Dougan v Mann

[2025] NSWCA 109

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Dougan v Mann [2025] NSWCA 109

Hearing dates:

24 April 2025

Date of orders:

21 May 2025

Decision date:

21 May 2025

Before:

Bell CJ at [1];
Ward P at [68];
Leeming JA at [69].

Decision:

1.        Direct the Local Court to correct JusticeLink by deleting the words “Convicted in Absence (ID 64460559)”, “Convicted in Absence (ID 64460557)”, and “Convicted in Absence (ID 64460558)” in respect of each of the three sequences 1, 2 and 5 in the entry for 17 November 2023 in respect of the applicant.

2.        Leave to appeal refused with costs.

Catchwords:

ADMINISTRATIVE LAW – Jurisdictional error – Application to appear by audiovisual link under s 5B of the Evidence (Audio and Audiovisual Link) Act 1998 (NSW) – Convenience of applicant to be taken into account – Whether magistrate excluded consideration of applicant’s “convenience”

APPEALS – Leave to appeal – Departure from arguments advanced before primary judge – Relevance to grant of leave to appeal – Importance of formal orders of lower courts being attained for purposes of appeals and applications for leave to appeal

Legislation Cited:

Crimes (Appeal and Review) Act 2001 (NSW) s 53(3)(b)

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 17C, 25, 47

Crimes Act 1900 (NSW)

Evidence (Audio and Audiovisual Links) Act 1998 (NSW) ss 5B, 3, 3A,

Property, Stock and Business Agents Act 2002 (NSW)

Supreme Court Act 1970 (NSW) s 69

Cases Cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170; [1981] HCA 39

Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26

BE Financial Pty Ltd v Das [2012] NSWCA 164

Brodie v Streeter [2003] ACTSC 88; (2003) 180 FLR 176

Director of Public Prosecutions v Yerbury [2020] NSWSC 905

Gooley v Senior Constable Chad Stewart [2018] NSWSC 1738; 86 MVR 478

In the matter of the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318

Jaycar Pty Ltd v Lombardo [2011] NSWCA 284

JD v Commissioner of Police, NSW Police Force [2022] NSWSC 911

Lazarus, Sandra v Director of Public Prosecutions (NSW) [2019] NSWCA 125

Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48

R v Chute (No 9) [2019] ACTSC 69

R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794; (2005) 193 FLR 291

Russell v Scott & Anor [2017] NSWSC 1720

Secretary, Department of Communities and Justice v KH (2022) 110 NSWLR 57; [2022] NSWCA 221

Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206

TR v Constable Cox [2020] NSWSC 389

Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598

Category:

Principal judgment

Parties:

Sarah Dougan (Applicant)
Natasha Mann (First Respondent)
Local Court of NSW (Second Respondent)

Representation:

Counsel:
P Herzfeld SC with F Tao (Applicant)
P McEniery (First Respondent)

Solicitors:
Aquila Lawyers (Applicant)
Department of Customer Service (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s):

2024/447394

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

New South Wales Supreme Court

Jurisdiction:

New South Wales

Citation:

[2024] NSWSC 1429

Date of Decision:

11 November 2024

Before:

Griffiths AJA

File Number(s):

2024/61315

HEADNOTE

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

Ms Sarah Dougan (the applicant) is an Australian citizen, who has lived in the United States since 1 July 2012 and before then lived in Byron Bay, NSW and worked as the company secretary and one of three directors of a real estate company, BPBR Pty Ltd (the company).

At some point in mid-2011, the NSW Department of Fair Trading (the Department) hired investigators to follow up complaints regarding failures of the company to account at settlement of a conveyancing transaction. During that investigation, the applicant provided those investigators with false transaction statements, purporting to be genuine NAB transaction histories.

Proceedings were commenced against the applicant by the Department in 2013 regarding offences committed under the Crimes Act 1990 (NSW) and the Property, Stock and Business Agents Act 2002 (NSW) (the offences). The applicant entered pleas of guilty to the offences between 18 December 2020 and 11 June 2021.

After multiple adjournments, the applicant’s sentencing hearing was scheduled for 17 November 2023 before Feather LCM (the magistrate). Despite her lawyer having assured the magistrate that she would be in attendance, the applicant was not present in person. An application was made for the adjournment of the sentencing hearing and a direction that the applicant appear at the sentencing hearing by audio-visual link (AVL) under s 5B of the Evidence (Audio and Audiovisual Links) Act 1998 (NSW) (the Act). The magistrate refused that request on the grounds that s 5B(2)(b) of the Act precluded the making of an order that a party appear by AVL where the court was satisfied that the evidence could more conveniently be given in the courtroom. The magistrate also issued a warrant for the applicant’s arrest under s 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the CSP Act).

The applicant sought judicial review on the basis that the magistrate fell into jurisdictional error by excluding from his consideration the convenience of the applicant when refusing to make an order under s 5B of the Act. The primary judge dismissed that challenge. On appeal, the applicant sought to reformulate that argument by claiming the magistrate failed to take the applicant’s convenience into account, rather than positively excluding it from his consideration.

The applicant also sought to challenge the magistrate’s issuing of an arrest warrant under s 25(2) of the CSP Act. That too was dismissed by the primary judge. It then emerged during the appeal that although JusticeLink recorded the applicant as having been “Convicted in Absence” in relation to three sequences in the outcome entry for 17 November 2023, that “conviction” did not reflect the transcript of the proceedings before the magistrate.

In light of that development, and in submissions filed after the hearing (albeit with leave), the applicant contended an additional basis on which the primary judge erred, that absent a conviction or a finding of guilt, there was no proper basis for the issuing of an arrest warrant under s 25(2) of the CSP Act.

The Court (Bell CJ, Ward P and Leeming JA agreeing) held, dismissing the appeal:

1. Although she had not been convicted (and JusticeLink records to that effect were directed to be corrected), the applicant had been found guilty of the offences upon the acceptance of her pleas. Accordingly, leave to appeal in relation to the grant of the arrest warrant should be refused: [13]-[18],[66]-[67] (Bell CJ); [68] (Ward P); [69] (Leeming JA).

Maxwell v The Queen (1996) 184 CLR 501, referred to.

2. Leave to appeal from the primary judge’s decision that the magistrate did not err in refusing the application to appear by AVL should be refused because: (i) the applicant altered the basis of its argument on the appeal; (ii) the primary judge did not err given the way in which the argument was presented before him; and (iii) the asserted “substantial” injustice favouring a grant of leave to appeal was highly contingent and unpersuasive given the likelihood of a custodial sentence and the matter’s procedural history: [45]-[67] (Bell CJ); [68] (Ward P); [69], [73] (Leeming JA).

PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48, distinguished.

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 256; [1996] HCA 6, Whisprun Pty Ltd v Dixon [2003] HCA; (2003) 77 ALJR 1598, referred to.

Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170; [1981] HCA 39; In the matter of the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; BE Financial Pty Ltd v Das [2012] NSWCA 164; Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206, cited.

JUDGMENT

1. BELL CJ: This is an application for leave to appeal brought by Ms Sarah Dougan (the applicant) from a decision of Griffiths AJA (the primary judge) (Dougan v NSW Fair Trading [2024] NSWSC 1429: PJ or primary judgment) dismissing an Amended Summons seeking judicial review of orders made by Feather LCM (the magistrate) refusing the applicant’s request to appear from the United States by audiovisual link (AVL) in a sentencing hearing in the Local Court. The refusal was not made in the exercise of the Court’s discretion but by reason of the fact that s 5B(2)(b) of the Evidence (Audio and Audiovisual Links) Act 1998 (NSW) (the Act) precluded the making of an order under s 5B of the Act where the Court was relevantly satisfied that the evidence could more conveniently be given in the courtroom. The magistrate was so satisfied.

2. Pursuant to s 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act), the magistrate also issued a warrant for the applicant’s arrest. That subsection provides:

“At any time after it finds an absent offender guilty of an offence or convicts an absent offender for an offence, the Local Court--

(a)    may issue a warrant for the offender's arrest, or

(b)    may authorise an authorised officer to issue a warrant for the offender's arrest,

for the purpose of having the offender brought before the Local Court for conviction and sentencing, or for sentencing, as the case requires.”

3. The Department of Fair Trading (the Department) was originally named as the first respondent to the application but it was accepted that the proper first respondent is the current prosecutor, Ms Natasha Mann. An order was made in the course of the hearing substituting Ms Mann for the Department. The first respondent opposes the application for leave to appeal.

4. In her draft Notice of Appeal, the applicant originally relied on the sole ground that the primary judge erred in finding that the magistrate did not commit jurisdictional error in refusing the application to appear by AVL “by finding that the magistrate did not look only to the convenience to the Court and did not exclude from consideration the Applicant’s inconvenience”.

5. The references to “convenience” and “inconvenience” have, as their statutory context, s 5B of the Act, and s 5B(2)(b) in particular. That section relevantly provides that:

“5B   Taking evidence and submissions from outside courtroom or place where court is sitting—proceedings generally

(1)   Subject to any applicable rules of court, subsection (2A) and section 5BAA, a NSW court may, either on its own motion in, or on the application of a party to, a proceeding before the court, direct that a person (whether or not a party to the proceeding) give evidence or make a submission to the court by audio link or audio visual link from anyplace within or outside New South Wales, including a place outside Australia, other than the courtroom or other place at which the court is sitting.

(2)    The court must not make such a direction if—

(a)   the necessary facilities are unavailable or cannot reasonably be made available, or

(b)   the court is satisfied that the evidence or submission can more conveniently be given or made in the courtroom or other place at which the court is sitting, or

(c)   the court is satisfied that the direction would be unfair to any party to the proceeding, or

(d)   the court is satisfied that the person in respect of whom the direction is sought will not give evidence or make the submission.” (emphasis added)

6. As the primary judge noted, s 3(2) of the Act provides that a reference in the Act (other than in Pt 1B) to “making a submission to a court includes a reference to making an appearance before the court” and, thus, a requirement to appear before the court may be satisfied by an offender where a direction has been made under s 5B for the person to appear by AVL, even if the person is outside Australia. His Honour referred in this regard to R v Chute (No 9) [2019] ACTSC 69 at [10] by way of analogy. In this context, s 3A(1) of the Act provides:

“A requirement by or under any other Act that a person appear (or be brought or be present) before a court is taken to be satisfied if the person appears before the court by way of an audio link or audio visual link under this Act.”

7. Both parties proceeded on the basis, supported by authority, that the reference to “conveniently” in s 5B(2)(b) of the Act is a reference to convenience generally and may involve taking into account considerations bearing upon convenience not only to the Court but to witnesses and the parties, depending upon the circumstances of the case: see, for example, R v Wilkie, R v Burroughs, R v Mainprize [2005] NSWSC 794 at [48];(2005) 193 FLR 291 where Howie J said:

“There is no doubt in the present case that the evidence could more conveniently be given in the courtroom, if the convenience of the court and the accused are the focus of attention. It would presumably not be more convenient for the witnesses, even if they were prepared to make the journey to Australia. The provision seems to me to be concerned with convenience generally.”

See also Brodie v Streeter [2003] ACTSC 88 at [14]-[15]; (2003) 180 FLR 176; Russell v Scott & Anor [2017] NSWSC 1720 at [121]-[122].

8. Section 5B(2)(b) of the Act involves a comparative and evaluative judgment being made as to convenience as between the place from which the applicant for the AVL order wishes to give evidence, make a submission or appear, and the place where the court is sitting. It is a judgment to be made in the context of the matter before the court or particular issue or issues in relation to which the evidence, submission or appearance may be germane. While the decision whether to permit evidence to be given by AVL is discretionary, the assessment as to the satisfaction of any of the preclusive circumstances identified in s 5B(2) of the Act does not involve the exercise of any discretion.

9. The original draft Notice of Appeal also sought the consequential setting aside of the arrest warrant issued by the magistrate on the basis that, were the applicant to be successful in challenging the rejection of the application to give AVL evidence, it would have been unnecessary or at the very least premature to issue an arrest warrant. This was also the basis upon which the application was initially presented orally.

10. In the course of the hearing, however, it emerged that the JusticeLink entry in relation to the proceedings before the magistrate on 17 November 2023 recorded, under the header “View Outcome Text”, in addition to appearances, the following (with emphasis added, and cognate entries in relation to two other charges):

“2013/00275395-001 / Seq 1 – Licensee/registered person fraudulently convert money

Section 25(2) Warrant to Issue – Convicted in Absence (ID 64460559).”

11. The transcript of the proceedings before the magistrate did not reflect or record the making of any order convicting the applicant in her absence or at all and, although it is correct that an order was made for an arrest warrant pursuant to s 25(2) of the CSP Act, to the extent that a conviction was recorded in JusticeLink, it was entered erroneously. By a draft Amended Notice of Appeal filed after the conclusion of the hearing, the applicant sought an order “that the convictions on sequences 1, 2 and 5 recorded on 17 November 2023 in the Local Court of NSW in proceedings 2013/275395 be quashed”. The first respondent consents to an order “quashing” the JusticeLink record of “Convicted in Absence” on the basis that the applicant was not formally convicted.

12. It is plain that the JusticeLink record should be corrected. As there was not in fact any conviction made or ordered by the magistrate, the form of the order should not be expressed in terms of “quashing” the conviction but as a direction to the Local Court (which is the second respondent in the proceedings) to correct JusticeLink by deleting the words “Convicted in Absence” and the corresponding ID codes (“ID 64460559”, “ID 64460557”, and “ID 64460558”) in respect of each of the three sequences in the entry for 17 November 2023 outlined above at [10].

13. The attention which was drawn to the erroneous recording of a conviction in the context of the order for the arrest warrant led to the development of a further argument by the applicant which was reflected in the following amended ground of appeal in the draft Amended Notice of Appeal:

“The primary judge erred at Judgment [50]-[60] by concluding that the learned Magistrate did not err in issuing the warrant for arrest of the appellant in circumstances where the appellant had not been convicted and there had been no finding of guilt.”

14. It is clear from the terms of s 25(2) of the CSP Act set out at [2] above that the power to issue an arrest warrant under that subsection does not require a prior conviction. Indeed, an arrest warrant may be issued in order that a person be brought before the Court for the purpose of being convicted. It is equally clear that the “finding of guilt” in respect of an absent offender is conceptually distinct (at least for the purposes of s 25 of the CSP Act) from the “conviction” of an offender. A “finding of guilt” is an alternative precondition to the issuing of a warrant.

15. The applicant sought to argue in supplementary submissions filed after the hearing (albeit with leave) that, not only had there been no conviction but that there had been no “finding of guilt” by the magistrate, such that there was no proper basis for the issue of the arrest warrant. It was common ground that this was not an argument that had been advanced before either the magistrate or the primary judge on the hearing of the Amended Summons seeking judicial review.

16. I would refuse leave to appeal in relation to this “late-breaking” draft ground of appeal. While it may be the case that a “plea of guilty is not, in the ordinary course, accepted until sentence is passed on the accused” (Maxwell v The Queen (1996) 184 CLR 501 at 509; [1996] HCA 46), Dawson and McHugh JJ also observed that the determination of guilt “can occur otherwise than by the formal entry of the plea upon the record of the court”.

17. In the present case, the JusticeLink entry for 14 May 2021 records that the applicant’s pleas of guilty were formally accepted on that day. There was no evidence contradicting this fact before the Court and the magistrate’s ordering of a full sentencing assessment report on 15 February 2022 was entirely consistent with this as s 17C(1)(b) of the CSP Act relevantly provides that the sentencing court may only request such a report “after finding an offender guilty of an offence and before a sentence is imposed”. (The other circumstances in which such a report could be ordered under s 17C(1)(b) were all during or post-sentencing.) That a finding of guilt had been made as a result of formal acceptance of the applicant’s pleas was further reinforced by the fact that on 14 May 2021 the magistrate listed the matter for sentence on 28 May 2021.

18. It is necessary to supply some further background before turning to the challenge to the primary judge’s finding that, in declining the applicant’s request to give her evidence at the sentencing hearing by AVL, the magistrate did not commit jurisdictional error.

Background and procedural history

19. The background and circumstances of the present case were unusual to say the least. The applicant, although an Australian citizen, resides in the United States and has done so for many years. The charges in relation to which she was to be sentenced and to which she ultimately pleaded guilty had been raised in 2013 after she had moved to the United States and related to events which took place in 2011 when she resided in New South Wales.

19. An agreed statement of facts before the magistrate indicated that between 21 January and 1 July 2011, the applicant was the company secretary and one of three directors of a company, BPBR Pty Ltd (the company), which conducted a real estate business in Byron Bay, NSW. At some point in mid-2011, the Department hired investigators to follow up on complaints in relation to the company “regarding a failure to account at settlement of a conveyancing transaction”: PJ [6].

20. It was an agreed fact that on 22 June 2011, the applicant provided those investigators with false bank transaction statements, purporting to be genuine NAB transaction histories, of a Sales Trust Account and a Property Retail Trust Account: PJ [6].

21. On 23 June 2011, the Department’s investigators identified a deficiency of $367,621.31 from a Sales Trust Account and $166,699.68 from a Property Retail Trust Account respectively.

22. The Department commenced proceedings against the applicant in 2013 in respect of offences committed under the Crimes Act 1900 (NSW) and the Property, Stock and Business Agents Act 2002 (NSW) (the offences): PJ [6].

23. As already noted, since 1 July 2012, the applicant has resided in, and continues to reside in, the United States: PJ [6]. She initially did not appear in the proceedings. On 27 September 2013, a warrant was issued for the applicant’s arrest.

24. The applicant was only made aware of the charges against her after she left Australia and, on her submission, sometime after May 2017 upon applying for permanent residency in the United States: PJ [13].

25. The matter was relisted in the Paramatta Local Court in mid-2020. Although the applicant made no appearance in person at those proceedings, the magistrate revoked the 2013 warrant for her arrest on her lawyer’s application, and granted the applicant bail on conditions agreed as between the parties: PJ [7]. In late 2020, the applicant paid an amount of at least $373,917.00 to the Property Services Compensation Fund (the evidence before the Court was unclear as to whether a further sum of $22,000 was also paid).

26. The matter was adjourned several times between 21 August 2020 and
    5 February 2021 on account of plea negotiations taking place between the Department and the applicant: PJ [7]. Between 18 December 2020 and 11 June 2021, the applicant entered pleas of guilty “at various times and on different counts” to the offences: PJ [7].

27. The matter was then listed for sentencing on 15 February 2022 on which occasion, as noted above, preparation of a sentencing assessment report was requested.  A report dated 8 April 2022 was prepared. The sentencing proceedings had been adjourned to 11 April 2022, and were further adjourned to 16 December 2022. The matter was relisted a week earlier, on 9 December 2022 when the matter was further adjourned to 17 November 2023, following what the magistrate described as the applicant’s lawyer’s assurance that the applicant would on that day be present in person.

28. On 16 September 2023, the applicant swore an affidavit in relation to her forthcoming sentencing hearing (the Sentencing Affidavit). Salient features of that affidavit were summarised by the primary judge at PJ [13] as follows:

“The relevant parts of the affidavit read on that occasion in support of the AVL application may be summarised as follows:

(a)    The plaintiff became aware of the outstanding charges sometime after May 2017 when she applied for permanent residency in the United States.

(b)    The plaintiff suffers from a medical condition, placenta accreta, and has received medical advice that she should not travel by air as this could exacerbate her condition.

(c)    Accordingly, the plaintiff can only travel from the United States to Australia by way of cruise ship, but that would involve her being absent from her five children (who are all under the age of seven) for at least two months, in circumstances where her husband’s work commitments make him incapable of meeting the children’s needs.

(d)    The plaintiff deposed that three of her sons had been diagnosed with attention deficit hyperactivity disorder and that one of the sons had been recently diagnosed with early signs of child schizophrenia.

(e)    The plaintiff was unable, from a remote location, to perform her role as chief executive officer of a company employing approximately 70 employees.

(f)    The plaintiff faces the real prospect of being unable to re-enter the United States if she left to travel to Australia. … the plaintiff tendered a letter from her immigration lawyer addressing these matters. Her immigration lawyer advised her that, because she was “out of status” at the time she applied for permanent residency in the United States in May 2017, more than one year of unlawful presence in the United States had resulted. This meant it would be difficult for her to re-enter the United States if she were to leave now.”

30. On 17 November 2023, an application was made for the adjournment of the sentencing hearing and for a direction that the applicant appear at the sentencing hearing by AVL.

31. The applicant’s submissions dated 17 November 2023 (the written submissions) drew attention to a further contextual statutory consideration, namely that the Court’s ability to sentence the applicant would be constrained if she did not appear. So much followed from the terms of s 25 of the CSP Act which relevantly provides:

“25   Local Court not to impose certain penalties if offender is absent

(1)   The Local Court must not make any of the following orders with respect to an absent offender—

(a)   an order imposing a sentence of imprisonment,

(b)   an intensive correction order,

(c)   (Repealed)

(d)   a community correction order,

(e)   a conditional release order,

(f)   a non-association order or place restriction order,

(g)   an intervention program order.

(2)   At any time after it finds an absent offender guilty of an offence or convicts an absent offender for an offence, the Local Court—

(a)   may issue a warrant for the offender’s arrest, or

(b)   may authorise an authorised officer to issue a warrant for the offender’s arrest,

for the purpose of having the offender brought before the Local Court for conviction and sentencing, or for sentencing, as the case requires.

…

(4)   In this section—

absent offender means an offender who is being dealt with in his or her absence, including a person who does not attend court because the person has lodged a written plea in accordance with section 182 of the Criminal Procedure Act 1986 in respect of the offence concerned.”

32. The impediment to sentencing options due to the absence of the offender would not present itself, however, if an order under s 5B(1) of the Act were made. So much followed from the terms of s 3A(1) of the Act, set out at [6] above.

33. At this point, s 47(1) of the CSP Act should also be noted. It provides:

“47 Commencement of sentence

(1)   A sentence of imprisonment commences, subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed.”

34. As shall be seen, the magistrate was troubled by the fact that, were he to sentence the applicant whilst she was in the United States, her sentence would commence on the day on which she was sentenced but she would not be able to be taken into custody, were a custodial sentence to be imposed, because of the fact that she would be in the United States. The practical issues and difficulties arising from such an outcome were illustrated in Lazarus, Sandra v Director of Public Prosecutions (NSW) [2019] NSWCA 125. The magistrate thought that a custodial sentence was a real possibility given the seriousness of the offences to which the applicant had pleaded guilty. Further, the applicant’s physical absence abroad would prevent the practical commencement of any community corrections order, were such a sentence to be imposed.

35. Seven aspects of the application before the magistrate may be noted.

36. First, the magistrate referred in the course of argument and his reasons to the long procedural history of the matter. Early in the argument the magistrate noted that:

“I was told on the last occasion the matter was adjourned to today, I was guaranteed, effectively, that the accused would be here today. That is the only reason that I adjourned the matter to today.”

37. Second, various paragraphs of the Sentencing Affidavit were read on the applicant’s behalf before the magistrate. In the written submissions, the material in this affidavit was referred to not in aid of an order for an appearance by AVL but, rather, in aid of an alternative application for a further lengthy adjournment. Thus, it was put that:

“If the Court does not accept the above submissions, then it is submitted that the Court would grant a further lengthy adjournment, given the hardship the offender would face, if she were required to return to Australia in the immediate future. Those difficulties are set out in her affidavit and include difficulties of a medical nature, of a financial nature and, importantly in practical terms, of an immigration nature. As her affidavit explains, the offender puts at risk her residency in the United States, if she were to leave the country without first obtaining what is called “advance parole”. This is a process, which on current estimates takes some 18 months. It is submitted that any requirement, which may result in the loss of her current, stable, and supportive environment would be contrary to the public interest.

However, if the Court insists on the offender’s physical presence, then it is submitted that it is in the interests of justice that this occur at a later stage, when the risk to the offender’s demonstrated rehabilitation has been eliminated, or, at the very least, diminished.”

38. Third, whilst the written submissions noted that detriment to the applicant was relevant to a determination under s 5B(2) of the Act, no submissions were made orally in support of the application for an AVL order by reference to the detail in the Sentencing Affidavit other than the cursory statement that section “5B applies … particularly when one bears in mind the evidence which is now advanced in support of the application”.

39. Fourth, the magistrate was entirely cognisant of the fact that the applicant was in the United States, and expressly referred to this fact in his reasons.

40. Fifth, in the course of his decision, the magistrate, having observed that the offending sat “well above the middle of the range of objective seriousness for offences of that nature”, went on to say that:

“in those circumstances, notwithstanding the strong subjective features of the accused, as set out in her affidavit of 16 September 2023, it seems to me there is a real likelihood on sentence that the threshold under section 5 of the Crimes (Sentencing Procedure) Act would be crossed, such that the Court would be considering a sentence of imprisonment.”

41. In context, the “strong subjective features” was clearly a reference to at least some of the matters identified by the primary judge: see at [29] above.

42. Sixth, having noted the structure of s 5B of the Act, including that s 5B(2) set out four circumstances in which the Court was precluded from making an AVL order under s 5B(1), the magistrate said:

“In terms of subsection (2)(b), as I say, if I am satisfied that the sentencing is more conveniently given or made in the courtroom, then I must dismiss the application for the attendance by audio or audio visual link.

I AM SATISFIED IN THE CIRCUMSTANCES THAT I HAVE SET OUT THE SERIOUS NATURE OF THESE OFFENCES, THE FACT THAT THERE IS A REAL PROSPECT OF THE ACCUSED SERVING A SENTENCE OF IMPRISONMENT, THAT THE SENTENCING WILL BE MORE CONVENIENTLY UNDERTAKEN IN A COURTROOM.

AND ON THAT BASIS ALONE, THE APPLICATION FOR THE ACCUSED TO ATTEND COURT FOR SENTENCING BY AUDIO VISUAL LINK IS DISMISSED.”

43. Both before the primary judge and in this Court, the applicant accepted that there should be a comma or semi-colon after the phrase “I have set out” such that the magistrate’s compendious reasoning was expressed by reference to the circumstances set out, the serious nature of the offences and the real prospect of imprisonment.

44. Seventh, that the magistrate had read and was aware of the matters referred to in the Sentencing Affidavit was further confirmed by various observations he made in the context of considering the Department’s application for an arrest warrant immediately after his rejection of the AVL application. Thus, he said:

• “It seems to me as though it is unlikely that the offender will ever return to Australia, based on the affidavit that I have been asked to read today.”

• “those impediments - I mean, the impediment to her securing residence in the United States is these very proceedings, as I understand it.”

• “what she says in her affidavit is, she travels outside the United States, it is unlikely that she would be able to re-enter that country.”

Application for judicial review

45. By Amended Summons, judicial review was sought of the magistrate’s decision to refuse to direct that the applicant appear by AVL on the following ground:

“In being satisfied, in accordance with 5B(2)(b) Evidence (Audio and Audiovisual Links) Act 1998, that the plaintiff’s appearance could take place “more conveniently” in the courtroom, his Honour misapprehended the duty imposed upon him by s. 5B by applying the wrong test, namely by excluding from consideration under s. 5B(2)(b) of the Act the convenience to the plaintiff.” (emphasis added)

46. In oral submissions before the primary judge, Mr Lange, who then appeared for the applicant, opened his argument as follows:

“Your Honour, might I perhaps commence this way which is to seek to persuade your Honour that the learned magistrate when dealing with what originally was an application to adjourn proceedings but, as I think I've said in the written submissions, morphed into the subsequent decision of the application of section 5B, "did not deal with the evidence relating to the convenience", to use the expression in such 5B, "of the plaintiff".

The concession I, make in the written submissions is that that, if it can be demonstrated to the Court's satisfaction, would not be sufficient to demonstrate jurisdictional error which plainly the plaintiff must, in respect of the first complaint. In other words, I accept that a failure to take into account a relevant consideration would not itself be sufficient but rather the plaintiff must demonstrate that the learned magistrate failed to apply himself to the correct question, or put differently, failed constructively to exercise the jurisdiction.” (emphasis added)

47. Mr Lange also accepted that, in view of the fact that the decision was given ex tempore in the course of a busy list, in reviewing the reasons of the magistrate, the Court should approach the exercise in the same way as described by the High Court in relation to a review of reasons of a tribunal in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 (Wu Shan Liang). There it was said (at 272) that the reasons of an administrative decision maker “are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”. See also Whisprun Pty Ltd v Dixon [2003] HCA 48 at [62]; (2003) 77 ALJR 1598.

48. The primary judge confirmed that it was “uncontroversial” that the reference to convenience in s 5B(2)(b) of the Act is a reference to convenience generally, as it applies to the Court, witnesses, and both parties: PJ [32].

49. Counsel for the Department formulated her submissions in terms of the language of the Amended Summons, submitting that “there is no evidence that the learned magistrate excluded from consideration the convenience to the plaintiff”.

50. The primary judge said at PJ [41]-[42]:

“[41]   When the magistrate’s reasons are fairly read, I do not accept that they indicate that the magistrate excluded from consideration the relevant parts of the plaintiff’s affidavit and the immigration lawyer’s letter (noting that ground 1 of the amended summons expressly refers to the magistrate “excluding from consideration” the convenience to the plaintiff). Earlier in his Honour’s reasons, he made express reference to “the strong subjective features of the accused”, as set out in her affidavit, which the magistrate had plainly read. Self-evidently, having regard to other relevant considerations, including the lengthy procedural history of the proceedings and the strong possibility that the plaintiff might be given a custodial sentence or an intensive correction order, the magistrate considered that the plaintiff should physically attend the sentencing hearing.

[42]   The plaintiff contended that the magistrate’s reference to her “strong subjective features” did not relate to his Honour’s consideration of convenience, but was limited to the likelihood of her being given a custodial sentence. I do not accept that contention. It sits uncomfortably with the principle that the reasons need to be read holistically and with an eye not attuned to discerning error.” (emphasis added)

51. The primary judge also expressed his conclusion in terms of the way in which the attack on the magistrate’s decision was formulated in the Amended Summons. At PJ [45], his Honour concluded that he was:

“not persuaded that the magistrate misconstrued s 5B(2)(b) of the Act or excluded from his consideration the matters put forward by the plaintiff in support of her application.”

At PJ [47]-[48], his Honour then said (with emphasis added):

“Having regard to the way in which the plaintiff’s case was conducted below, it is unsurprising that no specific reference was made to the plaintiff’s convenience in this part of the magistrate’s reasons. There are, however, no less than three separate express references to the notion of “convenience” in this section of the magistrate’s reasons, without any indication that the magistrate excluded from his analysis the plaintiff’s convenience.

I am not persuaded that the Court approached the matter on the limited basis that only the convenience of the Court was relevant and that other considerations were excluded.” (emphasis added)

52. In short, the primary judge found that the magistrate was familiar with the contents of the Sentencing Affidavit including by reason of his express reference to her being in the United States as well as by reason of the magistrate’s references to her “strong subjective case”. Mindful of the guidance given in Wu Shan Liang, the primary judge dismissed the application for judicial review.

Leave to Appeal

53. The applicant required leave to appeal. Her draft Amended Notice of Appeal mirrored the language of the Amended Summons for judicial review insofar as the relevant ground of appeal was expressed as follows:

“In being satisfied, in accordance with 5B(2)(b) Evidence (Audio and Audiovisual Links) Act 1998, that the plaintiff’s appearance could take place “more conveniently” in the courtroom, his Honour misapprehended the duty imposed upon him by s. 5B by applying the wrong test, namely by excluding from consideration under s. 5B(2)(b) of the Act the convenience to the plaintiff.”

54. On the hearing of the application for leave to appeal, in which the applicant was represented by Mr Herzfeld SC, there was a shift in the manner in which the attack on the primary judge’s decision was formulated. When confronted with the language of the application for judicial review and the application for leave to appeal, namely the contention that the magistrate excluded the applicant’s convenience from consideration, Mr Herzfeld submitted that “the language of exclusion is really just the obverse of the failure to include”. Mr Herzfeld’s earlier submission that simply being aware of certain matters in the Sentencing Affidavit was different from taking them into account highlighted that what he was contending for was rather more than the obverse of the way the matter had been put before the primary judge which was really a contention to the effect that the magistrate had misconstrued the legislation “by applying the wrong test”.

54. In contending that the error of the magistrate was that he failed to take into account something that he was required to take into account, namely the convenience of the applicant in having to give her evidence in person rather than by AVL, Mr Herzfeld submitted that this was really how the case had been put in front of the primary judge on the application for judicial review. That this was not so, however, is seen in what Mr Lange said to the primary judge, as reproduced at [46] above.

55. In fairness to Mr Herzfeld, neither he nor the Court had a copy of the transcript of hearing before the primary judge at the time of oral submissions on the application for leave to appeal in this Court. In submissions in reply, Mr Herzfeld accepted that “if there were a radical departure in this Court between the way we put it below, that might be relevant to leave”.

56. In my view, there was a departure in this Court from the way in which the argument had been advanced before the primary judge. Whether that departure could be described as “radical” is not to the point. Leave would not generally be granted where the applicant for leave alters the basis of its argument. It is often implicit in such a change of argument that the applicant for leave is unable to demonstrate error on the part of the primary judge in view of the way the argument was originally put.

57. Principles of finality generally favour the refusal of leave in such circumstances, especially where the matter involves a question of practice and procedure, even if arising, as in the present case, by way of an application for judicial review: cf. PPK Willoughby Pty Ltd v Baird [2019] NSWCA 48 (PPK); Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170 at 177; [1981] HCA 39; In the matter of the Will of F B Gilbert (dec) (1946) 46 SR (NSW) 318 at 323.

58. The magistrate did not in terms exclude the convenience to the applicant in his assessment of whether to permit the applicant to give her evidence by AVL nor could it be safely or confidently concluded that he did so impliedly. It was plain from the evidence relied upon by the applicant’s counsel before the magistrate, and from the very nature of the application to give evidence by AVL, that the applicant was relying upon the inconvenience to her in having to attend the sentencing proceedings in Sydney physically, and that the magistrate was well aware of this and took it into account.

59. What is implicit in the magistrate’s disposition of the application and, in particular, in his use of the comparative expression “more conveniently” in the passage of his reasons set out at [42] above is that he was engaged in a comparative exercise in which he took into account the countervailing and contended for inconvenience to the applicant, as reflected in the “strong subjective features” referred to in those portions of the Sentencing Affidavit material that were read. In the context of the application that was before the magistrate, that material, compendiously referred to, had a dual significance as it bore upon not only the likelihood of a custodial sentence being imposed (which in turn had relevance for the comparative convenience of the applicant giving evidence in person as opposed to doing so remotely by AVL) but more generally in the context of the application to appear by AVL.

60. Given the way the matter was argued before the primary judge, no error warranting a grant of leave to appeal can be discerned nor does any important question of principle or of public importance arise: cf. PPK at [6]; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; BE Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[38]; Age Co Ltd v Liu (2013) 82 NSWLR 268; [2013] NSWCA 26 at [13]; Secretary, Department of Family and Community Services v Smith (2017) 95 NSWLR 597; [2017] NSWCA 206 at [28]. Neither the decision of the magistrate nor that of the primary judge supports the view that the convenience of the applicant should or must be excluded when considering an application by a party or a witness to give their evidence by AVL. The decisions of this Court referred to at [7] above were not qualified nor questioned in any way by the decision in respect of which leave to appeal is sought.

61. In terms of substantial injustice to the applicant, Mr Herzfeld contended that the substantial injustice to the applicant lay in her being deprived of the opportunity to appear by AVL, and thus being deprived of the opportunity to submit that a non-custodial sentence (such as a fine) should be imposed such that she would not need to travel to Australia at all, even when sentenced, thereby avoiding the prejudicial personal consequences identified in her Sentencing Affidavit.

62. This submission was problematic in circumstances where, notwithstanding the matters raised in her Sentencing Affidavit most if not all of which would have been known to the applicant in late 2022, the applicant had, according to the magistrate, at that time undertaken to appear in person in November 2023 and had not done so, and then made a last minute application to give evidence by AVL in November 2023 at a time when the sentencing hearing was due to occur, necessitating further delay: see [28] above.

63. It was also problematic given the magistrate’s expressed view that a custodial sentence was likely in view of the nature of the offences to which the applicant had pleaded guilty which, it is to be recalled, included not only the misappropriation of client funds but also the creation of false documents to conceal that misappropriation.

64. The “substantial injustice” and prejudice relied upon by the applicant thus had a very high degree of contingency which also militates against the grant of leave to appeal.

Disposition

66. For the above reasons, other than in respect of the uncontroversial direction to the second respondent identified in [12] above, I would refuse the application for leave to appeal. The applicant should be ordered to pay the first respondent’s costs of the application.

67. Thus, the orders of the Court I propose are as follows:

1. Direct the Local Court to correct JusticeLink by deleting the words “Convicted in Absence (ID 64460559)”, “Convicted in Absence (ID 64460557)”, and “Convicted in Absence (ID 64460558)” in respect of each of the three sequences 1, 2 and 5 in the entry for 17 November 2023 in respect of the applicant.

2. Leave to appeal refused with costs.

68. WARD P: I agree with Bell CJ.

69. LEEMING JA: I agree with Bell CJ, for the reasons his Honour gives, that the record of the Local Court should be corrected, but that Ms Dougan’s application for leave to appeal should be dismissed with costs. The submissions exchanged in this Court were wider than those advanced before the primary judge; that is not said by way of criticism, and not uncommonly occurs when different counsel is briefed. However, as the Chief Justice explains, the refusal of leave turns on the choices made at earlier stages in the litigation.

70. The refusal of Ms Dougan’s request to appear by AVL was challenged in the Common Law Division on the basis of jurisdictional error in this Court’s supervisory jurisdiction and on no other basis, and in taking that course, counsel then appearing disavowed reliance on failure to take into account a relevant consideration.

71. Until the litigation reached this Court, neither side appears to have obtained a copy of the formal record of the Local Court’s orders made on JusticeLink. When that was done, it became clear that there was an error, for the record as it appears on JusticeLink for 17 November 2023 merely states “Section 25(2) Warrant to Issue – Convicted in Absence”. But as the Chief Justice explains, that record is inaccurate and should be corrected.

72. What occurred in this litigation emphasises the desirability, when proceedings are brought (whether by way of appeal or judicial review) based on the orders of a court for the formal record of that court’s orders to be obtained.

73. Returning to what occurred in the Local Court, there can be considerable flexibility in the way a court conducts sentencing proceedings. It would have been open to have commenced the hearing of proceedings for the imposition of sentence upon Ms Dougan, with the Local Court hearing evidence (including from Ms Dougan by AVL) and submissions and perhaps imposing sentence then and there, or alternatively adjourning for the purpose of imposing sentence at a later day, with the later day being the subject of a separate application for appearance by AVL. That possibility, which seems not to have been advanced either to the Local Court or in the Common Law Division of this Court, was emphasised with some force in this Court. However, leave should not ordinarily be granted to run a case not run in the lower court.

74. Finally, the course taken in this litigation means that no submissions were received concerning the correctness of Russell v Scott [2017] NSWSC 1720 and decisions which have followed it (including TR v Constable Cox [2020] NSWSC 389 at [83] and Director of Public Prosecutions v Yerbury [2020] NSWSC 905 at [41]), which held that the refusal of an application under s 5B of the Evidence (Audio and Audio Visual Links) Act 1998 (NSW) is not an “interlocutory order” for the purposes of s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW), which confers a right of appeal, subject to leave, on a question of law alone from “an interlocutory order … made by the Local Court in relation to the person in summary proceedings”. It follows that this Court’s decision does not express any view, one way or the other, as to the correctness of those decisions. The point is of some importance, because (a) decisions like Gooley v Senior Constable Chad Stewart [2018] NSWSC 1738; 86 MVR 478 illustrate the issues this question of jurisdiction can create, (b) other decisions including JD v Commissioner of Police, NSW Police Force [2022] NSWSC 911 at [39] appear to be difficult to reconcile with a narrower approach and (c) it has been held, including in Secretary, Department of Communities and Justice v KH (2022) 110 NSWLR 57; [2022] NSWCA 221 at [64] that s 69(4) of the Supreme Court Act 1970 (NSW) does not include as part of the “record” the reasons of an inferior court for an interlocutory decision, which may have the practical effect of curtailing the scope for review for error of law.

75. As Russell v Scott and Director of Public Prosecutions v Yerbury illustrate, an appeal under s 53(3)(b) and an application under s 69 may proceed efficiently and concurrently; an appropriate case in which that occurred might provide an opportunity to review the scope of s 53(3)(b). Director of Public Prosecutions v Yerbury, which concerned the similarly worded right of appeal conferred on a prosecutor, illustrates that the narrowness or width of the right of appeal cuts both ways, for both prosecutors and accused persons may wish to challenge interlocutory decisions of the Local Court.

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Decision last updated: 21 May 2025