Engelbrecht v Director of Public Prosecutions (NSW)

[2016] NSWCA 290

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290

Hearing dates:

9 August 2016

Decision date:

24 October 2016

Before:

McColl JA at [1], Macfarlan JA at [108], Leeming JA at [124]

Decision:

(1)   An order in the nature of certiorari that the record of the proceedings in the District Court in its criminal jurisdiction in the case Timothy John Engelbrecht v Regina (2013/00386765) be removed into this Court;

 

(2)   An order in the nature of certiorari quashing the determination of his Honour Judge Sides of 30 September 2015 dismissing the sentence appeal brought by Timothy John Engelbrecht against the sentencing decision of Magistrate Bartley;

 

(3)   Direct that the proceedings be returned to the District Court in its criminal jurisdiction to be heard and determined according to law;

 (4)   Order the Crown to pay the applicant’s costs of the application for judicial review.

Catchwords:

ADMINISTRATIVE LAW – prerogative writs – certiorari – jurisdictional error – applicant convicted by Local Court of offence of aggravated indecency – severity appeal against sentence to District Court – Crimes (Appeal and Review) Act 2001 (NSW), s 11, s 17 – where applicant’s lawyer sought adjournment to obtain and tender Local Court transcript of conviction hearing – whether primary judge committed jurisdictional error in misapprehending the nature of the power exercised pursuant to Crimes (Appeal and Review) Act 2001 (NSW), s 17
CRIMINAL LAW – appeal to District Court against sentence imposed in Local Court – Crimes (Appeal and Review) Act 2001 (NSW), s 17 – appeal to be by way of a rehearing of "the evidence given in the original Local Court proceedings" – whether evidence given at the hearing to determine guilt necessarily part of the evidence at the sentence hearing
STATUTORY INTERPRETATION – Crimes (Appeal and Review) Act 2001 (NSW), s 17 – whether sentence appeal to District Court in nature of hearing de novo

Legislation Cited:

Courts Legislation Amendment Act 1999 (NSW) Crimes Act 1900 (NSW)
Crimes (Appeal and Review) Act 2001 (NSW)
Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW)
Crimes Act 1900 (NSW)
Crimes (Local Courts Appeal and Review) Act 2001 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
District Court Act 1973 (NSW)
Evidence Act 1995 (NSW)
Interpretation Act 1987 (NSW)
Justices Act 1902 (NSW)
Justices Legislation Amendment (Appeals) Act 1998 (NSW)
Justices Legislation Repeal and Amendment Act 2001 (NSW)
Supreme Court Act 1970 (NSW)

Cases Cited:

AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41
Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13
Bandara v Director of Public Prosecutions [2016] NSWCA 140
Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197
Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381; [2014] NSWCA 451
Budget Nursery Pty Ltd v Commissioner of Taxation (1989) 42 A Crim R 81
Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616; [1976] HCA 62
Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683
CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67
Charara v The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244
Chester v R (1988) 165 CLR 611; [1988] HCA 62
Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67
Chin v Teague [2014] NTCA 5
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Director of Public Prosecutions (Cth) v Ede (2014) 289 FLR 82; [2014] NSWCA 282
Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13
Dyason v Butterworth [2015] NSWCA 52
Eastman v R (2000) 203 CLR 1; [2000] HCA 29
Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125
Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68
Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115
GAS v R (2004) 217 CLR 198; [2004] HCA 22
Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478; [2002] HCA 22
Gianoutsos v Glykis (2006) 65 NSWLR 539; [2006] NSWCCA 137
Gilham v R (2007) 73 NSWLR 308; [2007] NSWCCA 323
Goldfinch v R (1987) 30 A Crim R 212
Goodwin v Commissioner of Police [2012] NSWCA 379
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661
Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
Independent Commission Against Corruption v Cunneen (2015) 256 CLR 1; [2015] HCA 14
Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 247; [2011] HCA 48
Muldrock v R (2011) 244 CLR 120; [2011] HCA 39
Parker v DPP (1992) 28 NSWLR 282
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
R v Alexandroaia (1995) 81 A Crim R 286
R v Holten (2007) 4 DCLR(NSW) 187; [2007] NSWDC 58
R v Isaacs (1997) 41 NSWLR 374
R v Longshaw (1990) 20 NSWLR 554
R v Lupoi (1984) 15 A Crim R 183
R v Olbrich (1999) 199 CLR 270; [1999] HCA 54
Reischauer v Knoblanche (1987) 10 NSWLR 40
SL v Secretary, Department of Family and Community Services [2016] NSWCA 124
Sweeney v Fitzhardinge (1906) 4 CLR 716; [1906] HCA 73
The Queen v Pilgrim (1870) LR 6 QB 89
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Veen v R (No 2) (1988) 164 CLR 465; [1988] HCA 14
Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170
Yousaf v DPP [2012] NSWCA 397

Texts Cited:

Crimes (Local Courts Appeal and Review) Bill, Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 4 December 2001
Howie and Johnson, Criminal Practice and Procedure NSW, LexisNexis
Justices Legislation Amendment (Appeals) Bill, Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard), 17 September 1998
New South Wales Law Reform Commission, Report 140, Criminal Appeals, (March 2014)
NSW Attorney General’s Department, Statutory Review of the Crimes (Appeal and Review) Act 2001, (August 2008)
Watson, Blackmore and Hosking, Criminal Law NSW, Lawbook Co

Category:

Principal judgment

Parties:

Timothy John Engelbrecht (Applicant)
Director of Public Prosecutions (NSW) (First Respondent)
District Court of New South Wales (Second Respondent)

Representation:

Counsel:
Mr M Mantaj (Applicant)
Mr D Kell (Acting Crown Advocate), Mr M Pulsford
(First Respondent)

  Solicitors:
Conditsis Lawyers (Applicant)
Office of the Director of Public Prosecutions (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s):

2016/45980

Publication restriction:

No

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

30 September 2015

Before:

Sides QC DCJ

File Number(s):

2013/00386765

Judgment

1. McCOLL JA: The applicant, Timothy Engelbrecht, seeks judicial review of a decision of his Honour Judge Sides QC given in the District Court of New South Wales in which his Honour dismissed his appeal against a sentence imposed by a Magistrate in the Local Court. [1] The appeal was brought pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) (Appeal and Review Act). The applicant contends that the primary judge fell into jurisdictional error because his Honour misapprehended the nature of the power he was exercising in determining the appeal pursuant to the Appeal and Review Act, s 17.

   1.    Engelbrecht v R (District Court (NSW), Sides DCJ, 30 September 2015, unrep) (Sentence judgment).

2. For the reasons that follow, I am of the view that the primary judge erred in the manner of which the applicant complains, that his Honour’s judgment should be set aside and the proceedings remitted to the District Court for hearing in accordance with law.

Legislative framework

3. Part 3 of the Appeal and Review Act deals with appeals from the Local Court to the District Court. Division 1 deals with appeals by defendants.

4. Division 1, Subdivision 1 deals with the making of appeals and relevantly provides:

“11 Appeals as of right

(1)   Any person who has been convicted or sentenced by the Local Court may appeal to the District Court against the conviction or sentence (or both).

…

14 Lodgment of appeals and applications for leave to appeal

(1) An appeal under section 11 or 11A is to be made by lodging a written notice of appeal with:

(a)   a registrar of the Local Court, or

(b)   the person in charge of the place where the appellant is in custody.

(2)   A notice of appeal must state the general grounds of appeal.”

5. Division 1, Subdivision 2 deals with the determination of appeals and relevantly provides:

“17 Appeals against sentence to be by way of rehearing of evidence [2]

2. Section 17 appeals are commonly referred to as “severity appeals”.

An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings.”

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.

19 Circumstances in which evidence to be given in person

(1)   The District Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied:

(a)   in the case of an appeal that relates to an offence involving violence against that person, that there are special reasons why, in the interests of justice, the person should attend and give evidence, or

(b)   in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence.

…

20 Determination of appeals

(1)    The District Court may determine an appeal against conviction:

(a)   by setting aside the conviction, or

(b)   by dismissing the appeal, or

(c)   in the case of an appeal made with leave under section 12 (1) – by setting aside the conviction and remitting the matter to the original Local Court for redetermination in accordance with any directions of the District Court.

(2)    The District Court may determine an appeal against sentence:

(a)   by setting aside the sentence, or

(b)   by varying the sentence, or

(c)   by dismissing the appeal.” (Emphasis added)

6. Part 3, Division 2 deals with appeals by prosecutors. It relevantly provides:

“Subdivision 1 Making of appeals

23 Appeals as of right

(1)   The Director of Public Prosecutions may appeal to the District Court against a sentence imposed on a person by the Local Court in any of the following proceedings:

(a)   proceedings for any indictable offence that has been dealt with summarily,

(b)   proceedings for any prescribed summary offence (within the meaning of the Director of Public Prosecutions Act 1986),

(c)   proceedings for any summary offence that has been prosecuted by or on behalf of the Director of Public Prosecutions.

…

Subdivision 2 Determination of appeals

26 Appeals against sentence to be by way of rehearing of evidence

(1)   An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings, but only by leave of the District Court.

(2)   Leave to give fresh evidence may be granted to the Director of Public Prosecutions only in exceptional circumstances.

27 Determination of appeals

(1)   The District Court may determine an appeal against sentence:

(a)   by setting aside the sentence, or

(b)   by varying the sentence, or

(c)   by dismissing the appeal. …” (Emphasis added)

7. Pursuant to Appeal and Review Act, s 67(1), an appeal or application for leave to appeal may at any stage be withdrawn by the appellant, but only by leave of the appeal court.

8. The following terms are defined in s 3 of the Appeal and Review Act:

“(1)    In this Act:

…

fresh evidence, in relation to appeal proceedings, means evidence in addition to or in substitution for the evidence given in the proceedings from which the appeal proceedings have arisen.

original Local Court proceedings means the proceedings in the Local Court that involved the making or imposition of a conviction, sentence or order from which the proceedings under this Act arise.

sentence means:

(a)   any order made by the Local Court in respect of a person as a consequence of its having convicted the person of an offence, including:

…

(ii)   any community service order, good behaviour bond or fine,

…

(3)   In this Act, a reference to varying a sentence includes:

(a)   a reference to varying the severity of the sentence, and

(b)   a reference to setting aside the sentence and imposing some other sentence of a more or less severe nature.”

Local Court proceedings

9. On 10 June 2015, Magistrate Bartley found the applicant guilty of an offence of aggravated indecency contrary to s 61O(1A) of the Crimes Act 1900 (NSW).

10. The circumstances attending the commission of the offence were as follows. The victim, James Ferguson, is a young man (18 at the time of the offence) with a mild intellectual disability who requires support from paid workers mainly centred on social issues. At the time of the offence, he shared a home in Hornsby with another young man with an intellectual disability. Around the clock staffing support, funded by the Department of Family and Community Services, was provided to residents at the home through a service provider named New Horizons.

11. The applicant was employed at the home by New Horizons as a residential support worker and case-worker. He was charged with five charges of indecent or common assault involving Mr Ferguson. He was acquitted of four, but convicted on one s 61O(1A) matter (sequence 3). The Magistrate found that he committed an act of indecency towards the victim, which, the Magistrate found, involved him walking with his genitals exposed when Mr Ferguson was in his direct line of sight. The Magistrate also found the applicant intended Mr Ferguson to see him in that state. There was no issue that if the offence was committed, it was committed in circumstances of aggravation pursuant to s 61O(3), as the victim was under the authority of the applicant.

12. In his judgment on conviction (conviction judgment) the Magistrate recorded that the primary facts concerning the offence were strongly contested. The applicant contended that it was Mr Ferguson who pulled the applicant’s pants down. He decided he should “get away” from Mr Ferguson rather than bend over to put his pile of belongings down before re-adjusting his clothing. The applicant said that he walked into another room and adjusted his clothing, and picked up his pile of belongings again, but that when he left that room, Mr Ferguson once again “pulled [his] shorts down to his ankles”. He then “shuffle[d]” what the Magistrate found was “a long distance” before again depositing the pile he was carrying, and “pulling up his shorts.” The applicant’s explanation for taking this course of action was that Mr Ferguson “was in an escalated mood” and he “decided not to react and give him what he wanted”. The Magistrate rejected the applicant’s evidence in this respect, finding that it lacked credibility.

13. The Magistrate incorporated by reference his conviction judgment, insofar as it concerned the sequence 3 matter, into his sentencing reasons. In those reasons, his Honour noted that the applicant rejected the court’s findings of fact and guilt and did not “exhibit genuine contrition or remorse”.

14. On 4 August 2015 the applicant was sentenced to 300 hours of community service work. These proceedings concern the applicant’s appeal to the District Court against sentence pursuant to s 11 and s 17 of the Appeal and Review Act (“severity appeal”).

District Court proceedings

15. On 30 September 2015 the severity appeal came before Sides DCJ. When the matter was called on for hearing, the applicant’s solicitor, Mr M Mantaj, asserted that the Crown had resiled from an agreement in respect of the facts which were to be tendered on the appeal. He claimed the Crown had previously agreed that a redacted police facts document prepared at the end of the conviction hearing and provided to the author of the pre-sentence report used at the sentencing hearing would be tendered on the severity appeal. Mr Mantaj further asserted that the Crown had only notified him when he arrived at court that morning that it instead intended to tender the conviction judgment.

16. The agreement to which Mr Mantaj referred was said to have been made on an occasion when the severity appeal was listed before his Honour Judge Colefax SC on 18 August 2015. In the course of the hearing in this Court, the Crown Advocate produced the transcript of that hearing. It is apparent that Mr Mantaj sought an adjournment on the basis that the Crown and he had agreed to obtain a copy of the agreed facts said to represent the Magistrate’s conviction findings, he wished to obtain a psychiatric assessment of the appellant and the Crown wished to obtain the sentencing remarks. The adjournment was granted. The first note on JusticeLink concerning the events of that day in relation to the severity appeal recorded:

“Note: Although there was an 8 day contested hearing in the Local Court, adequate findings of fact in the appeal are likely to be found in the remarks on sentence and the documents supplied to the author of the Pre Sentence Report.”

17. Mr Mantaj submitted before the primary judge that the Crown’s changed position prejudiced the applicant. He said that in reliance on his agreement with the Crown, he had obtained an expert report from a psychiatrist, Dr Nielssen, which had been prepared on the basis that the redacted police facts documents would be tendered. He also indicated that if the matter was to proceed on the basis of the conviction judgment, he would seek to tender “a lot more than just the decision of his Honour.”

18. Mr Mantaj sought an adjournment so that he could obtain “the transcript in circumstances where [he understood] the Crown [didn’t] even concede that there was an agreement as to that document being tendered to the Court as the facts.” Ms Prowse, who appeared for the Office of the Director of Public Prosecutions, opposed that course. She informed his Honour that she could not see on the Crown file an agreement to the effect of that for which Mr Mantaj contended. She added that even if such an agreement had been made, the facts in the redacted police facts document did not represent the detail of the Magistrate’s conviction reasons. She submitted that she would rely on those reasons for his Honour “to effectively re-sentence” the applicant as they showed that the Magistrate had rejected the applicant’s version of the events.

19. Mr Mantaj repeated that he was prejudiced by the Crown’s changed position. He submitted that if the matter was not to proceed on the basis of the redacted police facts document, it “ought to proceed on the basis of an analysis of the entire transcript” because that was what the Appeal and Review Act, s 17 required.

20. The primary judge responded that on a severity appeal the Court was “not required, nor would it be proper, nor does it have the time to read the entire transcript of all the evidence that was given before the Magistrate.” He suggested s 17 referred to the evidence given at the original Local Court sentencing proceedings.

17. In response to the primary judge’s concern that much of the transcript of the Local Court related to matters in respect of which the applicant had been acquitted, Mr Mantaj said he required an adjournment to obtain the transcript and “sit down with the Crown and identify the relevant evidence.” He observed that the Crown was seeking to tender the Magistrate’s findings in relation to all the sequences, not merely sequence 3.

18. The Crown objected to the course Mr Mantaj proposed. It did not object to an adjournment if the basis of that was to enable Mr Mantaj to obtain another report from Dr Nielssen based on the Magistrate’s findings, but opposed an adjournment for any other purpose.

19. Mr Mantaj insisted that the Crown should not be permitted to resile from the August agreement but re-iterated that, if it was, the Court should “consider at least as much of the transcript of the Local Court hearing as the parties wish to refer the Court to”. He said he was not in a position to do that that day because he had not been aware that the issue would arise. Accordingly, he repeated his submission that the matter ought to be adjourned so that he could “get, firstly that transcript, argue the question then of whether or not there was an agreement and if so what the consequence of it is and if that goes against me then I can tender the parts of the transcript which I would propose to rely upon.”

20. Sides DCJ rejected the adjournment application. His Honour appeared to accept Mr Mantaj’s submission as to his earlier agreement with the Crown as to the manner in which the appeal would proceed. However, he also accepted the Crown’s submission that the psychiatrist’s report Mr Mantaj sought to tender on the basis of the agreed position for which he contended contained a version of events the Magistrate had not accepted. Accordingly, he said it was appropriate that the Crown “tender the material it had previously agreed would not be tendered”. His Honour then said:

“It has been further contended on the appellant’s behalf that, because the goalpost has now been moved, he is prejudiced because he does not have a transcript of the evidence of any of the witnesses given before the magistrate, which it is argued is the material referred to in s 17 of the Crimes(Appeal and Review) Act. The Court does not accept that submission. The evidence referred to [in s 17] is the evidence given at the sentence hearing and, in an appeal against the severity of a sentence imposed after a conviction recorded following a hearing, it is legitimate for the magistrate’s reasons at the end of the hearing to determine guilt to be tendered so that the factual matrix upon which the sentence [appeal is] to proceed can be established.

In this case it is also, in the Court’s view, relevant to the Court’s view of any account the appellant might have given Dr Nielssen. The Court is not persuaded that that is appropriate material or relevant to these proceedings, and that any further delay is in the interest of justice. The application to adjourn the matter is refused.”

25. Sides DCJ then dealt with the applicant’s severity appeal. The Crown tendered a Crown Tender Bundle (Exhibit A), which included the transcript of the conviction judgment, the notice of appeal, the Court Attendance Notice, criminal antecedents and the pre-sentence report.

26. Mr Mantaj objected to parts of the conviction judgment transcript the Crown had tendered which related to the sequences in respect of which the applicant was acquitted. The primary judge overruled that objection and admitted the entire transcript of the conviction judgment.

27. Mr Mantaj tendered the Magistrate’s sentencing reasons (Exhibit #1). He then said to the primary judge that he noted his Honour’s “earlier ruling” but asked “whether [his Honour would] be prepared to accept into evidence parts of the transcript of the Local Court proceedings … that go to character only”. The Crown did not object to that course. Accordingly, a partial transcript of the Local Court hearing which contained character evidence became Exhibit #2. The applicant did not seek to tender Dr Nielssen’s report, the redacted police facts document or any other evidence from the Local Court.

28. Sides DCJ dismissed the applicant’s sentence appeal in a second ex tempore judgment.

Issues on appeal

29. The summons seeking judicial review complains that the primary judge erred in that, contrary to s 17 of the Appeal and Review Act, “his Honour refused to have regard to the transcript of the evidence given in the Local Court proceedings in determining the [severity appeal]”, and thus fell into jurisdictional error.

30. The applicant seeks an order in the nature of certiorari setting aside his Honour’s judgment and that the proceedings be remitted to the District Court to be dealt with according to law. [3]

    3. Supreme Court Act 1970 (NSW), s 69.

Applicant’s submissions

31. Mr Mantaj submitted that the primary judge erroneously construed the words “evidence given in the original Local Court proceedings” in s 17 of the Appeal and Review Act as a reference solely to the reasons given by Magistrate Bartley for his finding of guilt, to the exclusion of the oral testimony given by witnesses at the Local Court hearing which led to that finding. He submitted that on their proper construction, those words in s 17 referred to the evidence given by witnesses, together with exhibits, in the Local Court hearing.

32. Mr Mantaj argued that a judicial officer’s reasons could not constitute evidence before the same judicial officer, that is to say, “in the original Local Court proceedings.” He contended that to describe reasons given in a particular proceeding as “evidence” in that same proceeding did violence to the English language and was inconsistent with the decision in Charara v The Queen. [4]

    4. (2006) 164 A Crim R 39; [2006] NSWCCA 244 (Charara) (at [23]) per Mason P (Kirby and Hoeben JJ agreeing).

33. Secondly, Mr Mantaj submitted that for the purposes of the Appeal and Review Act, s 17 the phrase “the original Local Court proceedings” refers both to the contested hearing phase and the sentencing hearing phase of those proceedings. He argued that a judge hearing a severity appeal could not properly exercise the s 17 sentencing power without referring to the transcript of evidence given and relevant exhibits tendered in the conviction phase to assess such matters as the objective seriousness of the offence, and aggravating or mitigating factors. He submitted that in refusing to permit him to tender such evidence, the primary judge erroneously “sought to bifurcate” the criminal justice process by separating the proceedings leading to a finding of guilt from the sentencing proceedings. He accepted that the evidence to which a judge hearing a severity appeal could have regard would not include, or, at least not in a manner which would detract from, that evidence essential to the conviction.

34. Thirdly, Mr Mantaj submitted that if the construction of the Appeal and Review Act, s 17 the primary judge adopted was permitted to stand, the effect would be that on the hearing of a severity appeal, the District Court would not be in a position to form its own judgment of the facts relevant to sentence, but, rather, would be confined to the facts found by the Magistrate. He contended there was nothing in the Appeal and Review Act which indicated it was intended to circumscribe the appellate function of the District Court so narrowly.

35. Fourthly, Mr Mantaj submitted that the effect of the primary judge’s misapprehension of the ambit of s 17 was that the hearing of the severity appeal was not a hearing pursuant to s 17.

Respondent’s submissions

36. The Acting Crown Advocate (Crown Advocate) submitted that a severity appeal pursuant to the Appeal and Review Act, s 17, is, in effect, a de novo hearing in which the District Court judge hears the matter afresh, determines the facts relevant to sentencing, [5] and re-exercises the sentencing discretion irrespective of error by the Magistrate. The Crown Advocate contended that on a severity appeal, it was not open to an appellant to traverse the findings of the Magistrate that formed the basis of the conviction.

    5.    But not those findings, already determined by the Magistrate, which underpin the finding of guilt.

37. Secondly, in his written submissions, the Crown Advocate contended that s 17 referred only to evidence given in the Local Court proceedings in relation to the sentence the subject of the appeal. He submitted that this construction of s 17 was confirmed by the legislative history of the Appeal and Review Act and also by the definition in s 3 of “original Local Court proceedings” as “the proceedings in the Local Court that involved the making or imposition of” (his emphasis), relevantly, the sentence. Ultimately, however, in the course of the hearing he accepted that such evidence included the evidence given during the conviction hearing that was relevant to the sentencing exercise. He contended, however, that in this case the applicant had submitted that all the evidence before the Magistrate should be considered, that is to say the evidence relating to all five of the charges before the Magistrate, not merely that relevant to sequence 3.

38. Thirdly, the Crown Advocate submitted that on a severity appeal Mason P’s statement in Charara, on which the applicant relied as demonstrating that the Magistrate’s reasons were not “evidence” within the meaning of that expression in s 17, may not apply having regard to the de novo nature of the s 17 appeal. However, the Crown Advocate accepted that, even if that was correct, the Magistrate’s sentencing reasons could fairly be regarded as material that could be of assistance to the District Court judge exercising the sentencing discretion afresh. In addition, the Crown Advocate contended that in circumstances where the applicant proposed to tender an expert report which was based on a version of events the Magistrate had rejected, it was appropriate for the Crown to tender, and for the primary judge to have regard to, the Magistrate’s reasons for conviction to establish the factual matrix upon which the sentence appeal was to proceed.

39. Fourthly, the Crown Advocate submitted that even if his contention as to the meaning of “evidence” in s 17 was incorrect, that provision did not make the “entire transcript” a mandatory relevant consideration to which the District Court was required to have regard. Rather, the District Court was required to determine the facts relevant to sentencing and to re-sentence the appellant upon the basis of the evidence adduced by the parties and admitted by the Court. In this regard it was the responsibility of the parties to the severity appeal to adduce whatever such evidence they contended was relevant to the re-exercise of the sentencing function. Accordingly, the Crown Advocate submitted the primary judge did not err in rejecting the proposition that the Court should have regard to the entire transcript of the evidence given before the Magistrate.

40. Fifthly, the Crown Advocate submitted that, in fact, the primary judge heard the severity appeal on a de novo basis. Both parties tendered material and made submissions as to the appropriate sentence, following which the primary judge made findings relevant to sentencing (such as remorse) and appeared independently to re-exercise the sentencing discretion. Accordingly, the severity appeal was heard according to law.

41. Sixthly, the Crown Advocate submitted that, if there was error on the primary judge’s part, it occurred when his Honour refused the adjournment application, not in the sentencing hearing.

42. Seventhly, the Crown Advocate submitted that any error in refusing the adjournment did not constitute jurisdictional error, but, rather, was an exercise of discretion on a matter of practice and procedure in criminal proceedings which appellate courts would rarely disturb. [6]

    6. Referring to Blazevski v Judges of the District Court of New South Wales (1992) 29 ALD 197 (Blazevski) (at 200).

43. Finally, the Crown Advocate submitted that the primary judge did not misconceive the nature of his function or the extent of the District Court’s power on the severity appeal such as to constitute jurisdictional error, given that his Honour admitted, on the applicant’s tender, a partial transcript of the evidence given by two witnesses in the Local Court, and did not refuse to admit any evidence the applicant sought to tender.

Consideration

44. The exercise of jurisdiction under the Appeal and Review Act falls within the criminal jurisdiction of the District Court. Pursuant to s 176 of the District Court Act 1973 (NSW), “[n]o adjudication on appeal of the District Court is to be removed by any order into the Supreme Court”. The effect of s 176 is to limit the availability of judicial review to cases involving jurisdictional error. [7]

    7. Dyason v Butterworth [2015] NSWCA 52 (at [31]), referring with approval to Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 (at [10]); Director of Public Prosecutions (Cth) v Ede (2014) 289 FLR 82 (at [18]); [2014] NSWCA 282.

45. There is no rigid taxonomy of jurisdictional error. [8] However, generally speaking, an inferior court commits 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”. [9]

    8. Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (Kirk) (at [73]).

    9. Ibid (at [72]), quoting Craig v South Australia (1995) 184 CLR 163 (at 177); [1995] HCA 58 (Craig).

46. Jurisdictional error will also be found where a judicial officer misconstrues the relevant statute and, accordingly, “misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case.” [10]

    10. Kirk (at [72]) referring to Craig (at 178); Bandara v Director of Public Prosecutions [2016] NSWCA 140 (at [46]).

47. Where there is the appearance of an exercise of jurisdiction, but one which does not conform to the requirements of the law, such a failure will generally involve jurisdictional error as the process of decision-making has miscarried. [11]

    11. Boele v Rinbac Pty Ltd (2014) 88 NSWLR 381; [2014] NSWCA 451 (at [54]) per Basten JA (although his Honour was in dissent as to the outcome, Sackville AJA (at [100]) approved Basten JA’s statements of principle); see also Goodwin v Commissioner of Police [2012] NSWCA 379 (at [19] – [25]) per Basten JA (Allsop P and Young AJA agreeing).

48. Where there is a complaint of jurisdictional error, the court may have regard to “any admissible evidence relevant for that purpose”. [12]

    12. Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 (at [15]) per Basten JA (McColl and Macfarlan JJA agreeing); Wende v Horwath (NSW) Pty Ltd (2014) 86 NSWLR 674; [2014] NSWCA 170 (at [30] – [31]) per Basten JA; (at [125] – [126]) per Barrett JA.

Sentencing

49. To put the issues in context, it is necessary to refer to some basic sentencing principles.

50. In imposing a sentence, a court must ensure the offender is adequately punished for the offence. [13] The court must have regard to objective or subjective factors that affect the relative seriousness of the offence. [14] The sentence must be proportional to the gravity of the offence having regard to the objective circumstances. [15] The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending. [16]

    13. Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act), s 3A(a).

    14.    Sentencing Procedure Act, s 21A(1)(c).

    15. Veen v R (No 2) (1988) 164 CLR 465 (at 472); [1988] HCA 14 per Mason CJ, Brennan, Dawson and Toohey JJ; (at 485 – 486) per Wilson J; (at 490 – 491) per Deane J; (at 496) per Gaudron J; Chester v R (1988) 165 CLR 611 (at 618); [1988] HCA 62; Hoare v The Queen (1989) 167 CLR 348 (at 354); [1989] HCA 33 per curiam.

    16. Muldrock v R (2011) 244 CLR 120; [2011] HCA 39 (at [27]) per curiam.

51. It is for the sentencing judge alone to decide the sentence to be imposed and, for that purpose, to find the relevant facts [17] and to apply to the facts as found the relevant law and sentencing principles. [18] This is in order to enable the judge to perform the task of assessing the degree of culpability of the offender for the crime of which he or she has been found guilty. [19]

    17. GAS v R (2004) 217 CLR 198; [2004] HCA 22 (at [30]) per curiam.

    18. Ibid (at [31]).

    19. Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 (Cheung) (at [38]) per Gleeson CJ, Gummow and Hayne JJ.

52. Where a criminal charge has been heard by a judge alone, the sentencing judge is, effectively, both jury and judge. In those circumstances the sentencing exercise will entail the judge determining the issue of culpability, in contrast to the position where there has been a trial before a jury which has found the offender guilty. Even in that circumstance, whereas the verdict of guilt decides the issues joined by the plea to the charge, it does not decide all facts of possible relevance to sentencing. [20] The sentencing judge will be able to make findings as to the matters underpinning the conviction for the purpose of assessing the degree of criminality involved and take them into account in sentencing. [21] As is apparent from R v Isaacs, in determining the facts relevant to sentencing, some will have emerged in evidence at trial, while others may only emerge in the course of the sentencing proceedings. [22]

    20.    Cheung (at [7]).

    21.    Cf Cheung (at [12]).

    22. (1997) 41 NSWLR 374 (Isaacs) (at 378) per curiam, referred to with approval by the plurality in Cheung (at [14]).

53. Findings of fact made by a sentencing judge must be consistent with the verdict of guilt and, in the case of facts taken into account in a way that is adverse to the interests of the accused, must be arrived at beyond reasonable doubt. [23] The effect of this constraint in a given case may be that, because the judge is required to resolve any reasonable doubt in favour of the accused, the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender. [24]

    23. R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (at [27]) per Gleeson CJ, Gaudron, Hayne and Callinan JJ; R v Lupoi (1984) 15 A Crim R 183 (Lupoi) (at 184) per White J (King CJ and Millhouse J agreeing).

    24.    Isaacs (at 378), referring to Lupoi.

54. It is difficult, in the light of that task, to determine how a judge determining a severity appeal could assess the appellant’s culpability without having regard to the evidence adduced in relation to conviction in order to resolve that issue.

55. Finally, note should be made of the implications for severity appeals of Parker v DPP. [25] Parker was an application for an order in the nature of certiorari in respect of a severity appeal heard by a District Court judge pursuant to s 122 of the Justices Act1902 (NSW) (Justices Act) who imposed a custodial sentence in lieu of the non-custodial sentence appealed from. [26] Parker complained that his Honour did so in breach of the rules of procedural fairness, relevantly for the present case, in failing to signal to the accused that he was contemplating a custodial sentence, so that the accused might consider making an application to withdraw his appeal. [27]

    25. (1992) 28 NSWLR 282 (Parker).

    26. As will be explained, s 122 is the legislative forebear of s 17.

    27.    Parker (at 284).

56. In upholding the complaint of want of procedural fairness, Kirby P observed that there had long been “an established practice or convention in District Court appeals under s 122 that a judge, contemplating an increase in the sentence under appeal, will signal that possibility to the appellant” and that, although it was not a rule of law, it was an established practice which should rarely, if ever, be departed from. [28] Parker warnings continue to be a feature of severity appeals under the Appeal and Review Act and are an unexceptionable exercise of the judge’s functions. [29]

    28.    Ibid (at 295) (Handley and Sheller JJA agreeing).

    29. Yousaf v DPP [2012] NSWCA 397 (at [37]) per Barrett JA (McColl and Meagher JJA agreeing).

49. As would be self-evident, a Parker warning could not be given if the District Court judge entertaining the severity appeal was not aware of the sentence the Magistrate had imposed.

Construction of s 17 of the Appeal and Review Act

58. The task of statutory interpretation is concerned with giving a statutory provision the meaning that the legislature is taken to have intended it to have. [30] The exercise must begin with a consideration of the text, taken in context, bearing in mind that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. [31]

    30. Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 (Project Blue Sky) (at [78]) per McHugh, Gummow, Kirby and Hayne JJ.

    31. Project Blue Sky (at [69]); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27; [2009] HCA 41 (at [47]) per Hayne, Heydon, Crennan and Kiefel JJ; see also French CJ (at [4]).

59. An “appeal” is always a creature of statute. The words “appeal” and “rehearing” may be used in a number of senses. [32] Further, the word “rehearing” has been used in statutes, or employed in construing statutes, to indicate, in differing senses, the nature of the task to be performed by an appellate court. [33] The variable usage of these terms is such that the precise nature of the statutory remedy of appeal afforded to a dissatisfied litigant, and the procedures attendant upon it, will ultimately depend upon the provisions of the statute creating the right of appeal. [34] However the context of the term, the history of the legislation and the surrounding circumstances will also be relevant. [35]

    32. Dwyer v Calco Timbers Pty Ltd (2008) 234 CLR 124; [2008] HCA 13 (Dwyer) (at [2]) per curiam.

    33. Fleming v The Queen (1998) 197 CLR 250; [1998] HCA 68 (Fleming) (at [19]). Glass JA attempted to identify the different litigious processes with what his Honour described as having “few unifying characteristics” in respect of which the term “appeal” is loosely employed in Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 (at 297 – 298): Gianoutsos v Glykis (2006) 65 NSWLR 539; [2006] NSWCCA 137 (Gianoutsos) (at [27]) per McClellan CJ at CL (Sully and Hislop JJ agreeing).

    34. Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616 (at 619); [1976] HCA 62 (Sperway) per Mason J (Barwick CJ and Stephen J agreeing); Fleming (at [21]); R v Longshaw (1990) 20 NSWLR 554 (Longshaw) (at 558) per Gleeson CJ (Wood and Badgery-Parker JJ agreeing).

    35. Cf Eastman v R (2000) 203 CLR 1; [2000] HCA 29 (at [130]) per McHugh J, referred to with approval in Dwyer (at [2]).

60. Broadly speaking, there is a recognised distinction between first, appeals in the strict sense – in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given, secondly, appeals de novo – where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error (appeal de novo), [36] and, thirdly, appeals by way of rehearing – where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error and, in some cases, has power to receive additional evidence (error based appeal). [37] In the latter case, although the appeal is described as being “by way of rehearing”, it does not “call for a fresh hearing or hearing de novo [and] the court does not hear the witnesses again.” [38]

    36.    A “rehearing, in the widest sense of the term … [is] a hearing de novo”: Longshaw (at 561) per Gleeson CJ (Wood and Badgery-Parker JJ agreeing).

    37. Sperway (at 620); Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10 (at [57]) per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; see also Turnbull v New South Wales Medical Board (at 297 – 298) per Glass JA.

    38.    Sperway (at 620).

61. One of the indicia of a rehearing function is the conferral of a discretion on an appellate body to admit further evidence. Such a power is of a remedial nature conferred “to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures.” [39]

    39. CDJ v VAJ (No 1) (1998) 197 CLR 172; [1998] HCA 67 (at [109]) per McHugh, Gummow and Callinan JJ; see also Sperway (at 619); Longshaw (at 558 – 559); Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 (at 666) per Sperling J (Spigelman CJ agreeing).

62. In the case of appeals to the District Court from Local Courts, reference to some matters of history is necessary. Such appeals find their origin in appeals from Petty Sessions to Quarter Sessions in England which were introduced into New South Wales early in the colony’s history. The history was traced by Griffith CJ in Sweeney v Fitzhardinge,[40] and need not be repeated. Suffice it to say, that, although frequently described as a rehearing, on such appeals the justices were not limited to the evidence before the Petty Sessions, but had to hear the whole matter de novo, that is to say, “to rehear the whole matter, and give their judgment upon all the evidence … brought before them.” [41]

    40. (1906) 4 CLR 716; [1906] HCA 73 (Sweeney); see also Longshaw (at 559 – 561).

    41. Sweeney (at 729), quoting The Queen v Pilgrim (1870) LR 6 QB 89 (at 95) per Lush J; Sperway (at 619).

63. The history recorded in Sweeney did not refer to the Justices Act, although it had commenced operation on 1 August 1905. However, appeals pursuant to Part V, Division 4, s 122 of the Justices Act, by unsuccessful defendants from a conviction or order of a Petty Sessions Justice to a Court of Quarter Sessions, were also de novo hearings. In a hearing de novo, even though called an “appeal”, the Court exercises original jurisdiction. [42] Accordingly, although the unsuccessful defendant is the appellant, the informant or complainant begins and is required to make out again the case against the appellant. [43]

    42. Sperway (at 620); Harris v Caladine (1991) 172 CLR 84 (at 124); [1991] HCA 9 per Dawson J; Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 (at 686) per Kirby P (Campbell and James JJ agreeing).

    43.    Longshaw (at 558, 561).

64. The civil and criminal jurisdiction of the Courts of Quarter Sessions was vested in the District Court of New South Wales upon its establishment in 1973 and the Courts of Quarter Sessions were abolished. [44] Thereafter, the District Court exercised the jurisdiction under the Justices Act hitherto exercised by the Courts of Quarter Sessions and “the nature and incidents of that appellate jurisdiction remained the same.” [45] On a severity appeal under the Justices Act, the District Court judge was to “decide for himself what penalty is to be imposed, not whether that (or those) imposed by the magistrate was (or were) appropriate.”

    44. District Court Act 1973 (NSW), s 166, s 167.

    45.    Longshaw (at 561).

65. In Goldfinch v R,[46] McHugh JA (as his Honour then was) explained:

“An appeal to the District Court under s 122 is not an appeal in the sense that lawyers now use that term. It is an election to have the case retried on new materials. Once a person elects to appeal under s 122 the Crown must prove again its case. It may do so by the introduction of new evidence on the issues of liability and sentence. This exposes the appellant to the chance of an increased sentence. Likewise the appellant is not bound by the way he conducted the case in the Local Court. He may require the Crown to prove the case against him even though he pleaded guilty before the Local Court. Moreover, in an appeal under s 122, the sentence is the sentence of the judge, not that of the magistrate. It is necessary, therefore, that the appellant should be before the court. The District Court judge must also remember that it is his sentence and his responsibility for the sentence. Before a judge confirms a sentence, he must first make certain that the sentence represents his own view of the matter. The confirmation of a sentence is no empty formality.” [47] (Emphasis added)

46. (1987) 30 A Crim R 212 (Goldfinch) (at 218 – 219); see also Reischauer v Knoblanche (1987) 10 NSWLR 40 (at 44) per Kirby P; Budget Nursery (at 87).

47. See also Budget Nursery Pty Ltd v Commissioner of Taxation (1989) 42 A Crim R 81 (Budget Nursery) (at 87) per Hunt J (Grove and Allen JJ agreeing).

66. McHugh JA suggested that s 122 be reformed by abolishing a hearing de novo on new evidence, remarking that “[n]ow that the Local Court comprises highly qualified, professional magistrates, the necessity to retry the case afresh on new evidence seems dubious.” [48]

    48.    Goldfinch (at 219).

67. The Justices Legislation Amendment (Appeals) Act 1998 (NSW) (1998 Amendment Act) substantially amended the Justices Act. The long title to that Act described it as “[a]n Act to amend the Justices Act 1902 in relation to appeals from magistrates’ decisions to the Supreme Court, the District Court and the Land and Environment Court…”. The amendments followed a 1992 review which recommended the reform of the Justices Act to ensure that the procedures followed for criminal proceedings before the Local Courts in New South Wales were relevant to modern needs. [49]

    49.    Justices Legislation Amendment (Appeals) Bill, Second Reading Speech, New South Wales Legislative Council, Parliamentary Debates (Hansard), 17 September 1998. The 1998 Amendment Act commenced on 1 March 1999.

68. The 1998 Amendment Act omitted Part 5 of the Justices Act which had dealt with Appeal and Review, including Division 4 (Appeal to the District Court by defendant). It inserted Part 5 (Appeals to Supreme Court), Part 5A (Appeals to District Court), Division 2 of which dealt with “Appeals by defendants and other persons”, while Division 3 dealt with “Appeals by Crown”, while a new Part 5B dealt with appeals to the Land and Environment Court.

69. In Part 5A, Division 2, s 120(1) provided:

“120 When an appeal can be made by a defendant or other person

(1)    Appeals against convictions, sentences or orders

An appeal against any conviction or order made, or sentence imposed, by a Magistrate in summary proceedings may be made under this Division to the District Court by the person against whom the conviction or order was made or on whom the sentence was imposed.”

70. Section 132 provided:

“132 Appeal to be by way of rehearing

(1)   An appeal is to be by way of rehearing on the transcripts of evidence heard before the Magistrate who made the conviction or order or imposed the sentence appealed against, except as provided by section 133.

(2)   For the purposes of subsection (1), a transcript is taken to be a correct transcript of a true record of evidence if the transcript is certified in the manner prescribed by the regulations.

(3)   On an appeal, new evidence may be given only with the leave of the District Court, if the Court is of the opinion that it is in the interests of justice that the evidence be given.

(4)   A clerk of a Local Court must, at the request of an appellant or respondent, provide one copy of the transcript of evidence of any witness free of charge to the appellant or respondent.” (Emphasis added)

71. In his Second Reading Speech to the Bill which became the 1998 Amendment Act, the Attorney General, the Hon Jeff Shaw, said of the amendments insofar as they concerned appeals from the Local Court to the District Court:

“Currently under the Justices Act a person may appeal to the District Court against any conviction or order of a justice…

The hearing of the appeal may be determined in one of two ways. First, the appeal may be against conviction, which involves a full de novo hearing before the District Court requiring the court to rehear all the available evidence in relation to the matter. [50] Although the depositions of the hearing before the magistrate may be used, there is no compulsion upon the appellant to allow the prosecution to proceed in this way, unless the witness is dead, too ill to travel or cannot be found. The second way in which an appeal may be determined is an appeal limited to a review of the sentence imposed by the Local Court. In sentence appeals the District Court judge hears further submissions from the accused and the prosecution without the need for further evidence to be taken and without the need for a transcript of the Local Court proceedings to be prepared. [51]

It is the intention of this bill only to modify the former method of appeal, that is, an appeal against conviction. The reasons District Court appeals are heard de novo have their origins in appeals from a single justice in petty sessions to a bench of justices in quarter sessions. Because the latter could not review the former, the appeal was heard afresh by the panel of justices. Despite the change from lay justices to legally qualified magistrates, and from sessions of justices to District Court judges, the nature of the appeal jurisdiction has remained the same.”

50.    In Charara (at [12] – [15]), Mason P referred to such appeals as “all grounds” appeals of the nature of those discussed in Sweeney.

51. NSW Attorney General’s Department, Statutory Review of the Crimes (Appeal and Review) Act 2001, (August 2008) (2008 Report) (at [5.8]) referred to the Attorney General’s statement about sentence appeals as “not intended to be understood in a legal technical sense.” The author(s) referred with apparent approval to Gleeson CJ’s description in Longshaw of such an appeal as a hearing de novo.

72. The Second Reading Speech was incorrect. As is apparent, s 132 as introduced by the 1998 Amendment Act dealt with the determination of s 120 appeals against conviction, orders and sentence in the same manner. Further, the effect of s 132 as introduced, with the admission of new evidence only to be permitted with leave, was that all such appeals were to proceed as error based appeals, rather than as appeals de novo as had hitherto been the case. [52]

    52.    See below (at [82] – [83]).

73. The Courts Legislation Amendment Act 1999 (NSW) (1999 Amendment Act) inserted s 131A into Part 5A of the Justices Act which provided:

“Appeals against sentence to be by way of rehearing of evidence

An appeal against the severity of a sentence is to be by way of a rehearing of the evidence heard before the Magistrate who imposed the sentence, and new evidence or evidence in addition to, or in substitution for, the evidence given in relation to the sentence appealed against may be given on appeal.”

74. As can be seen, s 17 of the Appeal and Review Act substantially reflects s 131A, save insofar as the definition of “fresh evidence” in s 3(1) does not include the reference to “new evidence”.

75. The 1999 Amendment Act also omitted s 132(1) and replaced it with the following:

“(1)   An appeal against any conviction or order made by a Magistrate is to be by way of rehearing on the transcripts of evidence heard before the Magistrate, except as provided by section 133.”

76. Section 133 (Circumstances when evidence to be given in person) was also amended to limit its application to s 132 appeals.

77. The Second Reading Speech to the Bill which became the 1999 Amendment Act was silent as to the reasons for the amendments. The most probable explanation for the insertion of s 131A was the legislature’s realisation that the 1998 amendments to the Justices Act had altered the mode of determination of a sentence appeal, as well as conviction appeals, contrary to the intention manifest in the Second Reading Speech to the 1998 Amendment Bill. This inference is supported by the Explanatory Note to the 1999 Amendment Act which stated that s 132 and s 133 of the Justices Act had been amended so as not to apply in respect of appeals against sentence by the person against whom the sentence was imposed. The Note also explained that the purpose of s 131A was that “an appeal against sentence is to be by way of a new hearing, and new evidence may be given.” [53]

    53. The 1999 amendments were referred to in Appendix D to the 2014 New South Wales Law Reform Commission Report 140 on Criminal Appeals (Report 140). However, the text of Report 140 did not refer to the enactment of s 131A, nor the explanation for that provision given in the Explanatory Note.

78. In Gianoutsos, [54] McClellan CJ at CL explained the purpose of s 132 as being to modernise the way appeals from the Local Court were conducted in light of the fact Magistrates were legally qualified and that records of the Local Court were of a higher standard. Be that as it may, the legislature’s clear intention was that sentence appeals should continue to be heard as appeals de novo, as they had been prior to the 1998 Amendment Act.

    54.    (at [28]) (Sully J and Hislop J agreeing).

79. The Justices Act was repealed in 2001 by the Justices Legislation Repeal and Amendment Act2001 (NSW) as part of the amendments which enacted the Crimes (Local Courts Appeal and Review) Act 2001 (NSW). [55] The Attorney General, the Hon Bob Debus, described the Appeal and Review Act as follows:

“[T]he Crimes (Local Courts Appeal and Review) Bill … consolidates and simplifies the criminal appeal and review provisions of the Justices Act 1902. The appeal provisions were substantially amended by the Justices Legislation Amendment (Appeals) Act 1998 and were not as antiquated as other sections. The new bill consolidates the existing law. The bill has provided an opportunity to clarify some matters that have arisen since the 1998 Act and to arrange the sections in a way that makes the relevant law easier to find and understand.” [56] (Emphasis added)

55. The Appeal and Review Act commenced on 7 July 2003: s 2 and Government Gazette No 104 of 27 June 2003, p 5975. The name was amended to its current form in 2006 pursuant to the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW) when additional provisions were inserted, meaning it no longer dealt exclusively with Local Court appeals: s 4; Sch 2 [2]; Report 140 (at [2.42]).

56.    Crimes (Local Courts Appeal and Review) Bill, Second Reading Speech, New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 4 December 2001.

80. At the time the Justices Act was repealed, s 131A governed appeals to the District Court by defendants against sentence, while s 132 and s 133 governed District Court appeals against any conviction or order made by a magistrate.

81. This distinction between the manner in which conviction and sentence appeals were to be determined was continued in s 17 and ss 18 and 19 of the Appeal and Review Act. One of the objects of that Act, according to the Explanatory Note to the Bill, was to “re-enact” Part 5A of the Justices Act. The Explanatory Note also stated that “[t]he re-enacted provisions are substantially the same as those they replace, but the opportunity has been taken to simplify and standardise their form.”

Construction of s 18

82. In Charara, Mason P commented that the reforms effected by the 1998 Amendment Act had “altered the manner in which appeals from the Local Court to the District Court [were] conducted, apparently more significantly than may be generally appreciated.” [57] At the time Charara was decided, s 132 of the Justices Act had been substantially re-enacted in s 18 of the Appeal and Review Act. It is apparent from Mason P’s reasons that on his construction of s 18, an appeal against conviction did not proceed as a de novo hearing but, rather, as an error based appeal. [58]

    57.    (at [14]).

    58. Charara (at [15] – [22]); this view of the analysis in Charara has been confirmed in the authorities referred to in Dyason v Butterworth [2015] NSWCA 52, referred to below (at [89]).

82. Watson, Blackmore and Hosking were of much the same view about the 1998 amendments as Mason P, describing their effect as “far reaching”. [59] They commented that the concept of “rehearing” introduced by Part 5A constituted “a very significant departure from how appeals had previously been conducted” and meant the nature of the appeal was “more limited than before the introduction of the former Pt 5A.” [60]

    59.    Watson, Blackmore and Hosking, Criminal Law NSW (Lawbook Co) (Watson) (at [4.18832]).

    60.    Ibid (at [4.18834]).

83. When first enacted, s 18 of the Appeal and Review Act provided that an appeal against conviction was “to be way of rehearing on the basis of certified transcripts of evidence given in the original Local Court proceedings…”. [61]

    61. As can be seen this was substantially an amalgamation of s 132(1) and (2) of the Justices Act prior to the enactment of the Appeal and Review Act.

84. Mason P’s conclusion in Charara that a s 18 appeal against conviction was an error based appeal was based in part on applying McClellan CJ at CL’s reasoning in Gianoutsos that a s 18 appeal was not a de novo hearing, [62] on the explanation in the Second Reading Speech to the Bill which became the 1998 Amendment Act, to the effect that “the government had … decided to limit appeals to the District Court to a rehearing on the depositions of the Local Court, with provision for fresh evidence to be given by leave”, the fact that prior to the 1998 Amendment Act, although evidence given before the Magistrate could be read on appeal, otherwise the evidence was taken afresh and the authorities holding that a pre-1998 appeal was de novo. [63]

    62.    Gianoutsos (at [24], [36], [39]).

    63.    Charara (at [12] – [17]).

85. His Honour also found support for his analysis in the fact that the “appellate role of the District Court … [was] reinforced by the references to ‘appeal’ in ss 18 and 19 and by the power, conferred by s 20, to determine the appeal against conviction by setting aside the conviction or by dismissing the appeal.” [64]

    64.    Ibid (at [22]).

86. On a different subject, Mason P considered the view expressed in Howie and Johnson, Criminal Practice and Procedure NSW (at [4-s 19.10(g)]) that “the reasons of the magistrate for finding the offence proved are not ‘evidence’ and that the District Court may not have regard to those reasons unless the parties consent to that course.” [65] His Honour disagreed with the latter proposition, saying:

“District Court judges traditionally and understandably refrained from reading the reasons of the Local Court when the appeal was de novo. But the nature of an appeal by way of rehearing on the transcript indicates to me that this approach is no longer justified. The magistrate’s reasons are not part of the ‘certified transcripts of evidence’ referred to in s 18(1) any more than the exhibits tendered in the Local Court. Nevertheless, as I see it, the District Court is impliedly directed to consider the reasons because the stated appellate function could not properly take place without reference to them.” [66]

65.    Ibid (at [23]).

66.    Ibid.

88. Section 18 was amended after Mason P’s observation in Charara and the recommendation in the 2008 Report reviewing the operation of the Appeal and Review Act to exclude the words “certified transcripts of”. [67]

    67. 2008 Report, Recommendation 12; (at [5.12]) the Report described the reference to a “certified” transcript as an “historic vestige” of s 132 of the Justices Act; see also AG v Director of Public Prosecutions [2015] NSWCA 218 (at [97] – [100]) per Simpson JA.

89. The nature of a conviction appeal pursuant to the Appeal and Review Act, s 18 in its current form was summarised in Dyason v Butterworth,[68] as follows:

“[26] A s 18(1) appeal is not an appeal de novo: Charara v R [2006] NSWCCA 244; (2006) 164 A Crim R 39 (at [16] – [24]) per Mason P (Kirby and Hoeben JJ agreeing). Although s 18(1) is no longer precisely in the same form as it was when considered in Charara, the amendment does not detract from Mason P’s reasoning: B v Director of Public Prosecutions [2014] NSWCA 232 (at [39]) per Beazley P (Barrett JA and Tobias AJA agreeing).

[27] The approach to be taken on a s 18(1) rehearing is analogous to that taken to a civil appeal under s 75A of the Supreme Court Act as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at [23]): McKellar v Director of Public Prosecutions [2011] NSWCA 91 (‘McKellar’) (at [8]) per Basten JA (Beazley P and Whealy JA agreeing). The ‘judge is to form his or her judgment of the facts so far as able to do so, recognising the advantage enjoyed by the magistrate who heard and saw the witnesses in the lower court’: Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265 (at [23]) per Beazley JA (Basten and Campbell JJA agreeing). While the Magistrate’s reasons are not part of the transcript of evidence, recourse can be had to them on appeal as otherwise the appellate function cannot properly take place: Charara v R (at [23]).

[28] The powers of the District Court on a s 18(1) rehearing are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 (at [23]) per Gaudron, McHugh, Gummow and Hayne JJ.”

68. Applied in Bandara v Director of Public Prosecutions [2016] NSWCA 140 at [10(3)] per Leeming JA (Simpson and Sackville AJA agreeing); see also AG v Director of Public Prosecutions (NSW) (at [12], [21]) per Basten JA.

Construction of s 17

90. Neither party was able to identify any authority in which s 17 had been construed.

91. The text of ss 17, 18 and 26 of the Appeal and Review Act all use the expressions “appeal” and provide in substantially the same terms for the appeal being by way of a rehearing of the evidence given in the original Local Court proceedings. However, the fact that leave is not required to adduce fresh evidence in a s 17 appeal is significant. As I have explained, a “special power” to receive further evidence subject to a leave requirement such as found in s 18 and s 26 indicates that such appeals, albeit described as a “rehearing”, do not call for a fresh hearing or a hearing de novo, but, rather, are error based. [69]

    69. See [60] above; see also Fairfax Digital Australia & New Zealand Pty Ltd v Ibrahim [2012] NSWCCA 125 (at [6]) per Bathurst JC (Whealy JA agreeing).

92. Conversely, the omission of a leave requirement for the admission of “fresh evidence” indicates, in my view, that the s 17 appeal is a hearing de novo requiring the sentence proceedings consequent upon the conviction to be heard afresh. As I have said, on such an appeal, the Court exercises original jurisdiction and the sentence is that of the District Court judge and must represent his or her “view of the matter”, not whether the Magistrate’s view was appropriate. [70]

    70.    Goldfinch (at 219); Budget Nursery (at 87).

93. The fact that a s 17 severity appeal is of a different character to a conviction appeal is confirmed by the structure of the Appeal and Review Act, with separate provisions dealing with each appeal and their determination. As is apparent from the legislative history, until 1998 all criminal appeals from magistrates to District Court judges were heard de novo. For a brief period between the changes effected by the 1998 Amendment Act and the 1999 Amendment Act, when conviction and sentence appeals were governed by the same provisions, s 120 and s 132 of the Justices Act, such appeals were error based appeals.

94. The change effected by the 1999 amendments introducing s 131A evinced a clear legislative intention to differentiate between the manner in which conviction and sentence appeals were to be determined. That intention was continued in the enactment of the different provisions dealing with each such appeal in the Appeal and Review Act, the latter being intended, as I earlier explained, to re-enact Part 5A of the Justices Act in which s 131A and s 132 were found. The Explanatory Note to the 1999 Amendment Act is capable of assisting in the ascertainment of the meaning of s 17 and makes it clear that a severity appeal is to be a hearing de novo. [71]

    71. Interpretation Act 1987 (NSW), s 34(1)(b).

95. The conclusion that a severity appeal requires a hearing de novo is not gainsaid by the fact that it proceeds “by way of a rehearing of the evidence given in the original Local Court proceedings”, albeit with a right to adduce fresh evidence. That was also the way rehearings de novo pursuant to Justices Act, s 122 proceeded. [72]

    72.    See Reischauer v Knoblanche (at 44) per Kirby P; Longshaw (at 559).

Conclusion

96. The Crown Advocate originally submitted that the evidence from the Local Court proceedings to which s 17 referred was confined to that involved in the sentencing phase of that hearing. However he ultimately accepted, properly in my view that such evidence could extend to such evidence from the conviction phase which was relevant to such matters as culpability and proportionality.

97. In my view, Mason P’s observation in Charara that the Magistrate’s reasons are not part of the “evidence” in a s 18 appeal, [73] applies with equal force to a s 17 appeal, notwithstanding the different nature of each appeal. However, it is apparent that District Court judges have always had regard, at least, to that part of the Magistrate’s reasons as imposed the challenged sentence. If that was not considered, the District Court judge could not afford the appellant procedural fairness by giving a Parker warning if he or she was minded to increase the challenged sentence.

    73.    (at [23]).

98. The consequence of this conclusion is that, in determining the severity appeal, the primary judge was required to have regard to the evidence given in the original Local Court proceedings, and to such other “fresh evidence” as was adduced. As his Honour had to determine issues such as the applicant’s culpability for the crime for which he had been convicted and was to be sentenced afresh, it was essential that his Honour have regard to the evidence given in the conviction phase of the hearing, insofar as it was relevant to the sequence 3 conviction. That was the course Mr Mantaj urged upon his Honour.

99. I do not accept the Crown Advocate’s submission that Mr Mantaj sought the adjournment to tender irrelevant parts of the transcript. To the extent he referred to “an analysis of the entire transcript” as being what s 17 required, it is apparent, in my view, that having regard to the context, Mr Mantaj was referring to the evidence from the conviction hearing relevant to the sequence 3 conviction. This was made plain by his request that once the transcript was obtained, he and the Crown should collaborate to identify the relevant evidence.

100. The Crown opposed that course before the District Court, a course the concessions the Crown Advocate has made on this application reveal to be in error.

101. It was, accordingly, an error, with respect, on the primary judge’s part for him to reject Mr Mantaj’s submission that s 17 meant that such part of the transcript as was relevant evidence for the purpose of the severity appeal could be adduced and that he should be given an adjournment to facilitate the identification and provision of that evidence by way of the Local Court transcript.

102. In such circumstances, in my view, it is apparent that his Honour acted on an incorrect principle as to the manner in which the severity appeal was to be determined such as to overcome the presumption in favour of the correctness of the exercise of his Honour’s discretionary refusal to grant the adjournment Mr Mantaj sought. [74] Rather, refusing the adjournment occasioned a serious injustice as it denied the applicant the opportunity to bring to the severity appeal the matters concerning his culpability he sought to contend ought be the basis of his sentence so that the primary judge could apply the principle of proportionality in the course of determining himself what the sentence should be. [75]

     74. R v Alexandroaia (1995) 81 A Crim R 286 (at 290) per curiam.

     75. Cf Blazevski (at 200); applied in Chin v Teague [2014] NTCA 5 (at [24]) per curiam.

103. I also reject the Crown Advocate’s submission that the severity appeal proceeded as a hearing de novo in circumstances where the primary judge did not have, and by his ruling on the adjournment application, refused the applicant the opportunity to tender, the evidence on the conviction hearing relevant to sequence 3.

104. Having misapprehended the nature of his power pursuant to s 17, his Honour committed a jurisdictional error such that the hearing of the severity appeal was not a hearing according to law.

Law reform

105. The 2008 Report identified an anomaly in the Appeal and Review Act as explained by Berman DCJ in R v Holten [76] in relation to all-grounds appeals. Section 11 of the Appeal and Review Act does not provide for such appeals. The history for this would appear to lie in the 1998 amendments to which I have earlier referred. However the practice in the District Court to which Berman DCJ referred indicates that defendants effectively pursue such appeals, however are forced by the legislative lacunae to seek to “convert” a conviction appeal (if unsuccessful) into a severity appeal, or vice versa. [77]

     76. (2007) 4 DCLR(NSW) 187; [2007] NSWDC 58 (Holten).

     77.    See Holten (at [29] – [30]).

106. These reasons highlight the different ways in which conviction and sentence appeals are to be determined under the Appeal and Review Act. It would be desirable if consideration was given to rationalising the nature of the respective appeals and to provide for all-grounds appeals.

Orders

107. I propose the following orders:

1. An order in the nature of certiorari that the record of the proceedings in the District Court in its criminal jurisdiction in the case Timothy John Engelbrecht v Regina (2013/00386765) be removed into this Court;

2. An order in the nature of certiorari quashing the determination of his Honour Judge Sides of 30 September 2015 dismissing the sentence appeal brought by Timothy John Engelbrecht against the sentencing decision of Magistrate Bartley;

3. Direct that the proceedings be returned to the District Court in its criminal jurisdiction to be heard and determined according to law;

4. Order the Crown to pay the applicant’s costs of the application for judicial review.

108. MACFARLAN JA: This is an application pursuant to s 69 of the Supreme Court Act 1970 (NSW) for judicial review of a District Court decision of 30 September 2015 dismissing an appeal against a sentence imposed on the applicant, Mr Timothy Engelbrecht, by the Local Court on 4 August 2015. Mr Engelbrecht contends that the District Court committed jurisdictional error by acting on a misunderstanding of the effect of s 17 of the Crimes (Appeal and Review) Act 2001 (NSW) (the “CAR Act”) in relation to the material to which it was to have regard on the appeal.

109. Section 17 of the CAR Act is in the following terms:

“17 Appeals against sentence to be by way of rehearing of evidence

An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings.”

110. “[O]riginal Local Court proceedings” are defined in s 3 as follows:

“original Local Court proceedings means the proceedings in the Local Court that involved the making or imposition of a conviction, sentence or order from which the proceedings under this Act arise.”

111. Following an eight day hearing, Magistrate Bartley, on 10 June 2015, found Mr Engelbrecht guilty of an offence of aggravated indecent assault and not guilty of various other charges of aggravated indecent assault. On 4 August 2015 the magistrate sentenced Mr Engelbrecht to 300 hours of Community Service Work, incorporating his reasons for judgment on conviction into his Remarks on Sentence.

112. Mr Engelbrecht then appealed to the District Court pursuant to s 17 of the CAR Act against this sentence. The appeal was heard and determined by Sides DCJ on 30 September 2015. His Honour rejected an adjournment application made on Mr Engelbrecht’s behalf by his solicitor, Mr Mantaj. Mr Mantaj contended, inter alia, that Mr Engelbrecht was prejudiced because the prosecutor had only recently resiled from an agreement with Mr Mantaj that an Agreed Statement of Facts be put before the Court, the prosecutor instead indicating an intention to rely upon the Magistrate’s reasons for judgment given on conviction. Mr Mantaj asserted that he had not had sufficient time to review the evidence adduced at the Local Court conviction hearing and was not therefore in a position to identify what of it might be relevant to be referred to on sentence.

113. Sides DCJ gave the following reasons for rejecting this basis for an adjournment:

“It has been further contended on the appellant’s behalf that, because the goalpost has now been moved, he is prejudiced because he does not have a transcript of the evidence of any of the witnesses given before the magistrate which it is argued is the material referred to in s 17 of the Crimes (Appeal and Review) Act. The Court does not accept that submission. The evidence referred to there is the evidence given at the sentence hearing and, in an appeal against severity of a sentence imposed after a conviction recorded following a hearing, it is legitimate for the magistrate’s reasons at the end of the hearing to determine guilt to be tendered so that the factual matrix upon which the … appeal [is] to proceed can be established.”

114. It is evident from this reasoning that the judge took the view that on an appeal to the District Court against sentence “the evidence given in the original Local Court proceedings”, as referred to in s 17 of the CAR Act, was a reference only to evidence specifically tendered at the sentencing hearing and did not extend to evidence given at the earlier hearing at which the offender’s guilt was determined. In my opinion, this view was erroneous.

115. The conviction and sentence of offenders is dealt with in one set of proceedings. There is not one proceeding for the determination of guilt or innocence and another for the determination of sentence. Initiation of proceedings by the filing of an indictment or, as in the present case, the filing of a Court Attendance Notice leads, if a conviction occurs, not only to that conviction but also to the sentencing of the offender. Commonly, and desirably, the same judge or magistrate presides at both the conviction and sentencing hearings, if separate hearings are held. In sentencing, the judicial officer is able to have regard to the evidence given when guilt was determined without the need for that evidence to be adduced again.

116. In the case of a jury trial, it will often be necessary for the judge, in reliance upon the evidence given at the trial, to make factual findings on “matters of potential importance to an assessment of the offender’s culpability” which are not implicit in the jury’s verdict and not inconsistent with it (Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [4]-[20]; GAS v The Queen (2004) 217 CLR 198; [2004] HCA 22 at [30]). There is no need to re-tender evidence given at the trial because it is already before the judge if the judge presided at the trial. If the sentencing judge is different to the trial judge, the parties are entitled to refer to the trial evidence. Whether, as a matter of convenience, the transcript of that evidence, or part of it, is marked as an exhibit is of no significance.

117. The position is the same where a judge, and not a jury, has determined guilt. Considerations of common sense and case management may lead to the parties agreeing to limit the conviction transcript and exhibits provided to the sentencing judge, or to obviate the need for their use at all by providing an Agreed Statement of Facts or simply relying upon the judge’s reasons for conviction. Whilst those reasons are not, in the words of s 17 of the CAR Act, “evidence given in the original Local Court proceedings”, the section impliedly authorises their use as “the stated appellate function could not properly take place without reference to them” (Charara v The Queen (2006) 164 A Crim R 39; [2006] NSWCCA 244 at [23] referring to a presently analogous statutory provision).

114. For these reasons, Mr Engelbrecht had a right to refer the District Court judge to any evidence given at the conviction hearing that was relevant to his sentencing. If the facts had justified it, the District Court judge could have rejected the adjournment application on the basis that Mr Engelbrecht and his advisors had already had sufficient opportunity to consider which parts of the transcript, if any, they wished to rely upon. However the application was rejected upon the basis of the Court’s misunderstanding that the evidence given at the conviction hearing was not evidence to which Mr Engelbrecht was entitled to refer because it was not evidence specifically tendered at the sentence hearing. This was a misunderstanding by the District Court judge of his powers and duties in connection with the disposition of the appeal and for that reason constituted jurisdictional error rendering his decision reviewable by this Court (Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 at [11] and [12]; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1).

115. In conclusion three further points require mention.

116. The respondent DPP contended that the application that Mr Mantaj made in the District Court was that the whole of the Local Court conviction evidence be put before the District Court. In theory at least, if not in hard copy form, the whole of that evidence was already before the Local Court magistrate when he was sentencing but common sense and propriety dictated that the practitioners only seek to refer to such of that evidence as they asserted to be relevant. Consistently with this, on the District Court appeal Mr Mantaj only sought the opportunity to identify and refer to that part of the Local Court conviction transcript that he considered relevant. This is evident from his references to seeking to “tender a lot more than just the decision of” the magistrate (p 1), seeking “to sit down with the Crown and identify the relevant evidence” (p 5), to the Court needing to consider “at least as much of the transcript of the Local Court hearing as the parties wished to refer the Court to” (p 6) and to him tendering “the parts of the transcript which I propose to rely upon” (p 6). In light of these clear statements, his statement, apparently interrupted by the judge before it was completed, that the appeal “ought to proceed on the basis of an analysis of the entire transcript” should not be taken as indicating otherwise. A literal reading of that statement would be inconsistent with his other statements and with the tenor of his application to be afforded time to examine the transcript to identify relevant parts.

117. Secondly, after the adjournment application was refused, the District Court judge allowed Mr Mantaj to tender the transcript of certain character evidence given at the conviction hearing in the Local Court. That Mr Mantaj was able to tender this evidence did not indicate that, contrary to his assertion to the Court, he had in fact had the opportunity to consider the whole of the transcript. Nor did it indicate that the judge’s view had been, all along, that the evidence from the conviction hearing could be used at the sentence hearing. Rather, it was an implicit qualification to his earlier expressed view, made when limited evidence was tendered without objection.

118. Thirdly, contrary to the respondent’s contention, Mr Engelbrecht is able on the present application to this Court to challenge the erroneous basis upon which his adjournment application was refused. The error in that respect occurred in the course of his Honour making an interlocutory decision that “affected the final result”, that is, led to the dismissal of the appeal on the same day (see by analogy Gerlach v Clifton Bricks Pty Limited (2002) 209 CLR 478; [2002] HCA 22 at [6]; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 247; [2011] HCA 48 at [78]).

119. For these reasons, the orders proposed by McColl JA should be made.

120. LEEMING JA: I have had the advantage of reading the reasons for judgment of McColl JA in draft, which allows me to pass over much of the factual and procedural background, and to state my reasons concisely.

Background

125. The offender, Mr Timothy John Engelbrecht, was found guilty of one offence of aggravated indecency, contrary to s 61O(1A) of the Crimes Act 1900 (NSW). He was found not guilty of four other charges which were tried at the same time in the Local Court. A critical difference between the offences with which the offender was charged was that the conduct giving rise to the count on which he was found guilty was observed by an independent witness, Mr Dowling, who was also tasked with caring for intellectually impaired young men (as was the offender), and that witness was not relevantly challenged in cross-examination.

126. The conclusions expressed by the Magistrate were as follows:

“Although Mr Dowling’s independent evidence essentially was unchallenged, I exercise caution in evaluating it.

I bear in mind the accused’s clean criminal record and prior excellent character.

However, for all of the reasons given in my earlier analysis of Mr Engelbrecht’s evidence in respect of sequence 3, I find that it utterly lacks credibility and I reject it.

I apply R v Barrass [2005] NSWCCA 131 and adopt the reasoning and findings in my judgment recorded on 12 September 2014 at pp 2-5.

I find beyond reasonable doubt that Mr Ferguson was in Mr Engelbrecht’s direct line of sight when Mr Ferguson was in the kitchen at the time of the sequence 3 incident.

I find beyond reasonable doubt that Mr Engelbrecht intended Mr Ferguson to see him walking with his genitals exposed.

I accept beyond reasonable doubt Mr Dowling’s unchallenged evidence to the effect that, and I infer from it that, Mr Ferguson saw Mr Engelbrecht with his genitals exposed and drew that to Mr Dowling’s attention.

I FIND THE SEQUENCE 3 OFFENCE PROVED BEYOND REASONABLE DOUBT.”

127. There was no appeal against conviction. The maximum penalty which could have been imposed was imprisonment for two years. The Crown did not seek a custodial order. A sentence of 300 hours community service was imposed.

128. The sentencing Magistrate expressly incorporated his earlier judgment on guilt into his sentencing judgment, thereby including the passage reproduced above. His Honour considered that he was unable to find that the offence was committed for sexual gratification, and that the offender had a clean criminal record and was of prior excellent character. However, he concluded from a presentence report that there remained a significant risk of reoffending, and noted the absence of any genuine contrition or remorse. His Honour gave less weight to prior excellent character and the clean criminal record than would otherwise be the case, because of his position of trust. His Honour also gave substantial weight to general deterrence for the same reason.

129. An appeal against severity was filed on the same day, invoking the right conferred by s 17 of the Crimes (Appeal and Review) Act 2001 (NSW). The effect of filing that appeal was to stay the operation of the sentence until the “final determination” of that appeal: s 63 of that Act. The notice of appeal stated, “I am appealing the above sentence BECAUSE THE PENALTY IS TOO SEVERE”. No grounds were specified.

130. McColl JA has summarised the submissions made in support of the application for an adjournment when the appeal was listed for hearing. I would add the following.

131. First, the Crown said, repeatedly and without opposition from Mr Mantaj, that the facts as to which Mr Mantaj claimed there had been agreement amounted (in relation to the only relevant offence) to a single paragraph. The document was not itself in evidence, either in the court below or in this Court.

132. Secondly, Mr Mantaj said initially that the matter “ought to proceed on the basis of an analysis of the entire transcript”, and rejected what was immediately put to him, that the reference in s 17 was a reference to the evidence in the sentencing proceeding.

133. Thirdly, Mr Mantaj then accepted that the evidence on which he submitted the Court was bound to conduct the appeal included evidence relating to matters on which the offender was found not guilty. He then acknowledged that much would be irrelevant, and that he would seek to agree with the Crown aspects which were irrelevant.

134. Fourthly, Mr Mantaj concluded his submissions by saying that the Court was required to consider “at least as much of the transcript of the Local Court hearing as the parties wish to refer the Court to”. He accepted that he had no authority for the submission.

135. As McColl JA has recorded, the adjournment was refused. The appeal proceeded. Mr Mantaj was permitted to tender the remarks on sentence and parts of the evidence from the eight day trial. The appeal against sentence was dismissed.

136. The offender invoked this Court’s supervisory jurisdiction. The sole ground (it is wrongly described in the summons as a ground of appeal) is:

“That the presiding Judge erred in that, contrary to the provisions of section 17 of the Crimes (Appeal and Review) Act 2001, his Honour refused to have regard to the transcript of the evidence given in the Local Court proceeding in determining the appeal over which he was presiding, constituting jurisdictional error.”

The construction of s 17 of the Crimes (Appeal and Review) Act

137. McColl JA has reproduced ss 17 and 18 of the Crimes (Appeal and Review) Act 2001 and the definitions of “fresh evidence” and “original Local Court proceedings”. Neither party suggested there was any authority on point.

138. Although I can see some force in the submission that “the evidence given in the original Local Court proceedings” in s 17 is a reference to the evidence given leading to both conviction and sentence, I do not consider, on balance, that that is the proper construction of s 17.

139. Sections 17 and 18 are to be read as a whole and harmoniously. So too must the definitions of “fresh evidence” and “original Local Court proceedings”: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-[70].

140. The concluding words “from which the proceedings under this Act arise” in the definition of “original Local Court proceedings” and the cognate words “proceedings from which the appeal proceedings have arisen” in the definition of “fresh evidence” are likewise to be read harmoniously. They naturally refer to the various rights of appeal, including under ss 17 and 18. The exercise of those rights gives rise to separate proceedings, variously described as “proceedings under this Act” and “appeal proceedings”.

141. The difference between the power to adduce fresh evidence in an appeal under s 17 and in an appeal under s 18 is that s 17 provides that “fresh evidence may be given in the appeal proceedings” while s 18 imposes a precondition, namely, that the Court is satisfied that fresh evidence is in the interests of justice.

142. It is quite plain that the “evidence given in the original Local Court proceedings” for the purposes of a conviction appeal in s 18 is only the evidence which involved the making of the conviction. (Either there will have been no sentencing hearing, or, if one has occurred, it will, at least ordinarily, be irrelevant to the determination of the conviction appeal.)

143. The rules of evidence will apply to the proceedings leading to conviction. However, at least ordinarily, they will not apply to proceedings which relate to sentencing: Evidence Act 1995 (NSW), subss 4(1)(d) and (2). However, ss 17 and 18 proceed on the basis that there will be a “rehearing” of the “evidence” before the Magistrate, and so I put to one side the fact that, as Spigelman CJ observed, “the process of adducing evidence and making findings for the purposes of sentencing is quite distinct from what is required for purposes of determining criminal liability”: Gilham v R (2007) 73 NSWLR 308; [2007] NSWCCA 323 at [66].

144. Further, the words “evidence given in the original Local Court proceedings” which are common to ss 17 and 18 are to be read with the defined term “original Local Court proceedings”. I see no reason to displace the ordinary approach whereby the Court is to “read the words of the definition into the substantive enactment and then construe the substantive enactment – in its extended or confined sense – in its context and bearing in mind its purpose and the mischief that it was designed to overcome”: Kelly v The Queen (2004) 218 CLR 216; [2004] HCA 12 at [103]. Thus, applying the definition to the defined term in each of ss 18 and 17 and bearing in mind that “making” is apt to apply in an appeal against conviction, while “imposition” will apply in an appeal against sentence:

1. in s 18 the words “evidence given in the original Local Court proceedings” are to be read as meaning “evidence given in the proceedings in the Local Court that involved the making of the conviction from which the proceedings under this Act arise”, while

2. in s 17 the words “evidence given in the original Local Court proceedings” are to be read as meaning “evidence given in the proceedings in the Local Court that involved the imposition of the sentence from which the proceedings under this Act arise”.

145. Read in that way, which I regard to be their ordinary grammatical meaning, the two statutory concepts of evidence in proceedings which involved the making of a conviction and evidence in proceedings which involved the imposition of a sentence require a distinction to be drawn between the evidence leading to conviction, and the evidence leading to sentence. The latter does not include the former.

146. That construction is supported by the less constrained power to adduce fresh evidence in an appeal under s 17. As was common ground at the hearing, some of the evidence given prior to conviction may be relevant to an appeal against sentence. Of course, it is not possible in such an appeal to traverse any findings which are essential to the finding of guilt. But there may be many matters going to culpability which are not determined by the finding of guilt. Examples may be found in Gleeson CJ’s judgment in Cheung v The Queen (2001) 209 CLR 1; [2001] HCA 67 at [9]-[10].

147. That construction is also, in my view, supported by the legislative history and the extrinsic materials. As McColl JA has explained, for many decades the Justices Act 1902 (NSW) made provision for an appeal to the Courts of Quarter Sessions, later to the District Court. Until 1999, there was a single provision applicable to appeals against conviction and appeals against sentence. By the Courts Legislation Amendment Act 1999 (NSW), that provision was altered, and a new section 131A inserted into the Justices Act. New s 131A provided:

“131A Appeals against sentence to be by way of rehearing of evidence

An appeal against the severity of a sentence is to be by way of a rehearing of the evidence heard before the Magistrate who imposed the sentence, and new evidence or evidence in addition to, or in substitution for, the evidence given in relation to the sentence appealed against may be given on appeal.”

148. Plainly enough, s 131A preserved the structure of s 17 of the current legislation insofar as the same provision both describes the nature of the right of appeal and confers a power to adduce fresh evidence. However, s 131A is drafted a little differently. Two terms have been used to describe the same thing. I think it must be concluded that the words “the evidence heard before the Magistrate who imposed the sentence” mean the same as “the evidence given in relation to the sentence appealed against”. Ordinarily, of course, a difference in language – particularly in the same section – would suggest a difference in legal meaning. However, the connecting words “in addition to” and “in substitution for” compel the conclusion that both terms refer to the same evidence.

149. Further, “the evidence given in relation to the sentence appealed against” is in my view naturally read as a reference only to the evidence given after conviction. The words “in relation to the sentence appealed against” stand in contrast with the unqualified description of the evidence in s 132(1) (as amended) for an appeal against conviction. Read naturally, those words “in relation to the sentence appealed against” do not include evidence given to secure the conviction for which the offender was sentenced.

150. In short, the amendments made in 1999 were slightly clearer in identifying the evidence on which an appeal against sentence would proceed than the current provisions. Given that the Crimes (Appeal and Review) Act 2001 was expressed to be legislation which consolidates and simplifies existing provisions, regard may be had to the former legislation.

Conclusion

151. The premise of ss 17 and 18 is that a conviction has been entered, or a sentence imposed, in the Local Court following a summary procedure. Unlike a guilty verdict from a jury, a finding of guilt will not be “inscrutable”. It will instead be accompanied by findings and reasons for those findings. That is what occurred in the present case. It is not necessary to say anything further as to whether principles developed in relation to sentencing appeals following a jury’s verdict of guilty apply in such cases.

152. It suffices to conclude that the single proposition of law presented in this proceeding is resolved adversely to the offender. A severity appeal under s 17 is based on the evidence before the sentencing Magistrate, plus such other “fresh evidence” as may be relevant. The reasons of the primary judge do not disclose error, still less jurisdictional error. The primary judge made no error in rejecting a submission founded on the text of s 17. To the extent that the offender sought to tender evidence from the eight day trial on his severity appeal, he was permitted to do so. I should not be taken to be expressing any view about the nature of the power to admit fresh evidence contained in s 17, something which again was not argued in this Court.

Supplementary matters

153. I would add the following three supplementary matters. First, the basis of the adjournment sought before Sides DCJ was expressed to be so that the entirety of the evidence at trial could be tendered. It is true that Mr Mantaj during the course of his submissions advanced a lesser proposition, namely than only a part of the transcript should be tendered. However, in the proceedings in this Court’s original jurisdiction, Mr Mantaj read an affidavit, in which he swore that the following proposition was true and correct to the best of his recollection:

“The basis of this application was to allow the Applicant to place before the Court the transcript of the evidence given by the various witnesses in the Local Court hearing. The Applicant’s submission was (and continues to be) that by virtue of s 17 [of the] Act, the court hearing the severity appeal was obliged to have regard to that evidence in determining the appeal.”

154. I proceed on the basis that the affidavit was sworn by an experienced solicitor seriously and solemnly. In those circumstances, not lightly would I treat the claim in this Court as being different from what was addressed by Mr Mantaj’s sworn evidence.

155. Secondly, even if the question were whether some part of the evidence over eight days be tendered, that part was never identified. Even during the hearing in this Court, Mr Mantaj was unable to identify with any precision what he would have sought to tender on the appeal. Indeed during the hearing, Mr Mantaj submitted that he wished to tender some of the exhibits tendered before the Magistrate, something which had never been articulated either in the District Court, or in his summons or submissions in this Court.

156. Thirdly, during the course of the hearing, it became clear that Mr Mantaj sought to depart from the ground formulated in his summons, and in his affidavit and submissions. The Crown opposed any reliance upon a complaint that there had been a denial of procedural fairness, on the basis that it was unpleaded, not contained in the submissions, and different evidence would have been obtained had that ground been advanced. Mr Mantaj made no response to that opposition. I accept the Crown’s submission.

Orders

157. For those reasons, I would dismiss the summons. Costs should follow the event.

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Endnotes

Amendments

08 November 2016 - Catchwords updated

24 October 2016 - Amendment to name of counsel (Acting Crown Advocate)

Decision last updated: 08 November 2016