Toth v Director of Public Prosecutions (NSW)

[2018] NSWCA 253

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253
Hearing dates:	16 October 2018
Decision date:	02 November 2018
Before:	Macfarlan JA at [1]; Payne JA at [38]; Sackville AJA at [41]
Decision:	Amended Summons dismissed with costs.
Catchwords:	ADMINISTRATIVE LAW – judicial review – applicant was convicted of filming person’s private parts, contrary to s 91L of Crimes Act 1900 (NSW) – summons for judicial review of two District Court interlocutory decisions – first decision was grant of leave to Director of Public Prosecutions (DPP) to adduce fresh evidence on appeal from Local Court, namely, tendency evidence – second decision was refusal of applicant’s application for counsel appearing for DPP to be precluded from continuing to represent DPP – whether primary judge ought to have submitted questions of law to the Court of Criminal Appeal, pursuant to s 5B of Criminal Appeal Act 1919 (NSW) – no error – whether applicant denied procedural fairness in relation to both District Court decisions – discussion of appellate intervention in criminal interlocutory proceedings – District Court decisions lacked necessary quality of finality – no jurisdictional error established – dismissed also on discretionary grounds including prevention of fragmentation of criminal proceedings
Legislation Cited:	Crimes Act 1900 (NSW), ss 91I, 91L Crimes (Appeal and Review) Act 2001 (NSW), s 18 Criminal Appeal Act 1912 (NSW), s 5B Criminal Procedure Act 1986 (NSW), ss 130A, 139, 247G, 247W District Court Act 1973 (NSW), s 176 Evidence Act 1995 (NSW), ss 97, 101 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10 B v Director of Public Prosecutions [2014] NSWCA 232 Chamoun v District Court of New South Wales [2018] NSWCA 187 Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 Ghaderi v Director of Public Prosecutions (NSW) [2018] NSWCA 119 Jenkins v Director of Public Prosecutions [2013] NSWCA 406 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Landsman v Director of Public Prosecutions [2013] NSWCA 369 Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 Liristis v Director of Public Prosecutions [2018] NSWCCA 196 McPhillamy v R [2017] NSWCCA 130 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 R v Steffan (1993) 30 NSWLR 633 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Reimers v Health Care Complaints Commission [2012] NSWCA 317 Scott v Director of Public Prosecutions (NSW) [2015] NSWCA 60 The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40 Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344
Texts Cited:	Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) Ritchie’s Uniform Civil Procedure (NSW)
Category:	Principal judgment
Parties:	Andrew Leslie Toth (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of New South Wales (Second Respondent)
Representation:	Counsel: Self-represented Applicant C McGorey (First Respondent) Submitting Appearance (Second Respondent)   Solicitors: Self-represented Applicant Office of the Director of Public Prosecutions (First Respondent) Crown Solicitor (Second Respondent)
File Number(s):	CA 2018/234983
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 26 June 2018 Before: Sweeney DCJ File Number(s): DC 2015/170606

HEADNOTE

[This headnote is not to be read as part of the judgment]

In March 2015, Mr Andrew Toth, the applicant, used a camera pen to make an audio and video recording as he walked up stairs behind a woman wearing a skirt at a Sydney railway station. A witness caused Mr Toth to be taken to the local police station where he was arrested and subsequently charged with an offence under s 91L of the Crimes Act 1900 (NSW) of filming a person’s private parts.

Following his conviction of this offence in the Local Court, Mr Toth appealed to the District Court. In March 2017, the appeal was dismissed. Mr Toth then applied to the Court of Appeal for judicial review of that decision, pursuant to s 69 of the Supreme Court Act 1970 (NSW). This resulted in the Court quashing the District Court decision and remitting Mr Toth’s appeal to the District Court to be determined according to law: [2017] NSWCA 344.

Mr Toth now seeks judicial review by the Court of Appeal of two subsequent interlocutory decisions of the District Court. First, on 10 April 2018, the primary judge (Sweeney DCJ) granted the respondent, the Director of Public Prosecutions (the DPP), leave under s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW) to adduce, on Mr Toth’s District Court appeal, fresh evidence (namely, tendency evidence). Secondly, on 26 June 2018, the primary judge refused Mr Toth’s application that counsel appearing for the DPP on its application to adduce fresh evidence should be precluded from continuing to represent the DPP on the appeal.

Mr Toth was self-represented in the Court of Appeal, where the principal issues were:

(i) Whether the primary judge ought to have submitted a variety of questions of law to the Court of Criminal Appeal for determination, pursuant to s 5B of the Criminal Appeal Act 1912 (NSW); and

(ii)   Whether Mr Toth was denied procedural fairness in relation to the primary judge’s determinations of his applications.

The Court held, dismissing the Amended Summons with costs:

In relation to issue (i)

Per Macfarlan JA, Sackville AJA agreeing

(1) As Mr Toth did not at any time make an application to the primary judge that her Honour should submit any questions of law to the Court of Criminal Appeal, her Honour made no error in not doing so: [8], [41].

In relation to issue (ii)

Per Macfarlan JA, Sackville AJA agreeing

(2) Mr Toth was not denied procedural fairness in relation to the primary judge’s determination of his applications: [9], [41].

(3) As the subject District Court appeal has not been determined, the challenged decisions are interlocutory decisions which do not have the necessary quality of finality to attract relief under s 69 of the Supreme Court Act 1970 (NSW): [26]-[31], [41].

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; [1992] HCA 10; R v Steffan (1993) 30 NSWLR 633; Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, [2002] HCA 22; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48; Ghaderi v Director of Public Prosecutions (NSW) [2018] NSWCA 119; Landsman v Director of Public Prosecutions [2013] NSWCA 369 considered.

(4) Even if the challenged decisions had been final, Mr Toth had to establish that they involved jurisdictional error. He sought to characterise his complaints as ones of procedural fairness and judicial bias. As Mr Toth’s application to the Court of Appeal failed for other reasons, it was not necessary to consider whether, and to what extent, he was successful in so characterising his complaints and, to the extent that he was, whether the complaints were well-founded: [32], [41].

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57; Scott v Director of Public Prosecutions (NSW) [2015] NSWCA 60; B v Director of Public Prosecutions [2014] NSWCA 232 cited.

Per Macfarlan JA, Payne JA and Sackville AJA

(5) Mr Toth’s Amended Summons should be dismissed on discretionary grounds, including that the fragmentation of the criminal process by appellate courts is to be discouraged: [33]-[36], [40], [41].

Reimers v Health Care Complaints Commission [2012] NSWCA 317; Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43; Jenkins v Director of Public Prosecutions [2013] NSWCA 406; Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37; Ghaderi v Director of Public Prosecutions (NSW) [2018] NSWCA 119; Chamoun v District Court of New South Wales [2018] NSWCA 187 referred to.

Judgment

1. MACFARLAN JA: On Sunday 1 March 2015 Mr Andrew Toth, the applicant, used a camera which had the appearance of an ordinary pen to make an audio and video recording at a Sydney railway station. He did so whilst walking up stairs behind a woman wearing a skirt. A witness, who apparently believed Mr Toth to have been covertly filming the woman’s private parts, caused him to be taken to the local police station where he was arrested.

2. Mr Toth was subsequently charged with an offence under s 91L of the Crimes Act 1900 (NSW) of filming a person’s private parts. Section 91L is relevantly in the following terms:

“91L Filming a person’s private parts

(1)   General offence

A person who, for the purpose of obtaining, or enabling another person to obtain, sexual arousal or sexual gratification, films another person’s private parts, in circumstances in which a reasonable person would reasonably expect the person’s private parts could not be filmed:

(a)   without the consent of the person being filmed to being filmed for that purpose, and

(b)   knowing that the person being filmed does not consent to being filmed for that purpose,

is guilty of an offence.

Maximum penalty: 100 penalty units or imprisonment for 2 years, or both.

(2)   An offence against subsection (1) is a summary offence.”

As at 1 March 2015, “private parts” were defined in s 91I to mean:

“a person’s genital area or anal area, whether bare or covered by underwear.”

3. Following his conviction of this offence in the Local Court, Mr Toth appealed to the District Court where on 22 March 2017 Syme DCJ dismissed the appeal. Mr Toth then applied to this Court for orders under s 69 of the Supreme Court Act 1970 (NSW) by way of judicial review of that decision. This resulted in this Court quashing the District Court decision and remitting Mr Toth’s appeal to the District Court to be determined according to law (Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344).

4. On 10 April 2018 Sweeney DCJ granted the respondent (“the DPP”) leave under s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW) (“the CAR Act”) to adduce, on Mr Toth’s District Court appeal, fresh evidence (namely, tendency evidence) relating to a number of prior occasions upon which Mr Toth had allegedly covertly video recorded women. Section 18 is relevantly in the following terms:

“18 Appeals against conviction to be by way of rehearing on the evidence

(1)   An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19.

(2)   Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given.

… ”

5. Further, by judgment of 26 June 2018, Sweeney DCJ refused Mr Toth’s application that Mr Rafeeq, of counsel, who had appeared for the DPP on its application to adduce fresh evidence, be precluded from continuing to represent the DPP on the appeal.

6. Before redetermination of his District Court appeal, Mr Toth applied to this Court under s 69 of the Supreme Court Act for orders by way of judicial review of the two abovementioned decisions of Sweeney DCJ. That application is the subject of this judgment. Her Honour’s decisions were interlocutory, as the District Court appeal was and remains, undetermined.

7. Mr Toth is self-represented in this Court, as he was before Sweeney DCJ. His contentions have evolved through his Summons, Amended Summons and written submissions in chief and reply. They are, first, that Sweeney DCJ ought to have submitted a variety of questions of law to the Court of Criminal Appeal for determination, pursuant to s 5B of the Criminal Appeal Act 1912 (NSW), and, secondly, that Mr Toth was denied procedural fairness in relation to Sweeney DCJ’s determinations of his applications. Mr Toth’s written submissions implicitly accepted that, for his application to this Court to succeed, he would have to establish that Sweeney DCJ committed jurisdictional error (see s 176 of the District Court Act 1973 (NSW); Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1; Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 at [133]-[134]).

8. Mr Toth’s first contention may readily be disposed of. As he did not at any time make an application to Sweeney DCJ that she should submit any question of law to the Court of Criminal Appeal, her Honour made no error in not doing so. This aspect of Mr Toth’s application to this Court therefore fails at least for the reason that he has not established that the challenged decisions involved any error, much less any jurisdictional error.

9. Mr Toth’s second contention likewise fails but greater explanation of the reasons for that conclusion is necessary.

The circumstances giving rise to the application to this Court

10. In her judgment in the Local Court dated 15 March 2016, Magistrate Viney recorded that the Crown’s witness to Mr Toth’s filming gave evidence that Mr Toth’s camera pen “was extended underneath the [woman’s] skirt and to the point where the full hand at one point was obscured by the skirt”. In contrast, Magistrate Viney noted that Mr Toth said in evidence that his camera pen “was held below and behind the skirt but because of the movement of the skirt away from the body [the underwear of the woman who was walking ahead] is visible and clearly the film takes an angle underneath the skirt, effectively, because of the movement of the skirt away from her body” (Transcript pp 36-7). Her Honour did not choose between these descriptions but instead proceeded upon the basis that the charged offence was capable of being established even on Mr Toth’s version.

11. Her Honour rejected Mr Toth’s evidence that the purpose of his filming was research rather than sexual gratification. As to the ingredient of the s 91L(1) offence that “a reasonable person would reasonably expect the person’s private parts could not be filmed”, her Honour said that “the reasonable person, I would have thought, would always have accepted that that is an environment [that is, a public railway station] where that type of filming would not be taking place” (Transcript p 39). Having found that the other elements of the charged offence were established, her Honour convicted and sentenced Mr Toth.

12. So far as this Court’s quashing of Syme DCJ’s judgment dismissing Mr Toth’s appeal to the District Court is concerned, it is sufficient to note that amongst this Court’s reasons for its decision was a conclusion that her Honour omitted to address Mr Toth’s submission that the Crown had not established that his filming of the woman’s private parts was deliberate or intentional, which he had submitted was the necessary mens rea requirement for the commission of an offence under s 91L (at [85]). The Court also concluded at [86]:

“Nor did the primary judge address Mr Toth’s submission that a reasonable person in the position of the woman in question would not reasonably have expected that her private parts could not be filmed. The primary judge, rather, proceeded on the basis that that was not the relevant question, but did not address why it was not the relevant question.”

13. After remittal of the proceedings to the District Court for redetermination of Mr Toth’s appeal, the DPP served a notice, under s 97 of the Evidence Act 1995 (NSW), of an intention to adduce evidence on that appeal of a tendency of Mr Toth “to surreptitiously film or record a person without their consent using a covert recording device, for example, a recording device concealed within a pen”. The notice identified and attached statements of a number of female witnesses and files of videos taken of them. The statements asserted that the videos had been taken without the women’s consent. None of the videos depicted any of the women’s “private parts” as then defined in s 91I (see [2] above).

14. The notice stated that amongst the facts in issue upon which the tendency evidence bore was “the purpose [of Mr Toth] of obtaining sexual arousal or sexual gratification”. The notice was supplemented at the hearing by an Addendum which identified alleged common features of the incidents described in the evidence. One feature was said to be that the recordings were made “for the purpose of [Mr Toth’s] own or another’s sexual arousal or sexual gratification”.

15. In her judgment of 10 April 2018, Sweeney DCJ found that the proposed evidence, as required by s 97 of the Evidence Act for it to be admissible, had “significant probative value” in relation to an issue arising in the proceedings, namely, whether Mr Toth “filmed the woman the subject of the charge under appeal for the purpose of sexual gratification”. Her Honour also found that the condition specified in s 101 of the Evidence Act, that “the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant”, was satisfied. Her Honour therefore found the proposed evidence to be admissible as tendency evidence and granted leave for it to be adduced.

16. In her judgment of 26 June 2018 concerning Mr Rafeeq, Sweeney DCJ listed allegations that Mr Toth had made concerning Mr Rafeeq’s conduct when acting on behalf of the DPP at the earlier hearing concerning tendency evidence. Her Honour then summarised Mr Toth’s complaints, stating that they included allegations that Mr Rafeeq made statements that were lies, were otherwise misleading, were inflammatory or “attempt[ed] to, in effect, boost the prosecution case”. Mr Toth also complained that Mr Rafeeq’s relationship with the officer-in-charge of the prosecution “lacked professional distance and gave rise to a perception of bias” and that the Crown had relied on “overstatements of the facts in the factsheet prepared by the police officer”.

17. Her Honour concluded that none of the matters upon which Mr Toth relied, whether taken individually or together, indicated that “a fair minded reasonably informed member of the public would conclude that a proper administration of justice” required that Mr Rafeeq should be precluded from acting. She accordingly dismissed Mr Toth’s application.

Mr Toth’s submissions to this Court

18. It is sufficient to give the following broad descriptions of Mr Toth’s multifarious submissions to this Court. The numbering does not necessarily reflect the numbering that Mr Toth used.

19. In relation to the tendency evidence hearing, Mr Toth submitted in effect that:

1. Sweeney DCJ referred to irrelevant matters.

(Mr Toth’s contentions included that her Honour took account of material that was either not in evidence or not supported by the evidence. This was not however established as the relevant matters were contained in, or able to be inferred from, the bundle of documents that the DPP tendered at the hearing.)

2. Her Honour failed to properly apply the “interests of justice” test in s 18 of the CAR Act (see [4] above).

3. Her Honour erred in both permitting the DPP to rely upon a “faulty” tendency notice under s 97 of the Evidence Act and allowing the DPP to supplement it by an Addendum.

4. Her Honour “failed to assess each piece of tendency evidence on its merits and failed to test for substantive probative value”, in accordance with s 97 of the Evidence Act.

5. Her Honour demonstrated bias by ignoring inferences consistent with Mr Toth’s innocence, by “ignoring evidence that was advantageous” to him, by using certain identified terminology, by “misreporting simple facts to the disadvantage of the appellant” and by failing to refer to evidence favourable to Mr Toth.

2. Her Honour failed to engage in the task referred to in s 101 of the Evidence Act, namely, the assessment of the prejudicial effect of the proposed tendency evidence and weighing that against its probative value.

3. Her Honour erred in granting the DPP leave to adduce tendency evidence when that evidence did not bear upon the question of whether Mr Toth had a purpose of sexual gratification in taking the film which was the subject of the charged offence.

20. Mr Toth’s submissions in relation to the decision concerning Mr Rafeeq were broadly as follows:

1. Her Honour did not deal with any, or at least most, of Mr Toth’s “45 written submissions” to the Court.

2. Her Honour failed to give proper reasons for judgment.

3. Her Honour failed to “properly apply the test as to whether a reasonably minded observer would apprehend unfairness or bias”.

4. Her Honour “misrepresented the evidence”.

5. Her Honour had a conflict of interest because if she had found that Mr Rafeeq had misconducted himself at the tendency evidence hearing, her Honour would have had to have taken the trouble to revisit her decision on that topic. Likewise, Mr Rafeeq had a conflict of interest because he had both a duty to the Court and “a vested interest in defending himself” in relation to his conduct at the earlier hearing.

21. Mr Toth then identified 17 misrepresentations that he alleged that Mr Rafeeq made during the tendency evidence hearing to “show that his [that is, Mr Toth’s] sense of apprehended unfairness was NOT spurious or frivolous, but based on perceived misrepresentations and to show that [her Honour] knew of these misrepresentations at the earlier April 2018 hearing”.

22. In his written submissions in reply, Mr Toth asserted that the tendency evidence hearing had been conducted in an unfair manner. He cited three examples which he submitted indicated that her Honour favoured the DPP over Mr Toth during the conduct of the hearing.

23. In those submissions, he next referred to a screenshot of video footage that the DPP sought to tender as tendency evidence. Mr Toth asserted that it was not in evidence but, in fact, it formed part of the Crown bundle which her Honour admitted into evidence.

24. Mr Toth next repeated the submission that he had made in chief that her Honour erred by not concluding that the proposed tendency evidence was irrelevant because it did not advance the prosecution’s case on the issue of whether his purpose in filming was sexual gratification (see [19(7)] above). He also reiterated submissions made in chief that her Honour ignored alternative inferences when considering Mr Toth’s purpose, failed to undertake the balancing exercise stipulated in s 101 of the Evidence Act and made the errors that he had identified in relation to the application concerning Mr Rafeeq (see [20] above).

25. In conclusion, he emphasised that the misrepresentations and other matters which he alleged had occurred should be looked at cumulatively.

DETERMINATION OF MR TOTH’S APPLICATION FOR JUDICIAL REVIEW

Non-availability of the remedy of certiorari

26. Mr Toth seeks orders by way of judicial review under s 69 of the Supreme Court Act setting aside the two decisions of Sweeney DCJ referred to at [4]-[5] above. He thus seeks orders in the nature of certiorari. The function of such orders “is to quash the legal effect or the legal consequences of the decision or order under review” (Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580; [1992] HCA 10). The remedy is therefore not available where the challenged decision does not have any legal effect or consequence. The authors Aronson, Groves and Weeks in Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Thomson Reuters) state at [12.230] that, for certiorari to be available, the impugned decision “must either change the applicant’s legal position or clear the decks for such a change. The second part of that proposition is sometimes summed up as requiring that at the very least, the impugned decision constitute a legal precondition to further action or a legal bar to further action”. Observations to similar effect were made by Basten JA (with my and Leeming JA’s concurrence) in Liristis v Director of Public Prosecutions [2018] NSWCCA 196 at [11] and [21].

27. The decisions that Mr Toth challenges do not have this necessary quality of finality. Rather, they are interlocutory decisions. They are therefore open to abrogation or variation prior to or in the course of the hearing of Mr Toth’s appeal to the District Court (R v Steffan (1993) 30 NSWLR 633 at 639-40; Ritchie’s Uniform Civil Procedure (NSW) at [36.16.70]). In some jurisdictions, although not that presently under consideration, legislation has provided for similar decisions to be binding unless “the interests of justice” dictate that that should not be the case (see ss 130A, 139, 247G and 247W of the Criminal Procedure Act 1986 (NSW)). That legislation therefore confers a limited, although arguably insufficient, measure of finality on interlocutory decisions to which it applies, but no such legislation applies to the presently relevant decisions.

28. As a general principle, if proceedings advance to a final determination and an interlocutory order affects the final result, that order may be challenged on an appeal against the final judgment (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, [2002] HCA 22 at [4]-[8]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [78]). That principle is inapplicable to the present case, at least at this stage, because Mr Toth’s appeal to the District Court has not been heard and determined, as was also the case in Ghaderi v Director of Public Prosecutions (NSW) [2018] NSWCA 119. The position was otherwise in Landsman v Director of Public Prosecutions [2013] NSWCA 369, where an order by way of judicial review was made quashing a preliminary determination of a District Court judge not to submit a question for determination by the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912. As in that case the District Court judge had determined the appeal before him and the preliminary ruling impacted on that outcome, the ruling, as an ingredient of the final decision, acquired the necessary character of finality.

29. There are many reasons why the interlocutory decisions challenged in the present case may in fact never achieve that status. For example, in relation to Sweeney DCJ’s decision to grant leave to adduce tendency evidence:

• The DPP may decide not to lead the evidence on the appeal.

• The District Court judge who determines the appeal may not consider the evidence material to his or her decision.

• New case authority, or further consideration of existing case authority, may cause Sweeney DCJ, or another judge who comes to hear the appeal, to reconsider the admissibility of the evidence. For example, after Sweeney DCJ’s decision of 10 April 2018, the High Court delivered its judgment in The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40, which provided a further detailed consideration, or at least an exemplification, of the admissibility of tendency evidence. Further, also after her Honour’s decision, the High Court on 9 August 2018 allowed an appeal from the New South Wales Court of Criminal Appeal in a case considering the admissibility of tendency evidence, where the tendency described in the tendency notice was put at a high level of generality (see McPhillamy v R [2017] NSWCCA 130). The High Court has not yet provided its reasons for that decision but may do so before Mr Toth’s appeal is heard in the District Court.

• If, as Mr Toth contends in this Court, Sweeney DCJ failed to consider arguments that he had put to her, Mr Toth may be able to persuade her Honour that she should now consider those arguments and revisit her decision.

• Last, but by no means least, Mr Toth’s appeal might succeed and he might be acquitted of the charged offence. I note in this respect that there are likely to be issues as to the required mens rea for the offence and as to whether Mr Toth intended to film the relevant woman’s underwear when, on his version (which was not rejected in the Local Court), his camera was not positioned under the woman’s dress but rather behind it, enabling filming of her underwear only when her dress moved in the course of her climbing the stairs at the railway station.

30. Furthermore, Sweeney DCJ’s second challenged decision, namely, that concerning Mr Rafeeq, of counsel, may not have any impact on the outcome of the appeal because Mr Rafeeq may not appear on that appeal, or for any one of a number of other reasons.

31. As for these reasons, the challenged decisions do not have the necessary quality of finality to attract s 69 relief and therefore Mr Toth’s Amended Summons for judicial review should be dismissed with costs.

32. Even if the challenged decisions had been final, Mr Toth would, as indicated earlier (see [7] above), have had to have established that they involved jurisdictional error. As initially framed, Mr Toth’s arguments amounted to little more than the types of challenges that might be made on a conventional appeal from those decisions (if one had been available). For example, he contended that her Honour failed to apply properly the “interests of justice” test stated in s 18 of the CAR Act and failed to test properly whether the tendency evidence proffered by the DPP would have “substantial probative value” in accordance with s 97 of the Evidence Act (see [19(2) and (4)] above). His evolving submissions however came to recognise that he needed to demonstrate more than mere legal or factual error. As a result, he attempted to characterise his complaints as ones of procedural unfairness and judicial bias, both of which would, if established, have constituted jurisdictional error (see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [41], [132], [151]-[152], [169]-[171]; Scott v Director of Public Prosecutions (NSW) [2015] NSWCA 60 at [27]; B v Director of Public Prosecutions [2014] NSWCA 232 at [43], [64]; Aronson at [1.140]). As Mr Toth’s application to this Court fails for other reasons, it is unnecessary to consider whether, and to what extent, he was successful in so characterising his complaints and, to the extent that he was, whether the complaints were well-founded.

Discretionary considerations

33. Mr Toth’s application should also be dismissed for discretionary reasons, as the judicial review remedies available under s 69 of the Supreme Court Act are discretionary even when jurisdictional error has been established (Reimers v Health Care Complaints Commission [2012] NSWCA 317 at [6]-[8]; Aronson [17.50]).

34. The reasons given above at [27]-[30] for the challenged decisions not having the necessary quality of finality are also reasons for refusal of relief on discretionary grounds.

35. The High Court has counselled against the fragmentation of criminal proceedings, such as would occur if this Court quashed Sweeney DCJ’s decisions (Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43 at [23]). Likewise, in Jenkins v Director of Public Prosecutions [2013] NSWCA 406 at [85], Gleeson JA referred to the “reticence” of this Court to use its supervisory jurisdiction “to interfere in criminal proceedings at an interlocutory stage”. Again, in Lazarus v Independent Commission Against Corruption (2017) 94 NSWLR 36; [2017] NSWCA 37 at [32], Leeming JA accepted the DPP’s submission that “there are ordinarily powerful discretionary factors against entertaining applications which fragment criminal proceedings” (see also Ghaderi v Director of Public Prosecutions (NSW) at [9]-[10]; Chamoun v District Court of New South Wales [2018] NSWCA 187 at [73]; Liristis v Director of Public Prosecutions at [22]).

36. There is no reason not to apply this oft-stated policy in the present case, and in fact there is every reason to do so.

ORDERS

37. For the reasons given above, Mr Toth’s Amended Summons for judicial relief should be dismissed with costs.

38. PAYNE JA: I have read the judgment of Macfarlan JA in draft and gratefully adopt his Honour’s explanation of the relevant facts and issues to be determined. I agree with the orders his Honour proposes but would prefer briefly to express my own views for doing so.

39. The question of whether the first decision made by Sweeney DCJ (concerning tendency evidence) either changed the applicant’s legal position or “cleared the decks for such a change” raises questions of characterisation which are unnecessary to address in this case. I agree with Macfarlan JA that the second decision made by Sweeney DCJ (concerning the identity of the prosecutor) did not change the applicant’s legal position or “clear the decks for such a change”.

40. This is a clear case, for the reasons Macfarlan JA gives, that Mr Toth’s application should be dismissed on discretionary grounds. The reasons given by his Honour at [27]-[30] are powerful indicators that the Court should refuse relief. As the plurality in the High Court explained in Gedeon at [23] “[t]he fragmentation of the criminal process is to be actively discouraged”. The application should be dismissed with costs.

41. SACKVILLE AJA: I agree with Macfarlan JA.

**********

Decision last updated: 02 November 2018