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District Court 13 July 2022

R v Chan

[2022] NSWDC 260

Traffic & driving

Citation: R v Chan [2022] NSWDC 260
Court: District Court of New South Wales
Date: 13 July 2022
Judge: Scotting DCJ

Background

The appellant, a ride share driver, was convicted in the Downing Centre Local Court on 5 November 2021 of disobeying a no stopping sign in Crown Street, Sydney, and fined $880. The prosecution's case was that the appellant had voluntarily stopped his vehicle in a no stopping zone outside the Dolphin Hotel at around 7.50pm on 31 October 2020. The appellant's case was that a police officer had directed him to stop at that location while he was slowly moving forward attempting to locate his passengers.

The appellant was unrepresented at both the Local Court hearing and on appeal. He had requested an interpreter prior to the Local Court hearing, one was ordered by the court, but none was present on the day. Despite this, the magistrate refused to provide an interpreter when the appellant requested one at the commencement of the hearing.

  • Whether the appeal, conducted as a rehearing on certified transcripts under s 18 of the Crimes (Appeal and Review) Act 2001, revealed error in the magistrate's decision
  • Whether the denial of an interpreter to a self-represented, non-English-proficient appellant constituted a denial of procedural fairness
  • Whether the magistrate's comments and conduct gave rise to a reasonable apprehension of bias
  • What orders were available to the District Court given the absence of any power to remit the matter to the Local Court

Decision

Scotting DCJ identified several significant procedural failings in the Local Court proceedings. The transcript contained numerous "not transcribable" entries during the appellant's evidence, indicating substantial parts of what the appellant said were never captured. Despite the court having ordered an interpreter and the magistrate acknowledging difficulty understanding the appellant even before proceedings commenced, the request for an interpreter was refused when the hearing began.

The magistrate also made a series of pre-emptive and dismissive remarks. Before the appellant had an opportunity to articulate his case, the magistrate characterised it as alleging police fraud and a set-up. The magistrate also made generalised derisive comments about the everyday nature of excuses offered by taxi and ride share drivers, suggesting a pre-formed attitude toward the appellant's type of defence.

His Honour found that the manner in which the magistrate summarised the appellant's case to the police officer during cross-examination was framed in a way that was only ever likely to elicit a denial. The officer was asked whether he had "entrapped" the appellant, a formulation that invited rejection rather than a neutral examination of the appellant's account. The District Court found that, viewed from the perspective of a fair-minded lay observer, the magistrate's conduct gave rise to a reasonable apprehension of bias against ride share drivers and the appellant's case in particular.

Scotting DCJ was satisfied that the magistrate's decision was affected by error. However, because the District Court has no power under s 20 of the Crimes (Appeal and Review) Act 2001 to remit the matter to the Local Court, his Honour noted the difficulty this created. There was evidence capable of establishing the offence, but it had been elicited in a fundamentally unfair manner. The Court indicated it would give the Crown an opportunity to decide whether to run the case afresh in the District Court, with witnesses to give oral evidence under s 19 of the Act, and listed the matter for mention.

Orders Made

  • The matter was listed for mention on Wednesday 17 August 2022 at 9.30am.

(Note: The judgment did not formally record an order setting aside the conviction, though the reasoning plainly proceeded on the basis that error had been established. The only formal order recorded was the mention listing.)

Key Takeaways

  • The District Court found that refusing an interpreter to a self-represented appellant whose limited English was apparent from the outset, and for whom an interpreter had already been ordered, constituted a fundamental denial of procedural fairness.
  • A magistrate's pre-emptive characterisation of a defendant's case, made before the defendant had an opportunity to articulate it, can contribute to a finding of apprehension of bias.
  • Generalised dismissive comments about the credibility of an entire category of road users (here, taxi and ride share drivers) can support a reasonable apprehension of bias against a defendant who falls within that category.
  • Under s 20 of the Crimes (Appeal and Review) Act 2001, the District Court has no power to remit a conviction appeal to the Local Court; the only available disposals are setting aside the conviction or dismissing the appeal, creating difficulty where evidence was gathered through an unfair process but the offence might otherwise be established.
  • Where a self-represented appellant with limited English is unaware of the right to seek disqualification of a judicial officer, the absence of such an application does not preclude a finding of apprehension of bias on appeal.

Legislation and Cases Referenced

Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 18, 19, 20

Cases
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Gianoutsas v Glykis [2006] NSWCCA 137
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- McNab v Director of Public Prosecutions [2021] NSWCA 298