Brandon Trevor Rich v The Queen

[2015] NSWDC 71

District Court

New South Wales

Medium Neutral Citation:	Brandon Trevor RICH v R [2015] NSWDC 71
Hearing dates:	15 April 2015
Date of orders:	18 May 2015
Decision date:	18 May 2015
Jurisdiction:	Criminal
Before:	G Lerve DCJ
Decision:	The appeal against conviction is dismissed.
Catchwords:	CRIMINAL LAW – conviction appeal – service of apprehended violence order
Legislation Cited:	Crimes (Appeal and Review) Act 2001 Crimes (Domestic and Personal Violence) Act 2007 Evidence Act, 1995 Local Court Act, No. 93 of 2007 Local Court Rules Road Transport Act 2013 Weapons Prohibition Act 1998
Cases Cited:	De Robillard v Carver (2007) 159 FCR 38 Dunks v R [2014] NSWCCA 134 Hudson v R [2015] NSWCCA 64 Mead v Mead [2007] HCA 25 Oulton v Radcliffe (1874) LR 9 CP 189 Pioneer Concrete (North Coast) Pty Limited v Bennett [1972] Qd R 544 Secombe v Bate, exparte Bate (1888) 9 LR (NSW) 161
Texts Cited:	Ritchie’s Uniform Civil Procedure NSW
Category:	Principal judgment
Parties:	Brandon Trevor James Rich The Crown
Representation:	Solicitors: Aboriginal Legal Service The Director of Public Prosecutions
File Number(s):	2014/104145
Decision under appeal	Court or tribunal: Dubbo Local Court Jurisdiction: Criminal Date of Decision: 16 May 2014 Before: Magistrate Van Zuylen File Number(s): 2014/104145

Judgment

Decision on the Conviction Appeal of Brandon Trevor James RICH

1. Lord Hailsham observed in Boardman v DPP (1974) 60 Cr App R 165 at 176:

“However, the variety of human circumstances is infinite, and the fertility of ingenuity in counsel considerable…”

2. By way of Notice of Appeal to the District Court Brandon Trevor James RICH appeals against a conviction recorded at the Dubbo Local Court on 16 May 2014 in respect of a charge that on 1 April 2014 at Dubbo in the State of New South Wales he did knowingly contravene a prohibition specified in an order, contrary to section 14(1) of the Crimes (Domestic and Personal Violence) Act 2007. The terms of the order are pleaded within the section titled “Details of Offence” on the Court Attendance Notice, but those are particulars only and do not impact on the charge. No submission is made to the contrary.

3. It is appropriate in order to better understand the issues involved to set out a chronology. The information is drawn from the papers on the court file, the transcript of proceedings before the Local Court and the submissions of the parties.

27 February 2014	Provisional Apprehended Order made at 3.25am nominating Uppannia Sullivan as the protected person and the appellant as the defendant. Const. Bartlett serves copy of order on defendant.
5 March 2014	Appellant appears in court represented by Mr T McKenzie of the Aboriginal Legal Service. Interim Apprehended Violence order made. Matter adjourned to 19 March 2014.
19 March 2014	Adjourned to 26 March 2014. Mr McKenzie appears for defendant. Interim order continued.
26 March 2014	No appearance of defendant. Matter adjourned to 9 April 2014. Interim order continued.
1 April 2014	Alleged conduct giving rise to the charge.
7 April 2014	Court Attendance Notices created. Accused is charged with one count of common assault on Uppamania Sullivan and one count of contravene apprehended violence order.
7 April 2014	Court Attendance Notices served on accused.
7 April 2014	First appearance before the Local Court at Dubbo, a “mini brief” is served and the matters listed for hearing before the Dubbo Local Court on 16 May 2014. Accused is represented by Mr T McKenzie of the Aboriginal Legal Service; Interim Apprehended Violence Order continued.
16 May 2014	Hearing at Dubbo Local Court. Plea of guilty entered to the Assault charge; defended hearing on Contravene AVO charge. Local Court finds appellant guilty of Contravene AVO
19 May 2014	Appeal against conviction lodged

4. The proceedings before the Local Court on 16 May 2014 proceeded by the prosecutor handing to the court a brief of evidence and both parties made submissions.

5. The appeal was mentioned a number of times before me at the Dubbo District Court on various dates between 23 June 2014 and 4 February 2015. The matter was adjourned as Mr Day, solicitor for the appellant indicated to the Court that he was waiting on advice as to whether some type of prerogative relief was to be sought in the Supreme Court of New South Wales. Eventually it was indicated to the court that that was not going to occur, and accordingly, the matter is being litigated in the District Court.

The appeal

6. Mr Day, with his usual thoroughness has provided written submissions setting out the basis of the appeal. Essentially, as I understand the submissions, it is put that the Court would uphold the appeal on a number of bases, namely, there was no proof before the Local Court of the conduct said to be the contravention of the Apprehended Violence Order, that the prosecution were unable to prove service of the Provisional Apprehended Order on the appellant and, further, the learned Magistrate in the Local Court should not have informed himself of the events of 5 March 2014 (or for that matter anything else) from the Court papers, as that material was not part of the material tendered by the prosecution.

7. The hearing before the learned magistrate was by way of the police prosecutor tendering a brief of evidence and submissions. The brief became exhibit 1 before the Local Court and consisted of a copy of the Provisional Order made at 3.25 am on 27 February 2014 indicating that the appellant was required to be at the Dubbo Local Court on 5 March 2014; an electronically generated Statement of Service completed by Senior Constable Bartlett indicating personal service at 4 am on 27 February 2014; and a copy of an interim order continued at the Dubbo Local Court on 26 March 2014, on which date the appellant was apparently not present in Court.

8. Section 14 of the Crimes (Domestic and Personal Violence) Act provides:

14 Offence of contravening apprehended violence order

(1) A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence. Maximum penalty: Imprisonment for 2 years or 50 penalty units, or both.

(2) A person is not guilty of an offence against subsection (1) unless:

(a) in the case of an apprehended violence order made by a court, the person was served with a copy of the order or was present in court when the order was made, or

(b) in any other case, the person was served with a copy of the apprehended violence order.

(3) A person is not guilty of an offence against subsection (1) if the contravention of the prohibition or restriction concerned:

(a) was necessary in order to attend mediation under section 21, or

(b) was done in compliance with the terms of a property recovery order.

(4) Unless the court otherwise orders, a person who is convicted of an offence against subsection (1) must be sentenced to a term of imprisonment if the act constituting the offence was an act of violence against a person.

(5) Subsection (4) does not apply if the person convicted was under 18 years of age at the time of the alleged offence.

(6) Where the court determines not to impose a sentence of imprisonment, it must give its reasons for not doing so.

(7) A person is not guilty of an offence of aiding, abetting, counselling or procuring the commission of an offence against subsection (1) if the person is a protected person under the order concerned.

(8) A police officer is to make a written record of the reasons for:

(a) a decision by the police officer not to initiate criminal proceedings against a person for an alleged contravention of subsection (1) or (9) (whether or not the person is arrested), or

(b) a decision by the police officer not to proceed with criminal proceedings against a person for an alleged contravention of subsection (1) or (9),

if the police officer or another police officer suspects on reasonable grounds that the person has committed an offence against either subsection or if an alleged contravention of either subsection by the person has been reported to the police officer or another police officer.

(9) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed.

9. Essentially Mr Day submits on behalf of the appellant is that the prosecution were unable to prove beyond reasonable doubt that the appellant had been served with a copy of the Order or that he was in court at a time the Order was made.

Evidence concerning the alleged breach

10. At pars 27, 28 and 29 of his submissions Mr Day says:

“It would appear that the agreed facts that set out the common assault were not tendered during the hearing (see Transcript 13). Thus, strictly speaking, there was no evidence tendered during the hearing that disclosed a breach of an AVO. If this submission is accepted, although not raised in the hearing, perhaps by oversight, the appellant has no case to answer in respect of the alleged contravention of the AVO.”

11. Initially, I was of the view that this ground may have had some merit. However, Mr Waldmann the solicitor who appears for the DPP on the appeal submitted that the following appears at p 2 lines 13 – 19 inclusive:

“McKENZIE:   Your Honour I’m happy to state what the issue is in terms of the Court’s determination for the matter that there is no plea entered. The contravene charge, there’s a fact sheet in terms of the agreed facts of what has happened with the common assault. The only issue for the other sequence is the issue of knowledge about the existence of an application of a AVO at the time of the acts that are agreed to and in that regard I’m happy for the sergeant and I’m proposing that the sergeant—“    [The emphasis on the word “only” is mine.]

12. It is also curious, given the issues that were ventilated on the appeal and the appearance of the appellant and Mr McKenzie on 5 March 2014 that Mr McKenzie used the words “the issue of knowledge” about the existence of the application.

13. Mr Day initially submitted that there was no evidence before the court of the assault that is the act that is said to constitute the contravention of the Apprehended Violence Order. He eventually resiled from the submission relating to the lack of evidence of the breach.

14. Section 18 of the Crimes (Appeal and Review) Act 2001 provides:

18 - Appeals against conviction to be by way of rehearing on the evidence

(1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19.

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

(3) The parties to an appeal are each entitled to be provided with one free copy of the transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence.

15. The extract from page two of the transcript before the Local Court is part of the evidence that is before me on the appeal. The then legal representative of the appellant conceded all matters save and except for the issue, “of knowledge about the existence an application of an AVO at the time…” Clearly, given the concession by Mr McKenzie before the Magistrate, there can be no reasonable argument that the issue of evidence that constituted the breach was something that was subject of an “oversight”. I am firmly of the opinion that the concession made before the learned Magistrate is part of the evidence before the District Court on the hearing of the appeal. The prosecution were entitled to rely on that concession in the Local Court and likewise, the prosecution are entitled to rely on that same concession on the hearing of the appeal.

16. On this issue, I note that at par 8 of his “Outline of Written Submissions” Mr Day says:

“The learned Magistrate was further informed that a plea of not guilty would be entered to the breach AVO charge and that the sole issue for determination was knowledge about the existence of the AVO”

17. There was initially some argument on this point. I make no apologies for being rather robust with Mr Day in the circumstances. As indicated above, Mr Day eventually resiled from the submission. However, the submission should not have been made in the first place, as there was no merit to or basis for the submission.

Service of the Provisional Order made on 27 February 2014

18. Mr Day submits that the electronically generated Statement of Service is inadmissible to prove service of the order that was made on 27 February 2014. Mr Day goes on to submit in his Outline of Written Submissions (paragraph 31) that this essentially because the document was “hearsay pursuant to s 59 Evidence Act 1995 (NSW) and no exception to the hearsay rule applied”.

19. The electronically generated statement of service is part of the material contained within the Crown Tender Bundle Exhibit A on the appeal. That document is headed Statement of Service – Provisional Orders, Interim Orders and Final Orders and contains the following:

“I have served on Brandon Rich at 15 Merilba Street, Narromine, NSW, 2821 a copy of this Apprehended Violence Order – Provisional Order

Identified by case number: 20140006367001

Place of Order: Dubbo

Date of Order: Thu Feb 27 03:25:00 EST 2014

Served: at 4:00am on 27-Feb-2014

Method of Service: In person [a box is ticked]

At the time of service I explained the nature and effect of the documents to the person served.

BARTLETT Michelle Anne/Sen Constable Dubbo”.

20. The Local Court as presently constituted was created by the Local Court Act, No. 93 of 2007. That Act was given Royal Assent on 13 December 2007 and commenced on 6 July 2009. Sections 25 and 26 of that Act provide:

25 Local Court Rule Committee

(cf LCA 1982, sections 30 and 31)

(1) There is to be a Local Court Rule Committee.

(2) The Rule Committee is to consist of the following members:

(a) the Chief Magistrate,

(b) at least one and not more than 6 Magistrates (in addition to the Chief Magistrate) appointed by the Chief Magistrate,

(c) a barrister appointed by the Bar Council,

(d) a solicitor appointed by the Law Society Council,

(e) an officer of the Court appointed by the Chief Magistrate,

(f) a person appointed by the Director-General of the Attorney General’s Department,

(g) if the Minister thinks that it is appropriate to appoint a person as a member—a person appointed by the Minister,

(h) the additional member or members appointed in accordance with subsection (3) or (4), as the case requires.

(3) The Rule Committee, when exercising its functions in respect of matters relating to the jurisdiction referred to in section 9 (a) and (b), is to have an additional member, being a person appointed by the Chief Magistrate to represent consumer groups.

(4) The Rule Committee, when exercising its functions in respect of matters relating to the jurisdiction referred to in section 9 (c), is to have 3 additional members as follows:

(a) a person appointed by the Chief Magistrate on the nomination of the Director of Public Prosecutions,

(b) a person appointed by the Chief Magistrate on the nomination of the Legal Aid Commission,

(c) a police prosecutor admitted to the legal profession under the Legal Profession Act 2004 appointed by the Chief Magistrate on the nomination of the Commissioner of Police.

(5) Schedule 3 has effect in respect of the Rule Committee.

26 Rules generally

(cf LCA 1982, section 28A)

(1) The Rule Committee may make rules, not inconsistent with this Act, for or with respect to any matter that is required or permitted to be prescribed by rules, or that is necessary or convenient to be prescribed by rules, in relation to the practice or procedure of the Local Court.

(2) In particular, the rules may make provision for or with respect to the following matters:

(a) the practice or procedure to be followed in criminal proceedings,

(b) the functions of registrars and other officers of the Court,

(c) the review of orders or decisions of registrars,

(d) any matter incidental to, or relating to, any such practice or procedure.

(3) A rule may be made under this Act in relation to any matter for which a rule-making power is conferred on the Court by or under any other Act or law.

See also sections 42 (Rules in civil jurisdiction) and 71 (Rules in application proceedings).

21. Proceedings in respect of Apprehended Violence Orders are civil proceedings. Section 42 of the Local Court Act provides:

42 Rules in civil jurisdiction

(cf LCA 1982, section 79)

(1) The rules may make provision for or with respect to the following matters relating to the civil jurisdiction of the Court:

(a) the practice and procedure in the Court and in proceedings before a registrar,

(b) the transfer of proceedings between the Small Claims Division and the General Division,

(c) the referral of matters to Community Justice Centres for mediation under the Community Justice Centres Act 1983 ,

(d) the functions of registrars,

(e) the filing and serving of notices under this Act,

(f) the times for doing any matter or thing for the purposes of this Part,

(g) the excusal of non-compliance with the rules,

(h) costs in relation to proceedings in the Court’s Small Claims Division,

(i) the manner of doing any matter or thing for the purposes of this Part.

(2) This section does not give power to make rules with respect to any matter relating to costs that is regulated by Division 11 of Part 3.2 of the Legal Profession Act 2004 .

(3) This section does not give power to make rules in terms inconsistent with those of the uniform rules under the Civil Procedure Act 2005 unless the uniform rules expressly permit rules under this section to be made in those terms.

(4) The rules made under this section may authorise or require the use of an ECM system established under clause 2 of Schedule 1 to the Electronic Transactions Act 2000 in relation to any proceedings in the Court in respect of which the use of such a system is authorised by an order in force under clause 3 of Schedule 1 to that Act.

22. At par 32 of the Outline of Written Submissions Mr Day says:

“During the hearing, the appellant’s solicitor suggested that Rule 5.12 Local Court Rules may create an exception to the hearsay rule”.

23. However, at par 34 of those same submissions he says:

“The appellant submits no such concession should have been made in the Local Court.”

24. I merely observe it does not assist the efficient conduct of the court if submissions or concessions are made by a party before the Local Court and then another practitioner of the same firm or organisation appear on an appeal to the District Court and make contrary submissions or attempt to resile from the concessions made. In particular, given what I have already extracted from the Crimes (Appeal and Review) Act it is tolerably plain that the intention of the Parliament is that appeals from the Local Court to the District Court are to be determined on the material before the Local Court unless there is leave to call further evidence. An appeal from the Local Court to the District Court should not be an appeal against forensic decisions made by another practitioner, particularly in circumstances where the same firm or organisation appeared in the court below.

25. Sections 25, 26 and 41 of the Local Court Act provide for the creation of a Rules Committee and the making of rules. The Local Court Rules are created in accordance with those sections and provide inter alia for rules relating to practice and procedure. The service of documents is quintessentially something that is within the bounds and purview of Practice and Procedure.

26. As the Crown correctly submits, r 5.1 of the Local Court Rules provides that Part 5 of the Rules applies to committal proceedings, summary proceedings and application proceedings. Proceedings relating to apprehended violence order are application proceedings. Further, as the Crown correctly submits, r 5.2 includes an “Application Notice” as an originating document.

24. Again, as the Crown correctly submits, section 29 of the Crimes (Domestic and Personal Violence) Act provides that a Provisional Order (i.e. the order made on 27 February 2014) is taken for the purposes of the Act to be an application for an order under Pt 10, and s 31 of the Act requires personal service.

25. Rule 5.12 of the Local Court Rules provides:

5.12 – Proof of service

(1) A person who serves a document issues in proceedings must complete a statement as to service of the document served

(2) The statement must include the following matters:

(a) The date service was effected,

(b) The method of service,

(c) The name address and occupation of the person serving the document,

(d) If the document was served personally, the person to whom it was delivered,

(e) If the document was served by post:

(i) The information (and the source of such information) the person relied on in obtaining the address to which it was posted, and

(ii) The time and place of posting

(f) If the document was served by facsimile:

(i) The information (and the source of such information) the person relied on in obtaining the facsimile number to which it was sent, and

(ii) The date on which advice confirming successful transmission of the document was received,

(g) If the document was served by electronic communication (other than facsimile):

(i) The information (and the source of the information) the person relied on in obtaining the email address to which it was sent, and

(ii) The date on which the email was sent.

3. A copy of the document must be attached to the statement or the statement must clearly identify the document.

4. The statement must be signed by the person serving the document and a witness to the signature.

5. In the case of a document served by a police officer or a public officer, the statement is not required to be signed.

6.   …

7.   …   

8.   …

29. The Statement of Service which I have extracted above is not signed. However, r 5.12.5 clearly provides that if a police officer serves the document no signature is required. Mr Day for the appellant maintains that in any event the Statement of Service does not comply with the rules as the officer has not indicated her address in that the word “Dubbo” appears in the section of the form for the address. Police officers in giving oral evidence are only ever required to give their name rank and station. It is blatantly obvious from the Statement of Service that Constable Michelle Bartlett is attached to the Dubbo Police Station. In these circumstances, I am of the opinion that address is adequately stated.

30. Further, s 66 of the Crimes (Domestic and Personal Violence) Act may well be relevant in that it provides:

66 - Irregularity

(1) If, in or in connection with application proceedings or the commencement of application proceedings, there is a failure to comply with any requirement of this Act or the rules, the failure is to be treated as an irregularity and does not nullify the proceedings or any step taken in the proceedings, or any judgment, document or order in the proceedings.

(2) Subsection (1) applies to a failure to comply with a requirement relating to time, place, manner, form or content or any other failure.

(3) In the case of an irregularity, the court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings or exercise its powers under the rules to allow judgments and to make orders dealing with the proceedings generally.

(4) The court must not take action under subsection (3) on the application of a party unless that application is made within a reasonable time and before the party has taken any fresh step after becoming aware of the irregularity.

31. The very purpose of service of any document on any person is to bring to their attention the proceedings to which the originating process relates. The legislation that establishes the Local Court of New South Wales in its present guise specifically provides for the making of rules relating to practice and procedure. So far as I can determine the Statement of Service to which Mr Day takes objection in this matter complies with the Rules.

32. Mr Day in his submissions refers to section 257 of the Road Transport Act 2013. Subsection (1) of the Act provides:

257 - Certificate evidence

(cf Gen Act, s 230)

A statement in a certificate purporting to have been issued by an Australian Authority, an Australian authorised officer or an Australian police officer that, at a specified time or during a specified period, any of the matters referred to in the Table is or was, or is or was not, the case is admissible in any proceedings and is prima facie evidence of the matters stated.

33. A Table then follows. That provision relates to the facilitation of proof of matters in relation to which records are held or kept by the Roads and Maritime Services in relation to matters such as driver licences. The facilitation of proof of these matters is entirely different to the proof of service of originating process.

34. A similar submission is made in respect of section 48 of the Weapons Prohibition Act 1998, which relevantly provides:

48 Evidence

A certificate signed by the Commissioner (or by a person holding an office prescribed by the regulations) certifying any one or more of the following:

(a) that a specified person was or was not, on a day or during a specified period, the holder of a permit,

(b) that any permit was or was not, on a day or during a specified period, subject to specified conditions,

(c) that a specified person was or was not, on a specified day or during a specified period, subject to a weapons prohibition order,

(d) that a specified thing was or was not, on a specified date, approved,

(e) that a specified address was, on a specified date, the last address known to the Commissioner of a specified person,

is admissible in any proceedings under this Act and is prima facie evidence of the matters so certified.

35. Again, this provision relates to facilitation of proof of records, and again, is different to the proof of service of originating process.

36. I agree with the submissions by the Crown that the title of r 5.12, “Proof of Service” indicates that r  5.12 exists to serve the purpose of facilitating proof of service of the process.

37. For these reasons, I do not reject the Statement of Service because it offends section 59 of the Evidence Act, 1995. Even if I am wrong on this aspect in the particular circumstances of this appeal it significant that the appellant on 5 March 2014 was in court and represented by a solicitor of the Aboriginal Legal Service, ie the same organisation which employs Mr Day. A separate issue on the appeal relates to the magistrate informing himself from the Court record.

38. A submission is advanced on behalf of the appellant that I should exclude that part of the Statement of Service that says, “At the time of service, I explained the nature and effect of the documents to the person served”. For more abundant caution I exclude that part of the Statement of Service. However, s 14(2) of the Crimes (Domestic and Personal Violence) Act requires only that the defendant be in court or that he was served. The section does not require that the document be read and explained to him.

39. While doing some research on this matter between the various mentions I noticed that the bench sheet from which the learned Magistrate informed himself was not with the materials. Without objection from Mr Day that bench sheet was made available. Apart from that, it is also plain from the transcript of the proceedings in the Local Court that the appellant was present in court on 5 March 2014 when the interim order was made. There is a very significant body of common law to the effect that any defect in service is overcome by an appearance in Court – see the commentary to Ritchie’s Uniform Civil Procedure NSW at 10.19.5 at p. 5914. This was drawn to the attention of the parties.

40. One of the several authorities to which the learned editors of Ritchie refer is the decision of Secombe v Bate, exparte Bate (1888) 9 LR (NSW) 161. Darley CJ, Windeyer & Owen JJ agreeing said at 163:

“In this case it is not denied that the summon was in fact served upon defendant; but it is said that there was no proof of this before the Judge, and that as defendant did not appear, the Judge had, in the absence of such proof no power to go on with the case. The defendant was duly served, and instructed his attorney to appear and raise the question of jurisdiction, and the attorney having appeared and raised the question this seems to me to be a sufficient appearance within 22 Vic No. 18 s. 64, that is, an appearance which gets rid of the necessity for any proof of service of the summons. But even if this were not an appearance within the section, still it was in itself ample proof that defendant had been served…”

41. In Oulton v Radcliffe (1874) LR 9 CP 189 Keating J said:

“…In this case the writ was duly issued, and service outside the county is only an irregularity, which is waived by the appearance of the defendant”

42. Brett J (agreeing with Keating J) in that same decision said:

“…You cannot force him into the jurisdiction, but if he comes in, or appears, he waives the irregularity of which he has knowledge…”

43. Skerman J in Pioneer Concrete (North Coast) Pty Limited v Bennett [1972] Qd R 544 held that a defendant may, although not served with process, waive the necessity for service and enter an appearance.

44. Buchanan J (Moore & Conti JJ agreeing with brief additional comments) in De Robillard v Carver (2007) 159 FCR 38 said at [86]:

In light of his appearance at, and participation in, the hearing before the primary judge there is no substance in the contention that the appellant was not properly served with the creditor’s petition…”

45. Reference is then made to the Rules of Court.    However, the decision accords with the earlier nineteenth century decisions, which do not appear to have been the subject of any doubt whatsoever ever since.

46. There is another aspect that may render the argument relating to the service of Provisional order redundant. The Provisional Order had immediate effect from the time of service on 27 February 2014. Upon the learned Magistrate making an Interim Order on 5 March 2014 in the presence of the appellant and his solicitor the Provisional Order had no further effect. The Interim Order made on 5 March 2014 was in effect on and from that date and was continued at subsequent appearances before the Local Court.

47. By virtue of section 24(1)(a) of the Crimes (Domestic and Personal Violence) Act an Interim Order remains in force until it is revoked. Accordingly, the Interim Order was in force as at 1 April 2014 when the offence of common assault was committed against the person named as the person in need of protection in that Interim Order.

48. The appellant was in court, with a solicitor, on 5 March 2014 when the Interim Order was made by the Local Court. That is sufficient to eliminate any defence under s 14(2) of the Crimes (Domestic and Personal Violence) Act.

Magistrate informing himself from the Court record

49. During the course of the hearing before the learned Magistrate he informed himself of what had occurred by reference to the bench papers. Those papers, which are now also before me (by consent) as part of the material on the appeal indicate that on 5 March 2014 Sgt Gumley appeared for the applicant (a police officer), the appellant appeared in person and that Mr McKenzie appeared for the defendant. Having been on the Local Court bench for almost seven years, I am well aware that the notation “I/P" is the standard abbreviation used in the Local Court to note that the person appeared in person. I also note that on one of the occasions the matter was mentioned before me Mr Day acknowledged that the appellant did in fact appear in person on 5 March 2014.

50. Section 144 of the Evidence Act, 1995 provides:

144 - Matters of common knowledge

(1) Proof is not required about knowledge that is not reasonably open to question and is:

(a) common knowledge in the locality in which the proceeding is being held or generally, or

(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.

(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.

(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

51. The Magistrate was entitled to acquire knowledge of the kind to which subsection (1) of section 144 of the Evidence Act refers. It was capable of being verified by reference to a document, namely the bench sheets, the authority of which could not be reasonably questioned.

52. The following exchange occurred between the learned Magistrate and Mr McKenzie on 16 May 2014 at p. 3 lines 20 and continuing:

McKENZIE: Your Honour it notes that the defendant wasn’t present in court

HIS HONOUR: On 5 March he was.

McKENZIE: On the evidence before your Honour on the copy of the interim AVO that’s served in the brief of evidence that your Honour has it says that there is an interim order made, it’s not a provisional order, and interim order and it says that the defendant was not present in court. My submission—

HIS HONOUR: I’ve got the court papers here I’ll show then to you Mr McKenzie. Did he come to court on 5 March 2014, yes or no?

McKENZIE: My submission your Honour is that the evidence—

HIS HONOUR: Yes or no?

McKENZIE: I can’t answer that question your Honour.

HIS HONOUR: Well you appeared. I understand it was his Honour Magistrate McPherson, if he was in court on 5 March “interim order continued 19 March”.    On 19 March he was excused, adjourned 26 March. On 26 March he didn’t appear. “Interim Order to Continue”.

McKENZIE: I can only—

HIS HONOUR: How can you advance an argument that there’s not an order in existence.

McKENZIE: I don’t.

(to p 4)

HIS HONOUR: He’s aware of when he was here and you appeared.

McKENZIE: Your Honour I don’t advance an argument that a court proceeding didn’t occur or an interim order was made and I can only make submissions to your Honour as Mr Rich’s representative on the evidence before the Court.

HIS HONOUR: Well I’ve got the court record here.

McKENZIE: That not in the brief of evidence before the Court in my respectful submission your Honour and your Honour if it was there is no evidence before your Honour…”

53. Mr McKenzie made further submissions in the same vein at pages 5 and 6 of the proceedings before the learned Magistrate. At p 5 commencing line 26 the following appears:

HIS HONOUR: What I don’t understand Mr McKenzie - and please explain the court file, and I’ve got a copy of it here in front of me - I’ve been informed by the court staff, he turned up on 5 March 2014 – Gumley either Ms or Mr, Prosecutor Sergeant Gumley appeared, it’s marked “In person” by the Magistrate, his Honour Magistrate McPherson. The lawyer is Mr McKenzie. I presume that’s you and it says “adjourned to 19 March interim order 13 not enter” et cetera. So an interim order is made on the court file. How can you possibly argue that (t)here is not an interim order in existence when he comes to court and an interim order is made in court?

McKENZIE: It’s not in evidence your Honour, that’s the argument.

54. Mr McKenzie went on to submit at p 5 line 45 and continuing that the only material on which the court could make a decision was the police brief of evidence that had been made available. Curiously, Mr McKenzie never did answer what appears to me to be a very appropriate question as to whether he was present or not on 5 March 2014. I am left pondering how, if the defendant was not properly served, noting that the Provisional Order required an attendance at court on 5 March 2014, it is that he is present in court, with legal assistance on that date.

55. On one of the several occasions this matter was mentioned I drew the attention of the parties to the decision of the High Court of Australia in Mead v Mead [2007] HCA 25. Gleeson CJ (Hayne, Callinan, Heydon and Crennan JJ agreeing) said at paragraph [9] – 11]:

“The key paragraphs in the reasons of the Full Court are pars 68 to 87. It is unnecessary to set them out. It is sufficient for present purposes to say that the majority in the Full Court took the view that, because communications between the present respondent and her solicitors were the subject of legal professional privilege, it was not open to the primary judge to draw an inference that she knew the terms and meaning of Rose J's order in circumstances where the evidence did not show either that she was in court when the order was made or that she had been served with a sealed copy of the order. Since the most likely source of the respondent's knowledge of the order was her solicitor, the majority appeared to think that drawing an inference that she knew of the order would in some way be inconsistent with legal professional privilege. There is no such inconsistency.

No question of legal professional privilege arose in the proceedings before Cohen J. Neither the respondent nor her solicitor gave evidence, nor was there any attempt on the part of the appellant to adduce any evidence about communications between the respondent and her solicitor. The rule relating to legal professional privilege does not prevent the drawing, from events and circumstances, of inferences about the knowledge of a party, even if the probable source of such knowledge is a privileged communication. It is a rule that precludes the adducing of evidence in certain circumstances, but it is a rule that had no bearing on the present case.

If, as Cohen J and May J concluded, the facts and circumstances of the case supported, indeed compelled, an inference that the respondent knew of, and understood the meaning of, the order made by Rose J, then the consideration that neither she nor her solicitor could have been obliged to reveal communications that passed between the two of them did not stand in the way of acting on the basis of such an inference.”

56. The Chief Justice went on to say at par 14:

“Because the majority in the Full Court of the Family Court erroneously considered that the law relating to legal professional privilege was an impediment to the drawing by Cohen J of the inference that he drew, and by implication concluded that the law similarly precluded the Full Court from drawing any such influence, the parties to the appeal to the Full Court have not had a proper consideration of the first of the grounds of appeal to the Full Court, which was that Cohen J erred in concluding as a fact that the respondent was aware of the terms of the orders made by Rose J on 7 September 1999 and that the order had been made.”

57. These statements by the High Court make it tolerably plain that it is open to a judicial officer to have reference to the court file in determining whether a party was aware of a court order. There is also the issue of the party being represented. It would be expected that a competent legal practitioner, who was present at court when an order was made against their client would explain the fact of and effect of an order made against their client.

58. Given that the appellant and Mr McKenzie were both present in Court on 5 March 2014 it is difficult to perceive how any unfair prejudice could be occasioned by the court informing itself from its own court papers. In any event, the Magistrate made it plain he was informing himself from the court papers and Mr McKenzie had the opportunity to make submissions.

Conclusion

59. For these reasons I am firmly of the opinion that there is no substance to any of the arguments raised on behalf of the appellant. Indeed, given the body of common law to which I have referred to the effect that an appearance overcomes any defect in service, s 144 of the Evidence Act, 1995 and the effect of the decision of the High Court in Mead v Mead I am firmly of the opinion that the appeal should be dismissed. Indeed, I am reminded of what was said by RA Hulme J in Hudson v R [2015] NSWCCA 64 at [20], namely:

“It is most unfortunate that these applications have been brought to the Court. Valuable legal aid, prosecution and court resources have been consumed but they are both completely devoid of merit”.

60. In the same vein, RA Hulme J said in Dunks v R [2014] NSWCCA 134 at [52]:

“This case truly fits the description of an ‘armchair’ appeal, a description often used in a deprecating fashion when points never raised at trial are sought to be raised on appeal. The term was explained by Johnson J in Darwiche v R; El-Zeyat v R; Aouad v R; Osman v R [2011] NSWCCA 62 at [170] :

‘... where counsel not involved in the trial has gone through the record of the trial in minute detail looking for error or possible arguments without reference to the manner in which the trial was conducted: R v Fuge [2001] NSWCCA 208; 123 A Crim R 310 at 319-330 [40]-[45]; Ilioski v R [2006] NSWCCA 164 at [155].’”

61. Although the points relating to service and the court informing itself from its own record were raised, the extract above is apposite given the concessions made in the Local Court about matters which became the subject of significant argument on the appeal, this is particularly so in circumstances where Mr Day sought leave to withdraw the appeal, which leave was refused.

Formal Order

62. The appeal against conviction is dismissed. I will now hear counsel on the issue of sentence.

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Decision last updated: 29 May 2015