Bangura v Director of Public Prosecutions (NSW)

[2020] NSWCA 138

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138

Hearing dates:

7 July 2020

Date of orders:

7 July 2020

Decision date:

08 July 2020

Before:

Basten JA; Ward JA; McCallum JA

Decision:

(1)   Extend time to file the summons seeking review of the judgment in the District Court convicting the applicant to 6 March 2020.

(2)   Dismiss the summons filed by the applicant on 6 March 2020.

(3)   The applicant is to pay the first respondent’s costs in this Court.

Catchwords:

JUDICIAL REVIEW – crime – review of judgment of District Court on appeal from Local Court – jurisdictional error – no tenable ground

Legislation Cited:

Supreme Court Act 1970 (NSW) s 69

Crimes (Appeal and Review) Act 2001 (NSW), ss 75, 79; Pt 7

Cases Cited:

Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39

Category:

Principal judgment

Parties:

Amadu Bangura (Applicant)
Director of Public Prosecutions (NSW) (First Respondent)
District Court of New South Wales (Second Respondent)

Representation:

Counsel:
Mr T Yeh (Applicant)
Mr C McGorey (First Respondent)

Solicitors:
Applicant self-represented
Solicitor for Public Prosecutions (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s):

2020/72865

Judgment

1. THE COURT: The applicant, Amadu Bangura, sought review by this Court of a conviction in the District Court, on appeal from the Local Court. He has no right of appeal from the judgment of the District Court and therefore seeks to invoke the supervisory jurisdiction of this Court pursuant to s 69 of the Supreme Court Act 1970 (NSW).

2. The applicant, who was a solicitor and migration agent, was charged with attempting dishonestly to obtain a financial advantage, namely an amount of $700,000, being the amount sought by his legal representative from an insurance company in order to settle a motor vehicle accident claim. Amongst various particulars of deception, the applicant was said to have misrepresented that he was unable to work as a result of a physical injury to his hip and a psychological condition. In respect of each, he suffered a pre-existing condition and inflated his complaints as to the effects of the accident. The activities were said to have occurred between 16 March 2015 (the date of the accident) and 26 June 2017 (the day before his arrest on the current charge).

3. On 25 June 2018 he was convicted following a hearing before Magistrate Denes in the Local Court at Burwood. He was sentenced to imprisonment for a term of 2 years with a non-parole period of 9 months. He lodged an appeal to the District Court, the effect of which was to stay the execution of his sentence.

4. His appeal was heard by Judge Payne in the District Court at Parramatta, the hearing commencing on Monday, 21 October 2019 and concluding on Tuesday, 22 October. Judgment was delivered the following day, namely 23 October 2019. He was found guilty, and resentenced the following day to imprisonment for a term of 1 year and 9 months to be served by way of intensive correction order. A condition of the order was that he perform 240 hours of community service work. In sentencing him, the judge took into account that he would “almost certainly be struck off as a solicitor.”

5. On 6 March 2020 the applicant filed a summons in this Court seeking to quash the finding of guilt of the offence, made on 23 October 2019. The operative order of the District Court was his conviction, which was not in fact made until he was sentenced on 24 October. The order sought to be challenged in these proceedings should be the order of conviction and the consequent sentence, the latter not being separately challenged.

Application for judicial review

6. Although the applicant was unrepresented in this proceeding, he was trained and admitted as a solicitor and has practised law. Indeed, part of the deception relied on by the prosecution were claims that he was not working, when he was in fact engaged in practising law with a firm of solicitors. Nevertheless, aspects of the summons did not reflect legal training.

7. First, while the summons sought an order that the “decision” of Payne DCJ “be quashed for jurisdictional error” (an appropriate order under s 69 of the Supreme Court Act) it sought in the alternative that the decision “be subjected to an inquiry under section 78 of the Criminal Appeal and Review Act 2001 (NSW)”. An inquiry under Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”) requires an application for an inquiry to be made to the Supreme Court which may direct an inquiry to be conducted by a judicial officer or may refer the case to the Court of Criminal Appeal. [1] The consideration of such an application is to be undertaken by the Chief Justice or by a judge of the Court authorised by the Chief Justice. [2] The consideration of an application under s 79 is expressly stated not to constitute a judicial proceeding: s 79(4). The application therefore cannot constitute part of the jurisdiction of the Court invoked by summons. As counsel for the Director submitted, so much of the summons as sought an inquiry under s 78 of the Appeal and Review Act was incompetent. Counsel who appeared for the applicant on the hearing in this Court (without filing an appearance), but had not prepared the summons or the written submissions, correctly did not press this relief.

   1. Appeal and Review Act, s 79(1).

   2. Appeal and Review Act, s 75(1).

8. Secondly, and more importantly, there were three grounds said to constitute jurisdictional error. They were:

“1   The learned judge failed to apply common sense equally to the positions of both the Crown and Mr Bangura and thereby denied Mr Bangura procedural fairness;

2   The learned judge erroneously took into account the advantage that was enjoyed by the magistrate in the proceedings in the Local Court;

3   The learned judge gave no reasons for rejecting Mr Bangura’s explanation”.

9. Order 4 and ground 4 sought an extension of time within which to file the proceeding, on the basis that the applicant had only received a written copy of the judgment of Payne DCJ on 30 January 2020. The extension was not opposed, except on the ground of inutility, based on the lack of merit in the substantive application, and should be granted.

10. In an unsigned and undated document entitled “Submissions on behalf of Amadu Bangura” a fourth ground was added to the list of jurisdictional errors namely:

“d.   As a consequence of the two errors [sic] referred to above, the judge failed to answer the question of whether the Crown has proven the offence beyond reasonable doubt.”

11. The submissions expressly addressed the second ground, but otherwise sought a review of the factual findings made by the judge in seeking to establish that it was “not proved beyond reasonable doubt that Mr Bangura was dishonest when making those representations”, namely that he had inflated the level of his injuries and was in fact working when he represented to doctors and representatives of the insurance company that he was not working.

12. Notably, there was no suggestion that the judge made any error in identifying the elements of the offence, nor that she did not fully appreciate and apply the criminal standard, namely satisfaction of each element of the offence beyond reasonable doubt. (Such a suggestion would have been implausible.)

Jurisdictional errors

13. Jurisdictional error arises where the decision-maker has misunderstood the limits of his or her legal authority or has otherwise acted outside the scope of that authority, or failed to exercise the powers conferred by that authority. A failure to accord a party procedural fairness in a material respect will constitute jurisdictional error, because procedural fairness is an essential characteristic of the exercise of judicial power, being the power exercised by the District Court judge in the present case.

14. Procedural fairness requires that an adverse finding not be made in circumstances where the party adversely affected has not had an opportunity to address the basis upon which the finding is made. It is rare that experienced judges conduct proceedings in a manner which is not procedurally fair in the sense noted, but on occasion it can happen, usually through inadvertence. For example, the judge may proceed on the basis that a party has a particular document, or that particular evidence has been admitted, when that is not the case. Ground 1 did not identify an example of procedural unfairness in this legal sense. It is, in substance, a complaint about factual findings as to the credibility of evidence. It raised no basis for review.

15. Ground 2 did not identify an error of any kind. It is usual that the judge on appeal will need to take into account the advantage enjoyed by the magistrate who heard the witnesses. In accordance with the requirements of ss 17-19 of the Appeal and Review Act, this appeal was determined on the papers; no witness was called to give oral evidence. The judge correctly described the appeal as one “by way of rehearing” and said that she was required to recognise “the advantage enjoyed by the magistrate who saw and heard the witnesses called in the Local Court.” The judge referred to the decision of the Court of Criminal Appeal in Charara v The Queen,[3] where Mason P, after noting the statutory basis for such an appeal in the District Court, stated:

“[18]   The District Court is then required to apply the principles governing appeals from a judge sitting without a jury. The Judge is to form his or her own judgment of the facts so far as able to do so, ie recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called in the lower court ….

…

[21]   These principles apply equally to an appeal by way of rehearing in a criminal matter where the appeal court has not seen the witnesses ….

…

[24]   The Local Court reasons will doubtless include an explanation why the conviction was entered at first instance, including an assessment of the credibility issues touching any factual dispute. Without reference to the reasons the District Court would be driven to speculation or deciding the issue entirely afresh. Neither such course would be consonant with the statutory scheme.”

3. [2006] NSWCCA 244; 164 A Crim R 39.

16. Accordingly, ground 2 was without substance; it identified no error of any kind.

17. Ground 3 asserted that the judge gave “no reasons” for rejecting Mr Bangura’s explanation. That is not so. Most of the judgment comprised an analysis of the prosecution evidence and a rejection of the explanations given by the defendant. For example:

1. At the hearing the appellant had stated that he was “hit at speed” from behind, and the car received a dent in the boot requiring it to be secured with rope; but the judge identified the picture of the vehicle taken after the accident which showed a minor dent in the bumper bar with no “rope being used to secure the boot of the vehicle; the vehicle was not written off as alleged and he was still driving the vehicle after the accident”.

2. The medical evidence included statements to doctors in which he “repeatedly said he had not been working and that was the psychical and psychological effect upon him of the accident, or that arise from the physical and psychological effect upon him of the accident”. In one of the reports he stated that “he rarely left the house and was depressed”. The judge continued:

“As against that, the phone records indicate, I think the Crown described as thousands of calls, that were made and there is also independent surveillance that saw him out and about and attend[ing] to his vehicle. Also going shopping and crouching down when looking at, from memory, car seat covers.”

In short, there was a volume of objective evidence which contradicted the assertions recorded by the doctors.

3. The judge set out evidence of a solicitor who said that the applicant had been employed with the firm and paid fulltime for a period in 2016, and set out at length the evidence of a conversation recounted by his own legal representative suggesting that the insurer had evidence that he had been in employment at a time when he said he could not work. The judge, referring to his evidence as to that matter, said that, “[h]e wasn’t able, in my view, to satisfactorily state or give an explanation.”

4. The judge referred to phone record evidence, accepted by his counsel as consisting of 40,000 calls by him between 16 March 2015 and 29 May 2017. In one call (which the judge set out) he specifically said he was calling from a law firm on behalf of a client. Another call, from his then solicitor, challenged his claim not to have worked for a law firm, although the insurance company had identified him as listed on the firm’s website.

5. Much of the evidence was self-evidently damning. The judge recorded his three trips to Indonesia and the fact that he had a business card on him when he was arrested. Extensive bank records identified receipts amounting to over $136,000 which the prosecution alleged were payments for legal services provided to clients during the period he said he was not working. The judge set out an extract from the written submissions for the applicant which noted that he “could not recall specific conversations he had with doctors and medical assessors”, understood that “work” meant going to a workplace from 9 to 5 and getting regular payments; and said that what he did for friends and members of the community in immigration matters he did not consider as “work”. The judge concluded:

“In terms of his knowledge, what he did after it was disclosed to him that the insurance company were aware of certain matters concerning KR Lawyers, to my mind that illustrates that he well knew that he was working and that he had informed numerous doctors that he was not and that that was dishonest according to the standards of ordinary people and it was known to him to be dishonest according to the standards of ordinary people. I am also satisfied that he did so in order to – by acting deceptively in this way – obtain a financial advantage.”

6. The judge also considered the applicant’s role in the settlement conference and his denial of knowing that a particular amount had been sought on his behalf. Again, a lengthy extract was set out from the defence submissions, following which the judge stated:

“In any event, as the magistrate said, the figure cannot have been puffed [sic – pulled?] out of the air. I accept the evidence that there must have been some discussion about the amount that was to be claimed and I reject his evidence that he was never told and indeed was shocked after he found out the amount of money.”

18. In short, the judge set out in some detail the evidence relied on by the prosecution, referred to the applicant’s attempts at explanations, and indicated that she did not believe him and accepted the objectively powerful evidence to the contrary. There was no failure to give reasons.

Conclusion

19. None of the purported jurisdictional errors contained evidence of error, let alone some failure on the part of the District Court judge to carry out her function properly and according to law. At the conclusion of the hearing the court dismissed the summons with costs. It is necessary to add an order extending time to file the summons to 6 March 2020.

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Endnotes

Decision last updated: 08 July 2020