant would not give it to her. She described him as laughing at her. She tried to put on her trousers so that she could leave but he grabbed her by the trouser leg. She fell on the floor and he dragged her by her trousers along the floor. This was not for very long.

5. [11]

   She described the incident as follows:

6. [12]

   Police then asked the complainant for further details about her being slapped by the defendant. The DVEC records the following exchange:

7. [13]

   The complainant described how she lay there for a couple of minutes and then ran to the service station and then the ambulance came. Police described a bruise under her left eye and asked these questions:

8. [14]

   The following clarifying questions were asked about the number of slaps:

9. [15]

   The police prosecutor asked additional questions of the complainant in court to clarify her evidence concerning the timing of the second slap. The complainant confirmed that she was slapped twice, and it was on the second occasion that she was slapped “on the wall”. She confirmed that she pretended to go to sleep so that the defendant would “go away”, but that did not work, and she tried to get dressed to leave. The defendant dragged her. This all occurred in the bedroom. She tried to fight back but cannot remember what happened next clearly. She recalls she just wanted to “get out”. She then decided there was no point fighting. She asked for her telephone back, but he would not give it to her. The complainant then pretended to sleep for a second time, the defendant moved out of the doorway and then she ran to the service station. She was in her pyjamas and she told the attendant to call police because she wanted her “stuff out of there”.

10. [16]

    The complainant was cross-examined and confirmed that on the day of the alleged assault she had been drinking since 5pm and the alleged incident occurred at about 9:30pm. She agreed that her counsellor’s appointment that day had not gone well and she had had an argument with her mother about ongoing proceedings in the Family Court. She complained about these matters to the defendant when he got home. She also agreed that she has self-harmed in the past. She agreed that she had thrown an ornament around the room. She did not agree that she had thrown more than one. She agreed that that night she slapped the defendant twice but did not recall slapping him more than twice. She agreed that her recollection was hindered by her anger and her inability to control what was going on.

11. [17]

    It was put to the complainant that the defendant only slapped her once and she responded, “no, not true”. She agreed he slapped her with an open hand. She explained that there was a struggle when she was trying to push him away. She agreed that the defendant had been supportive of her going to rehabilitation for her alcohol problems.

12. [18]

    The complainant explained that at the time she was angry and frustrated and was being laughed at by the defendant and ridiculed. She stated that she was not drinking constantly over the four-hour period. She denied the proposition that the defendant had not dragged her along the ground and she denied that he slapped her only once. She agreed that she slapped him twice as hard as she could to get him to move. She agreed that he came to the hospital to give her her keys.

13. [19]

    In response to questions from the Magistrate the complainant explained that when she gets angry the defendant tends to laugh at her and it exacerbates how she is feeling. She explained that when she said he ridiculed her she meant that he did not care.

14. [20]

    In re-examination the complainant explained that the ornament she threw was made of clay and that she does not recall how many drinks she had prior to the incident. She gave an estimate of four or five glasses of wine. She confirmed that she slapped the defendant twice when he was standing in the doorway to the bedroom stopping her getting out. She was trying to get him to move. She slapped him across the face.

15. [21]

    The officer in charge gave evidence and produced a number of exhibits which were tendered: photographs of the complainant’s injury (showing significant bruising under the left eye), the defendant’s electronically recorded interview with police (“ERISP”), and the statement of Constable Chantelle Swan dated 23 June 2020. Constable Swan’s statement recorded the complainant’s initial complaint as follows:

16. [22]

    The ERISP commenced at 8:41pm on Tuesday, 16 June 2020. The defendant provided significant detail as to the Family Court proceedings and other difficulties the complainant was experiencing at that time. He also confirmed that she had been in rehabilitation and was a “known-alcoholic”. He described that she was lying in bed and told him that she loved him. He explained what happened next as follows (Q35):

17. [23]

    He agreed that she slapped him, and he slapped her in return. He agreed that she then got into bed and he was on the couch. He agreed that she then got out of bed and put a pair of pants on and that he grabbed her by the pants and dragged her along the floor for a short period of time (Q41-45).

18. [24]

    Question 46 was as follows:

19. [25]

    He agreed that they both “settled down” and then “it just boom again” (Q50). The following exchange then occurred (Q51-52):

20. [26]

    After some further questions explaining this aspect of the fight, the following exchange took place (Q62-69):

21. [27]

    And later the defendant was asked the following question (Q 81):

22. [28]

    The defendant gave evidence at the hearing. He described how the complainant threw a number of items at him. He then gave the following evidence:

23. [29]

    The defendant was cross-examined by the prosecutor who put to him questions and answers 46 and 51 from his ERISP (extracted above at [24]-[25]). His response was:

24. [30]

    The following exchange then took place:

25. [31]

    The defendant denied that he had dragged the complainant across the floor but acknowledged that he had said so in his ERISP and that his memory was better on the night. There was further cross-examination about the fights between the two of them that night and the complainant’s propensity to self-harm and then the following exchange occurred:

26. [32]

    There was some further cross-examination about how hard the defendant slapped the complainant. There was no re-examination.

27. [33]

    In closing submissions, the prosecutor submitted that the complainant was a reliable witness whose evidence was that she was slapped on two occasions. It was submitted that the prosecution case did not rely upon the first slap, that being when the defendant retaliated to the complainant slapping him. It is the second slap that was relied upon. It occurred sometime later after she tried to leave. On that occasion he slapped her “so hard that she has hit the wall and fallen to the ground and received quite a large lump and bruise to the side of her face”. The learned Magistrate queried whether the injury may have occurred from the slap or may have occurred from the fall given that the complainant was somewhat unclear on this point.

28. [34]

    The case put on behalf of the defendant was that he only slapped the complainant once with good intentions and that his behaviour was justifiable because she was damaging property. It was submitted that he slapped her to avoid escalation of the trouble and that the whole episode was caused by the complainant’s behaviour. It was also submitted that her reliability as a witness was affected by her level of intoxication at the time of the altercation.

29. [35]

    The learned Magistrate gave ex tempore reasons immediately following closing submissions. Given that the sole complaint in this appeal is as to their adequacy, I propose to set them out in full:

The plaintiff’s submissions

1. [36]

   Mr Balodis of counsel identified the relevant authorities concerning both the test for a “question of law alone” and the duty to give reasons as a necessary incident of the judicial process. I shall consider these authorities further below.

2. [37]

   It was submitted that the learned Magistrate made no finding as to the second slap, despite the defendant admitting in his ERISP that he had done so and that he caused the bruising around the complainant’s eye. His Honour also appeared to accept the admissions made by the defendant in the ERISP which were contrary to the ultimate decision. It was submitted that the Magistrate’s failure to refer to the admissions as to a second slap meant that that evidence was not considered when his Honour decided whether to accept the evidence of the complainant or the defendant.

3. [38]

   The admissions, it was submitted, were the strongest part of the prosecution case and the reasons do not disclose what became of this aspect of it.

The defendant’s submissions

1. [39]

   In written submissions, Mr Jauncey accepted that the provision of reasons is a necessary incident of the judicial process. But the duty does not require a trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It was submitted that although the learned Magistrate did not set out with any great clarity the ingredients of the offence proven nor make specific findings of fact, when the judgement is read as a whole, along with the transcript of oral submissions, it can be concluded that his Honour addressed the salient issues.

2. [40]

   It was further submitted that allowance must be made for a Magistrate in a busy list giving an ex tempore judgement.

3. [41]

   Reliance was placed on the decision in Zhang v Andrew Pine Furniture Pty Ltd [2004] NSWCA 250 at [31] where Giles JA (with whom McColl JA and Bergin J agreed), after concluding that the reasons given in that manner were inadequate, stated the following:

Consideration

1. [42]

   There was considerable overlap between the three grounds of appeal, particularly grounds 1 and 2 which contend that the Magistrate erred by failing to make relevant findings (ground 1) and failing to provide adequate reasons for his decision (ground 2). Both grounds concern the requirement for a judicial officer to provide reasons for their decision. The relevant principles are well established. As McHugh J observed in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279, the provision of reasons is important to the judicial process because it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision.

2. [43]

   In Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430 (“Beale”), Mason P put the principle as follows at 431:

3. [44]

   Mr Jauncey relied upon the observations of Meagher JA in Beale at 444 where his Honour observed:

4. [45]

   In Mifsud v Campbell (1991) 21 NSWLR 725, Samuels JA (with whom Clarke JA and Hope AJA agreed) observed at 728D:

5. [46]

   In Wiki v Atlantis Relocations (NSW) Pty Ltd (2004) 60 NSWLR 127; [2004] NSWCA 174, Ipp JA (with whom Bryson JA and Stein AJA agreed) referred to these decisions then went on to state the following at [59]:

6. [47]

   Clearly, the question of adequacy of reasons will depend upon the nature of the case. The present appeal concerns an ex tempore judgment by a busy Magistrate. In that context Johnson J observed the following in Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited (2006) 67 NSWLR 402; [2006] NSWSC 343 at [15] in relation to an appeal under the CAR Act:

7. [48]

   Before turning to consider grounds 1 and 2, it is necessary to first address the jurisdictional question of whether one or both of them involve a “question of law alone”. Section 56(1)(c) of the CAR Act provides that the prosecutor may appeal to the Supreme Court as of right against:

8. [49]

   In Bimson, Roads & Maritime Services v Damorange Pty Ltd [2014] NSWSC 734 at [39]-[46] (“Bimson”), Beech-Jones J (as his Honour then was) considered the authorities concerning how to properly identify a question of law alone and extracted three propositions. They can be summarised as follows:

   1. (1)

      An appeal on a ground that involves a question of law alone does not include a mixed question of fact and law (see R v PL [2009] NSWCCA 256; (2009) 199 A Crim R 199 at [25] per Spigelman CJ ("PL (No 1)").

   2. (2)

      It is incumbent on the parties contending that a question of law was decided erroneously, to identify the question in abstract terms which can be stated and considered separately from the facts in the case: Williams v The Queen (1986) 161 CLR 278 at 287; [1986] HCA 88 per Gibbs CJ.

   3. (3)

      To identify an "error" on the part of the Local Court in the exercise of its discretion in terms of “House v R” error (House v The King (1936) 55 CLR 499 at 504; [1936] HCA 40) does not of itself answer the question posed by s 56(1) of the CAR Act.

9. [50]

   In seeking to illustrate the second of these propositions his Honour compared the approach in PL (No 1) and the return of the same case to the Court of Criminal Appeal in R v PL [2012] NSWCCA 31 (“PL (No 2)”). As his Honour observed, both appeals were brought from directed acquittals under s 107 of the CAR Act which provides that any such appeal only lies on a “question of law alone”.

10. [51]

    In PL (No 1), Spigelman CJ (with whom McClellan CJ at CL and RA Hulme J agreed) held that a ground of appeal alleging that the trial judge "erred in applying the principles applicable to the question of verdicts of acquittal" involved a mixed question of fact of law. His Honour stated (at [26]):

11. [52]

    As Beech-Jones J observed, the same case returned to the Court of Criminal Appeal in PL (No 2). On the second occasion, the Court upheld a ground expressed in terms that "his Honour erred by misdirecting himself on the test of whether there is a case to answer" (at [3] and [40]). As Bathurst CJ observed at [36]:

12. [53]

    As to whether this error was a question of law alone, Bathurst CJ went on to observe at [39]:

13. [54]

    As Beech-Jones went on to observe in Bimson at [46], the trial judge in PL (No 2) had proceeded on the basis that in considering an application for a directed verdict he could evaluate the weight of the evidence adduced by the Crown when in fact he was required to consider it at its highest. That was an error which involved a question of law alone.

14. [55]

    Similarly, in JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669; (2015) 256 A Crim R 447 (“JP”) Beech-Jones J observed at [47]:

15. [56]

    One of the grounds of appeal in JP concerned an assertion of inadequate reasons on the question of the tender of a document. That ground was dismissed but in doing so Beech-Jones J observed the following at [65]:

16. [57]

    More recently in White v Director of Public Prosecutions [2021] NSWSC 1629 Beech-Jones CJ at CL observed the following at [13] on this question:

17. [58]

    There are many decisions of this Court in which it has been accepted that a ground of appeal asserting inadequacy of reasons involves a question of law alone within the meaning of ss 53 and 56 of the CAR Act. See for example: Shepherd v Nestoriadis [2015] NSWSC 348; Daley v Brown; Pittman v Brown [2014] NSWSC 144; (2014) 238 A Crim R 574; Roberts v Marks [2019] NSWSC 1068 at [19]-[20] (Ierace J), citing DPP (NSW) v Merhi [2019] NSWSC 1068; Morse v Al-Jubouri [2011] NSWSC 1330 at [69] (Simpson J); Director of Public Prosecutions (NSW) v Wililo and Anor [2012] NSWSC 713; (2012) 222 A Crim R 106 at [56], [63]-[64] (Johnson J); Director of Public Prosecutions (NSW) v Kirby [2017] NSWSC 1754 at [34]ff (RA Hulme J); Director of Public Prosecutions (NSW) v Hughes [2017] NSWSC 492 at [97]-[99] (Bellew J), citing Dee Why Auto Clinic v Roads and Maritime Services [2017] NSWSC 377 at [44]. In Director of Public Prosecutions NSW v Elias [2013] NSWSC 28 Fullerton J allowed an appeal to this Court under the CAR Act on such a ground for the reasons her Honour provided at [51]:

18. [59]

    Doubt as to whether a complaint of inadequate reasons does involve a question of law alone was raised by Adamson J in PQR v Director of Public Prosecutions (NSW) [2020] NSWSC 731 (“PQR”), a case concerning an appeal under s 53(3)(b) of the CAR Act in which one of the grounds raised was the inadequacy of the Magistrate’s reasons. In PQR the DPP contended that none of the grounds in that appeal raised a question of law alone. As for the ground contending an inadequacy of reasons, it was submitted that the judicial obligation to give reasons was well established and therefore no question as to the duty arose.

19. [60]

    In PQR, Adamson J noted the decision in JP and in particular the observations of Beech-Jones J at [65] extracted above at [56]. At [68], her Honour stated that she was not satisfied that a failure to provide reasons amounts to jurisdictional error, although she noted at [69] that reasons or inadequate reasons, while not constituting a jurisdictional error, may reveal one. Her Honour then went on to state the following at [70]:

20. [61]

    Although the question of whether a failure to provide reasons amounts to jurisdictional error does not arise in the present appeal, I note that in Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 (“Mulder v DPP”) Gleeson JA (with whom Ward JA and Johnson J agreed) observed at [33] (footnotes omitted):

21. [62]

    A large number of grounds of review were relied upon in Mulder v DPP, one of which was a complaint of inadequacy of reasons. Mr Mulder invoked the supervisory jurisdiction of the Court of Appeal over the District Court in circumstances where there is no statutory appeal from a decision of the District Court concerning an appeal from the Local Court in a summary criminal matter. Although s 176 of the District Court Act 1973 (NSW) purports to exclude judicial review of such a decision, it is well established that such a provision only confines the availability of judicial review to cases where jurisdictional error can be established: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 [2010] HCA 1. In considering the ground of appeal concerning inadequacy of reasons in Mulder v DPP Gleeson JA observed at [141]:

22. [63]

    It seems to me that both a failure to provide reasons and/or a failure to make findings can amount to a question of law alone; it depends on the circumstances in each case. Similarly, a failure to provide reasons can amount to jurisdictional error in the circumstances outlined by Gleeson JA in Mulder v DPP.

23. [64]

    Turning to the circumstances of the present appeal, I am satisfied that ground 1 involves a question of law alone in the circumstances of this case. That question, which is unrelated to the facts of this particular case, is whether a Magistrate is required to make findings as an aspect of the duty to give reasons. That is the question of law alone implicit in the appeal.

24. [65]

    In any event, even if I was not satisfied that any of the grounds involved a question of law alone, the plaintiff would still be able to seek relief by way of judicial review of the decision of the Local Court on the basis that a failure to provide adequate reasons is an error law on the face of the record amenable to review in this Court: Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [130] per Basten JA.

25. [66]

    It is not apparent from the reasons that his Honour made any factual or legal findings before dismissing the charge. On the contrary, his Honour’s reasons included the following observations:

    1. (1)

       The accounts of the complainant were more similar than “apart”.

    2. (2)

       “The things that seem to be proven are the things that are admitted by the defendant which accord with the accounts given by the complainant.”

    3. (3)

       Neither the complainant nor the defendant was deliberately telling falsehoods to police.

    4. (4)

       His Honour could not decide whether one witness was more compelling than the other.

    5. (5)

       Although an assault is proved prime facie, beyond that “the evidence is the evidence of one person against another”.

    6. (6)

       In most of the evidence, there seems to be substantial agreement.

    7. (7)

       The Court is left with is a “melee caused by an argument, exacerbated by too much alcohol and … the general pressures surrounding this family as a result of the family law proceedings”.

    8. (8)

       The evidence does not meet the standard required for convicting the defendant.

26. [67]

    It is not apparent as to why, when his Honour was satisfied that both witnesses told the truth to police (which included the defendant admitting to two slaps), his Honour went on to dismiss the charge. It is to be accepted that it is often difficult for a judicial officer to make findings in a matter where both the complainant and the defendant appear to be truthful. However, it is a part of the judicial function to do so and that function was not discharged in this matter.

27. [68]

    The reasons of the learned Magistrate do not disclose the elements of the offence, the issues in dispute or why he ignored the complainant’s bruising (in circumstances where neither accident nor self-defence were raised). As for the admissions, the defendant admitted to twice slapping the complainant in his ERISP then changed this to one slap in his oral testimony yet was unable to explain the difference, only conceding that his memory would have been better at the time he made his ERISP. None of that evidence was mentioned at all in the reasons.

28. [69]

    In pointing out these inadequacies in the reasons I do not wish to be taken to be making any factual findings or indicating either way what findings should have been made. My role does not extend to merits review. It has simply been necessary to identify these aspects of the evidence to dispose of this appeal.

29. [70]

    One of the submissions made on behalf of the defendant in written submissions was that his Honour’s reasons could be gleaned in part in the exchanges with the advocates during final submissions. Johnson J addressed that issue in DPP v Illawarra Cashmart at [19] as follows:

30. [71]

    At the hearing of the appeal Mr Jauncey properly conceded “that the reasons given by the magistrate are at best opaque, they are I think on any reading inadequate…”. The focus of his submission was that the matter would not be remitted to the Local Court for a re-hearing because the finding in the Local Court was one that was open to his Honour. Reliance was placed on the decision of Meagher JA in Beale extracted above at [44].

31. [72]

    Section 59(2)(a) of the CAR Act provides that I may determine this appeal by setting aside the Magistrate’s order and making such other order as I think is just. In Director of Public Prosecutions (NSW) v Sadler [2013] NSWSC 718, Bellew J observed at [100] that it is apparent that there are differing views as to whether this Court retains a discretion not to remit a matter to the Local Court in the event error is shown. His Honour set out the relevant authorities at [101]-[104] before finding at [105] that it was not necessary for him to decide the issue in that matter. I have reached the same conclusion as Bellew J. As his Honour observed at [105]:

32. [73]

    There is no need for me to separately consider grounds 2 and 3 given that I would uphold ground 1.

33. [74]

    Finally, at the hearing of the appeal, Mr Balodis advised the Court that in the event that the DPP was successful it did not seek any costs order against the defendant. Accordingly, there will be no order as to costs.

ORDERS

1. [75]

   I therefore make the following orders:

   1. (1)

      The appeal is allowed.

   2. (2)

      The order of Magistrate George made on 24 March 2021 at Hornsby Local Court dismissing the charge against the defendant of assault occasioning actual bodily harm contrary to s 59(1) of the Crimes Act 1900 (NSW) is set aside.

   3. (3)

      The proceedings are remitted to the Hornsby Local Court to be determined according to law.