Woods v Director of Public Prosecutions (NSW) (No 2)

[2015] NSWCA 399

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Woods v Director of Public Prosecutions (NSW) (No 2) [2015] NSWCA 399
Hearing dates:	7 December 2015
Decision date:	07 December 2015
Before:	Basten JA; Simpson JA; Tobias AJA
Decision:	Dismiss the summons seeking review of the judgment of the District Court given on 22 May 2014.
Catchwords:	JUDICIAL REVIEW – criminal conviction – dismissal of appeal by District Court – whether jurisdictional error in District Court – whether knowledge of allegation involved acceptance by court – whether judgment given for an improper purpose in bad faith
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), s 11 District Court Act 1973 (NSW), s 176 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):	2014/164823
Decision under appeal	Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 22 May 2014 Before: Bennett DCJ File Number(s): 2012/323308

Judgment

1. JUDGMENT of the COURT delivered by BASTEN JA: On 20 September 2013 the applicant, Andrew Keith Woods, was convicted and sentenced in the Local Court at Burwood on a charge of driving a motor vehicle whilst under the influence of methylamphetamine and amphetamine. The offence occurred on 25 July 2012. The applicant appealed pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) to the District Court against his conviction. The appeal was heard by Bennett DCJ in the District Court at Parramatta. On 22 May 2014 the judge dismissed the appeal.

2. The present application is brought pursuant to s 69 of the Supreme Court Act 1970 (NSW), there being no right of appeal from the judgment of the District Court. Further, as a result of the privative clause in s 176 of the District Court Act 1973 (NSW), the supervisory jurisdiction of this Court is limited to jurisdictional error on the part of the court below. [1]

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

3. Although the applicant referred to the “grounds of appeal” in a document which appears to have been treated as both a summons and a written submission, he limited the challenge to an allegation that his conviction was obtained by fraud (on the part of the police) and “was a ruling for an improper purpose in bad faith and with bias denying the plaintiff of natural justice.”

4. These grounds use the language of judicial review for jurisdictional error. However, they are misapplied.

5. When the applicant was stopped by police whilst driving his vehicle in Croydon Park, the officer who stopped him, Sergeant Heywood, gave evidence that he exhibited behaviour consistent with being under the influence of drugs, both by his erratic driving and evidence of his inability to comply with behavioural tests designed to reveal intoxication. The blood and urine samples taken from him at a local hospital were tested and revealed traces of amphetamine and methylamphetamine. A certificate from a pharmacologist averred that the levels revealed would be sufficient to impair a person’s ability to drive.

6. On the face of it, this material was entirely unremarkable. The case run by the applicant in the District Court was that the stopping of the vehicle was, as Bennett DCJ described it, “a device”. [2] Before Bennett DCJ, the applicant contended that he was “the target of other police in relation to another investigation and that the highway patrol officers here concerned were party to whatever the other officers were engaged upon.” [3] Accordingly the stop was a mere device so that his vehicle could be secured and access obtained for the purpose of the other investigation.

   2.    Judgment, 22/05/14, p 5.

   3.    Judgment, p 3.

7. Bennett DCJ dealt with the evidence in the allegations put before him in this regard in the following passage: [4]

“Whether or not this was a device to have Sergeant Heywood secure the appellant and his vehicle so that some controlled operation might have been pursued ultimately does not leave me in doubt about the evidence given by the sergeant. Even were it so, the sergeant’s evidence, unassailed, is that he saw the vehicle driven in an erratic fashion and he saw the symptoms as described, and he saw the failure of the sobriety test.

If I accept that evidence to the requisite standard, which I do, it matters not that the initial decision by the sergeant to take the step of observing the appellant rested upon what came to him from some other police officer responsible in some fashion for the other matter. That is neither here nor there. I am unable to say, I might add that, this is the case on the material that I have before me.”

4.    Judgment, p 8.

8. In other words, the applicant ran a case before the trial judge of misconduct on the part of the police. Not only did he fail to satisfy the trial judge that there was such misconduct but, as the judge pointed out, the nature of the misconduct would have been irrelevant.

9. The submissions in this Court reveal that the applicant was seeking to rerun that case. However, he sought to do so on a misconceived basis. For example, his submissions with respect to fraud commenced with the following proposition:

“DCJ Bennett from the 3rd day of proceedings (transcript 16/05/2014 lines 24-29 [sic]) knew, and had confirmed with Mr Modder from the DPP that the premise under which I was pulled over was fraudulent. These comments between himself and Mr Modder also put any ruling made by DCJ Bennett after these comments were made, as a ruling made in bad faith.”

10. Later submissions identified the page to which reference was made as page 36 of the transcript. The hearing on 16 May opened with Mr Modder, appearing for the prosecution, noting that there were two matters in the list and that in relation to the applicant’s matter he would be seeking an adjournment. The judge responded:

“We might as well get rid of Woods now. I can have him brought up so it will save mentioning it later. Was there any luck with regard to the proposition that’s being advanced, either for or against either party, that is the suggestion that this was the sham so that they get hold of his vehicle?

MODDER: I believe there was involvement from another unit.”

11. The matter had been before Bennett DCJ on two prior occasions; all that the passage in question demonstrated was that the judge recalled from the hearing two weeks earlier, that the applicant had made allegations of impropriety. There was no suggestion that Bennett DCJ knew, or accepted, that the allegations had substance. Indeed, the extract from the transcript indicated that he was enquiring as to whether there was or was not evidence of the sham that had been alleged. All that he was told was that there was some involvement from another unit, to which reference has been made in the passage already cited from Bennett DCJ’s reasons for judgment. [5]

    5. Above at [7].

12. On 22 May 2014, Sergeant Heywood gave evidence that he had received a phone call from another police officer before he intercepted the applicant’s vehicle.

13. Not only did this material not demonstrate that the applicant was “pulled over” on a “fraudulent” basis, but it also failed to demonstrate that any such thing was “known” to the trial judge. The allegations of bias, making a decision for an improper purpose in bad faith and denying the applicant procedural fairness appear to have been based on the premise that the judge “knew” that the stopping of the vehicle was fraudulent. However, the factual premise was not made good.

14. It follows that the challenge to the judgment in the District Court must be rejected. The Director did not seek costs. It is sufficient to order that the summons be dismissed.

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Endnotes

Amendments

11 December 2015 - Coversheet - CA File number

Decision last updated: 11 December 2015