Director of Public Prosecutions v Al- Zuhairi [2018] NSWDC 135

District Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions v Al- Zuhairi [2018] NSWDC 135 Hearing dates: 4 April 2018 Date of orders: 12 April 2018 Decision date: 12 April 2018 Jurisdiction: Criminal Before: Colefax SC DCJ Decision: Crown to file and serve an amended Stated Case consistent with this Judgment Catchwords: Stated Case application – appeal against conviction of assault allowed – proper procedure to follow in Local Court with respect to DVEC recorded statements – inconsistent practices in Local Court – discretionary considerations for submitting a Stated Case or s.5B application Legislation Cited: s.5B(2) Criminal Appeal Act 1912 (NSW), ss.11 and 18(1) Crimes (Appeal and Review) Act 2001 (NSW), s.59(1) Crimes Act 1900 (NSW), ss.3 and 289F Criminal Procedure Act 1986 (NSW). Cases Cited: Tritton v Clarke [2018] NSWCCA 31, Lavorato v Regina [2012] NSWCCA 61, R v NZ (2005) 63 NSWLR 682, CF v R [2017] NSWCCA 318, Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251 and ex parte McGavin; Re Byrne (1945) 46 SR (NSW) 58. Category: Procedural and other rulings Parties: Director of Public Prosecutions (NSW) - Applicant

Muneer Jasib Al-Zuhairi - Respondent Representation: Solicitor: Ms Kelly - (Applicant/Crown)

Solicitor: Mr Conomos (Respondent/Appellant) File Number(s): 2017/175429 Publication restriction: Nil

Judgment 1. On 15 September 2017, after a contested hearing, the Local Court convicted Muneer Jasib Al-Zuhairi of the offence of assault occasioning actual bodily harm. 2. On 13 October 2017, Mr Al-Zuhairi filed an appeal in this Court against that conviction. 3. On 30 January 2018, I allowed the appeal and set aside the conviction entered in the Local Court. 4. The Crown has asked me to submit to the Court of Criminal Appeal certain questions for determination pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). Such a submission is commonly, but not necessarily correctly, thought to be a continuation of the technical and limited stated case procedure (cf Tritton v Clarke [2018] NSWCCA 31 at [40] to [45] per White JA, Hoeben CJ at CL and Fullerton J agreeing). 5. Mr Al-Zuhairi has opposed the submission of those (or any) questions to the Court of Criminal Appeal. A contested hearing in relation to the Crown's application was heard by me on 4 April 2018, at the conclusion of which I reserved my decision to today. 6. At the time I allowed the appeal, I did not give full reasons for doing so. I took that course at that time because: 1. it seemed to me that the relevant issue was clear-cut; 2. the solicitor for the Crown appeared to concede the point in relation to the relevant issue; 3. that solicitor did not request reasons; and 4. the pressure of the Court's list. 1. Notwithstanding the factors to which I have just referred, it would have been preferable for me to have given more detailed reasons at that time. 2. However, as Mr Al-Zuhairi has opposed the submission of the Crown's proposed "Stated Case", I take this opportunity – conscious of my obligation to proceed expeditiously with the Crown's application (see Lavorato v Regina [2012] NSWCCA 61 at [18] per Basten JA) - to set out with a little more particularity my reasons for the allowing the appeal on 30 January 2018. 3. An appeal to the District Court from the Local Court in relation to a hearing is not a hearing de novo but a re-hearing. The re-hearing is conducted by reference to the transcript of the oral evidence given in the Local Court and the exhibits tendered, subject to any application for fresh evidence to be adduced on the appeal. 4. Ordinarily, an application to adduce fresh evidence is made by a notice of motion and determined well before the hearing date of the conviction appeal. 5. It is not appropriate for the Crown to seek to adduce fresh evidence on a conviction appeal – at least in the absence of a similar application from the appellant and, even then, only in reply. 6. There was no application by the Crown to adduce fresh evidence on the appeal (assuming the Crown is entitled to do so). A belated application was made after the appeal had been dismissed – and when I was functus officio. 7. In a conviction appeal, the Crown's case consists of the Crown tender bundle (i.e. the transcript and the exhibits). The Crown case closes upon the tender of that material regardless of whether the advocate for the Crown expressly says "that is the Crown case". 8. In the present proceedings in the Local Court, the "evidence in chief" of the complainant was purportedly given to the Court by a DVEC recorded statement which was not tendered but, after being played in part, was marked MFI A. 9. MFI A (or, rather, part of it) was played to the Local Court during the evidence of the officer in charge, Leading Senior Constable Daniel. There was an interruption of the playing of MFI A (see Local Court transcript 3:48). There is no record of the point in the playing of MFI A that that interruption occurred. The Local Court transcript does not reveal that the playing of MFI A was continued. 10. The contents of MFI A were not adopted by the complainant when she was called to give her evidence. 11. There is no agreed transcript of the contents of that part of MFI A which was played in the Local Court. (In this context I pause to observe that frequently in contested trials in this Court, it is difficult – and sometimes impossible - to clearly hear all or part of original disc recordings being E.R.I.S.P's with accused people or JIRT interviews with children. This can be for a variety of reasons: e.g. the microphone is too far away from the interviewee; the interviewee's grasp of English is poor or underdeveloped; or the interviewee mumbles or talks with her/his hand over her/his mouth. It cannot always be assumed, therefore, that RSB can or could adequately transcribe any recording of any interview played in Court. This, however, would not preclude the parties agreeing on a transcript being prepared in advance of a hearing by a source other than the RSB – or if no agreement can be reached, then the trial judge (or Magistrate) can "settle" the contentious parts.). 12. There is no good reason why a DVEC recorded statement cannot be tendered in evidence in summary proceedings (or, I would add, in proceedings in the District Court which proceed by way of a Judge alone trial). 13. The matters of procedural guidance in the authorities such as R v NZ (2005) 63 NSWLR 682 and CF v R [2017] NSWCCA 318 are not relevant to criminal proceedings where there is no jury. Rather, there are compelling reasons why, in summary proceedings, it should be tendered if it is to be relied upon by the Crown – not least so that there is a clear record of what was before the Local Court in the context of an appeal by way of a re-hearing to this Court. 14. In these circumstances, at the close of the Crown case on the re-hearing, there was no evidence of the essential elements of the offence. For that reason the appeal was dismissed. 15. There are three relevant criteria which traditionally have to be satisfied by an applicant for a s 5B submission to the Court of Criminal Appeal: 1. the question to be submitted for determination must be a question of law; 2. that question arose in the appeal from the Local Court to the District Court; and 3. the technicalities and limitations inherent in the stated case procedure must be complied with. 1. It was principally submitted by the Crown in support of the present application that issues of statutory construction are necessarily questions of law. That broad proposition may be accepted. However, I do not agree that my reasons for concluding that there was no evidence to prove the essential elements of the offence give rise to any question of statutory construction. 2. However, although it was not specifically submitted by the Crown, the question of whether the facts found are capable of supporting a conviction is a question of law (see Tritton v Clarke at [30]; Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251). Given that the relief under s 5B (3) includes quashing any acquittal, it seems to me that a relevant question of law would logically include whether there was no evidence to prove the essential elements of an offence. 3. The first two criteria are therefore established. 4. No issue arises in relation to the third criterion (although whether it is in fact a necessary criterion for a s 5B application is, as I have already observed, something that was recently questioned by the Court of Appeal in Tritton v Clarke). 5. Mr Al-Zuhairi opposed the Crown's application on broad discretionary grounds. But as I have understood the authorities, where a Judge is positively satisfied of the three relevant criteria, that Judge can only refuse to state a case (or, by analogy, refuse to accede to a s 5B application) if the application "… is so obviously frivolous and baseless that its submission would be an abuse of process" (see Ex parte McGavin; Re Byrne (1945) 46 SR (NSW) 58 at 60 per Jordan CJ). 6. I do not regard the present application in that light. In fact, anecdotal "evidence" suggests that the course followed by the Local Court in the instant case is not isolated. Accordingly, it would be desirable for both the Local Court and the District Court to receive the guidance of the Court of Criminal Appeal on this significant topic. 7. I therefore propose to submit the three questions in the Crown's second draft, provided: 1. in relation to question 1, the words "if there is no agreed transcript" be inserted in the fourth line after "tendered in the Local Court"; 2. in relation to question 3, the words "and where there is no agreed transcript" be inserted in line four after "… had not been formally tendered"; 3. Question 4 is added: "Did I err in law in holding that for the purposes of the re-hearing, and in the events which have occurred, there was no evidence to prove the essential elements of the offence."; and 1. These reasons are also annexed to the "stated case". 1. I direct the Crown to file and serve an amended stated case consistent with these reasons within 7 days hereof. Filing is to be effected by lodging hard copy documents in the Parramatta Registry of the District Court. 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: 31 May 2018