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92
Court of Criminal Appeal 23 August 2006

CHARARA v THE QUEEN

[2006] NSWCCA 244

Also reported as (2006) 164 A Crim R 39
Traffic & driving
CRIMINAL LAW APPEAL AND NEW TRIAL APPEALS FROM MAGISTRATES APPEAL AGAINST CONVICTION REHEARING ON TRANSCRIPT OF EVIDENCE FRESH EVIDENCE

Citation: CHARARA v THE QUEEN [2006] NSWCCA 244
Court: NSW Court of Criminal Appeal
Date: 23 August 2006
Judge(s): Mason P; Kirby J; Hoeben J

Background

The appellant was stopped by police and issued a traffic infringement notice for speeding, allegedly travelling at 107km/h in a 70km/h zone. He was convicted in the Local Court on 4 August 2005 and exercised his statutory right of appeal to the District Court.

When the matter came before the District Court judge for mention, his Honour directed, without any application from either party, that the appeal would proceed by way of witnesses giving evidence afresh before him. This amounted to a full de novo hearing. The main Crown witness gave oral evidence again, and the appellant also gave evidence, having not done so in the Local Court.

The District Court confirmed the conviction, fine, and licence suspension. The appellant then challenged the procedure by way of a case stated to the Court of Criminal Appeal, arguing the judge had erred in law by conducting the appeal as though it were a fresh hearing rather than a rehearing on the Local Court transcript.

  • Whether an appeal against conviction from the Local Court to the District Court under s 18 of the Crimes (Local Courts Appeal and Review) Act 2001 is a rehearing on the certified transcript of evidence or a full de novo hearing.
  • Whether the District Court judge erred by directing, on his own motion and without any party application, that all witnesses give oral evidence afresh.
  • Whether s 19 of the Act permits a blanket direction that all witnesses give evidence in person, and if so, what process must be followed.

Decision

The Court of Criminal Appeal, with Mason P delivering the principal judgment and Kirby J and Hoeben J agreeing, answered the case stated in the affirmative: the District Court judge had erred in law.

An appeal under s 18 is a rehearing on the certified transcripts of evidence from the Local Court proceedings, supplemented by any tendered exhibits. It is not a de novo appeal. The standard principles governing appellate review of findings by judges sitting without a jury apply: the appellate judge forms his or her own view of the facts, while giving appropriate weight to the advantage held by the magistrate who saw and heard the witnesses at first instance.

Although the magistrate's reasons are not part of the certified transcripts, the Court held that recourse may be had to them, because the appellate function could not properly be carried out without them. Fresh evidence may be received, but only by leave under s 18(2), and only where the District Court is satisfied it is in the interests of justice. A judge may call a witness of his or her own motion only in highly exceptional circumstances, consistent with the approach established in The Queen v Apostolides (1984) 154 CLR 563.

Section 19, which permits the District Court to direct a person to attend and give oral evidence, operates only after the requirements of s 18 have been addressed. Critically, it requires consideration on a witness-by-witness basis, not by a blanket direction covering all witnesses at once. The gateways of "special reasons" (for offences involving violence) and "substantial reasons" (in other cases) under s 19(1) demand close attention to the interests of justice in each individual case. The Court found no indication the judge had considered s 19(1)(b) at all before issuing his blanket direction at the first mention.

Orders Made

  • The question in the case stated answered: Yes (the District Court judge erred in law).
  • Orders made in the District Court quashed.
  • Proceedings remitted to the District Court to be determined in accordance with the reasons of the Court of Criminal Appeal.

Key Takeaways

  • Under s 18 of the Crimes (Local Courts Appeal and Review) Act 2001, an appeal against a Local Court conviction proceeds by rehearing on the certified transcript of evidence, not as a full de novo hearing where all witnesses give fresh oral testimony.
  • Appellate review principles from judge-alone trials apply: the District Court must form its own view of the facts, but must acknowledge the magistrate's advantage in having seen and heard the witnesses at first instance.
  • Fresh evidence requires leave under s 18(2), with the court satisfied it is in the interests of justice; a judge may only call a witness of his or her own motion in highly exceptional circumstances.
  • Section 19 does not permit a blanket direction for all witnesses to give evidence in person. The provision requires separate consideration of each witness and satisfaction of the "special reasons" or "substantial reasons" threshold in s 19(1) before any such direction is made.
  • The Court of Criminal Appeal confirmed that the magistrate's reasons, while not part of the certified transcript, may be consulted because the appellate function cannot properly be performed without them.

Legislation and Cases Referenced

Legislation
- Crimes (Local Courts Appeal and Review) Act 2001 (NSW), ss 18 and 19
- Criminal Appeal Act 1912 (NSW), s 5B
- Criminal Procedure Act 1986 (NSW)
- Justices Act 1902 (NSW)
- Justices Legislation Amendment (Appeals) Act 1998 (NSW)

Cases
- Gianoutsas v Glykis [2006] NSWCCA 137
- The Queen v Apostolides (1984) 154 CLR 563
- Fox v Percy (2003) 214 CLR 118
- Bell v Stewart (1920) 28 CLR 419
- Da Costa v Cockburn Salvage and Trading Pty Ltd (1970) 124 CLR 192
- Carcosa Pty Ltd v Czerwaniw (1997) 93 A Crim R 287