Director of Public Prosecutions (NSW) v Al-Zuhairi

Case •

[2018] NSWCCA 151

•

27 July 2018

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

  • Summary available
  • Amendment notes
Medium Neutral Citation: Director of Public Prosecutions (NSW) v Al-Zuhairi [2018] NSWCCA 151
Hearing dates: 22 June 2018
Date of orders: 27 July 2018
Decision date: 27 July 2018
Before: Payne JA at [1]; R A Hulme J at [65]; Fagan J at [66]
Decision:

(1) Leave granted under s 5B(2) of the Criminal Appeal Act to extend the time to submit the questions of law stated by Colefax DCJ to 29 April 2018.

 

(2)   The orders made by the District Court on 30 January 2018 are quashed.

 

(3) Under s 5B(3) of the Criminal Appeal Act, the matter is remitted to the District Court for determination in accordance with these reasons.

 

The following answers to the stated case should be given:

 

Question 1: In proceedings for a ‘domestic violence offence’ as defined in s 3 of the Criminal Procedure Act 1986 in the Local Court, where a complainant gives evidence wholly of partly in the form of a recorded statement pursuant to s 289F of that Act, must the recording be formally tendered in the Local Court if there is no agreed transcript in order for the recorded statement to become “evidence given the original Local Court proceedings” within the meaning of that phrase in s 18(1) of the Crimes (Appeal and Review) Act 2001?

 

Answer: No

 

Question 2: In proceedings for a ‘domestic violence offence’ as defined in s 3 of the Criminal Procedure Act 1986 in the Local Court, where a complainant gives evidence wholly or partly in the form of a recorded statement pursuant to s 289F of that Act, is the viewing of the recorded statement by the Local Court sufficient for the recorded statement to become “evidence in the original Local Court proceedings” within the meaning of that phrase in s 18(1) of the Crimes (Appeal and Review) Act 2001?

 

Answer: Yes.

 

Question 3: Did I err in law in holding that where a recorded statement pursuant to s 289F of the Criminal Procedure Act 1986 had been played in proceedings before the Liverpool Local Court on 15 September 2017 but had not been formally tendered and where there is no agreed transcript, that the contents of that recorded statement were not “evidence given in the original Local Court proceedings” within the meaning of that phrase in s 18(1) of the Crimes (Appeal and Review) Act 2001?

 

Answer: Yes

 

Question 4: Did I err in law in holding that for the purposes of the re-hearing, and in the events which have occurred, there was no evidence to prove the essential elements of the offence?

 Answer: Inappropriate to answer.
Catchwords: CRIME – stated case – s 5B of the Criminal Appeal Act 1912 (NSW) – whether recorded statement for a domestic violence offence which was played in Local Court as evidence in chief and recorded pursuant to s 289F of the Criminal Procedure Act 1986 (NSW) must be tendered in Local Court proceedings as an exhibit in order to constitute “evidence in the original proceedings” within the meaning of s 18 of the Crimes (Appeal and Review) Act 2001 (NSW)
Legislation Cited: Crimes Act 1900 (NSW) s 59
Crimes (Appeal and Review) Act 2001 (NSW) ss 11, 18
Crimes (Appeal and Review) Amendment Act 2009 (NSW)
Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW) ss 4, 5, 6, 11
Criminal Appeal Act 1912 (NSW) s 5B
Criminal Procedure Act 1986 (NSW) ss 3, 289C, 289E, 289F, 289I, 306B
Criminal Procedure Amendment (Domestic Violence Complainants) Bill 2014 (NSW)
Evidence Act 1995 (NSW)
Evidence Act 1977 (Qld)
Interpretation Act 1987 (NSW) s 33
Cases Cited: CF v R [2017] NSWCCA 318
Charara v The Queen (2006) 164 A Crim R 39
Gately v The Queen (2007) 232 CLR 208
Jarrett v R (2014) 86 NSWLR 623
JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669
R v NZ (2005) 63 NSWLR 628
SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936
Category:Principal judgment
Parties: Director of Public Prosecutions (NSW) (Applicant)
Muneer Jasib Al-Zuhairi (Respondent)
Representation:

Counsel:
B Hatfield (Applicant)
J Conomos (Respondent)

  Solicitors:
Solicitor for Public Prosecutions (Applicant)
Johnston Vaughn Solicitors (Respondent)
File Number(s): 2017/175429
Publication restriction: None
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Crime
Date of Decision:
30 January 2018
Before:
Colefax SC DCJ
File Number(s):
2017/175429

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Al-Zuhairi was tried in the Local Court on a charge of assaulting the brother of his ex-partner. This relationship brought the offence within the definition of a “domestic violence offence” in s 3 of the Criminal Procedure Act 1986 (NSW). Section 289F(1) of the Criminal Procedure Act provides that when criminal proceedings involve a “domestic violence offence”, a complainant may give evidence in chief in the form of a “recorded statement” that is viewed or heard by the court. The complainant made a “recorded statement”. That statement, which was marked for identification as “MFI A” but not tendered in evidence, was played to the Local Court as the complainant’s evidence in chief. The transcript of the Local Court proceedings did not set out the contents of “MFI A”, simply stating “MFI A PLAYED TO COURT”.

Mr Al-Zuhairi was convicted in the Local Court of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900 (NSW). Mr Al-Zuhairi appealed to the District Court. Colefax SC DCJ allowed the appeal by Mr Al-Zuhairi, and set aside his conviction pursuant to s 20 of the Crimes (Appeal and Review) Act 2001 (NSW), on the basis that an error had occurred in the proceedings in that the recording of the complainant’s evidence had not been tendered in the Local Court.

Following the conclusion of proceedings, the District Court Judge submitted the following questions for determination by this Court in accordance with s 5B of the Criminal Appeal Act (NSW).

These questions were:

1 In proceedings for a ‘domestic violence offence’ as defined in s 3 of the Criminal Procedure Act1986 in the Local Court, where a complainant gives evidence wholly or partly in the form of a recorded statement pursuant to s 289F of that Act, must the recording be formally tendered in the Local Court if there is no agreed transcript in order for the recorded statement to become “evidence given in the original Local Court proceedings” within the meaning of that phrase in s 18(1) of the Crimes (Appeal and Review) Act 2001?

2 In proceedings for a ‘domestic violence offence’ as defined in s 3 of the Criminal Procedure Act 1986 in the Local Court, where a complainant gives evidence wholly or partly in the form of a recorded statement pursuant to s 289F of that Act, is the viewing of the recorded statement by the Local Court sufficient for the recorded statement to become “evidence in the original Local Court proceedings” within the meaning of that phrase in s 18(1) of the Crimes (Appeal and Review) Act2001?

3 Did I err in law in holding that where a recorded statement pursuant to s 289F of the Criminal Procedure Act 1986 had been played in proceedings before the Liverpool Local Court on 15 September 2017 but had not been formally tendered and where there is no agreed transcript, that the contents of that recorded statement were not “evidence given in the original Local Court proceedings” within the meaning of that phrase in s 18(1) of the Crimes (Appeal and Review) Act2001?

4   Did I err in law in holding that for the purposes of the re-hearing, and in the events which have occurred, there was no evidence to prove the essential elements of the offence.

The Court answered the questions as follows (per Payne JA at [64], R A Hulme and Fagan JJ agreeing at [65] and [66] respectively):

Question 1: No

Question 2: Yes

Question 3: Yes

Question 4: Inappropriate to answer (as this was a mixed question of fact and law, falling outside the ambit of s 5B of the Criminal Appeal Act (NSW)).

In relation to questions 1 to 3 (per Payne JA at [40] and [46]; R A Hulme and Fagan JJ agreeing at [65] and [66] respectively):

The current version of s 18 of the Crimes (Appeal and Review) Act plainly evinces a legislative intention that appeals to the District Court from the Local Court proceed on the basis of “evidence given in the original Local Court proceedings”, whether or not that evidence forms part of the transcript. The contents of “MFI A” once played in the Local Court, met this description. This is because s 289F(1) of the Criminal Procedure Act makes clear that once “viewed” or “heard”, the representations in the recorded statement, as viewed and/or heard by the Court, become the complainant’s “evidence in chief” given to the Court in the same way as if the complainant made such “representations” verbally while sitting in the witness box.

Gately v The Queen (2007) 232 CLR 208; R v NZ (2005) 63 NSWLR 628 applied.

Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39 distinguished.

In relation to question 4 (per Payne JA at [60], R A Hulme and Fagan JJ agreeing at [65] and [66] respectively):

Question 4 requires consideration of whether or not there was evidence in this case to prove the essential elements of the offence charged. This is a mixed question of fact and law. The fourth question, therefore, does not meet the prescription set out by s 5B of the Criminal Appeal Act. The matter should be remitted to the District Court for rehearing in accordance with this Court’s reasons.

Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 applied.

Judgment

  1. PAYNE JA: This is a case stated for the opinion of this Court by Colefax SC DCJ, at the request of the Director of Public Prosecutions, pursuant to s 5B of the Criminal Appeal Act 1912 (NSW).

Background

The Local Court proceedings

  1. Mr Al-Zuhairi, the respondent in these proceedings, was found in the Local Court to have assaulted Mr Ibrahim Almanawy, the complainant in the Local Court proceedings. The respondent is the ex-partner of the complainant’s sister. This relationship brought the offence within the definition of a “domestic violence offence” in s 3 of the Criminal Procedure Act 1986 (NSW):

“3 Definitions

…

domestic violence offence means a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act 2007.

…”

  1. Section 11 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) defines a “domestic violence offence” as:

“11 Meaning of "domestic violence offence"

(1) In this Act,

domestic violence offence means an offence committed by a person against another person with whom the person who commits the offence has (or has had) a domestic relationship, being:

(a) a personal violence offence, or

(b) an offence (other than a personal violence offence) that arises from substantially the same circumstances as those from which a personal violence offence has arisen, or

(c) an offence (other than a personal violence offence) the commission of which is intended to coerce or control the person against whom it is committed or to cause that person to be intimidated or fearful (or both).

(2) In this section, offence includes an offence under the Criminal Code Act1995 of the Commonwealth.”

  1. A “domestic relationship” is one where a person is or has been a relative of the other person: s 5(1)(g) Crimes (Domestic and Personal Violence) Act. A “personal violence offence” is defined in s 4 of the Crimes (Domestic and Personal Violence) Act. The respondent was a “relative” of the complainant within the meaning of s 6 of the Crimes (Domestic and Personal Violence) Act.

  2. Section 289F(1) of the Criminal Procedure Act provides that when criminal proceedings involve a “domestic violence offence”, a complainant may give evidence in chief in the form of a “recorded statement” that is viewed or heard by the court:

“289F Complainant may give evidence in chief in form of recording

(1) In proceedings for a domestic violence offence, a complainant may give evidence in chief of a representation made by the complainant wholly or partly in the form of a recorded statement that is viewed or heard by the court.

(2) A representation contained in a recorded statement may be in the form of questions and answers.

(3) A recorded statement must contain the following statements by the complainant:

(a) a statement as to the complainant’s age,

(b) a statement as to the truth of the representation,

(c) any other matter required by the rules.

(4) If the representation contained in a recorded statement, or part of it, is in a language other than English:

(a) the recorded statement must contain an English translation of the representation or part, or

(b) a separate written English translation of the representation or part must accompany the recorded statement.

(5) A complainant who gives evidence wholly or partly in the form of a recorded statement must subsequently be available for cross-examination and re-examination:

(a) orally in the courtroom, or

(b) in accordance with any other alternative arrangements permitted for the complainant under this or any other Act.

(6) This section does not prevent a complainant from giving evidence in any other manner permitted for the complainant under this Act or any other law.”

  1. On 13 May 2017, the complainant made a “recorded statement” for the purposes of s 289F(1) of the Criminal Procedure Act. The officer in charge of the investigation, Leading Senior Constable Daniel, was the person asking the questions referred to in s 289F(1) in the “recorded statement”.

  2. On 15 September 2017, the proceedings were heard by Magistrate Freund at Liverpool Local Court. The recorded statement was identified by the officer in charge when he gave evidence and was marked for identification as “MFI A”. The complainant was then called as a witness by the prosecution and gave evidence.

  3. The evidence given by the complainant before the Local Court was audio recorded. It is common ground that “MFI A” was played to the Local Court as the complainant’s evidence in chief but that the subsequently prepared transcript does not set out the content of “MFI A”. The transcript simply states “MFI A PLAYED TO COURT”.

  4. The transcript does, however, record that there was an interruption during the playing of “MFI A” at one point. This interruption appears to have been required by the need to have an interpreter translate the video separately for the accused. No point was taken in this Court about that interruption.

  5. On 15 September 2017, the respondent was convicted in the Local Court by Magistrate Freund of assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900 (NSW).

The District Court proceedings

  1. On 13 October 2017, the respondent filed a notice of appeal in the District Court.

  2. On 30 January 2018, the matter came before Colefax SC DCJ. Following a brief hearing, his Honour allowed the appeal by the respondent, and pursuant to s 20 of the Crimes (Appeal and Review) Act 2001 (NSW) set aside the conviction.

  3. In the course of the appeal his Honour asked the Crown whether “MFI A” was made an exhibit in the Local Court proceedings. His Honour was informed that it had not been made an exhibit. His Honour observed in paragraph [13] of the stated case that:

“The fault lies in things being assumed in the Local Court. It would appear that, everyone assumed, including a very experienced magistrate, that the evidence-in-chief had been tendered so that, by the time her Honour came to give her deliberations, a fundamental error had occurred in the proceedings in that the material had not been properly tendered before the Court and therefore the conviction must be set aside.”

  1. On 27 April 2018, the Crown filed an application for an extension of time for submission of questions of law by a District Court Judge pursuant to s 5B(2) of the Criminal Appeal Act.

The questions of law submitted to this Court

  1. On 29 April 2018, the District Court Judge submitted the following questions for determination by this Court in accordance with s 5B of the Criminal Appeal Act:

“The questions I now submit are:

1 In proceedings for a ‘domestic violence offence’ as defined in s 3 of the Criminal Procedure Act1986 in the Local Court, where a complainant gives evidence wholly or partly in the form of a recorded statement pursuant to s 289F of that Act, must the recording be formally tendered in the Local Court if there is no agreed transcript in order for the recorded statement to become ’evidence given in the original Local Court proceedings’ within the meaning of that phrase in s 18(1) of the Crimes (Appeal and Review) Act 2001?

2 In proceedings for a ‘domestic violence offence’ as defined in s 3 of the Criminal Procedure Act 1986 in the Local Court, where a complainant gives evidence wholly or partly in the form of a recorded statement pursuant to s 289F of that Act, is the viewing of the recorded statement by the Local Court sufficient for the recorded statement to become ’evidence [given] in the original Local Court proceedings’ within the meaning of that phrase in s 18(1) of the Crimes (Appeal and Review) Act2001?

3 Did I err in law in holding that where a recorded statement pursuant to s 289F of the Criminal Procedure Act 1986 had been played in proceedings before the Liverpool Local Court on 15 September 2017 but had not been formally tendered and where there is no agreed transcript, that the contents of that recorded statement were not ’evidence given in the original Local Court proceedings’ within the meaning of that phrase in s 18(1) of the Crimes (Appeal and Review) Act2001?

4   Did I err in law in holding that for the purposes of the re-hearing, and in the events which have occurred, there was no evidence to prove the essential elements of the offence.”

The Crown’s submissions

  1. The Crown submitted that questions 1 to 3 are “questions of law”. It submitted that the fourth question involves a mixed question of fact and law. If this is correct, this Court cannot determine question 4 as the ambit of s 5B of the Criminal Appeal Act 1912 only contemplates the submission of “questions of law” to the Court of Criminal Appeal for determination.

  2. The Crown submitted that s 289F(1) of the Criminal Procedure Act does not require the tender of the recorded statement for the contents of the recording to be admitted as evidence. It was submitted that all that is required is identified in s 289F(1) of the Criminal Procedure Act; that the recorded statement is viewed or heard by the court.

  3. It was submitted that, once “viewed” or “heard”, the representations in the recorded statement, as seen and heard by the court, become the complainant’s “evidence in chief” given to the court in the same way as if the complainant made such “representations” while sitting in the witness box.

  4. In support of this submission, the Crown noted that s 289I(1) of the CriminalProcedure Act provides that the hearsay rule and the opinion rule in the Evidence Act 1995 (NSW) do not prevent the admission or use of evidence of a representation in the form of a recorded statement.

  5. The Crown submitted that the police prosecutor’s approach in the Local Court proceedings in asking that the recorded statement be marked “MFI A”, rather than tendering it so that it became an exhibit, was the correct manner in which to proceed. Provided that the recorded statement was “viewed” or “heard” by the Local Court, the recorded statement became part of the complainant’s evidence in chief in the original Local Court proceedings and was part of the evidence in those proceedings.

  6. The Crown submitted that playing the recording and marking the recording for identification rather than tendering it was clearly the approach intended by the legislature when regard is had to the second reading speech of the Criminal Procedure Amendment (Domestic Violence Complainants) Bill 2014 (NSW), which inserted Part 4B into the Criminal Procedure Act. In that second reading speech, then Attorney-General Hazzard explained the new provisions thus:

“The recording will not be tendered as part of the prosecution's case; rather, it will be treated just as a witness's oral evidence. The existing common law principles concerning the discretion of the court and the procedure to be followed where evidence is given in chief by way of a recording, as set out in R v NZ (2005) 63 NSWLR 628 and other relevant authorities, are not affected by the new provisions. That is, the court will maintain discretion as to how the court and/or jury, if there is one, may be reminded of the evidence contained in the recording and the procedures and safeguards around playing the recording multiple times in court or in jury deliberations.” (New South Wales Legislative Council, Parliamentary Debates (Hansard), 18 November 2014 at 2872-2974)

  1. In supporting this construction of s 289F(1) of the Criminal Procedure Act and the appropriate procedure to be adopted, the Crown relied on the High Court’s judgment in Gately v The Queen (2007) 232 CLR 208; [2007] HCA 55 at [86]-[98] and on R v NZ (2005) 63 NSWLR 628; [2005] NSWCCA 278 and CF v R [2017] NSWCCA 318 at [56]-[78].

  2. The Crown submitted that this Court should, in accordance with s 5B(3) of the Criminal Appeal Act, quash the orders made by the District Court on 30 January 2018 and remit the matter to the District Court.

  3. The Crown submitted that the language of s 18 of the Crimes (Appeal and Review) Act “clearly encompasses all evidence ‘given’ in the original Local Court hearing”.

Respondent’s submissions

  1. The respondent submitted that the District Court judge on the appeal “…should at the very least have all of the evidence that was before the learned Magistrate at his or her disposal. The Judge did not have the benefit of viewing the recorded statement made by the complainant which was played before the learned Magistrate and became “MFI A” in those proceedings.”

  2. The respondent submitted that the cases relied upon by the applicant were distinguishable as they each related to jury trials and the use to be made of transcripts by juries. The respondent accepted that if the contents of “MFI A” had been transcribed (as was submitted it should have been), the respondent would have no complaint.

  3. The respondent relied, as conclusive of the questions before the Court, upon Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39, which also involved s 18 of the Crimes (Appeal and Review) Act.

Consideration

  1. Section 18(1) of the Crimes (Appeal and Review) Act, as at 23 August 2006 when Charara was decided, was in this form:

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

(1) An appeal against conviction is to be by way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings, 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 certified transcripts of evidence relevant to the appeal and, if fresh evidence is given, one free copy of the transcript of the fresh evidence.”

  1. This Court in Charara held (Mason P, Kirby and Hoeben JJ concurring), at [16]-[17] that:

“…the clear language of s 18 precludes the District Court from treating an appeal of this nature as a hearing de novo. The appeal is to be by way of rehearing on the Local Court transcripts (s 18(1)), obviously supplemented by reference to any exhibits tendered in the Local Court. Fresh evidence may be given by leave, subject to the District Court being satisfied that it is in the interests of justice that this should occur (s 18(2)).”

  1. It is plain that what was critical to the decision in Charara was that an appeal to the District Court was conducted as a rehearing on the basis of “certified transcripts of evidence” given in the original Local Court proceedings.

  2. Section 18, however, has changed significantly since Charara. The section now 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.”

  1. Section 18(1) in its present form, in contrast to the version of the section relevant in Charara, is not limited to certified transcripts.

  2. This change was made in 2009 by the Crimes (Appeal and Review) Amendment Act 2009 (NSW). The 2009 Amendment Act was based upon a 2008 Review of the principal Act: New South Wales, Attorney General’s Department, Review of the Crimes (Appeal and Review) Act 2001 (September 2008). Relevantly, that Review provided (at 27-28 and 35-36):

“The requirement that appeals be dealt with by way of a rehearing on transcripts of evidence limits the material from the original hearing that may be before the District Court. If narrowly construed, it suggests that the District Court is unable to rely on exhibits before the magistrate in the Local Court without giving leave. Similarly, other material such as the reasons given by the magistrate, that does not constitute evidence, are not included in the transcripts of evidence.

…

The term “transcript of evidence” was an appropriate term when the nature of the appeal was a hearing de novo. The change of the nature of an appeal to a rehearing means that the material originally before the magistrate should be available to the District Court.

…

The reference to a “certified” transcript in section 18 of the Act is a historic vestige of former provisions under the Justices Act 1902. …

There has never been a requirement to certify transcript of proceedings in either the District Court or Supreme Court. The requirement to certify a transcript as correct is unnecessary as it remains open to the Court to produce the original tape recording if any concerns are raised in relation to the accuracy of the written transcript.”

  1. The current form of s 18 is fundamentally different to the version of s 18 of the Crimes (Appeal and Review) Act considered in Charara. The changes in the legislative language effected in 2009 make clear that s 18 appeals are based upon “evidence given in the original Local Court proceedings” and are not restricted to “certified transcripts of evidence given in the original Local Court proceedings”, as was the case in Charara. Charara does not assist the respondent in this case.

  2. The critical question for present purposes is thus whether the contents of “MFI A” which was played in the Local Court met the description of “evidence given in the original Local Court proceedings” within the meaning of s 18(1) of the Crimes (Appeal and Review) Act.

  3. The principles of statutory construction which should be applied to this question are clear. A construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object: Interpretation Act 1987 (NSW), s 33.

  4. In SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 91 ALJR 936 Keane, Nettle and Gordon JJ said:

“[14] The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.” [footnotes omitted]

  1. The “mischief” which the relevant interlocking suite of statutes here in issue was intended to remedy is clear. It is the obvious legislative intention that a complainant in proceedings for a domestic violence offence may give evidence in chief by means of a recorded statement. The Crimes (Domestic and Personal Violence) Act and the Criminal Procedure Act together have that clear effect. The statutory definition of “domestic violence offence” in the Criminal Procedure Act is the same as for a domestic violence offence within the meaning of the Crimes (Domestic and Personal Violence) Act: see s 3 of the Criminal Procedure Act.

  2. This is made transparently clear by the second reading speech to the Criminal Procedure Amendment (Domestic Violence Complainants) Bill 2014 (New South Wales Legislative Council, Parliamentary Debates (Hansard), 18 November 2014 at 2872-2974):

“… the power dynamic that typifies domestic violence does not stop at the court room door. There is a risk of re-traumatisation of victims…they may face pressure from a perpetrator to stop cooperating with the prosecution. This can result in victims who are reluctant to come to court or who change their evidence once in the witness box.

…

Recorded interviews of complainants taken by police at or shortly after a domestic violence incident will be able to be played in court as all, or part of, their evidence in chief. In committal proceedings, the recording will stand as the complainant’s evidence instead of a written statement.

...

The key exception in this bill to the Evidence Act 1995 is that domestic violence complainants will now be entitled to adopt, as their evidence in chief, their recorded statement.”

  1. The contents of “MFI A” once played in the Local Court, met the description of “evidence given in the original Local Court proceedings” within the meaning of s 18(1) of the Crimes (Appeal and Review) Act. This is because s 289F(1) of the Criminal Procedure Act makes clear that once “viewed” or “heard”, the representations in the recorded statement, as viewed and/or heard by the Court, become the complainant’s “evidence in chief” given to the Court in the same way as if the complainant made such “representations” verbally while sitting in the witness box. This occurred here. “View” is defined in s 289C(1) of the Criminal Procedure Act as:

“289C Interpretation

…

“view” a video recording means view and listen to.

…”

  1. Section 289E of the Criminal Procedure Act provides for the continued operation of the Evidence Act1995 (NSW):

“289E Relationship to Evidence Act 1995

The provisions of this Part are in addition to the provisions of the Evidence Act 1995 and do not, unless a contrary intention is shown, affect the operation of that Act.

Note. For example, provisions of that Act such as section 21 (relating to oaths and affirmations) and section 65 (an exception to the hearsay rule where a person is not available to give evidence) are not affected by this Part.”

  1. Section 289I(1) of the Criminal Procedure Act provides that the hearsay rule and the opinion rule (within the meaning of the Evidence Act) do not prevent the admission or use of evidence of a representation in the form of a recorded statement.

  2. Nothing could be clearer from the subject matter, scope and purpose of s 289F(1) of the Criminal Procedure Act, in context, than that the legislature intended that a recording made pursuant to s 289F(1) of the Criminal Procedure Act, once “viewed” or “heard” in the Local Court becomes “evidence given” in Local Court proceedings.

  3. Supporting the clear words of the section in the context of the statute is the second reading speech which reinforces this conclusion about construction:

“The recording will not be tendered as part of the prosecution's case; rather, it will be treated just as a witness's oral evidence…” (emphasis added).

  1. In its statutory context, s 18 of the Crimes (Appeal and Review) Act plainly evinces a legislative intent that appeals to the District Court from the Local Court proceed on the basis of “evidence given in the original Local Court proceedings”, whether or not that evidence forms part of the transcript.

  2. That conclusion is sufficient to answer questions 1 to 3 in the stated case.

  3. The conclusion preferred by the trial judge is also inconsistent with authority. It would be contrary to accepted authority for there to be a requirement to tender recordings of evidence such as MFI A.

  4. In Gately, a case arising under the Evidence Act 1977 (Qld), the High Court rejected the proposition that a jury may have unsupervised access to recordings of evidence. The record of evidence given under the provisions there in question was no more a piece of real evidence receivable at trial than is the written or electronic record of oral evidence given at the trial in the ordinary way. The record itself was not ordinarily admissible as a piece of real evidence. The trial process is, subject to statutory modifications, an accusatorial and adversarial process. It is “essentially an oral process”.

  5. In R v NZ this Court, per Howie and Johnson JJ said:

“[194] We believe that there is no basis upon which the tape [of police interviews with the witnesses] should become an exhibit because once it is played to the jury as the evidence in chief of the witness it becomes part of the court record just as does a recording of the viva voce evidence of any other witness. That this is so is apparent from the wording of ss 11(1) and 15(2): see [88] and [96] above, which emphasise that the evidence in chief of the witness is given “by a recording”. It is in this regard that the videotaped evidence of a child witness differs from evidence of earlier events established by way of videotaping, such as recorded interviews with police or identification parades, see Davies at [26]. As was made clear in Bulecjik, a recording of the evidence given in court or the transcript of that evidence is not itself evidence, cannot be tendered by either party and cannot be made an exhibit: 386; 400”.

  1. The remarks of Howie and Johnson JJ in R v NZ concerning s 306B(1) of the Criminal Procedure Act in the form the section then took are instructive. Their Honours said:

“[191] There is no provision in the Evidence (Children) Act that specifically permits or requires the admission of the videotape into evidence as an exhibit. The relevant sections state, in effect, that the child may give evidence in the “form of a recording……that is viewed or heard, or both, by the court”. The form of words used in these provisions might be contrasted with that used in respect of the giving of evidence by a complainant at a retrial under the recently enacted s 306B of the Criminal Procedure Act. Section 306B(1) states:

(1) If a person is convicted of a sexual offence and, on an appeal against the conviction, a new trial is ordered, the prosecutor may tender as evidence in the new trial proceedings a record of the original evidence of the complainant.

[192] However, we believe that it was likely to have been a matter of complete indifference to the legislature how the court would deal with the actual videotape once it had been played to the jury. We cannot see why it should not be assumed that Parliament would have left such a matter of detail to be dealt with by the provisions of the Evidence Act, if there were any applicable, or for the court simply to apply those procedures that it thought to be appropriate to the conduct of the trial in the particular case. It can safely be assumed that Parliament would understand that the court regularly had electronically recorded material played to a jury during the course of a criminal trial and had procedures in place for dealing with such a situation.”

  1. In Jarrett v R (2014) 86 NSWLR 623; [2014] NSWCCA 140 at [73], Basten JA (R A Hulme J agreeing) pointed out that the joint reasons of Howie and Johnson JJ in R v NZ made it clear that the Court "should not lay down any rule of practice or procedure to be followed in every case where the evidence in chief of a witness has been given by the playing of a videotape".

  2. In CF v R, Gleeson JA (Rothman and Hamill JJ agreeing) said:

“[64] There is no reason to depart from the views expressed in the joint reasons in NZ when considering the effect of the similar language used in s 306I of the Criminal Procedure Act, in connection with a subsequent trial. It seems to me that s 306I, like s 306B, is simply dealing with admissibility of recorded evidence of the complainant in a subsequent trial, notwithstanding the provisions of the Evidence Act 1995 (NSW) or any other Act or law that might exclude the hearsay nature of such evidence.

[65] The context in which the words “tender as evidence” are used in s 306I(1), like s 306B(1), is the “admission” or receipt of such evidence in a subsequent trial or a retrial (as the case may be), not to prescribe the course to be adopted upon admission of such evidence. The approach suggested in the joint reasons in NZ is consistent with the later remarks of Hayne J in Gately at [86]–[89], distinguishing between real evidence, which is properly received as an exhibit, and oral evidence given at trial, albeit in the form of pre-recorded evidence of the complainant.”

  1. The method adopted by the police prosecutor in the present case of having the recording of the complainant’s evidence played to the Court and then marked for identification, rather than tendered, was consistent with longstanding practice in this State for dealing with video and audio recorded evidence.

  2. In any event, the subject matter, scope and purpose of s 289F(1) of the Criminal Procedure Act makes clear that the contents of “MFI A” which was played in the Local Court met the description of “evidence given in the original Local Court proceedings” within the meaning of s 18(1) of the Crimes (Appeal and Review) Act. As “evidence given in the original Local Court proceedings”, it was the responsibility of the District Court judge to consider it.

  3. It is obviously desirable in cases which are to be the subject of an appeal to the District Court that a transcript is produced which includes the actual “evidence given in the proceeding”, including that evidence given by playing a recording. Transcription of the recording in advance of the hearing can also provide a convenient way for parties to assess the prosecution material before it is viewed in court and will mitigate issues of interruption.

  4. The respondent submitted that the prosecution should always prepare and serve a transcript containing this material. An advantage of this procedure is that it would remove any ambiguity about what parts of the recording form part of the evidence. This would address any difficulty for a District Court judge in understanding interruptions to the audio visual evidence. Preparing such a transcript no doubt has resource allocation implications. Whether the Local Court administration, the police or the Director of Public Prosecutions should be responsible for preparing a complete transcript is not a matter which can be determined by this Court. Whilst preparation of a transcript of recordings such as those at issue in this case is no doubt a desirable practice, it is not a requirement of the law.

  5. What may be determined is that on an appeal under s 18 of the Crimes (Appeal and Review) Act the District Court has an obligation to consider the “evidence given in the original Local Court proceedings”, including the contents of any recording made under s 289F(1) of the Criminal Procedure Act.

  1. For the foregoing reasons, it follows that question 1 of the stated case should be answered “no”, and questions 2 and 3 of that stated case should be answered “yes”.

  2. As to question 4, a stated case under s 5B must address a “question of law”. In Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 Basten JA (Grove and Hidden JJ agreeing) said:

“[10]…Section 5B provides that a judge of the District Court may submit a ‘question of law’ to this Court ‘for determination’ and empowers this Court to make appropriate orders or give appropriate directions. What it does not do is authorise this Court to determine any questions of fact or to draw factual inferences. This Court is constrained to act on the facts as stated by the District Court: see Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373 at 381 (Isaacs J); The Queen v Rigby (1956) 100 CLR 146 at 150-151 (Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ) and Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41 at 58 (Gibbs J, Stephen, Mason, Murphy and Aickin JJ agreeing).”

  1. Question 4 requires consideration of whether or not there was evidence in this case to prove the essential elements of the offence charged. This is a mixed question of fact and law. The fourth question, therefore, does not meet the prescription set out by s 5B of the Criminal Appeal Act.

  2. As to the order which this Court should make, s 5B(3) (which was inserted into the Criminal Appeal Act by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW)) provides:

“5B Case stated from District Court

...

(3) The Court of Criminal Appeal may, in connection with the determination of a question of law in the circumstances referred to in subsection (2), quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court.”

  1. The Court should, in accordance with s 5B(3) of the Criminal Appeal Act, quash the orders made by the District Court on 30 January 2018 and remit the matter to the District Court to be determined in accordance with these reasons.

Orders

  1. The Court makes the following orders:

  1. Leave granted under s 5B(2) of the Criminal Appeal Act to extend the time to submit the questions of law stated by Colefax DCJ to 29 April 2018.

  2. The orders made by the District Court on 30 January 2018 are quashed.

  3. Under s 5B(3) of the Criminal Appeal Act, the matter is remitted to the District Court for determination in accordance with these reasons.

  1. The following answers to the stated case should be given:

Question 1: In proceedings for a ‘domestic violence offence’ as defined in s 3 of the Criminal Procedure Act 1986 in the Local Court, where a complainant gives evidence wholly or partly in the form of a recorded statement pursuant to s 289F of that Act, must the recording be formally tendered in the Local Court if there is no agreed transcript in order for the recorded statement to become “evidence given in the original Local Court proceedings” within the meaning of that phrase in s 18(1) of the Crimes (Appeal and Review) Act2001?

Answer: No

Question 2: In proceedings for a ‘domestic violence offence’ as defined in s 3 of the Criminal Procedure Act 1986 in the Local Court, where a complainant gives evidence wholly or partly in the form of a recorded statement pursuant to s 289F of that Act, is the viewing of the recorded statement by the Local Court sufficient for the recorded statement to become “evidence [given] in the original Local Court proceedings” within the meaning of that phrase in s 18(1) of the Crimes (Appeal and Review) Act 2001?

Answer: Yes.

Question 3: Did I err in law in holding that where a recorded statement pursuant to s 289F of the Criminal Procedure Act 1986 had been played in proceedings before the Liverpool Local Court on 15 September 2017 but had not been formally tendered and where there is no agreed transcript, that the contents of that recorded statement were not “evidence given in the original Local Court proceedings” within the meaning of that phrase in s 18(1) of the Crimes (Appeal and Review) Act 2001?

Answer: Yes

Question 4: Did I err in law in holding that for the purposes of the re-hearing, and in the events which have occurred, there was no evidence to prove the essential elements of the offence?

Answer: Inappropriate to answer.

  1. R A HULME J: I agree with Payne JA.

  2. FAGAN J: I agree with Payne JA.

Amendments

08 May 2019 - Coversheet - added Criminal Procedure Amendment (Domestic Violence Complaints) Bill 2014 (NSW)


[3], [40] and [61] - added section heading to legislation


[4] - corrected subsection of Crimes (Domestic and Personal Violence) Act from 5(1)(f) to 5(1)(g)


[15] and [64] - added "[given]" to reflect the wording of s 18(1) of the Crimes (Appeal and Review) Act 2001


[21] - added "(NSW)" to Bill citation


[39] - corrected order of paragraphs in Second Reading Speech


[51] - corrected pinpoint reference in Jarrett v R


[52] - removed case citation, stated above in [22]


[64] - typographical corrections; in Question 1 changed "of" to "or" and added "in"

Decision last updated: 08 May 2019

Most Recent Citation
Cases Citing This Decision

2

Director of Public Prosecutions (NSW) v Banks [2019] NSWSC 363
Short v The Queen [2019] NSWDC 52
Cases Cited

15

Statutory Material Cited

11

Gately v The Queen [2007] HCA 55
Brown (a pseudonym) v The King [2025] SASCA 40
Gately v The Queen [2007] HCA 55