Director of Public Prosecutions (NSW) v Al-Zuhairi

1. [1]

   PAYNE JA: This is a case stated for the opinion of this Court by Colefax SC DCJ, at the request of the Director of Public Prosecutions, pursuant to s 5B of the Criminal Appeal Act 1912 (NSW).

Background

1. [2]

   Mr Al-Zuhairi, the respondent in these proceedings, was found in the Local Court to have assaulted Mr Ibrahim Almanawy, the complainant in the Local Court proceedings. The respondent is the ex-partner of the complainant’s sister. This relationship brought the offence within the definition of a “domestic violence offence” in s 3 of the Criminal Procedure Act 1986 (NSW):

2. [3]

   Section 11 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) defines a “domestic violence offence” as:

3. [4]

   A “domestic relationship” is one where a person is or has been a relative of the other person: s 5(1)(g) Crimes (Domestic and Personal Violence) Act. A “personal violence offence” is defined in s 4 of the Crimes (Domestic and Personal Violence) Act. The respondent was a “relative” of the complainant within the meaning of s 6 of the Crimes (Domestic and Personal Violence) Act.

4. [5]

   Section 289F(1) of the Criminal Procedure Act provides that when criminal proceedings involve a “domestic violence offence”, a complainant may give evidence in chief in the form of a “recorded statement” that is viewed or heard by the court:

5. [6]

   On 13 May 2017, the complainant made a “recorded statement” for the purposes of s 289F(1) of the Criminal Procedure Act. The officer in charge of the investigation, Leading Senior Constable Daniel, was the person asking the questions referred to in s 289F(1) in the “recorded statement”.

6. [7]

   On 15 September 2017, the proceedings were heard by Magistrate Freund at Liverpool Local Court. The recorded statement was identified by the officer in charge when he gave evidence and was marked for identification as “MFI A”. The complainant was then called as a witness by the prosecution and gave evidence.

7. [8]

   The evidence given by the complainant before the Local Court was audio recorded. It is common ground that “MFI A” was played to the Local Court as the complainant’s evidence in chief but that the subsequently prepared transcript does not set out the content of “MFI A”. The transcript simply states “MFI A PLAYED TO COURT”.

8. [9]

   The transcript does, however, record that there was an interruption during the playing of “MFI A” at one point. This interruption appears to have been required by the need to have an interpreter translate the video separately for the accused. No point was taken in this Court about that interruption.

9. [10]

   On 15 September 2017, the respondent was convicted in the Local Court by Magistrate Freund of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900 (NSW).

10. [11]

    On 13 October 2017, the respondent filed a notice of appeal in the District Court.

11. [12]

    On 30 January 2018, the matter came before Colefax SC DCJ. Following a brief hearing, his Honour allowed the appeal by the respondent, and pursuant to s 20 of the Crimes (Appeal and Review) Act 2001 (NSW) set aside the conviction.

12. [13]

    In the course of the appeal his Honour asked the Crown whether “MFI A” was made an exhibit in the Local Court proceedings. His Honour was informed that it had not been made an exhibit. His Honour observed in paragraph [13] of the stated case that:

13. [14]

    On 27 April 2018, the Crown filed an application for an extension of time for submission of questions of law by a District Court Judge pursuant to s 5B(2) of the Criminal Appeal Act.

The questions of law submitted to this Court

1. [15]

   On 29 April 2018, the District Court Judge submitted the following questions for determination by this Court in accordance with s 5B of the Criminal Appeal Act:

The Crown’s submissions

1. [16]

   The Crown submitted that questions 1 to 3 are “questions of law”. It submitted that the fourth question involves a mixed question of fact and law. If this is correct, this Court cannot determine question 4 as the ambit of s 5B of the Criminal Appeal Act 1912 only contemplates the submission of “questions of law” to the Court of Criminal Appeal for determination.

2. [17]

   The Crown submitted that s 289F(1) of the Criminal Procedure Act does not require the tender of the recorded statement for the contents of the recording to be admitted as evidence. It was submitted that all that is required is identified in s 289F(1) of the Criminal Procedure Act; that the recorded statement is viewed or heard by the court.

3. [18]

   It was submitted that, once “viewed” or “heard”, the representations in the recorded statement, as seen and heard by the court, become the complainant’s “evidence in chief” given to the court in the same way as if the complainant made such “representations” while sitting in the witness box.

4. [19]

   In support of this submission, the Crown noted that s 289I(1) of the Criminal Procedure Act provides that the hearsay rule and the opinion rule in the Evidence Act 1995 (NSW) do not prevent the admission or use of evidence of a representation in the form of a recorded statement.

5. [20]

   The Crown submitted that the police prosecutor’s approach in the Local Court proceedings in asking that the recorded statement be marked “MFI A”, rather than tendering it so that it became an exhibit, was the correct manner in which to proceed. Provided that the recorded statement was “viewed” or “heard” by the Local Court, the recorded statement became part of the complainant’s evidence in chief in the original Local Court proceedings and was part of the evidence in those proceedings.

6. [21]

   The Crown submitted that playing the recording and marking the recording for identification rather than tendering it was clearly the approach intended by the legislature when regard is had to the second reading speech of the Criminal Procedure Amendment (Domestic Violence Complainants) Bill 2014 (NSW), which inserted Part 4B into the Criminal Procedure Act. In that second reading speech, then Attorney-General Hazzard explained the new provisions thus:

7. [22]

   In supporting this construction of s 289F(1) of the Criminal Procedure Act and the appropriate procedure to be adopted, the Crown relied on the High Court’s judgment in Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55 at [86]-[98] and on R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 and CF v R [2017] NSWCCA 318 at [56]-[78].

8. [23]

   The Crown submitted that this Court should, in accordance with s 5B(3) of the Criminal Appeal Act, quash the orders made by the District Court on 30 January 2018 and remit the matter to the District Court.

9. [24]

   The Crown submitted that the language of s 18 of the Crimes (Appeal and Review) Act “clearly encompasses all evidence ‘given’ in the original Local Court hearing”.

Respondent’s submissions

1. [25]

   The respondent submitted that the District Court judge on the appeal “…should at the very least have all of the evidence that was before the learned Magistrate at his or her disposal. The Judge did not have the benefit of viewing the recorded statement made by the complainant which was played before the learned Magistrate and became “MFI A” in those proceedings.”

2. [26]

   The respondent submitted that the cases relied upon by the applicant were distinguishable as they each related to jury trials and the use to be made of transcripts by juries. The respondent accepted that if the contents of “MFI A” had been transcribed (as was submitted it should have been), the respondent would have no complaint.

3. [27]

   The respondent relied, as conclusive of the questions before the Court, upon Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39, which also involved s 18 of the Crimes (Appeal and Review) Act.

Consideration

1. [28]

   Section 18(1) of the Crimes (Appeal and Review) Act, as at 23 August 2006 when Charara was decided, was in this form:

2. [29]

   This Court in Charara held (Mason P, Kirby and Hoeben JJ concurring), at [16]-[17] that:

3. [30]

   It is plain that what was critical to the decision in Charara was that an appeal to the District Court was conducted as a rehearing on the basis of “certified transcripts of evidence” given in the original Local Court proceedings.

4. [31]

   Section 18, however, has changed significantly since Charara. The section now provides:

5. [32]

   Section 18(1) in its present form, in contrast to the version of the section relevant in Charara, is not limited to certified transcripts.

6. [33]

   This change was made in 2009 by the Crimes (Appeal and Review) Amendment Act 2009 (NSW). The 2009 Amendment Act was based upon a 2008 Review of the principal Act: New South Wales, Attorney General’s Department, Review of the Crimes (Appeal and Review) Act 2001 (September 2008). Relevantly, that Review provided (at 27-28 and 35-36):

7. [34]

   The current form of s 18 is fundamentally different to the version of s 18 of the Crimes (Appeal and Review) Act considered in Charara. The changes in the legislative language effected in 2009 make clear that s 18 appeals are based upon “evidence given in the original Local Court proceedings” and are not restricted to “certified transcripts of evidence given in the original Local Court proceedings”, as was the case in Charara. Charara does not assist the respondent in this case.

8. [35]

   The critical question for present purposes is thus whether the contents of “MFI A” which was played in the Local Court met the description of “evidence given in the original Local Court proceedings” within the meaning of s 18(1) of the Crimes (Appeal and Review) Act.

9. [36]

   The principles of statutory construction which should be applied to this question are clear. A construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object: Interpretation Act 1987 (NSW), s 33.

10. [37]

    In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936 Keane, Nettle and Gordon JJ said:

11. [38]

    The “mischief” which the relevant interlocking suite of statutes here in issue was intended to remedy is clear. It is the obvious legislative intention that a complainant in proceedings for a domestic violence offence may give evidence in chief by means of a recorded statement. The Crimes (Domestic and Personal Violence) Act and the Criminal Procedure Act together have that clear effect. The statutory definition of “domestic violence offence” in the Criminal Procedure Act is the same as for a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act: see s 3 of the Criminal Procedure Act.

12. [39]

    This is made transparently clear by the second reading speech to the Criminal Procedure Amendment (Domestic Violence Complainants) Bill 2014 (New South Wales Legislative Council, Parliamentary Debates (Hansard), 18 November 2014 at 2872-2974):

13. [40]

    The contents of “MFI A” once played in the Local Court, met the description of “evidence given in the original Local Court proceedings” within the meaning of s 18(1) of the Crimes (Appeal and Review) Act. This is because s 289F(1) of the Criminal Procedure Act makes clear that once “viewed” or “heard”, the representations in the recorded statement, as viewed and/or heard by the Court, become the complainant’s “evidence in chief” given to the Court in the same way as if the complainant made such “representations” verbally while sitting in the witness box. This occurred here. “View” is defined in s 289C(1) of the Criminal Procedure Act as:

14. [41]

    Section 289E of the Criminal Procedure Act provides for the continued operation of the Evidence Act 1995 (NSW):

15. [42]

    Section 289I(1) of the Criminal Procedure Act provides that the hearsay rule and the opinion rule (within the meaning of the Evidence Act) do not prevent the admission or use of evidence of a representation in the form of a recorded statement.

16. [43]

    Nothing could be clearer from the subject matter, scope and purpose of s 289F(1) of the Criminal Procedure Act, in context, than that the legislature intended that a recording made pursuant to s 289F(1) of the Criminal Procedure Act, once “viewed” or “heard” in the Local Court becomes “evidence given” in Local Court proceedings.

17. [44]

    Supporting the clear words of the section in the context of the statute is the second reading speech which reinforces this conclusion about construction:

18. [45]

    In its statutory context, s 18 of the Crimes (Appeal and Review) Act plainly evinces a legislative intent that appeals to the District Court from the Local Court proceed on the basis of “evidence given in the original Local Court proceedings”, whether or not that evidence forms part of the transcript.

19. [46]

    That conclusion is sufficient to answer questions 1 to 3 in the stated case.

20. [47]

    The conclusion preferred by the trial judge is also inconsistent with authority. It would be contrary to accepted authority for there to be a requirement to tender recordings of evidence such as MFI A.

21. [48]

    In Gately, a case arising under the Evidence Act 1977 (Qld), the High Court rejected the proposition that a jury may have unsupervised access to recordings of evidence. The record of evidence given under the provisions there in question was no more a piece of real evidence receivable at trial than is the written or electronic record of oral evidence given at the trial in the ordinary way. The record itself was not ordinarily admissible as a piece of real evidence. The trial process is, subject to statutory modifications, an accusatorial and adversarial process. It is “essentially an oral process”.

22. [49]

    In R v NZ this Court, per Howie and Johnson JJ said:

23. [50]

    The remarks of Howie and Johnson JJ in R v NZ concerning s 306B(1) of the Criminal Procedure Act in the form the section then took are instructive. Their Honours said:

24. [51]

    In Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140 at [73], Basten JA (R A Hulme J agreeing) pointed out that the joint reasons of Howie and Johnson JJ in R v NZ made it clear that the Court "should not lay down any rule of practice or procedure to be followed in every case where the evidence in chief of a witness has been given by the playing of a videotape".

25. [52]

    In CF v R, Gleeson JA (Rothman and Hamill JJ agreeing) said:

26. [53]

    The method adopted by the police prosecutor in the present case of having the recording of the complainant’s evidence played to the Court and then marked for identification, rather than tendered, was consistent with longstanding practice in this State for dealing with video and audio recorded evidence.

27. [54]

    In any event, the subject matter, scope and purpose of s 289F(1) of the Criminal Procedure Act makes clear that the contents of “MFI A” which was played in the Local Court met the description of “evidence given in the original Local Court proceedings” within the meaning of s 18(1) of the Crimes (Appeal and Review) Act. As “evidence given in the original Local Court proceedings”, it was the responsibility of the District Court judge to consider it.

28. [55]

    It is obviously desirable in cases which are to be the subject of an appeal to the District Court that a transcript is produced which includes the actual “evidence given in the proceeding”, including that evidence given by playing a recording. Transcription of the recording in advance of the hearing can also provide a convenient way for parties to assess the prosecution material before it is viewed in court and will mitigate issues of interruption.

29. [56]

    The respondent submitted that the prosecution should always prepare and serve a transcript containing this material. An advantage of this procedure is that it would remove any ambiguity about what parts of the recording form part of the evidence. This would address any difficulty for a District Court judge in understanding interruptions to the audio visual evidence. Preparing such a transcript no doubt has resource allocation implications. Whether the Local Court administration, the police or the Director of Public Prosecutions should be responsible for preparing a complete transcript is not a matter which can be determined by this Court. Whilst preparation of a transcript of recordings such as those at issue in this case is no doubt a desirable practice, it is not a requirement of the law.

30. [57]

    What may be determined is that on an appeal under s 18 of the Crimes (Appeal and Review) Act the District Court has an obligation to consider the “evidence given in the original Local Court proceedings”, including the contents of any recording made under s 289F(1) of the Criminal Procedure Act.

31. [58]

    For the foregoing reasons, it follows that question 1 of the stated case should be answered “no”, and questions 2 and 3 of that stated case should be answered “yes”.

32. [59]

    As to question 4, a stated case under s 5B must address a “question of law”. In Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 Basten JA (Grove and Hidden JJ agreeing) said:

33. [60]

    Question 4 requires consideration of whether or not there was evidence in this case to prove the essential elements of the offence charged. This is a mixed question of fact and law. The fourth question, therefore, does not meet the prescription set out by s 5B of the Criminal Appeal Act.

34. [61]

    As to the order which this Court should make, s 5B(3) (which was inserted into the Criminal Appeal Act by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW)) provides:

35. [62]

    The Court should, in accordance with s 5B(3) of the Criminal Appeal Act, quash the orders made by the District Court on 30 January 2018 and remit the matter to the District Court to be determined in accordance with these reasons.

Orders

1. [63]

   The Court makes the following orders:

   1. (1)

      Leave granted under s 5B(2) of the Criminal Appeal Act to extend the time to submit the questions of law stated by Colefax DCJ to 29 April 2018.

   2. (2)

      The orders made by the District Court on 30 January 2018 are quashed.

   3. (3)

      Under s 5B(3) of the Criminal Appeal Act, the matter is remitted to the District Court for determination in accordance with these reasons.

2. [64]

   The following answers to the stated case should be given:

3. [65]

   R A HULME J: I agree with Payne JA.

4. [66]

   FAGAN J: I agree with Payne JA.