Director of Public Prosecutions v Emanuel [2009] NSWCA 42 (11 March 2009)

Last Updated: 25 March 2009

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Director of Public Prosecutions v Emanuel [2009] NSWCA 42


FILE NUMBER(S):
40122/08

HEARING DATE(S):
27 February 2009

JUDGMENT DATE:
11 March 2009

PARTIES:
Director of Public Prosecutions (Applicant)
Paul Gregory Emanuel (First respondent)
The District Court of New South Wales (Second respondent)
Wollongong Local Court (Third respondent)

Paul Gregory Emanuel (Cross-applicant)
Wollongong Local Court (Cross-respondent)


JUDGMENT OF:
Spigelman CJ Tobias JA Basten JA

LOWER COURT JURISDICTION:
District Court of New South Wales (Summons) Wollongong Local Court (Cross-summons)

LOWER COURT FILE NUMBER(S):
DC 07/42/0313 (Summons) LC H31094885 (Cross-summons)

LOWER COURT JUDICIAL OFFICER:
Hosking DCJ (Summons) McRobert LCM (Cross-summons)

LOWER COURT DATE OF DECISION:
31 August 2007 (Summons)


COUNSEL:
M Buscombe (Applicant)
J Stratton SC (First respondent)


SOLICITORS:
Office of the Director of Public Prosecutions (Applicant)
Legal Aid New South Wales (First respondent)


CATCHWORDS:
ADMINISTRATIVE LAW – judicial review – grounds of review – jurisdictional error – misconception of nature of function and powers – supervisory compared with appellate jurisdiction – District Court Act 1973 s 18.
APPEAL AND NEW TRIAL – appeal – practice and procedure – New South Wales – District Court – nature of appeal from Local Court – rehearing not supervisory in nature – District Court Act 1973 s 18.
APPEAL AND NEW TRIAL - new trial - in general and particular grounds - particular grounds – denial of procedural fairness – failure to provide mandatory statutory adjournment – Legal Aid Commission Act 1979 s 57.
CRIMINAL LAW – jurisdiction, practice and procedure – adjournment, stay of proceedings or order restraining proceedings – adjournment – failure to provide mandatory statutory adjournment – denial of procedural fairness – Legal Aid Commission Act 1979 s 57.

LEGISLATION CITED:
Crimes (Appeal and Review Act) 2001.
District Court Act 1973.
Legal Aid Commission Act 1979.
Supreme Court Act 1970.


CASES CITED:
Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39.
Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163.
Gianoutsos v Glykis [2006] NSWCCA 137; (2006) 65 NSWLR 539.
McColl v Lehmann [1987] VR 503.
McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575.
Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597.
R v Osborne [2002] VSCA 156; (2002) 133 A Crim R 519.
R v Thames Magistrates Court ex parte Polemis [1974] 1 WLR 1371.
R v White; R v Piggin [2003] VSCA 174; (2003) 7 VR 442.
Spanos v Lazaris [2008] NSWCA 74.
The Friends of Glenreagh Dorrigo Line Inc v Jones (Court of Appeal, 30 March 1994, unreported).
Touma v Saparas [2000] NSWCA 11.

TEXTS CITED:


DECISION:
1 An order that the record of the District Court of New South Wales, sitting in its criminal jurisdiction at Wollongong on 31 August 2007, be called up and the order that the conviction be set aside and the matter remitted is quashed.
2 Declare that the orders made by the Wollongong Local Court on 11 September 2007 and 25 September 2007 are invalid and of no effect.
3 The time for institution of the appeal by the cross applicant be extended to 4 March 2009.
4 Leave to appeal granted.
5 The convictions recorded against the cross appellant on 25 June 2007 are set aside.
6 The sentences imposed upon the cross appellant on 25 June 2007 are set aside.
7 The proceedings are remitted to the Local Court to be heard by a magistrate other than the magistrate who imposed the convictions and sentences on 25 June 2007.



JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40122/08

SPIGELMAN CJ

TOBIAS JA

BASTEN JA

Wednesday 11 March 2009

DIRECTOR OF PUBLIC PROSECUTIONS v PAUL GREGORY EMANUEL

Judgment

1 SPIGELMAN CJ: The Director of Public Prosecutions invokes this Court’s supervisory jurisdiction and seeks orders pursuant to s 69 of the Supreme Court Act 1970 with respect to a judgment of Hosking DCJ. His Honour heard and disposed of an appeal to the District Court from a conviction in the Local Court of the first respondent on certain charges.

2 The facts are not in dispute and can be briefly stated:

· On 4 February 2007 the first respondent was charged with three offences of assaulting a police officer, resisting a police officer and non-compliance with a direction given by a police officer.

· The first respondent applied for legal aid which was refused.

· On 19 June 2007 he appealed from that refusal.

· On 25 June 2007 the matter was before the Wollongong Local Court. The first respondent applied for an adjournment on the basis of the provisions of s 57 of the Legal Aid Commission Act 1979 which relevantly provides that where it appears to a court that a party to proceedings has appealed from a decision to deny legal aid, and the appeal is bona fide, the court “shall adjourn the proceedings”.

· On 25 June 2007 the magistrate hearing the charge refused to adjourn the proceedings and convicted the respondent of each of the offences, imposing an effective sentence of 12 months imprisonment with a non-parole period of nine months.

· On 25 June 2007 the first respondent lodged a notice of appeal to the District Court on the stated ground: “I am appealing the above conviction/order because I am not guilty”.

· The first respondent remained in custody between 25 June 2007 and the hearing of his appeal on 31 August 2007.

· The appeal came before Judge Hosking, who determined that the Local Court had no jurisdiction to proceed to conviction, by reason of the mandatory obligation to adjourn the proceedings under s 57 Legal Aid Commission Act. His Honour quashed the conviction and remitted the matter to the Local Court. He granted bail to the first respondent until the matter was listed in the Local Court upon remitter.

· On 11 September 2007 the remitted proceedings came before Wollongong Local Court and were adjourned until 25 September 2007, bail continued.

· On 25 September 2007, the matter was fixed for hearing on 30 November 2007.

· On 30 November 2007 the matter was stood out of the list due to the uncertainty about the status of proceedings in the Local Court.

3 It appears from this chronology that, at least by 30 November 2007, doubts had arisen as to whether the order remitting the matter to the Local Court was valid. The summons in this Court invoking its supervisory jurisdiction was filed on 16 May 2008.

4 A number of orders were originally sought in the summons. Only one is now sought:

“1. An order that the record of the District Court of New South Wales, sitting in its criminal jurisdiction at Wollongong on 31 August 2007, be called up and the orders made on that day ... be quashed.”

5 In his written submissions Mr Emanuel accepted that there was jurisdictional error and agreed that the order sought by the Director of Public Prosecutions should be made.

6 During the course of the oral hearing, this Court raised with the parties certain unsatisfactory aspects that would attend an order remitting the matter to the District Court without any step being taken to challenge the conviction in the Local Court of 25 June 2007. In particular, Mr Emanuel would lose the opportunity to have an appeal “as of right” to the District Court after a fully contested first instance hearing and would require leave of the District Court to adduce fresh evidence pursuant to s 18(2) of the Crimes (Appeal and Review) Act 2001 (the “Appeal and Review Act”).

7 During the course of the oral hearing two alternative means of resolving these matters were raised by the Court with the parties. Mr Emanuel could, by way of cross summons, invoke the supervisory jurisdiction of this Court and seek orders in accordance with s 69 of the Supreme Court Act to quash his convictions and sentences in the Local Court. Alternatively Mr Emanuel could invoke s 53(1) of the Appeal and Review Act which, relevantly, provides:

“53(1) Any person who has been convicted or sentenced by a Local Court ... may appeal to the Supreme Court against the conviction or sentence on a ground that involves...

(b) a question of mixed law and fact,

but only by leave of the Supreme Court.”

8 Pursuant to s 55(1)(b) of the Appeal and Review Act this Court, unlike the District Court, has an express power, when it sets aside a conviction, to remit “the matter to the original Local Court for redetermination in accordance with the Supreme Court’s directions”.

9 Furthermore, although one member of this Bench could exercise the jurisdiction under the Appeal and Review Act, by s 44 of the Supreme Court Act this Court is empowered to: “exercise every power, jurisdiction or authority of the Court ... under any Act”. Relevantly this extends to the jurisdiction and powers contained in ss 53 and 55 of the Appeal and Review Act.

10 By means of a cross summons filed on 3 March 2009 Mr Emanuel instituted proceedings seeking the following orders:

“1. Pursuant to Part 51B rule 6 of the Supreme Court rules the time for institution of this appeal be extended to 4 March 2009.

2. Leave be granted to the first respondent to appeal under s 53 of the Crimes (Appeal and Review) Act.

3. The convictions recorded against the first respondent by the third respondent on 25 June 2007 be set aside pursuant to s. 55 of the Crimes (Appeal and Review) Act

4. The sentences imposed against the first respondent by the third respondent on 25 June 2007 be set aside pursuant to s. 55 of the Crimes (Appeal and Review) Act.

5. The proceedings be remitted to the third respondent to be heard according to law by a magistrate other than the magistrate who imposed the convictions and sentences imposed on 25 June 2007”.

11 The Director does not oppose these orders.

The Review of the District Court

12 The relevant passage of the judgment of Hosking DCJ is:

“Section 57 of the Legal Aid Act requires a court where Legal Aid has been refused and an appeal has been lodged against that refusal to adjourn a matter. It appears to me therefore, as the learned magistrate did not apply that provision which is mandatory, the subsequent hearing was made without jurisdiction and accordingly the convictions recorded against Mr Emanuel which led to his imprisonment were correspondingly made without jurisdiction. In those circumstances I quash the purported convictions of the appellant. It follows that he must be released from custody because he is not lawfully in custody.

That does not put an end to the matter of course because that means that the charges are still on foot. I remit them to Wollongong Local Court and I will have them listed for mention here to fix a fresh hearing date on – which day ladies?”

13 Hosking DCJ was exercising jurisdiction pursuant to s 11(1) of the Appeal and Review Act which provides:

“11(1) Any person who has been convicted or sentenced by a Local Court may appeal to the District Court against the conviction or sentence...”

14 The nature of the appeal to the District Court is identified in s 18 of the Appeal and Review Act, which relevantly provides:

“18(1) An appeal against conviction is to be by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings ...

(2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given ...”

15 The orders that may be made by the District Court upon an appeal are specified in s 20, which provides:

“(20)(1) The District Court may determine an appeal against conviction:

(a) by setting aside the conviction, or

(b) by dismissing the appeal ...”

16 As I have indicated above, no express power is conferred upon the District Court to remit the matter upon the setting aside of a conviction. This contrasts with s 16A of the Appeal and Review Act which provides expressly for a remittal to the Local Court in certain circumstances, not being circumstances pertinent to this case.

17 It was common ground in the submissions before this Court that the District Court had no power to order a remitter to the Local Court.

18 The Director of Public Prosecutions submitted that s 176 of the District Court Act 1973 did not prevent this Court from rectifying jurisdictional error. (See most recently Spanos v Lazaris [2008] NSWCA 74 at [15].) The submissions on both sides proceeded on the basis that Hosking DCJ had committed a jurisdictional error.

19 The nature of an appeal under s 11 of the Appeal and Review Act has been considered by the Court of Criminal Appeal. In Gianoutsos v Glykis [2006] NSWCCA 137; (2006) 65 NSWLR 539, McClellan CJ at CL (with whom Sully and Hislop JJ agreed) said:

“[39] The District Court has power to rehear issues at trial but does not have power to remit the matter back to the Local Court.”

20 Subsequently in Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39, Mason P, with whom Kirby and Hoeben JJ agreed, referred to the analysis in Gianoutsos and the conclusion that under the legislative scheme the appeal from the Local Court was by way of rehearing, rather than a hearing de novo. His Honour said:

“[19] The nature of an appeal ‘by way of rehearing’ has been discussed in many cases. The procedure to be adopted, powers to be exercised and function to be performed must first be sought in language of the particular statute ...”

21 Although the issue of whether or not there is a power to remit is not expressly considered, his Honour’s observations are directly on point in the context of a legislative scheme which identifies the powers capable of being exercised on appeal and which does not confer any power to remit.

22 I have set out at [12] above the relevant passage from the judgment of Hosking DCJ. His Honour had before him an appeal against conviction. His Honour did not deal in any way with the appeal against conviction. His Honour proceeded to exercise what can only be characterised as a supervisory jurisdiction. He found that, by reason of the failure to obey the mandatory requirements of s 57 of the Legal Aid Commission Act, the magistrate acted “without jurisdiction and accordingly the convictions recorded against Mr Emmanuel ... were ... made without jurisdiction”. His Honour went on to say that “In those circumstances”, he would “quash the purported convictions”.

23 The jurisdiction his Honour was exercising was a jurisdiction to hear an appeal. His Honour purported to exercise a supervisory jurisdiction. This is implicit in his Honour’s judgment which made no reference to the evidence. It appears quite clearly from his Honour’s language: “without jurisdiction” and “purported convictions”, together with “quash” in lieu of the statutory formulation to ‘set aside’.

24 Furthermore, his Honour made an order which he had no power to make.

25 In my opinion his Honour fundamentally misconceived the nature of the jurisdiction he was exercising. This was a jurisdictional error entitling this Court to intervene.

26 In accordance with the authoritative formulations in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177-178:

(i) With respect to the jurisdiction he purported to exercise, his Honour:

· ‘misapprehended the nature of his function or power’;

· ‘acted wholly outside the general area of his jurisdiction’ by exercising a supervisory not an appellate jurisdiction; and

· ‘misconceived the nature of the function he was performing and the extent of his power’.

(ii) With respect to the order disposing of the proceedings, his Honour:

· ‘made an order based upon a misconception of the nature of his jurisdiction’; and

· ‘acted partly outside the general area of the court’s jurisdiction by making an order of a kind which he lacked power to make’.

27 Order one in the applicants summons should be made, but only with respect to his Honour’s orders quashing the convictions and remitting the matters to the Local Court. His Honour’s order continuing bail until the matter is listed before the Local Court should stand.

28 With respect to the Local Court orders of 11 September and 25 September 2007, it is sufficient to declare that the orders are invalid and of no effect.

The Appeal from the Local Court

29 As indicated above, by his cross summons Mr Emanuel invoked the jurisdiction of the Supreme Court under s 53 of the Appeal and Review Act. This Court should exercise that jurisdiction. The basis of this appeal, as considered during the course of oral submissions, was that a denial of procedural fairness had occurred.

30 The materials before this Court indicate that Mr Emanuel had lodged an appeal against the refusal of legal aid to him by 19 June 2007.

31 When the matter was called for hearing in the Local Court on 25 June 2007, the prosecutor told the Magistrate that he was ready to proceed. The transcript of that day continued:

“HIS HONOUR: You’re ready then. Mr Emanuel, matters listed for hearing, any reason why it shouldn’t proceed?

ACCUSED: I need to ask for an adjournment.

HIS HONOUR: Why is that?

ACCUSED: The, there was a mix up with my Legal Aid appointment and I was legal aid refused and I’ve put in a --

HIS HONOUR: What was the mix up Mr Emanuel?

ACCUSED: I wasn’t able to attend the appointment. I made contact with head office in Sydney and they sent an email through and the email didn’t arrive until late afternoon and by that time the solicitor had made me legal aid refused and I put in a --

HIS HONOUR: And why couldn’t you attend your appointment?

ACCUSED: I was in Sydney at the time, in the morning.

HIS HONOUR: Why? What were you doing in Sydney rather than attending your appointment with your solicitors for an important court hearing?

ACCUSED: (No verbal reply)

HIS HONOUR: Mr Emanuel, there are seven police officers sitting here ready to have this matter dealt with.

ACCUSED: I’m fully aware --

HIS HONOUR: If you don’t keep – if you choose to go somewhere else rather than keep your appointments, I’m not going to adjourn the matter because you’re unrepresented for that reason. THE MATTER IS LISTED FOR HEARING, IT WILL PROCEED TO HEARING.”

32 It appears that the Magistrate dealt with the matter as an adjournment application to be addressed as a matter of general discretionary power with respect to the conduct of criminal proceedings. Although he indicated in remarks made some five months later (on 30 November 2007) that he had considered and addressed the matter under s 57 of the Legal Aid Commission Act, there was no reference to that in his reasons for refusing the adjournment, nor in the mode of his questioning of the unrepresented respondent.

33 Section 57 is in the following terms:

“57 Adjournment of certain proceedings

Where it appears to a court or tribunal, on any information before it:

(a) that a party to any proceedings before the court or tribunal:

(i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or

(ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent,

(b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and

(c) that there are no special circumstances that prevent it from doing so,

the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit.”

34 As the transcript makes clear, the matters which called for attention under s 57 were not addressed by the Magistrate. Specifically there was no identification of the fact that an appeal had been lodged, which engaged s 57(a). Furthermore, none of the matters which fall for consideration pursuant to s 57(b) and (c) were mentioned. There were no relevant findings.

35 The language of s 57 is mandatory. (See The Friends of Glenreagh Dorigo Line Inc v Jones, Court of Appeal, 30 March 1994, unreported.)

36 Mr Emanuel was convicted at a trial at which he was unrepresented during a period when he was seeking legal aid to acquire representation. He was entitled, as a matter of law, for the Local Court to address the provisions of s 57 once he had lodged an appeal against the refusal of legal aid. If each of the other conditions in (b) and (c) were made out, s 57 requires the Court to adjourn the proceedings. Mr Emanuel was deprived, it appears to me by way of inadvertence, of his statutory entitlement to have the Court determine whether he was entitled to an adjournment in accordance with law. This, in my opinion, meant that his trial involved a miscarriage of justice, which this Court should not allow to stand.

37 A refusal of an adjournment may amount to procedural unfairness, relevantly, when it denies a party a reasonable opportunity to present his or her case. (See Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 at [40]; R v Thames Magistrates Court ex parte Polemis [1974] 1 WLR 1371 at 1375; McColl v Lehmann [1987] VR 503 at 506-510; Touma v Saparas [2000] NSWCA 11 at [27]; R v Osborne [2002] VSCA 156; (2002) 133 A Crim R 519 at [23]–[26]; R v White; R v Piggin [2003] VSCA 174; (2003) 7 VR 442 at [76]–[78].)

38 Where, as here, an accused may have a statutory entitlement to an adjournment for the purpose of obtaining legal aid, there has been a denial of a reasonable opportunity to present his case. (See McInnis v The Queen [1979] HCA 65; (1979) 143 CLR 575 at 579 and 583.) Accordingly, he did not receive a fair trial.

39 Leave to appeal should be granted, the appeal allowed and the matter should be remitted to the Local Court.

40 The orders I propose are:

1. An order that the record of the District Court of New South Wales, sitting in its criminal jurisdiction at Wollongong on 31 August 2007, be called up and the order that the conviction be set aside and the matter remitted is quashed.

2. Declare that the orders made by the Wollongong Local Court on 11 September 2007 and 25 September 2007 are invalid and of no effect.

3. The time for institution of the appeal by the cross applicant be extended to 4 March 2009.

4. Leave to appeal granted.

5. The convictions recorded against the cross appellant on 25 June 2007 are set aside.

6. The sentences imposed upon the cross appellant on 25 June 2007 are set aside.

7. The proceedings are remitted to the Local Court to be heard by a magistrate other than the magistrate who imposed the convictions and sentences on 25 June 2007.

41 TOBIAS JA: I agree with Spigelman CJ.

42 BASTEN JA: I agree that the orders proposed by the Chief Justice should be made and, subject to what follows, for the reasons his Honour gives. Unfortunately, this matter has been attended by a litany of errors. They did not cease when the matter left the District Court. The orders to be made will return the matter to the Local Court, which was the outcome intended by Hosking DCJ.

43 The proceedings were commenced in this Court by the Director, seeking judicial review in respect of the orders of the District Court, pursuant to s 69 of the Supreme Court Act 1970 (NSW). As explained by the Chief Justice, the proceedings in the Local Court miscarried. That is no longer in dispute and, indeed, was conceded by the Director in the District Court. The only question was whether the District Court had power to grant the appropriate relief. No point was taken in the District Court that it did not.

44 Had the basis of the orders sought by the Director in this Court been challenged, it would have been necessary for the Court to be persuaded that the District Court judge misconceived his jurisdiction or exercised a power he did not have. The doubts which have arisen in those respects reveal an unsatisfactory aspect of the legislative regime for appeals from the Local Court to the District Court.

45 For the Director’s application to succeed, he was required to establish jurisdictional error, as a result of the privative effect of s 176 of the District Court Act 1976 (NSW), which operates to constrain the jurisdiction conferred on this Court under the Supreme Court Act: see s 69(5) and, in relation to the operation of s 176 of the District Court Act, Spanos v Lazaris [2008] NSWCA 74 at [15].

46 The first question is whether the language adopted by Hosking DCJ revealed a misapprehension as to the nature and scope of the jurisdiction being exercised. His Honour commenced his judgment by stating that he was hearing “the all grounds appeal” of the respondent. That language indicates that he was aware of the nature of the proceedings before him. It was language reminiscent of that used with respect to appeals to the District Court under s 122 of the (now repealed) Justices Act 1902 (NSW). The powers of the District Court under that Act included orders which would “confirm, quash, set aside, vary, increase, or reduce, the conviction, order, sentence, or adjudication appealed against ...”: s 125(1). Subject to the question of relief, it might be inferred that his Honour, in consequence of long-established habit, was continuing to use language sanctioned by the predecessor to the present section. It need not be inferred that his Honour misunderstood the nature of the jurisdiction being exercised.

47 The second question is whether the ground of challenge to the conviction, namely the failure of the Magistrate to adjourn the proceedings in circumstances where such a course was required by s 57 of the Legal Aid Commission Act 1979 (NSW), was unavailable in the District Court. As explained by the Chief Justice, and as accepted by counsel appearing for the Director in the District Court, the conclusion that the trial had miscarried in the Local Court was correct: see The Friends of the Glenreagh Dorrigo Line Inc v Jones [1994] NSWCA 101 (Gleeson CJ, Kirby P and Mahoney JA); Edelsten v Medical Tribunal of NSW (No 2) [1993] NSWCA 87 (Kirby P, Priestley and Meagher JJA agreeing); Lewis v Spencer [2007] NSWSC 1383; 179 A Crim R 48 (Rothman J).

48 In substance, the refusal to grant the adjournment in the Local Court, although the right arose under statute, involved a breach of general law procedural fairness. Such an error, like the rejection of admissible evidence, may form a ground of appeal: see HG v The Queen [1999] HCA 2; 197 CLR 414 at [97] (McHugh J); Hamod v Suncorp Metway Insurance Ltd [2006] NSWCA 243; as may a complaint of apprehended bias: see Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd [2006] HCA 55; 229 CLR 577; Dekkan v Picciau [2008] NSWCA 18 at [7]; Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 at [23] ff; Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208; 3 DDCR 1 at [159]. The effect of such a breach must be to invalidate the result of the proceedings. In the case of a judgment and orders of a court, an order to that effect is required: see Berowra Holdings Pty Ltd v Gordon [2006] HCA 32; 225 CLR 364 at [11]- [16]; cf Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597.

49 The authorities in this Court noted in [47] above were by way of appeal under s 75A of the Supreme Court Act: accordingly, if there can be any basis for concluding that Hosking DCJ was not entitled to set aside the conviction in the Local Court because there had been a failure to comply with s 57 of the Legal Aid Commission Act, it must arise by implication drawn from the terms of the Crimes (Appeal and Review) Act 2001 (NSW) (the “Appeal and Review Act”).

50 The third question, therefore, is whether there was power in the District Court, in determining an appeal against conviction or sentence in the Local Court, under s 11 of the Appeal and Review Act, to set aside the conviction on the ground relied upon and remit the matter to the Local Court.

51 Where an application to annul a conviction or sentence is refused in the Local Court, an appeal may be brought to the District Court: s 11A. Where the appeal is upheld, the District Court is required to remit the matter to the Local Court: s 16A(3). However, an application to annul can only be made where the person has been convicted in his or her absence: s 4(1). It does not apply where, as here, the defendant was present, though unrepresented, and the trial, which should not have proceeded, did proceed.

52 The power to remit, under s 16A, is in contrast to the powers conferred on the District Court to determine an appeal against conviction, which, in express terms, are limited to setting aside the conviction or dismissing the appeal: s 20(1). The inference is, accordingly, that in determining an appeal from a conviction, the District Court has no power of remitter.

53 There is authority to support that conclusion. In Gianoutsos v Glykis [2006] NSWCCA 137; 65 NSWLR 539, McClellan CJ at CL (Sully and Hislop JJ agreeing) noted that there was no express power to remit (at [38]) and concluded that the District Court “has power to rehear issues at trial but does not have power to remit the matter back to the Local Court”: at [39].

54 The focus of Gianoutsos was on the question whether the proceedings before the District Court involved a hearing de novo, or an appeal by way of rehearing: the Court concluded that there was to be an appeal by way of rehearing and that the conduct in the District Court of a de novo hearing had been in error. No question of remittal arose directly.

55 None of the cases following and applying Gianoutsos has been concerned with the power of remittal. In Spanos, this Court noted that there was “no express power providing for remittal to the Local Court” and that there was no power to enter a conviction: at [36]. The latter omission is surprising because it would prevent correction of error on the part of the Local Court in circumstances where alternative convictions were available. With respect to the absence of remittal, the nature of the jurisdiction of the District Court is important.

56 An appeal against conviction is described as being “by way of rehearing” but is to be conducted “on the basis of certified transcripts of evidence given in the original Local Court proceedings, except as provided by section 19”: s 18(1). There is power for “fresh evidence” to be given, but only by leave of the District Court and only if the Court is satisfied that it is in “the interests of justice”: s 18(2). Further, there are constraints upon requiring the attendance of persons to give evidence. Section 19 provides:

“19 Circumstances in which evidence to be given in person

(1) The District Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied:

(a) in the case of an appeal that relates to an offence involving violence against that person, that there are special reasons why, in the interests of justice, the person should attend and give evidence, or

(b) in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence.

(2) An application for such a direction may be made by a party to the proceedings in relation to a particular person only if notice of the party’s intention to make such an application has been served on each other party to the proceedings within such period as the District Court may direct.”

57 Where there has been no proper hearing in the Local Court, the premise on which s 18 is based is absent, so that there can be no “rehearing” in the District Court. Further, the transcripts of the hearing are expected to provide a proper basis for reconsideration in the District Court. Where, as in the present case, those assumptions are not met, a “rehearing” in the District Court will give rise to anomalous results. It is at least unusual for a person accused of a criminal offence to have an opportunity to cross-examine witnesses and call evidence only with leave of the court. It is also surprising that a person should be liable to imprisonment for up to two years if convicted, at what is his or her first hearing in accordance with law, without any general right of appeal. Those considerations lead to the question whether the District Court judge did in fact err in remitting the matter to the Local Court, despite the fact that there is no express power to that effect identified in s 20 of the Appeal and Review Act.

58 There are two possible ways to resolve these difficulties. The first is to require that a defendant who asserts that proceedings have miscarried on procedural grounds, leading to their invalidity, must seek relief in the Supreme Court, either by adopting the procedure under ss 52 and 53 of the Appeal and Review Act, or by seeking judicial review under s 69 of the Supreme Court Act. Such a requirement has the potential to increase expense and delay and will provide for bifurcated rights of appeal, in circumstances where a defendant may seek to rely upon different grounds in the alternative. Nor, generally speaking, is it appropriate to read down by implication provisions conferring jurisdiction or powers on a court: Owners of “Shin Kobe Maru v Empire Shipping Co Inc [1994] HCA 5; 181 CLR 404 at 421.

59 The second resolution is that a power of remittal exists on an appeal to the District Court. In Grassby v The Queen [1989] HCA 45; 168 CLR 1 Dawson J explained that a magistrates’ court, although an inferior court with limited jurisdiction, “undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise”: at 16. These principles were adopted and applied in Pelechowski v Registrar, Court of Appeal (NSW) [1999] HCA 19; 198 CLR 435 at [50]- [51] (Gaudron, Gummow and Callinan JJ), their Honours noting that reference to “necessary implication” was to be understood as identifying a power to make orders “which are reasonably required or legally ancillary to the accomplishment of the specific remedies” provided in the statute.

60 The District Court had undoubted power to set aside the conviction and sentence: Appeal and Review Act, s 20. If the charges were to be pursued, that could only properly take place in the Local Court. There may be doubt as to whether an order of remittal were necessary. Assuming it was, it was arguably an order necessary to give effect to the judgment setting aside the conviction and was therefore within the implied powers of that Court, in the particular circumstances of the case.

61 It is not appropriate to resolve the scope of the jurisdiction of the District Court and the nature of the powers available to it in proceedings where the Director’s right to relief is conceded. However, I would not accept, without full argument, that an appeal cannot be taken to the District Court challenging the validity of the proceedings in the Local Court, nor that, where such a ground is upheld, there is no power of remittal.

62 Finally, were relief not conceded, there would have been strong factors militating against the grant of relief sought by the Director. The Director was represented by counsel before the District Court and raised no objection to the power or jurisdiction of the Court with respect to the proposed remittal. Nor did he take steps to review the decision until the local prosecutors drew to his attention remarks by the Magistrate in the Local Court on 30 November 2007, casting doubt upon the validity of the District Court order made three months earlier. Further, despite the fact that he was represented in the brief hearing before the District Court on 31 August 2007, he allowed a further four and a half months to elapse before commencing proceedings in this Court, supposedly because of a need to obtain transcripts.

63 In circumstances where the defendant is on bail, having been convicted and sentenced to a significant period of imprisonment, pending the outcome of his appeal, such delays would usually militate against the grant of discretionary relief.

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LAST UPDATED:
24 March 2009