Lazarus v Director of Public Prosecutions (NSW)

[2015] NSWCA 408

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Lazarus v Director of Public Prosecutions (NSW) [2015] NSWCA 408
Hearing dates:	15 December 2015
Decision date:	16 December 2015
Before:	Meagher JA; Gleeson JA
Decision:	1. Extend the time for the filing of the summons seeking leave to appeal to 31 July 2015. 2. Dismiss the summons seeking leave to appeal. 3. Order the applicant to pay the respondent’s costs of that summons.
Catchwords:	PROCEDURE – application for leave to appeal – no arguable error of primary judge – no question of principle – leave to appeal refused
Legislation Cited:	Crimes Act 1900 (NSW), ss 178BB, 300 Crimes (Appeal and Review) Act 2001 (NSW), s 11 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), rr 51.9, 51.10
Cases Cited:	Clarke v State of New South Wales [2015] NSWCA 27 Gillies v District Court of New South Wales [2014] NSWCA 357 Kyriakou v Long [2014] NSWCA 308 Lee v New South Wales Crime Commission [2012] NSWCA 262; 224 A Crim R 94 Roskott v Commonwealth Bank of Australia [2014] NSWCA 341
Category:	Procedural and other rulings
Parties:	Sandra Lazarus (Applicant) Director of Public Prosecutions NSW (Respondent)
Representation:	Counsel: No appearance (Applicant) C A Webster SC (Respondent)   Solicitors: NSW Crown Solicitor’s Office (Respondent)
File Number(s):	2015/140617
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2015] NSWSC 426 Date of Decision: 16 April 2015 Before: Garling J File Number(s): 2015/36376

Judgment

1. THE COURT: The applicant seeks leave to appeal from orders made by Garling J on 14 April 2015: Lazarus v Director of Public Prosecutions (NSW) [2015] NSWSC 426. The summons by which that application is made was not filed within three months of that date. For that reason the applicant also requires an extension of the time for filing that summons: Uniform Civil Procedure Rules 2005 (NSW), rr 51.9, 51.10. Notwithstanding that there is no explanation for the short delay, that extension should be granted. On 23 November 2015, the application for leave was listed for hearing on 15 December 2015. The application is opposed.

2. At 3.34pm on 14 December 2015 the applicant sent an email communication to the Registrar of the Court attaching a medical certificate in the following terms:

THIS IS TO CERTIFY THAT

Miss Sandra Lazarus

IS RECEIVING MEDICAL TREATMENT and attended hospital on 2/12/15 AND FOR THE PERIOD

Monday, 7 December 2015 TO Monday, 21 December 2015 INCLUSIVE

She WILL BE UNFIT FOR court attendance and litigation.

This Certificate was completed on 7/12/2015

Dr. Clifford Au

3. That certificate provides no satisfactory medical evidence as to the applicant’s fitness or otherwise to attend Court on 15 December 2015. It does not indicate what medical treatment the applicant is receiving and for what condition, and does not provide any insight as to why that treatment or condition would have prevented her from attending Court. A second certificate was attached, which did not relate to the relevant period or provide any more detail of the applicant’s medical condition and treatment.

4. The applicant did not appear when this matter was called on for hearing at 2.15pm. The respondent did appear and sought to have the matter proceed, opposing any application for an adjournment.

5. Treating the applicant’s email communication and the attached certificates as an indication that the applicant seeks to adjourn the application for leave to appeal, the Court approaches that question in the same way as similar applications made and dealt with in Kyriakou v Long [2014] NSWCA 308 at [2], [3], [23], [24]; Roskott v Commonwealth Bank of Australia [2014] NSWCA 341 at [14] and Gillies v District Court of New South Wales [2014] NSWCA 357 at [1]-[6].

6. For the reasons which follow the application for leave has no realistic prospects of success. That being so there is no utility in granting any adjournment, particularly in circumstances where there is no satisfactory evidence explaining the applicant’s non-appearance.

7. The proceeding before Garling J was an application under s 69 of the Supreme Court Act 1970 (NSW) in respect of a decision of Keogh LCM given on 27 November 2014. The learned magistrate found the appellant guilty of 44 criminal offences, being 15 offences against s 178BB of Crimes Act 1900 (NSW) and 29 offences against s 300 of that Act. Those findings were made after a lengthy hearing, at which the applicant was represented by counsel, which commenced on 25 August 2014 and concluded on 22 October 2014.

8. Those charges related to frauds allegedly committed between 2008 and 2009 and against two public hospitals in New South Wales, the Royal Hospital for Women at Randwick and the Royal North Shore Hospital at St Leonards. The prosecution case was that the applicant obtained access to staff and facilities, including computer networks of those hospitals, on the basis that she was a PhD student seeking to conduct trials of a device intended to diagnose various cancers.

9. The charges alleged misuse of requisition forms, “vendor maintenance forms” and “non order vouchers”, used at those hospitals to support payments for goods and services. The applicant was alleged to have forged the signatures of a number of doctors and professors from the two hospitals on such forms and to have lodged invoices, in the names of companies of which she or her sister were sole director or shareholder, claiming substantial payments for work which was not done and materials which were not provided. The total involved in the charges of which the applicant was convicted was over $502,150. Her defence to those allegations was that the work referred to in the various invoices was undertaken, and that the doctors’ signatures were genuine.

10. His Honour described at [16] the relief sought in the applicant’s amended summons as being:

… in the first place, an order in the nature of prohibition to prevent Keogh LCM from proceeding to hear the balance of the proceedings, and in the second place, an order in the nature of certiorari to quash what has occurred to date on the basis of judicially reviewable error, with consequential relief to provide for a new hearing of the proceedings.

11. Garling J dismissed those claims for relief. He held that none of the grounds relied upon was made out. Those grounds were that there had been a denial of procedural fairness because there was actual or apprehended bias on behalf of the learned magistrate; and that there were errors of reasoning and in the factual findings made by the learned magistrate in support of the decision.

12. His Honour also held that, had there been any error which justified the granting of relief under s 69, he would have declined to grant that relief because of the availability to the applicant of a right of appeal against her conviction and any sentence to the District Court under s 11 of the Crimes (Appeal and Review) Act 2001 (NSW).

13. On 27 April 2015 Keogh LCM imposed sentences of imprisonment upon the applicant. On the same day she filed a notice of appeal to the District Court pursuant to the above mentioned provision, appealing against her conviction and sentence. That appeal was listed for hearing on 14 December 2015, but that hearing has been vacated, and the appeal is listed for mention on 18 January 2016.

14. The applicant has brought two further proceedings in the Common Law Division of the Supreme Court. The first, commenced on 15 May 2015, was described as an application or appeal brought under Pt 5, Div 1 of the Crimes (Appeal and Review) Act. The second, commenced on 20 July 2015, was for judicial review of the “whole of the decision” of Keogh LCM. On 2 December 2015, RS Hulme AJ made an order dismissing each of those proceedings: Lazarus v Director of Public Prosecutions NSW [2005] NSWSC 1776.

15. Ordinarily leave to appeal is granted only when there is an issue of principle or question of general public importance involved, or where it is reasonably clear that there has been an injustice which in the circumstances should be addressed. That may be the case if on the application for leave something more is shown than that the primary judge was arguably wrong. The relevant principles are stated, and authorities referred to, in Clarke v State of New South Wales [2015] NSWCA 27 at [20] and Lee vNew South Wales Crime Commission [2012] NSWCA 262; 224 A Crim R 94 at [12].

16. The applicant’s draft notice of appeal consists of eight paragraphs, seven of which contain submissions, that refer to and take issue with aspects of the primary judge’s reasons (in particular [54], [55], [64], [71], [81], [85], [86], [96], [97]). None of those draft ‘grounds’ identifies any particular error of the primary judge in concluding that there was no actual bias or other denial of procedural fairness, or any error of law which would have justified relief under s 69.

17. Grounds 1 to 3 address paragraphs of his Honour’s reasons which summarise the cases of the prosecution and defence before the Local Court and the way in which the learned magistrate addressed those cases. They include assertions that the statement that “the prosecution adduced significant circumstantial evidence is not accurate and cannot be relied upon” (ground 1); that when considering the applicant’s argument that the learned magistrate should not have been satisfied beyond reasonable doubt as to each of the offences alleged, the primary judge “failed to take into account all the evidence presented before him” (ground 2); and that his Honour did not address the applicant’s argument that the learned magistrate had accepted the opinion evidence of Mr Anderson, the forensic document examiner called in the applicant’s case, only when that evidence favoured a decision of guilt, which was said to be “a manifestation of real bias” (ground 3). None of the submissions in support of these assertions descends into any detail and none exposes any arguable error on the part of the primary judge.

18. Before the primary judge the applicant argued that the learned magistrate did not give proper consideration to the evidence of Mr Anderson and that her Honour’s not having done so involved a lack of procedural fairness and indicated actual bias. Proposed ground 4 maintains that the primary judge erred in not dealing with this argument. That is no so. The primary judge did address this argument, especially at [47], [62]-[72].

19. Ground 5 asserts that the primary judge failed to give consideration to “obvious factual errors” in the learned magistrate’s judgment. The existence of such errors appears to have been raised by review grounds 5, 6, 7, 8, 9, 10 and 11, as formulated before the primary judge. His Honour dealt with review grounds 5 and 10 at [73]-[80] and no complaint is made in the applicant’s submissions about the way in which he did so. In [81] his Honour dealt with the remaining grounds concluding that the “remarks of the Magistrate were supported by the evidence and have not been demonstrated to be factually erroneous”. That conclusion goes further than is necessary to dispose of an argument that there was any error of law revealed on the face of the Local Court record, principally the reasons delivered by Keogh LCM. However, for present purposes, it is sufficient to note that the appellant’s submission in support of proposed ground 5 does no more than make the broad and unsubstantiated assertion referred to above.

20. Ground 6 addresses events which occurred on 27 November 2014 when the learned magistrate delivered her judgment. Those events involved the applicant being retained in custody pending the satisfaction of bail conditions. The applicant submitted that what occurred was further evidence of actual bias against her. The primary judge considered and rejected that argument as being “without substance”: [85]-[93]. Ground 6 does not identify any arguable error in relation to that conclusion and otherwise addresses matters which were not relevant to the application for judicial review.

21. Finally, ground 7 takes issue with the primary judge’s conclusion that had there been any relevant error, he would not exercise his discretion to grant the relief sought. Notwithstanding the applicant’s assertion to the contrary, the primary judge is not shown to have erred in concluding that the applicant’s right of appeal to the District Court against her conviction and any sentence permitted a full consideration of the merits of all of the grounds that the applicant might raise to challenge her convictions and sentence.

22. As the proposed grounds of appeal do not identify any respect in which the primary judge was arguably wrong in refusing relief under s 69, the application for leave to appeal should be refused. An additional consideration supporting that conclusion is that the applicant is now pursuing her right of appeal to the District Court. That makes it most unlikely, in the event that any appeal was successful in establishing error, that the discretion to grant relief under s 69 would be exercised in favour of the applicant.

23. The orders of the Court are:

1. Extend the time for the filing of the summons seeking leave to appeal to 31 July 2015.

2. Dismiss the summons seeking leave to appeal.

3. Order the applicant to pay the respondent’s costs of that summons.

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Decision last updated: 16 December 2015