Woods v Director of Public Prosecutions (NSW) (No 1)

[2015] NSWCA 398

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Woods v Director of Public Prosecutions (NSW) (No 1) [2015] NSWCA 398
Hearing dates:	7 December 2015
Decision date:	07 December 2015
Before:	Basten JA; Simpson JA; Tobias AJA
Decision:	Dismiss the summons filed on 27 February 2014 seeking review of the judgment of the District Court given on 2 October 2013.
Catchwords:	JUDICIAL REVIEW – criminal convictions – dismissal of appeal by District Court – whether procedural unfairness in District Court – whether constructive failure of District Court to exercise jurisdiction – whether complaints as to fact-finding engaged jurisdictional error
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 District Court Act 1973 (NSW), s 176 Drug Misuse and Trafficking Act 1985 (NSW), ss 3, 29; Sch 1 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240
Category:	Principal judgment
Parties:	Andrew Keith Woods (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of NSW (Second Respondent) Local Court of NSW (Third Respondent)
Representation:	Counsel: Applicant in person Mr D T Kell (Respondent) Submitting appearances (Second and Third Respondents)   Solicitors: Solicitor for Public Prosecutions (First Respondent)
File Number(s):	2014/61940
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 2 October 2013 Before: Hanley DCJ File Number(s): 2011/299900

Judgment

1. JUDGMENT of THE COURT delivered by BASTEN JA: On 21 March 2013 the applicant, Andrew Keith Woods, was convicted of three offences under the Drug Misuse and Trafficking Act 1985 (NSW) at Burwood Local Court. The offences arose out of his possession of cannabis leaf and plants. The applicant was sentenced by Magistrate Maloney to three concurrent good behaviour bonds, each for a period of 18 months, pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

2. The applicant exercised his right of appeal, challenging the convictions in the District Court. [1] On 2 October 2013 Hanley DCJ, with the consent of the prosecutor, allowed the appeal in respect of one count which was held to overlap with other counts but otherwise dismissed the appeal. There is no right of appeal from such a judgment of the District Court. Furthermore, an adjudication of the District Court on appeal from the Local Court is not to be removed by any order into the Supreme Court. [2] This provision limits the exercise of the Court’s supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW) to cases involving jurisdictional error on the part of the District Court. [3]

   1. Crimes (Appeal and Review) Act 2001 (NSW), s 11.

   2. District Court Act 1973 (NSW), s 176.

   3. Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 at [133]-[134].

3. The convictions involved charges of supply of a prohibited drug and possession of a prohibited drug, namely cannabis leaf. The Local Court accepted the prosecution evidence that the applicant had in his possession 1,113.92 grams of that drug. By s 3 and Sch 1 of the Drug Misuse and Trafficking Act a trafficable quantity of cannabis leaf is 300 grams. By s 29 possession of not less than a trafficable quantity is deemed to be possession for supply unless the person in possession of the drug proves the possession is otherwise than for supply (or other presently irrelevant circumstances). By s 3 supply is constituted by, amongst other things, possession for supply.

4. On 27 February 2014, the applicant filed a summons in this Court purporting to assert a denial of procedural fairness which, it was said, was achieved by the primary judge through his “deliberate refusal to acknowledge the fact that the prima facie evidence used to convict had been falsified even after being presented with overwhelming evidence to support the fact that it is a forgery.” At one level, this ground appeared to be no more than an extravagantly expressed statement to the effect that the judge had made findings of fact on disputed evidence, which was said to be erroneous. If that were the correct understanding, the ground would not allege a breach of procedural fairness. An alternative understanding may be that the primary judge failed to address a defence raised by the applicant in the proceedings before him. Assuming that the defence was tenable and based on credible evidence, such an allegation might constitute a constructive failure to exercise the jurisdiction conferred on the Court.

5. The submissions accompanying the summons ran to some 150 pages. They were in part argumentative and in part a detailed factual analysis of the events giving rise to the charges and the proceedings in the court below. The document also contained lengthy extracts from cases, some of which had potential relevance to the issues which were identified in the grounds, but which were not related to the material before the Court in any useful fashion. Other parts of this lengthy handwritten document contained material which was of no direct relevance to the case before the primary judge. The document failed to identify any comprehensible basis upon which it was said that the primary judge erred in the exercise of his function in determining the appeal. In the absence of such a clear and precise statement of error it is not the function of this Court to sift through the vast number of documents provided by the applicant to determine whether error can be identified.

6. The original charge arose out of events on 7 September 2011, when a van being driven by the applicant was stopped by police. The evidence before the District Court was that after he was pulled over, the applicant was told that the vehicle would be searched and he was invited to stay. Not being under arrest, he declined to stay and left the scene on foot. The vehicle was then searched and cannabis found in a storage box in the van.

7. Telephone intercepts revealed the applicant calling someone shortly after the van was seized and telling the person that the police had confiscated his car and that it was “full of drugs and everything.”

8. It was accepted by the primary judge that the vehicle was stopped because police were investigating another matter and sought to carry out forensic testing on the vehicle.

9. Hanley DCJ noted that the various officers involved in the stop and seizure and the experts involved in the examination of the cannabis and identification of the DNA found on gloves contained in the vehicle were cross-examined by the applicant. The judge continued:

“However, I note all the certificates in relation to the cannabis, DNA and plants and the documents identifying the continuity of those items were tendered without objection. It was not put in cross-examination to the officers who asserted finding the drugs in the van that they were not there or that they had not found them.”

10. The District Court judge accepted the evidence for the prosecution as sufficient to warrant the conviction of the applicant. The appeal was therefore dismissed. No challenge to the factual findings made in the District Court is available in this Court. The transcript of the hearing before the District Court and the reasons for judgment reveal no relevant error. The summons should be dismissed. The Director did not seek costs.

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Endnotes

Decision last updated: 11 December 2015