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Criminal Law NSW Noticeboard – January 2017 – Admissible evidence where appeal is by way of a rehearing of the evidence

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January 2017



Updated 23 January 2017

Admissible evidence where appeal is by way of a rehearing of the evidence

What evidence is admissible in a District Court sentence appeal under s 17 of the Crimes (Appeal and Review) Act 2001 – Should the transcript of the hearing form part of the materials presented to the District Court judge on appeal

Administrative Law – prerogative writs – certiorari – jurisdictional error – applicant convicted by Local Court of offence of aggravated indecency – severity appeal against sentence to District Court – Crimes (Appeal and Review) Act 2001, s 11, s 17 – where applicant’s lawyer sought adjournment to obtain and tender Local Court transcript of conviction hearing – whether primary judge committed jurisdictional error in misapprehending the nature of the power exercised pursuant to Crimes (Appeal and Review) Act 2001, s 17

Statutory interpretation – Crimes (Appeal and Review) Act 2001, s 17 – whether sentence appeal to District Court in nature of hearing de novo

Engelbrecht v Director of Public Prosecutions (NSW) [2016] NSWCA 290 – 24 October 2016 New South Wales Court of Appeal McColl, Macfarlan and Leeming JJA

Facts: The appellant lodged an appeal to the District Court against the sentence that was imposed in the Local Court after he had been found guilty in a contested hearing. When the matter came on for hearing in the District Court, the appellant’s solicitor indicated to the Court that the Crown had resiled from an agreement with respect to the facts found by the Magistrate that were to subsequently tendered on the appeal. The Crown indicated to the solicitor that it intended to tender the judgment of the Magistrate convicting the appellant. This was contrary to the understanding of the solicitor who contended that the Crown and he were to agree upon the matters outlined in the conviction judgment.

The appellant’s solicitor submitted that he would require an adjournment of the proceedings so as to obtain a copy of the full transcript of the hearing because that is what is required pursuant to s 17 of the Act. The primary judge responded to the effect that the Court does not require a full copy of the transcript when the Court is dealing with a sentence appeal. Nor would the court have sufficient time to read such a transcript in those matters. The solicitor reiterated the adjournment application but offered to go through the transcript with the Crown to identify relevant parts of the transcript to assist the Court.

The primary judge rejected the adjournment application. In as much as the application of the appellant was based on an interpretation of s 17 of the Act, the judge said: “The evidence referred to in s 17 is the evidence given at the sentence hearing and, in an appeal against the severity of a sentence imposed after a conviction recorded following a hearing, it is legitimate for the Magistrate’s reasons at the end of the hearing to determine guilt to be tendered so that the factual matrix upon which the sentence appeal is to proceed can be established”.

The District Court appeal was then dealt with and concluded.

After the District Court appeal was dealt with, the appellant’s solicitor sought an order of certiorari that the decision of the District Court be reviewed by the Court of Appeal.

Consideration: As there is no appeal from a decision of a District Court judge determining an appeal of a decision of a Magistrate, it was necessary for the appellant to demonstrate jurisdictional error. McColl JA, who was in the majority of the Court of Appeal, noted at [46] that “[j]urisdictional error will also be found where a judicial officer misconstrues the relevant statute and accordingly, misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case”. Thus, much of the consideration in the case involved an analysis of the meaning of the terms of s 17 of the Act.

McColl JA (with whom Macfarlan JA agreed) said at [92] that “the s 17 appeal is a hearing de novo requiring the sentence proceedings consequent upon the conviction to be heard afresh”. In such an appeal, the District Court judge must represent his or her own view of the matter, not whether the Magistrate’s view was appropriate. In other words, s 17 appeals are not error-based appeals.

As the sentence appeal is a de novo appeal where the District Court judge must make the determination of the appropriate sentence, McColl JA also noted at [54] that “it is difficult, in the light of that task, to determine how a judge determining a severity appeal could assess the appellant’s culpability without having regard to the evidence adduced in relation to a conviction in order to resolve (the facts in) issue”.

Result: The majority of the Court (McColl and Macfarlan JJA) found the District Court judge had misconceived the jurisdiction of the District Court pursuant to s 17 of the Act and set aside the order of the Court and remitted to case back to the District Court for re-hearing.

Comment: It is worth noting that this decision only related to severity appeals to the District Court following a conviction and sentence in the Local Court. These appeals are not that common. Most commonly, where there is a conviction following a hearing in the Local Court and an appeal is lodged, that appeal relates to both conviction and penalty. In such appeals, the transcript of the proceedings is ordered before the hearing of the appeal as a matter of course. However, this was not usually done in severity appeals following a defended hearing.

In future, the DPP will need to order the transcript in such appeals or perhaps have the appellant’s legal representative acknowledge that the transcript is not required. Even in such cases, an agreed statement of facts will need to be produced. The statement of facts will need to reflect the evidence taken during the hearing of the case and not the police facts which are prepared prior to that hearing.

In either case, this decision has the potential to require a significant amount of additional work to be carried out by all parties to a severity appeal and may, in some cases, involve the District Court judge having to read lengthy transcripts in order for the Court to be able to determine the facts on sentence. As such, there is potential for significant future delay in such appeals.

Some content sourced from FirstPoint powered by Australian Digest.

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Judge Martin Blackmore SC
By Judge Martin Blackmore SC

Martin Blackmore SC has been a Judge at the District Court of New South Wales since 2002. In a long and distinguished career, he has appeared in hundreds of criminal trials and appeals as a barrister at the NSW Bar, and previously served as the NSW Deputy Director of Public Prosecutions. He is the co-author of Criminal Law NSW with former District Court Judge Greg Hosking SC.

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