Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133
• Hearing dates: 17 April 2014
• Decision date: 17 April 2014
• Before: Basten JA at [1]; Barrett JA at [22]; Emmett JA at [23]

Decision

(1) Dismiss the amended summons.

(2) Order that the applicant pay the Director's costs of the proceedings in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: CRIMINAL LAW - offence of using listening device to record private conversation - whether parties to conversation in doctor's surgery ought reasonably to have expected that it might be overheard - Surveillance Devices Act 2007 (NSW), s 7(1); PROCEDURE - judicial review - criminal appeal in District Court - challenge to finding of guilt - application for extension of time - applicant commenced proceedings more than a year after judgment of District Court - no explanation provided for delay - limited utility of proceedings commenced shortly before expiration of bond - merit of proceedings considered - Uniform Civil Procedure Rules 2005 (NSW), r 59.10; WORDS AND PHRASES - "private conversation" - Surveillance Devices Act 2007 (NSW), s 4(1)
• Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 63; Crimes (Sentencing Procedure) Act 1999 (NSW), s 9; District Court Act 1973 (NSW), s 176; Supreme Court Act 1970 (NSW), s 69; Uniform Civil Procedure Rules 2005 (NSW), r 59.10; Surveillance Devices Act 2007 (NSW), ss 4, 7
• Cases Cited: Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 78 NSWLR 499
• Category: Principal judgment
• Parties: Andrew Leslie Toth (Applicant); Director of Public Prosecutions (NSW) (First Respondent); District Court of New South Wales (Second Respondent)
• Representation: Counsel: Applicant self-represented; Ms A Michelmore (First Respondent); Submitting appearance (Second Respondent); Solicitors: S C Kavanagh, Solicitor of Public Prosecutions (First Respondent); I V Knight, Crown Solicitor (Second Respondent)
• File Number(s): CA 2013/305181

Decision Below:

Court / Tribunal: District Court

Before: Madgwick ADCJ

Date of Decision: 26 September 2013

Court File Number(s): DC 2011/20779

Judgment

1 BASTEN JA: On 23 February 2010 the applicant, Mr Andrew Toth, visited a general practitioner in Campsie. He complained of a possible hernia in his groin. Using a concealed video recorder in the shape of a pen he recorded the examination undertaken by the doctor and the conversation with her. He was later charged with an offence under s 7(1)(b) of the Surveillance Devices Act 2007 (NSW), namely that he used a listening device to record a "private conversation" to which he was a party. The term "private conversation" is defined to mean "any words spoken by one person to another person ... in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only ... by themselves... but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else": s 4(1), private conversation.

2 Although the activity which formed the basis of the offence was a video recording, the charge was limited to so much of that conduct as constituted an audio recording of a private conversation. The charge was heard before Magistrate Stone on 16 April 2012. The applicant was represented at the hearing. The case was defended, but the magistrate found the applicant guilty of the charge and proceeded to convict him and impose a bond under s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("Sentencing Procedure Act"), for a period of 18 months. The bond was imposed on 28 May 2012.

3 On 25 June 2012 the applicant lodged a notice of appeal to the District Court. The effect of that notice was to stay the execution of the sentence: Crimes (Appeal and Review) Act 2001 (NSW), s 63.

4 The appeal was heard by Madgwick ADCJ on 20 September 2012. The applicant was again represented. The basis of the appeal was that the applicant was not guilty of the offence because that which was admittedly recorded was not a "private conversation" because the parties to it ought reasonably to have expected that it might be overheard. The factual foundation for the ground was some brief evidence given by the doctor to the effect that she, in her surgery, could hear conversations between persons in the reception area. It was therefore to be inferred that conversations which took place in the consulting room could be heard by persons outside in the reception area so that the prosecution could not establish that the words spoken in the consulting room constituted a "private conversation".

5 Judge Madgwick dismissed that ground of appeal and accordingly held that the applicant was guilty of the offence charged. He did not, however, proceed to conviction but, instead, imposed a bond under s 10 of the Sentencing Procedure Act. The terms of the bond varied from the terms imposed by the magistrate in two respects. First, there were minor and presently irrelevant changes to the conditions. Secondly, the period was varied so as to extend for 14 months from the date of judgment in the District Court, namely 20 September 2012. The period of the bond thus expired on 19 November 2013.

6 There is no right of appeal from a judgment of the District Court on an appeal from the Local Court in a criminal matter. Further, the judgment of the District Court is protected from both appeal and review by a form of privative clause in s 176 of the District Court Act 1973 (NSW). The effect of that provision is to prevent review by this Court under s 69 of the Supreme Court Act 1970 (NSW), except for jurisdictional error: Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 78 NSWLR 499 at [134].

7 Proceedings for judicial review of the decision of the District Court were commenced in this Court in 10 October 2013. Part 59 of the Uniform Civil Procedure Rules 2005 (NSW), dealing with judicial review proceedings, commenced on 15 March 2013. It requires that proceedings for judicial review must be commenced within three months of the date of the decision sought to be reviewed: r 59.10(1). The Court may extend time. The present application for review was not filed until more than 12 months after the judgment in the District Court and approximately one month before the expiration of the bond. The purpose of the application was to challenge the finding of guilt of the offence.

8 The applicant was not represented in this Court, but understood that he needed to obtain an extension of time to bring the proceedings and, if successful at that stage, needed to demonstrate jurisdictional error. The errors relied upon were breach of procedural fairness and failure to take into account relevant considerations.

9 In seeking an extension of time, the applicant faced three major obstacles. First, the application was not only delayed, but came too late to have any practical consequence in terms of the offending: its only purpose could be to clear from his record a finding of guilt. Secondly, apart from ignorance of the time period contained in the rules, he provided no explanation as to the delay in bringing the proceedings. Thirdly, the proceedings lacked merit.

10 There is no need to expand on the first two issues noted above. The third warrants some further brief explanation.

11 The applicant was represented in the District Court. His complaint of lack of procedural fairness was, in substance, that the trial judge did not take enough time in considering the matter to have properly addressed the arguments which the applicant wished to have raised on the appeal. The point raised on the appeal was a short one: it was articulated by the applicant's lawyer in written and oral submissions and the transcript of the hearing leaves no doubt that the judge was fully acquainted with the substance of the argument.

12 The submissions for the applicant in this Court rely upon a common misconception. Thus, the applicant raised and relied upon his own subjective concerns as to the manner in which the appeal was disposed of. That is not the relevant test. The question is rather whether the applicant, through his legal representative, had a sufficient opportunity to present submissions as to the ground on which the finding of guilt was challenged. For that purpose, the only relevant evidence before the Court was the transcript of the hearing. That did not disclose any lack of a reasonable opportunity to present the appeal; nor did the lawyer appearing for the applicant object to the manner in which the case was heard.

13 Secondly, the applicant expressed the view that the judge did not have sufficient time to consider and rule on the critical issue. However, procedural fairness is not concerned with the decision-making process in the mind of the judge.

14 The complaint of a lack of procedural fairness in the District Court is not tenable.

15 Thirdly, the applicant alleged a failure to take account of "relevant considerations". This argument was, in substance, a reformulation of the complaint as to hastiness. The issue to be assessed turned on a narrow aspect of the evidence given by the doctor as to the capacity for conversations outside the room to be heard inside the room and the inference (as to which there was no direct evidence) that a conversation between patient and doctor in the consulting room, could be heard outside in the reception area. It is clear from the transcript that this was the evidence relied upon by the applicant's lawyer and was taken into account by the trial judge in confirming the finding of guilt.

16 In oral submissions the applicant pressed the concern that the trial judge had available to him, but did not listen to, the audio recording of the conversation between the applicant and the doctor, which was the subject of the charge. That recording, the Court was informed, would have revealed that the doctor spoke in a normal voice. It is true that the judge did not listen to the audio recording, but that evidence was not critical to the finding of guilt. The doctor gave evidence from which it was clear that she wished the conversation to be private. The applicant did not give evidence. There was therefore no evidence to contradict the conclusion that both persons desired the words to be listened to only by themselves.

17 There was, however, positive evidence from the doctor that she did not expect her consultation with the applicant to be overhead by others: Tcpt, 16/04/12, p 5(5). That evidence was not determinative of the question raised by the proviso, which was whether the parties "ought reasonably" to have expected that the conversation might be overheard. However, given that the doctor worked at the surgery, her opinion, which was led without objection, supported the conclusion that the proviso did not apply. The application of the proviso was the issue on which the appeal was based. Listening to the audio recording taken inside the consulting room would have provided little assistance in resolving that issue. The complaint that the judge did not listen to the audio recording does not identify a failure properly to exercise the jurisdiction of the court.

18 The trial judge was required to have regard to the applicant's case and critical aspects of the evidence upon which he relied: there was no apparent breach of that obligation.

19 In these circumstances, the application for review lacked merit; that factor, in combination with the unexplained delay and the expiration of the bond make it inappropriate to grant an extension of time. The appropriate course is to dismiss the amended summons.

20 The Director sought costs of the proceedings in this Court. Although the proceedings arose out of a trial for a summary offence, the applicant had exercised his right of appeal from his conviction without incurring liability to pay the prosecutor's costs. The present application is within the civil jurisdiction of the Court and is directed to the regularity of the proceedings in the District Court. The applicant having sought to invoke the jurisdiction of this Court unsuccessfully, the usual order, namely that costs follow the event, should apply.

21 The Court should make the following orders:

(1) Dismiss the amended summons.

(2) Order that the applicant pay the Director's costs of the proceedings in this Court.

22 BARRETT JA: I agree with Basten JA.

23 EMMETT JA: I agree with Basten JA that an extension of time should not be granted and that the amended summons should be dismissed with costs.

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Amendments

20 May 2014 - Correcting section cited from s 9 to s 10
Amended paragraphs: [5]

Decision last updated: 20 May 2014