Jamal v Director of Public Prosecutions (NSW)

[2019] NSWCA 121

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Jamal v Director of Public Prosecutions (NSW) [2019] NSWCA 121

Hearing dates:

1 May 2019

Decision date:

27 May 2019

Before:

Gleeson JA at [1]
White JA at [89]
Emmett AJA at [90]

Decision:

(1) Pursuant to UCPR, r 59.10(2), extend the time for the applicant to file the summons in this proceeding to 10 July 2018.

 

(2)   The amended summons filed 2 October 2018 be dismissed.

 (3)   The applicant to pay the costs of the first respondent, the Director of Public Prosecutions (NSW), of the proceedings in this Court.

Catchwords:

ADMINISTRATIVE LAW – judicial review – jurisdictional error – procedural fairness – District Court appeal – conviction and sentence –apprehended violence order – whether District Court committed jurisdictional error

CIVIL PROCEDURE – Court of Appeal – extension of time to file summons under UCPR r 59.10(2)

Legislation Cited:

Crimes Act 1900 (NSW), ss 113, 195
Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 12, 17, 18, 19
Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4(a), 19, 84
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 12
District Court Act 1973 (NSW), s 176
Evidence Act 1995 (NSW), s 141
Supreme Court Act 1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1)

Cases Cited:

AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218
Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2
Concrete Pty Ltd v Parramatta Design and Development Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
Director of Public Prosecutions (NSW) v Burns [2010] NSWCA 265; (2010) 207 A Crim R 362
Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088
Dyason v Butterworth [2015] NSWCA 52
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2005] HCA 63
Firth v Director of Public Prosecutions [2018] NSWCA 78
Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115
Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245
Ghaderi v Director of Public Prosecutions (NSW) [2018] NSWCA 119
Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1
Lazarus v Independent Commission Against Corruption [2019] NSWCA 100
Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48
Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Re JRL; ex parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39
Re Refugee Review Tribunal; Ex parte HB (2001) 179 ALR 513; [2001] HCA 34
Rodger v De Gelder [2015] NSWCA 211
Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88
Templeton (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 335
Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8
WO v Director of Public Prosecutions (NSW) [2009] NSWCA 370

Category:

Principal judgment

Parties:

Jon Jamal (Applicant)
Director of Public Prosecutions (NSW) (First Respondent)
District Court of New South Wales (Second Respondent)

Representation:

Counsel:
Jon Jamal (Applicant in person)
M W Anderson (First Respondent)

  Solicitors:
C Hyland, Solicitor for Public Prosecutions (First Respondent)

File Number(s):

2018/211692

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Civil

Citation:

District Court of New South Wales, Culver DCJ, 29 March 2018, unreported

Date of Decision:

29 March 2018

Before:

Culver DCJ

File Number(s):

2017/42621

Judgment

1. GLEESON JA: On 16 August 2017, Mr Jon Jamal was convicted in the Local Court at Parramatta of two property offences, both of which were alleged to have occurred between 1.10am and 1.40am on 20 December 2016 at Baulkham Hills.

2. Mr Jamal had pleaded guilty to the offence of break and enter dwelling house with the intent to commit an indictable offence, by attempting to break and enter a property at Baulkham Hills owned by Mr Marcos Zaki with intent to damage the property of Mr Zaki, contrary to s 113(1) of the Crimes Act 1900 (NSW). He pleaded not guilty to the offence of destroying or damaging property, being a Subaru Outback motor vehicle owned by Mr Zaki, contrary to s 195(1)(a) of the Crimes Act. He was legally represented in the Local Court.

3. The magistrate imposed the following sentences:

1. on the break and enter offence, a term of imprisonment of 7 months, suspended from 16 August 2017 on condition that he enter into a good behaviour bond for a term of 7 months under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

2. on the destroying or damaging offence, a good behaviour bond for a period of 2 years to commence on 16 August 2017 under s 9 of the Crimes (Sentencing Procedure) Act, on condition that he attend for treatment with a psychologist, Mr Robert Matek, or other psychologist in that practice.

4. Consequent upon the convictions, the Local Court made a final apprehended personal violence order (AVO) against Mr Jamal for 2 years commencing from 16 August 2017, the protected person being Mr Marcos Zaki who lived at the Baulkham Hills property where the offences occurred: s 19(1), Crimes (Domestic and Personal Violence) Act 2007 (NSW). That order was made by consent and without admissions.

5. Mr Jamal appealed to the District Court against the convictions and sentences and against the AVO. On 29 March 2018, her Honour Judge Culver declined to allow Mr Jamal to withdraw his guilty plea to the break and enter offence, dismissed Mr Jamal’s conviction and severity of sentence appeals, and also dismissed his appeal against the AVO.

6. By his amended summons in this Court, Mr Jamal seeks relief by way of judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) for orders in the nature of certiorari quashing the judgments of Culver DCJ and consequential relief. The first respondent, the Director of Public Prosecutions (NSW), opposed the relief sought.

7. Mr Jamal requires an extension of the three-month period allowed by the Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 59.10(1) to commence proceedings for judicial review. The short delay in filing the summons within time arose in circumstances where Mr Jamal had lodged, but not filed, a summons and applied for a waiver of payment of the filing fees, which was initially unsuccessful. There is no suggestion of any prejudice to the first respondent, and it is in the interests of justice that an extension be granted.

The basis of Mr Jamal’s application

8. There is no right of appeal from a decision of the District Court on appeal from the Local Court in a criminal matter. Further, any exercise of the supervisory jurisdiction of this Court is constrained by s 176 of the District Court Act 1973 (NSW), so that it is not sufficient to identify an error of law on the face of the record as a basis for quashing or setting aside an order of the District Court. For review under s 69 of the Supreme Court Act it is necessary for an applicant to demonstrate jurisdictional error: Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 at [10] (Basten, Giles and McColl JJA agreeing); Templeton (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 335 at [3] (Basten, Meagher JJA agreeing) and [15] (Macfarlan JA).

9. In Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1, the plurality (Kiefel CJ, Gageler and Keane JJ) explained at [24] (citations omitted):

To describe a decision as “involving jurisdictional error” is to describe that decision as having been made outside jurisdiction. …. a decision made outside jurisdiction is a decision in fact which is properly to be regarded for the purposes of the law pursuant to which it was purported to be made as “no decision at all”. To that extent, in traditional parlance, the decision is “invalid” or “void”.

10. In Lazarus v Independent Commission Against Corruption [2019] NSWCA 100 at [4] Meagher JA (Basten JA and Sackville AJA agreeing) explained:

… there will be jurisdictional error if the District Court in exercising criminal appellate jurisdiction “[misconstrues] the relevant statute thereby misconceiving the nature of the function which [it] is performing or the extent of its powers in the circumstances of the particular case”: Kirk v Industrial Court of New South Wales(2010) 239 CLR 531; [2010] HCA 1 at [72].

11. One recognised form of jurisdictional error is a failure to accord procedural fairness during a hearing: Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [60]. Such a failure is susceptible to correction as jurisdictional error: Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513 at [10].

12. On the other hand, mere error of law when made by a court is not jurisdictional error: see for example, Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245 at [4] and [72]; and mere error of fact is, likewise, not jurisdictional error: Ghaderi v Director of Public Prosecutions (NSW) [2018] NSWCA 119 at [11] (McColl JA, Leeming JA and Simpson AJA).

Relevant legislative provisions

13. 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): Crimes (Appeal and Review) Act 2001 (NSW), s 11(1). However, there is no right of appeal, except by leave of the District Court, in respect of a conviction following a guilty plea: ss 11(1A) and 12(1).

14. An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings: s 18(1). That is subject to the exception provided by s 19 which permits the Court to direct a person to attend and give evidence in proceedings on an appeal against conviction in certain circumstances, which are not presently relevant: s 18(1). 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: s 18(2).

15. The standard of proof of the prosecution case on a rehearing before the District Court is proof beyond reasonable doubt: Evidence Act 1995 (NSW), s 141(1).

16. An appeal against sentence is also to be by way of rehearing of the evidence given in the Local Court proceedings, although fresh evidence may be given on the appeal: Crimes (Appeal and Review) Act, s 17.

17. A defendant may appeal to the District Court against the making of an AVO by the Local Court: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 84(2)(a). However there is no right of appeal, except by leave of the District Court, against an AVO that was made with the consent of the defendant: s 84(2)(a). The Crimes (Appeal and Review) Act applies to an application or appeal arising under s 84 of the Crimes (Domestic and Personal Violence) Act: s 84(4).

18. The standard of proof for the making of an AVO is satisfaction on the balance of probabilities. Section 19(1) of the Crimes (Domestic and Personal Violence) Act provides:

(1)   A court may, on application, make an apprehended personal violence order if it is satisfied on the balance of probabilities that a person has reasonable grounds to fear and in fact fears:

(a)   the commission by the other person of a personal violence offence against the person, or

(b)   the engagement of the other person in conduct in which the other person:

(i)   intimidates the person, or

(ii)   stalks the person,

being conduct that, in the opinion of the court, is sufficient to warrant the making of the order.

19. A “personal violence order”, as referred to in s 19(1)(a), is defined to include an offence under s 195 of the Crimes Act – destroying or damaging property: s 4(a), Crimes (Domestic and Personal Violence) Act.

Proceedings in the District Court

20. Mr Jamal filed a notice of appeal in the District Court on 29 August 2017 against the convictions and severity of sentences and a separate notice of appeal on 22 September 2017 against the AVO. On 12 October 2017, Mr Jamal also filed a motion and an affidavit seeking, in effect, to traverse his plea of guilty to the break and enter charge.

21. No procedural objection was taken by the prosecutor before the District Court that the appeal against the conviction on the break and enter offence and the appeal against the making of the AVO both required leave: see [13] and [17] above.

22. The appeals to the District Court were listed for hearing before Culver DCJ on 13 February 2018. The Crown expressly stated that it did not take any issue with the District Court dealing with the application to withdraw the plea of guilty to the break and enter charge and to withdraw the consent to the making of the AVO, in the form of the appeals filed by Mr Jamal. Mr Jamal appeared unrepresented with the assistance of an interpreter. He sought and obtained an adjournment to obtain legal advice. At the adjourned hearing on 29 March 2018, Mr Jamal again appeared unrepresented with the assistance of an interpreter.

23. The evidence before the primary judge included:

1. The court attendance notices in respect of the two charges;

2. The transcript of the Local Court proceeding on 16 August 2017;

3. The exhibits tendered in the Local Court which included:

1. statements of the investigating police: Constable Mitchell Price, Scene of Crime Officer, Amie Allotta, and Constable Katherine MacKenzie,

2. CCTV footage from the Baulkham Hills property on 20 December 2016;

3. still images from the CCTV footage;

4. ERISP of Mr Jamal dated 9 February 2017;

5. Parts invoice quotation from Trivett Subaru Parramatta for $906.25.

4. Additional material tendered by Mr Jamal comprising evidence obtained on subpoena from NRMA and Suttons (Ex 2) (the complainant’s insurer and the car mechanic from which the complainant obtained a quote respectively) and the COPS entry in respect of the incident (Ex 3).

Record of interview – 9 February 2016

24. Following his arrest on 9 February 2016, Mr Jamal participated in a record of interview. When asked to comment on the CCTV footage of the incident at the Baulkham Hills property, which he had been shown immediately before his interview, Mr Jamal said that he thought it came from a CCTV camera located at a church in Rhodes, and denied ever having been at the Baulkham Hills property.

25. When asked to agree what he was shown in the footage, Mr Jamal replied:

I believe one or two I see my face, yes me. And that’s my uniform. That’s why.

26. When asked what he was doing in the footage, Mr Jamal responded saying, among other things:

“I think this Photoshop video …”.

27. Mr Jamal agreed that he was the person shown in a number of still photographs taken from the CCTV footage, except for the last photograph which he said was not clear, whilst maintaining his denial that he had ever attended the Baulkham Hills property and his belief that the photographs were taken from footage captured at the church.

Evidence before the Local Court – 16 August 2017

28. Constable Price gave evidence that he attended the Baulkham Hills property on 22 December 2016 at about 2pm and spoke with the owner, Mr Zaki, who showed him the CCTV footage captured on two different cameras located on the property, one at the front of the property and the other at the rear. Constable Price described the CCTV footage as showing: a man entering the property at around 1.10am on 20 December 2016, after which:

… the man attempts to open the front door and then proceeds to go around the back and attempt to open the rear door; the man then returns to the front of the property and attempts to open the front window with a hand-held tool. The man then appears to give up trying to gain entry into the window and cracking noises can be heard as the man nears the vehicle belonging to Mr Zaki which was parked on the driveway.

29. Constable Price agreed that there was no fingerprint match between Mr Jamal’s fingerprints and the fingerprints obtained at the scene. In cross-examination, Constable Price gave evidence that the two side view mirrors had been snapped and removed and taken out and the rear windscreen wiper, whilst still attached to the car, was snapped.

30. Senior Constable Allotta gave evidence that she attended the Baulkham Hills property at about 12.25pm on 22 December 2016, spoke with the complainant, Mr Zaki, and took photographs of the property and the Subaru vehicle. She said that she observed damage to the two flyscreens attached to the front-facing lounge room windows, damage to both side mirrors of the Subaru vehicle, in particular, they did not contain any mirror panels in the mirror units and the wiring was exposed. In addition, the rear wiper blade was cracked.

31. The statement of Senior Constable MacKenzie exhibited the photographs taken from the CCTV footage which were shown to Mr Jamal during his record of interview.

32. The complainant, Mr Zaki, gave evidence that he and his family were away on holidays between 9 December and 22 December 2016 and on their return, he was informed by his father-in-law that his house had been broken into. Mr Zaki then reviewed the CCTV footage and described what he saw recorded at around 1.13am-1.15am on 20 December 2016. It is unnecessary to summarise this evidence in view of the summary given by Constable Price.

33. Mr Zaki said that initially he did not recognise the person in the CCTV footage and then he looked closer and he thought, “I think I know this person”. After speaking with some friends who confirmed that he had the right person in mind, Mr Zaki said he identified the person as Mr Jamal who was known to him by a different name, as a person who had attended the Coptic Church at Rhodes where his father was the priest.

34. Mr Zaki gave evidence that he initially obtained a quote for the repairs to the Subaru for $900 and had recently obtained a quote from Suttons for $2,500. He explained the difference was that the original quote was only to replace the glass, whereas the more recent quote was to replace the whole mirror given that the connectors and the wires were missing or torn. Mr Zaki rejected the proposition put by the legal representative for Mr Jamal that he had caused further damage to the motor vehicle when attempting to repair the damaged side view mirrors.

35. Mr Jamal gave evidence in his defence. In his evidence-in-chief, when taken to the incident on 20 December 2016 at 1.10am he immediately responded through the interpreter, “I don’t remember anything”. After being shown photographs taken from the CCTV footage, he maintained, “I don’t remember anything”. When taken to extracts from his record of interview, Mr Jamal responded:

Yes, I, that’s me, I’m telling you that’s a me, yes. I can’t refuse it. That’s my photos I can’t say no.

36. When asked to explain why he was in the CCTV footage, Mr Jamal responded:

I think this video is duplicated.

37. Mr Jamal maintained that he had never been to the Baulkham Hills property and had not encountered a vehicle belonging to Mr Zaki. However, he also gave evidence that he did not recall what happened on the night.

Decisions of primary judge

38. The primary judge gave three ex tempore judgments on 29 March 2018: the first dealt with the application to withdraw the guilty plea to the attempt break and enter charge; the second dealt with the appeal against conviction on the destroying or damaging property offence; and the third dealt with the appeal against the AVO. In addition, the transcript of the hearing on 29 March 2018 records her Honour’s findings and decision on the severity appeals.

Application to withdraw guilty plea – attempt to break and enter

39. Her Honour refused the application to withdraw the guilty plea, giving the following reasons. First, her Honour was not satisfied that the plea of guilty entered by Mr Jamal’s lawyer in the Local Court was not an acknowledgment by Mr Jamal of his guilt to this charge made freely or voluntarily.

39. Second, her Honour considered that the transcript in the Local Court immediately following the entry of the plea of guilty showed that the Mr Jamal’s answers were responsive to the questions and did not reveal any obvious flaw in his understanding such as would affect the validity of his guilty plea.

40. Third, her Honour was satisfied that Mr Jamal’s lawyer in the Local Court did not treat Mr Jamal’s matters in a global fashion and that there was some discernment and distinction formed on behalf of Mr Jamal in respect of the matters with which he was charged.

Conviction appeal – destroying or damaging property

42. Her Honour stated that she approached the conviction appeal on the basis that it was not necessary for Mr Jamal as the appellant to demonstrate error by the magistrate. Her Honour took the approach of considering the available evidence and determining whether the prosecution could sustain guilt beyond reasonable doubt of the offence, that is, whether each and every element of the offence had been proven.

43. After noting that Mr Jamal did not dispute that damage was caused to the complainant’s vehicle, the primary judge addressed Mr Jamal’s contentions that the evidence did not support a finding beyond reasonable doubt that he had caused such damage. Her Honour found that nothing turned on the different times at which police officers attended the complainant’s premises to investigate the crime scene, the first such attendance being on 22 December 2016. While the three fingerprints that were found on the damaged parts from the vehicle did not include Mr Jamal’s fingerprints, her Honour found that this was neutral given that Mr Jamal did not need to touch any particular item of the vehicle when causing damage.

44. Her Honour rejected Mr Jamal’s contention that the complainant had attempted to claim further damage to the vehicle as being the responsibility of Mr Jamal, because the repair quote given to the NRMA included an item for painting as part of the repairer’s quote. Her Honour found that given the evidence of the damage to parts of the vehicle there may well need to have been some sort of paint work in respect of damage to the side mirrors.

45. Her Honour rejected Mr Jamal’s contentions that the CCTV footage taken from the camera outside the house of the complainant was of a dubious origin or that the complainant had photo-shopped images of Mr Jamal into images of the complainant’s property. Her Honour noted that Mr Jamal conceded that he was depicted in the CCTV footage and that he did not remember being at the Baulkham Hills property, but at no stage did he give evidence that he was never at the property.

46. Her Honour was satisfied that the police attended the complainant’s premises and retrieved the CCTV footage and found that the integrity of the CCTV footage had not been in any way impugned. While the CCTV footage did not show Mr Jamal actually damaging the complainant’s vehicle, her Honour found that the footage revealed Mr Jamal being present at the complainant’s property at a point in time when the sound on the footage was entirely consistent with the vehicle being damaged in the way it was damaged and the vehicle had previously been left totally intact with respect to mirrors and the back wiper before the damage was discovered on 20 December 2016 by the complainant’s father-in-law.

47. Her Honour concluded that the prosecution had made out its case beyond reasonable doubt, the only available inference being that the damage was intentionally inflicted by Mr Jamal.

AVO

48. Her Honour found that the complainant experienced fears and that on the balance of probabilities those fears were reasonably held based on the conduct of Mr Jamal attending his premises and inflicting damage, which was the subject of the charge concerning the motor vehicle. Her Honour confirmed the conditions of the AVO and dismissed the appeal against this order.

Severity of sentences

49. Having considered Mr Jamal’s criminal history, the primary judge observed that she may have increased the term of the sentence on the attempted break and enter offence and the suspension of it under the s 12 bond, but did not disturb the sentence imposed in the Local Court.

50. In relation to the s 9 bond for the destroying or damaging property offence, the primary judge again observed that she may have imposed a more serious sentence but again did not disturb the sentence imposed in the Local Court. The severity appeals were dismissed.

Mr Jamal’s complaints

51. Mr Jamal was self-represented in this Court. He appeared with the assistance of an interpreter, although in the main he addressed the Court directly in English. In his written submissions Mr Jamal identified six grounds, which were expanded upon in his supplementary written submissions dated 28 March 2019. The following issues are raised:

1. Whether the District Court failed to exercise its jurisdiction to conduct an appeal by way of rehearing by:

1. approaching the conviction appeals on the basis that it was necessary to find error in the reasons of the magistrate and that the onus was on Mr Jamal to satisfy the District Court in this regard (ground 1);

2. not reviewing any evidence (ground 3);

3. failing to give adequate reasons for its decision (ground 5).

2. Whether the District Court should have found that the convictions were based on insufficient evidence, including in the form of CCTV footage and photos which had been “corrupted” and not been properly investigated by the police, and in some way this involved jurisdictional error (ground 2);

3. Whether Culver DCJ should have disqualified herself for apprehended bias on the ground of prejudgment or actual bias (ground 4).

4. Whether Culver DCJ failed to afford Mr Jamal procedural fairness in the District Court (ground 6). This failure was particularised as follows:

A.   Refused the applicant to afforded (sic) the opportunity to present his case at the hearing of his case in 29/3/2018.

B.   Refusing the applicant evidence and described it, as new evidence but it’s not.

C.   Refused to take in her account or to read the applicant written submission and what outcome of the NRMA subpoena document.

D.   Struck off all applicant ground of appeals without applicant consent.

52. Insofar as Mr Jamal’s submissions included complaints about the conduct of proceedings in the Local Court, the orders of the Local Court are no longer open to challenge. The “all grounds” appeals to the District Court have resulted in orders of that Court which supersede the orders made in the Local Court: Templeton (a pseudonym) v Director of Public Prosecutions (NSW) at [4], citing Wishart v Fraser (1941) 64 CLR 470; [1941] HCA 8; Morgan v District Court of New South Wales (2017) 94 NSWLR 463; [2017] NSWCA 105 at [32] (Meagher JA, Beazley ACJ and Macfarlan JA agreeing); Firth v Director of Public Prosecutions [2018] NSWCA 78 at [25]; Dyason v Butterworth [2015] NSWCA 52 at [34] (McColl JA, Barrett and Gleeson JJA agreeing).

53. In accordance with Concrete Pty Ltd v Parramatta Design and Development Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2], [117] cf [172], the issue of bias and, by extension, procedural fairness will be addressed first. Given the outcome of these grounds of appeal, it is not necessary to address the internal inconsistency with what Kirby and Crennan JJ said at [117] and their general agreement with the remarks of Callinan J, see in particular at [172]. See also Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88 at [9] (Basten JA).

Asserted denial of procedural fairness

54. Mr Jamal asserted that he was denied procedural fairness because Judge Culver should have recused herself on the ground of bias, both apprehended and actual.

Apprehended bias

55. The test for recusal is whether a fair-minded lay person, with knowledge of the matters relied upon by Mr Jamal might reasonably consider that the judicial officer might not carry out her judicial functions with an impartial and unprejudiced mind: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [11]-[13]; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 at [6]; Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427; [2011] HCA 48 (Michael Wilson) at [31].

56. The test for apprehension of bias is objective. It does not require an assessment of the state of mind of the judicial officer in question, as is necessary on an inquiry about actual bias: Michael Wilson at [33].

57. The application of the apprehension of bias principle involves two steps. The first is to identify what it is said might lead the judicial officer to decide a case other than on its legal and factual merits: Ebner v Official Trustee in Bankruptcy at [8]. The second is to articulate the logical connection between the circumstances identified in that matter and the apprehension that the case might not be decided on its merits: Ebner v Official Trustee in Bankruptcy at [8]; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283; [2011] HCA 2 at [139] (Heydon, Kiefel and Bell JJ).

58. Apprehended bias cannot be based upon a concern that a judicial officer will decide the case adversely to one party: Re JRL; ex parte CJL (1986) 161 CLR 342 at 352; [1986] HCA 39. As the test is forward-looking, it cannot be the basis for complaining that the Judge has decided the case adversely to one party. The question is not whether the judicial officer had in fact prejudged an issue. Accordingly, it is impermissible to take into account the reasons for judgment published after the hearing in deciding whether there was a reasonable apprehension of bias: Michael Wilson at [67].

Application of principles

59. Other than complaining that her Honour’s judgment decided matters against him, Mr Jamal’s submissions failed to identify any matter that might lead her Honour to decide the case other than on its legal and factual merits. Complaints such as that her Honour “rub out the applicant ground of appeals (sic)” involve the fallacious argument that because one side lost the litigation the Judge was biased: Michael Wilson & Partners at [67]. There is no merit in this complaint.

Actual bias

60. In Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 at [12], the following summary of principles was stated:

[68] A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) (Sun v Minister) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited.

[69] Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary judge was “so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented”: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127].

[70] As Gleeson CJ and Gummow J observed in that case at [71]:

The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion.

[71] In the same case, Hayne J noted at [185] the several distinct elements underlying the assertion that a decision-maker has prejudged or will prejudge an issue, or the assertion that there is a real likelihood that a reasonable observer might reach that conclusion. The first is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. The second is the contention that the decision-maker will apply that opinion to the matter in issue. The third is the contention that a decision-maker will do so without giving the matter fresh consideration in light of whatever may be the facts and arguments relevant to the particular case.

[72] His Honour observed at [186] that allegations of actual bias through prejudgment often fail at the third step he had identified. This was because notwithstanding whatever expression of preconceived opinions by the decision-maker, it does not follow that the evidence will be disregarded.

[73] The test of actual bias in the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33]. However, actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real: Bilgin v Minister for Immigration and Multicultural Affairs (Bilgin v Minister) (1997) 149 ALR 281 at 289-290 per Finkelstein J; Sun v Minister at 127 per Burchett J and 135 per North J. As Finkelstein J said in Bilgin v Minister at 290:

The wrong involved is the failure to decide a case impartially. Whether that failure was deliberate or not should be beside the point insofar as the validity of the decision is concerned.

Application of principles

61. In his written submissions, Mr Jamal asserted actual bias in the form of pre-judgment as follows:

Although Judge J Culver does make two references to the correct test at 29/3/218 transcript it is in the context where the Judge says she has already come to the view that she is satisfied beyond reasonable doubt that the offence had been committed by that time, the appeal was well and truly over (emphasis in original submission).

62. However, no transcript references were provided by Mr Jamal identifying where, according to the submission, her Honour said anything which might be taken as indicating that she had already come to a conclusion before hearing the evidence and the arguments. Having read the transcript of the hearing, the assertion that her Honour had pre-judged Mr Jamal’s guilt is without merit.

Procedural fairness

63. Mr Jamal also asserted that he was denied procedural fairness because he was not given a fair hearing in the District Court on 29 March 2018. The particulars of this complaint have been set out at [51(4)] above.

64. The complaint that her Honour refused Mr Jamal an opportunity to present his case is not borne out on a fair reading of the transcript. At the commencement of the hearing, recognising Mr Jamal’s difficulties with the English language and that he was unrepresented, her Honour stated that if he did not understand anything, or if he needed to leave the courtroom to make a telephone call to a lawyer, he should let her know. While her Honour did later indicate on two occasions that Mr Jamal needed to “wrap up” his submissions with respect to the appeal against conviction on the destroying or damaging property offence, there was no unfairness in her Honour identifying for Mr Jamal those aspects of his submissions that were repetitive or not relevant.

65. The complaint that her Honour refused to accept Mr Jamal’s further evidence is not a fair reflection of what occurred at the hearing. It is correct that early in the hearing, her Honour did not formally accept certain documents sought to be relied upon by Mr Jamal, indicating that they were not relevant to the application which her Honour was then dealing with, namely, the withdrawal of the guilty plea in respect of the break and enter offence. However, as mentioned, her Honour subsequently received those documents when dealing with the conviction appeal against the destroying or damaging property offence.

66. Insofar as her Honour described this material as “fresh” evidence when Mr Jamal complains that it was not, the characterisation of the subpoenaed material as fresh evidence or further evidence is immaterial, given that the prosecution did not object to the District Court receiving this further evidence on appeal.

67. As to the complaint that her Honour ignored the material subpoenaed from the NRMA, this should be rejected given that in the second judgment her Honour took into account and expressly addressed the matters raised in Mr Jamal’s written submissions concerning the probative value of the documents from NRMA and Suttons. Her Honour rejected Mr Jamal’s submission that Mr Zaki had made a claim for painting which extended beyond the damage to the two side mirrors and the rear window wiper, finding:

It is evident from the photographs of the damage that there may well need to be some sort of paint work in respect of the damage to the mirrors.

68. Whether or not that factual finding was correct, it did not involve jurisdictional error.

69. As to the complaint that her Honour struck out all of his grounds of appeal without his consent, this complaint goes nowhere. Mr Jamal was afforded a reasonable opportunity to present his appeals by way of oral submissions, in addition to his written submissions, and by tendering further evidence. That Mr Jamal was unsuccessful does not mean that there was a failure to afford him a fair hearing. The assertion of a denial of procedural fairness is not made out.

Asserted error in failing to conduct a rehearing and applying an incorrect standard of proof

Conviction appeals

70. Mr Jamal submitted that there was jurisdictional error by the District Court by way of a constructive failure to exercise its jurisdiction on appeal because her Honour did not proceed by way of rehearing. The submission continued that her Honour adopted the erroneous approach of requiring Mr Jamal to demonstrate error in the Local Court and that the onus was on Mr Jamal to satisfy the District Court in this regard. This submission should be rejected.

71. Her Honour did not approach the conviction appeals on the basis that Mr Jamal had to establish error in the Local Court. Nor did her Honour apply the incorrect standard of proof. In her second judgment dealing with the conviction appeal against the destroying or damaging property offence, her Honour said:

This Court does not have the role on appeal of determining whether there is any error made by the magistrate. Instead, this Court looks at the available evidence and determines whether the prosecution can sustain guilty beyond reasonable doubt of the offence, that is, whether each and every element of the offence has been proven.

72. Her Honour’s approach to the conviction appeals – that there was no need for Mr Jamal to establish error by the Local Court – was the most favourable approach for Mr Jamal. It is consistent with the view of Simpson JA in AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 at [75]-[76] that an appeal under s 11 of the Crimes (Appeal and Review) Act is not limited to the identification of error in the Local Court and is not determined simply by concluding that no error has been demonstrated on the part of the Local Court magistrate. This is to be contrasted with the judgment of Basten JA, in which his Honour indicated a preference for the view that the District Court’s power to set aside a conviction depends upon a finding of error by the Local Court (at [12]). Sackville AJA stated that he preferred not to express an opinion until it is necessary to do so: at [110]. It is not necessary to address these differences of view.

AVO

73. In her third judgment, after noting the earlier finding beyond reasonable doubt that Mr Jamal had attended the complainant’s premises and inflicted the damage to the complainant’s motor vehicle, her Honour said:

I am of the view that the evidence on the balance of probabilities persuades me that firstly, the complainant holds fears concerning the appellant’s conduct and secondly, those fears are reasonably held.

74. Thus, her Honour correctly approached the appeal against the making of the AVO on the basis that the police as the applicant bore the onus of proof of satisfying the Court that such an order should be made. And her Honour applied the correct standard of proof, namely, satisfaction on the balance of probabilities: Crimes (Domestic and Personal Violence) Act, s 19(1).

Asserted failure to review evidence

75. Turning to Mr Jamal’s submission that her Honour failed to review the evidence, as indicated mere errors of fact do not involve jurisdictional error: Ghaderi v Director of Public Prosecutions (NSW) at [11].

76. In any event, her Honour’s approach to the conviction appeals was consistent with authority that on a s 18(1) rehearing 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; (2010) 207 A Crim R 362 at [23] (Beazley JA, Basten and Campbell JJA agreeing); AG v Director of Public Prosecutions (NSW) at [29] (Basten JA), [105] (Simpson JA).

77. In relation to the appeal against the break and enter offence, her Honour dealt first with the anterior question of whether Mr Jamal should be allowed to withdraw his guilty plea. No complaint is made that her Honour exceeded her power to disallow Mr Jamal to withdraw his guilty plea on the break and enter offence and in any case this decision was not outside her jurisdiction.

78. In relation to the appeal against the destroying or damaging property offence, it is plain from the transcript that her Honour exercised her own judgment and formed a view of the facts based on the evidence in the Local Court and the further evidence tendered by Mr Jamal in the District Court which had been obtained on subpoena from the NRMA and Suttons. Her Honour formed the view that the prosecution case had been made out beyond reasonable doubt, stating that the “only available inference that can arise from the combination of circumstances is that the damage was intentionally inflicted by the appellant”. Again, her Honour’s decision-making was not outside jurisdiction.

Inadequate reasons

79. The failure to respond to a substantial argument may involve a failure to afford procedural fairness: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24]; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 at [19]-[20]; Rodger v De Gelder [2015] NSWCA 211 at [93].

80. Mr Jamal complained that her Honour failed to respond to the substantial arguments raised by him on his appeals and this was reflected in her Honour’s failure to give adequate reasons for her decisions. On the contrary, her Honour’s reasons responded to the substantial arguments raised by Mr Jamal. The reasons in the three judgments identified the issue for consideration, reviewed the evidence and submissions material to each appeal, and gave sufficient reasons by reference to the evidence for refusing Mr Jamal’s application to withdraw his guilty plea, dismissing his conviction appeals, and dismissing his appeal against the AVO. The same may be said of the reasons recorded in the transcript for dismissing the sentence appeals. This complaint should be rejected.

Asserted failure to find insufficient evidence to support the offences charged

Conviction appeals

81. Ground 2 is directed to a number of complaints by Mr Jamal that there was insufficient evidence of the two offences. Insofar as these complaints are directed to the sufficiency of the evidence to support a finding of guilt beyond reasonable doubt, mere errors of law do not involve jurisdictional error. As explained in WO v Director of Public Prosecutions (NSW) [2009] NSWCA 370 at [14]:

… An erroneous application of the criminal law in the course of criminal proceedings will not generally demonstrate jurisdictional error.

82. The related complaints that the CCTV footage and photographs while “photo shopped” and not properly investigated by the police seek to challenge her Honour’s factual findings. Her Honour found that there was no basis for doubting the authenticity of the CCTV footage and photographs, and that there was no evidence of any conspiracy as suggested by Mr Jamal involving the complainant’s father-in-law. These complaints involve asserted errors of fact, not jurisdictional error.

83. The complaint that her Honour erred in not upholding the appeal against the conviction on the destroying or damaging property offence because the insurance claim made by the complainant to NRMA stated that the incident happened on 18 December 2016, not 20 December 2016, again involves an asserted error of fact, not jurisdictional error.

84. In the absence of any jurisdictional error, this Court cannot review any of Mr Jamal’s complaints under this ground.

AVO order

85. The complaint that the police did not tender before the District Court the transcript of an application by the police on 20 June 2017 for a variation of what was then an interim AVO is misconceived. That application, which was made by the police in the Local Court, sought to add an additional condition to the interim AVO to prohibit Mr Jamal from going within 500 metres of the Coptic Orthodox Church located at Rhodes of which the complainant’s father was the parish priest. The basis of the proposed condition was that Mr Jamal had apparently been issued with a banning notice by the Church. Magistrate Giles rejected the application on the basis that it related to matters entirely independent to the interim AVO made for the protection of Mr Zaki.

86. Contrary to the premise of Mr Jamal’s complaint, the materials before the District Court included the Local Court bench statement dated 20 June 2017 which recorded that Magistrate Giles had refused the application by the police to vary the terms of the interim AVO and also a copy of that application. Further and importantly, the terms of the final AVO made in the Local Court on 16 August 2017, and confirmed in the District Court, did not include a condition prohibiting Mr Jamal from approaching the Coptic Orthodox Church at Rhodes. Nothing turns on the earlier unsuccessful application by the police to vary the terms of the interim AVO.

87. Her Honour’s decision-making with respect to the appeal against the making of the AVO was not outside jurisdiction.

Conclusion and Orders

88. Mr Jamal has failed to establish jurisdictional error by her Honour Judge Culver in dealing with his appeals to the District Court against the convictions and sentences on the two property offences and his appeal against the making of an AVO in the Local Court. The orders that I propose are:

1. Pursuant to UCPR, r 59.10(2), extend the time for the applicant to file the summons in this proceeding to 10 July 2018.

2. The amended summons filed 2 October 2018 be dismissed.

3. The applicant to pay the costs of the first respondent, the Director of Public Prosecutions (NSW), of the proceedings in this Court.

89. WHITE JA: I agree with Gleeson JA.

90. EMMETT AJA: The applicant, Mr Jon Jamal, seeks orders under s 69 of the Supreme Court Act 1970 (NSW) quashing judgments of the District Court and consequential relief. The proceedings in the District Court were appeals brought by Mr Jamal from proceedings in the Local Court relating to property offences committed and an apprehended violence order. Mr Jamal commenced the proceedings in this court out of time. While he had lodged his summons in time, he had not formally filed it. Since there is no suggestion of any prejudice to the first respondent, the Director of Public Prosecutions, it is appropriate that an order be made extending time.

91. I have had the advantage of reading in draft form the proposed reasons of Gleeson JA for concluding that Mr Jamal has failed to establish jurisdictional error on the part of the District Court. It follows that the proceedings should be dismissed. I agree with the orders proposed by Gleeson JA.

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Amendments

30 May 2019 - Typographical errors

Decision last updated: 30 May 2019