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Court of Criminal Appeal 27 July 2018

Director of Public Prosecutions (NSW) v Al-Zuhairi

[2018] NSWCCA 151

Assault & violenceDomestic & family violence
CRIME STATED CASE

Citation: Director of Public Prosecutions (NSW) v Al-Zuhairi [2018] NSWCCA 151
Court: Court of Criminal Appeal
Date: 27 July 2018
Judge(s): Payne JA (principal judgment); R A Hulme J and Fagan J (agreeing)

Background

The respondent was convicted in the Local Court of assault occasioning actual bodily harm under s 59(1) of the Crimes Act 1900 (NSW). The complainant was the brother of the respondent's ex-partner. Because the parties shared a "domestic relationship" within the meaning of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the offence was classified as a "domestic violence offence."

Pursuant to s 289F of the Criminal Procedure Act 1986 (NSW), the complainant gave evidence in chief by way of a pre-recorded statement, which was played to the Local Court. The recording was marked for identification as "MFI A" but was never formally tendered as an exhibit. The Local Court transcript simply noted "MFI A PLAYED TO COURT," without recording its contents.

The respondent appealed to the District Court, where the District Court Judge allowed the appeal and set aside the conviction. The judge reasoned that because the recording had not been formally tendered, its contents were not "evidence given in the original Local Court proceedings" within the meaning of s 18(1) of the Crimes (Appeal and Review) Act 2001 (NSW). At the DPP's request, the District Court Judge then stated four questions of law for the opinion of the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW).

  • Must a recorded statement played under s 289F of the Criminal Procedure Act be formally tendered as an exhibit in the Local Court in order to constitute "evidence given in the original Local Court proceedings" under s 18(1) of the Crimes (Appeal and Review) Act 2001?
  • Is it sufficient that the Local Court viewed or heard the recorded statement for it to become evidence in those proceedings?
  • Did the District Court Judge err in law in concluding that the untendered recording was not "evidence given in the original Local Court proceedings"?
  • Did the District Court Judge err in law in concluding that, on the rehearing, there was no evidence capable of proving the essential elements of the offence?

Decision

The Court of Criminal Appeal held that formal tender of a recorded statement played under s 289F is not required for the recording to constitute evidence in the original Local Court proceedings. The court reasoned that s 289F(1) expressly provides that once a recorded statement is "viewed or heard" by the court, the representations within it become the complainant's evidence in chief in the same way as oral testimony from the witness box. The act of playing the recording in open court was therefore sufficient.

The court grounded this conclusion in the legislative intention behind s 18 of the Crimes (Appeal and Review) Act, which provides that District Court appeals from the Local Court proceed on the basis of evidence given in the original proceedings, whether or not that evidence forms part of the transcript. Requiring formal tender would impose a procedural requirement that the legislation does not mandate and that would sit uneasily with the special regime s 289F creates for domestic violence complainants.

The court distinguished the earlier decision in Charara v The Queen (2006) 164 A Crim R 39, which had addressed different statutory circumstances, and applied Gately v The Queen (2007) 232 CLR 208 and R v NZ (2005) 63 NSWLR 628 in support of its reasoning. On this basis, the District Court Judge had erred in law in answering questions 1, 2 and 3.

The fourth question, concerning whether there was sufficient evidence to prove the essential elements of the offence on the rehearing, was declined. The Court of Criminal Appeal held that this was a mixed question of fact and law, placing it outside the scope of a stated case under s 5B of the Criminal Appeal Act, which is confined to pure questions of law. The matter was remitted to the District Court for rehearing in accordance with the Court's reasons.

Orders Made

  • The orders made by the District Court on 30 January 2018 are quashed.
  • The matter is remitted to the District Court for determination in accordance with the Court of Criminal Appeal's reasons (under s 5B(3) of the Criminal Appeal Act 1912).
  • Answers provided to the stated case:
  • Question 1: No (formal tender is not required)
  • Question 2: Yes (viewing the recording by the court is sufficient)
  • Question 3: Yes (the District Court Judge erred in law)
  • Question 4: Inappropriate to answer (mixed question of fact and law, outside s 5B jurisdiction)

Key Takeaways

  • Under s 289F of the Criminal Procedure Act 1986, a complainant's recorded statement in domestic violence proceedings becomes their evidence in chief once the court views or hears it, regardless of whether it has been formally tendered as an exhibit.
  • The Court of Criminal Appeal confirmed that the contents of a recorded statement played in the Local Court constitute "evidence given in the original Local Court proceedings" within the meaning of s 18(1) of the Crimes (Appeal and Review) Act 2001, even where no formal tender occurred and no agreed transcript exists.
  • The District Court erred by importing a formal tender requirement that s 289F does not impose and that is inconsistent with the broader legislative scheme governing domestic violence proceedings.
  • A stated case under s 5B of the Criminal Appeal Act 1912 is confined to pure questions of law. Questions that require consideration of whether evidence is sufficient to prove the elements of an offence are mixed questions of fact and law and fall outside that jurisdiction.
  • In distinguishing Charara v The Queen, the Court of Criminal Appeal signalled that decisions concerning the evidentiary status of recordings under different statutory regimes do not automatically apply to the s 289F framework.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 59
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18
- Crimes (Domestic and Personal Violence) Act 2007 (NSW), ss 4, 5, 6, 11
- Criminal Appeal Act 1912 (NSW), s 5B
- Criminal Procedure Act 1986 (NSW), ss 3, 289C, 289E, 289F, 289I, 306B
- Interpretation Act 1987 (NSW), s 33
- Evidence Act 1995 (NSW)

Cases:
- Gately v The Queen (2007) 232 CLR 208
- R v NZ (2005) 63 NSWLR 628
- Charara v The Queen (2006) 164 A Crim R 39 (distinguished)
- Jarrett v R (2014) 86 NSWLR 623
- CF v R [2017] NSWCCA 318
- JP v Director of Public Prosecutions (NSW) [2015] NSWSC 1669
- SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936