New South Wales Court of Appeal CITATION : West v Commonwealth Director of Public Prosecutions & Anor [1999] NSWCA 398 FILE NUMBER(S) : CA 40073/99 HEARING DATE(S) : 6 August 1999 JUDGMENT DATE : 26 October 1999 PARTIES : Anthony John West v Commonwealth Director of Public Prosecutions and District Court of NSW JUDGMENT OF : Priestley JA at 1; Meagher JA at 33; Beazley JA at 34 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 98/12/0206 LOWER COURT JUDICIAL OFFICER : Goldring DCJ Plaintiff - A.B. Shand QC / D. Alexander COUNSEL : Defendant (1) - P. Renehan Defendant (2) - Submitting Plaintiff - Robinson Beale & Horton SOLICITORS : Defendant (1) - Commonwealth Director of Public Prosecutions Defendant (2) - Submitting CATCHWORDS : District Court appeal from Local Court after criminal conviction ; Reading of depositions of witnesses not able to be produced; Stated case procedure from District Court ACTS CITED : Justices Act s 126 Criminal Appeal Act 1912 Acuthan v Coates (1986) 6 NSWLR 472 Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 CASES CITED: ex Parte McGavin ; re Byrne (1945) 45 SR (NSW) 58 R v Brotherton (1992) 29 NSWLR 95 Saffron v DPP (1989) 16 NSWLR 397 DECISION : Summons dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40073/99 DC 98/12/0206 PRIESTLEY JA MEAGHER JA BEAZLEY JA Tuesday, 26 October 1999 WEST v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS DISTRICT COURT APPEAL FROM LOCAL COURT AFTER CRIMINAL CONVICTION - READING OF DEPOSITIONS OF WITNESSES NOT ABLE TO BE PRODUCED - STATED CASE PROCEDURE FROM DISTRICT COURT. W, convicted in the Local Court, appealed to the District Court, where the prosecution applied under the then s 126 of the Justices Act to read in evidence the depositions of four witnesses in the Local Court whom the prosecution submitted could not be produced. Upon the view taken by the District Court Judge of the proper construction of s 126, and on application of that view to the facts, he granted the application. Upon being asked to state a case on the construction of s 126 he declined to do so. W then applied to the Supreme Court for orders directing the District Court Judge to state a case. Held: although, since the question of construction of s 126 was an arguable one, the judge should have stated a case, nevertheless, after the Court of Appeal heard full argument on the construction question and concluded the District Court Judge's construction was correct, with the result that it would be pointless to require a case to be stated, the court should exercise its discretion to dismiss the application. ORDERS Summons dismissed with costs. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40073/99 DC 98/12/0206 PRIESTLEY JA MEAGHER JA BEAZLEY JA Tuesday, 26 October 1996 WEST v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS 1 PRIESTLEY JA: By summons brought in the Administrative Law Division Now abolished: Courts Legislation Further Amendment Act 1998 No 172. Mr A.J. West as plaintiff claimed an order that his Honour Judge Goldring of the District Court settle a draft stated case for determination by the Court of Criminal Appeal of the questions of law arising from the determination of his Honour made on 15 June 1998 and also an order that his Honour submit such questions of law to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912. Sperling J referred the summons to this court. 2 This court is the third court which has had to consider the plaintiff's proceedings. The first court was the Local Court in which the plaintiff, as defendant, was charged with offences committed on a Qantas flight which left Honolulu on 1 February 1998 and arrived in Sydney on 2 February 1998. 3 The trial of the charges took place on 13 February 1998. On that day the evidence and addresses were completed and the magistrate gave judgment. He found the plaintiff guilty of an offence of indecent assault upon a female passenger, another offence of assault against the same passenger, and also found him guilty of another assault on another female passenger. The sentences for the three offences were six months imprisonment, two months imprisonment and one months imprisonment. The magistrate made the three sentences concurrent. 4 Evidence for the prosecution was given by a number of witnesses including four passengers on the flight who lived in Canada and were visiting Australia for short periods. Two of these four witnesses were the female passengers whom the plaintiff was found guilty of assaulting. The plaintiff also gave evidence. 5 Pursuant to s 122 Since repealed: Justices Legislation Amendment (Appeals) Act 1998 No 137. of the Justices Act (the Act), the plaintiff appealed against his convictions to the District Court. The appeals were before his Honour Judge Goldring of the District Court on 15 June 1998. The prosecution applied that it be permitted, pursuant to s 126 Since repealed: Justices Legislation Amendment (Appeals) Act 1998 No 137. of the Act, to read as evidence in the appeals the depositions of the four Canadian witnesses who had given evidence in the Local Court. 6 Section 126 was as follows: " The deposition of any witness called and examined before the Justice or Justices who made the conviction or order appealed against may be read as evidence for either party at the hearing of the appeal if: (1) the other party consents, or (2) it is proved on oath (a) (i) where the deposition was taken down in writing, that the deposition was taken in the presence of the other party, or (ii) where the deposition is in the form of a transcript of the record made by any of the means (other than writing) referred to in section 70(4) of the evidence of the witness, that the record so made is a true record of that evidence and was made in the presence of the other party and that the transcript is a correct transcript of the record so made, and (b) that the other party or his counsel or attorney had full opportunity of cross-examining the witness, and (c) that: (i) the witness is dead, or so ill as to be unable to travel, or (ii) cannot, after such search or for such reason as to the Court seems sufficient, be produced by the party tendering the deposition. " 7 The evidence before Judge Goldring was that the four Canadian witnesses had returned to Canada on dates between 16 February and 22 April 1998. A transcript of the proceedings before the magistrate was also before him. 8 For the prosecution it was contended that all the requirements of s 126(2) were complied with. For the plaintiff it was submitted that upon a correct understanding of sub-par (c)(ii) of s 126(2) the court could not be satisfied that its requirements had been fulfilled. No challenge was made to the asserted fulfilment of all other requirements of the subsection. Judge Goldring recorded the interpretation relied on for the plaintiff as being that before the court's power under the section to allow the depositions to be read can in any case be exercised it is necessary for the prosecution to show that something analogous to search had been unsuccessfully conducted by the prosecution. The judge did not accept this interpretation; his opinion was: " The provision simply requires the party seeking to rely on the deposition to satisfy the court that there is a sound and convincing reason that it cannot produce the party. " 9 Judge Goldring noted that it was common ground that the District Court could not compel the attendance of witnesses from Canada. He then went on to say: " The fact is that the witnesses reside in a foreign country, their evidence has been given, the appellant has had the opportunity to cross-examine them before, and in my view there would be no unfairness involved in placing upon the provision the construction that I have placed on it. " 10 He then granted the application. 11 Counsel for the plaintiff then asked for an opportunity to test the matter of the construction adopted by the trial judge. The trial judge said he thought that was reasonable. He adjourned the proceedings for twenty-eight days to enable the plaintiff's legal representatives to decide whether they would seek to test the matter of his construction of the section further. The appeals were then adjourned to 13 July 1998. The plaintiff subsequently applied to the trial judge to state a case for consideration by the Court of Criminal Appeal under s 5B of the Criminal Appeal Act in relation to the trial judge's determination concerning the interpretation of s 126. Section 5B provides for the statement of a case on any question of law arising on any appeal to the District Court. 12 This application was heard on 13 August 1998 when Judge Goldring refused to state a case. He said that the application before him really asked him to review the exercise of what in his view was a discretion clearly conferred by s 126(2)(c)(ii). Further, he thought that the words in the provision, "for such reason as to the court seems sufficient" conferred on the court a very wide discretion. In his opinion the application was "a frivolous exercise in seeking to have the factual basis of the decision reviewed". 13 The question raised by the summons is whether Judge Goldring was bound to state the case he was asked to do by the plaintiff. If the legal rule is that he was bound to do so, further questions then arise, namely, is there any statutory bar to this court ordering that a case should be stated, and if not, should the court, in exercise of its discretion, order the judge to state a case. 14 The law in this area was comprehensively described by Kirby P in Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160. In Cassell, the proposition was reaffirmed that it is the duty of a District Court judge hearing an appeal pursuant to s 122 of the Act to submit to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act any question of law which either party to the appeal may raise and asked to be submitted unless, in the judge's opinion, the question is so obviously frivolous and baseless that its submission would be an abuse of process: see Kirby P at 165, where he cited Jordan CJ in ex Parte McGavin; re Byrne (1945) 46 SR (NSW) 58 at 60. 15 The point of construction of s 126 which the plaintiff was seeking to make the subject of the stated case seems to me to have been one raising a question of law, as indeed his Honour Judge Goldring himself appears to have thought when the construction question was argued before him on 15 June 1998. It seems that when the matter was before him again for the stated case application on 13 August 1998, not all the papers from the earlier day's argument were available which may account for his seeming change in view from thinking that what was before him was a question of construction to thinking that the plaintiff was seeking to have the factual basis of his decision reviewed. 16 As indicated, it seems to me that what the plaintiff was seeking to do was have a case stated on the question of construction which, in the particular circumstances, was a question of law. The application therefore did not fall, in my respectful opinion, into the category of applications raising obviously frivolous questions into which the trial judge thought it fell. 17 Prima facie therefore the judge was in error in refusing to state a case. 18 The first defendant sought to meet this position in two ways. The first was that even if the trial judge's decision had been wrong, it was not one which involved an actual or constructive failure to exercise jurisdiction, and that it was only in such a case that the relief sought by the plaintiff could be granted: Acuthan v Coates (1986) 6 NSWLR 472 at 473; Saffron v DPP (1989) 16 NSWLR 397 at 399, 400 and 418-420. (The first defendant did not seek to rely on the privative provision in s 146 Since repealed: Justices Legislation Amendment (Appeals) Act 1998 No 137. of the Act which did not deal with the decision to permit the evidence to be read.) 19 However, the law as stated in Cassell seems to me to be applicable here, to the extent that the trial judge appears to have mistaken the nature of the question upon which he was asked to state a case, and effectively refused to exercise his jurisdiction to state a case in circumstances where he was bound to do so. My conclusion on this point depends on my opinion that the question of construction which the plaintiff was seeking to raise by way of stated case was an arguable and not frivolous question of construction. 20 The second position relied on by the first defendant was that had the case been stated as asked, it was bound to fail in any event and therefore either Goldring DCJ was not in error in refusing to state the case or this court ought to exercise its own discretion to refuse the plaintiff's application for relief. 21 The first limb of this second argument seems to me to involve a return to the notion that the request to state a case was frivolous and as already indicated I do not agree with that proposition, because in my view the question of construction sought to be raised was an arguable one. 22 In the course however of the submissions for the plaintiff in this court, a variation of the second limb of the first defendant's second argument was raised with counsel for the plaintiff. The court asked counsel whether, if the court came to the view that the question of construction, although arguable, was one upon which, after argument, the court agreed with Goldring DCJ, it would be open to the court to refuse to grant the relief sought by the plaintiff, without going through what would otherwise be the procedural requirement of returning the matter to Goldring DCJ for the stating of a case and then the same argument being heard upon the hearing of the stated case leading to an adverse result for the plaintiff. 23 To this counsel replied that he had not come prepared for a full argument on the question of construction; he had been concerning himself only with the question raised in the plaintiff's summons, which was whether Goldring DCJ should have stated a case. 24 The court therefore allowed further time for the filing of further written submissions concerning the question of construction. The time allowed was exceeded, but when the written submissions came they were received. 25 The plaintiff's written submission put much the same argument as that briefly recorded by Goldring DCJ when he held against the construction contended for by the plaintiff on 15 June 1998, that is that the words "for such reason" in s 126(c)(ii) must involve either a failed search or something analogous to it. This idea was elaborated by reference to s 409 of the Crimes Act 1900 which is in somewhat similar terms to s 126 and to cases decided on s 409, such as R v Brotherton (1992) 29 NSWLR 95, which held, inter alia, that before a deposition could be read under s 409 at a trial, without the witness being produced, it had to be shown that the witness was physically unable to give evidence. 26 The written submission however also recognised that the terms of s 409 were different from those of s 126. The difference is such, that in my opinion, the decisions on the construction of s 409 can have no conclusive effect in the consideration of s 126, which, again in my opinion, must be considered on its own terms in its position in the Justices Act. 27 The written submission also relied heavily on the fact that, upon Goldring DCJ's construction of the provision, combined with his exercise of discretion to let the depositions of the four witnesses be read in evidence, the plaintiff would be tried on the charges against him in the District Court in the absence of four witnesses, two of whom were of vital importance and the others of significance. It was submitted that the power to allow this to happen should be read very narrowly in view of the liberty of the plaintiff being at stake. However, although I appreciate that there is some strength in this argument, I also think that the construction of the relevant provision should be arrived at straightforwardly and without assuming that any unfairness may be done to the plaintiff if the court concludes the construction is as it was thought to be by Goldring DCJ. 28 I said earlier that in my opinion the construction contended for on behalf of the plaintiff was an arguable one. I was and am influenced in that view by the last consideration I have mentioned, that is, that the construction asserted against the plaintiff here is one of importance to persons appealing against convictions in the Local Court. However, although I recognise the arguability of the question, I have also formed an opinion adverse to the plaintiff. Returning to the actual words of the relevant provision and putting them in a different order, they are that a deposition may be read at the hearing of the appeal if "... it is proved on oath ... that ... the witness ... cannot ...be produced by the party tendering the deposition" either " after such search ... as to the court seems sufficient ... " or " for such reason as to the court seems sufficient ". 29 The provision thus has two quite distinct requirements, fulfilment of either one of which will be sufficient to permit the exercise of the discretion if the earlier requirements of s 126(2) are fulfilled (as agreed to be the case in the present case). The first of the alternative requirements, that of search is quite specific but the second is very general. The way they appear in their context seems to me to be a relatively clear indication that they stand as alternatives and that the second requirement is not qualified by the content of the first. The second requirement may be more readily fulfilled than the first and whether it is fulfilled will be a matter for the judgment of the District Court judge in the circumstances of the case. I do not think the second requirement should be read in the circumscribed way for which the plaintiff contends. 30 A significant part of the plaintiff's written submission went to the question whether there was evidence upon which it was open to find that the witnesses could not be produced by the prosecution. A consideration of this aspect of the plaintiff's submission reveals that the plaintiff's real complaint in these proceedings is that Goldring DCJ should not have found on the available materials that the witnesses could not be produced by the prosecution. Unless this argument could get to the stage of asserting there was no evidence on the point, the submission amounted to a complaint about the judge's view of the facts not of the construction of the relevant provision. This seems to me to be the basic problem faced by the plaintiff in the present proceedings. There was material before Goldring DCJ entitling him to conclude that the four witnesses were in Canada. On this basis, and on the construction of the provision which, in my opinion correctly, he adopted, the discretion he exercised was open to him. 31 For these reasons it is my opinion that if the stated case desired by the plaintiff were to be obtained from Goldring DCJ and then considered by this court the result would be that the plaintiff would fail and the question stated would be answered adversely to the plaintiff. Since I have arrived at that opinion after as full consideration of the question of construction as I would be able to give to it if it were before the court by way of stated case, I think the court should exercise its discretion in deciding the plaintiff's summons by refusing to grant the relief sought. 32 In my opinion the summons should be dismissed with costs. 33 MEAGHER JA: I agree with Priestley JA. 34 BEAZLEY JA: I agree with Priestley JA. ********** 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.