AG v Director of Public Prosecutions (NSW)

1. [1]

   BASTEN JA: On 4 April 2012 the applicant was arrested and charged with four counts of aggravated indecency, three involving his stepdaughter, GL, and one involving his step-granddaughter, SD. (The applicant and the complainants are anonymous in keeping with the statutory prohibition on publication of material identifying the complainants. [1] ) The charges were heard over seven days at Lismore Local Court, before Magistrate Denes. The applicant was found guilty on each count, judgment being delivered on 15 November 2013. The matter was adjourned to 24 January 2014 for sentence.

2. [2]

   The applicant appealed, pursuant to s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Appeal and Review Act”), against both convictions and sentences. According to the judgment on appeal given in the District Court on 25 September 2014, the notice of appeal was dated 24 January 2014 which was described as the day on which he was convicted of the offences. However, the Local Court transcript clearly records the magistrate convicting him on 15 November 2013. [2]

3. [3]

   On the appeal, the primary judge (Whitford DCJ) set aside the conviction on one charge but dismissed the appeal with respect to the other three charges. The magistrate imposed custodial sentences which were stayed by the lodging of the appeal; the judge continued bail. Although the appeal extended to the severity of the sentences imposed, nothing before this Court identified the sentences, nor was that part of the appeal disposed of in the District Court, [3] the outstanding matters being stood over to a date to be fixed.

4. [4]

   There is no right of appeal from the judgment of the District Court. In that circumstance, the applicant filed a summons on 13 November 2014 seeking to have this Court quash his convictions pursuant to the supervisory jurisdiction conferred by s 69 of the Supreme Court Act 1970 (NSW). An amended summons was filed on 6 February 2015, although the nature of the amendments is not apparent.

Appellate jurisdiction of District Court

1. [5]

   Although the point was inadequately addressed in the submissions of the parties, this case raised in stark form a difficulty inherent in the statutory scheme for appeals in criminal jurisdiction from the Local Court to the District Court. That is, how is the District Court to approach an appeal against conviction where the outcome depends almost entirely on the credibility of the complainants, on the one hand, and of the defendant, on the other? On the basis of the statutory provisions and authorities referred to below, three propositions are well established, namely:

   1. (1)

      the appeal, described as “by way of rehearing”, does not involve a hearing de novo (or fresh trial) as if the original trial had not occurred;

   2. (2)

      the appeal is not an appeal “in the strict sense”, so as to be limited to the evidence before the magistrate, to be determined on the law as it then applied; and

   3. (3)

      the judge on appeal is bound to observe the “natural limitations” which arise where the appeal is conducted by reference to a documentary record.

2. [6]

   In circumstances where neither party seeks to call oral evidence on the appeal, the following outcomes must be considered:

   1. (1)

      if the appellant fails to demonstrate error on the part of the magistrate, the appeal must be dismissed;

   2. (2)

      if the prosecutor (respondent) is unable to persuade the judge that the charges have been made out beyond reasonable doubt, the appeal must be upheld;

   3. (3)

      the judge, being unable to determine the matter in the absence of oral evidence, must require the parties to call witnesses; or

   4. (4)

      the judge, being unable to determine the matter, must set aside the conviction and remit the matter to the magistrate.

3. [7]

   For reasons which will be explained, there are difficulties attending the adoption of any one of these solutions. To understand why that is so, it is necessary to have regard to the statutory scheme encompassed by the key provisions of the Appeal and Review Act.

4. [8]

   Because the determination of the charges depended entirely upon accepting the evidence of the complainants and rejecting the evidence of the defendant as not raising a reasonable doubt, all the judge could say was that it was open to the magistrate to accept the evidence of the complainants and reject that of the defendant, so as to be satisfied beyond reasonable doubt that the defendant was guilty as charged. Put negatively, the judge could not be satisfied on the material before him beyond reasonable doubt, because he had neither seen nor heard the complainants cross-examined, nor had he seen or heard the defendant give evidence. (He had seen and heard a video recording of the complainants’ evidence-in-chief.) This raises starkly a question as to which of the possibilities noted above should follow.

5. [9]

   There are statements which appear to contradict the first possibility, namely that for an appeal to succeed, the appellant must persuade the judge that the magistrate erred. The primary support for that negative proposition is to be found in Gianoutsos v Glykis. [4] It is necessary to set out the statements from the judgment of McClellan CJ at CL (with whom Sully and Hislop JJ expressed agreement):

6. [10]

   The critical element in this reasoning is that the absence of a power to remit means that the powers exercised by the District Court are not dependent upon a finding of error. (Contrary to the reference at [39], the powers are not found in s 18, but in s 20.) However, there is an elision in the reasoning: if the District Court sets the conviction aside, what is the consequence? There are three possible consequences, namely:

7. [11]

   If s 20(1) is to be read as limited to the powers expressly conferred, there is no power to do either of (a) or (b). In that (somewhat unsatisfactory) state of affairs, (c) is the most plausible consequence, because an undetermined charge does not need to be remitted – the function of the Local Court remains unperformed.

8. [12]

   Assuming for present purposes that the District Court does not have a power of remitter, there is no doubt that it has power to “rehear” the charges subject to appeal. However, it is difficult to understand why a power to set aside a conviction is, in the absence of a power to remit, not dependent upon a finding of error. In considering the statutory scheme, it appears that insufficient weight was given to the fact that the District Court was conducting “an appeal”; that with respect to “an appeal by way of rehearing” the usual understanding is that the appellant must demonstrate some form of legal, factual or discretionary error, but that error may be identified from evidence which was not before the magistrate. This view is consistent with recent authority in this Court. [10]

9. [13]

   Two other matters were relied upon in Gianoutsos. The first was the distinction drawn, by contrast with an appeal to the Supreme Court against conviction, between an order setting aside the conviction and an order “setting aside the conviction and remitting the matter to the Local Court … for redetermination in accordance with the Supreme Court’s directions”. [11] There are two reasons for doubting the value of the comparison. First, appeals from the Local Court to the Supreme Court against conviction or sentence can only be made as of right “on a ground that involves a question of law alone.” [12] Where an appeal is brought on a ground that involves a question of fact or a question of mixed law and fact, leave is required. [13] The different functions of the Supreme Court provide a basis for the statement of powers in a different form. Secondly, and consequentially upon the first point, it is understandable that, where there is an appeal on a question of law, the statute should expressly provide for the Supreme Court to give directions as to how the matter is to be redetermined.

10. [14]

    The final aspect of Gianoutsos to be noted is the reference to the reasoning of the Court of Criminal Appeal in Kurtic. [14] In that passage, Hunt CJ at CL stated that the Court of Criminal Appeal, exercising functions under the Criminal Appeal Act 1912 (NSW), “acts as a court of error.” If error were established, and subject to the proviso to s 6(1), the power of the Court was to order a new trial: there was no power to make a finding that could have been made by the trial court. The point being made was that similar limitations applied where the trial was by judge alone, rather than before a jury. The contrary proposition, namely that the power to act otherwise than by ordering fresh proceedings would indicate that the court was not a court of error, is not to be found in the judgment. What is more, such a proposition would be inconsistent with the reasoning in Allesch v Maunz set out by the Chief Judge in Gianoutsos in the preceding paragraph. It is not in doubt that the District Court (a) does not conduct a hearing de novo, (b) is not limited to an appeal in the strict sense, but (c) is to conduct a rehearing. Kurtic may be put to one side.

11. [15]

    Finally, with respect to Gianoutsos, it is important to note the context in which the reasoning appears. The judge in the District Court had dealt with the appeal as if it were a hearing de novo. In response to questions stated for the Court of Criminal Appeal, it was held (uncontroversially) that this approach was in error. It was clearly an error of law. The comments set out above were made in discussing whether it was an error of law (which could hardly be doubted), although that was also said not to be material to the resolution of the matter. [15] Most of the arguments set out above were therefore unnecessary for the conclusion reached and, except quite indirectly, did not support it.

12. [16]

    In Director of Public Prosecutions v Emanuel, [16] Spigelman CJ (Tobias JA agreeing) noted that it was “common ground” that the District Court had no power to order a remitter to the Local Court. I suggested the following analysis: [17]

13. [17]

    This issue was also addressed in Director of Public Prosecutions (NSW) v Burns. [18] The issue in Burns was whether the District Court judge, having identified error of a kind relevant in the exercise of the supervisory jurisdiction, rather than an appeal on the merits, erred in “quashing” the conviction. The Court was unanimous in dismissing the Director’s application for judicial review. After referring to the clear statement to similar effect in Commissioner for Railways (NSW) v Cavanough, [19] Beazley JA said: [20]

14. [18]

    Beazley JA (with whom Campbell JA agreed) considered whether there was an implied power to remit in circumstances where the intention was that the charge should be dismissed. The suggestion raised by me in Emanuel was rejected as not expressing a concluded view and as dealing with a different case. [21] Beazley JA was ultimately persuaded that the matter could be resolved by reference to s 73 of the Appeal and Review Act which states:

15. [19]

    What was not explained was how a recording that a conviction had been set aside amounted to the dismissal of a charge, in circumstances where the setting aside of the conviction did not have that effect.

16. [20]

    I referred in Burns to the reasoning in Emanuel and Cavanough; I further noted that, on an appeal by way of rehearing, the appellate court will usually be entitled to intervene where it finds a material error. [22]

17. [21]

    Before reaching any conclusion with respect to the options available to the District Court, it is convenient to return to the language in the statutory provisions. First, as has been noted, s 11(1) confers a right to “appeal” against a conviction. Although the term “appeal” is not always used in a technically correct sense, its use in combination with the provision in s 18(1) that the appeal “is to be by way of rehearing” is to adopt language which conventionally invokes appellate jurisdiction and not original jurisdiction, as would be the case with a fresh hearing. Yet to identify the function of the District Court as one in which the prosecution bears the onus of proving its case beyond reasonable doubt, in the absence of any demonstrated error on the part of the magistrate, is to import into the appeal a critical feature of a fresh hearing.

18. [22]

    Secondly, although it is common for a statutory appeal by way of rehearing to permit the adducing of fresh or further evidence, there are always limits on that power. [23] The powers in ss 18 and 19 are broader. Section 18(1) provides the norm, namely that the appeal will be reheard “on the basis of evidence given in the original Local Court proceedings”. That proposition is said to be subject to s 19, but it is also, by necessary implication, subject to s 18(2). The latter provision permits “fresh evidence” to be given by leave of the District Court and only if the Court is satisfied that it is “in the interests of justice”. The term “fresh evidence” is defined to mean “evidence in addition to or in substitution for” the evidence given in the Local Court. [24]

19. [23]

    The concept of evidence in substitution for evidence given at trial is somewhat ambiguous. There may be an inference that either party can withdraw evidence given before the magistrate, in the sense of excluding it from the record. There does not appear to be any discussion of such an approach in the cases, although there have been cases dealing with additional evidence, such as an attempt by the prosecution to rely on post-conviction admissions by the defendant. [25] The need to satisfy the Court that adducing such evidence would be “in the interests of justice” may make the tender of fresh evidence unusual.

20. [24]

    The circumstances referred to in s 19 fall into a different category. Although the provision refers generally to persons being required to attend and give evidence, it appears to set its own criteria and thus does not operate by way of qualification to s 18(2). On that basis, it should be understood as referring to persons who gave evidence before the magistrate. Two categories are envisaged, namely evidence from persons who have been the victims of violence and other cases. The complainants in the present case would fall within the first category. Accordingly, the court could only direct that they attend to give evidence if satisfied that “there are special reasons why, in the interests of justice” that course should be taken. (It is not necessary to consider for present purposes the nature of the difference between “special reasons” – in par (a) – and “substantial reasons” – in par (b).) The critical issue, which again appears not to have been addressed in the cases, is whether the fact that the conviction depended upon the credibility of the victim would constitute a “special reason”, making it in the interests of justice for her to be required to attend and give evidence. On one view, that must be a common occurrence, in which case it would be contrary to the plain intention of the provision, namely to protect victims of violence from repetitive court appearances, [26] because it would permit that to happen routinely.

21. [25]

    The operation of the provision was not addressed in argument, there having been no application by either party to call any person who gave evidence before the magistrate. That raises two questions. First, does the District Court judge have a power to make a direction on his or her own motion? Secondly, if not, how is the judge to dispose of the appeal?

22. [26]

    Again, the first question is largely theoretical in this case: there was no challenge to the failure of the judge to give such a direction. Accordingly, it should be accepted that the judge acted within power by seeking to dispose of the matter without hearing the complainants’ cross-examined and without hearing the defendant give evidence.

23. [27]

    The second question, however, becomes critical: if the onus were on the appellant to demonstrate some error on the part of the magistrate in order to have the convictions set aside, he did not do so and, for reasons given below, the judge did not fail to exercise his jurisdiction in concluding that there was no such error. On the other hand, if the onus on the appeal were, despite the lack of demonstrable error, on the prosecution to prove to the satisfaction of the judge that the defendant was properly convicted, it could not do so without the judge hearing the relevant evidence.

24. [28]

    There is no authority which supports the latter conclusion. Adopting that conclusion would, to a large extent, make the appeal a de novo hearing where the case is one of oath against oath. That is entirely inconsistent with the conventional understanding of an appeal by way of rehearing; it is also inconsistent with the common statements that the appeal judge should be conscious of the “natural limitations” on his or her power to assess the record of evidence given before the magistrate. Those comments have never been accompanied by a suggestion that the judge should have the witnesses recalled; rather, at least implicitly, they assume that the judge should accept the credibility findings of the magistrate in the absence of some demonstrated reason to doubt them.

25. [29]

    In Charara v The Queen [27] Mason P, having referred to the terms of s 18 of the Appeal and Review Act, stated: [28]

26. [30]

    Mason P noted, referring to the civil case of Fox v Percy, [29] that the court must of necessity observe the “natural limitations” that exist where a review is undertaken on the record. [30] In Fox v Percy, Gleeson CJ, Gummow and Kirby JJ stated: [31]

27. [31]

    On the present application, counsel for the Director took the concept of limitations noted in Fox v Percy a step further. She identified the power of the appellate court to review factual findings based on credibility as available only where error is demonstrated by “incontrovertible facts or uncontested testimony” [32] or else, in quite rare cases, where the decision at trial is “glaringly improbable” or “contrary to compelling inferences”. [33]

28. [32]

    There are two reasons to approach such language with caution. First, where the court has a written judgment from the trial judge, as opposed to an opaque verdict of a jury, it may be possible to identify error in an assessment of credibility without demanding satisfaction of phrases expressed at a high level of generality and with a degree of hyperbole. Secondly, the exercise being undertaken in the criminal jurisdiction imposes a different frame of reference. Where, on an appeal from a conviction on indictment, it is alleged that a jury verdict is unreasonable or cannot be supported having regard to the evidence, or where error is otherwise established and the court is required to consider whether no substantial miscarriage of justice has actually occurred (the proviso [34] ), a somewhat similar exercise is required. Thus, in considering the application of the proviso, the High Court stated in Weiss v The Queen: [35]

29. [33]

    In identifying the scope of the statutory task, the Court in Weiss then noted that, in making its own independent assessment of the evidence, and determining whether the guilt of the accused was proved beyond reasonable doubt, the appellate court will make “due allowance for the ‘natural limitations’ that exist in the case of an appellate court proceeding wholly or substantially on the record”. [36] The reference to “natural limitations” picked up the language of Fox v Percy at [23], [37] but did not adopt the emphatic language at [28] and [29].

30. [34]

    Although the cases dealing with appeals (as distinct from further hearings) frequently refer to discernment of “error”, that term has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was “wrong and should be corrected.” [38] Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend upon a range of factors. [39] Indeed, a miscarriage of justice warranting intervention may occur in the absence of “error” in the ordinary meaning of that term. [40]

31. [35]

    In considering the nature of the exercise to be undertaken by this Court, it is permissible to have regard to the errors sought to be identified in the District Court and the issues thereby raised for consideration by the primary judge. In short, with possible exceptions which need not be considered, it is not open to the applicant to allege a failure on the part of the District Court to exercise its jurisdiction by reference to challenges to the Local Court judgment which were not raised in the District Court.

32. [36]

    Two further matters, one of principle and one of practice, should be noted. With respect to principle, in circumstances where the Court of Criminal Appeal was required to consider for itself whether the evidence supported a verdict of guilty, SKA v The Queen, [41] Simpson J declined to view a video of the complainant’s evidence-in-chief on the basis that to do so might create an imbalanced impression as the court would not be viewing the evidence of other witnesses, nor indeed the cross-examination of the complainant. [42] In the High Court, a ground alleging error in that constrained approach was rejected. [43] Although the District Court judge did watch the videos, that exercise did not assist him in identifying error on the part of the magistrate. [44]

33. [37]

    The issue of practice concerns the standard notice used to commence an appeal to the District Court from the Local Court. No standard form is prescribed, but one is supplied by the Court. For an appeal against conviction, the notice effectively requires that the appellant mark a box giving as the reason, “I am not guilty”. That would be appropriate for a fresh hearing, but not for an appeal by way of rehearing. Arguably, the form itself does not comply with s 14(2) of the Appeal and Review Act which requires the notice to state “the general grounds of appeal.” That statutory language implies the need to state, at least in general terms, some basis upon which the magistrate is thought to have erred.

Application of principles

1. [38]

   Neither the summons nor the applicant’s written submissions identified specific grounds upon which the relief was sought. Given the limited nature of this Court’s supervisory jurisdiction, that omission resulted in the written submissions filed on behalf of the respondent Director dealing with the supposed errors on the part of the judge in a confined way, without addressing all the issues raised by the applicant’s submissions.

2. [39]

   As the case was presented, the primary ground of challenge was that the judge misapprehended the extent of his statutory jurisdiction under s 18 of the Appeal and Review Act and thereby dealt with the appeal on a more limited basis than was required by law. Such a challenge may be described as a constructive failure on the part of the judge hearing the appeal to exercise the jurisdiction conferred on the District Court. That is a permissible ground of review and constitutes jurisdictional error, if made good. No other form of legal or factual error is reviewable by this Court. [45] That means that this Court cannot (and was not invited to) review any aspect of the decision in the Local Court. Indeed, that course would no longer be appropriate, the judgment of the Local Court having been superseded by the judgment in the District Court. [46] That is not to say that the evidence before the Local Court and the magistrate’s reasons were not relevant and admissible to allow an understanding of the course of the District Court proceedings

3. [40]

   The primary material available to this Court to assess a constructive failure to exercise jurisdiction is the judgment of the District Court. Usually it would be necessary to have regard to the initiating process in that Court in order to understand the scope of the appeal. That document was not available, but it appears from material which was tendered that the parties proceeded on the basis that it was, in colloquial terms, an “all grounds appeal”. [47] That, it may be accepted, was intended to invoke the full extent of the statutory jurisdiction. However, like many colloquialisms, the phrase, implying a fresh hearing, is inaccurate. No part of either s 18 or s 19 was invoked: the evidence before the District Court was limited to the transcript of proceedings in the Local Court, together with both audio-visual recordings and transcripts of the police interviews with the two complainants. Other than the evidence-in-chief of the complainants, the District Court judge therefore neither heard nor saw any of the witnesses called over seven days in the Local Court. He did not see or hear the cross-examination of the complainants.

4. [41]

   The function able to be performed by the appeal court in those circumstances is constrained. Particularly is that so where, as in the present case, the convictions were almost entirely dependent upon acceptance beyond reasonable doubt of the evidence of the two complainants, who were approximately 10 or 11 years of age at the date of the alleged offences and a year or so older at the date of the trial.

5. [42]

   Having set out the background to the charges and convictions, the primary judge noted [48] that the appellant had filed “extensive written submissions” and had “addressed orally, in considerable detail, on the various matters raised in those written submissions.” He then sought to identify two categories of challenge, the first being specified errors committed by the magistrate; the second being aspects of the evidence which were said to cause “such disquiet in respect of the result as to warrant allowing the appeal and setting aside the convictions.” [49]

6. [43]

   The judge addressed the errors by reference to the following categories, namely:

   1. (1)

      various errors said to indicate prejudgment;

   2. (2)

      misuse of evidence that the appellant’s wife left home suddenly with her daughter and

   3. (3)

      evidence of an alibi with respect to the first offence involving GL (referred to as the sequence 3 offence).

7. [44]

   The judge dealt in an orderly manner with the particulars said to give rise to prejudgment and rejected the various complaints. He dealt separately with complaints concerning the departure of the applicant’s wife, [50] and the issue involving the alibi. [51] With respect to the alibi, the judge noted that the magistrate had accepted as a real possibility that the applicant was not in Ballina (where the offence was alleged to have occurred) at the time in question. That should have been sufficient to raise a reasonable doubt as to his guilt in circumstances where the prosecution had amended the particular charge so as to specify the day on which the events took place. The judge treated the magistrate as having determined that issue on the basis that the charge alleged an offence “on or around” the specified date, which he held to be incorrect. He therefore set aside the conviction on that charge.

8. [45]

   None of this material reveals any failure to exercise the jurisdiction of the Court. Further, the approach adopted by the judge followed the submissions in the District Court in identifying particular deficiencies in the prosecution case. However, beyond addressing the specific challenges, the judge felt unable to carry out a conclusive assessment of the whole of the evidence, which was described by the appellant in his submissions as involving “oath against oath”. Thus, the judge stated: [52]

9. [46]

   Having assessed the second issue noted above, the judge returned to the theme just outlined, stating: [53]

10. [47]

    There is nothing in this passage which demonstrates a failure on the part of the judge to carry out his function under s 18 of the Appeal and Review Act. On the contrary, he clearly understood that the appeal was by way of rehearing, using language reminiscent of that used in Fox v Percy and other cases, such as Weiss, reflecting the function of the court conducting a rehearing, subject to identifiable limitations.

11. [48]

    In these circumstances, a legitimate basis of challenge in the supervisory jurisdiction of this Court, which may be identified as a constructive failure to exercise jurisdiction, has not been established.

12. [49]

    The summons should be dismissed with costs.

13. [50]

    SIMPSON JA: The circumstances in which this application comes before the Court are set out in [1]-[4] of the judgment of Basten JA, which I have read in draft. Pursuant to s 69 of the Supreme Court Act 1970 (NSW), the applicant seeks review of the decision of Whitford DCJ on an appeal brought before him, under s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) (“the Appeal and Review Act”), against the applicant’s conviction of four offences by a magistrate in the Local Court. Such an appeal is expressed, in s 18 of the Appeal and Review Act, to be “by way of rehearing on the basis of evidence given in the original Local Court proceedings”. The applicant claims in this proceeding that Whitford DCJ failed to discharge his function, which required him to make an independent assessment of whether the prosecution had proved, to the criminal standard, the applicant’s guilt of the offences.

Background

1. [51]

   In August 2013 the applicant was charged in the Local Court in Lismore with four counts of sexual offences allegedly committed over a period in 2010 and 2012. Three of the charges named his step-daughter (to whom I will refer as “G”) as complainant; the fourth named G’s niece (the applicant’s step-granddaughter, to whom I will refer as “S”) as complainant. Notwithstanding their familial relationship, G and S are of similar age, G having been born in February 2002, S in October 2001.

2. [52]

   Evidence and submissions in the proceedings in the Local Court took place over six non-consecutive days between August and November 2013. The evidence in chief of the complainants was given, pursuant to s 306S of the Criminal Procedure Act 1986 (NSW), by way of video recordings of interviews they gave to police during the course of the investigation that took place following their disclosure of the offences. The complainants were cross-examined. In the course of the cross-examination, it was suggested that the complainants had been motivated to fabricate their evidence because the applicant’s relationship with his wife (G’s mother and S’s grandmother) had broken down and there were financial issues.

3. [53]

   In a preliminary hearing the magistrate ruled that tendency evidence would be admitted in accordance with s 97 of the Evidence Act 1995 (NSW). However, she later reversed that ruling, and did not allow the prosecution to rely on tendency reasoning.

4. [54]

   The applicant was legally represented in the proceedings. He gave evidence in the hearing.

5. [55]

   One issue that needs to be noted here arose during the course of the proceedings. This related to one of the counts in respect of which G was the complainant. On the first day of the hearing the Crown amended the charge (which had initially stated a range of dates between which the offence was alleged to have been committed) to allege that the offence was committed on 4 February 2012 (which was pinpointed by reference to its relationship to G’s birthday). The applicant produced documentary evidence that, he claimed, established that he had been interstate on that date.

The judgment of the Local Court

1. [56]

   After hearing evidence and the submissions of the parties, the magistrate convicted the applicant on all four counts. She gave lengthy reasons for doing so. With respect to the count as to which the applicant had raised an alibi defence, she held:

2. [57]

   Her Honour placed considerable emphasis on her observations of G’s video recorded interview, which, she said, she had watched a number of times. With respect to G, she said (inter alia):

3. [58]

   She gave different reasons for accepting the evidence of S, referring extensively to defence submissions that S was confused and her evidence inconsistent; essentially, her Honour rejected these submissions. She expressly rejected the motive to fabricate evidence advanced on behalf of the applicant.

4. [59]

   She referred to the applicant’s evidence, noting that he had denied all allegations, and observed:

The appeal to the District Court

1. [60]

   Pursuant to s 11 of the Appeal and Review Act, the applicant appealed to the District Court. The appeal came before Whitford DCJ on 23 and 24 September 2014. Although s 18(2) and s 19(1) of the Appeal and Review Act make provision, respectively, for fresh evidence to be given (by leave), and for the District Court (in specified and limited circumstances) to direct a person to attend and give evidence, no application under either provision was made, and the appeal proceeded on the basis of the evidence given in the Local Court.

2. [61]

   Lengthy written and oral submissions were made. The written submissions included a list of 12 asserted errors in the judgment of the magistrate. These can be refined to:

3. [62]

   A further submission was made under the heading “Deficiencies in the evidence [in the Local Court]”, under which a lengthy list of such asserted deficiencies was made.

4. [63]

   Senior counsel who represented the applicant spoke at some length, in oral submissions, to the submissions already made in writing. A significant part of the address was directed to the argument that the magistrate had “pre-judged” the issues, because of the favourable view she had formed of the complainants, particularly G. He invited the judge to view the video recordings of the interviews with the complainants. He reminded the judge that:

The judgment of the District Court

1. [64]

   With respect to the written submissions, Whitford DCJ is recorded as saying:

2. [65]

   His Honour then discerned “three principal categories” of the applicant’s submissions, as follows:

3. [66]

   He rejected the contention that the magistrate had prejudged the issue, finding that she had “gone to great lengths to expose the matters that persuaded her to her ultimate acceptance of the complainants beyond reasonable doubt”. With respect to the argument concerning her assessment of G’s credibility, he said:

4. [67]

   He found that the magistrate had adequately directed herself with respect to the task of fact finding.

5. [68]

   He turned to a submission that her Honour did not “expose any reasoning process for rejection of [the applicant’s] evidence”. As to that, he said:

6. [69]

   He then said:

7. [70]

   His Honour then turned to the 4 February count, in respect of which the applicant raised an alibi defence. He considered that the magistrate’s conclusion that “I do not consider time to be of the essence” was contrary to the effect of the amendment by the Crown to the charge, in which it specified 4 February as the date of the offence. He said that the magistrate “read and determined the charge as though it read ‘on or around’ 4 February”. He considered that the reasonable possibility that the applicant had been interstate on 4 February 2012:

8. [71]

   He set aside the conviction with respect to the 4 February 2012 count, and confirmed the convictions on the remaining three counts.

The application to this Court

1. [72]

   The application to this Court is for judicial review of the decision of the District Court. The grounds advanced are:

2. [73]

   Written submissions filed in support of the application followed the tenor of the grounds. They included:

3. [74]

   Section 18(1) of the Appeal and Review Act is explicit that an appeal under s 11 is to be by way of rehearing; and (unless leave is granted under sub-s (2) to adduce fresh evidence, or the District Court directs, in accordance with s 19(1), that oral evidence be given) is to be conducted on the basis of evidence given in the Local Court proceedings. What s 18(1) is not explicit about is the precise nature of the rehearing, and the task of the District Court judge hearing the appeal.

4. [75]

   The central legal proposition in the applicant’s submissions is that s 11 (read with s 18) confers powers that may be exercised whether or not there was error at first instance. The obligation of the District Court judge is to bring to bear an independent judgment on the question of whether the prosecution has proved, beyond reasonable doubt, the guilt of the person accused. An appeal under s 11 is therefore not limited to the identification of error in the Local Court, and is not determined simply by concluding that no error has been demonstrated on the part of the Local Court magistrate. (Nor is the exercise of the powers granted by s 20(1)(b) of the Appeal and Review Act dependent upon the identification of error.)

5. [76]

   The submissions of both parties proceeded on this basis. No argument was directed to the proposition that, because the appeal is by way of rehearing, it is necessary that the appellant demonstrate error at first instance. However, since Basten JA (if I understand his Honour’s judgment correctly) has taken the view that error must be demonstrated, and since I have (tentatively, as the question was not argued) come to a contrary view, it is appropriate that I explain my reasons, conscious that they must be tentative.

The legislation and relevant authority

1. [77]

   In order to explain the issues, it is necessary to set out some provisions of the Appeal and Review Act:

2. [78]

   It is to be observed that the powers of the District Court specified in s 20 do not include a power to remit the proceedings, for further hearing, to the Local Court. That is, in my opinion, of some significance.

3. [79]

   In Allesch v Maunz [2000] HCA 40; 203 CLR 172, Gaudron, McHugh, Gummow and Hayne JJ in a joint judgment identified three kinds of appeal:

4. [80]

   It is clear that appeals under s 11 are not “appeals in the strict sense”; it is equally clear that they are not appeals by way of hearing de novo. The present question is whether these are appeals that require the identification of error, as defined in Allesch, or whether the terms of the Appeal and Review Act indicate that the powers conferred on the District Court may be exercised regardless of error.

5. [81]

   The authority cited for the proposition that an appeal by way of rehearing might not be confined to identification of error was Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; 170 CLR 267. The relevant statute in that case was s 88F of the Conciliation and Arbitration Act 1904 (Cth) which provided for appeals from a Registrar of the Australian Industrial Relations Commission to the Commission. Leave was required to appeal; where leave was granted, by sub-s (3) the Commission was empowered to take further evidence. The statute did not otherwise specify the nature of the appeal. By sub-s (4) the Commission was empowered to confirm, quash or vary a decision against which an appeal was brought. The High Court (constituted by Deane, Gaudron and McHugh JJ) considered that the provisions of sub-s (3) and sub-s (4) were strong indications that the appeal was to be by way of rehearing. Nevertheless, the Court did not find that the appellate jurisdiction could be exercised only after the identification of error. Rather, the Court held:

6. [82]

   The citation in Allesch of Brideson (No 2) denotes acceptance that the power to take further evidence and the power to confirm, quash or vary a decision are indicators that the appeal (although said to be by way of rehearing) did not depend upon identification of error.

7. [83]

   The conclusion in Brideson (No 2) is also consistent with what was said by Windeyer J in Da Costa v Cockburn Salvage and Trading Pty Ltd [1970] HCA 43; 124 CLR 192 at 208-9 as follows:

8. [84]

   There is nothing in either Brideson (No 2) or in the Federated Carters’ and Drivers’ case that calls for the identification of specific error before the obligation for the appellate court to exercise independent judgment arises.

9. [85]

   On these authorities, I would conclude that it is not necessary, before the appellate power of the District Court is exercised, that error of law, fact or discretion be shown.

10. [86]

    Authorities in this Court and the Court of Criminal Appeal are, however, not so easy to reconcile.

11. [87]

    In Gianoutsos v Glykis [2006] NSWCCA 137; 65 NSWLR 539 the Court of Criminal Appeal considered that the Appeal and Review Act did indicate that the powers of the District Court could be exercised regardless of error. At least part of the reason for this was the absence of any statutory power to remit the proceedings to the Local Court.

12. [88]

    But, in Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92, Gleeson JA, with whom Ward JA and Johnson J agreed, said:

13. [89]

    Mr Mulder faced two separate prosecutions of federal offences in the Local Court. On each occasion, he was convicted, and on each occasion, he appealed under s 11 of the Appeal and Review Act to the District Court. Each appeal was dismissed. Mr Mulder applied to this Court for judicial review of the decisions.

14. [90]

    Mr Mulder’s first appeal came before Hock DCJ. As recorded in the judgment of this Court ([62]-[68]) her Honour independently considered the evidence in the Local Court, and declared herself satisfied beyond reasonable doubt that each of the charges had been proved.

15. [91]

    There is no suggestion that, before proceeding to make that assessment, Hock DCJ had identified any error in the judgment of the magistrate from whom the appeal was brought. Nor was there any suggestion in the judgment of this Court that it was either wrong or unnecessary, in the absence of identified error, for Hock DCJ to have embarked on her independent judgment.

16. [92]

    Mr Mulder’s second appeal came before Toner DCJ. Again, the judgment of this Court shows that, like Hock DCJ, his Honour made an independent and comprehensive analysis of the evidence in the Local Court, and reached the same conclusion as the magistrate - that is, that Mr Mulder was guilty of the offences with which he was charged. Again, there was no suggestion that, before embarking on that exercise his Honour found any error of law, fact or discretion, and no suggestion in this Court that it was therefore wrong or unnecessary for Toner DCJ to take that course.

17. [93]

    I should note here that it makes no difference that, in each case, the District Court upheld the decision of the magistrate. It is the process - of decision-making by the appellate judge - that is relevant. If it were correct that a s 11 appeal depended upon identification of error in the Local Court, then, absent some identification of error, it would have been inappropriate for Hock DCJ and Toner DCJ to have proceeded to the final exercise of determination of guilt. The appropriate order in each case would, in that circumstance, have been dismissal of the appeal, without engagement with the facts, or the inferences to be drawn from them.

18. [94]

    In Dyason, judicial review was sought and granted in respect of an appeal under s 11 against the making, in the Local Court, of an Apprehended Personal Violence Order under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The matter was remitted to the District Court for hearing and determination according to law, on the basis that:

19. [95]

    I read the second of these paragraphs as a clear statement that the jurisdictional error of the District Court judge was to fail to consider whether error on the part of the magistrate had been established. The first, however, is consistent with that contrary proposition, that the powers of the District Court are exercisable regardless of error, and on the basis of the District Court judge’s own assessment of the evidence.

20. [96]

    In an earlier decision, in the Court of Criminal Appeal, (Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39) Mason P reached the conclusion that, on a rehearing, the appellate court is, essentially, to undertake the exercise that was required of the first instance tribunal. That suggests to me that exercise of the appellate power does not depend on a finding of error. Additional comments made by Mason P highlight the difficulties that are inherent in the discharge of that jurisdiction when the task is to be undertaken on the record of the first instance hearing, without the appellate judge having the benefit of observing the witnesses. That, however, did not alter the role of the appellate court; it called for recognition that respect is to be paid to, for example, the original court’s assessment of the credibility of witnesses (see the last sentence in the passage from Da Costa extracted above, the whole of which was quoted in Charara). Mason P said:

21. [97]

    Confirmation of the view I have expressed is to be found in the following circumstance. At the time Charara was decided, s 18(1) was in a different form. It then provided:

22. [98]

    Of s 18 as it then stood, Mason P said:

23. [99]

    These observations were considered by the Attorney General’s Department of the NSW Government in a “Report on the Statutory Review of the [Appeal and Review] Act” in August 2008. The authors of the Report wrote:

24. [100]

    It was after that that s 18 was amended to its present form.

25. [101]

    It is implicit in the Report and the recommendation (and the enactment in conformity with the recommendation) that the intention was that the District Court judge would exercise an independent judgment of the guilt of the accused, aided (in the absence of the opportunity to observe witnesses and make his or her own credibility assessment) by the credibility findings of the magistrate.

Resolution

1. [102]

   I therefore proceed to consider the matters raised on behalf of the applicant on the basis that the obligation of Whitford DCJ was to form his own judgment as to the facts and whether they warranted the conclusion - his conclusion - that the applicant was guilty of the charges of which he had been convicted. It was not necessary that legal, factual or discretionary error be established.

2. [103]

   The fundamental task of a court is to exercise the jurisdiction conferred upon it, with the important proviso that that task is to be undertaken on the basis of the issues presented to the court for determination. That is precisely what Whitford DCJ did.

3. [104]

   He first dealt with and disposed of the many errors it was asserted characterised the decision of the magistrate. The assertion of error had occupied the vast bulk of the written submissions, as well as of the oral submissions. It is hardly surprising, therefore, that the vast bulk of the judgment also was devoted to those matters. The grounds of the application to this Court did not challenge any of the findings that resulted from that exercise. The complaints contained in Grounds 1 to 3 of the application to this Court are, essentially, that his Honour did not undertake the necessary task of evaluating the evidence for himself. (Ground 4 is an assertion of error in his Honour’s approach to the consequences of his finding error in the magistrate’s treatment of the alibi evidence. Such a complaint is not available under s 69 of the Supreme Court Act.)

4. [105]

   In respect of the credibility findings concerning the complainants, his Honour was necessarily limited to reliance on the findings of the magistrate, supplemented by the advantage he had in viewing the video recorded interviews, and his analysis of asserted deficiencies in their evidence. He was necessarily so limited by the provisions of s 18 and s 19, confining the circumstances in which fresh or additional evidence may be given. It is a necessary consequence of those provisions that credibility findings of a Local Court are an important resource in the exercise of the s 11 jurisdiction. The last sentence in the passage extracted above from Da Costa confirms that, on an appeal by way of rehearing, credibility assessments by the first instance tribunal are to be accorded due weight. That is made explicit in the passage from Fox v Percy quoted in Charara.

5. [106]

   Within those limits, Whitford DCJ undertook the task of making his own judgment of the facts, and of whether the prosecution had proved beyond reasonable doubt the guilt of the applicant. His decision to set aside the conviction on one count is a particularly strong indication, if more were needed, that he exercised the independent judgment that was required of him. The exercise of that judgment culminated in his endorsement of the assessment of the evidence by the magistrate.

6. [107]

   For these reasons, I agree with Basten JA that the summons should be dismissed with costs.

7. [108]

   SACKVILLE AJA: I have had the advantage of reading the judgments of Basten JA and Simpson JA.

8. [109]

   It is surprising that the precise nature of the rehearing on an appeal to the District Court pursuant to s 11(1) of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal and Review Act) is apparently not yet settled. The judgments of Basten JA and Simpson JA show that the statutory scheme for appeals to the District Court against convictions in the Local Court presents a number of inter-related questions of construction. Among these is the question of whether the District Court has an implied power to remit a matter to the Local Court and, if not, whether the omission suggests that an appeal to that Court is not limited to the identification of error.

9. [110]

   The issues of construction canvassed in the judgments of Basten JA and Simpson JA were not the subject of full argument on the application for judicial review. Their Honours’ judgments indicate that regardless of which of the competing constructions (assuming they are the only alternatives) is correct, the application must be dismissed. I prefer not to express an opinion on the question of construction until it is necessary to do so.

10. [111]

    I add the following observations on what I understood to be the principal argument advanced on behalf of the applicant.

11. [112]

    The applicant’s submissions in this Court were not closely tailored to the requirement that jurisdictional error must be established in order for the Court to intervene. Nonetheless, I understood Mr Bellanto QC, who appeared with Mr Hodgson for the applicant, to submit that the District Court Judge failed to address an argument put to him and thus fell into jurisdictional error. The particular argument that was not addressed, so Mr Bellanto submitted, was that the Magistrate considered only the veracity of the complainants’ evidence and did not give proper consideration to the applicant’s evidence in determining whether the case had been proved beyond reasonable doubt.

12. [113]

    It is true that an argument was advanced in the District Court that the Magistrate made no findings as to the applicant’s demeanour and provided no explanation as to why the applicant’s denial of wrongdoing did not create a reasonable doubt as to his guilt. If the District Court Judge overlooked this argument on the appeal, his Honour may well have constructively failed to exercise the jurisdiction conferred on the District Court by ss 11 and 20 of the Appeal and Review Act.

13. [114]

    The District Court Judge expressly referred to the submissions that the Magistrate did not expose any reasoning process for rejecting the applicant’s evidence. His Honour rejected the submission for these reasons: [54]

14. [115]

    In my view, the District Court Judge did not overlook or fail to consider the argument identified by Mr Bellanto. Whether his Honour was correct in rejecting the argument is not a matter that arises on the present application. It follows that his Honour did not fall into jurisdictional error in the manner contended for by Mr Bellanto.

15. [116]

    I agree with Basten JA and Simpson JA that the appellant has not established any other jurisdictional error on the part of the District Court Judge.