PARTIES: Wahyu Sasterawan Judith Morris an Officer of the Ministry of Transport A Judge of the District Court of New South Wales
JUDGMENT OF: Beazley JA Tobias JA McClellan CJ at CL
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 05/22/0149
LOWER COURT JUDICIAL OFFICER:
LOWER COURT DATE OF DECISION: March 2007
COUNSEL: Cl: R Killalea 1 Opp: P O'Donnell / G Porter 2 Opp: Submitting
SOLICITORS: Cl: City Law Pty Ltd, Sydney 1 Opp: Smythe Wozniak, St Marys 2 Opp: Crown Solicitor's Office
CATCHWORDS: Certiorari – Application pursuant to s 69 Supreme Court Act 1970 – Common law duty to give reasons for decision – Whether failure to give reasons error of law – Whether failure to give reasons jurisdictional error – Whether party could request primary judge to amend or supplement reasons prior to entry of judgment – Whether primary judge failed to find essential element of charge proven – Whether primary judge misstated burden of proof – Whether Court should exercise discretion to grant relief in nature of certiorari – Considerations for exercise of discretion to grant relief – Whether errors of law should have been submitted as questions of law in case stated from District Court pursuant to s 5B Criminal Appeal Act 1912.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Sasterawan v Morris
Sign in free to access the full text
Details
AGLC
Sasterawan v Morris [2008] NSWCA 70
Case
[2008] NSWCA 70
Decision Date
CaseChat Overview and Summary
The case of *Sasterawan v Morris* concerned an appeal brought by Wahyu Sasterawan against three convictions entered by the Local Court under s 178BB(1) of the *Crimes Act 1900* (NSW). The appeal was heard by Nicholson DCJ in the District Court. Sasterawan subsequently sought relief in the Supreme Court of New South Wales, primarily by way of certiorari, challenging the decision of the District Court judge.
The legal issues before the Supreme Court included whether the District Court judge's failure to provide adequate reasons for his decision constituted an error of law or jurisdictional error. The court also considered whether a party could request the primary judge to amend or supplement reasons prior to the entry of judgment, and whether the judge had failed to find an essential element of the charge proven or had misstated the burden of proof. Furthermore, the court had to determine whether it should exercise its discretion to grant relief in the nature of certiorari, and if any alleged errors of law should have been raised as questions of law in a case stated to the Court of Criminal Appeal.
The Supreme Court, comprising Beazley JA, Tobias JA, and McClellan CJ at CL, found that the District Court judge's ex tempore judgment was insufficient. The court reasoned that the judge's reasons did not adequately demonstrate that the essential elements of the offence, namely that each document was false in a material particular, was published, and was done with intent to obtain a financial advantage, had been proven beyond reasonable doubt. The judge's reliance on the appellant accepting an "evidential burden" and his comments on the appellant's evidence were found to be problematic. The court concluded that the judge's failure to provide proper reasons amounted to jurisdictional error.
Consequently, the Supreme Court ordered that the District Court proceedings be removed into the Court of Appeal, that the orders made by Nicholson DCJ be quashed, and that the proceedings be remitted to the District Court for a rehearing. The costs of the earlier hearings were reserved for determination on the remitted appeal, and Sasterawan was ordered to pay the claimant's costs of the second amended summons filed in the Supreme Court.
Orders
Orders of the court
(a) That District Court Proceedings No. 05/22/0149 in the Matter of the Appeal of Wahyu Sasterawan be removed into the Court of Appeal; (b) That the orders made by Nicholson DCJ in the said proceedings on 7 September 2005 be quashed; (c) That the said proceedings be remitted to the District Court for rehearing; (d) That the costs of the hearing before the Local Court and Nicholson DCJ be reserved for determination on the remitted hearing of the appeal; (e) That the first opponent pay the claimant's costs of the second amended summons filed in this Court on 5 December 2007.
Background
Background to the litigation
In order to appreciate these claims for relief, it is appropriate and necessary to set out the whole of his Honour’s ex tempore judgment which, to say the least, is spare:“The appellant appeals from three convictions entered by the Local Court at Burwood in respect of three offences that were charged under s 178BB(1) of the Crimes Act of New South Wales.Those offences require the Crown to prove beyond reasonable doubt three propositions, so far as this case is concerned that each cab charge, that is to say that each document is false in a material particular; that the accused published the document and that he did so with intent to obtain a financial advantage.Each of the documents nominates the correct driver authority number and the correct ABN number in three of the three charges.The first in time nominates a fare of one hundred and thirty-six dollars and fifteen cents for a trip from Campbelltown Station to the city. The second nominates a total fare of two hundred and sixty dollars and fifteen cents for a trip described as being from “City-Wollongong to Manly township” and the third nominates a trip fro[m] the city to Chippendale.The fare for city to Chippendale is said to be seventy dollars. Clearly something there is false in a material particular, whether it be the fare or whether it be the ultimate destination.The appellant says that he never drove to Wollongong or from Wollongong, so the appearance of the word Wollongong coupled with his name on the document means the document must either in respect of his name or in respect of the destination be false in a material particular.It does not much matter who wrote the document, it is a question of whether it is false in a material particular. Likewise as I understand the defence case, he never went to Campbelltown Station, but the document asserts that the driver of this vehicle went to Campbelltown. Clearly those two facts cannot live together, so it must be false on the defence case even, in a material particular.I am satisfied beyond reasonable doubt that each of these documents was published in the sense that it was handed in to the owner of the cabs, Mr Halin and I am satisfied from the material that is before me, that the appellant sought a financial advantage in each case, in part because of the written documents that he has generated, for instance to the managing director of Lindany [Landini Associates, the account name printed on one of the dockets] explaining to him that the ladies were travelling various places: ‘In the entire journey I have been badly abused by two ladies of your personnel, in addition I have been threatened with sexual harassments that I will be reported to the police and at the end of the journey they forcefully took two hundred dollars cash against this docket from me.’ And then the punch line ‘I am seeking your mannerly action in this letter’ meaning of course the return of at least two hundred dollars.He has given in respect of the first document, three versions which I canvassed in the course of submissions. His evidence was not such as to impress me and this was a case in which in that sense, because of the strength of the Crown case or the Prosecution case, there was this evidential onus on him to raise a reasonable doubt.It is normally said that there is no burden of proof upon the accused to prove his innocence and that is true, but if he accepts an evidential burden by going into the [witness box], the evidential burden was one of at least raising a doubt in the face of the Crown case. That did not occur and I did not accept his evidence on the fundamental propositions and in all the circumstances I find each of the offences proved.” The facts alleged by the Prosecutor
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
CLELLAN CJ
The claimant ultimately issued a summons in this Court seeking relief pursuant to ss 69(1) and (3) of the Supreme Court Act 1970 (the SC Act) by way of an order quashing the decision of the primary judge on the grounds of jurisdictional error and error of law appearing on the face of the record. It is that summons with which the Court is now concerned.The steps taken by the claimant after the decision of the primary judge Acting for himself and without the benefit of legal advice, on 29 September 2005 the claimant filed in the Court of Appeal a summons for leave to appeal from the decision of the primary judge. That application was misconceived, there being no right of appeal, with or without leave, to this Court from his Honour’s decision under the Review Act. Upon appreciating that error, on 7 December 2005 the claimant filed in this Court a further summons seeking relief in the nature of certiorari pursuant to s 69 of the SC Act (the first s 69 summons). An amended summons was filed on 18 April 2006 (the amended first s 69 summons). As a consequence of obtaining legal advice the claimant, prior to any hearing of the amended first s 69 summons, requested the primary judge to state a case to the Court of Criminal Appeal pursuant to s 5B(2) of the Criminal Appeal Act 1912 (the CA Act). On 16 March 2007, three questions of law were stated for the opinion of that Court, which ultimately answered them contrary to the submissions of the claimant on 28 June 2007: Sasterawan v Morris [2007] NSWCCA 185. When the matter came before the Court of Criminal Appeal it was necessary for the claimant to obtain an extension of time within which to submit the questions of law raised by the stated case as s 5B(2) of the CA Act required that such questions of law be submitted not later than 28 days after the end of the appeal proceedings in the District Court. At this stage, the Court had not disposed of the claimant’s amended first s 69 summons. It is recorded by Basten JA, with whom Grove and Hidden JJ agreed, in his judgment in the Court of Criminal Appeal (at [9]) that at the commencement of oral argument before that Court, counsel for the claimant handed up a Notice of Discontinuance relating to the proceedings in the Court of Appeal. His Honour then dismissed the amended first s 69 summons in exercise of his power as a single judge of appeal under s 46 of the SC Act. As I have indicated, the Court of Criminal Appeal rejected the submissions of the claimant, with the result that the decision of the primary judge stood. On 27 July 2007 the claimant filed a further summons in this Court pursuant to s 69 of the SC Act that was first amended on 8 October 2007 and further amended on 5 December 2007 (the second s 69 summons). Although a third amended summons was filed, the claimant relied only on his second amended summons before this Court. It relevantly sought the following orders: However, an extension of time was not required for the filing of the second s 69 summons as such a summons is an originating process in respect of which there is no relevant statutory time limit within which it must be filed. Of course, any question of delay in seeking relief under s 69 will be relevant to the exercise by the Court of its discretion to grant such relief, where grounds have otherwise been demonstrated.The grounds on which s 69 relief is claimed