R v Chan

[2022] NSWDC 260

District Court

New South Wales

Medium Neutral Citation:

R v Chan [2022] NSWDC 260

Hearing dates:

21 June 2022

Date of orders:

13 July 2022

Decision date:

13 July 2022

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

(1)   The matter is listed for mention before me on Wednesday 17 August 2022 at 9.30am.

Catchwords:

CRIME — Appeals — Appeal against conviction

Legislation Cited:

Crimes (Appeal and Review) Act2001

Cases Cited:

AGv Director of Public Prosecutions [2015] NSWCA 218

Chararav R [2006] NSWCCA 244

Fox v Percy (2003) 214 CLR 118

GianoutsasvGlykis [2006] NSWCCA 137

Lumney v Director of Public Prosecutions [2021] NSWCA 186

McNab v Director of Public Prosecutions [2021] NSWCA 298

Category:

Consequential orders

Parties:

Director of Public Prosecutions (Prosecutor)
David Chan (Appellant)

Representation:

Solicitors:
ODPP (Prosecutor)
Appellant – self represented

File Number(s):

2021/12196

Publication restriction:

None

Judgment

1. On 5 November 2021, David Chan (the appellant) was convicted of an offence of “Disobey a No Stopping Sign” at the Downing Centre Local Court. The magistrate fined him the sum of $880. The appellant appeals as of right against the conviction.

2. At about 7.50pm on 31 October 2020, the appellant was driving a white Honda Odyssey motor vehicle that stopped outside the Dolphin Hotel in Crown Street, adjacent to a “No Stopping” sign. At the time, he was working as a ride share driver. He was approached by Senior Constable Windon (the officer) who spoke to him and took a photograph of the vehicle in the relevant location. Whilst the officer was speaking to the appellant, two ride share passengers got into the vehicle. The officer’s version of the offence was that the appellant had stopped his vehicle in the no stopping zone, prior to the officer approaching him. The appellant’s version was that the officer required him to stop in the location that he did, and that prior to the officer approaching him, his vehicle had been going forward slowly while he was trying to locate where he had to pick up his passengers from.

3. The appellant represented himself before the magistrate and on appeal.

The relevant law

4. The applicable principles to be applied in determination of the appeal are as follows.

Nature of the appeal pursuant to s 18 Crimes (Appeal and Review) Act 2001

5. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31].

6. The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22].

7. Whilst the magistrate’s reasons are not part of the certified transcripts referred to in s 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24].

8. The Court is obliged to give the judgment which, in its opinion, ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].

9. An appeal to the District Court under s 18 requires the demonstration of factual, legal or discretionary error to succeed: McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] (Bell P) and [83]-[90] (Basten and McCallum JJA).

10. The term “error” has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of “error” in the ordinary meaning of that term: AG v Director of Public Prosecutions [2015] NSWCA 218 at [34] (Basten JA) and McNab at [88] (Basten and McCallum JJA).

11. The requirement that the appellant demonstrate error does not reverse the onus of proof in that the prosecution, at all material times, bears the onus of establishing guilt beyond reasonable doubt: McNab at [26] (Bell P) and [91] (Basten and McCallum JA).

12. An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence and form its own view as to the appellant’s guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lumney v Director of Public Prosecutions [2021] NSWCA 186 at [44] (McCallum JA).

13. Section 20 Crimes (Appeal and Review) Act 2001 provides that the District Court may dispose of an appeal against conviction by setting aside the conviction or dismissing the appeal. There is no power to remit the matter to the Local Court.

The proceedings before the magistrate

14. There were a number of difficulties with how the matter proceeded in the Local Court.

15. First, the appellant had indicated that he required an interpreter. Despite one being ordered by the court, there was no interpreter present to assist the appellant. It is apparent from the transcript, even before the hearing commenced, that the magistrate stated that he was having difficulty understanding the appellant. The matter was stood down until after morning tea and enquiries were made about the availability of an interpreter. When the hearing started, the appellant asked if he would be provided with an interpreter, to which the magistrate said “No”.

16. The transcript is replete with a large number of non-transcribable entries when the appellant was speaking. I assume the transcriber could not understand what the appellant was saying in those parts of the recording.

17. Second, the magistrate made a number of derisive comments throughout the proceedings about the appellant’s case and similar excuses for stopping put forward by taxi drivers and ride share drivers “everyday”.

18. As to the appellant’s case, the magistrate pre-emptively described it at T3, lines 16-20. as:

What you’re going to say to me is this police officer of the rank of leading senior constable is a liar and this is a fraud and he took a photograph to set you up and that his evidence should be completely rejected.

19. I say pre-emptively because prior to the magistrate’s interjection, the appellant had not had the opportunity to provide any context for his case, in particular as to how he came to stop the vehicle, which was the critical issue.

20. At T3, lines 38-43, the magistrate said:

I get taxi drivers and Uber drivers every day saying, “Because my passenger had to vomit so I had to suddenly stop”, or “I didn’t even know the person was going to jump out of the car, it was all so sudden.”, or, “The person jumped out of the car without my consent”. I hear this every day, day in day out. It doesn’t matter whether you’re a taxi driver, an Uber driver. I couldn’t care, unless you’re an ambulance driver. Then I’d care.

21. When it came to the cross-examination of the officer by the appellant, the appellant managed to convey that the officer asked him to stop where he did, but the circumstances of how that was done are not readily apparent from the transcript, because of the words the appellant used, that indicated that he had difficulty expressing himself in English, and the inability of the transcriber to capture significant tracts of what he said.

22. The following exchange took place at T14-16:

HIS HONOUR:	You never stopped your motor vehicle?
ACCUSED:	She – he asked me to stop here.
HIS HONOUR:	Okay. All right.
Q.	What do you say about that?
ACCUSED:	He asked me to stop and take a photo. I’m driving the car.
HIS HONOUR:	I see, I see. What you’re saying is you were driving along.
ACCUSED:	Yeah.
HIS HONOUR:	Suddenly this police officer says, “Stop”, and he trapped you-
ACCUSED:	He says--
HIS HONOUR:	-he trapped you into stopping next to a no stopping sign?
ACCUSED:	He’s …(not transcribable)… like that
HIS HONOUR:	And when you were trapped – bear with me – when you were trapped—
ACCUSED:	No
HIS HONOUR:	-he then took a photo of your numberplate?
...
ACCUSED:	That time. I just…(not transcribable)… the time I go…(not transcribable)…and come here…(not transcribable)… said no stopping, stop. Stop, I …(not transcribable)…stop.
HIS HONOUR:	Did you complain to the police commissioner about his conduct?
ACCUSED:	Sorry? Again.
HIS HONOUR:	No, don’t worry. I withdraw that.
...
HIS HONOUR:	Yes
Q.	So, okay, what I gleaned from all of that is that effectively that you’ve entrapped him by – he was moving along, trying to find an address and you’ve commanded him to stop and then once he’s done that you’ve taken the advantage of then taking a photograph of his car, he not wanting to stop in that area but you directing him so. What do you say about that proposition? Correct or incorrect?
A.	Incorrect

23. Unfortunately, when the magistrate asked the question at T14, line 44 “What do you say about that?”, in neutral terms, the officer did not answer.

24. I cannot determine from the transcript if what the magistrate gleaned from the exchange was a fair representation of what the appellant said. I note that the magistrate had already stated that he believed at T3, lines 16-20, that the appellant’s case depended upon the officer being found to be “a liar” and the case to be “a fraud” and a set up. The magistrate’s ultimate question to the officer at T16, lines 20-25 reflected this understanding.

25. The question posed by the magistrate purporting to summarise the appellant’s case, was only ever likely to be answered in the negative, partially by reason of the way in which it was framed.

26. The refusal to allow the appellant to have an interpreter denied him the ability to put his case fairly. It is likely that his case could have been more subtlety put than the magistrate put it.

27. Finally, considering the whole transcript from the perspective of a fair-minded lay observer, I am satisfied that the magistrate’s comments and his questioning of the officer give rise to a reasonable apprehension of bias, against ride share drivers and the appellant’s case in particular.

28. The appellant was unrepresented and unlikely to have known that he should have made an application for the magistrate to disqualify himself. Further, without the assistance of an interpreter he could not have reasonably been expected to have been capable of doing so.

29. In all of the circumstances, I am satisfied that the magistrate’s decision was affected by error.

Resolution

30. I am left with the very difficult task of determining what to do with this case. There is evidence that could be accepted from the officer that could establish the offence, but it was elicited in a way that I have found to be fundamentally unfair to the appellant.

31. Where there is no power to remit the matter to the Local Court, there are substantial reasons in the interests of justice that the case be heard afresh in the District Court with the witnesses to be called to give evidence pursuant to s 19 Crimes (Appeal and Review) Act 2001, but that involves incurring considerable time and expense for a relatively minor offence.

32. I will give the Crown an opportunity to consider if it wants to run the case again in the District Court, and then list the matter to be reheard if necessary.

Orders

33. The orders I make are as follows:

1. The matter is listed before me for mention on Wednesday 17 August 2022 at 9.30am.

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Decision last updated: 13 July 2022