Bagshaw v Director of Public Prosecutions (NSW)

[2016] NSWCA 340

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Bagshaw v Director of Public Prosecutions (NSW) [2016] NSWCA 340
Hearing dates:	28 October 2016
Decision date:	06 December 2016
Before:	Gleeson JA at [1]; Sackville AJA at [76]; Barrett AJA at [77]
Decision:	Summons dismissed with costs.
Catchwords:	ADMINISTRATIVE LAW – judicial review – District Court dismissal of purported appeal against Local Court convictions – where convictions entered in applicant’s absence – where applicant had not made s 4 application for annulment of Local Court convictions – Crimes (Appeal and Review) Act 2001 (NSW) s 12(2) – where purported conviction appeal dismissed by primary judge for want of jurisdiction – complaint of apprehended bias – whether fair-minded lay observer might reasonably apprehend primary judge might not bring impartial or unprejudiced mind – where alleged bias said to occur on occasion after hearing and subject decision
Legislation Cited:	Bail Act 2013 (NSW) s 79 Crimes Act 1900 (NSW) ss 61, 154A Crimes (Appeal and Review) Act 2001 (NSW) ss 3, 4, 5, 11, 12, 67 Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 13, 14 Crimes (Sentencing Procedure) Act 1999 (NSW) ss 9, 10 Criminal Procedure Act 1986 (NSW) ss 149E, 196 District Court Act 1973 (NSW) s 176 Road Transport Act 2013 (NSW) to s 118 Supreme Court Act 1970 (NSW) (Supreme Court Act) s 69 Uniform Civil Procedure Rules 2005 (NSW) rr 59.10. 42.1
Cases Cited:	Director of Public Prosecutions v Emanuel (2009) 193 A Crim R 552; [2009] NSWCA 42 Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Scott v Director of Public Prosecutions (NSW) [2015] NSWCA 60 Smith v Roach (2006) 227 CLR 423; [2006] HCA 36 Spanos v Lazaris [2008] NSWCA 74 Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; [1972] HCA 53
Category:	Principal judgment
Parties:	Leith Bagshaw (Applicant) Director of Public Prosecutions (Respondent)
Representation:	Counsel: Applicant – in person D Kell SC (Respondent)   Solicitors: Solicitor for the Office of the Director of Public Prosecutions (NSW) (First Respondent)
File Number(s):	2016/88523
Decision under appeal	Court or tribunal: Court of Appeal Jurisdiction: District Court of New South Wales Date of Decision: 2 October 2015 Before: Sides QC DCJ File Number(s): 2014/47809

Judgment

1. GLEESON JA: The applicant, Leith Bagshaw, seeks judicial review[1] of a decision of Judge Sides QC given in the District Court on 2 October 2015 dismissing the applicant’s purported appeal against convictions entered in the Local Court for charges related to menacing driving. Those convictions were recorded in the applicant’s absence when he failed to appear before the Local Court at Liverpool on 1 October 2014. He was subsequently sentenced by the Local Court at Fairfield on 15 January 2015. On that occasion the applicant appeared and was represented by counsel. His appeal to the District Court was initially only against his conviction; it was later amended to include an appeal against the severity of his sentence.

   1. Pursuant to Supreme Court Act 1970 (NSW) (Supreme Court Act) s 69.

2. Judge Sides treated the applicant’s conviction appeal as an application for leave to appeal brought pursuant to s 12 of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal and Review Act). His Honour held that s 12(2) of the Appeal and Review Act precluded an application for leave to appeal against a conviction in respect of which the applicant was entitled to make an application under s 4 of the Appeal and Review Act for annulment on the ground that the conviction was entered in his absence. As the applicant had not done so, his Honour dismissed the conviction appeal for want of jurisdiction.

3. The applicant, who is self-represented, seeks to set aside the primary judge’s decision on the basis of jurisdictional error. The applicant contends that the primary judge misapprehended the jurisdiction of the District Court with respect to an appeal requiring leave under the Appeal and Review Act, s 12. He complains that the primary judge failed to exercise the jurisdiction given to him as a judge of the District Court. He further contends that he was denied procedural fairness by the District Court. The first respondent, the Director of Public Prosecutions (NSW) (DPP) opposes the relief sought. The second respondent, the District Court of New South Wales, has filed a submitting appearance.

4. In addition, the applicant complained about two other decisions not mentioned in his notice of appeal. One was the decision of Magistrate Connell on 15 January 2015 imposing various penalties following the applicant’s conviction. The other was a decision of Registrar Gardiner in the District Court on 4 September 2015 to vacate the conviction appeal fixed for 22 September 2015 (noting that the applicant had indicated that he had withdrawn his conviction appeal) and to fix a fresh hearing date of 2 October 2015 for the severity appeal.

5. For the following reasons, I am of the view that the Court should dismiss the application.

Factual background

6. On 14 February 2014, the applicant was charged with a number of offences including menacing driving (Sequence 1),[2] common assault (Sequence 2),[3] driving a conveyance taken without the consent of the owner (Sequence 3),[4] intimidation (Sequence 4)[5] and contravention of an apprehended domestic violence order (Sequence 5). [6] It is not necessary for present purposes to refer to the facts giving rise to those alleged offences.

   2. Contrary to s 118(1) of the Road Transport Act 2013 (NSW).

   3. Contrary to s 61 of the Crimes Act 1900 (NSW).

   4. Contrary to s 154A(1)(b) of the Crimes Act 1900 (NSW).

   5. Contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

   6. Contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

7. A brief outline of the history of the proceedings in the Courts below is appropriate.

Local Court proceedings

8. The matter was first listed in the Parramatta Local Court on 15 February 2014. The applicant was granted bail and the matter was adjourned. The appellant failed to appear at Bankstown Local Court on 23 April 2014 and was convicted in his absence. [7] On 15 May 2014, the applicant obtained an annulment of those convictions.

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

9. The applicant was subsequently charged with failing to appear (on 23 April 2014) contrary to s 51(1) of the Bail Act 2013 (NSW) (Sequence 6).

10. On 15 August 2014, the applicant pleaded guilty in the Local Court to five charges (Sequences 1, 3, 4, 5 and 6) and the charge of common assault (Sequence 2) was withdrawn and dismissed.

11. 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 that relief.

12. When the applicant failed to appear before Magistrate Degnan at the Liverpool Local Court on 1 October 2014, he was convicted in his absence on all remaining charges (Sequences 1, 3, 4, 5 and 6). The Bail CAN Master Coversheet 1 October 2014 records “convicted Seq 1, 3, 4, 5 & 6”. A warrant was issued for his arrest. [8]

    8.    As noted by Magistrate Degnan on 17 September 2014.

13. On 13 January 2015, the warrant was executed 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 a bail acknowledgement (Sequence 7). [9]

    9. Contrary to s 79(1) of the Bail Act 2013 (NSW).

14. It seems that the matter was re-listed before the 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.

15. In relation to the two failures to appear (on 23 April 2014 and 1 October 2014), Magistrate Connell imposed no further penalty. [10] 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[11] for a period of 3 years. In relation to the charge of take 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.

    10. Under s 10 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

    11. Under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

16. It seems that, at some point, although not clear on the materials before this Court, a stay of these penalties was ordered by the Local Court, pending the outcome of the applicant’s appeal to the District Court. As a consequence, notwithstanding that the penalties were imposed over two years ago, they have not taken effect. Thus the disqualification of the applicant from driving has not yet come into force.

District Court appeal

17. 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”). Next to the heading “Offences” on the coverpage appeared the handwritten numbers “1, 3, 4, 5” which may be taken to be a reference to Sequences 1, 3, 4 and 5. A handwritten number, it seems “2”, was crossed out. On the face of the notice of appeal, the applicant did not challenge his convictions on Sequences 6 and 7, being the charges of failure to appear on 23 April 2014 and 1 October 2014.

18. The matter was listed for call-over in the District Court at Parramatta on 1 May 2015. On that date, directions were given by the Registrar that the applicant file and serve any notice of motion and supporting affidavits to traverse his guilty pleas in the Local Court by 12 June 2015. The applicant did not do so. On 17 July 2015, the Registrar extended the time for the applicant to challenge his guilty pleas in the Local Court to 14 August 2015. Again the applicant did not do so.

19. 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.

20. On 2 October 2015, the applicant appeared in person before Judge Sides. He informed Judge Sides that he now sought to appeal both his conviction and sentence. He sought and was granted leave to amend his notice of appeal to include a severity appeal. His Honour dealt with the jurisdictional question raised by the conviction appeal and adjourned the sentence appeal.

21. In an ex tempore judgment, his Honour found 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. His Honour found that, having been convicted by the Local Court in his absence (on 1 October 2014), the applicant was required to make an annulment application under s 4 of the Appeal and Review Act before applying for leave to appeal against the sentence under s 12. As the applicant had not made any application for annulment of his conviction, his Honour dismissed the conviction appeal for want of jurisdiction.

Events following dismissal of the conviction appeal

22. Brief reference should be made to some further matters occurring after 2 October 2015, as they are relevant to the applicant’s complaint that he was denied procedural fairness by Judge Sides.

30 November 2015

23. The severity appeal was stood over twice until it came before Judge Sides on 30 November 2015. On that date, the applicant requested that another judge hear the matter because he felt it had “been basically prejudged”, alleging two earlier statements had been made by Judge Sides to the effect of “don’t talk over me”. (The transcript of the hearing on 2 October 2015 records that there was only one such comment made by Judge Sides). Judge Sides refused the application to recuse himself. His Honour explained to the applicant that such comments were just a reminder of common courtesy.

24. After the matter had stood in the list for some time, his Honour referred the matter to Judge Armitage before it was referred back to Judge Sides, apparently because the applicant had indicated that he again sought to appeal from his conviction and sentence. Judge Sides stood the matter over to 14 December 2015. Judge Sides informed the applicant that the severity appeal would proceed on that date unless the applicant could demonstrate that he had commenced proceedings in the Supreme Court.

14 December 2015

25. On 14 December 2015, the applicant told his Honour that he had attempted to file a notice of motion and affidavit in the Supreme Court but had been directed by Registry staff to do otherwise, namely first obtain leave from the District Court. The transcript records the following exchange:

APPELLANT:   We have the paperwork here to file but the Supreme Court said I have to come back here to seek leave.

HIS HONOUR:   Well that’s what you say, I don’t know if that’s the case or not?

APPELLANT:   Well that is the case I can only [sic] by what they say?

HIS HONOUR:   Well I will stand it in the list while the Crown makes enquiries of the Supreme Court Registry then.

26. Judge Sides stood the matter in the list twice to enable the Crown to make enquiries to confirm the applicant had not filed any application in the Supreme Court Registry. Upon that confirmation being given by the Crown, the applicant proffered the explanation that the Registry gave him “a letter stating on your own jurisdiction section 5A, section 2 that I had to seek leave with a Notice of Motion and Affidavit before a Judge”; and that that was “in your own writing”. Judge Sides correctly pointed out that there was no s 5A in the Appeal and Review Act.

27. When Judge Sides enquired about the letter, the applicant denied there being a letter and said he had “a print out of your legislation”.

28. The applicant asked for time to obtain the “paperwork”. The transcript records the following exchange occurred:

HIS HONOUR:   I am not going to adjourn it for another day, because I made it abundantly clear on the last occasion, the matter would proceed today unless you could demonstrate that you had filed proceedings in the Supreme Court. You have not demonstrated that, you’ve come back with a story from the Supreme Court that does not have the ring of truth to it.

APPELLANT:   I’m sorry your Honour it has a ring of truth and I can prove it to you.

HIS HONOUR:   Well then you will have to get the documentation and bring it back to Court later today then.

APPELLANT:   If that’s the way you want it, that is the way it will be. I can only go what I’m saying.

HIS HONOUR:   Yes I will stand the matter in the list. I will take the morning tea adjournment.

29. Later on 14 December 2015, the matter was mentioned before Judge Colefax SC. The applicant complained to Judge Colefax that Judge Sides had “called me a liar this morning and I didn’t have that paper which you are now reading”. It seems from the transcript that the applicant had obtained and provided to the Crown and Judge Colefax a copy of the “paper” to which he had referred before Judge Sides. That “paper” was not identified in the materials before this Court, but the transcript records Judge Colefax referring to an extract from the Appeal and Review Act, which his Honour noted was concerned with appeals from the District Court to the Court of Criminal Appeal, not applications for judicial review.

30. Ultimately the severity appeal was adjourned by Judge Colefax to 8 February 2016. The severity appeal has since come before the District Court on five further occasions, but at the time of hearing of this application had not been determined; it was listed for mention on 25 November 2016.

31. On 22 March 2016, the applicant filed a summons in this Court seeking the exercise of its supervisory jurisdiction with respect to the decision of Judge Sides on 2 October 2015.

The basis of proceedings in this Court

32. 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. [12] Section 176 of the District Court Act 1973 (NSW) provides that no adjudication on appeal of the District Court is to be removed by any order into the Supreme Court. [13] Its effect is not to entirely exclude proceedings by way of judicial review but limit relief to cases in which the applicant can demonstrate jurisdictional error. [14]

    12. Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115; (Garde v Dowd) at [9] (Basten JA; Giles and McColl JJA agreeing); Scott v Director of Public Prosecutions (NSW) [2015] NSWCA 60 at [19]; Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 at [32].

    13. Garde v Dowd at [9].

    14. Garde v Dowd at [10]. See also Spanos v Lazaris [2008] NSWCA 74 at [15] (Basten JA); Director of Public Prosecutions v Emanuel (2009) 193 A Crim R 552; [2009] NSWCA 42; at [18] (Spigelman CJ) and [45] (Basten JA).

33. As the High Court has held,[15] it is not possible to comprehensively state the ambit of jurisdictional error. However, its recognised forms include 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”. [16] Jurisdictional error may also arise where a party has been denied procedural fairness. [17]

    15. Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (Kirk) at 569; Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; [1972] HCA 53 at 520 (Menzies J, Gibbs J agreeing).

    16. Kirk at 573 – 574 quoting Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at 177.

    17. Kirk at 569 citing Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at (at [26] – [42]) (Gaudron and Gummow JJ; Gleeson CJ agreeing (at [5])); (at [170] Hayne J); JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 at [167] (McColl JA); [281] (Basten JA; Meagher JA agreeing).

Nature of relief sought

34. The applicant’s summons does not specify the grounds upon which relief is sought, nor what orders are sought, but refers to Annexure “A” which contains nine enumerated paragraphs, including relevantly:

….

(2)   A review of the decision of H.H. Judge Sides who stated that he did not have jurisdiction to hear my matter.

(3)   Whilst in court H.H. Judge Sides called me a liar.

(4)   After morning recess I returned with the relevant paperwork that proved him wrong.

…

(6)   I say that he erred at law.

…

(9)   I’m seeking clarification of how H.H. Judge Sides could say that he has no jurisdiction yet he made admissions of reading my material yet when taking the oath of the crown, the jurisdiction is imbedded in the oath.

35. The other ‘grounds’ stated in Annexure “A” are expressed in the nature of complaints and assertions concerning the process of the Local Court proceedings not limited to the decision of the primary judge. They are extraneous to the determination of this application and need not be referred to further.

36. The application for judicial review raises two issues:

1. Whether the primary judge erred in law in finding that the District Court lacked jurisdiction to hear the applicant’s conviction appeal; and

2. Whether the applicant was denied procedural fairness by the District Court.

37. Before addressing the first issue it is appropriate to refer to the relevant statutory provisions.

Relevant legislation

38. The process of appealing convictions entered in the Local Court is set out, relevantly, in Appeal and Review Act ss 11 and 12. Section 11 provides:

11 Appeals as of right

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

(1A) Subsection (1) does not apply in respect of a conviction if the person was convicted in the person’s absence or following the person’s plea of guilty.

(1B) Any person whose application under section 4 for annulment of a sentence has been refused by the Local Court may appeal to the District Court against the sentence.

(2) An appeal must be made:

(a) within 28 days after sentence is imposed, or

(b) if an application for annulment of the conviction or sentence has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part,

but (in the case of an appeal against a conviction) may not be made before sentence is imposed.

39. Section 12 provides:

12 Appeals requiring leave

(1) Any person who has been convicted by the Local Court in the person’s absence or following the person’s plea of guilty may appeal to the District Court against the conviction, but only by leave of the District Court.

(2) An application for leave to appeal may not be made in relation to a conviction in respect of which the defendant:

(a) is entitled to make an application under section 4 but has not done so, or

(b) has made an application under section 4 but the application has not been disposed of under Part 2.

(3) An application for leave to appeal must be made:

(a) within 28 days after (but not before) the sentence imposed after the relevant conviction is made, or

(b) if an application for annulment of the conviction has been made under Part 2 within that 28-day period, within 28 days after the Part 2 application is disposed of under that Part.

40. As stated in s 12(2)(a), a defendant who has been convicted in the Local Court has a right to apply to that Local Court sitting at the place at which the original Local Court proceedings were held for an annulment of the conviction or sentence if the defendant did not appear before the Local Court when the conviction was made: s 4(1A).

41. Section 4 relevantly provides:

Applications to Local Court

(1) An application for annulment of a conviction or sentence made or imposed by the Local Court may be made to the Local Court sitting at the place at which the original Local Court proceedings were held.

(1A) An application may be made by the defendant or by the prosecutor. However, an application by the defendant may be made only if:

(a) in the case of an application for an annulment of a conviction—the defendant was not in appearance before the Local Court when the conviction was made, or

(b) in the case of an application for an annulment of a sentence—the defendant was not in appearance before the Local Court when the sentence was imposed.

(1B) A defendant may not make an application for annulment of a conviction or sentence under this section if the defendant had lodged a notice in writing under section 182 of the Criminal Procedure Act 1986 in respect of the offence for which the defendant was convicted or the sentence was imposed.

(2) An application under this section must be made:

(a) within 2 years after the relevant conviction or sentence is made or imposed, or

(b) if an application has been made to the Minister under section 5 within that 2-year period, within 2 years after the application under section 5 has been disposed of under this Part.

(3) Except by leave of the Local Court, a person may not make more than one application under this section in relation to the same matter.

(4) An application must be in writing, and must be lodged with a registrar of the Local Court.

(5) (Repealed)

42. As will be apparent from the above chronology, more than two years have now elapsed since the applicant’s convictions (in his absence) in the Local Court on 1 October 2014. Accordingly, an application to the Local Court for annulment of those convictions would now be out of time. [18]

    18. Section 4(2)(a) of the Appeal and Review Act.

43. Section 5 provides that an application for annulment of a conviction or sentence made or imposed by the Local Court may be made to the Minister by any person: s 5(1). Such an application may be made at any time after the relevant conviction or sentence is made or imposed: s 5(1A). If satisfied that a question or doubt exists as to the defendant’s guilt or liability for a penalty, the Minister may refer the application to the Local Court sitting at the place at which the original Local Court proceedings were held: s 5(2).

44. In respect of the withdrawal of appeals, s 67 provides:

67 Withdrawal of appeals and applications

(1) An appeal or application for leave to appeal may at any stage be withdrawn by the appellant, but only by leave of the appeal court.

(2) In granting leave for an appeal or application for leave to appeal to be withdrawn, the appeal court may make such orders as are necessary to place the appellant as nearly as practicable in the same position as if the appeal or application had not been made.

(3) Any order made by the appeal court in respect of an appeal or application for leave to appeal that is withdrawn is taken to have been made by the Local Court.

45. The expression “appeal court” as referred to in s 67(1) is defined in s 3(1) of the Appeal and Review Act to mean the court to which an appeal or application for leave to appeal may be made under Part  3, 4 or 5 of the Appeal and Review Act. Sections 11 and 12 of the Appeal and Review Act are contained in Part 3 of that Act.

Decision

Judge Sides decision - 2 October 2015

46. There is no dispute that the applicant was convicted in his absence by the Local Court at Liverpool on 1 October 2014 (on Sequences 1, 3, 4, 5 and 6). Contrary to the applicant’s oral submissions in this Court, the applicant had notice of that hearing as he was present in the Local Court at Liverpool on 15 August 2014, when Magistrate Degnan stood the conviction appeal “part heard” over to 1 October 2014.

47. The Local Court had jurisdiction to proceed to hear and determine the charges in the applicant’s absence. [19] For the reasons that follow, the applicant’s purported conviction appeal was incompetent and properly dismissed by Judge Sides.

    19. Criminal Procedure Act 2005 (NSW) s 196.

48. First, the applicant did not have a right to appeal his conviction under s 11(1) of the Appeal and Review Act because an appeal as of right is not available to a person convicted in their absence: s 11(1A) Appeal and Review Act.

49. Secondly, where a person has been convicted by the Local Court in their absence, the right of appeal (with leave) provided by s 12 of the Appeal and Review Act, is subject to the qualification stated in s 12(2)(a). This provides that an application for leave to appeal may not be made in relation to a conviction in respect of which the defendant is entitled to make an application for annulment under s 4 of the Appeal and Review Act, but has not done so.

50. Here, the applicant was entitled to make an application for an annulment of convictions (made in his absence) on Sequences 1, 3, 4, 5 and 6. [20] Despite 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.

    20. Section 4(1A)(a)of the Appeal and Review Act.

51. Thirdly and consistently with the first duty of every court to determine whether or not it has jurisdiction,[21] Judge Sides correctly identified the jurisdictional question raised by the applicant’s purported conviction appeal. There was no error in his Honour’s finding that the District Court did not have jurisdiction and in dismissing the applicant’s conviction appeal.

    21. Eberstaller v Poulos (2014) 87 NSWLR 394; [2014] NSWCA 211 at [1].

52. One further matter should be mentioned. In respect of Sequence 7 relating to the applicant’s failure to appear (on 1 October 2014) in breach of a bail acknowledgement, the applicant was not convicted in his absence. He pleaded guilty to that offence and was convicted when he appeared, represented by counsel, on 15 January 2015 before Magistrate Connell. No further penalty was imposed. The applicant had a right of appeal to the District Court (with leave) in respect of that conviction, as it followed his plea of guilty. [22] However, the document filed by the applicant in the District Court on 3 February 2015 was a notice of appeal, not an application for leave to appeal. Any appeal as of right in respect of the conviction on Sequence 7 was incompetent. Further, and in any event as already indicated, the applicant’s purported conviction appeal did not, on its face, encompass Sequence 7 (nor indeed Sequence 6).

    22. Appeal and Review Act, s 12(1).

Registrar Gardiner’s decision – 4 September 2015

53. The applicant contended by reference to page 3 of the transcript of the hearing before Registrar Gardiner in the District Court at Parramatta on 4 September 2015, that important parts of the transcript were missing. He did not identify what had been omitted, nor seek to explain how any transcription error (assuming that to be the case) was in any way relevant to demonstrating jurisdictional error in the case management decisions made by the Registrar on that day. There is no merit in this complaint.

Magistrate Connell’s decision - 15 January 2015

54. The applicant also identified Magistrate Connell’s penalty decision of 15 January 2015 as one of the decisions in respect of which he sought judicial review. No proper grounds of review were articulated by the applicant. His complaint seems to be directed to the conduct of his counsel, who appeared on his behalf on that occasion, and in the applicant’s presence, indicated to the magistrate his instructions that the matter proceed to finalisation. The applicant is bound by the conduct of his counsel. [23] The applicant observed what was said by his counsel and so far as the transcript records he did not object. There is no merit in this complaint.

    23. Smits v Roach (2006) 227 CLR 423; [2006] HCA 36 at [46].

Allegation of bias

55. Paragraphs 3 and 4 of annexure A to the summons raise an allegation of bias or apprehended bias in respect of Judge Sides. The applicant’s submissions did not distinguish between the two.

56. An allegation of bias or apprehended bias entails a lack of procedural fairness, which is an established category of jurisdictional error. [24]

    24. Scott v Director of Public Prosecutions (NSW) [2015] NSWCA 60 at [27].

57. In support of this complaint, the applicant asserts that Judge Sides called him “a liar” during the course of an exchange between the applicant and his Honour on 14 December 2015, when the severity appeal was mentioned before the District Court. The relevant exchanges between his Honour and the applicant are set out at [25] and [28] above.

Apprehended bias – relevant principles

58. The test for determining whether a judge is disqualified by reason of the appearance of bias is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question that the judge is required to decide”. [25]

    25. Michael Wilson & Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson & Partners) at 437 [31].

59. The test of apprehension of bias is objective. It does not require an assessment of the state of mind of the judge in question, as is necessary on an inquiry about actual bias. [26]

    26. Michael Wilson & Partners at 437- 438 [33].

60. The application of the apprehension of bias principle requires two steps. The first is the identification of what it is said might lead the judge to decide a case other than on its legal and factual merits. The second is that there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. [27]

    27. Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 (Ebner) at 345 [8]; Michael Wilson & Partners at 445 [63].

61. Accordingly, an allegation of apprehended bias requires an objective assessment of the connection between the facts and circumstances said to give rise to the apprehension and the asserted conclusion that the judge might not bring an impartial mind to bear upon the issues that are to be decided. The question is not whether the judge had in fact prejudged an issue. [28]

    28. Michael Wilson & Partners at 446 [67].

62. It is for this reason that it would be wrong to take into account the reasons for judgment of the trial judge published after the trial, in deciding whether there was a reasonable apprehension of bias at an earlier time when dealing with an interlocutory application. [29]

    29. Michael Wilson & Partners at 446 [68].

Application of principles to the facts

63. Applying these principles to the present case, the central and determinative question is might what was done in connection with the hearing on 2 October 2015 reasonably cause a fair-minded lay observer to apprehend that the judge might not bring an impartial mind to the resolution of a question for decision at that hearing.

64. The first matter to note is that no complaint was made in respect of Judge Sides’ conduct at the hearing on 2 October 2015. The applicant first complained on 30 November 2015 that during the earlier hearing on 2 October 2015, his Honour told the applicant not to talk over him. The transcript of 2 October 2015 records the following exchange:

THE APPELLANT:   No, I want to appeal everything your Honour.

HIS HONOUR:    Yes, alright, the registrar doesn’t have the power as I understand this ground.

APPELLANT:   Thank you very much registrar, oh your Honour.

HIS HONOUR:   To seek leave – just do not interrupt please – to grant leave to withdraw a conviction appeal, as far as I’m aware.

65. Nothing in that exchange, or elsewhere in the transcript of the hearing on 2 October 2015 could cause a fair-minded lay observer to reasonably apprehend that Judge Sides might not bring an impartial and unprejudiced mind to the resolution of the applicant’s matter, in particular, the jurisdictional question raised by the conviction appeal. His Honour simply asked the applicant not to interrupt him.

66. Nor has the applicant articulated any logical connection between any conduct of Judge Sides on 2 October 2015 with the possibility of departure from impartial decision making. [30]

    30. Ebner at 345 [8].

67. The second matter to note is that insofar as the applicant’s complaint relates to the exchange between himself and Judge Sides on 14 December 2015, it is wrong to take into account those subsequent comments made by his Honour when dealing with the adjournment of the severity appeal in deciding whether there was a reasonable apprehension of bias on an earlier occasion and when his Honour was dealing with the different question – of jurisdiction – raised by the conviction appeal.

68. Assuming, however, that regard may be had to subsequent events occurring after 2 October 2015 when assessing an allegation of apprehended bias at an earlier point in time, on a fair reading of the transcript of 14 December 2015 there is no basis for thinking that a fair-minded lay observer might reasonably apprehend that Judge Sides might not have brought an impartial and unprejudiced mind to the resolution of the applicant’s conviction appeal.

69. His Honour was undoubtedly unimpressed by the implausibility of the applicant’s explanation on 14 December 2015 for his inaction and by the prospect of a further adjournment of the severity appeal. His Honour was correct to doubt the applicant’s explanation that the Supreme Court Registry had informed him that he first required the leave of the District Court to bring an application for judicial review in the Supreme Court. There is no such requirement. The applicant did not identify, either before Judge Sides or in this Court, any rule to that effect in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR).

70. The applicant also contended in this Court that Judge Sides had misstated on 30 November 2015 the time period for an application to this Court for judicial review. There is nothing in this complaint. Before Judge Sides on 14 December 2015, the applicant asserted that the Supreme Court had told him that he had 28 days in which to apply for judicial review, whereas the order made by Judge Sides on 30 November 2015 only gave the applicant 14 days in which to make such application. This conflated two distinct matters. One was the time for filing a summons for judicial review in the Supreme Court, pursuant to which proceedings are allocated to the Court of Appeal. The relevant time is within 3 months of the date of the decision: UCPR, r 59.10(1). His Honour expressed no view on that matter.

71. The other matter was the fixing of the date for determination of the severity appeal. What Judge Sides indicated on 30 November 2015 was that the District Court would proceed to hear and determine the applicant’s severity appeal on the next occasion (14 December 2015), if the applicant had not commenced proceedings seeking judicial review in relation to the 2 October 2015 decision by that date. The direction made by Judge Sides on 30 November 2015 was consistent with efficient management and conduct of the hearing as provided for by Criminal Procedure Act s 149E. At that time, the only issue remaining was the severity appeal. His Honour indicated that the District Court was prepared to consider adjourning the severity appeal until the conclusion of any proceedings which might be commenced in the Supreme Court if the applicant made an application for judicial review by 14 December 2015.

72. There is no merit in the applicant’s complaint of apprehended bias by Judge Sides when dealing with case management directions. The applicant failed to identify what might lead Judge Sides to decide matters of case management other than on their legal and factual merits. Nor has the applicant articulated any logical connection between the conduct of Judge Sides with the possibility of departure from impartial decision making. [31]

    31. Ebner at 345 [8].

Actual bias

73. In Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [68] – [73] (Gleeson JA, Emmett JA and Tobias AJA agreeing) the following summary of principles was stated:

[68] A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.

[69] Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127].

[70] As Gleeson CJ and Gummow J observed in that case at [71]:

“The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion.”

[71] In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.

[72] His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded.

[73] The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (Bilgin v Minister) (1997) 149 ALR 281 at 289-290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290:

“The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned.”

74. As indicated, the applicant’s submissions did not identify whether he was making an allegation of actual bias. The applicant did not rely upon any matter additional to those addressed above in relation to apprehended bias. Insofar as the applicant is to be taken as asserting actual bias in the form of prejudgment, no foundation for that complaint appears in the materials before this Court. This is no basis for doubting that his Honour’s mind was not open to persuasion when dealing with the jurisdictional question raised by the purported conviction appeal on 2 October 2015.

Conclusion and orders

75. The applicant has failed to demonstrate any basis on which this Court should exercise its supervisory jurisdiction. There is no reason why costs should not follow the event: UCPR, r 42.1. The summons should be dismissed with costs.

76. SACKVILLE AJA: I agree with Gleeson JA. I also agree with the additional observations of Barrett AJA.

77. BARRETT AJA: I agree with Gleeson JA and wish to add two short observations.

78. First, on the material before this Court, Judge Sides did not call the applicant “a liar”. In the exchange quoted by Gleeson JA at [25], Judge Sides said that he did not know whether the position represented by the applicant as having been communicated to him by “the Supreme Court” was correct. In the exchange quoted at [28], his Honour said that the “story” the applicant reported having received from “the Supreme Court” did not “have the ring of truth to it”. In each case, the judge questioned the objective accuracy of what the applicant said he had been told by “the Supreme Court”. He did not question or seek to impugn the applicant’s truthfulness. The transcript placed before this Court shows that Judge Sides dealt courteously with the applicant, if at times firmly.

79. My second observation is that 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 almost three years ago may be brought to a prompt conclusion under close and efficient case management.

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Endnotes

Decision last updated: 06 December 2016