El-Saeidy v Director of Public Prosecutions

[2018] NSWCA 127

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	El-Saeidy v Director of Public Prosecutions [2018] NSWCA 127
Hearing dates:	5 June 2018
Decision date:	14 June 2018
Before:	McColl JA; Macfarlan JA; Emmett AJA
Decision:	Mr El-Saeidy’s summons for judicial review is dismissed with costs.
Catchwords:	JUDICIAL REVIEW – judicial review sought in respect of three convictions for offences contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) – application to adjourn hearing refused – 31 grounds of appeal – no jurisdictional error
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), s 18(2) Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 14(1) District Court Act 1973 (NSW), s 176
Cases Cited:	Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29 Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1 Roads and Maritime Services v Porret (2014) 86 NSWLR 467; [2014] NSWCA 30 Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 Ghaderi v Director of Public Prosecutions (NSW) [2018] NSWCA 119
Category:	Principal judgment
Parties:	Fawzi El-Saeidy (Applicant) Director of Public Prosecutions (First Respondent) District Court of New South Wales (Second Respondent)
Representation:	Counsel: Self-represented Applicant M W Smith (First Respondent) Submitting Appearance (Second Respondent)   Solicitors: Self-represented Applicant Office of the Director of Public Prosecutions (First Respondent) Crown Solicitor’s Office (Second Respondent)
File Number(s):	CA 2017/250755
Decision under appeal	Court or tribunal: District Court Parramatta Jurisdiction: Criminal Date of Decision: 13 October 2017 Before: Delaney ADCJ File Number(s): 2016/254257

Judgment

1. THE COURT: On 4 December 2017 Mr El-Saeidy was given leave to amend a Summons he had filed in this Court. The amendment was intended to enable him to seek judicial review of a decision of Delaney ADCJ. He was directed to file his Amended Summons and written submissions by 5 February 2018. At his request, a number of extensions of time were subsequently granted. The Amended Summons was ultimately filed on 7 May 2018 but the written submissions have still not been filed. On 19 March 2018 the proceedings were listed for hearing before this Court on 5 June 2018.

2. By his Amended Summons Mr El-Saeidy seeks judicial review in respect of three convictions for offences contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The offences comprised contraventions of apprehended violence orders (“AVOs”) granted for the protection of, inter alia, Ms Yasmin Long and Ms Rima Elhawli. Mr El-Saeidy was convicted of the three offences (and one other) in the Local Court on 6 April 2016 and his appeal to the District Court in respect of the three convictions was dismissed by Delaney ADCJ on 13 October 2017. The appeal was allowed in relation to the fourth conviction.

3. Prior to the date fixed for the hearing in this Court, Mr El-Saeidy, by emails to the Registrar, requested that the hearing be vacated. The emails were lengthy but relied in substance on Mr El-Saeidy’s alleged inability to concentrate on the present proceedings by reason of what he described as the “brutal injustice” of his conviction in the Local Court on 20 April 2018 of an offence completely unrelated to the present proceedings. He said that those proceedings in the Local Court, and events associated with them, had caused him considerable distress such that he was “even unable to see my doctor as I had no time even for my health”. As the respondent (the “DPP”) indicated his opposition to an adjournment, the Registrar informed Mr El-Saeidy that if he wished the hearing adjourned he would have to make an application to the Court when his matter was called on for hearing.

4. At the commencement of the hearing in this Court on 5 June 2018, Mr El-Saeidy was unrepresented, as he had been at directions hearings before the Registrar. On some occasions Mr El-Saeidy had been assisted before the Registrar by a barrister acting as an amicus curiae.

5. In his oral application for an adjournment, Mr El-Saeidy asserted that he needed an adjournment to obtain legal representation because the DPP had “ambushed” him. Mr El-Saeidy said he had been “ambushed” because he had only found out that the DPP was represented by a barrister (presumably as distinct from the solicitor who represented the DPP in the District Court) when Mr El-Saeidy received the DPP’s written submissions in this Court.

6. The Court rejected the adjournment application as the reasons advanced by Mr El-Saeidy were wholly inadequate to justify an adjournment. Mr El-Saeidy had had ample notice of the hearing and he advanced no medical or other acceptable reason for being unable to proceed. Significantly, he had previously been granted numerous indulgences by the Court in relation to preparation of the matter for hearing.

7. The decision in Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57 upon which Mr El-Saeidy relied provided no support for his application. Contrary to his submissions, that decision is not authority for the proposition that there would be a miscarriage of justice if a person in Mr El-Saeidy’s position was not legally represented in proceedings in this Court.

8. After his adjournment application was refused, Mr El-Saeidy was invited to address the Court on the merits of his proceedings but he said that he was unable to do so. The DPP in large measure relied upon his written submissions. The Court then reserved its judgment.

The charges against Mr El-Saeidy and the disposition of the proceedings in the Local and District Courts

9. Mr El-Saeidy was charged in the Local Court with four offences of contravening AVOs. It is only necessary to refer to the three charges upon which he was convicted. The first charge related to alleged harassment of Ms Long, a school student aged about 17 years, who lived near Mr El-Saeidy’s home. Ms Long gave evidence that Mr El-Saeidy came onto his balcony and stared at her as she was doing an experiment outside for a school assignment. She said that, after she started to conduct the experiment, Mr El-Saeidy started taking photographs of her, came very close to her and followed her as she crossed the road a number of times, forcing her to run into a house for protection. Mr El-Saeidy denied these allegations and sought to prove, by means of documents produced on subpoena by Ms Long’s school, that she could not have been doing the assignment she described.

10. In support of the second charge Ms Elhawli, who with her husband and three children lived next door to Mr El-Saeidy, gave evidence of Mr El-Saeidy taking photographs of her home and by that means intimidating her. Ms Elhawli and her husband had had closed circuit television (“CCTV”) installed to protect their home. Mr El-Saeidy denied that he had engaged in any intimidatory conduct and that he was a person who could be seen on CCTV footage that was before the Court.

11. The third charge related to similar alleged conduct on the part of Mr El-Saeidy on 20 September 2015. In respect of this matter, Mr El-Saeidy said that he was simply taking photographs of his own property.

12. A lengthy hearing of the charges took place before Magistrate McAnulty. A police sergeant appeared for the prosecutor. Mr El-Saeidy appeared for himself, with the assistance of an amicus curiae. A further lengthy hearing then occurred in the District Court before Delaney ADCJ who heard Mr El-Saeidy’s appeal.

13. As was appropriate, Delaney ADCJ re-heard the matter on the basis of the Local Court transcripts and exhibits, and in his discretion allowed Mr El-Saeidy to tender certain fresh evidence. His Honour was guided in his conduct of the appeal by the Court of Criminal Appeal decision in Charara v The Queen [2006] NSWCCA 244; (2006) 164 A Crim R 39. As a result his Honour had regard to the reasoning and findings of the Magistrate but made it clear that he made his own, independent findings.

This Court’s role on the application for judicial review

14. This Court’s ability to grant relief by way of judicial review is limited by s 176 of the District Court Act 1973 (NSW) which provides that “[n]o adjudication on appeal of the District Court is to be removed by any order into the Supreme Court”. The effect of this provision is that an applicant for judicial review must demonstrate jurisdictional error on the part of the District Court in order to obtain relief (Roads and Maritime Services v Porret (2014) 86 NSWLR 467; [2014] NSWCA 30 at [37]).

15. In Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1 at [72] the plurality gave the following general description of the concept of jurisdictional error, referring to the earlier decision in Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58:

“First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error ‘if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist’ (emphasis added). Secondly, the Court pointed out that jurisdictional error ‘is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers’ (emphasis added). (The reference to ‘theoretical limits’ should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples:

(a)   the absence of a jurisdictional fact;

(b)   disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and

(c)   misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.

…” (citations omitted).

16. Although the “metes and bounds” of jurisdictional error are unable to be stated with precision, it is at least clear that mere errors of law and fact are not within the concept (Ghaderi v Director of Public Prosecutions (NSW) [2018] NSWCA 119 at [11]).

Determination of Mr El-Saeidy’s application for judicial review

17. Because Mr El-Saeidy’s grounds for judicial review are lengthy and discursive, it is not appropriate to quote them in full. Their substance appears sufficiently from what follows.

18. Ground 1 alleges that Delaney ADCJ “brought [a] prejudiced mind to the appeal matter” but Mr El-Saeidy relies only upon what he alleges were his Honour’s erroneous findings and decisions in his judgment. He does not identify any matter that could evidence bias, or an appearance of bias, and found a claim of procedural unfairness. Similar observations are applicable to Ground 27.

19. Ground 2, 10, 14 and 30 assert “procedural unfairness” but do not identify any basis for that allegation.

20. Grounds 3, 5 to 9, 11-13, 15-16, 18, 24, 27 and 29 simply allege errors by his Honour in his fact finding and do not allege any matters capable of constituting jurisdictional error.

21. Ground 4 alleges that his Honour “ignored and or failed to take into account” both evidence from Bass Hill High School (which Ms Long attended) and also a Tendency Notice in respect of Ms Long’s credit. His Honour did however refer to those matters in his judgment.

22. A second Ground numbered 9 and Ground 17 allege failures by his Honour to direct himself that there was a need for Ms Long’s evidence to be corroborated. There is no reason to think that his Honour made an error in this respect but, even if he did, it was an error within jurisdiction and did not constitute jurisdictional error.

23. Ground 19 alleges that his Honour failed to take into account that Ms Elhawli had a motive to lie. In the District Court, Mr El-Saeidy alleged that Ms Elhawli had that motive for two reasons. First, to justify the installation by her and her husband of CCTV surveillance cameras. Their installation was the subject of a complaint in a letter written by lawyers acting on behalf of Mr El-Saeidy. Secondly, Ms Elhawli indicated in a statement to police that she believed that the Department of Housing would have more capacity to “deal with” Mr El-Saeidy’s residence next door if he had “more charges” against him.

24. In his judgment his Honour did not refer to Mr El-Saeidy’s argument as to Ms Elhawli’s motive to lie. In light of the evidence before the District Court it was unnecessary for him to do so as Ms Elhawli’s credibility could not reasonably be regarded as important to the outcome of the appeal. This was so because the Elhawlis’ CCTV footage contradicted Mr El-Saeidy’s evidence that he was not present at the relevant time and it was not suggested to Ms Elhawli in cross-examination that she did not experience the fear, intimidation and harassment of which she complained. In any event any error by his Honour in this context would have been an error within jurisdiction, and not a jurisdictional error.

25. Grounds 20, 21 and 22 complain of his Honour’s rejection of two expert certificates that purported to comment on what could be seen on the CCTV footage in evidence. There would not appear to be any error in his Honour’s decision (see Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50; Honeysett v The Queen (2014) 253 CLR 122; [2014] HCA 29) but if there was, it was again an error within jurisdiction and did not constitute jurisdictional error.

26. It is not clear to what Mr El-Saeidy refers when he asserts in Ground 23 that his Honour erred in finding that “the plaintiff camera ‘lens zoom’ was irrelevant” but, if there was an error in the rejection of evidence, there is no reason to conclude that it was a jurisdictional error.

27. Grounds 25 and 26 assert that in the Local Court the magistrate unfairly limited certain cross-examination. Mr El-Saeidy provides no reason to conclude that the magistrate’s actions did not constitute a proper performance of his duties to control the conduct of the hearing before him. In any event, it was open to Mr El-Saeidy to have any undue abridgement of cross-examination in the Local Court corrected when the matter was dealt with in the District Court. Mr El-Saeidy could have, but did not, apply to Delaney ADCJ to have witnesses called in the District Court for further cross-examination: s 18(2), Crimes (Appeal and Review) Act 2001 (NSW).

28. Ground 28 complains first that Delaney ADCJ did not admit evidence of CCTV footage showing that he was on a bus at a particular time. The DPP asserts in its written submissions that the footage was in fact ultimately admitted. Even if it was not, there is no reason to conclude that any error by his Honour in this respect was a jurisdictional error rather than an error within jurisdiction. Likewise, the allegations in the remainder of Ground 29 to the effect that his Honour was in error in making factual and credibility findings do not indicate that his Honour made any jurisdictional error.

29. Ground 31 asserts that Mr El-Saeidy intended to make a “full reply to the judgement” in an affidavit. However Mr El-Saeidy failed to avail himself of the many opportunities that he had in the course of the Registrar’s preparation of this matter for hearing to provide such a “reply to the judgement”, whether by way of written submissions or affidavit.

Orders

30. For the reasons given above, Mr El-Saeidy has failed to establish that Delaney ADCJ committed any jurisdictional error. Mr El-Saeidy’s summons for judicial review should accordingly be dismissed with costs.

**********

Decision last updated: 14 June 2018