District Court New South Wales Medium Neutral Citation: LC v R [2022] NSWDC 19 Hearing dates: 20 October 2021 & 16 November 2021 Date of orders: 28 January 2022 Decision date: 28 January 2022 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: (1) Refuse the application for the attendance of these witnesses to give evidence (2) Allow use of the documents, sought to be adduced as fresh evidence for the reasons given including that for the most part they were part of the material before the magistrate for the determination of questions required of that court Catchwords: CRIME — Appeals — Appeal against conviction — Application to adduce fresh evidence Legislation Cited: Crimes (Appeal and Review) Act 2001 Housing Act 2001 New South Wales Fair Trading Act 1987 Cases Cited: New South Wales Land and Housing Corporation v Quinn (No. 2) [2018] NSWDC 161 Category: Principal judgment Parties: LC (Appellant) NSW Land and Housing Corporation (Respondent) Representation: Kevin Vierboom (solicitor for the Appellant) Patrick Broad (counsel for the Respondent) Fourtree Lawyers (Appellant) NSW Land and Housing Corporation (Respondent) File Number(s): 2015/00259893 Publication restriction: Suppression order for the name of the appellant, they are to be known only as LC The address to which the proceedings relate is suppressed The residential address of LC is to be suppressed REVISED EX TEMPORE JUDGEMENT INTRODUCTION 1. This is the matter of LC. Mr Broad appears for the respondent and Mr Vierboom appears for the appellant-applicant. This judgement concerns the application to adduce fresh evidence and have witnesses called for cross-examination. 2. LC appeals from having been found guilty in the Local Court at Hornsby on 4 December 2020 after a defended hearing of seven charges contrary to the Housing Act 2001. The prosecution was brought by the New South Wales Land and Housing Corporation. THE OFFENCES 1. In summary form the offences charged are: * Sequence 1, that the appellant made false statements and representations on 5 March 2015 contrary to s 69(1) Housing Act 2001; * Sequence 2, that the appellant by means of a fraudulent device on 5 March 2015 obtained and claimed from the New South Wales Land and Housing Corporation a rental rebate or a reassessment of her rental rebate and hid from the New South Wales Land and Housing Corporation information that would have allowed retrospective reduction of entitlements and reduction or termination of accommodation benefits, contrary to s 69(2) Housing Act 2001; * Sequence 3, that the appellant made false statements and representations on 20 March 2015, contrary to s 69(1) Housing Act 2001; * Sequence 4, that the appellant made false statements and representations on 20 March 2015, contrary to s 69(1) Housing Act 2001; * Sequence 5, that the appellant on 20 March 2015 aided and abetted the commission of offence against s 69(1) Housing Act 2001 contrary to s 69(3) Housing Act 2001; * Sequence 6, that the appellant on 20 March 2015 aided and abetted the commission of an offence against s 69(1) Housing Act 2001, contrary to s 69(3) Housing Act 2001; * Sequence 7, that the appellant by means of a fraudulent device on 20 March 2015 obtained and claimed from the New South Wales Land and Housing Corporation a rental rebate or a reassessment of her rental rebate and hid from the New South Wales Land and Housing Corporation information that would have allowed a retrospective reduction of entitlements and reduction or termination of accommodation benefits contrary to s 69(2) Housing Act 2001. 1. The court attendance notices provide more particulars of the offences alleged in each instance, including the names of individuals in respect of whom it is alleged that the appellant engaged upon these offences. The particulars are detailed. There is no need to replicate them for the purposes of the decision I am called upon to make in response to these applications. THE APPLICATIONS 1. The appeal was listed before me on 20 October 2021 for decisions upon applications to adduce fresh evidence and for the attendance of witnesses to give further evidence in accordance with the orders sought in a notice of motion filed on 20 August 2021. When the matter came before me the orders sought were confined to the following: 1. An order pursuant to s 18(2) Crimes (Appeal and Review) Act 2001 that leave be granted to the appellant to give fresh evidence in the appeal being. 1. ... 2. ... 3. ... 4. ... 5. the two relevant GFACS email trails between Mr Cureton and Ms Jade Lee, in which Mr Di Francesco (sic) was also copied into this correspondence; 6. email from Ms Trang Mai, legal officer at the Department of Communities and Justice dated 6 November 2019 attaching email correspondence and an instrument of delegation made by Minister Upton dated 16 January 2014; 7. ... 8. an extract of the annual report pp 1-12 of the New South Wales Land and Housing Corporation for the year 2012 to 2013; 9. ... 1. An order pursuant to s 19(1)(b) Crimes (Appeal and Review) Act 2001 that Mr Nathan Cureton (sic) attend at the District Court to give evidence in the proceedings on appeal. 2. An order pursuant to s 19(1)(b) Crimes (Appeal and Review) Act 2001 that Ms Jade Lee attend the District Court to give evidence in the proceedings on appeal. 3. An order pursuant to s 19(1)(b) Crimes (Appeal and Review) Act 2001 that Mr Antonio Di Francesco (sic) attend the District Court to give evidence in the proceedings on appeal. 4. An order that the costs in the motion be costs in the appeal. 1. Submissions were made in support of the applications and in opposition on behalf of the respondent and the appeals were adjourned for mention on 25 October 2021 to allocate a date for further submissions and my decision. Due to the continuation of a trial which proceeded in excess of the estimates given it was not possible to accommodate this matter until 28 January 2022 and thus it was listed today for my decision and further submissions. LOCAL COURT PROCEEDINGS 1. Although not tendered in the application there is on the court file the material which would have formed the Crown bundle for the purposes of the appeals including the cover sheet, court attendance notices and the transcript of proceedings in the Magistrate's court. 13 October 2016 1. The transcript on the court file begins with proceedings on 13 October 2016; the first page is endorsed that the proceedings were part heard. There were three defendants; these were Kirra Jade Gosling who was self-represented and two others whose identities were suppressed leaving them to be identified by their initials. They were LC, this appellant-applicant, and NC. There was a suppression order in respect of another person identified as GC but that person did not appear as a party in the proceedings. Mr Vierboom appeared for LC and Mr Blanchard appeared for NC. Mr De Francesco (sic) appeared for the Land and Housing Corporation. 2. The Court was informed that after some discussions the prosecution had indicated that they wanted to adjourn the proceedings after a notice of motion was filed on 5 October 2016 on behalf of NC asking for relief on the grounds that there was no proper approval for commencement of the prosecution of NC. Although there was no comparable document filed on behalf of LC an application in similar terms was pursued on her behalf. 3. There was on its face a vigorous exchange that followed including complaints that there had not been compliance with subpoenae issued to the Corporation and criticisms of agents or officers of the Corporation who were said to have attempted to serve further documents upon LC and have her sign for them. 4. The phrase "abuse of process" was offered in the course of the exchange but ultimately the Magistrate, correctly I would suggest, identified the issues that needed to be resolved: first was whether authority was required for an investigation and the institution of proceedings, and secondly, if so, whether any such authority had been properly delegated and exercised in the investigation of the material events and the commencement of proceedings. 5. The adjournment application was granted with a timetable for the provision of documents from each of the parties upon which they intended to advance their respective arguments. 4 May 2017 1. The next transcript is from 4 May 2017. Before then affidavits were filed and the witnesses required for cross-examination. Nathan John Kiraton (sic) was called. His name is spelled thus in the transcript but from elsewhere his family name is Cureton. He was a solicitor employed by the Department of Family and Community Services who provided three affidavits. 2. By way of summary only his role was to provide services to the Land and Housing Corporation as part of his function. 3. Mr Vierboom cross-examined on behalf of the appellant-applicant. Mr Blanchard cross-examined on behalf of NC. The cross-examination on the face of the transcript was vigorous and was far‑reaching, extending to the nature of the allegations and their formulation and the manner in which they were maintained. 4. Ms Gosling, who appeared unrepresented in the proceedings, did not participate but relied upon the representations made by the lawyers appearing for the other defendants in support of identical relief in her case. 14 June 2017 1. The Magistrate gave his decision on 14 June 2017, ultimately rejecting the arguments in support of the proposition that the prosecution should be dismissed as beyond the power of the Authority for there being no adequate delegation of the task or investigation of these matters and subsequently the prosecution of the alleged offences. 1 April 2019 1. On 1 April 2019 the evidence in the prosecution was commenced; from that date the proceedings were adjourned to 2 July 2019. 2 July 2019 1. Further evidence was adduced in his case by Mr Vierboom appearing on behalf of the appellant-applicant. 2. A witness in the prosecution case, Margaret Mary Smith, was recalled on 2 July 2019 and submitted to further examination in chief and cross‑examination by Mr Vierboom. 3. Submissions were made on 2 July 2019, these were followed by submissions by a Mr Dalgleish who at this stage was appearing upon instructions from Mr Vierboom to make submissions. He referred to a decision of the District Court of New South Wales, New South Wales Land and Housing Corporation v Quinn (No. 2) [2018] NSWDC 161. 14 January 2020 1. The matter was resumed on 14 January 2020; at p 1 of the transcript at line 49 his Honour noted that the matter was listed that day for argument upon the issue of re-opening the question of authority to commence the proceedings. There were documents for tender upon the argument, including an instrument of delegation bearing the date 16 January 2014 with effect from 16 May 2015, admitted without objection. 2. Submissions followed; a further document was tendered, marked exhibit B, a letter dated 26 November 2019 regarding administrative arrangements orders which was supplemented at p 25 of the transcript on 14 January 2020 with the additional of email dated 6 November 2019 to Mr Vierboom care of his firm Fourtree Lawyers. 10 February 2020 1. The matter was adjourned until 10 February 2020 and on that date his Honour gave judgement upon the application to re-open the proceedings for the court to consider the documents tendered. 18 March 2020 1. At p 9 of the transcript on 18 March 2020 his Honour announced his decision dismissing the application to re-open the issue of authority. 4 December 2020 1. His Honour delivered judgement in the substantive proceedings on 4 December 2020, finding that the offences had been established. THE PROCEEDINGS IN THE DISTRICT COURT 1. In the submissions provided by the respondent in reply to those offered on behalf of the appellant-applicant a summary of the Local Court proceedings was provided, touching the events on the days to which I have already referred. It notes also that the prosecution closed its case on 1 April 2019 and on 2 July 2019 the Corporation's counsel sought to tender what is described as "the Upton delegation" in anticipation of a complaint by the appellant's legal representatives about the failure of the prosecution to produce that delegation earlier. The appellant-applicant's legal representative objected to the document and the tender was withdrawn. 2. On 6 November 2019 a copy of that delegation was served upon the appellant-applicant's legal representatives and then on 14 January 2020 as I noted above the appellant-applicant's representatives sought to re-open the argument about the Corporation's authority and put before the Court the documents marked respectively exhibit A and exhibit B, comprising the instrument of delegation and the email trail the subject of the present application. 3. The purpose of having the proposed witnesses called for further examination and cross-examination in the matter was not clearly enunciated but it appears from what has been said and what has been provided by way of written submissions on behalf of the appellant-applicant that the purpose behind this application was to have those witnesses answer questions focussed upon whether there was a failure to discharge the duty of disclosure with regard to the delegation by Minister Upton. 4. The appellant's submissions in support of this application provide a chronology of events with reference to the steps taken in the investigative process and ultimately the commencement of the prosecution. 5. The application for fresh evidence is for the purposes of clarification it is said by way of documents comprising the subpoena which sought details of the appointment of Fadi Chourman as an investigator or inspector under the New South Wales Fair Trading Act 1987, details of any delegation or any authority for him to act as informant and commence prosecution, and details of the delegation of any authority to Mr Robin Andre Fester or any other person to commence prosecution; the email trails between Mr Cureton (sic) and Ms Jade Lee; and email from Ms Trang Mai; and an extract of the annual report. 6. The issue for determination in the appeal is identified as whether there was authority in the corporation or officers on its behalf to have conducted an investigation into possible breaches of s 69 Housing Act 2001 and commence the prosecution against the appellant-applicant pursuant to the offence creating provisions therein. 7. The submissions include that it was entirely unexplained in the proceedings before the Local Court why the Upton delegation was not included in either of Mr Cureton's (sic) affidavits, said to be a curious feature in light of the content of the email which is part of the material to be tendered. 8. The force of that submission diminishes if not evaporates in light of the failed attempt by the prosecution to tender to the delegation, opposed before the Magistrate and subsequently withdrawn. CONSIDERATION 1. The appeals are pursuant to the Crimes (Appeal and Review) Act 2001 in which s 18 provides that the appeal is to be by way of a rehearing on the basis of the evidence given in the original court proceedings, except as provided by s 19. 2. S 18(2) provides that fresh evidence may be given but only by leave of the Court, which may be granted only if the Court is satisfied that it is in the interest of justice that fresh evidence be given. The term fresh evidence is defined in s 3 of this Act: "fresh evidence, in relation to appeal proceedings, means evidence in addition to or in substitution for the evidence given in the proceedings for which the appeal proceedings have arisen." 1. I indicated before commencing this judgement that my decision was to allow the use of the documents that are presented to the Court as fresh evidence, though there is a question in my mind as to whether this is fresh evidence in any event. It was evidence that was before the Magistrate, albeit in unusual circumstances, where the Magistrate had given a ruling with regard to the issues agitated as to the integrity of the investigation and prosecution, after which but before judgement, an application was made to re-open that issue and to have the Court consider that question afresh. His Honour's judgement on 18 March 2020, led to a decision expressed in terms that for the reasons given the application to re-open the issue of authorities is dismissed, There has been little regard I would suggest to the conduct of the proceedings asking for that relief and the consideration of the matter by his Honour which included documents the subject of the present application and their effect. It could not be said that this is material in addition to or in substitution for the evidence given in the proceedings from which the appeal proceedings have arisen, for clearly it was material that was before his Honour who gave consideration to it before coming to the decision expressed in the terms I described prior to his embarkation upon the consideration of the substantive questions and the findings of guilt. 2. I am satisfied in those circumstances that these documents should form part of the material upon which the appeal is to be argued. 3. The question that next arises is what benefit there would be in having these witnesses called to give further evidence and face cross-examination. 4. S 19 Crimes (Appeal and Review) Act 2001 provides; 1. The District Court may direct a person to attend and give evidence in proceedings on an appeal against conviction if it is satisfied – 1. in the case of an appeal that relates to an offence involving violence against that person, that there are special reasons why, in the interests of justice, the person should attend and give evidence, or 2. in any other case, that there are substantial reasons why, in the interests of justice, the person should attend and give evidence. 1. An application for such direction may be made by a party to the proceedings in relation to a particular person only if notice of the party's intention to make such an application has been served on each other party in the proceedings within such period as the District Court may direct. 2. If an application for such directions is refused, the District Court must give reasons for the refusal. 3. A direction may be withdrawn only on the application, or with the consent, of the appellant. 4. The regulations may make provision for or with respect to the determination of special substantial reasons for the purposes of subs (1). 5. Without limiting subsection (5), in determining whether special substantial reasons exist, the District Court must have regard to whether or not the appellant was legally represented for the whole or any part of the original proceedings. 1. The appellant-applicant was represented throughout the proceedings in court and as I noted that representation was on the face of the transcript conducted with a measure of vigour which could not be said to have been without benefit to the appellant-applicant. 2. As I noted earlier, the questions to be posed it would seem will be focussed upon the failure to provide the Upton delegation, either before or contemporaneously with the three affidavits filed by Mr Cureton (sic) in the appeal. I agree with the submission made on behalf of the Crown. The purpose reflected in what has been said in writing and before me is to have these witnesses available to cross-examine them upon what appears to have been the perception of a failure to comply with the obligation of disclosure. I am of the view that there are no substantial reasons why in the interests of justice these persons should be required to give oral testimony about that matter. It is a matter for the Court in this appeal to determine the impact of the documents within the context of the conduct alleged of the appellant and the investigation and the decision to institute the proceedings. DECISION 1. I refuse the application for the attendance of these witnesses to give evidence. 2. I allow use of the documents, sought to be adduced as fresh evidence for the reasons given including that for the most part they were part of the material before the magistrate for the determination of questions required of that court. ********** Amendments 09 December 2022 - Correct typographical errors DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2022