Cmunt, Jiri v New South Wales Commissioner of Police; Cmunt, Marie v New South Wales Commissioner of Police

Procedural history

1. On 9 June 2017, Mr Jiri Cmunt was convicted and sentenced in the Local Court in Queanbeyan on two counts of contravening s 277(1)(b) of the Protection of the Environment Operations Act 1997 (NSW) ("the PEO Act"). He was fined $3,000. On 18 July 2017, Mrs Marie Cmunt was convicted and sentenced in the Local Court in Queanbeyan on five counts of contraventions of the same kind. She was fined $2,500. Section 277(1)(b) creates an offence of failing to comply with a noise abatement order. The details of the offences are not otherwise before this Court. The offences were, within the meaning of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act") "environmental offences".
2. Mr and Mrs Cmunt lodged Notices of Appeal to the District Court on 30 June 2017 and 9 August 2017 respectively. They did this on advice by the registry staff at the Local Court that the District Court was the appropriate avenue for appeal against their convictions. This was incorrect. They were given the forms by which to file such appeals. By s 31 of the Appeal and Review Act, the only avenue of appeal for a person who has been convicted or sentenced in the Local Court with respect to an "environmental offence", is the Land and Environment Court. By sub-s (2)(a) such an appeal must be made within 28 days after sentence has been imposed. By s 33 the Land and Environment Court may, within 3 months of the relevant order, grant leave to appeal.
3. On 16 November 2017, Mr and Mrs Cmunt's purported appeals to the District Court were disposed of by Graham ADCJ on jurisdictional grounds. His Honour made the following order in respect of each appeal: "The court does not have jurisdiction to determine an appeal against a conviction. See S277(1)(b) of Environmental Operations Act 1997. All appeals are struck out for want of jurisdiction." That was indisputably correct.
4. By that date, the 28 day time limit for filing an appeal in the Land and Environment Court had expired, as had the window of opportunity to file an application under s 33 for leave to appeal out of time.
5. On 12 December 2017 Mr and Mrs Cmunt each filed in the Land and Environment Court a summons appealing against the convictions and sentences. Each summons came before the primary judge on 25 September 2018. His Honour concluded that the Court had no jurisdiction as the summonses were filed out of time and the orders entered in the District Court were final and dispositive of the appeals. He therefore proposed to strike out each summons. He gave oral reasons for reaching that conclusion. Having regard to the time limits imposed by ss 31 and 33, that conclusion was plainly correct. His Honour then stated his intention, before taking that course, of using s 5BA(1) procedure. He provided to the parties a draft question (in the form finally submitted), as to which he invited comment. No comment was forthcoming from either party. Counsel for the respondent undertook to prepare the appeal books for this Court.

Consideration

1. A stated case under s 5BA(1) must identify a "question [or questions] of law" for determination. In formulating the questions of law to be submitted, the judge must state all the facts which demonstrate that those questions are questions "arising on" the appeal.
2. The stated case procedure is little used and poorly understood. It may fairly be described as arcane: see Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at 211, where Street CJ noted that it has been called: "… a cumbersome and often unsatisfactory means of bringing a matter up for consideration on appeal … fraught with difficulties …"
3. The procedure does, however, when properly adopted, have its uses. An example of a properly formulated stated case is to be found in Ladbrokes Digital Australia Pty Ltd v Liquor & Gaming NSW [2019] NSWCCA 26.
4. In Talay v R [2010] NSWCCA 308 I reviewed authorities relating to the proper drafting of a stated case. I do not pretend that the procedure is easy, which is a good reason for the participation of legal representatives and parties. In this case, as noted above, although the parties were advised of the primary judge's intention to use the procedure, they did not avail themselves of the opportunity to participate. That is hardly surprising in the case of Mr and Mrs Cmunt, given that they have no legal training and little faculty facility in the English language, and were unrepresented. More might, perhaps, have been expected of the legal representatives of the respondent. However, it must also be acknowledged that they were given no advance notice of the proposal.
5. One essential feature of the procedure is that the case stated must contain all the ultimate facts found (including those found by inference) that underpin the ultimate conclusion (but not the evidence on which those findings of fact are based). The question submitted must be a question of law (and not a question of fact or mixed law and fact). A question that asks: "Did I err in law in deciding that …" does not identify a question of law and, if answered, will usually involve the court in deciding a question of mixed fact and law: Lavorato v R (2012) 82 NSWLR 568; [2012] NSWCCA 61 at [13].
6. In this case it is apparent that the primary judge felt uncomfortable at the course he understood he had to take. It is plain that Mr and Mrs Cmunt have been the victims of incorrect advice given by court registry staff in the Local Court at Queanbeyan. The inadequacy of the advice did not come to light until the time for appeal to the Land and Environment Court had expired, as had the time in which they might have sought leave to appeal beyond that time. The primary judge appreciated this and may well have been hoping for some revelation by this Court that would rectify the situation.
7. The procedure followed, however, was inappropriate.
8. The facts on which the decision was based were not stated. Ordinarily, that would be sufficient to warrant this Court declining to answer the question submitted. However, in this case the facts underlying the decision, while not clearly stated, are not in dispute. They are:

• Mr and Mrs Cmunt were convicted and sentenced in the Local Court at Queanbeyan on 9 June 2017 and 18 July 2017 respectively;
• both Mr and Mrs Cmunt wished to appeal against the convictions and the fines imposed;
• Mr and Mrs Cmunt had 28 days from the date of conviction and sentence in which to file an appeal to the Land and Environment Court, which is the only court that has jurisdiction to hear an appeal against conviction under s 277(1)(b) of the PEO Act;
• Mr and Mrs Cmunt were advised, wrongly, to file an appeal to the District Court, and were provided with forms on which to do so;
• acting on that advice, both Mr and Mrs Cmunt filed appeals in the District Court on 30 June 2017 and 9 August 2017 respectively;
• on 16 November 2017 each appeal was struck out by the District Court, for want of jurisdiction;
• by that date, the time in which they were entitled to appeal to the Land and Environment Court had expired, as had the time in which to seek leave to appeal out of time.

1. On these facts the decision to strike out the purported appeals to the Land and Environment Court was inevitable and plainly correct. There was no error of law in the decision of the primary judge. The question submitted should be answered "No".
2. As indicated above, it is clear that Mr and Mrs Cmunt have been deprived, by incorrect information given to them by registry staff, of a right of appeal that they otherwise would have had open to them.
3. So far as appears, there is no other avenue of appeal open to them. They may, if they see fit, seek advice in relation to Pt 7 of the Appeal and Review Act. In written submissions in both the Land and Environment Court and this Court, Mr and Mrs Cmunt asserted facts that, if accepted, may well have entitled them to acquittal. It is not possible for any evaluation of their assertions to be undertaken in this Court, and the opportunity for such evaluation by an appropriate court has been lost to them by reason of the circumstances outlined above.
4. WALTON J: I agree with Simpson AJA.
5. ADAMSON J: I agree with Simpson AJA.

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