Relic v Director of Public Prosecutions

[2000] NSWCA 84

CITATION:	Relic v DPP & Anor [2000] NSWCA 84
FILE NUMBER(S):	CA 40561/99
HEARING DATE(S):	29 March 2000
JUDGMENT DATE:	26 April 2000
PARTIES :	Luba Relic (Claimant) v Director of Public Prosecutions (First Opponent) and District Court of NSW (Second Opponent)
JUDGMENT OF:	Beazley JA at 1; Stein JA at 2; Heydon JA at 23

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 98/12/1298
LOWER COURT JUDICIAL OFFICER :	Williams DCJ

COUNSEL:	In person (Claimant) Ms R Burgess (First Opponent) Submitting appearance (Second Opponent)
SOLICITORS:	n/a (Claimant) S E O'Connor (First Opponent) Submitting appearance (Second Opponent)
CATCHWORDS:	PREROGATIVE WRITS - certiorari - whether error on the face of the record - whether jurisdictional error - appeal from District Court hearing of appeal from Local Court - increase of sentence - imposition of recognisance in lieu of fine - requirement to warn - ND
LEGISLATION CITED:	Crimes Act 1900, s 558, s 562I (1) Justices Act 1902, s 125, s 146 Fines Act 1996 Supreme Court Act 1970, s 69(3), s 69(4), s 69B
CASES CITED:	Baker v The DPP (Unreported, Court of Appeal, 30 August 1996) Craig v State of South Australia (1994 - 1995) 184 CLR 163 Ho v DPP (1995) 37 NSWLR 393 Hughes v DPP (Unreported, Court of Appeal, 15 March 1994) Parker v The DPP (1992) 28 NSWLR 282 Whiteside v DPP [1999] NSWCA 454
DECISION:	Call up the record of the District Court relating to the appeal of the claimant, Luba Relic, being an appeal in the District Court No 98/12/1298. Confirm the order of Williams DCJ that the conviction be confirmed. Order that the order made by Williams DCJ deferring sentence upon the claimant entering into a conditional s 558 recognisance be quashed. Order that the proceedings be remitted to the District Court to re-sentence the claimant according to law.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40561/99
DC 98/12/1298

BEAZLEY JA
STEIN JA
HEYDON JA

Wednesday, 26 April 2000

Luba RELIC v DIRECTOR OF PUBLIC PROSECUTIONS & ANOR

Background

The claimant pleaded not guilty before the Local Court to contravening a restriction in an apprehended violence order (AVO). She was convicted and fined, and appealed to the District Court where she was unsuccessful.

The claimant has filed a Summons seeking an order that orders made in the District Court dismissing her appeal, confirming the conviction and deferring sentence upon her entering into a conditional recognisance under s 558 Crimes Act 1900, be quashed.

The Conviction

The claimant claims that the judge erred in allowing the prosecution to proceed with the evidence of the complainant, who had been unable to remember the date of the incident claimed to be in breach of the AVO. She submits that the judge was in error in admitting tape evidence of the incident and in describing her behaviour as ‘abnormal’ in the judgment. The claimant maintains that the judge did not allow her to properly put her case to the Court. She also complains about being kept waiting in custody before entering into the recognisance and about the manner of her arrest.
Held (Stein JA, Beazley and Heydon JJA agreeing):

There was no error of law on the face of the record nor jurisdictional error, as required for certiorari to be available.

The Sentence

Held (Stein JA, Beazley and Heydon JJA agreeing):

The judge failed to warn the claimant that he was contemplating imposing a more onerous sentence, a recognisance, in lieu of the fine. The claimant was not given the opportunity to seek leave to withdraw her appeal. Baker v The DPP (Unreported, Court of Appeal, 30 August 1996) applied.

The sentence should be quashed and the matter remitted to the District Court for re-sentencing in accordance with the law.

Orders

1. Call up the record of the District Court relating to the appeal of the claimant, Luba Relic, being an appeal in the District Court No 98/12/1298.

2. Confirm the order of his Honour Judge Williams that the conviction be confirmed.

3. Order that the order made by his Honour Judge Williams deferring sentence upon the claimant entering into a conditional s 558 recognisance be quashed.

4. Order that the proceedings be remitted to the District Court to re-sentence the claimant according to law.

OoO

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40561/99
DC 98/12/1298

BEAZLEY JA
STEIN JA
HEYDON JA

Wednesday, 26 April 2000

Luba RELIC v DIRECTOR OF PUBLIC PROSECUTIONS & ANOR
JUDGMENT

1    BEAZLEY JA: I agree with Stein JA. 2    STEIN JA: The claimant, Mrs Luba Relic, has filed a Summons seeking an order
that the orders made by Williams DCJ on 23 June 1999 dismissing her appeal, confirming the conviction and deferring sentence upon her entering into a conditional recognisance under s 558 of the Crimes Act 1900, be quashed. It is apparent that Mrs Relic seeks to quash both the conviction and sentence.

3 The Summons arises in the following circumstances. The claimant’s next door neighbour, Mr Hart, obtained an apprehended violence order (AVO) against the claimant in the Manly Local Court on 7 November 1996. It was made, by consent, and without admissions, for a period of 3 years. On 25 April 1998 the claimant was charged with contravening a restriction in the AVO between 23 and 24 April 1998 pursuant to s 562 I(1) of the Crimes Act. The maximum penalty for the offence is 2 years imprisonment and/or a fine of $5000.

4 The claimant pleaded not guilty before the Local Court but was convicted on 12 October 1998 and fined $500 with $51 court costs. She appealed to the District Court. The appeal was heard by Judge Williams on 23 June 1999. His Honour dismissed the appeal and confirmed the conviction. In lieu of the sentence imposed by the Magistrate, his Honour deferred passing sentence upon the claimant entering into a 3 year conditional recognisance under s 558 of the Crimes Act. The conditions of the recognisance were as follows:

1. Not to assault, intimidate, threaten, harass, approach, molest, abuse, speak to or otherwise interfere in any way whatsoever with Mr Hart or Ms Akers;
2. Not to contact Mr Hart and Ms Akers by any means whatsoever either personally or through any other person except a solicitor or the Probation and Parole Service;
3. Not to enter in any way or trespass on by any means the property of 14B Ponderosa Avenue, Warriewood;
4. To accept the supervision and guidance of the Probation and Parole Service for such time over the period of recognisance as they see fit;
5. To report to Probation and Parole within 5 days of today.

5 Section 146 of the Justices Act 1902 restricts the availability of certiorari. However, this section was repealed on 1 March 1999, although reinserted on 1 September 1999 in a slightly different form. As mentioned, the District Court appeal was heard on 23 June 1999 and the claimant’s Summons in the Supreme Court filed on 28 July 1999. It is not suggested by Ms Burgess, Counsel for the opponent, that s 146 effects the proceedings in the Court. 6 For certiorari to be available the claimant must establish an error of law on the face of the record of the proceedings (s 69(3) Supreme Court Act 1970). It is also available where there has been a jurisdictional error (Craig v State of South Australia (1994 - 1995) 184 CLR 163). Section 69(4) of the Supreme Court Act provides that the face of the record includes the reasons expressed by the Court for its ultimate determination.

The Conviction

7    The claimant, who appeared in person in the District Court, and also before us, has sought to identify a number of errors said to have been made by his Honour. In my opinion, none of them raise any error of law on the face of the record nor jurisdictional error. 8    I will deal with each of the errors submitted by the claimant.

(a) The claimant submits that his Honour was in error in allowing the prosecution to proceed with the evidence of the complainant, Mr Hart, when he had been unable to remember the date of the subject incident. At the beginning of his evidence in chief Mr Hart was clearly confused as to the time and date of the incident. An application was made for him to refresh his memory from a statement he had made to police. His Honour refused this on the basis that Mr Hart had not exhausted his memory. After Mr Hart had indicated that he may have got the date wrong the judge said that he was going to take a short adjournment ‘so you might be able to sort some of those things out’. Because of the claimant’s objection his Honour said to Mr Hart ‘don’t look at any papers in the meantime’.

When the hearing resumed the claimant objected saying that Mr Hart had been talking to the police during the adjournment and that they had refreshed his memory. The judge asked Mr Hart (in the witness box) if he had looked at any documents. He responded ‘only the calendar’ for last year. His Honour allowed the questioning to continue.

In her cross-examination of Mr Hart, the claimant asked no questions about his refreshing his memory during the adjournment. When she came to give evidence, she made no reference to what she had stated from the bar table had happened during the adjournment. On one basis this is completely understandable because Mrs Relic did not dispute the time or date, only what occurred. No error of law was made by his Honour.

(b) Mr Hart gave evidence of the incident claimed to be in breach of the AVO. He said that at the time he informed the claimant that he was making a tape recording of what she was saying. The tape was played in Court. The tape was tendered in evidence and the claimant objected. The basis of the objection is not clear but it seems that Mrs Relic was claiming that the tape did not include the voice of Mr Hart, only her voice. She maintained that the complainant was provoking, harassing and swearing at her. His Honour admitted the tape. Mrs Relic cross-examined Mr Hart about the tape. She suggested to him that he had cut his own voice out. He denied this. In an answer to a question of the judge, he said that the tape was a continuous one.

In my opinion, the tape was admissible and his Honour committed no error of law in admitting it into evidence.

(c) His Honour, according to the claimant, described her behaviour as ‘abnormal’. In giving judgment his Honour said:

It also seemed somewhat apparent from the material that is before me, that Mrs Relic has a personality problem for which she is being treated by a psychiatrist and that may explain her abnormal behaviour. Dr Anderson, the psychiatrist, does not feel that she suffers from any recognisable mental illness. In his report of 15 June 1999 he said:
“I recorded the view that she was not mentally ill in any legal or clinical sense. She gives the history of emotional deprivation in her early family life with extremely traumatic experiences during World War 2 in Yugoslavia and elsewhere as a refugee. If there is something coming from Mrs Relic’s side which is contributing to the dispute, or its problems in resolution, this is stemming from personality factors.”
He goes on to say that:
“She is not mentally ill but there is no treatment available for the mental condition from which she suffers, which is anxiety and depression, reactive to current circumstances and against a background of her own traumatic developmental experience, there being no treatment available in a hospital setting or indeed elsewhere. The treatment provided by myself is of a purely supportive nature for her reactive condition and it is not likely to alter her condition in any dramatic way. I think the prognosis is largely dependent on the way the dispute with the neighbour is or is not resolved. I doubt very much that I can provide the Court with any avenue of resolution of this dispute which apparently the Court is having difficulty resolving. She had a second opinion from another psychiatrist in 1998, Dr Eaton, and Dr Eaton did not find evidence of mental illness and appears to agree with my own view and he concluded that it was likely that her health would be further worsened by continuing litigation.”


No error of law is involved in his Honour’s description of the claimant’s behaviour.


(d) The claimant complains that she was kept in custody for 3 hours waiting to enter into the recognisance. This is irrelevant to any error of law appearing on the face of the record.

(e) The claimant maintains that his Honour did not allow her to properly put her case to the Court. A fair reading of the transcript reveals this submission to be unsustainable. His Honour allowed every opportunity to the claimant to put her case and to cross-examine the witnesses called in the prosecution case. True it is that he intervened on occasions to reject some of her questions and interrupted to try to confine her evidence and submissions to those which were relevant - it must be said, largely without success. In my view, his Honour’s behaviour was impeccable in endeavouring to ensure fairness to a litigant in person in what was clearly somewhat trying circumstances.

(f) The claimant complains about the manner of her arrest by police. This is irrelevant and there is no suggestion that her arrest was unlawful.

The Sentence

9    From what I have said thus far, it is plain that there is no error of law on the face of the record, nor any jurisdictional error. Mrs Relic also complains about the imposition of a conditional recognisance on her but has not articulated her argument. However, and quite properly, Ms Burgess has drawn the Court’s attention to remarks by the Court of Appeal in Parker v The DPP (1992) 28 NSWLR 282 and Baker v The DPP (Unreported, 30 August 1996) concerning a judge warning an appellant of the possibility of the imposition of a heavier sentence so that an appellant can consider seeking to withdraw an appeal. 10    In Parker at 295, Kirby P said:

There is an established practice or convention in District Court appeals under s 122 that a judge, contemplating an increase in the sentence under appeal, will signal that possibility to the appellant. This is well-known. Although it is not a rule of law, it is an established practice. It should rarely, if ever, be departed from. The basis of the practice is to be found in a species of the double-jeopardy principle: see Neal v The Queen (1982) 149 CLR 305 at 306; R v Tait (at 388ff; 476f); R v Hayes (1987) 29 A Crim R 452 at 468. The practice is followed in England.

11    Mahoney P, in Baker, noted that a series of decisions of the Court of Appeal (including Parker) had established that increasing a sentence imposed by a magistrate may involve a denial of natural justice and attract relief in the nature of certiorari. His Honour was referring to the absence of a warning that a more onerous sentence was being contemplated by a judge, especially when an appellant was unrepresented. Mahoney P said that it would be prudent for the judge to give a warning when he or she had determined to consider a higher sentence. See also Ho v DPP (1995) 37 NSWLR 393 and Hughes v DPP (Unreported, Court of Appeal, 15 March 1994). 12 Since Mr Baker was not warned of the possible consequences of breaching the recognisance, Mahoney P held that he had not been dealt with in accordance with the dictates of natural justice. 13 The President however referred to, but did not decide, the detriment of a supervised three year good behaviour bond, although he noted that if s 558 Crimes Act was applied in its terms, further imprisonment would be authorised. His Honour was at pains to say that Baker was ‘at the limits of the relevant principle’ and to leave a number of questions open, eg. when should a warning be given? 14 Although a judge has power under s 125 of the Justices Act to increase a sentence imposed by a magistrate, it is apparent from the transcript that his Honour did not warn Mrs Relic that he was contemplating imposing a recognisance in lieu of the fine. Thus she was not given the opportunity of considering her position and seek leave to withdraw her appeal if she saw fit. 15    Since it is plain that no warning was given by his Honour to Mrs Relic it remains to determine whether the sentence imposed was more onerous than the fine imposed by the magistrate. The Fines Act 1996 provides an elaborate code for the enforcement of fines imposed by a Court (Part 4). This involves fine enforcement orders, suspension or cancellation of a driver’s licence, civil enforcement, community service orders and, as a last resort, imprisonment. However, for the very most part this would be served by way of periodic detention. 16 The order made by his Honour involved the deferral of sentence conditionally on the claimant entering into a s 558 recognisance. 17 The conditions of the recognisance included not to ‘harass, approach, molest, abuse, speak to or otherwise interfere in any way whatsoever with Mr Hart’. Further, not to ‘contact Mr Hart … by any means whatsoever …’. Also, ‘not to enter in any way or trespass on by any means the property of 14B Ponderosa Avenue, Warriewood’. The recognisance was also conditional on the claimant accepting the supervision of the Probation and Parole Service. 18 Section 558 provides that a Court may defer passing sentence upon the person concerned entering into a recognisance to be of good behaviour for such period as the Court thinks proper and ‘to come up for sentence if called upon’. 19 Subsection (6) provides that a person may be called up for sentence on the breach of any of the terms or conditions of a recognisance. Therefore, a breach of the recognisance or of a condition of it would have the potential to expose the claimant to a sentence of imprisonment. 20 I have no doubt that the recognisance in this case was a more onerous sentence than the fine imposed by the magistrate. I do not understand the opponent to really contest this. It follows that his Honour was obliged to give the complainant a warning of the sentence he was contemplating and the opportunity to seek leave to withdraw her appeal. 21 Under s 69B of the Supreme Court Act the Court has power to quash the sentence, see Whiteside v DPP [1999] NSWCA 454. As indicated earlier, no basis has been made out for quashing the order of his Honour confirming the conviction. As far as the sentence is concerned, the sentence imposed by his Honour should be quashed and the matter remitted to the District Court for re-sentence in accordance with law. 22 I would propose the following orders:

1. Call up the record of the District Court relating to the appeal of the claimant, Luba Relic, being an appeal in the District Court No 98/12/1298.

2. Confirm the order of his Honour Judge Williams that the conviction be confirmed.

3. Order that the order made by his Honour Judge Williams deferring sentence upon the claimant entering into a conditional s 558 recognisance be quashed.

4. Order that the proceedings be remitted to the District Court to re-sentence the claimant according to law.

23    HEYDON JA: I agree with Stein JA.

OoO