McKellar v Director of Public Prosecutions

[2011] NSWCA 91

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

McKELLAR v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2011] NSWCA 91

Hearing dates:

11 April 2011

Decision date:

11 April 2011

Before:

Beazley JA at 1; Basten JA at 2; Whealy JA at 20

Decision:

(1) Dismiss the summons filed in the Common Law Division on 23 August 2010.

(2) No order as to costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - criminal conviction - appeal from Local Court to District Court - whether District Court erred in failing to make independent assessment of evidence - Crimes (Appeal and Review) Act 2001 (NSW), s 18

ADMINISTRATIVE LAW - supervisory jurisdiction - whether jurisdictional error on part of District Court - whether Court misconceived function under statute - acceptance of credibility finding made by magistrate

Legislation Cited:

Crimes (Appeal and Review Act) 2001 (NSW), ss 11, 18, 19
District Court Act 1973 (NSW), s 176
Supreme Court Act 1970 (NSW), ss 69, 75A

Cases Cited:

Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39
Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552
Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 272 ALR 705
Fox v Percy [2003] HCA 22; 214 CLR 118

Category:

Principal judgment

Parties:

Brett McKellar (Applicant)
Director of Public Prosecutions (NSW) (First Respondent)
District Court of NSW (Second Respondent)

Representation:

Counsel:
G Corr (Applicant)
D Arnott SC (First Respondent)
Submitting appearance (Second Respondent)
Solicitors:
Aboriginal Legal Service (NSW/ACT) Ltd (Applicant)
S C Kavanagh, Director of Public Prosecutions (First Respondent)
I V Knight, Crown Solicitor's Office (Second Respondent)

File Number(s):

2010/284892

 Decision under appeal 

Date of Decision:

2010-05-05 00:00:00

Before:

Woods ADCJ

File Number(s):

2009/191947

Judgment

1. BEAZLEY JA : I agree with Basten JA.

1. BASTEN JA : On 18 February 2010 the applicant was convicted in the Local Court at Dubbo of driving whilst disqualified from holding a licence. It was not disputed that he did not hold a licence; the issue was whether he was driving a vehicle on a public road at the time of the alleged offence.

1. The primary evidence against the applicant was that of his mother-in-law, who testified that she had seen him driving on the day in question and had telephoned police to report the incident. She gave evidence in the Local Court and was cross-examined as to her identification of the driver of the car.

1. The applicant appealed from his conviction, to the District Court, pursuant to s 11(1) of the Crimes (Appeal and Review Act) 2001 (NSW) ("the Appeal and Review Act"). He came before Acting Judge Woods at Dubbo on 5 May 2010. His Honour dismissed the appeal.

1. On 23 August 2010 he commenced proceedings in the Supreme Court, seeking judicial review of the judgment in the District Court. The substance of the complaint was that the District Court had misconceived its jurisdiction and, contrary to s 18 of the Appeal and Review Act, had failed to treat the appeal as one "by way of rehearing" and had limited its consideration to identifying error on the part of the magistrate and determining whether it was "open to him" to convict the applicant, rather than undertaking its own assessment of the evidence presented in the Local Court.

Jurisdiction of District Court

1. Section 18 of the Appeal and Review Act provides that 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 s 19": s 18(1). Section 19 provides that the District Court may direct a person to attend and give evidence on an appeal, but only if, in a case such as the present, there are "substantial reasons" why that should occur: s 19(1)(b). That provision was not engaged in the present case, as no party sought, in accordance with s 19(2), to have any witness attend at the District Court to give oral testimony.

1. As a result, the proceedings in the District Court were conducted as an appeal by way of rehearing on a transcript of the evidence taken in the Local Court.

1. As was explained by Mason P in Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39 at [12]-[23], since 1998 appeals to the District Court have no longer involved a fresh hearing on the evidence, subject to the use of transcripts in place of recalling the witnesses, and now involve a rehearing on the transcript, witnesses being called only in the non-routine cases as provided by s 19. The approach to be adopted by the District Court is thus analogous to a civil appeal under s 75A of the Supreme Court Act 1970 (NSW), which was discussed in Fox v Percy [2003] HCA 22; 214 CLR 118 at [23] by Gleeson CJ, Gummow and Kirby JJ:

"On the one hand, the appellate court is obliged to 'give the judgment which in its opinion ought to have been given in the first instance'. On the other, it must, of necessity, observe the 'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the 'feeling' of a case which an appellate court, reading the transcript, cannot always fully share."

1. There have been occasions on which the District Court has gone to the other extreme, treating itself not as reviewing or assessing the evidence before the Local Court, but apparently conducting an exercise in judicial review, which could involve it setting aside the decision below only on the basis that the conviction was invalid: see, eg, Director of Public Prosecutions v Emanuel [2009] NSWCA 42; 193 A Crim R 552 at [18] (Spigelman CJ) and at [45].

Powers of this Court

1. By contrast with the District Court, this Court is restricted to review of the judgment in the District Court in exercise of its supervisory jurisdiction, pursuant to s 69 of the Supreme Court Act . Although the supervisory jurisdiction may include errors of law appearing on the face of the record, as well as jurisdictional error, it will generally be subject to other specific statutory provisions protective of decisions in particular courts or tribunals: s 69(5). In the present case, it is accepted that s 176 of the District Court Act 1973 (NSW) constitutes a privative provision which limits the powers of this Court to intervene to cases of jurisdictional error: see, eg, Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 272 ALR 705 at [134]. However, it may be accepted in the present case that, if the District Court judge misunderstood the scope of his jurisdiction, so as not to conduct a rehearing, but rather undertook some more limited form of appeal, that would constitute jurisdictional error so as to permit this Court to intervene.

Application of principles

1. In the Local Court, the principal prosecution evidence was the oral testimony of Ms Mackie, the mother-in-law of the applicant. Also before the Court was a transcript of her recorded telephone conversation with the police operator who took her call on the morning of the offence. In the course of the telephone call, confirmed in her oral evidence, Ms Mackie said she had seen "a little red car" which was used by the applicant and her daughter, Redika Mackie, and that her daughter and the applicant were in the car at the time it was driving past Ms Mackie's home in Dubbo. Her conversation on the telephone suggested that police had, on a prior occasion, stopped the car and taken the keys away. She said:

"Yeah I think they took the keys and that off them before because it's all got defects and everything on it, unlicensed driver."

1. In her cross-examination it was suggested that she had failed on the telephone to identify the applicant as the driver of the car. That was true, in the sense that she had named him as one of the occupants of the car and only expressly identified him as the driver in her oral evidence. She said she was standing on the side of the street when the car went past. She had known the applicant for some 34 years, "since he was a baby".

1. The thrust of the cross-examination was twofold: first, it was suggested that she was mistaken because she could not clearly see inside the car as it drove past; secondly, it was suggested that she "hated" the applicant, which was why she had reported the matter to police. (It was true that it was not expressly put to her that she had fabricated her evidence as a result of her personal dislike of the applicant, but such an implication might have been inferred.) If her evidence were accepted, conviction was clearly open, if not inevitable. Much turned on whether the challenges to the credibility of Ms Mackie were accepted. In the course of his judgment, Magistrate Hamilton stated:

"Although the demeanour of witnesses is clearly an unreliable indicator, the evidence given by Ms Mackie was given in a forthright manner, it was given in a very calm manner, there was no hint of embellishment in the way that she gave her evidence and there was no indication in her demeanour that she was in any way ill disposed towards the accused.

...

Although I am required to warn myself as to the dangers of identification, or recognition evidence, and I do warn myself of those matters having those matters firmly in my mind and having regard to the manner in which Ms Mackie gave her evidence, which I found to be given in a very careful and understated manner, I am satisfied that her evidence can be relied upon and I am satisfied beyond reasonable doubt that the accused at the relevant time was occupying the driver's seat of the vehicle. ...."

1. The judgment in the District Court commenced by a review of the evidence given in the Local Court. His Honour also summarised the comments of the magistrate with respect to the difficulties of identification or recognition evidence, noting that the magistrate had been satisfied that Ms Mackie's evidence could be relied upon. His Honour concluded:

"From my analysis of the evidence that was before the magistrate I can find no error in his application of the relevant principles as to the reception of the evidence and his assessment of the credibility of the witnesses and therefore his determination. I therefore dismiss the appeal and confirm the conviction."

1. The challenge in this Court focused upon his Honour's statement that he could "find no error" in the approach of the magistrate. This, it was submitted, demonstrated an erroneous approach on the part of the District Court judge to the exercise before him. The approach adopted, it was submitted, was limited to assessing the reasoning of the magistrate and did not involve an independent assessment of the evidence.

1. This complaint is not made good. First, it ignores his Honour's statement that his findings were made "[f]rom my analysis of the evidence". Secondly, it was entirely appropriate to assess whether the magistrate had approached the matter on a correct basis. Thirdly, in circumstances where conviction depended almost entirely upon the testimony of Ms Mackie, the magistrate's assessment of her credibility was critical.

1. Although there were potential weaknesses in her evidence, such as the limitations on her ability to see the driver of the car and the failure expressly to identify the applicant as the driver in her telephone call to the police, the extent to which such weaknesses undermined her oral testimony depended on an assessment of the strength of her oral testimony and upon the manner in which she answered the challenges raised in cross-examination. This was not a case in which there were clear inconsistencies between the oral evidence accepted by the magistrate and independent objective evidence. There was nothing to which the applicant pointed in this Court which would have justified the District Court judge in disregarding the magistrate's assessment of the principal witness.

1. Further, it was entirely proper for his Honour to consider the magistrate's reasons to satisfy himself that the assessment of the witness had been made upon a sound basis. As explained by Mason P in Charara :

"[23] ... 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.

[24] The Local Court reasons will doubtless include an explanation why the conviction was entered at first instance, including an assessment of the credibility issues touching any factual dispute. Without reference to the reasons the District Court would be driven to speculation or deciding the issue entirely afresh. Neither such course would be consonant with the statutory scheme. In civil appeals, the court of appeal is not entitled to ignore the reasons in which findings based on credibility are to be found ... There is no basis in principle for a different approach in the criminal law."

1. The submission that the District Court judge misunderstood the nature of his jurisdiction is rejected. The summons must be dismissed. The Director of Public Prosecutions does not seek an order for costs. The Court's order is, accordingly:

(1) Dismiss the summons filed in the Common Law Division on 23 August 2010.

(2) No order as to costs in this Court.

1. WHEALY JA : I agree.

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Decision last updated: 12 April 2011