Mulder v Director of Public Prosecutions (Cth)

[2015] NSWCA 92

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92
Hearing dates:	13 March 2015
Decision date:	10 April 2015
Before:	Ward JA at [1]; Gleeson JA at [2]; Johnson J at [151]
Decision:	Each summons be dismissed with costs.
Catchwords:	ADMINISTRATIVE LAW – judicial review – application for review of decisions of the District Court in its criminal jurisdiction on appeal from the Local Court – challenge to decisions at two levels – review limited to jurisdictional error on part of the District Court – whether the accused was not afforded procedural fairness – complaint of inadequate representation – complaint regarding refusal to allow fresh evidence pursuant to Crimes (Appeal and Review) Act 2001 (NSW) – whether apprehended bias on the part of the magistrate in the Local Court in the form of pre-judgment – apprehended bias not established ADMINISTRATIVE LAW – judicial review - whether court attendance notice (CAN) and any conviction invalid – where date of offence particularised in CAN is amended – CAN not invalid – complaint that prosecution failed to call a material witness – complaint that District Court was not in a position to assess the accused’s credibility – complaint of inadequate reasons – summons dismissed
Legislation Cited:	Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), ss 5, 6, 28, 32, 33, 136, 140 Australian Passports Act 2005 (Cth), ss 32, 35 Crimes (Appeal and Review) Act 2001 (NSW), ss 3, 11, 17, 18, 19, 20, 67, 71 Criminal Procedure Act 1986 (NSW), ss 15, 20, 21, 175 District Court Act 1973 (NSW), s 176 Evidence Act 1995 (NSW), ss 97, 101 Judiciary Act 1903 (Cth), ss 39, 68, 79 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305; 85 NSWLR 350 Charara v R [2006] NSWCCA 244; 164 A Crim R 39 Commissioner of Taxation v Futuris Corporation Limited [2008] HCA 32; 237 CLR 146 Craig v South Australia [1995] HCA 58; 184 CLR 163 Director of Public Prosecutions (NSW) v Emanuel [2009] NSWCA 42; 193 A Crim R 552 Dyason v Butterworth [2015] NSWCA 52 Elias v Director of Public Prosecutions (NSW) [2012] NSWCA 302; 222 A Crim R 286 Garde v Dowd [2011] NSWCA 115; 80 NSWLR 620 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83; 170 A Crim R 366 Lavorato v Regina [2012] NSWCCA 61; 82 NSWLR 568 McKellar v Director of Public Prosecutions (NSW) [2011] NSWCA 91 Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 Mifsud v Campbell (1991) 21 NSWLR 725 Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; 179 ALR 513 Reznitsky v Director of Public Prosecutions (NSW) [2014] NSWCA 79 R v Lipton [2011] NSWCCA 246; 82 NSWLR 123 Spanos v Lazaris [2008] NSWCA 74 Wang v Farkas [2014] NSWCA 29; 85 NSWLR 390 Whitehorn v R [1983] HCA 42; 157 CLR 657 Yousaf v Director of Public Prosecutions (NSW) [2012] NSWCA 397
Texts Cited:	Aronson, "Jurisdictional error without the tears", in Groves and Lee (eds), Australian Administrative Law - Fundamentals, Principles and Doctrines (2007) 330
Category:	Principal judgment
Parties:	Jack Denis Mulder (Applicant) Director of Public Prosecutions (Cth) (First Respondent) District Court of NSW (Second Respondent)
Representation:	Counsel: Applicant (Self-represented) C Taylor (First Respondent) Submitting appearance (Second Respondent) Solicitors: Director of Public Prosecutions (Cth) (First Respondent) Crown Solicitors’ Office (NSW) (Second Respondent)
File Number(s):	2014/219475; 2014/258325
Decision under appeal	Court or tribunal: District Court of NSW Before: Hock DCJ (27 March 2013); Toner DCJ (25 & 26 August 2014) File Number(s): 2011/34715; 2011/344745; 2011/344843; 2013/3873

Judgment

1. WARD JA: I have had the advantage of reading in draft Gleeson JA's reasons and proposed orders, with which I agree.

2. GLEESON JA: The applicant, Jack Denis Mulder, who is self-represented, seeks to set aside, pursuant to s 69 of the Supreme Court Act 1970 (NSW), two decisions made by judges of the District Court on separate appeals by Mr Mulder against his convictions in the Local Court of various charges under federal enactments. Mr Mulder also seeks to set aside the two decisions of the Local Court convicting him of those charges.

3. With respect to the challenged decision of Hock DCJ on appeal from Andrews LCM, the charges had been brought under the Australian Passports Act 2005 (Cth) and the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (the Anti-Money Laundering Act). The charges alleged that Mr Mulder had dishonestly obtained an Australian Passport (in the name of his twin brother), improperly used that Australian Passport in connection with identification and to depart and arrive in Australia, and used a false customer name in connection with opening a bank account and exchanging currency through a currency exchange provider.

4. With respect to the challenged decision of Toner DCJ on appeal from Ryan LCM, the charge had been brought under the Anti-Money Laundering Act. The charge alleged that Mr Mulder had given false or misleading information to a reporting entity, namely, a bank.

5. The first respondent, the Commonwealth Director of Public Prosecutions (Commonwealth DPP), opposed the relief sought. The District Court has been joined as a respondent in each proceeding, upon orders made by the Registrar of this Court on 13 October 2014. It filed a submitting appearance, save as to costs.

6. In his summons in the first proceedings (2014/219475), Mr Mulder also joined the Commissioner of the Australian Federal Police as a respondent. On the hearing of the application, the Court directed that the Commissioner Australian Federal Police be removed as a party to those proceedings.

7. To succeed in obtaining relief in respect of orders of the District Court it was necessary for Mr Mulder to establish that Judge Hock and Judge Toner, exercising the District Court’s criminal jurisdiction had committed jurisdictional error which includes a failure to afford procedural fairness during a hearing. [1] Further, unless and until the District Court orders are set aside, any attempt to challenge the orders in the Local Court convicting Mr Mulder would be incompetent. [2]

   1. Reznitsky v Director of Public Prosecutions (NSW) [2014] NSWCA 79; Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 (Kirk) at [60]; Wang v Farkas [2014] NSWCA 29; 85 NSWLR 390 at [41] (Basten JA).

   2. Garde v Dowd [2011] NSWCA 115; 80 NSWLR 620 at [11]-[14] (Basten JA; Giles JA and McColl JA agreeing).

8. For the reasons that follow, I am of the view that the Court should dismiss all the claims for relief.

Legislation

9. Sections 32 and 35 of the Australian Passports Act relevantly provide as follows:

32 Improper use or possession of an Australian travel document

….

(2)   A person commits an offence if:

(a)   the person uses an Australian travel document in connection with travel or identification; and

(b)   the document was not issued to the person.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

35 Dishonestly obtaining an Australian travel document

(1)   A person commits an offence if:

(a)   the person obtains an Australian travel document; and

(b)   the person does so:

(i)   dishonestly; or

(ii)   by threats.

Penalty: Imprisonment for 10 years or 1,000 penalty units, or both.

10. Sections 136 and 140 of the Anti-Money Laundering Act relevantly provide as follows:

136 False or misleading information

(1)   A person commits an offence if:

(a)   the person gives information to:

…

(v)   a reporting entity;

… ; and

(b)   the person does so knowing that the information:

(i)   is false or misleading; or

 (ii)   omits any matter or thing without which the information is misleading; and

(c)   the information is given, or purportedly given, under:

(i)   this Act; or

…

Penalty: Imprisonment for 10 years or 10,000 penalty units, or both.

…

(4)   Strict liability applies to the paragraph (1)(c) element of the offence.

140 Receiving a designated service using a false customer name or customer anonymity

(1)   A person commits an offence if:

(a)   the person commences to receive a designated service; and

(b)   the person does so using a false customer name; and

(c) at least one provision of Division 2, 3 or 4 of Part 2 applies to the provision of the designated service.

Penalty: Imprisonment for 2 years or 120 penalty units, or both.

(2)   Strict liability applies to the paragraph (1)(c) element of the offence.

11. A “reporting entity” is defined to mean a person who provides a designated service: s 5.

12. The provision of a “designated service” is defined in s 6(1) by reference to the provision of various financial services to a customer as itemised in Table 1. Relevantly, Table 1 includes:

Table 1 - Financial services
Item	Provision of a designated service	Customer of the designated service
1	in the capacity of account provider, opening an account, where the account provider is: (a) an ADI; or (b) a bank; or (c) a building society; or (d) a credit union; or (e) a person specified in the AML/CTF Rules	the holder of the account
50	exchanging one currency (whether Australian or not) for another (whether Australian or not), where the exchange is provided in the course of carrying on a currency exchange business	the person whose currency is exchanged

13. In the present case, for the purposes of s 140(1)(c), the relevant provisions of Divisions 2, 3 or 4 of Part 2 of the Anti-Money Laundering Act are ss 28 and 32. Section 28 (which appears in Div 2 of Pt 2) relevantly provides:

28 Identification procedures for certain pre‑commencement customers

Scope

(1)   This section applies to the provision by a reporting entity of a designated service (the post‑commencement designated service) to a customer if, at a time before the commencement of this section, the reporting entity commenced to provide a designated service to the customer.

Exemption

(2)   Sections 32 and 34 do not apply to the provision by the reporting entity of the post‑commencement designated service to the customer.

Note:   For special rules about verification of identity etc., see section 29.

Interpretation

(3)   For the purposes of this section, assume that Part 1 had been in force at all material times before the commencement of this section.

14. Section 28 commenced operation on 12 December 2007.

15. Sections 32(1) and 33 (which appear in Div 4 of Pt 2) relevantly provide:

32   Carrying out the applicable customer identification procedure before the commencement of the provision of a designated service.

(1)   A reporting entity must not commence to provide a designated service to a customer if:

(a) there are no special circumstances that justify carrying out the applicable customer identification procedure in respect of the customer after the commencement of the provision of the service (see section 33); and

(b)   the reporting entity has not previously carried out the applicable customer identification procedure in respect of the customer; and

(c) neither section 28 nor section 30 applies to the provision of the service.

...

33   Special circumstances that justify carrying out the applicable customer identification procedure after the commencement of the provision of a designated service

For the purposes of this Act, if a reporting entity commences to provide a designated service to a customer, there are taken to be special circumstances that justify the carrying out of the applicable customer identification procedure in respect of the customer after the commencement of the provision of the service if, and only if:

(a)   the service is specified in the AML/CTF Rules; and

(b)   such other conditions (if any) as are set out in the AML/CTF Rules are satisfied.

Note: For specification by class, see subsection 13(3) of the Legislative Instruments Act 2003.

Background

16. The matter comes to this Court in the following way. On 28 March 2012, Mr Mulder was convicted in the Local Court (Andrews LCM) on 13 charges, namely:

1. one count of dishonestly obtaining an Australian passport in contravention of s 35(1)(b)(i) of the Australian Passports Act;

2. seven counts of improper use of an Australian passport in the name of Robert Miller in connection with identification to obtain various drivers’ licences, open bank accounts and depart and arrive in Australia in contravention of s 32(2) of the Australian Passports Act; and

3. five counts of commencing to receive a designated service using a false customer name in contravention of s 140 of the Anti-Money Laundering Act. (The “designated service” was the opening of three bank accounts, one with Westpac and two with ANZ Bank, and exchanging currency (Australian dollars for Euros) on two occasions with a currency exchange provider.)

17. On 10 May 2012, Mr Mulder was sentenced in the Local Court to imprisonment for a period of 9 months with a recognizance release order after he had served a period of 6 months’ imprisonment.

18. Mr Mulder appealed against his conviction and sentence. He subsequently withdrew his sentence appeal, with leave, on the hearing of the appeal before Hock DCJ on 27 March 2013. Her Honour dismissed the appeal against sentence, found the offences proved, confirmed the convictions and dismissed the appeal against conviction.

19. On 17 December 2013, Mr Mulder was convicted in the Local Court (Ryan LCM) on one count of giving false or misleading information to a reporting entity, the ANZ Bank, by stating that he was Robert Miller in contravention of s 136(1) of the Anti-Money Laundering Act.

20. On 17 February 2014, Mr Mulder was sentenced in the Local Court to imprisonment for a period of 8 months, with a recognizance release order after he had served a period of 6 months’ imprisonment.

21. Mr Mulder appealed against his conviction and sentence. On 26 August 2014, Toner DCJ dismissed the appeal against conviction. His Honour also dismissed the appeal against sentence but varied the sentence. He ordered that Mr Mulder enter into a recognizance release order on serving 55 days of imprisonment commencing from 2 July 2014. As Mr Mulder had already served that period of imprisonment by 26 August 2014, he was released from custody on that day.

The jurisdiction of the Local Court and the District Court

22. Relevant to the questions raised on these applications is a proper understanding of the jurisdiction which the Local Court was exercising, and in turn the jurisdiction the District Court was exercising on appeal from the Local Court in respect of a federal offence.

23. The subject matter of the proceedings against Mr Mulder involved federal jurisdiction, being offences committed contrary to Commonwealth law. The Local Court, within the limits of its jurisdiction, was invested with the federal jurisdiction to determine the proceedings by virtue of s 39(2) and s 68(2) of the Judiciary Act 1903 (Cth).

24. The jurisdiction of the District Court, with respect to an appeal against conviction or sentence from the Local Court in respect of a federal offence, is provided by s 68(2) of the Judiciary Act. Part 3 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Appeal and Review Act) applies to proceedings in respect of Commonwealth offences by operation of ss 68(1)(d) and 79 of the Judiciary Act, except as otherwise provided by the Constitution or the laws of the Commonwealth.

25. Any person who has been convicted or sentenced by a Local Court may appeal to the District Court against the conviction or sentence (or both). [3]

    3. Appeal and Review Act, s 11(1).

26. An appeal against conviction is to be by way of a rehearing on the basis of the evidence given in the Local Court proceedings,[4] except if a direction for attendance for the giving of evidence in person is made. [5] Fresh evidence may also be given by leave. [6]

    4. Appeal and Review Act, s 18(1).

    5. Appeal and Review Act, s 19.

    6. Appeal and Review Act, s 18(2).

27. An appeal against sentence is to be by way of a rehearing of the evidence given in the Local Court proceedings, although fresh evidence may be given on appeal. [7]

    7. Appeal and Review Act, s 17.

28. As the appeal to the District Court is by way of rehearing, it is necessary for the appellant to demonstrate that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the District Court can substitute its own decision based on the facts and law as they then stand. [8] Accordingly, it was the duty of Judge Hock and Judge Toner to form their own judgment of the facts and, in particular, to determine whether the evidence before the Magistrates was sufficient to demonstrate Mr Mulder’s guilt on the charges beyond reasonable doubt.

    8. Allesch v Maunz [2000] HCA 40; 203 CLR 172 at [23]; Dyason v Butterworth [2015] NSWCA 52 at [28] (McColl JA; Barrett and Gleeson JJA agreeing).

29. The District Court may determine an appeal against conviction by, relevantly, setting aside the conviction or by dismissing the appeal. [9]

    9. Appeal and Review Act, s 20(1).

30. The District Court may determine an appeal against sentence by setting aside the sentence, by varying the sentence, or by dismissing the appeal. [10] The reference to varying a sentence includes: (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. [11] The District Court on appeal is confined to the sentences which could have been imposed by the Local Court. [12]

    10. Appeal and Review Act, s 20(2).

    11. Appeal and Review Act, s 3(3).

    12. Appeal and Review Act, s 71.

31. An appeal, including an appeal against sentence, may at any stage be withdrawn by the appellant, but only with leave of the appeal court, here the District Court. [13]

    13. Appeal and Review Act, 67(1).

The basis of these proceedings

32. There is no right of appeal to this Court from a decision of the District Court on an appeal against a conviction or sentence in the Local Court. The absence of any appeal from the District Court in such cases is long standing and deliberate. [14] Section 176 of the District Court Act1973 (NSW) provides that no adjudication on appeal of the District Court is to be removed by any order into the Supreme Court. [15] However, it is well established that the effect of s 176 is not to exclude proceedings by way of judicial review by this Court, but limit their availability to cases in which the applicant can demonstrate jurisdictional error. [16]

    14. Lavorato v Regina [2012] NSWCCA 61; 82 NSWLR 568 at [6] (Basten JA).

    15. Garde v Dowd at [9].

    16. Garde v Dowd at [10]. See also Spanos v Lazaris [2008] NSWCA 74 at [15]; Director of Public Prosecutions (NSW) v Emanuel [2009] NSWCA 42; 193 A Crim R 552 at [18] and [45]; and Elias v Director of Public Prosecutions (NSW) [2012] NSWCA 302; 222 A Crim R 286 at [5]; Yousaf v Director of Public Prosecutions (NSW) [2012] NSWCA 397 at [12] (Barrett JA; McColl and Meagher JJA agreeing).

33. An inferior court falls into jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist". [17] Such error will be established if the District Court judge misunderstood the scope of his or her jurisdiction, so as not to conduct a rehearing but, rather, undertook some more limited form of appeal. [18]

    17. Kirk at [72]; Craig v South Australia [1995] HCA 58; 184 CLR 163 at 177.

    18. McKellar v Director of Public Prosecutions (NSW) [2011] NSWCA 91 at [10]; Dyason v Butterworth [2015] NSWCA 52 at [32].

34. One recognised form of jurisdictional error is a failure to accord procedural fairness during a hearing. [19] Such a failure is susceptible to correction as jurisdictional error. [20]

    19. Kirk at [60].

    20. Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; 179 ALR 513 at [10].

32. In Commissioner of Taxation v Futuris Corporation Limited,[21] Kirby J observed that the recognised "jurisdictional error" categories in Australia are not closed. His Honour noted that the following have been recognised by "a leading Australian academic authority on the subject" (Aronson, "Jurisdictional error without the tears", in Groves and Lee (eds), Australian Administrative Law - Fundamentals, Principles and Doctrines (2007) 330 at 335-336):

    21. [2008] HCA 32; 237 CLR 146 at [134].

1.   A mistaken assertion or denial of the very existence of jurisdiction.

2.   A misapprehension or disregard of the nature or limits of the decision maker's functions or powers.

3.   Acting wholly or partly outside the general area of the decision maker's jurisdiction, by entertaining issues or making the types of decisions or orders which are forbidden under any circumstances.

4.   Acting on the mistaken assumption or opinion as to the existence of a certain event, occurrence or fact … or other requirement, when the Act makes the validity of the decision maker's acts contingent on the actual or objective existence of those things, rather than on the decision maker's subjective opinion.

5.   Disregarding a relevant consideration which the Act required to be considered or paying regard to an irrelevant consideration which the Act required not to be considered, in circumstances where the Act's requirements constitute preconditions to the validity of the decision maker's act or decision. …

6.   Misconstruing the decision maker's Act … in such a way as to misconceive the nature of the function being performed or the extent of the decision maker's powers. …

7.   [Acting in] bad faith.

8.   [A] breach of natural justice.

Challenge to decision at two levels

36. In the present case, Mr Mulder seeks to challenge both the District and Local Court orders. Ordinarily relief in relation to the Local Court orders would not be available in this Court’s exercise of its supervisory jurisdiction. Unless and until the District Court orders are set aside, any attempt to challenge the orders made in the Local Court would be incompetent. As explained by McColl JA in Dyason v Butterworth: [22]

Once the District Court confirmed the Magistrate’s order, its judgment operated as a judicial determination by a competent and higher authority that the Magistrate’s order was correct and “holds the field so long as it stands unreversed, and precludes this court making any judicial determination to the contrary”: Wishart v Fraser [1941] HCA 8; (1941) 64 CLR 470 (at 478) per Starke J. Further, as an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an “apparent legal effect” it will not be available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 88 ALJR 52 (at [25]) per French CJ, Crennan, Bell, Gageler and Keane JJ.

22. At [34] (Barrett and Gleeson JJA agreeing). See also Garde v Dowd at [11]-[14].

37. However, if the orders made in the Local Court convicting Mr Mulder exceeded the jurisdiction of that court, a challenge to the orders made by the District Court, on the grounds of the same jurisdictional error would be available. [23] Further this Court may review the magistrate’s decision if, having set aside the District Court judgment for jurisdictional error, it is apparent that there is only one conclusion properly available as a matter of law, which would require that the decision at first instance be set aside. [24]

    23. Garde v Dowd at [14].

    24. Bindaree Beef Pty Ltd v Riley [2013] NSWCA 305; 85 NSWLR 350 at [91] (Basten JA); Dyason v Butterworth at [35].

38. Accordingly, the only question that may be agitated in this Court on the matters raised by the amended summonses is whether the decisions of the District Court on appeal from the Local Court are affected by jurisdictional error. If error is established, a further question of what relief should be granted, including possibly in relation to the orders made by the Local Court, must be addressed.

Mr Mulder’s complaints

39. Mr Mulder specified 13 grounds of review in his two summonses. All but one were in identical terms. These were reduced to 12 identical grounds in a document included in the Court Book, entitled “Combined Summons (Judicial Review)”. It is convenient to proceed upon the basis that this later document reflects the grounds relied upon. It is unnecessary to say anything further in relation to these grounds at this stage.

40. In oral argument, Mr Mulder relied upon four additional matters which were asserted to constitute jurisdictional error. These were:

1. that he was not represented by competent counsel in the Local Court or the District Court and counsel did not follow his instructions;

2. the inability to rely upon an affidavit from Mr Robert Denis Miller as fresh evidence on the appeal before Toner DCJ on the s 136(1) charge;

3. that the Magistrate (Ryan LCM), who convicted Mr Mulder in the Local Court on 17 December 2013 on the s 136(1) charge, was biased; and

4. that the Court Attendance Notice (CAN) in respect of the s 136(1) charge in the Local Court proceedings before Ryan LCM had incorrectly particularised the date of the alleged offence of giving false or misleading information to the ANZ Bank.

41. The first three complaints may be taken to be an assertion of a failure to afford Mr Mulder procedural fairness. The fourth complaint may be taken to be an assertion that the incorrect particulars would result in the invalidity of the CAN, and of any conviction that resulted in proceedings commenced by such a CAN.

The proceedings in the Local Court and the District Court

42. It is necessary to refer to the course of the proceedings in the Local Court and the District Court, as many of Mr Mulder’s complaints assert that he was not afforded procedural fairness.

(a) The first Local Court proceedings

43. In the first Local Court proceedings before Andrews LCM, Mr Mulder was represented by Mr D McCallum of counsel. The hearing proceeded over five days commencing on 7 March 2012. Mr Mulder gave evidence in his defence and was cross-examined. The magistrate gave judgment on 28 March 2012. The transcript of the proceedings is not in evidence, but the reasons of the magistrate are available.

44. The prosecution case was that Mr Mulder had assumed his twin brother’s identity and, using that identity, had obtained various documents that allowed him to open various bank accounts, obtain a passport and drivers licences and other forms of identification and as a consequence, carried out financial transactions in the name of his brother, Robert Miller.

45. The magistrate identified in his reasons two contentions central to the prosecution case. One was the assertion that Robert Miller left Australia on 5 March 2013 by aircraft on GA flight 715 [sic], using passport L6568442, which was issued in June 1998 and due to expire in June 2008. On the prosecution case this was the last time that Mr Robert Miller was in Australia and he had not returned since. The other was the assertion that any activity referred to in any document as having been carried out by Mr Robert Miller after 5 March 2003 was, in fact, carried out by Mr Mulder.

46. The magistrate noted that the prosecution case was a circumstantial one. It relied upon the reference to various mobile numbers, addresses and an email address which it alleged were used by Mr Mulder on various documents in the name of Mr Robert Miller.

47. The defence case was essentially that the prosecution was based on the flawed assumption that Mr Robert Miller had not been in Australia since March 2003 and that there had been no serious attempt by the prosecution to establish the whereabouts of Mr Robert Miller.

48. The magistrate first addressed submissions which had been made on behalf of Mr Mulder that certain of the charges brought pursuant to s 140 of the Anti-Money Laundering Act should be dismissed on the basis that the requirements of s 140(1)(c) had not been satisfied. The magistrate gave reasons for accepting this submission with respect to four of the nine counts, which were dismissed. With respect to the five counts which were not dismissed, the magistrate rejected the submission on behalf of Mr Mulder that there was no evidence from any witness as to what the applicable customer identification procedure was for the relevant institution.

49. As to four of the counts which were not dismissed, the magistrate found that there was evidence which sufficiently complied with the requirements of s 32(1)(a) with respect to customer identification procedures. Accordingly, the s 140(1)(c) requirement was satisfied.

50. With respect to the remaining count which was not dismissed, the magistrate accepted the Crown’s submission that the appropriate reference in s 140(1)(c) was to s 28 which makes no reference to an applicable customer identification procedure where the account was opened before the commencement of that section (being 12 December 2007). This followed from the fact that the offence was alleged to have occurred on 11 May 2007 at Leongatha in relation to the opening of a Westpac account using a false customer name. The magistrate accepted the Crown submission that the effect of the exemption in s 28(2) was that the customer identification requirements in s 32 did not apply at the time the Westpac account was opened on 11 May 2007.

51. After summarising the evidence relied upon by the prosecution, the magistrate made a number of findings of fact. These findings included that there was clear evidence from the Department of Immigration and Citizenship (as the department was then known) that Robert Dennis Miller left Australia from Sydney Airport using passport L6568442 on 5 March 2003. Further, there was no subsequent movement record of the person the subject of that passport coming into or out of Australia. The magistrate also found that passport M882597, which it was alleged Mr Mulder had obtained in the name of his twin brother, was used for a further departure from Australia on 14 October 2008 and re-entry to Australia on 26 February 2009 at Eagle Farm Airport, Brisbane.

52. The magistrate then referred to 15 other pieces of circumstantial evidence relied upon by the prosecution. Some of the evidence was regarded by the magistrate as having little weight, in particular – (a) photo identification by Mr Layton on 6 April 2011 relied upon by the prosecution to demonstrate that Mr Mulder was staying at a backpackers’ hostel in Freemantle 2 years 7 months earlier, given the lapse of time and given also the striking similarity between Mr Mulder and his twin brother; and (b) the alleged admission made by Mr Mulder to Mr Cawthorne on 15 December 2010 that his brother left Australia in 2003 and was now in the Netherlands, in the absence of any contemporaneous record of that conversation.

53. The magistrate referred to various aspects of Mr Mulder’s evidence in which he denied a number of matters.

54. The magistrate concluded his reasons as follows:

Having considered the various submissions and the evidence, I agree with the prosecution's submissions that the evidence is overwhelming and conclusive that the accused assumed the identity of his brother Robert after Robert left Australia in 2003. While some of the matters relied upon are not in themselves overwhelming, when taken together there is no other inference reasonably open on the evidence, other than the accused was the person referred to in the various documents as Miller. The records for entries in and out of Australia indicating that Miller left in 2003 and did not return before departing again in 2008 would require the Court to find that Miller re-entered the country on a number of occasions on the evidence of the accused by some illegal means or else that the record keeping system was less than perfect on each such occasion. Whilst each of these explanations are possibilities, this lack of a recording of a return entry is another fact to be taken into account.

The fact that the prosecution have excluded the possibility of Miller entering legally using a passport in the name of Miller, using a Dutch passport, is a fact of a further strength in otherwise strong circumstantial case. Particularly compelling, in my view, is the evidence as to Miller arriving back in Brisbane on 26 February 2009 and on that same day the accused commences to receive a Centrelink payment. Similarly, on 14 October 2008 the entry records indicate that Miller departed Perth and on that same day Centrelink payments in the accused's name ceased. The reason given for the use of the same email address by Miller was not convincing. I am satisfied it was the accused who wrote that email address on the various documents in the name of Miller.

The evidence given by the accused that his brother came back to Australia "On many occasions" would indicate that he has either done so illegally on such occasions, or else that the record keeping system was continually deficient, given that after 2003 he was only recorded as leaving Australia in October 2008 and re-arriving in February 2009. I do not accept what the accused said in relation to his brother returning on many occasions. The lack of record of Miller leaving in 2011, as the accused said occurred, is telling in this regard. When all the circumstances are taken together, such as the common use of addresses and mobile phone numbers, the return to Australia by Miller and the immediate application by the accused for Centrelink benefits, I'm satisfied beyond reasonable doubt that Robert Miller left Australia in 2003 and thereafter the accused assumed the identify of his brother Robert Miller and thereafter committed each of the offences remaining before the Court.

I FIND EACH OF THE SEVEN COUNTS PURSUANT TO S 32(2) OF THE AUSTRALIAN PASSPORTS ACT 2005 PROVEN. [I] FIND COUNTS 1, 6, 7, 8 AND 9 PURSUANT TO S 140 OF THE ANTI-MONEY LAUNDERING AND COUNTER-TERRORISM FINANCING ACT 2006 PROVEN AND I FIND THE ONE COUNT PURSUANT TO S 35(1)(B)(I) OF THE AUSTRALIAN PASSPORTS ACT 2005 PROVEN.

(b) The appeal to the District Court

55. On the appeal to the District Court before Hock DCJ, Mr Mulder was represented by Mr Greg Jones of counsel.

56. At the commencement of the appeal, counsel for Mr Mulder sought and obtained leave to withdraw the appeal against sentence. Hock DCJ proceeded to dismiss the sentence appeal.

57. Her Honour asked counsel to identify the precise point of the conviction appeal. Counsel identified a number of matters. First, that a number of pieces of evidence were said to have been admitted in error before the magistrate. This complaint was particularly directed to the evidence the subject of the tendency and coincidence notice. It was asserted that the evidence did not satisfy the requirements of s 101 of the Evidence Act 1995 (NSW) because the probative value of the evidence did not substantially outweigh its prejudicial effect on Mr Mulder. Next it was asserted that identification evidence from Mr Layton (who ran the Freemantle backpackers’ hostel) based on a photo board identification on 6 April 2011 should not have been admitted.

58. Secondly, it was argued that on the occasion when Mr Mulder was arrested on 2 February 2011 at Sydney Kingsford Smith Airport, prior to his intended departure from Australia, it was significant that nothing was found in his possession which suggested that he was impersonating Mr Miller. The contention was that this demonstrated the tendency for Mr Mulder to travel as Mr Jack Mulder.

59. Thirdly, complaint was made that the evidence of Mr (or Ms) Marris (the material before the Court is unclear as to this person’s correct title) from the Department of Immigration and Citizenship was very generalised and did not demonstrate that Mr Robert Miller had not returned to Australia after his departure on 5 March 2003. It was also asserted that there was evidence that Robert Miller was a pilot and that pilots had different immigration requirements for entering and leaving Australia and this explained the absence of records in relation to Mr Robert Miller’s re-entry to Australia. Complaint was also made that Agent Jenner, from the AFP, did not take all avenues of inquiry and investigation to rebut the defence suggestion that there may be an error in the immigration records concerning the movements of Mr Robert Miller.

60. The Crown tendered without objection the material from the Local Court proceedings. Her Honour adjourned the proceedings to read the material, in particular, the Crown submissions and those on behalf of Mr Mulder in the Local Court.

61. Following the adjournment, counsel for Mr Mulder made further submissions with respect to what was said to be a reasonable possibility that Mr Mulder’s twin brother came back into Australia after he had left on 5 March 2003. The Crown submitted that there was an overwhelming circumstantial case and relied upon submissions made by the Crown in the Local Court. After some short submissions in reply by counsel for Mr Mulder, her Honour adjourned the matter to 3pm to consider her decision.

62. In her reasons for judgment her Honour noted that the prosecution case was based entirely on circumstantial evidence. Her Honour also noted that many of the facts were not in dispute but what was very much in dispute was the complexion to be put on those facts, individually or more importantly when taken as a whole. Her Honour summarised, in a non-exhaustive list, the circumstances relied upon by the prosecution in support of the 13 charges.

63. Her Honour noted that Mr Mulder had given evidence before the Local Court and was cross-examined and that she had read that evidence. Her Honour referred to particular denials by Mr Mulder of the matters upon which he had been charged and the explanations he relied upon for most of the circumstances on which the prosecution case relied.

64. In relation to the disputed identification evidence of Mr Layton, her Honour rejected the submission on behalf of Mr Mulder that the evidence was inadmissible. Her Honour said she placed little weight on the evidence but found it admissible as part of the circumstantial case.

65. In respect of the evidence of Mr Cawthorne, relating to the alleged admission by Mr Mulder to him on 15 December 2012 that his brother was now in the Netherlands, her Honour put this evidence aside.

66. Her Honour noted that she had not had the benefit of seeing or hearing Mr Mulder give his evidence, however, on her reading of the transcript she found there was force in the prosecutor’s submission that Mr Mulder’s evidence was both implausible and unreliable. In this regard her Honour took into account two matters. First, although it was theoretically a possibility that the appellant and his twin brother were both at the same places at the same time in relation to the conduct the subject of the charges, this was unlikely in circumstances where Mr Mulder gave evidence that since his arrest he had been trying to contact his brother without success. The second matter was that there was other evidence which was capable of, and did in fact support the conclusion, that it was Mr Mulder who conducted the transactions the subject of the charges.

67. Her Honour found that Mr Mulder’s suggestion that it was Mr Robert Miller who conducted the transactions as he had re-entered Australia, without there being any record of it, was fanciful or implausible in the light of the whole of the evidence. She further found that the evidence was overwhelming that Mr Mulder had assumed his brother’s identity after Robert Miller left Australia in 2003.

68. Accordingly, her Honour was satisfied beyond reasonable doubt that each of the charges had been proved. Her Honour found the offences proved and the convictions were confirmed in respect of all 13 offences.

(c) The second Local Court proceedings

69. In the second Local Court proceedings before Ryan LCM, Mr Mulder was initially represented by Mr Jeremy Rea, solicitor, when the hearing commenced on 14 August 2013. The matter was adjourned part-heard to 27 November 2013 with two days set aside to complete the hearing.

70. On 27 November 2013, Mr Mulder initially appeared unrepresented. The magistrate adjourned the hearing briefly so that inquiries could be made as to whether a representative from Legal Aid could assist Mr Mulder. Following a short adjournment, Mr Hughes of counsel appeared for Mr Mulder. He sought to vacate the two days set aside for the hearing. This was opposed by the Crown. The magistrate refused to vacate the hearing dates but granted an adjournment until lunchtime for Mr Hughes to confer with Mr Mulder.

71. Shortly before the luncheon adjournment, Mr Hughes informed the magistrate that he had familiarised himself with the materials and would be in a position to represent Mr Mulder’s interests at 2.00 pm. The hearing recommended shortly after the luncheon adjournment. The prosecution called a number of witnesses who were crossed-examined by Mr Hughes.

72. On the following day (28 November 2013) counsel for the Crown and Mr Hughes addressed legal argument on the admissibility of certain materials the subject of a tendency notice given by the Crown under s 97 of the Evidence Act 1995 (NSW). The Crown explained that the purpose of the evidence was to show that Mr Mulder had a tendency to use identification in the name of Robert Denis Miller and to use that identity to open accounts and conduct transactions with financial institutions, and to also use the postal address “C/o Jack Mulder, Potts Point Post Office, Potts Point, New South Wales” and to use the password “ultralight”. After hearing argument, the magistrate made a ruling admitting the evidence of tendency.

73. Mr Mulder was then called to give evidence in his own case. He gave evidence in chief and was cross-examined by the Crown. However, after the luncheon adjournment, Mr Mulder refused to return to the witness box to continue cross-examination. The magistrate explained to Mr Mulder that if he declined to answer any further questions she would either totally disregard his evidence in chief, including his denial of having made the relevant telephone calls to the ANZ Bank, or she would direct him to answer questions and if he refused then in all likelihood submissions would be made by the Crown that he was a person whose credit ought not to be considered of any value whatsoever. Mr Mulder confirmed to the Court that he did not wish to continue cross-examination.

74. The proceedings were adjourned to 17 December 2013 when the magistrate gave her reasons for judgment. The magistrate noted the prosecution’s case. This was that Mr Mulder made a telephone call to the ANZ Bank on 10 September 2012 during which he falsely represented to an operator of a call centre at the bank that he was Robert Miller, the holder of a nominated ANZ term deposit account, and that he directed the operator to rollover the term deposit for a further period and to open a further account in the name of Robert Miller.

75. The magistrate identified the elements of the offence under s 136(1). The magistrate summarised the audio recording of the telephone conversation in which the caller identified himself as Robert Miller, stated he was inquiring about his term deposit and gave a nominated account number and when asked his name the transcript records that Mr Mulder replied: “Oh Jack. My name? Oh, Robert Miller, M.I.L.L.E.R.”.

76. The magistrate noted that evidence had been tendered by the Crown pursuant to s 97 of the Evidence Act in order to prove that Mr Mulder had a tendency to act in a particular way, namely, to use the identity of Robert Miller in order to open accounts and conduct transactions with financial institutions, and further to use the postal address “C/o Jack Mulder, Potts Point Post Office” and the password “ultralight” in connection with the ANZ term deposit account.

77. Notwithstanding her earlier ruling on 28 November 2013 admitting all of the evidence the subject of the tendency notice, the magistrate revised her ruling with respect to the use of the postal address and the password. The magistrate found that she could not be satisfied beyond reasonable doubt that Mr Mulder did act in those particular ways in relation to the postal address and the password. Therefore it was not open to conclude that he had a tendency to do so. Subject to this matter, the magistrate confirmed her earlier finding that Mr Mulder had a tendency to use the identity of Robert Miller to open bank accounts and to conduct transactions with financial institutions.

78. Having regard to Mr Mulder’s refusal to continue cross-examination, the magistrate found that minimal weight could be given to his evidence as the Court had not been afforded any real opportunity to see it tested under cross-examination.

79. The magistrate found on the evidence that the Court could be satisfied beyond reasonable doubt that it was Mr Mulder who made the telephone call to the ANZ Bank on 10 September 2012. This finding was based on a number of matters including:

• first, when asked by the ANZ operator to give his name the caller initially answered “Jack”;

• secondly, the call was not made from Holland as asserted by the caller. The evidence established that the call was made from a particular public pay phone located in Surry Hills, which was in close proximity to the address at which Mr Mulder had been living until the morning of 10 September 2012; and

• thirdly, her Honour was satisfied on the evidence that Robert Miller was not in Australia on 10 September 2012 and therefore could not have made the call which was made in Sydney.

80. The magistrate concluded that the offence was established beyond reasonable doubt.

(d) The second appeal to the District Court

81. On the appeal to the District Court, Mr Mulder was represented by Mr K Averre of counsel.

82. On the first day of the appeal, Toner DCJ addressed a preliminary question raised by counsel for Mr Mulder as to whether the prosecution case had established that information was given, or purportedly given, to the ANZ Bank “under the Act”, being a reference to the third element of the offence referred to in s 136(1)(c). The point taken by counsel for Mr Mulder was that there was no direct evidence to satisfy that element.

(1) Ruling on preliminary point

83. In a judgment given on 25 August 2014, Toner DCJ rejected this contention and found that he was satisfied beyond reasonable doubt that the element in s 136(1)(c), that the information be given, or purportedly be given, “under the Act”, could be inferred from other facts proved including:

1.   that the bank was an entity that was governed by the obligations cast by the Act;

2.   that the bank in complying with the provision in the legislation, in part at least, obtained information from its customers;

3.   that the transaction that was sought to be effected, and in fact was effected, was a designated service which was caught by the provisions of the legislation and thus was one which cast an obligation on the bank to properly record it and report it.

84. His Honour further found that it was not to the point that in collecting this information the bank had other collateral purposes such as demonstrating to the satisfaction of the bank’s employee that the person she was dealing with was a person who was entitled to have effect the transaction which was sought.

85. His Honour concluded:

It seems to me that in the circumstances of this case where the Act casts upon the bank that obligation, where the officer involved in this transaction I conclude was well aware of the bank’s obligation, where the information was sought from the caller and provided by the caller, I infer that a purpose that the bank held and in particular the officer involved, namely Ms Sharma had, was to collect the information for the purposes of the bank’s obligations pursuant to the legislation and, accordingly, I find that that element is made out in the context of this case.

86. On the following day (26 August 2014) counsel sought to rely upon fresh evidence on appeal, being an affidavit from Mr Mulder sworn 12 August 2014, which it seems attached an affidavit from Robert Miller sworn 19 March 2014. An exchange took place between his Honour and counsel for Mr Mulder. Counsel acknowledged that he could not rely on the affidavit of Mr Miller as fresh evidence in the absence of the witness. His Honour refused to grant leave to rely upon the affidavit of Mr Mulder as it was not fresh evidence.

(2) Decision on appeal

87. In his reasons for judgment given on 26 August 2014, Toner DCJ noted that the Crown’s case against Mr Mulder was circumstantial. His Honour stated that he had read the transcript of the proceedings before the magistrate and the exhibits tendered during that hearing. His Honour noted the limited use which the magistrate had made of the tendency evidence and that neither the Crown nor counsel for Mr Mulder had sought to canvass the magistrate’s ruling on appeal.

88. His Honour next referred to the so-called voice identification evidence of Agent Jenner. His Honour agreed with the conclusion of the magistrate that no weight should be given to that evidence and noted that again the Crown did not seek to re-agitate that question or seek to canvass the magistrate’s ruling in relation to voice identification.

89. His Honour referred to the circumstances in which the cross-examination of Mr Mulder came to an end before the magistrate. His Honour observed that it was apparent from the reading of the transcript of the cross-examination which had occurred that there was much more to come in terms of cross-examination of Mr Mulder. His Honour agreed with the magistrate that Mr Mulder’s evidence ought in the circumstances be given minimal weight.

90. His Honour then turned to the circumstantial case relied upon by the prosecution which was said to establish Mr Mulder’s guilt beyond reasonable doubt. His Honour referred to a number of pieces of evidence including: the tendency evidence admitted by Ryan LCM, the evidence from Telstra which identified the source of the call being from a public telephone in Surry Hills which was about 200 metres from the place where Mr Mulder had been residing up until 10 September 2012. His Honour found that Mr Mulder was in New South Wales on that day, and was at Sydney Airport at 7.30 pm when he checked in for a flight leaving the country that evening. His Honour further found that Robert Denis Miller was not in Australia at that time.

91. In relation to the audio recording of the telephone call on 10 September 2012, his Honour found that the statement by the caller purporting to be Mr Miller, that he spends half his time in Australia and half in Holland could not be correct because on the evidence before the Court Mr Miller had departed Australia on 5 March 2003 and had not returned.

92. His Honour referred to the evidence of Mr Yelland, an employee of the Department of Immigration, who had undertaken searches of immigration records to determine movements of persons in and out of Australia within the relevant timeframe, and that that search would have also caught people who were dealt with differently, namely, commercial pilots. His Honour noted that no evidence was led or tendered to contradict the evidence of Mr Yelland that his search would have revealed such movements (by commercial pilots).

93. His Honour found that the evidence was capable of bearing the inference that it was Mr Mulder who made the phone call to the ANZ Bank on 10 September 2012. His Honour further found that there was no evidence which could be said to permit competing reasonable inference inconsistent with the guilt of Mr Mulder. His Honour concluded as follows:

I am of the opinion that the circumstances that are proved compellingly demonstrate that it was the appellant who made the call. It was made from a phone box close by to where he was living at the time. The caller had the particulars of the account and its name. The appellant gave the particulars of a contact address which was his own. The appellant was demonstrably in Sydney at the time as is shown by the fact that he flew out of Sydney later on that afternoon. Thus, I am of the view that the Crown case had comfortably satisfied the requirement of demonstrating the inference that is sought, namely, that it was the appellant who made the phone call and demonstrates that beyond a reasonable doubt, and I am of the opinion that there is no competing reasonable inference that can be drawn from the evidence that was before the learned Magistrate and is before me and, accordingly, I dismiss the appeal against conviction.

Consideration

94. It is convenient to first address the four complaints raised by Mr Mulder in oral argument before considering the identical grounds of review in each summons.

(a) Assertion of inadequate representation

95. Mr Mulder complained that he had not been adequately represented by counsel or his solicitor in either the Local Court proceeding or the District Court appeals. He also complained that his legal representatives did not follow his instructions in terms of the matters to be put in issue and the submissions to be made to the Court on his behalf.

96. Significantly, this complaint was not the subject of any affidavit evidence from Mr Mulder disclosing his communications with and instructions given to the solicitor and counsel representing him in the proceedings. This is a sufficient basis to reject this complaint.

97. There is however a further point to be made. A review of the transcript of the proceedings in the Local Court before Ryan LCM [25] and in the District Court appeals before Hock DCJ and Toner DCJ, as well as the reasons for judgment in the Local Court and the District Court proceedings, makes clear that the legal representatives for Mr Mulder sought to represent his interests as best they could in circumstances where there was a very strong prosecution case based on circumstantial evidence.

    25. The transcript of the Local Court proceedings before Andrews LCM was not in evidence.

98. Attempts were made by those legal representatives to challenge some of the charges and to exclude evidence which was damaging to Mr Mulder. [26] Four of the charges under s 140(1) of the Anti-Money Laundering Act were dismissed by Andrews LCM. Some evidence was successfully excluded before Ryan LCM. [27] Some evidence such as the photo identification evidence of Mr Layton, although admitted by Andrews LCM over objection, was given very little weight. [28] On the appeal to the District Court, Hock DCJ likewise gave little weight to that evidence. [29]

    26. See eg transcript 14/8/13 at 30, line 1-18; transcript 28/11/13 at 13 line 24-31.

    27. Transcript 27/11/13 at 29, line 27-29.

    28. Reasons for judgment 28/3/12 at 8, lines 32-44.

    29. Reasons for judgment 27/8/13 at 6.

99. Other evidence, such as the disc of the telephone recording with an employee of the ANZ Bank on 10 September 2010, was not excluded. That evidence was highly probative of the Crown case on the s 136(1) charge. Mention has already been made above of the transcript of that recording, including the exchange when the caller was asked his name by the operator. The full extract from the transcript records the following:

Female one: Thank you. And your name, please?

Male one: Sorry?

Female one: Your name?

Male one: Oh Jack. My name? Oh, Robert Miller, M.I.L.L.E.R.

100. The sole basis of objection to the tender of the audio recording – being the alleged absence of prior consent to the recording being made – was shown on the voir dire to be without substance.

101. There is no merit in the contention that Mr Mulder did not receive a fair hearing in either the Local Court or the District Court because he was inadequately represented by his solicitor or counsel. Nor is there any basis in the evidence for suggesting that Mr Mulder’s legal representatives did not follow his instructions.

(b) Asserted refusal to allow fresh evidence

102. Mr Mulder complained that he was not permitted to rely upon fresh evidence on appeal before Toner DCJ in the form of an affidavit from Mr Robert Denis Miller sworn 19 March 2014. [30]

     30. Court Book at 82.

103. This complaint misstates what in fact occurred. The position is that on the hearing of the conviction appeal before Toner DCJ on 26 August 2014, Mr Averre, counsel for Mr Mulder, did not seek to rely upon the affidavit of Robert Denis Miller as fresh evidence on the appeal, in the absence of the witness. Counsel properly acknowledged that he could not rely upon this affidavit as Mr Robert Miller was not available for cross-examination. [31] It was in those circumstances that Toner DCJ refused to permit Mr Mulder to rely upon his own affidavit sworn 12 August 2004 as fresh evidence on appeal. That affidavit, it seems, annexed or referred to the affidavit of Mr Robert Miller. No procedural unfairness has been demonstrated.

     31. Transcript 26/8/14 at 2, lines 11-22.

104. Mr Mulder made a further complaint. He said that it was unfair that he was not able to rely upon Mr Robert Miller’s affidavit as fresh evidence even in the absence of the witness because, it was asserted, Mr Robert Miller had been present at the District Court when the appeal was not reached on an earlier date (19 May 2014). There are a number of difficulties with this complaint.

105. First, Mr Mulder did not demonstrate on this application that his twin brother, Robert Denis Miller, was either present in Australia, or at the District Court on 19 May 2014.

106. Secondly, Mr Mulder acknowledged in this Court that no application was made on his behalf for an urgent hearing date to be fixed when the appeal was not reached in the District Court on 19 May 2014, on the basis that the deponent to the affidavit, the subject of the proposed fresh evidence, would be unavailable on the new hearing date for the appeal which had been fixed (26 August 2014). The reasonable inference is that Mr Mulder did not give instructions to his legal representative to make such an application because Mr Robert Miller was not present in Australia or at the District Court when the appeal was not reached on 19 May 2014.

107. Thirdly, no complaint of unfairness was raised by counsel for Mr Mulder on the appeal before Toner DCJ on 26 August 2014. Nor was any application made to Toner DCJ for an adjournment of the appeal, until Mr Robert Miller could be made available for cross-examination on his affidavit.

108. Finally, it is telling that the affidavit of Mr Robert Miller sworn 19 March 2014 did not address the critical issue upon which Mr Mulder had been convicted. That is, assuming, as Mr Mulder contended, that Mr Robert Miller was the deponent of the affidavit, Mr Robert Miller did not say that he was the person who had made the telephone call to the employee of the ANZ Bank on 10 September 2010. How the “fresh evidence” would have assisted Mr Mulder on his appeal to the District Court was left unexplained on this application.

109. This complaint must be rejected.

(c) Asserted apprehended bias

110. Mr Mulder next contended that he was denied a fair trial in the second Local Court proceedings before Ryan LCM because the description given to one of the exhibits in the Court’s record of exhibits demonstrated apprehended bias by the magistrate in the form of pre-judgment.

111. This contention was directed to Ex 6, which was originally Ex 3 on the voir dire in relation to the admissibility of the audio recording of the telephone conversation on 10 September 2012 between a person whom the prosecution alleged was Mr Mulder and an employee of the ANZ Bank. The circumstances in which the disc containing the audio recording came to be tendered in evidence were as follows.

112. The record of exhibits [32] describes Ex 6, previously Ex 3 on the voir dire, as:

Audio recording re conversation of Mr Jack Mulder and Manju Sharma on 15/9/12 (DVD).

32. MFI 1.

113. Mr Mulder contended that as the identity of the person speaking with Mr Sharma of the ANZ Bank was in issue, the description in the record of exhibits of himself as that other person signified prejudgment by Ryan LCM. An allegation of bias or apprehended bias entails lack of procedural fairness which is an established category of jurisdictional error.

114. The test to be applied in determining whether a judge is to be disqualified by reason of the appearance of bias (in this case, in the form of pre-judgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the questions the judge is required to determine. [33]

     33. Michael Wilson & Partners Limited v Nicholls [2011] HCA 48; 244 CLR 427 at [31].

115. There are a number of difficulties with Mr Mulder’s contention. First, there is no evidence that Ryan LCM was the author of the description given to Ex 6 in the Local Court’s record of exhibits. Secondly, the transcript of the proceedings before Ryan LCM on 14 August 2013 records that Ex 6 was described in neutral terms as a “disc of recording”. [34] Thirdly, the most likely inference is that the description of Ex 6 in the record of exhibits is to be attributed to the relevant court officer who was responsible for maintaining the records of exhibits during the hearing.

     34. Transcript 14/8/13 at 24, line 30.

116. There is no basis for concluding from the description of Ex 6 in the record of exhibits that Ryan LCM did not bring an impartial and unprejudiced mind to the resolution of the question to be determined by her Honour.

117. There is a further difficulty with Mr Mulder’s contention. As already mentioned, unless and until the District Court orders are set aside, any attempt to challenge the orders made in the Local Court would be incompetent. Further, Mr Mulder did not challenge the orders made by the District Court (Toner DCJ) on the grounds of the same alleged jurisdictional error that was said to have infected the Local Court order. That is, no complaint of bias, actual or apprehended, was made against Toner DCJ.

(d) Asserted defect in court attendance notice

118. The Criminal Procedure Act 1986 (NSW) requires that a CAN contain certain information including a description of the offence and to briefly state the particulars of the alleged offence. [35] There is an express power of amendment of a CAN conferred by s 20 of the Criminal Procedure Act with either the leave of the court, or with the consent of the accused and by s 21 if the court thinks it necessary to meet the circumstances of the case. By reasons of the extended meaning of “indictment” given by s 15(2), sections 20 and 21 apply to a CAN. [36]

     35. Criminal Procedure Act 1986 (NSW), s 175(3).

     36. Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83; 170 A Crim R 366 at [48] and [50].

119. It is also established that contravention of the requirement created by s 175(3) of the Criminal Procedure Act to provide brief particulars of the alleged offence, does not result in invalidity of the CAN, or of any conviction resulting from proceedings commenced by such a CAN. [37]

     37. Knaggs v Director of Public Prosecutions (NSW) at [60] and [83] (Campbell JA; Mason P and Tobias JA agreeing).

120. In the present case, the CAN in relation to the s 136(1) charge under the Anti-Money Laundering Act gave the following particulars of the offence:

Give false or misleading information to specified persons or entities

at 1.45 am on 05/01/2013 at Surry Hills

did give false information to a reporting entity, to wit, ANZ Bank, by stating he was Robert MILLER. [38]

38. Court Book at 59.

121. The date of the offence (5/01/13) specified in the court attendance notice was obviously incorrect. This date was the date on which Mr Mulder was charged with that offence.

122. Also in evidence on this application was a copy of a CAN containing the handwritten words “CAN amended 11/01/13 Central LC”. [39] This may be taken to be a reference to Central Local Court. The date of the alleged offence in the CAN has been amended to read:

On or about 10/09/2012 at Sydney, NSW.

39. Exhibit 1.

123. In the Local Court proceedings, before Ryan LCM, the transcript records that at the commencement of the hearing on 14 August 2013, her Honour noted with respect to the s 136(1) charge:

Now the date is particularised as on or about 10 September 2012; its been amended. [40]

40. Transcript 14/08/13 at 1, lines 47-48.

124. No objection to the amendment to the particulars of the charge was taken by Mr Rea, who then appeared for Mr Mulder. The matter proceeded in the Local Court upon the basis of the particulars of the offence stated in the CAN as amended.

125. Likewise, on the appeal against conviction to the District Court, no complaint was made by counsel then appearing for Mr Mulder concerning the amendment to the CAN particularising the date of the offence. Indeed, in answer to an inquiry by Toner DCJ concerning a reference in an affidavit by Mr Mulder to the “5 January 2013 charge”, Mr K Averre, counsel for Mr Mulder, responded:

That was the date of the arrest on Mr Mulder’s return and the CAN, which alleged the date of the offence as being 5 January 2013, “in error, subsequently amended to September 2012”. [41]

41. Transcript 26/08/14 at 1, lines 35-37.

126. Argument on appeal in the District Court, as in the Local Court, proceeded upon the basis that the alleged offence had occurred on or about 10 September 2012.

127. Mr Mulder acknowledged that he was present both in the Local Court and in the District Court when the amendment to the particulars of the offence stated in the CAN was raised by the magistrate and the judge with his solicitor and counsel respectively.

128. The conclusion to be drawn is that Mr Mulder and his legal representatives were well aware of the amendment to the particulars of the offence stated in the CAN and contested the matter on the basis of the amended particulars. There was no defect or invalidity in the CAN arising from that amendment. Nor was there any invalidity in the conviction that resulted in proceedings commenced by such a CAN.

129. This complaint must be rejected.

Other asserted grounds of review

130. In his “combined summons", Mr Mulder specified 12 grounds, each of which was asserted to constitute jurisdictional error, such that the decisions of the District Court and the Local Court are invalid. These grounds were:

1   Inadequacy and insufficiency of the reasons given in all judgments;

2   Failure to confirm, that Robert Miller has returned to Australia since March 2003;

3   Failure to identify the elements of the relevant offences due an inappropriate reversal of the onus of proof; [sic]

4   No evidence and no material produced in evidence to support the charges;

5   Decision so made was manifestly unreasonable;

6   Doubts are cast on the findings made on the basis the witness Robert Miller has not been called by the parties;

7   False assumptions have been made, which have obscured the issues of the matter on which the true facts have not been put;

8   Contemptible inferences have been made, necessitate the retrial of the issues; [sic]

9   The issues of credibility have not been resolved and cannot be resolved on reading of the transcript alone;

10   Omission to find facts due failure to identify issues addressed in a structural way;

11   No evidence produced by prosecution capable of supporting a particular finding;

12   An assessment of the inferences made have not been drawn from the whole of the material before the court.

Absence of Robert Miller as a witness

131. The matter referred to in ground (6) above has already been rejected when addressing Mr Mulder’s complaint that he was unable to rely upon fresh evidence on appeal in relation to the s 136(1) charge. Insofar as this ground is to be taken as suggesting that the prosecution should have called Mr Miller as a witness to give evidence in the Local Court proceedings, this complaint is misconceived. It assumes, without evidence, that Mr Robert Miller was available to be called and it also ignores the nature of the prosecution case and the position of the parties in the Local Court proceedings.

132. First, the prosecution called evidence which established, to the satisfaction of the magistrates, that Mr Robert Miller left Australia on 5 March 2003 and had not returned since. There is no material which suggests that the prosecution was aware of Mr Robert Miller’s whereabouts at the time of the Local Court proceedings.

133. Secondly, Mr Mulder gave evidence before Andrews LCM in March 2012 that his brother had left Australia soon after 5 January 2011, but that he did not know how he had left and that he had not seen him since. [42] Putting aside that the Crown did not accept the premise of this evidence (that is, that Mr Robert Miller was in Australia at least immediately prior to 5 January 2011), on Mr Mulder’s own evidence before the Local Court, Mr Robert Miller was not present in Australia at the time of the trial in the Local Court and furthermore, on Mr Mulder’s evidence Mr Robert Miller was uncontactable.

     42. Reasons for judgment 28/3/12 at 9, lines 43-46.

134. There is no basis for any complaint that the prosecution did not call Mr Robert Miller as a witness. On any view, he was not an “available witness”. [43] No question arises as to whether, if he was available, the Crown was either bound or under a duty to call him. [44] In any event, whilst a breach of that duty may amount to a miscarriage of justice, had that occurred, it could have been the subject of the grounds of appeal against conviction to the District Court. It seems that no such ground was relied upon by Mr Mulder either before Hock DCJ or Toner DCJ. This is unsurprising, given the factual position outlined above.

     43. Whitehorn v R [1983] HCA 42; 157 CLR 657 at 674 (Dawson J).

     44. Whitehorn v R at 674; R v Lipton [2011] NSWCCA 246; 82 NSWLR 123 at [75] (McColl JA).

135. This complaint, which does not constitute jurisdictional error, must be rejected.

Credibility issues

136. The matter referred to in ground (9) above, is a complaint directed to the nature of the appeal to the District Court. Mr Mulder asserted that issues of credibility have not been resolved and cannot be resolved on an appeal to the District Court, on reading of the transcript alone. This complaint misunderstands the nature of the task the District Court was to perform on an appeal by way of rehearing: see [26]-[31] above.

137. Except as provided by s 19 of the Appeal and Review Act, where a direction has been made for attendance for the giving of evidence in person and subject to the receipt of fresh evidence under ss 17 and 18(2), the District Court judge “must of necessity observe the ‘natural limitations’ stemming from proceeding wholly or substantially on the transcript record”. [45]

     45. Charara v R [2006] NSWCCA 244; 164 A Crim R 39 at [22].

138. Here no application was made on behalf of Mr Mulder for a direction that any person attend to give evidence in person. If such an application had been made, it would have been necessary for Mr Mulder to demonstrate that there were substantial reasons in the interests of justice why such a direction should be given.

139. There is no merit in this complaint.

Asserted inadequate reasons

140. Ground (1) concerns the assertion of inadequate reasons. It is well established that the extent and content of reasons will depend upon the particular case under consideration and the matters in issue. The duty to give reasons is a necessary incident of the judicial process. Failure to provide sufficient reasons promotes "a sense of grievance" and denies "both the fact and the appearance of justice having been done", thus working a miscarriage of justice. [46]

     46. Mifsud v Campbell (1991) 21 NSWLR 725 at 728; Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 442 (Meagher JA).

141. A complaint of inadequate reasons would only constitute jurisdictional error if the inadequacy or insufficiency of reasons demonstrated that the District Court Judge misunderstood the scope of his or her jurisdiction, so as not to conduct a rehearing but, rather, undertook some more limited form of appeal: see [33] above.

142. In the present case, the reasons of Hock DCJ and Toner DCJ, which have been summarised above, amply demonstrate that they correctly understood the task the District Court was to conduct by way of a rehearing. The reasons also demonstrate that they undertook that task in forming their own judgment of the facts and determining whether the evidence before the magistrates was sufficient to demonstrate Mr Mulder’s guilt on the charges beyond reasonable doubt. This complaint must be rejected.

143. The complaint of inadequate reasons is incompetent so far as it concerns the reasons given in the Local Court. In any event, the reasons of the magistrates, which have also been summarised above, were not such as to suggest that the magistrate’s misapprehended or disregarded the nature or limits of the Local Court’s functions or powers when exercising jurisdiction in respect of a Federal offence.

Asserted erroneous reversal of onus of proof

144. Ground (3) concerns the assertion of a reversal of the onus of proof with respect to the elements of the relevant offences. The complaint seems to be that in accepting the evidence of Mr (or Ms) Marris and Mr Yelland from the Department of Immigration (concerning the absence of any records of movement by Mr Robert Miller into or out of Australia after 5 March 2003), the magistrates and the District Court judges, in effect, incorrectly reversed the onus of proof by requiring Mr Mulder to demonstrate that the contrary was the case. No such error was made by the District Court (or the Local Court).

145. The prosecution bore the onus of establishing that Mr Mulder carried out the conduct the subject of the alleged offences. Both the magistrates and the District Court judges were satisfied that the prosecution had established, beyond reasonable doubt, that it was Mr Mulder who engaged in the offending conduct. In reaching this conclusion, they accepted that the evidence established that Mr Robert Miller was not present in Australia at the time of the alleged offences. This factual question was resolved, on the evidence, adversely to Mr Mulder.

146. These findings did not involve any reversal of the onus of proof.

Factual challenges on the merits

147. The remaining grounds relate to factual challenges and the sufficiency of the evidence upon which the convictions in the Local Court were based, and the appeals to the District Court against conviction were dismissed. These complaints do not raise any question of jurisdictional error.

148. Both the Local Court and the District Court within their jurisdictional limits were exercising criminal jurisdiction in respect of federal offences. The avenue of judicial review in this Court does not involve a merits review. Each of grounds (2), (4), (5), (7), (8), (10), (11) and (12) falls within this category. These complaints must be rejected.

Conclusion and orders

149. None of the asserted jurisdictional errors by the District Court have been established. In these circumstances, the assertion of jurisdictional error by the Local Court is incompetent. In any event, the complaints of jurisdictional error directed to the Local Court proceedings were not established.

150. I propose that each summons be dismissed with costs.

151. JOHNSON J: I agree with the reasons and proposed orders as contained in the judgment of Gleeson JA.

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Endnotes

Decision last updated: 10 April 2015