SCHOKMAN v DPP & ANOR [2001] NSWCA 334

New South Wales Court of Appeal

CITATION : SCHOKMAN v DPP & ANOR [2001] NSWCA 334 revised - 15/12/2003 FILE NUMBER(S) : CA 40926/00 HEARING DATE(S) : 30 August 2001 JUDGMENT DATE : 30 August 2001

PARTIES : MAURICE ARIAN SCHOKMAN v DPP & ANOR JUDGMENT OF : Mason P at 1; Beazley JA at 26; Giles JA at 27

LOWER COURT JURISDICTION : District Court LOWER COURT 00/22/0061 FILE NUMBER(S) : LOWER COURT Andrew ADCJ JUDICIAL OFFICER :

Appellant: In person COUNSEL : Respondent: M Marien 2nd Respondent: Submitting SOLICITORS : Appellant: In Person Respondent: S E O'Connor CATCHWORDS : District Court - all grounds appeal - application for relief in nature of certiorari - no jurisdictional error or lack of procedural fairness (ND) DECISION : Dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40926/00 MASON P BEAZLEY JA GILES JA

Thursday 30 August 2001 Maurice SCHOKMAN v DIRECTOR OF PUBLIC PROSECUTIONS & Anor

JUDGMENT 1 MASON P: In this summons the claimant Mr Maurice Schokman brings proceedings against the Director of Public Prosecutions and the District Court of New South Wales. The District Court has filed a submitting appearance. 2 The relief sought in the summons as amended is a claim that a decision of the District Court at Parramatta on 3 October 2000 be quashed, secondly, reinstatement of the claimant's drivers licence and taxi licence pending review of the matter by the Court and thirdly, leave to extend the time to appeal. 3 On 31 July 1999 the claimant was charged with an offence against s 4E(7) of the Traffic Act 1999, namely the offence of refusing to submit to a breath analysis in accordance with the directions of a named police officer at the Ryde Police Station. That charge came on for hearing at the Ryde Local Court before Mr Lawson, Magistrate. At that hearing the claimant was unrepresented. There was evidence given for the prosecution and evidence given by the claimant and witnesses called by him. Taken broadly, there was a situation on a public street where the police stopped the claimant, there was an extensive conversation and following that the claimant was brought back to the police station where according to the police officers there was a formal demand for the taking of a breath test and a refusal. 4 As I said, the claimant, Mr Schokman, gave evidence in those proceedings, and as regards what happened at the police station he said in effect that he blew into the tube but nothing happened, there was no reading; that the police sergeant went out and then after an interval he was called back into the breath testing room and asked to blow into the machine again and at that stage he was told the machine was now working and at that stage he refused to provide the sample. That was his evidence in effect at the hearing at the Local Court. 5 The Magistrate found the offence proved and convicted the claimant. He was fined $1,000 and disqualified from holding a licence for two years and three months to date from 31 July 1999. The claimant filed an appeal to the District Court against conviction and sentence. This is known to lawyers as an all grounds appeal because it is necessary for the matters to be proved afresh. However, it is possible for the matters to be proved afresh by tendering the transcript of the proceedings of the Local Court and then supplementing that evidence by whatever additional evidence the Crown wishes to adduce and of course hearing whatever evidence in addition the defence wishes to have placed before the judge in the District Court. 6 We have the transcript of the proceedings in the District Court before Acting Judge Andrew. At those proceedings the claimant was represented by a solicitor, Mr Wiggins and the Crown was represented by, presumably a barrister, Mr Robinson. The transcript of the proceedings in the Local Court was before the judge and certain additional documents were tendered. 7 It was made clear that one of the exhibits that had been tendered in the Local Court and that was available to the judge was a book containing breath analysis data records of the Gladesville Local Area Command. Counsel representing the prosecution told the judge that the only page of that book which he considered to be of any relevance was a page with a yellow marker in it. That page included what has been referred to as the alco test sample No 220. That sample (according to the police evidence given at the Local Court) was purely a testing sample, not involving any blowing into it by the driver and clearly it shows a zero result. 8 As I have said, the barrister representing the prosecution made it plain that it was only the one page which the prosecution relied upon. At that stage Mr Wiggins said: the subsequent page may have relevance in the proceedings but at this stage if I could just alert your Honour to that possibility and if we could attack that in due course.