Yenuga v Director of Public Prosecutions (NSW) [2021] NSWCA 293

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Yenuga v Director of Public Prosecutions (NSW) [2021] NSWCA 293 Hearing dates: 19 November 2021 Date of orders: 19 November 2021 Decision date: 19 November 2021 Before: Basten JA at [32], [34]; Gleeson JA at [33]; Brereton JA at [1] Decision: 1. Grant the applicant an extension of time to apply for review of the judgment of 8 April 2021 up to the date of filing his Summons on 25 August 2021; 2. Dismiss the Summons seeking review of the judgments in the District Court of 8 April 2021 (dismissing his appeal) and of 3 June 2021 (refusing to state a case); and 3. Order that the applicant pay the Director's costs of the proceedings in this Court. Catchwords: CRIME – Appeal and review – Stated case – Refusal to state a case – Application for judicial review – Where application before District Court raised no questions of law – Where all grounds of review in this Court represent challenges to factual findings or are otherwise devoid of merit – No jurisdictional error established – Attempt to circumvent lack of further right of appeal on grounds of fact – Application dismissed JUDICIAL REVIEW – Ground of review other than procedural fairness – Decision not authorised – Where primary judge provided revised transcripts of reasons after delivering judgments ex tempore – Whether judgments void because Court functus officio after initial delivery of judgment – Revision of transcripts entirely orthodox – No error established JUDICIAL REVIEW – Bias rule – Apprehended – Particular factual matter giving rise to alleged bias – Where primary judge contacted respondent seeking submissions in response to applicant's application – Applicant copied on email – No apprehension of bias CONSTITUTIONAL LAW – Commonwealth and State relations – Inconsistency of laws – Where no relevant Commonwealth law identified – No inconsistency CONSTITUTIONAL LAW – State legislative power – Proportionality – Whether lack of consonance between Crimes (Domestic and Personal Violence) Act 2013 (NSW) and Declaration on the Elimination of Violence against Women – Act does not purport to enact Declaration as part of domestic law – Challenge misconceived Legislation Cited: Crimes Act 1900 (NSW), s 61 Crimes (Domestic and Personal Violence) Act 2013 (NSW), ss 7, 9(1)(c), 13 Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A Criminal Appeal Act 1912 (NSW), s 5B District Court Act 1973 (NSW), s 176 Supreme Court Act 1970 (NSW), s 69 Cases Cited: Charara v Director of Public Prosecutions (NSW) (2001) 120 A Crim R 225; [2001] NSWCA Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 Duarte v Director of Public Prosecutions (NSW) [2020] NSWCCA 351 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Ex parte McGavin; Re Berne (1945) 46 SR (NSW) 58 Forrest v Director of Public Prosecutions (NSW) (2020) 286 A Crim R 191; [2020] NSWCA 162 Jankovic v Director of Public Prosecutions (NSW) (2020) 281 A Crim R 378; [2020] NSWCA 31 McCloy v State of New South Wales (2015) 257 CLR 178; [2015] HCA 34 Mulder v Director of Public Prosecutions (Cth) (2015) 250 A Crim R 154; [2015] NSWCA 92 R v Madden (1995) 85 A Crim R 367 Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 West v Commonwealth Director of Public Prosecutions [1999] NSWCA 398 Yenuga v R (District Court (NSW), Girdham SC DCJ, 8 April 2021, unrep) Yenuga v R (District Court (NSW), Girdham SC DCJ, 3 June 2021, unrep) Texts Cited: Declaration on the Elimination of Violence against Women, UN GAOR, UN Doc A/Res/48/104 (20 December 1993) Category: Principal judgment Parties: Sreenivasa Mukherjee Yenuga (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: Self-represented (Applicant) J Davidson (First Respondent)