Nature of the appeal
29Subsection 56(1) of the Review Act provides:
"56 Appeals as of right
(1) The prosecutor may appeal to the Supreme Court against:
(a) a sentence imposed by the Local Court in any summary proceedings, or
(b) an order made by the Local Court that stays any summary proceedings for the prosecution of an offence, or
(c) an order made by the Local Court dismissing a matter the subject of any summary proceedings, or
(d) an order for costs made by a Magistrate against the prosecutor in any committal proceedings, or
(e) an order for costs made by the Local Court against the prosecutor in any summary proceedings,
other than an order or sentence with respect to an environmental offence, but only on a ground that involves a question of law alone." (emphasis added)
30The powers of the Court when determining appeal against sentence imposed by the Local Court under s 56(1)(a) are specified in s 59(1) which provides:
"59 Determination of appeals
(1) The Supreme Court may determine an appeal against sentence:
(a) by setting aside the sentence, or
(b) by varying the sentence, or
(c) by dismissing the appeal."
31These powers are, to an extent, narrower than the powers of the Court when hearing an appeal under the other subparagraphs of s 56(1). Section 59(2) provides:
"(2) The Supreme Court may determine an appeal against an order referred to in section 56 (1) (b), (c), (d) or (e) or 57 (1) (b) or (c):
(a) by setting aside the order and making such other order as it thinks just, or
(b) by dismissing the appeal."
32As I will explain, the qualification on the right of appeal conferred by subsection 56(1) to an appeal "only on a ground that involves a question of law alone" is of particular significance to this case. However, at the outset it should be noted there is a significant tension between s 56(1)(a) and the restricted nature of the relief that can be ordered under s 59(1).
33In a number of decisions the Court of Appeal has held that an appeal to that Court restricted to questions of law, does not enable that Court to make findings of fact if legal error is established (see, for example, the cases cited in Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; 71 NSWLR 230 at [83] to [87]) ("Thaina Town"). In Thaina Town, Spigelman CJ, with whom Mason P, Beazley, Giles and Ipp JJA agreed, held that the Court of Appeal can, on an appeal on a question of law, exercise a discretionary power vested in the body appealed from when no further factual findings were required (at [102] to [104]). In so stating, the Court in Thaina Town overruled an earlier authority (Maurici v Chief Commissioner of State Revenue [2001] NSWCA 78, 51 NSWLR 673) ("Maurici") which appeared to preclude the exercise of such discretionary powers, but nevertheless affirmed its status so far as it held that the Court of Appeal was precluded from making findings of fact (Thaina Town at [110]). Maurici was a case in which s 75A of the Supreme Court Act 1970 (NSW) was available to be invoked by the Court of Appeal, if it was otherwise applicable.
34It is not entirely clear whether s 75A was of significance to the conclusion of the Court of Appeal in Thaina Town that the reviewing court could exercise the discretion of the court below where no findings of fact were required (see [94] to [102] and [110]). The relevance of that observation is that s 75A has no application to proceedings under the Review Act (see s 75A(3)(a)).
35The end result is that a jurisdiction conferred in the terms of s 56(1) of the Review Act would not ordinarily be construed to enable this Court to make findings of fact where the Court was satisfied that the Local Court had answered a question of law incorrectly, and that there may be reason to doubt that it would enable the re-exercise of the discretion conferred on the Local Court.
36However, the difficulty is that s 59(1) of the Review Act does not include a power to remit the proceedings to the Local Court (cf s 59(2)(a)). It will often be the case that the correction of a legal error in the sentencing process will not of itself mandate a particular result or outcome. In such a case and in circumstances where the Court does not appear to be able to remit the proceeding to the Local Court, then, subject to any discretionary reason not to, it seems inevitable that this Court will have to re-exercise the sentencing discretion so as to allow it to make an order under s 59(1)(a) or (b) (and possibly s 59(1)(c) if the outcome is the same as the Local Court at first instance). Thus, in this respect, s 59 appears to reinforce the conclusion in Thaina Town, even though s 75A has no application.
37I note that this was the course adopted by Price J in Roads and Traffic Authority of New South Wales v Fletcher International Exports Pty Ltd [2008] NSWSC 936, 51 MVR 41 at [56] ff ("Fletcher"). Accordingly, I will act on the basis that the power to re-exercise the sentencing discretion is available. It is unnecessary to address the further question of what approach the Court would adopt if further factual findings were required.
38In any event, the subject matter of the appeal is a question of law and a question of law alone (Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [33] per French CJ) ("Kostas"). The plurality judgment in Kostas at [88] suggests that caution should be exercised in attempting to chart the outer boundaries of such a jurisdiction divorced from the circumstance of the particular case. Their Honours also stated that it is not useful to undertake an analysis which compares and contrasts the formulation in s 56(1) with other phrases such as "appeals on a question of law" or appeals "with respect to a question of law" (cf HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 at [83] ff per Basten JA).
39Bearing those observations in mind, three related propositions should be noted. The first is that an appeal on a ground that involves a question of law alone does not include a mixed question of fact and law (see R v PL [2009] NSWCCA 256 at [25] per Spigelman J ("PL (No 1)"). This distinction between a question of law alone and a mixed question of law and fact can often be difficult to identify, much less maintain.
40This leads to the second proposition, namely that, ultimately it is incumbent on the parties contending that a question of law was decided erroneously, to identify the question and to do so in abstract terms. Thus in Williams v R [1986] HCA 88; 161 CLR 278 at 287 ("Williams"), Gibbs CJ stated:
"... there is 'a question of law alone' if the question of law can be stated and considered separately from the facts which it may be connected in a given case." (see also 314 per Wilson and Dawson JJ.)
41If that task is undertaken, then the consequential questions that will arise are whether the lower court or tribunal either answered that question or proceeded on an assumption concerning that answer, whether its answer or assumption was correct or incorrect, and whether that answer or assumption was material to the outcome, in the sense that it could have affected the outcome (see Australian Broadcasting Tribunal v Bond [1990] HCA 33; 170 CLR 321 per Mason CJ; Mark Aronson and Matthew Groves Judicial Review of Administrative Action (Thomson Reuters, 5th ed, 2013, at [4.270])).
42This is illustrated by comparing the approach in PL (No 1) and the return of the same case to the Court of Criminal Appeal in R v PL [2012] NSWCCA 31 (PL (No 2)). Both appeals were brought under s 107 of the Review Act from directed acquittals. Appeals under s 107 are also restricted to grounds that involve a question of law alone. In PL (No 1) at [25] and [26], Spigelman CJ found that a ground of appeal alleged that the trial judge "erred in applying the principles applicable to the question of verdicts of acquittal" involved a mixed question of fact of law. His Honour stated (at [26]):
"Even if his Honour erred in applying the correctly stated principle, that process necessarily encompassed an assessment of the facts. The process of 'applying' a legal principle to the facts of a case involves a mixed question of fact and law, which, the Crown accepts, is not within s 107(2) [of the Review Act]."
43When the same case returned to the Court of Criminal Appeal in PL (No 2) the Court of Criminal Appeal upheld a ground expressed in different terms, namely that "his Honour erred by misdirecting himself on the test of whether there is a case to answer" (at [3] and [40]). The relevant passage from the judgment of Bathurst CJ addressing that ground is as follows:
"36 It seems to me that the trial judge erred in law in two respects. First, his statement of the need for sufficient certainty implied an evaluation process of the weight of the evidence as distinct from a consideration of the question of whether the evidence taken at its highest could support a verdict of guilty. Second, and related to this issue, the trial judge reached his conclusion after evaluating alternative hypotheses which it was open to the jury to consider, contrary to the approach referred to above and in particular what was said by this Court in R v JMR supra at 44.
37 There remains the issue of whether the error of the trial judge was an error of law alone or an error of mixed fact and law. It was correctly accepted by the parties that the Crown was not entitled to appeal on a question of mixed fact and law. If what the trial judge did was to wrongly apply the correct principles to the facts, that would be an error of mixed fact and law and an appeal would not lie (see Smith v R (2000) 1 WLR 1644 at 1653).
38 The respondent contended that in the present case any error of the trial judge was an error of that nature and that at most the trial judge had wrongly concluded, in accordance with the correct principles, that there was not evidence on which a jury could convict, thereby committing an error of mixed fact and law.
39 Although support for this argument can be derived from the correct statement of the principles in the opening paragraphs of the judgment of the trial judge, it seems to me for the reasons set out above he failed to apply these principles in reaching his conclusion, in particular in his requirement of sufficient certainty and in his consideration of various hypotheses favourable to the accused. The trial judge in these circumstances in my view, applied incorrect principles to his consideration of the issue and thereby committed an error of law alone." (emphasis added)
44The critical part of this extract is the reference in [39] to "incorrect principles". In effect, Bathurst CJ inferred, from the errors of the trial judge identified by his Honour in PL (No 2) at [36], that the trial judge had implicitly adopted, or assumed the existence of, "incorrect principles". This was so, even though in one part of the judgment, the trial judge had correctly enunciated the relevant legal test. This approach is an illustration of the proposition that Gibbs CJ in Williams at p 287 derived from the judgment of Nettlefold J in R v Jessop [1974] Tas SR 64 at 89, namely that: "[a] conclusion of mixed law and fact may be challenged under a provisions in the terms of s 401(2)(b) [of the Tasmania Criminal Code which conferred a right to appeal on a question of law alone] where that conclusion proceeds from a misdirection of law".
45Thus in PL (No 2) the trial judge had implicitly decided or assumed that in considering an application for a directed verdict, a trial judge could evaluate the weight of the evidence adduced by the Crown rather than consider it at its highest and should evaluate alternative hypotheses which it was open for the jury to consider (PL (No 2) at [36]). Both propositions were wrong in law.
46The third and related proposition is that to identify an "error" on the part of the Local Court in the exercise of its discretion in sentencing in terms that amount to an error of the kind identified in House v R [1936] HCA 40; 55 CLR 499 at 504 ("House"), does not of itself answer the question posed by s 56(1) of the Review Act as to whether that court answered a question of law alone incorrectly, or otherwise made an assumption as to the existence of a legal principle which was wrong.
47Much of the plaintiff's submission in this case invoked the language employed in House, and by the Court of Criminal Appeal when it determines sentence appeals. In the case of the latter, neither the Court of Criminal Appeal's jurisdiction to hear an appeal against sentence, or its power to intervene in respect of a sentence, is defined by, or predicated upon, the presence of an incorrectly decided question of law (see Criminal Appeal Act 1912 (NSW), s 5(1)(c) and s 5D). In the case of the former, the classic passage from House at 504 makes it clear that the stated circumstances in which a discretionary judgment of a lower court will be interfered with are where the appeal is "a full one on law and fact". Thus the High Court stated:
"The appeal is a full one on law and fact (Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [...]; R. v. Hush; Ex parte Devanny [...]). But the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. Unlike courts of criminal appeal, this court has not been given a special or particular power to review sentences imposed upon convicted persons. Its authority to do so belongs to it only in virtue of its general appellate power. But even with respect to the particular jurisdiction conferred on courts of criminal appeal, limitations upon the manner in which it will be exercised have been formulated. Lord Alverstone L.C.J. said that it must appear that the judge imposing the sentence had proceeded upon wrong principles or given undue weight to some of the facts (R. v. Sidlow [...]). Lord Reading L.C.J. said the court will not interfere because its members would have given a less sentence, but only if the sentence appealed from is manifestly wrong (R. v. Wolff [...]). Lord Hewart L.C.J. has said that the court only interferes on matters of principle and on the ground of substantial miscarriage of justice (R. v. Dunbar [...]). See, further, Skinner v. The King [...] and Whittaker v. The King [...]."
48Clearly some of the errors in the exercise of a discretion identified in this passage are capable also of being agitated on appeal restricted to a question of law alone. Thus, if it was apparent that the court had acted on a "wrong principle", then the question of law would be whether that principle was wrong or correct and, if wrong, whether the trial judge acted on that principle and whether that materially affected the outcome.
49The position is less straightforward if it is only demonstrated that the lower court failed to take into account some material consideration, or allowed extraneous or irrelevant material to guide it. In such a case the reviewing court would have to consider whether it could be inferred from that circumstance that the lower court acted on an incorrect principle by a process similar to that undertaken by Bathurst CJ in PL (No 2).
50The other form of error identified in the passage from House, namely, that based upon the facts a decision is "unreasonable or plainly unjust", is of significance to this the appeal. As the balance of that passage makes clear, its equivalent in a case of sentence appeals is a complaint that the sentence is "manifestly wrong", or in modern parlance, "manifestly inadequate" or "manifestly excessive" (see Barbaro v R [2014] HCA 2 at [26]).
51In David Morse (Office of the State Revenue) v Chan [2010] NSWSC 1290, Schmidt J determined an appeal against the sentence under s 56 of the Review Act. Her Honour declined to act on the agreed position of the parties that "manifest inadequacy of sentence was [itself] an error of law" (at [5]). Instead her Honour found that an "appeal as to the inadequacy of a sentence imposed does not necessarily raise a question of law alone, as the parties argued" (at [39]). Her Honour referred to the sentencing exercise as involving the "instinctive synthesis" described in Markarian v R [2005] HCA 25; 228 CLR 357 ("Markarian"), and explained (at [40]):
"Determining the particular sentence to be imposed by this instinctive synthesis requires both a consideration of the facts proven, as well as the statutory provisions and common law principles pursuant to which the sentencing task must be undertaken. It follows that if a manifestly inadequate sentence is imposed, that may be the result of either errors of law, or errors of fact, or errors of mixed law and fact. It is only errors of law alone which may be raised on appeal to this court under s 56."
52Subject to the possible qualification of the approach in PL (No 1), by the approach adopted in PL (No 2) that I have discussed above, I agree with her Honour.
53Consistent with House, a conclusion that the exercise of judicial discretion was unreasonable or plainly unjust, may enable the appellate court to infer that there was error, but it does not necessarily enable the appellate court to infer that the error was one that involved the lower court applying or adopting a wrong legal principle. In cases such as these it will often be a distraction to attempt to label a sentence appealed from manifestly inadequate or excessive. Instead, it will simply remain the task of the relevant appellant to isolate the question or law or legal principle that the lower court adopted or assumed and then demonstrate that it was wrong and material to the outcome before questions of relief arise.
54Finally, if it is not otherwise obvious, it needs to be emphasised that the limitations on an appeal under s 56(1) are such that the section does not constitute a mandate to this Court to ensure consistency in sentencing for similar offences by magistrates across New South Wales. This is not the function of intermediate courts of appeal either. Instead, their role is to seek "consistency in the application of legal principles, not some numerical or mathematical equivalence" (see Hili v R [2010] HCA 45; 242 CLR 520 at [18]). A fortiori, on appeals of this kind this Court's function is even more limited, namely, to identify and correct legal error.