McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298

McNab v Director of Public Prosecutions (NSW) [2021] NSWCA 298 · Read the judgment on AustLII

Catchwords: District Court appeals – Need to establish ‘error’ – Meaning of ‘error’ – onus of proof

In this decision the Court of Appeal has held that the District Court appeal jurisdiction requires an appellant to establish ‘error’ – even if it is unhelpful to describe the jurisdiction as being ‘error-based’. More to the point, the error might simply be that the magistrate should not have been convinced of the guilt of the accused.

The applicant was a doctor. He was convicted in the Local Court of sexual offences relating to his conduct during a medical examination: he removed the complainant’s underwear during an examination, and there was (disputed) conversation which was said to establish that this was for a sexual, rather than medical, reason. The Magistrate made findings supportive of the complainant’s credibility, and implicitly rejected the version given by the accused. The applicant appealed to the District Court and was unsuccessful. He then appealed to the Court of Appeal, alleging jurisdictional error, which crystalised as an assertion that the District Court could only assess the credibility of the complainant if it saw and heard her give evidence. The District Court judge having failed to do so in this case (there was no application), the applicant asserted that accepting the complainant as credible amounted to jurisdictional error. However, the bigger question which squarely arose for determination was one which has been a topic of debate for some time: does the District Court appeal jurisdiction require an appellant to establish error? If so, what is the nature of that error? And how does it affect the onus of proof?

Basten and McCallum JJA (with whom Bell P agreed, with separate reasons) observed that an appeal ‘by way of rehearing’ is to be conducted on the documentary record of evidence in the Local Court, with other evidence adduced only by leave, and witnesses not to be recalled unless the criteria in s 19 Crimes (Appeal and Review) Act (‘the Act’) are satisfied (at [58]). An application must be made for the attendance of witnesses (at [62]). In the circumstances, the District Court will not have committed jurisdictional error by not directing the attendance of a witness where (as in this case) there was no application. Moreover, the general principle is that witnesses will not be recalled (at [64]). In carrying out its task of rehearing the matter based on the evidence in the Local Court, there is no prohibition against the District Court judge considering the reasons of the original magistrate (at [73]-[82]).

Against all that background, the applicant asserted that authority holding that the District Court appeal jurisdiction is ‘error-based’ were wrong, in part because even on the appeal the prosecutor should bear the onus of establishing the charge beyond reasonable doubt. However, the plurality in this decision observed that ‘error’ in this context has a particular meaning, and does not place a burden of proof on the appellant in the sense that they must demonstrate a fact to a certain standard (at [84]). Demonstration of error may mean no more than satisfying the District Court judge that the magistrate should not have been satisfied beyond reasonable doubt as to the appellant’s guilt (at [91]). What is required to demonstrate error in this context will depend on whether the asserted error is to be found in the fact-finding exercise, the identification of the law, the application of the law, or in the exercising of a discretionary power (at [88]).

All that said, it is unhelpful to describe the District Court’s appeal jurisdiction as ‘error-based’, although, a decision of the Local Court will not be set aside on a District Court appeal unless the District Court judge is satisfied that it was in some respect wrong (at [90]). The plurality also cited, with apparent endorsement for use in District Court appeals, authority from indictable appeals to the effect that if the evidence, on the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force so as to leave a reasonable doubt, then it is only where the original judicial officer’s advantage in seeing and hearing the witnesses can explain those problems that the conviction should not be set aside. This, in their Honours’ view, is not an error-based approach, nor does it depend on whether or not the appeal court obtains assistance from the original judicial officer’s reasons (at [98]-[99]).

The above conclusions were broadly endorsed by Bell P. His Honour pithily described the role of a District Court judge on appeal as being to form his or her own judgment on the facts and to determine, on the basis of the evidence in the Local Court (plus any additional evidence as may be allowed pursuant to the statutory exceptions) whether that evidence was sufficient to demonstrate the appellant’s guilt beyond reasonable doubt. If it was not, error will have been demonstrated. Similarly, if an error of law is established, that may mean that on a rehearing reaching a fresh conclusion on the basis of the evidence in the Local Court, but untainted by the error at first instance (at [25]).

On one view this decision resolves what has been an ongoing debate: error must be shown. But readers may think that there remains an ongoing tension between, on the one hand, an appellant’s obligation to establish ‘error’ (even where that error might only be that the original decisionmaker just came to the wrong conclusion); and on the other hand the propositions that the appellant has not assumed an ‘onus’ and the prosecution must still prove its case beyond reasonable doubt. Regardless, it is clear that it is insufficient to simply appear on a District Court appeal and require the prosecution to justify the original finding of guilt.