TANGE v DIRECTOR OF PUBLIC PROSECUTIONS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MEAGHER, BEAZLEY JJA and BROWNIE AJA 5 March 1997 [1997] NSWCA 304 Brownie AJA. This is an application under s 69 of the Supreme Court Act for relief in the nature of certiorari. The claimant, Mr Tange, was charged together with Mr Solomon with stealing a motor vehicle at Randwick on 1 December 1995. When the case came on for hearing in the Local Court on 21 May 1996 Mr Solomon did not appear. The case proceeded in his absence. The magistrate hearing the case found both accused men guilty and sentenced them to imprisonment. Mr Solomon did not appeal but Mr Tange did, that is, he appealed to the District Court. His appeal was heard by Judge P J Phelan on 3 September 1996 and the appealwas dismissed. On that occasion Mr Tange called Mr Solomon as a witness. Today Mr Tange makes, in essence, three complaints. First, he says that in breach of the provisions of s 41(1B)(d) and s 80AA of the Justices Act, the magistrate wrongly proceeded in the absence of Mr Solomon. There are, I think, two short answers to that. First, whatever defects there may have been so far as concerned Mr Solomon were irrelevant so far as concerned Mr Tange. Secondly, there was an appeal by Mr Tange to the District Court which was in the nature of a re-hearing. There can be no complaint of the kind I am now speaking of in relation to what happened in the District Court. The second complaint made is that the evidence of identification was inadequate. Mr Tange has referred us in particular to the decisions of the High Court in Pitkin v R (1995) 130 ALR 35 and Domican v R (1992) 173 CLR 55. Even if there was an error made in the Local Court and/or the District Court as to identification, it is, I think, accurate to say that that is not an error going to jurisdiction of either of those courts which would justify this Court granting the relief now sought. It was, at best, from Mr Tange's point of view an error, but not an errorwhich went to jurisdiction. It cannot be described as an error on the face of the record. It cannot fit within any of the recognised categories of circumstances where relief in the nature of certiorari is available. In any event, speaking for myself, I am not persuaded that there was an error. This is not a case such as was considered in either Pitkin's case or Domican's case where some witness said, 'I saw a person at the scene of the crime,' and later says, 'that person is the accused person.' Here the problem about identification was of a rather different kind. Two policemen described seeing two other men in a car later said to have been stolen. The two policemen described how the two men in the car got out, and behaved in what the policemen obviously thought was a suspicious manner. The two men who had been in the car fled. The two policemen followed them in a vigorous chase extending over about 140 metres. The two men being pursued fled down a lane, through a car park, into a hotel and into the hotel toilet. The two policemen followed them along that route and detained them at about the time the two men being pursued entered the toilet. 2 UNREPORTED JUDGMENTS There is no question of the two policemen having wrongly identified the two men they detained in the toilet, namely Mr Tange and Mr Solomon. Equally there is no question of the two policemen identifying the men they saw in the car said to have been stolen, or identifying them as the men they saw running along the laneway and through the car park. Rather, they say, 'the two men we detained in the toilet were the two men we had been pursuing.' They gave evidence of the men being pursued being red-faced and breathing heavily as if just after a chase. There was some evidence that one of the men being pursued was wearing a backpack and something on his head, which seems to have fitted the description of Mr Tange. In any event, even if there was an error of law made, it was not, as I said earlier, an error justifying the relief now sought. Finally, Mr Tange says that Judge Phelan was guilty of bias, I assume in the technical, legal sense. Mr Tange points to Judge Phelan's rejection of a proposed witness, Mr Glare. On the hearing of the appeal before Judge Phelan Mr Tange said that he wished to tender polygraph test results. The representative of the Crown objected and his Honour having looked at the Lie Detector Test Act held that the evidence was inadmissible. A little later Mr Tange returned to the topic and after an enquiry said that MrGlare was present in court. His Honour, in effect, said that it was permissible for Mr Glare to be called as a witness but not if the purpose of calling him was to prove the polygraph test results. We are now invited to speculate that Mr Glare might have said something else. I do not think we should do that. But in any event, at best from Mr Tange's point of view today, that was an error of law by the judge rejecting evidence which might properly have been admitted. Some people may say it is very regrettable that the law does not provide an infinite series of appeals against disputed questions of fact. Perhaps it is, but what seems plain is that we do not have jurisdiction to embark upon such an appeal today, and that is really what Mr Tange is asking us to do. I propose that the summons be dismissed. Meagher JA. I agree. Beazley JA. I agree. Meagher JA. The order of the Court, therefore, is that the summons be dismissed. Do we have to do anything in relation to the bail question? LAKATOS: Your Honours, therein lies perhaps one of the more problematical areas of this case as your Honours are just about to rise. The situation is this, Mr Tange was sentenced to a five month fixed term by the magistrate. MEAGHER JA: Beginning when and ending when?LAKATOS: Beginning 21 May 1996 and ending 20 October 1996. According to the records we' ve obtained from Corrective Services and I can tender three copies of those open at page 004/006 your Honours will see that at point 7 is the conviction at the Waverley Local Court which indicates that on 21 May he was taken into custody pursuant to sentence by the magistrate and he was admitted to bail on 5 June 1996, which is the next entry. He served, by my calculation, some 16 days in custody at that point. My instructing solicitor tells me that bail was in fact granted on the 4th but he was released on the Sth so that's 16 days in custody. Thereafter he obtained bail and one sees at point 8 the appeal that he was returned to custody on 3 September 1996 beside the Parramatta entry and was ultimately admitted to bail on 8 January 1997. By my calculation again that means that he's spent, at that point, four months and six days in custody. URJ TANGE v DIRECTOR OF PUBLIC PROSECUTIONS (Meagher JA) 3 MEAGHER JA: That's including the 16 days? LAKATOS: No. The problem I think is your Honours do have power under s 69A of the Supreme Court Act some recent amendments to commence and recommence an original sentence after judicial review. The problem is the original sentence imposed by Judge Phelan on 3 September. Brownie AJA. I think that is right because he imposed a different commencement date and different termination date. LAKATOS: Yes, that's right. And the problem is that his Honour did not take into account, because nobody flagged it for him, the 16 days which were served so that if your Honours were then now simply to dismiss this appeal and return Mr Tange to custody then in effect he would serve five months plus 16 days. Meagher JA. Speaking for myself, we're not going to do that. LAKATOS: The question is how one gets around it. Your Honour, in Ho and the DPP — may I invite your Honours to look at s 69A — maybe your Honours take a different view as to the way that reads. Basically subs 5 firstly it says that 69A and B apply to convicted persons seeking judicialreview in relation to a sentence or a conviction which is this case. Then there's a reference to special treatment in subs 2 which is not relevant. Subsection 3 'the times in .... Special treatment in subs 4 one might pass over. Five is the relevant one. 'In determining proceedings ... MEAGHER JA: So we could have the five months commencing from today? LAKATOS: That's right. However, it's Judge Phelan's sentence which is the problem. The question is how can we undo what must be said Judge Phelan didn't intend to do because he didn't say so. Your Honour, Ho was a very similar case. Section 24 of the Criminal Procedure Act of 1986 permits the return, and perhaps this is not the most elegant way of dealing with it, but permits the return of a sentence of this kind to the Court before which the person was dealt with for errors of this kind to be fixed. Judge Phelan has now retired but that's no impediment because it can go back before another judge. And that was the method by which the problem was resolved in Ho and the DPP. I didn't give your Honours the reference to this case but that was a case where Judge Saunders did something likewise and accidentally reconfirmed an earlier term of imprisonment in an appeal without taking into account six days which the appellant had then served. The first thing that Kirby J and the whole court agreed on reported — Ho v DPP (1995) 37 NSWLR 393. The first issue was whether or not his Honour intended to increase the sentence and the Court held he did not. And the second matter which was dealt with at p 401 of the judgment was the availability of the Criminal Procedure Act and his Honour dealt with arguments about whether or not s 24 could apply. That's to be found at 401 to 403 and said, 'In my view ... So his Honour's way of dealing with the matter was to have the matter go back before the District Court, have another judge fix it to take into account the 16 days. The problem here is that we have a tight time frame. MEAGHER JA: A very tight time frame. Beazley JA. Could we do it by looking at Judge Phelan's order and instead of having it commencing as of 3 September, we have it commencing as at 18 August. That would take intoaccount the 16 days that he's served and should leave Mr Tange only with the few days left that he's got to go. Meagher JA. I can't quite see where 3 September comes in. LAKATOS: That was the day the appeal was dismissed and Mr Tange was returned to custody. 4 UNREPORTED JUDGMENTS MEAGHER JA: Where did I get the date 21 May from? LAKATOS: On 21 May the magistrate sentenced Mr Tange. He went into custody for 16 odd days before getting bail. May I say that I don't wish to stand in the way of that course of action but I'm not sure whether there is necessarily power, or at least I can't identify, what would give your Honours the power to interfere with an order absent some successful judicial review on that point. Beazley JA. Or is to commence on a day specified by the Court that the original sentence of imprisonment — that may mean commence in futuro, mightn't it? LAKATOS: The problem is that his Honour said 5 months but in order to put the commencement — is it the original sentence of 5 months — Meagher JA. The only question is whether commence under subs 5 means commence in futuro. What about a recommencement? Can we engage in the same procedure by giving a recommencement date? LAKATOS: Is it the original sentence of 5 months? MEAGHER JA: The relevant principle is boni judicis est ampliare jurisdictionem. What the Court will do is order the sentence to commence on 18 August last. You can appeal if you wish. LAKATOS: In that event Mr Tange needs to be taken into custody now to serve the remainder of his 9 or 10 days? MEAGHER JA: Yes. ADJOURNED Orders accordingly. Counsel for the appellant: Mr. Tange In Person Solicitors for the appellant: Mr. Tange In Person Counsel for the first respondent: P Lakatos Solicitors for the second respondent: J. Quang (Submitting)