Citation: Director of Public Prosecutions v Al-Zuhairi [2018] NSWDC 135
Court: District Court of NSW
Date: 12 April 2018
Judge: Colefax SC DCJ
Background
The respondent was convicted in the Local Court of assault occasioning actual bodily harm following a contested hearing on 15 September 2017. He appealed to the District Court against that conviction. On 30 January 2018, Colefax SC DCJ allowed the appeal and set aside the conviction.
A central issue at the Local Court hearing was how the complainant's evidence had been placed before the Magistrate. Rather than being formally tendered as an exhibit, the complainant's DVEC (Domestic Violence Evidence in Chief) recorded statement was played in part during the evidence of the officer in charge and marked only as MFI A (meaning it was marked for identification, not admitted into evidence). When the complainant was called, she did not adopt the contents of that recording. No agreed transcript of the portion played was prepared.
On the appeal, the Crown sought to adduce fresh evidence but did so only after the appeal had been decided, at which point the judge was functus officio (meaning the court had exhausted its jurisdiction over the matter and could no longer act). The District Court then had to determine, at the Crown's request, whether to submit questions of law to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW).
Legal Issues
- Whether the District Court was correct to allow the conviction appeal on the basis that there was no evidence of the essential elements of the offence before the court on the re-hearing
- Whether a DVEC recorded statement must be formally tendered in summary proceedings if the Crown intends to rely on it
- Whether the Crown may adduce fresh evidence on a conviction appeal in the District Court
- Whether the questions raised by the Crown constituted questions of law suitable for submission to the Court of Criminal Appeal under s 5B
- Whether discretionary grounds existed to refuse the Crown's s 5B application
Decision
Colefax SC DCJ held that the appeal had been correctly allowed because, at the close of the Crown case on the re-hearing, there was no evidence before the District Court proving the essential elements of the offence. The DVEC recording had never been formally tendered as an exhibit in the Local Court. It was marked only as MFI A, played only in part, with no record of where the playing stopped. There was no agreed transcript and the complainant did not adopt its contents when giving evidence.
The judge reasoned that procedural guidance from authorities such as R v NZ and CF v R, which deal with the management of recorded evidence in jury trials, does not apply to summary proceedings. In the summary jurisdiction, there are compelling reasons to formally tender a DVEC statement if the Crown wishes to rely on it, not least to ensure a clear and complete record is available on appeal.
On the question of fresh evidence, the court confirmed it is not appropriate for the Crown to seek to adduce fresh evidence on a conviction appeal, at least absent an application from the appellant. The Crown's belated application, made after the appeal was determined, was out of time.
Turning to the s 5B application, the court accepted that two of the three traditional criteria were satisfied: the questions raised were questions of law, and they arose in the appeal. The court declined to treat the application as frivolously baseless and noted that anecdotal evidence suggested the Local Court practice at issue was not isolated. On that basis, the judge considered it desirable for the Court of Criminal Appeal to provide guidance and accordingly agreed to submit questions to that court, with amendments to the Crown's draft questions.
Orders Made
- The appeal was allowed and the conviction set aside on 30 January 2018 (confirmed in these reasons)
- The court agreed to submit questions to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW), subject to amendments to the Crown's draft questions
- A fourth question was added to the stated case, addressing whether the judge erred in law in holding that there was no evidence to prove the essential elements of the offence
- The reasons were directed to be annexed to the stated case
- The Crown was directed to file and serve an amended stated case consistent with these reasons within 7 days, by lodging hard copy documents in the Parramatta Registry of the District Court
Key Takeaways
- In summary proceedings, a DVEC recorded statement should be formally tendered as an exhibit if the Crown intends to rely on it. Marking it for identification only, without tender, means its contents are not evidence before the court.
- The District Court confirmed that a conviction appeal from the Local Court proceeds by way of re-hearing on the existing record. The Crown case consists of the transcript and exhibits from the Local Court hearing, and it closes upon tender of that material.
- Adducing fresh evidence on a conviction appeal is not available to the Crown, at least in the ordinary course. A belated application made after the appeal is decided falls outside the court's jurisdiction entirely.
- Under s 5B of the Criminal Appeal Act 1912 (NSW), a District Court judge may refuse to submit questions to the Court of Criminal Appeal only where the application is so obviously frivolous and baseless as to constitute an abuse of process, as established in Ex parte McGavin; Re Byrne (1945).
- Procedural guidance from cases such as R v NZ and CF v R, which govern recorded evidence in jury trials, does not translate directly to summary proceedings where the factfinder is a Magistrate rather than a jury.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5B(2)
- Crimes (Appeal and Review) Act 2001 (NSW), ss 11 and 18(1)
- Crimes Act 1900 (NSW), s 59(1)
- Criminal Procedure Act 1986 (NSW), ss 3 and 289F
Cases:
- Tritton v Clarke [2018] NSWCCA 31
- Lavorato v Regina [2012] NSWCCA 61
- R v NZ (2005) 63 NSWLR 682
- CF v R [2017] NSWCCA 318
- Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251
- Ex parte McGavin; Re Byrne (1945) 46 SR (NSW) 58