Bagshaw v Director of Public Prosecutions (NSW)

[2018] NSWCA 14

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Bagshaw v Director of Public Prosecutions (NSW) [2018] NSWCA 14
Hearing dates:	1 February 2018
Decision date:	14 February 2018
Before:	McColl JA at [1], Payne JA at [81], Sackville AJA at [82]
Decision:	Summons dismissed with costs.
Catchwords:	ADMINISTRATIVE LAW – judicial review – jurisdictional error – severity appeal – where District Court permitted withdrawal of appeal against severity of sentences in Local Court – where judge gave “Parker warning” – where judge terminated applicant’s cross-examination of police officer – whether denial of procedural fairness – whether as conducted appeal encompassed a conviction appeal
Legislation Cited:	Bail Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Crimes (Domestic and Personal Violence) Act 2007 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Procedure Act 1986 (NSW) Road Transport Act 2013 (NSW)
Cases Cited:	Antoun v R [2006] HCA 2; (2006) 80 ALJR 497 Bagshaw v Director of Public Prosecutions (NSW) [2016] NSWCA 340 Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 Re Henry; JL v Secretary, Department of Family and Community Services [2015] NSWCA 89 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Scott v Director of Public Prosecutions (NSW) [2015] NSWCA 60 Yousaf v Director of Public Prosecutions [2012] NSWCA 397
Category:	Principal judgment
Parties:	Leith Bagshaw (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of New South Wales (Second Respondent)
Representation:	Counsel: Applicant (In person) D Kell SC (First Respondent)   Solicitors: Applicant (In person) Solicitor for the Office of the Director of Public Prosecutions (NSW) (First Respondent)
File Number(s):	2017/180413
Publication restriction:	None
Decision under appeal	Court or tribunal: District Court of New South Wales (Parramatta) Jurisdiction: Criminal Citation: N/A Date of Decision: 30 May 2017 Before: Judge Colefax SC File Number(s): 2014/47809

Judgment

1. McCOLL JA: The applicant, Leith Bagshaw, filed a summons on 16 June 2017 seeking judicial review of a decision of Judge Colefax SC of the Parramatta District Court permitting him to withdraw his appeal against the severity of sentences (severity appeal) imposed on him in the Local Court in the circumstances described in more detail below and confirming those sentences. The first respondent, the Director of Public Prosecutions (NSW) (DPP), opposes the relief sought.

Factual background and proceedings below

2. The background to the controversy appears in Bagshaw v Director of Public Prosecutions (NSW),[1] a case concerning an earlier judicial review summons filed by the applicant in relation to the same underlying matter.

   1. [2016] NSWCA 340 (Bagshaw) (at [6] – [31]), per Gleeson JA (Sackville and Barrett AJJA agreeing).

3. For the purposes of the present summons the following matters which appear in that decision are relevant background.

4. The applicant was charged by Court Attendance Notice (CAN) on 14 February 2014 with the following offences:

1. Menacing driving contrary to s 118(1) of the Road Transport Act 2013 (NSW) (Sequence 1);

2. Common assault contrary to s 61 of the Crimes Act 1900 (NSW) (Sequence 2);

3. Driving a stolen conveyance contrary to s 154A(1)(b) of the Crimes Act (Sequence 3);

4. Intimidation contrary to s 13(1) of the Crimes (Domestic and Personal Violence Act 2007 (NSW) (CDPV Act) (Sequence 4); and

5. Contravening an apprehended violence order contrary to s 14(1) of the CDPV Act.

5. The matter was first listed in the Parramatta Local Court on 15 February 2014. The applicant was granted bail and the matter was adjourned. He failed to appear at Bankstown Local Court on 23 April 2014 and was convicted in his absence. [2] On 15 May 2014, he obtained an annulment of those convictions pursuant to s 4 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act).

   2. Pursuant to s 196 of the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act).

6. The applicant was subsequently charged with failing to appear on 23 April 2014 contrary to s 79(1) of the Bail Act 2013 (NSW) (Sequence 6).

7. On 15 August 2014 the applicant pleaded guilty in the Local Court to four charges (Sequences 1, 3, 4 and 5). The charge of common assault (Sequence 2) was withdrawn and dismissed. [3] He also pleaded guilty to the further offence of failing to appear (Sequence 6).

   3.    Bagshaw (at [10]).

8. On 17 September 2014, the applicant’s counsel appeared before Magistrate Degnan at the Liverpool Local Court and was granted leave to withdraw. The applicant then appeared in person and informed the Court that he wished to withdraw his guilty pleas. The matter was adjourned to 1 October 2014 for sentence or an application to withdraw the guilty pleas. The applicant failed to file any application seeking the latter relief.

9. The applicant failed to appear on 1 October 2014. Magistrate Degnan convicted him in his absence on the Sequence 1, 3, 4, 5 and 6 charges. [4] A warrant was issued for his arrest. [5]

   4.    Ibid (at [12]).

   5. Although this does not appear from the papers, I assume the warrant was issued for the purpose of bringing the applicant before the Local Court for sentencing; see s 25(2) Crimes (Sentencing Procedure) Act 1999 (NSW).

10. The warrant was executed on 13 January 2015, and the applicant was brought before the Local Court at Parramatta. Bail was granted and the matter adjourned to 27 January 2015. The applicant was also charged with failing to appear on 1 October 2014 in breach of his bail acknowledgement (Sequence 7).

11. The matter was re-listed before Fairfield Local Court on 15 January 2015. The applicant appeared and was represented by counsel. He did not challenge any of the convictions and his counsel sought to proceed to finalise the matter that day. Magistrate Connell entered a conviction on Sequence 7, being the failure to appear on 1 October 2014, and proceeded to sentence the applicant on all convictions.

12. In relation to the charge of menacing driving, the magistrate ordered the applicant to pay a fine of $1,000, disqualified him from driving for 12 months and ordered him to enter a good behaviour bond for a period of 3 years. In relation to the charge of taking a conveyance without consent, the magistrate placed the applicant on a good behaviour bond for two years. In relation to the charges of intimidation and breach of an apprehended domestic violence order, the magistrate fined the applicant $750 in respect of each charge. In relation to Sequence 6 and Sequence 7, Magistrate Connell recorded convictions under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW) and imposed no further penalty.

13. On 3 February 2015, the applicant commenced proceedings in the District Court by filing a notice of appeal which stated that he appealed his sentence “because I am not guilty”. On its face, he was appealing only Sequences 1, 3, 4 and 5, but not his conviction on sequences 6 and 7. [6]

    6.    Bagshaw (at [17] – [21]).

14. On 4 September 2015, the applicant indicated to Registrar Gardiner in the District Court at Parramatta that he sought to proceed on the severity appeal only. On that date, Registrar Gardiner recorded that the conviction appeal was withdrawn, vacated the hearing fixed for 22 September 2015 and fixed a fresh hearing date of 2 October 2015 for the severity appeal. [7]

    7.    Ibid (at [19]).

15. On 2 October 2015, the applicant appeared before his Honour Judge Sides QC. He informed his Honour that he now sought to appeal both his conviction and sentences. He sought, and was granted, leave to amend his notice of appeal to include the severity appeal. [8]

    8.    Ibid (at [20]).

16. Sides DCJ held that the District Court had no jurisdiction to hear the applicant’s conviction appeal. This was because, having been convicted on Sequences 1, 3, 4 and 5 (and 6) in his absence on 1 October 2014, the applicant was required to make an annulment application pursuant to s 4 of the CAR Act before seeking leave to appeal against his conviction pursuant to s 12 of the CAR Act. Accordingly his Honour dismissed the purported conviction appeal for want of jurisdiction. [9] He adjourned the applicant’s severity appeal.

    9.    CAR Act, s 11(1A), s 12(2)(a); Bagshaw (at [21]); the applicant had been present when he was convicted in relation to Sequence 7. However, as explained in Bagshaw (at [52]), his attempt to challenge that conviction was incompetent.

17. On 22 March 2016, the applicant filed a summons in this Court seeking the exercise of its supervisory jurisdiction with respect to Sides DCJ’s decision dismissing his purported conviction appeal. The Court held that that purported appeal was incompetent and had been properly dismissed by Sides DCJ. Accordingly, it upheld his Honour’s decision and dismissed the summons with costs. [10]

    10.    Ibid (at [47]) ff).

18. In addition to agreeing with Gleeson JA, Barrett AJA (with whom Sackville AJA agreed) observed:

“[79] … it seems quite extraordinary that a matter such as this should have absorbed so much time and energy in the Local Court and the District Court. It is to be hoped that, with the questions raised for decision by the Court of Appeal now determined, the proceedings arising from charges laid three years ago may be brought to a prompt conclusion under close and efficient case management.”

The severity appeal hearing

19. The effect of the decision in Bagshaw was that the applicant’s severity appeal remained for determination.

20. That appeal came before Colefax DCJ on 30 January 2017. His Honour explained to the applicant that in a severity appeal the District Court “sentences afresh”, observing:

“… I cannot undertake any examination of why the proceedings were brought, how they were brought, whether there was an abuse of power, anything of that kind, I will not hear any submission from you on. That was completely covered by the judgment in the Court of Appeal so all I will hear on Friday is any evidence that you wish to put before me and any argument that you wish to put before me as to why the sentence imposed by the Local Court was too severe. [11]

11.    Transcript, District Court, 30 January 2017, p 6.

21. The severity appeal hearing formally commenced on 3 February 2017 before Colefax DCJ. The following matters emerge from the transcript of that and subsequent hearing days.

22. The Crown tender bundle, which included a sheet recording the offences and the respective sentences the subject of the appeal, the CAN in respect of each offence and the Facts Sheet in relation to the offences and the applicant’s criminal history, was admitted as Exhibit A. The Crown case was then closed. His Honour asked the applicant whether he wished to give evidence, to which he responded by making reference to his property, namely a car, fridge and jewellery, having been stolen by the victims of Sequences 1, 3 and 5. He also made allegations in respect of the victim of Sequence 4 and the conduct of the police investigation.

23. As the Crown Advocate, who appears for the DPP submits, it is apparent that these matters appear to have been understood by Colefax DCJ as “[the applicant] … raising some reason or justification for his offending behaviour – which may be of assistance in determining the appropriate penalty for the offences.” Accordingly, his Honour adjourned the proceedings for mention on 17 February 2017 to allow the Crown to obtain the Computerised Operational Policing System (COPS) entries relevant to the matters raised by the applicant.

24. On 17 February 2017, the Crown had obtained the COPS entries. The applicant made it known that he wished the officer in charge of the matters which led to his convictions, Detective Senior Constable Leah Billing (DSC Billing), to be called. He contended that DSC Billing had “purged [sic] herself in court on two occasions”.

25. Due to procedural issues and the availability of DSC Billing, the severity appeal was not ultimately heard and finalised until 30 May 2017. On that day, the Crown was granted leave to reopen its case. According to the transcript, at the applicant’s request, it tendered copies of further COPS entries in relation to the offences the subject of the severity appeal, and another bundle relating to the items the applicant claimed had been stolen (Exhibits B and C). The Crown also called DSC Billing for cross-examination as the applicant had sought.

26. In the course of that cross-examination, the applicant asked the Senior Constable to “explain to [his] Honour the evidence to lay these charges”. Colefax DCJ said “this is getting beyond the severity appeal,” and added:

“This through the back door is seeking to reagitate the conviction which has been entered against you and which you have taken to the Court of Appeal and your appeal has been dismissed. So whilst I’m giving you a lot of latitude today, I will not permit questions which seem to me to have no other purpose other than to question the validity of the convictions.”

27. The applicant also sought to cross-examine the DSC Billing about her state of health around the time he was charged. It appears that she had broken her leg in late 2013 and, at the time to which the applicant was referring, was walking with the assistance of crutches. The applicant sought to ask her questions about whether or not she was on sick leave in February 2014 and about an in-court statement he said the police prosecutor (presumably the person prosecuting the charges against the applicant) had made to a Magistrate to the effect that she was not at work due to ill health. DSC Billing pointed out that she had not been in the courtroom and had been unaware of any statement by the police prosecutor to that effect.

28. When the applicant sought to pursue this line of cross-examination, Colefax DCJ rejected it on the basis that it was not relevant to the severity appeal. The applicant submitted that it was relevant to the Senior Constable’s credibility “On the issues of how she could come up with all this evidence”. Colefax DCJ then said:

“You see, that’s where I’ve suspected you were going all the time. You’re trying to get through the back door to set aside this conviction. Mr Bagshaw, I am proceeding to sentence you today on the basis of the facts set out in exhibit A. They are the facts. Now, how is any of this relevant to those facts?”

29. The applicant denied that he was “coming through the back door” and was asked again to explain the relevance of his questions. His response, insofar as it related to the question he had been asked was, “it is relevant that this woman arrested me on what grounds? That’s what I’m driving at.”

30. Colefax DCJ then stated that any further questions designed to impugn the applicant’s arrest were irrelevant to the appeal. The following exchange took place:

“HIS HONOUR: Today, Mr Bagshaw, is a severity appeal.

APPELLANT: That’s correct, your Honour.

HIS HONOUR: And I will give you as much time as is appropriate for you to agitate any issue which is relevant to the penalty which should be imposed on you for the offences for which you have been found guilty and questions of this officer as to why she arrested you, what motivation she had are [sic] irrelevant to that exercise. Now, what other topic do you wish to ask this officer about because otherwise I’m going to release her to go back about her lawful duties …”

31. The applicant then sought to ask the Senior Constable another question which Colefax DCJ disallowed on the basis that it could only be relevant to the question of his guilt. The applicant said:

“Your Honour, I’m not going to argue because I know where it’s all headed because we’ve proven a point. The point is quite clear that I’ve got to create doubt and the doubt is quite clear. Whether I pleaded guilty or not pleaded guilty I was basically pushed into pleading guilty. But however, this Court and this Registrar and the Magistrate – you know where we’re coming from. You know exactly what’s gone on here. Irrespective of whether protecting anyone [sic, as in original], I would like to know why she told the Court, the Magistrate, that she was home sick.”

32. He contended that that the relevance of his line of questions was “perjury … credibility”.

33. Colefax DCJ then warned the applicant that he would release DSC Billing if the applicant could not ask her “any question … relevant to the current issue.” He again informed him that a severity appeal was not the appropriate forum to challenge his conviction, nor the accuracy of the agreed facts on the basis of which he was sentenced. After stating that if the appellant had wished to contest his conviction that should have happened in the Local Court, Colefax DCJ permitted DSC Billing to leave the witness box.

34. Colefax DCJ then informed the applicant that he had looked at the facts on the basis of which he had pleaded guilty, at his criminal history and his sentences for the matters the subject of the severity appeal and had formed the view he had been “dealt with leniently”. His Honour warned the applicant, in accordance with Parker v Director of Public Prosecutions,[12] that he was contemplating increasing the sentences under appeal if the applicant did not withdraw the appeal and, accordingly, provided him with an opportunity to do so. The applicant then applied for, and was granted, leave to withdraw his appeal. Colefax DCJ confirmed the conviction and penalties of the Local Court.

    12. (1992) 28 NSWLR 282 (Parker).

Relief sought

35. In the judicial review summons, the applicant identifies Colefax DCJ’s decision of which review is sought as “dismissing my application whilst having in his possession critical evidence” and “he refused to allow me to finish my cross-examination of Senior Constable Billing.”

36. The grounds upon which relief is sought are set out in the summons as follows:

“‘The above application is sought on the grounds that SC Billings [13] purged [sic] herself in front of H.Honour and he ignored it’ (Ground 1).

‘Secondly she was in court whilst the police prosecutor inform the court that she was [sic, as in original] yet the roster indicates she was on duty’ (Ground 2).” [14]

13.    The applicant incorrectly refers to DSC Billing as “DSC Billings”.

14.    I infer the word “sick” or the like has been accidentally omitted from this ground of review.

37. According to the index to the White Book, a bundle of documents was filed with the summons (Summons bundle). It included an index, items 1 and 2 of which appear to have referred to the summons, and a document entitled “Annexure ‘A’” containing 18 paragraphs. The only other document in that bundle which is relevant to one of the applicant’s submissions was described in the index as “Full Supreme Court - page 8 (where the Registrar acted illegally).” [15]

    15.    The other three items were described as a “3. Green Valley police report; 4. Police report; 5. The forged transfer of the car.” Nothing was put to the Court by the applicant which sought to explain their relevance, if any, to the summons.

38. Item 6 in the index was a page from the decision in Bagshaw on which, relevantly, paragraphs [18] – [21] appeared. I will refer to this document when dealing with the applicant’s complaint in paragraph S8.

39. In the Annexure A(S) included in the summons bundle, which appears to be intended to be by way of submissions, the applicant states:

“S1.   The decision maker was H.H.J Colefax at Parramatta District Court.

S2.   H.H. dismissed my application whilst having in his possession critical evidence.

S3.   H.H. denied and refused me to finish my cross-examination of S.C. Billings. [sic, as in original.]

S4. S.C. Billings admitted under oath that she was walking outside the court on crutches while inside the court the prosecutor stated she was off on sick leave. Yet her roster showed her at work.

S5.   The second purgery [sic, as in original] was that the prosecutor indicated that she was sick, yet she was sitting in the back of the courtroom.

S6.   Thirdly when H.H. Colefax called for her at Parramatta, she told the Crown Prosecutor that she was off on sick leave. However as soon as she was subpoenaed she appeared.

S7.   There is no sufficient evidence before the court to charge me with all these charges other than following him to get his licence.

S8.   H.H. failed to uphold the Supreme Court findings, if a Registrar deliberately misled, he took the law into his own hands, therefore the Magistrate did not have the power to lay these charges. It should have been dismissed at the first court date.

S9.   I feel that I have been unjustly treated by H.H.J. Colefax.

S10. The Crown Prosecutor was sittin[g] on the evidence and not producing it to the court.

S11.   You cannot transfer a car without the proper registration document signed and not on a dummy piece of A4 paper and it's not my signature. It's quite clear that the police turned a blind eye to this fact. When the police statements clearly show the car was stolen with all the jewellery and the fridge.

S12.   It's evident in the cross-examination that S.C. Billings is in the back pockets to protecting the criminals.

S13.   There is enough evidence to prove that the documents speak for themselves.

S14.   It is not justice when a judge abuses a self litigant who got the evidence out. This is not upholding the law.

S15.   I ask the court to dismiss this case on the grounds, failing to uphold the decision of the Full Court and H.H. in an abusive and arrogant way threatening to imprison me. When there was no grounds.

S16.   It is quite clear that the Roads and Traffic Authority it was [? deleted] after [? showing] the car was stolen by Liverpool police. When they had before them all the evidence of the stolen goods.

S17.   How can the police ignore, the car was bought for $16,000 and then was registered for $4,850. Then it was transferred in Queensland for $1,000. Yet the police turn a blind eye.

S18.    I ask the court to dismiss the whole case on the grounds of fraud and furthermore, the police failing to uphold their own law.”

40. In another document also described as “Annexure A” entitled “Further Submissions” (FS), the applicant submits:

"FS1.   It is no longer a severity appeal as H.H. re-opened the case and allowed cross-examination of Const. Billings.

FS2.   If it continued as a severity appeal then the case should not have been re-opened.

FS3   H.H. erred by stating ‘I was coming through the back door’. L.Const. Billings admitted in evidence under one count that she purged [sic] herself.

FS4   The Crown nor the prosecution put forward any evidence that the applicant committed these offences.

FS5   The applicant seeks the matter referred back to Goulburn St District Court [16] under section 4 to further cross examine Billings to prove beyond a reasonable doubt that the purgery had taken place by a police woman. Why they didn't take action when the car was stolen. The car was re-registered in Queensland and the police took no action. If the court doesn’t dismiss the case then it has to be referred under section 4 of the Act.”

16.    Presumably a reference to the District Court in John Maddison Tower in Goulburn Street, Sydney.

41. Of the two annexures, paragraphs S7, S8, S10, S11, S12, S13, S16, S17 and S18 and FS 1 – FS 5 raise matters which seek to challenge the applicant’s conviction (category 1) and also, as I explain, partly overlap with category 3 referred to below.

42. Paragraphs S2, S3, S9, S14 and S15 (category 2) appear to raise issues of denial of procedural fairness.

43. Paragraphs S3, S4, S5 and S6 and FS 3 and FS 5 (category 3) go to the applicant’s contention that DSC Billing had perjured herself, and that, by inference, had Colefax DCJ allowed his cross-examination of her to continue, evidence favourable to the applicant (I infer in relation to his guilt) would have emerged. In that sense, category 3 is a subset of each of categories 1 and 2.

44. The Crown Advocate submits S8 and S15 raise issues concerning whether Colefax DCJ failed to uphold the “findings” in Bagshaw. This cannot be fully accepted as the latter part of S15 is clearly a complaint of denial of procedural fairness in respect of the Parker warning, but otherwise can be approached on that basis (category 4).

Consideration

45. As was carefully explained in Bagshaw,[17] the scope for any intervention by way of judicial review by this Court in a decision of the District Court on an appeal against either a conviction or sentence imposed by the Local Court is limited. The jurisdictional limitations flow from the fact that there is no right of appeal to this Court from a decision of the District Court on an appeal against a conviction or sentence in the Local Court. [18] Accordingly, any relief the court may be able to afford on the summons depends on the applicant demonstrating jurisdictional error. [19]

    17.    At [32] – [33].

    18.    See Bagshaw (at [32]) where the relevant authorities are cited.

    19.    Ibid.

46. For the present purposes, jurisdictional error is sufficiently described as arising where an inferior court “mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist”, where a judicial officer misconstrues the relevant statute and, accordingly, “misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case and where a party has been denied procedural fairness.”[20]

    20. Ibid; see also Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 (at [46]) (Engelbrecht); Yousaf v Director of Public Prosecutions [2012] NSWCA 397 (Yousaf) (at [30]) per Barrett JA (McColl JA and Meagher JA concurring); Scott v Director of Public Prosecutions (NSW) [2015] NSWCA 60 (Scott) (at [33] – [36]) per Gleeson JA (Basten JA and Johnson J agreeing).

Nature of the proceedings before Colefax DCJ – Category 1

47. There is no force in the applicant’s contention that Colefax DCJ “opened the case up”, so that, rather than his Honour hearing the severity appeal only, he was also hearing a conviction appeal.

48. As established in Bagshaw, [21] having been convicted in his absence on Sequences 1, 3, 4, 5 and 6, the applicant could not appeal, or seek leave to appeal, against his convictions in those respects to the District Court. The only course open to him was to have the convictions annulled pursuant to s 4 of the CAR Act. That application had to be made within 2 years after his convictions. Accordingly, at the latest, the applicant had until 1 October 2016 to seek that annulment. However, as the Crown Advocate submits, because 2 years have elapsed since the applicant’s convictions (in his absence) in the Local Court on 1 October 2014, an application for an annulment of the applicant’s convictions would now be out of time. [22] Had any such timely application been successful, pursuant to s 9(2), CAR Act, the Local Court was required to deal with the original matter afresh, that is to say, as s 9(3) provides, “as if no conviction or sentence had been previously made or imposed”.

    21.    See s 11(1A), s 12(2)(a), CAR Act; Bagshaw (at [48]); as I have explained the applicant’s attempt to challenge his conviction on Sequence 7 was incompetent. See footnote 9.

    22. Section 4(2)(a) CAR Act.

49. As Gleeson JA pointed out in Bagshaw, “[d]espite having been informed of that entitlement and been given two opportunities by the District Court to make an application for annulment of his convictions in the Local Court, the applicant failed to do so.” [23]

    23.    (At [50]).

50. Accordingly, absent any of those steps having been taken, Colefax DCJ had no jurisdiction to hear an appeal from the applicant’s convictions. His Honour did not misapprehend his jurisdiction. Rather, he clearly recognised and repeatedly explained to the applicant, that his jurisdiction was confined to the severity appeal.

51. The applicant has not identified any jurisdictional error in respect of Category 1.

52. Although what I have said is sufficient to deal with this aspect of the application, I would add that it is clear from the exchanges between his Honour and the applicant set out earlier in these reasons, [24] that the applicant understood that the matter was proceeding by way of a severity appeal only.

    24.    At [26] – [33].

53. To the extent the applicant may contend that, notwithstanding those exchanges, the “opening up” can be seen in the calling of DSC Billing and the Crown re-opening its case, it is apparent he misunderstands the nature of a severity appeal.

54. Pursuant to s 17 of the CAR Act, such an appeal proceeds by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence also may be given. Accordingly, the judge hearing a severity appeal is required to have regard to the evidence given in the original Local Court proceedings insofar as the sentence is concerned, which may include evidence given in the conviction phase of the hearing, insofar as it is relevant to the challenged sentence. [25] It is not, however, possible on a severity appeal to traverse any findings which are essential to the finding of guilt. [26]

    25.    Engelbrecht (at [96], [98]) per McColl JA; (at [114], [111] – [118]) per Macfarlan JA; (at [146]) per Leeming JA.

    26.    Ibid (at [146]) per Leeming JA.

55. Thus, at the commencement of the severity appeal the Crown tendered exhibit A, comprising documents which would enable Colefax DCJ to consider the degree of the applicant’s culpability and his prior criminal history for the purpose of determining the severity appeal. The appeal was re-opened by the Crown at the applicant’s behest to tender exhibits B and C being COPS materials which, as I read the transcript, Colefax DCJ adjourned the case to enable the Crown to obtain on the basis that he understood they may assist him in determining the appropriate penalty. DSC Billing was called on the same basis.

56. The conduct of the severity appeal was entirely consistent with a proper exercise of the primary judge’s jurisdiction. The applicant’s numerous attempts to seek to enlarge the nature of the hearing to encompass a conviction appeal could not achieve that end, legally or factually, having regard to the limits on his jurisdiction his Honour properly recognised.

Procedural fairness – Category 2

57. Procedural fairness uncontroversially applies in criminal appeals, including, of course, a severity appeal. Denial of procedural fairness is an established category of jurisdictional error. [27] As I said in Re Henry; JL v Secretary, Department of Family and Community Services: [28]

“Procedural fairness is an aspect of the obligation to ensure a fair trial. It requires ‘a fair hearing, not a fair outcome’. Accordingly, ‘the relevant question is about the [decision-maker’s] processes, not its actual decision [and] the statutory framework within which a decision-maker exercises statutory power is of critical importance when considering what procedural fairness requires, [while] the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case’: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 (at [25] – [26]) per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ.” (Emphasis added)

27. Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (at [60]).

28. [2015] NSWCA 89 (at [153]).

58. The statement emphasised in the quote reflects the proposition that, “Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.”[29]

    29. Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 (at [37]) per Gleeson CJ.

59. There was no denial of procedural fairness in Colefax DCJ warning the applicant he was at risk of his sentences being increased if he persisted in the severity appeal. In so doing, his Honour was following the Court of Appeal ruling in Parker, that failure to give such a warning is itself a denial of procedural fairness. What are known as “Parker warnings” are a feature of severity appeals under the CAR Act and are an unexceptionable exercise of the judge’s function on such an appeal. [30]

    30.    Engelbrecht (at [56]); Yousaf (at [37]); Scott (at [33] – [36]) per Gleeson JA (Basten JA and Johnson J agreeing).

60. To the extent the applicant complains that Colefax DCJ acted in “an abusive and arrogant way threatening to imprison me” (S15), I read that as his understanding of the Parker warning. For the reasons I have explained, that warning was entirely appropriate. Nothing in the transcript suggests Colefax DCJ in any way acted either abusively or arrogantly in extending to the applicant the opportunity to avoid a more severe penalty.

61. Apart from the complaint about the Parker warning, the applicant’s other complaints about denial of procedural fairness are diffuse. To the extent that they purport to be based on an assertion of fact, they are unsupported by any evidence. They exhibited a tendency on the applicant’s part to make sweeping assertions, unrelated to actual events.

62. S2, in which the applicant asserts that Colefax DCJ “dismissed my application whilst having in his possession critical evidence,” is an illustration of this approach.

63. The first point is that his Honour did not “dismiss” the application. Rather, he gave the applicant leave to withdraw his severity appeal. Secondly, there is no identification of the “critical evidence” to which the applicant refers.

64. Thirdly, to the extent that the reference to “critical evidence” might be understood as relating to the applicant’s assertions in other grounds (see S7, S10, S13, S14), that there was no evidence to support his convictions, for the reasons I have already explained, Colefax DCJ was dealing with a severity appeal which could not, and did not, constitute a conviction appeal. It was not the occasion for an exploration of the evidentiary foundation of his conviction of the offences to which he had pleaded guilty.

65. Insofar as S3 complains that Colefax DCJ “denied and refused me to finish my cross-examination of S.C Billings”, there was, in my view, no denial of procedural fairness in his Honour bringing this cross-examination to an end. It is evident from reading the transcript of the cross-examination that his Honour gave the applicant full opportunity within the framework of the severity appeal to cross-examine DSC Billing. It is apparent from the exchanges I have set out earlier in these reasons that, despite being warned this was not a proper course, the applicant persisted in seeking to ask her questions which went to the integrity of his convictions. Colefax DCJ ultimately warned the applicant that he would release the witness unless he asked her a relevant question. In my view this was a proper exercise of his Honour’s role in controlling the conduct of the proceedings.

66. Colefax DCJ’s function in presiding over the severity appeal included relating what was happening before him both to the final decision his Honour was required to make in disposing of the appeal, and also to matters his Honour had to decide during its progress. It was necessary, in accordance with the efficient and economical conduct of the severity appeal that his Honour be “astute to keep the focus of [the severity appeal] upon relevant issues.”[31]

    31. Antoun v R [2006] HCA 2; (2006) 80 ALJR 497 (Antoun) (at [53]) per Hayne J.

67. Further, as Gleeson CJ said in Antoun, “Judges do not have to devote unlimited time to listening to unmeritorious arguments”. [32] The same applies to irrelevant cross-examination.

    32.    (At [22]).

68. The applicant’s cross-examination demonstrated a determination to cross-examine DSC Billing about matters irrelevant to the severity appeal. It was appropriate for his Honour to terminate it in the proper conduct of the severity appeal. His Honour was clearly undertaking the “close and efficient case management” Barrett AJA had exhorted should be brought to bear in bringing the matter to a prompt conclusion. [33]

    33.    Bagshaw (at [79]).

69. I can discern no denial of procedural fairness such as might constitute jurisdictional error in Colefax DCJ’s conduct of the severity appeal.

Cross-examination of Senior Constable Billing – Category 3

70. As I have said, this ground is a subset of the other two. I have explained the basis upon which it is apparent Colefax DCJ permitted DSC Billing to be called and cross-examined by the applicant. Once it was apparent the applicant sought to cross-examine her on matters going to his conviction which was not an issue before his Honour, as I have said, it was entirely appropriate for Colefax DCJ to bring the cross-examination to an end. Once again, this was another occasion when Colefax DCJ acted within jurisdiction, confining the exercise to a severity appeal.

71. I would add, that there is simply no evidence that DSC Billing perjured herself as the applicant contends. Pursuant to s 327(1) of the Crimes Act 1900 (NSW), “[a]ny person who in or in connection with any judicial proceeding makes any false statement on oath concerning any matter which is material to the proceeding, knowing the statement to be false or not believing it to be true, is guilty of perjury”.

72. The applicant’s assertion that DSC Billing was guilty of perjury is unsupported by any documents before the Court. To the extent that any sense can be made of these assertions, they appear to depend upon a statement made by a police prosecutor who may have asserted in a court that DSC Billing was in ill health at a time when, again, on the applicant’s assertion, she was not. To the extent that he put this assertion to her in cross-examination, she twice told him that she was unaware of what any police prosecutor may have said in court about her state of health. There was no suggestion in the evidence she made any false statement on oath concerning her state of health. Further the relevance of her state of health to the applicant’s proceedings was not apparent.

73. The applicant has not identified any jurisdictional error in this respect.

Alleged failure by Colefax DCJ to uphold findings of this Court – Category 4

74. The “finding” to which the applicant refers appears to be that set out on the page of Bagshaw which was in the summons bundle. In that part of his reasons, Gleeson JA referred to Sides DCJ’s decision on 2 October 2015 that Registrar Gardiner of the Parramatta District Court did not have power to exercise the District Court’s power under s 67 of the CAR Act to grant the applicant leave to withdraw an appeal or application for leave to appeal. [34]

    34.    See Bagshaw (at [21]).

75. This aspect of Sides DCJ’s ruling does not appear to have been in issue in Bagshaw which focussed on whether his Honour had correctly ruled that the applicant’s purported conviction appeal was incompetent. Nor was that ruling canvassed in the present application. Assuming, however, that Sides DCJ correctly ruled that “Registrar Gardiner did not have power to exercise the District Court’s power under s 67 of the Appeal and Review Act to grant leave to withdraw an appeal or an application for leave to appeal,” [35] that did not affect the validity of the charges which founded the applicant’s conviction. [36]

    35.    Bagshaw (at [21]).

    36.    Cf S8.

74. There was no jurisdictional error in this respect.

Conclusion

77. The applicant has failed to identify any jurisdictional error which would warrant intervention by this Court.

78. I would observe that the applicant repeatedly exhorted this Court either to “give us just one more chance for a s 4” or “make that s 4.” The Court sought to explain to him that the making of a s 4 annulment was not a matter which arose on his summons. Further, as explained both in Bagshaw and these reasons, any application pursuant to s 4 of the CAR Act is out of time. The only course left to the applicant to seek an annulment of his convictions, again as explained in Bagshaw, is to make an annulment application to the relevant Minister. [37]

    37.    (At [43]).

79. I agree also with the additional observations of Sackville AJA.

Orders

80. I would dismiss the summons with costs.

81. PAYNE JA: I agree with the orders proposed by McColl JA and with her Honour’s reasons. I also agree with the additional observations of Sackville AJA.

82. SACKVILLE AJA: I agree with the orders proposed by McColl JA and with her Honour’s reasons.

83. I add the following comment. This application is another example of the all too common phenomenon of judicial review proceedings being used to advance wholly unmeritorious contentions and thus unnecessarily prolong litigation. Even if the applicant’s contentions had some merit, the best he could hope for would be a rehearing of his severity appeal. The fact that Colefax DCJ gave the applicant a “Parker warning” rather suggests that there would be no utility in the severity appeal being revived.

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Endnotes

Amendments

14 February 2018 - [20] "2016" amended to "2017"

[48] "Act" inserted after "CAR"

Endnote 1 "AJA" amended to "AJJA".

Decision last updated: 14 February 2018