Dougan v Mann

The applicant, Mr Dougan, sought to appeal a decision of a Local Court magistrate who refused his application to appear by audiovisual link in proceedings. The application was made under section 5B of the *Evidence (Audio and Audiovisual Link) Act 1998* (NSW), which requires the court to consider the convenience of the applicant when determining such applications. The applicant contended that the magistrate failed to take his convenience into account. The appeal was heard in the Court of Appeal of New South Wales by Bell CJ, Ward P, and Leeming JA.

The primary legal issue before the Court of Appeal was whether the Local Court magistrate had committed a jurisdictional error by failing to consider the convenience of the applicant when determining the application to appear by audiovisual link. A secondary issue arose concerning the grant of leave to appeal, specifically whether the applicant's departure from the arguments advanced before the primary judge was relevant to the determination of that application.

The Court of Appeal found that the magistrate had not erred in law. While the magistrate's reasons did not explicitly use the word "convenience," the Court concluded that the magistrate had, in substance, considered the applicant's convenience as required by the Act. The Court noted that the magistrate's decision was based on a proper understanding of the statutory provision and the relevant considerations. Regarding the application for leave to appeal, the Court observed that it is important for parties to adhere to the arguments presented in the court below when seeking leave to appeal, and that a departure from such arguments could be relevant to the exercise of discretion to grant leave.

The Court of Appeal ordered that the Local Court correct JusticeLink by deleting specific notations relating to convictions in absence from the applicant's record. However, leave to appeal was refused, and the applicant was ordered to pay the costs of the appeal.