Schokman v Director of Public Prosecutions

[2001] NSWCA 334

CITATION:	SCHOKMAN v DPP & ANOR [2001] NSWCA 334 revised - 15/12/2003
FILE NUMBER(S):	CA 40926/00
HEARING DATE(S):	30 August 2001
JUDGMENT DATE:	30 August 2001
PARTIES :	MAURICE ARIAN SCHOKMAN v DPP & ANOR
JUDGMENT OF:	Mason P at 1; Beazley JA at 26; Giles JA at 27

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	00/22/0061
LOWER COURT JUDICIAL OFFICER :	Andrew ADCJ

COUNSEL:	Appellant: In person Respondent: M Marien 2nd Respondent: Submitting
SOLICITORS:	Appellant: In Person Respondent: S E O'Connor
CATCHWORDS:	District Court - all grounds appeal - application for relief in nature of certiorari - no jurisdictional error or lack of procedural fairness (ND)
DECISION:	Dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40926/00

MASON P

BEAZLEY JA

GILES JA

Thursday 30 August 2001


Maurice SCHOKMAN v DIRECTOR OF PUBLIC PROSECUTIONS & Anor

JUDGMENT

In this summons the claimant Mr Maurice Schokman brings proceedings against the Director of Public Prosecutions and the District Court of New South Wales. The District Court has filed a submitting appearance.

2 The relief sought in the summons as amended is a claim that a decision of the District Court at Parramatta on 3 October 2000 be quashed, secondly, reinstatement of the claimant’s drivers licence and taxi licence pending review of the matter by the Court and thirdly, leave to extend the time to appeal.

3 On 31 July 1999 the claimant was charged with an offence against s 4E(7) of the Traffic Act 1999, namely the offence of refusing to submit to a breath analysis in accordance with the directions of a named police officer at the Ryde Police Station. That charge came on for hearing at the Ryde Local Court before Mr Lawson, Magistrate. At that hearing the claimant was unrepresented. There was evidence given for the prosecution and evidence given by the claimant and witnesses called by him. Taken broadly, there was a situation on a public street where the police stopped the claimant, there was an extensive conversation and following that the claimant was brought back to the police station where according to the police officers there was a formal demand for the taking of a breath test and a refusal.

4 As I said, the claimant, Mr Schokman, gave evidence in those proceedings, and as regards what happened at the police station he said in effect that he blew into the tube but nothing happened, there was no reading; that the police sergeant went out and then after an interval he was called back into the breath testing room and asked to blow into the machine again and at that stage he was told the machine was now working and at that stage he refused to provide the sample. That was his evidence in effect at the hearing at the Local Court.

5 The Magistrate found the offence proved and convicted the claimant. He was fined $1,000 and disqualified from holding a licence for two years and three months to date from 31 July 1999. The claimant filed an appeal to the District Court against conviction and sentence. This is known to lawyers as an all grounds appeal because it is necessary for the matters to be proved afresh. However, it is possible for the matters to be proved afresh by tendering the transcript of the proceedings of the Local Court and then supplementing that evidence by whatever additional evidence the Crown wishes to adduce and of course hearing whatever evidence in addition the defence wishes to have placed before the judge in the District Court.

6 We have the transcript of the proceedings in the District Court before Acting Judge Andrew. At those proceedings the claimant was represented by a solicitor, Mr Wiggins and the Crown was represented by, presumably a barrister, Mr Robinson. The transcript of the proceedings in the Local Court was before the judge and certain additional documents were tendered.

7 It was made clear that one of the exhibits that had been tendered in the Local Court and that was available to the judge was a book containing breath analysis data records of the Gladesville Local Area Command. Counsel representing the prosecution told the judge that the only page of that book which he considered to be of any relevance was a page with a yellow marker in it. That page included what has been referred to as the alco test sample No 220. That sample (according to the police evidence given at the Local Court) was purely a testing sample, not involving any blowing into it by the driver and clearly it shows a zero result.

8 As I have said, the barrister representing the prosecution made it plain that it was only the one page which the prosecution relied upon. At that stage Mr Wiggins said:

the subsequent page may have relevance in the proceedings but at this stage if I could just alert your Honour to that possibility and if we could attack that in due course.

Mr Wiggins never came back to the matter and never sought to rely upon any later page in the exhibit.

9 There were various submissions based upon the factual material that had been adduced in the proceedings in the Local Court and some legal issues were debated. At one stage the Acting District Court Judge adjourned to read the materials. At another stage in the proceedings there was some passing reference to the transcript in the Local Court of two of the witnesses who had been witnesses called by the claimant in the Local Court who had been at the roadside. Mr Wiggins indicated in effect (as I read the transcript at p8) that he recognised that their evidence had no bearing upon the issue of what happened later in the police station when there was or was not a refusal to take a breath test following a formal demand by the police officer.

10 The judge gave judgment virtually on the spot on 13 October 2000. He recorded that there was an all grounds appeal. He noted that there was no dispute that the appellant had been pulled up while driving a vehicle and that he was subsequently taken to the police station and that it was not disputed that he did refuse to submit to a breath analysis. His Honour said:

It is the appellant’s contention however that the breath analysis machine was broken. He says that he did give a breath analysis but the machine was not working and then he refused to undergo a second analysis.

11 After referring to an English case that had obviously been relied upon, his Honour said that he was satisfied on the evidence that the machine was working; and he gave reasons why he was of that view. His Honour said that he was satisfied that the offence in question was a matter of strict liability. (Just interposing, he obviously had regard to the Decision of the Court of Criminal Appeal in R v Walker (1994) 35 NSWLR 384.) The judge concluded:

On any version of what happened the offence was committed when the appellant refused to blow into the machine. The appellant in his evidence said that he refused to blow into the machine when he was told it had been fixed but as I have said in any event I am satisfied on the evidence beyond reasonable doubt that the machine was functioning properly. I am satisfied that the offence is proved, the appeal is dismissed and I find the offence proved.

12 The judge then turned to the question of penalty and after hearing submissions fined the appellant before him $1000 and disqualified him from driving for a period of two years and three months. The judge noted that the appellant had already served a period of disqualification of five months and twenty days. Taking that period into consideration he varied the period of disqualification to a total period of eighteen months to date from that day.

13 Following a degree of case management by the Registrar of this Court these proceedings were set down for hearing. At that stage the claimant was unrepresented and indicated, as I understand it, to the Registrar that he would be representing himself in the proceedings.

14 When the matter was called on this morning, Mr Schokman sought in effect to have the hearing adjourned. The actual application he made was for the Court to enable him to seek legal aid or alternatively to refer the matter out with some request on the Court’s part that legal aid be given. Mr Schokman tendered a letter from the Chief Executive Officer of the Supreme Court dated 4 May 2001 which drew his attention to various schemes of legal assistance. The letter noted that Mr Schokman had already sought legal aid from the Legal Aid Commission and the Law Society pro bono scheme and had been unsuccessful in those applications. The letter drew his attention to alternative means of getting legal aid, if appropriate, including the scheme run by the Bar Association of New South Wales, and legal aid from a community legal centre.

15 Mr Schokman informed us that he had applied for legal aid to the Bar Association. The papers had been sent and legal aid had been declined after the papers had been looked at by a barrister. Mr Schokman said that he was disappointed that he had not had the opportunity to speak to the barrister concerned about the matter.

16 The Court then invited Mr Schokman, in effect, to tell us everything that he would have put before any lawyer or other person from whom he was seeking legal aid. We allowed him to range at length over the issues as he saw them from his perspective. Some of the matters he told us were matters that were not strictly established by any evidence before this Court and were matters not proven in the proceedings in the Local Court or the District Court. Nevertheless as indicated we let him tell his story as he saw it.

17 The Court then indicated after a short adjournment that it was not disposed to grant any adjournment and I will explain in a minute why we were of that view. Mr Schokman was asked whether there was anything further he wished to say. In essence he had put all of his arguments earlier. He said a few things extra, but indicated that he considered his conviction unfair for the reasons that he had earlier given.

18 In my view, it would not be in the interests of justice that there should be an adjournment. If I thought on the material that there was any possible prospect of anything being obtained from an adjournment I would obviously give serious consideration to it. But in my view, the more Mr Schokman outlined the basis of his complaint, the more difficult and untenable his position became, both as regards any relief that this Court could grant but also (I should add) as regards the underlining merits of the issue.

19 At this stage I return to the prayers for relief in the summons. The Court of Appeal of New South Wales has only such appellate jurisdiction as is conferred by any Act of Parliament. It has the jurisdiction to give administrative law remedies based upon its inherent jurisdiction as a superior court, but that in turn is subject to any statutory modification or restriction upon that jurisdiction. We have fairly broad-reaching appellate jurisdiction in civil matters from the District Court, but there is no appellate jurisdiction with respect to criminal matters. For that reason, the third prayer for relief seeking leave to extend a time for appeal is quite misconceived. There is also no power given by any statute that would give this Court power to reinstate a person’s driving licence, either as an interim or final measure.

20 I turn then to the substantial application, which is a claim that the decision of the District Court be quashed. Section 146 of the Justices Act 1902 provides that no adjudication on appeal of the District Court is to be removed by any order into the Supreme Court. Translating that into lay language, it provides that no decision of the District Court in an all grounds appeal to it from the Local Court can be challenged or quashed by the prerogative remedy of certiorari or any equivalent of it.

21 Now, although that is what the section says there is a longstanding body of case law relating to the section in its earlier form to the effect that this Court has residual jurisdiction to review a decision of the District Court if there has been procedural unfairness or jurisdictional error. Among the many cases that decide that is a decision of Yisrael v The District Court (1996) 87 ACrimR 63. A jurisdictional error is something quite different to an error of fact or even an error of law. It is something, again putting it in lay language, which shows that the Court entirely misunderstood the task before it or acted entirely outside of its power. There is no jurisdictional error in the present case or anything remotely suggesting any jurisdictional error. Acting Judge Andrew was dealing with an all grounds appeal in relation to a single offence, he correctly addressed the legal issues involved in the offence and he found the facts relevant to that offence. The way he found the facts shows and confirms that he kept his eye firmly and correctly on the jurisdictional issue before him.

22 There is nothing in the material before us that would indicate any basis for a finding that there was procedural unfairness. For the claimant’s benefit I should explain that procedural unfairness is concerned with matters involving a failure of the judicial officer to deal fairly with the issue before him or her in particular proceedings. If one then asks how is that to be decided the answer is you go to the transcript of the proceedings and any evidence that would show exactly what happened and what was before the judicial officer to see if the litigation was dealt with in a fair manner.

23 In the course of putting his argument why there should be an adjournment the claimant raised a number of issues that do not appear in any way in the transcript of the Local Court proceedings or the proceedings in the District Court. He at one stage raised issues of tampering of documents, conspiracy, and a claim of incompetence bordering on professional misconduct on the part of the lawyer who represented him in the District Court. All of these matters were made by way of assertion. None as far as I can see have been proved in material before us. Having said that, we have not overlooked the fact that Mr Schokman has sworn two affidavits in these proceedings which (although they have not been formally read) it was his intention that they be treated as part of the material, and they have been examined by the Court in its earlier preparation for the case.

24 None of this extended material provides any basis for a conclusion that there was a denial of natural justice or lack of procedural fairness in the proceedings in the District Court. The judge was entitled, indeed he was bound, to deal with the matter in the way it was presented to him. In a situation where both sides were represented by lawyers that duty was even more clear. The transcript shows that the solicitor representing Mr Schokman advanced various arguments and equally it shows that other arguments were not advanced. It is not in any way part of this Court’s jurisdiction in a matter such as this to go beyond the very limited power of judicial review of the proceedings in the District Court that I have already referred to. I say that so there can be no misunderstanding that my failure to say more about the matters raised in the claimant’s affidavits concerning the alco test certificates sample numbers 221 and 222 has been overlooked. I say no more than it is appropriate that the Court ought not express an opinion about the merits of those issues, because what little exploration has taken place of those merits indicates nothing of any advantage to the claimant, indeed the contrary. But the important thing is this material was not before the District Court and a perusal of this material does not in any way suggest a basis for concluding that the District Court made a jurisdictional error or acted unfairly in a way that would attract the principles of procedural fairness.

25 So it comes back to this, that the same reasons why the summons is in my view doomed to fail offer the reasons why there simply is no point in further prolonging these proceedings. I think the Court has given the claimant every opportunity to present the case as he would wish to have presented it to any legal aid organisation and I do not think there is any injustice or true disadvantage stemming from the refusal of the adjournment and the dismissal of the summons with costs which is the order that I propose.

I agree.

I also agree.

The summons is dismissed with costs.

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