Forrest v Director of Public Prosecutions

Court of Appeal (NSW)|2020-05-26|Before: Basten JA, Leeming JA, McCallum JA

Ex parte McGavin; Re Berne (1945) 46 SR(NSW) 58 Jankovic v Director of Public Prosecutions [2020] NSWCA 31 Julius v Bishop of Oxford (1880) LR 5AC 214 Landsman v Director of Public Prosecutions [2013] NSWCA 369 Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61 Macdougall v Paterson (1851) 11 CB 755 Re Gleeson (1907) VLR 368 Reg v Garnet-Thomas [1974] 1 NSWLR 702 Roberts v Jones (1928) 28 SR (NSW) 543 Robinson v Woolworths Ltd (t/as Woolworths Plus Petrol Werrington) (2005) 64 NSWLR 612; [2005] NSWCCA 426 Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 Ward v Williams (1955) 92 CLR 496; [1955] HCA 4 Texts Cited: Alex C Castles, An Australian Legal History, (LawBook Co, 1982) p 202 C Stebbings, Legal Foundations of Tribunals in Nineteenth Century England (2006, Cambridge University Press) Ch 6 Judicial Supervision, pp 237-247 Cornish et al, The Oxford History of the Laws of England (2010, Oxford University Press) pp 128-130 in Part 1 Criminal Law, K Smith G D Woods, A History of Criminal Law in New South Wales: The Colonial Period 1788-1900 (The Federation Press, 2002) G D Woods, A History of Criminal Law in New South Wales - Vol 2 (The Federation Press, 2018) NSW Legislative Council, Parliamentary Debates (Hansard), 17 September 1998, p 7594 Stephen, A History of the Criminal Law of England, (1883), vol 1 Category: Principal judgment Parties: Mark Forrest (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: Mr P Lange (Applicant) Ms J Davidson (First Respondent) Solicitors: One Group Legal (Applicant) Solicitor for Public Prosecutions (First Respondent) Crown Solicitor's Office (Second Respondent) File Number(s): 2019/363801

[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.]

Judgment

BASTEN JA: On 21 December 2018 the applicant was convicted in the Local Court of one offence of dealing with proceeds of crime, contrary to s 193C(1) of the Crimes Act 1900 (NSW). The property the subject of the offending was a sum of $165,000 found in cash in a bag on the floor of a vehicle the applicant was driving. He was sentenced to an intensive correction order for a period of 12 months with an obligation to undertake 250 hours of community service.
On 27 December 2018 the applicant lodged an appeal to the District Court against the conviction. The appeal was heard and dismissed on 1 August 2019 by O'Rourke SC DCJ. At 3.49pm on Thursday, 29 August 2019, the solicitor for the applicant emailed a letter to the judge's associate, requesting her to state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). The judge's associate replied by email the following day advising that the judge had declined to state a case.
On 19 November 2019 (that is, 10 days short of the three month period for seeking judicial review [1] ) the applicant filed a summons in the Common Law Division seeking judicial review of the refusal to state a case. There is no appeal from the determination by the District Court of an appeal from a conviction in the Local Court; the only jurisdiction to review a decision of the District Court lies with this Court. The application was transferred to this Court.
The basis of the application rests on the following propositions: 1. upon receiving a request from a party to state a case with respect to a question of law, the judge was obliged to do so, unless the request was obviously frivolous or baseless; 2. the request identified three questions of law and thus engaged the duty to state a case; 3. the judge erred in refusing to fulfil her duty to state a case; 4. the judge erred in failing to give reasons for refusing to state a case; and 5. in these circumstances, the applicant was entitled to have the refusal set aside and the judge directed to exercise her function according to law. Propositions (1)-(3) were developed in submissions; only (4) was identified in the summons. With respect to (4) there was no evidence of any request for reasons, absent which this Court is unlikely to grant relief in relation to the refusal of a belated request to make a statutory procedure available.
The outcome turned on the correctness of propositions (1) and (2). If both are made good, there will be consequential issues concerning the nature and appropriateness of the relief sought.
In written submissions, counsel for the Director conceded that the first question in the request, if reformulated, could be seen to identify a question of law which was material to the decision of the District Court. Subject to consideration of the appropriate form of relief, the Director therefore conceded that the matter should be remitted to the District Court for the application to state a case to be determined according to law.
Before accepting that concession, it is necessary to identify a number of unstated assumptions which underlie it. For reasons explained below, the assumptions, once identified, may be seen to be unwarranted. It follows that the concession should not be accepted; the application for judicial review must be dismissed.

(a) current legislation

The assumption that an applicant is entitled as of right to have a case stated on a question of law if the question is not frivolous or baseless is derived from judicial rulings with respect to a predecessor to the current provision. However, before turning to the legislative history, it is convenient to note how s 5B in its current form reads: 5B Case stated from District Court (1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit. (2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow. (3) The Court of Criminal Appeal may, in connection with the determination of a question of law in the circumstances referred to in subsection (2), quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court.
The first assumption made by the parties derived from an apparent misreading of the terms of s 5B. Subsection 5B(1) confers a power on a judge of the District Court to submit a question of law to the Court of Criminal Appeal. Subsection (2) identifies when the question of law may be or must be "submitted". That is, it identifies a period within which the judge, not a party, is required to act. The second assumption was that if a "request" were made by a party within 28 days, the obligation of the judge to submit a question would be engaged. Thirdly, it was assumed that that was so whether or not the request provided a draft "stated case", and whether or not it identified with clarity and precision an appropriate question of law. It followed, based on those assumptions, that the duty of the judge was engaged in circumstances where (i) the request was made on the afternoon of the 28th day; (ii) no draft stated case was provided with the request; and (iii) a clear and precise question of law was not identified.
That the legislature would impose an unqualified obligation on a court of record [2] to act in such circumstances is, to say the least, a surprising proposition. It is of course true that no sanction can apply to the court for breach of the obligation, other than an order in the nature of mandamus. Any detriment suffered by the failure of the court to act will be borne by the applicant. Yet that can hardly be a matter of concern where it is the inaction of the applicant which has led to the breach of the supposed obligation.

(b) judicial ruling

In dealing with s 5B in its original form Jordan CJ stated in Ex parte McGavin; Re Berne: [3] "… I am of opinion that there was no evidence before the magistrate that the conditions requisite to give [summary] jurisdiction under s 529 [of the Crimes Act] were fulfilled. There is another point, which cannot be allowed to pass without notice. The learned Chairman of Quarter Sessions, when the question of jurisdiction was raised before him, refused to submit it to the Court of Criminal Appeal, notwithstanding that it was a question of law. This was wrong. Section 5B of the Criminal Appeal Act of 1912 is in the following terms: "A court of quarter sessions may submit any question of law arising on any appeal coming before it to the Court of Criminal Appeal for determination and such submission shall be dealt with as if it were an appeal under this Act, and the Court of Criminal Appeal may make any such order or give any such direction to the Court of Quarter Sessions as it thinks fit." The word 'may' is prima facie facultative only; but it was pointed out in Macdougall v Paterson, [4] that 'when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application'…. In my opinion, it is the duty of a Chairman of Quarter Sessions to submit to the Court of Criminal Appeal any question of law which either party to the appeal may raise and ask to be so submitted, unless, in his opinion, the question is so obviously frivolous and baseless that its submission would be an abuse of process."
These observations, though technically obiter, have been frequently applied. However, the assumption of a strict duty to act must now be viewed in the light of changes to the legislative scheme, and later analysis by the High Court of the principle derived from Macdougall v Paterson. It is convenient to start with the legislative history, which is not entirely straightforward.

(i) legislative history pre-1912

The history of provisions for stating a case, or referral of a question of law, for determination by a superior court, mirrors the somewhat tortuous history of statutory appeal provisions generally. There was reluctance throughout the nineteenth century and into the first decades of the twentieth century (both in the UK and in Australia) to permit judicial supervision of fact-finding by inferior courts and tribunals, and especially juries: [5] five mechanisms were adopted to allow strictly delimited review of the decisions of lower criminal courts. The first was the common law supervisory jurisdiction of the superior court of record in the jurisdiction. This was inherently limited to errors of jurisdiction and errors of law on the face of the record of the inferior court; the "record" was of limited scope and the procedure was restrictive. Secondly, where an appeal was provided, a distinction was drawn between questions of fact and questions of law; appeals were limited to the latter. [6] Thirdly, appeals could be controlled by imposing a leave requirement. Generally (though not always) the power to grant leave was vested in the appeal court. However, subject to any leave requirement, each of these mechanisms conferred a right on an aggrieved party to invoke the jurisdiction of the higher court and identify the relevant issue or issues for its determination.
A fourth mechanism was to confer on the court from which the appeal was taken a power (and duty) to submit a question of law for determination by the superior court. The duty was enforceable by a power in the superior court to order that a case be stated. Fifthly, a power could be conferred on a court to submit a question of law for determination by the superior court, with no explicit obligation to do so. As will be seen the fourth mechanism was adopted where the court was comprised of lay justices; the latter where the presiding member was a judge. Viewed as a control mechanism, it would be surprising if the last option imposed on the trial court an unqualified obligation to exercise the power on request.
Courts of General and Quarter Sessions were established in New South Wales in 1829. [7] The courts were constituted by lay justices, but the justices in a particular district were empowered to elect a chairman, to be appointed by the Governor. The Preamble to s 5 noted that it was "expedient that a person possessing competent knowledge of the law should be appointed to act as Chairman".
The system of appointing the Chairman of Courts of Sessions was not long lived. In 1858 the District Courts Act, [8] repealed the 1829 Act and provided for the creation of District Courts, and the appointment of judges for such courts. The judge was to be legally qualified (s 27) and was to be the Chairman of Courts of General or Quarter Sessions held within the district (s 25). Further, the judge was to be "the sole Judge at the trial of all criminal issues in such Courts". [9]
The origin of the procedure for stating a case or submitting a question of law to higher authority was found in English practice. [10] It was described by Professor Castles in the following terms: [11] "In 1849 the Legislative Council regulated one way in which the Full Court might be called upon to consider legal issues arising in criminal trials. This followed the main features of a British enactment passed in the previous year. The British legislation had established a body called the Court of Crown Cases Reserved. For many years, English judges had sometimes referred difficult legal problems arising in criminal trials for consideration by their colleagues. This practice, however, only applied to cases which were dealt with by senior courts. It did not operate with respect to proceedings before Courts of Quarter Sessions where many non-capital offences were tried. At the same time, the practice could only operate when a presiding judge himself was prepared to exercise his personal discretion to allow complex legal issues to be discussed by his peers. With the creation of the Court of Crown Cases Reserved, however, this procedure was given formal recognition and expanded to make it possible for judges and Courts of Quarter Sessions to have legal issues referred to this new tribunal for consideration. The New South Wales legislation operated along similar lines without establishing a new court. It provided that criminal courts could refer legal questions to the 'judges of the Supreme Court'. [12] When this was done the Full Court was authorised to remit a case back to its original venue where judgment was to be given in accordance with its ruling."
The English history of stated cases in criminal jurisdiction was referred to by the High Court in Conway v The Queen: [13] "[10] The use of the writ of error declined once the Court for Crown Cases Reserved - which had operated informally [14] before 1848 - was given a statutory basis. [15] That Court decided questions of law referred to it by other judges and courts and consisted of all the judges at Westminster, of which five were a quorum. If any of the five dissented, he could require the whole body of judges to hear the question referred. [16] Stephen described its procedure as follows: [17] 'Any judge or chairman, or recorder of a Court of Quarter Sessions, may state a case for the opinion of the court 'as to any question of law which shall have arisen at' any 'trial', either committing or bailing the prisoner in the meanwhile. The court hears the case argued, delivers judgment, and may either reverse the judgment (if any) or confirm it, or direct the court by which the case was stated to give judgment. This court can determine questions of law arising at the trial, but cannot take notice of questions of fact, and it is absolutely in the discretion of the presiding judge at a trial whether he will or will not reserve a point for its decision.'" There could, under that procedure, be no duty on a chairman of quarter sessions to submit a question of law.
The Reserved Criminal Cases Act of 1849 (NSW) stated: "1. Whereas it is expedient to provide a better mode than that now in use of deciding any difficult question of law which may arise in criminal trials in any Court of Criminal Jurisdiction … [be it enacted] That when any person shall have been convicted of any treason, felony or misdemeanour before any Court of Criminal Jurisdiction within the Colony the Judge or Chairman or Justices of the Peace before whom the case shall have been tried shall on the application of Counsel made during the trial or without such application in his own discretion reserve any question or questions of law which shall have arisen on the trial for the consideration of the Judges of the Supreme Court and thereupon shall have authority to respite execution of the judgment on such conviction until question or questions shall have been considered and decided …. 2. And be it enacted That the Judge, Chairman or Justices as the case may be shall thereupon state in a case signed in the manner now usual the question or questions of law which shall have been so reserved with the special circumstances upon which the same shall have arisen and such case shall be transmitted to the Judges of the Supreme Court …."
As appears from s 1, the application was required to be made "during the trial", but it was understood that the trial might proceed to a conclusion (and conviction) before the question was determined. Pursuant to s 2, the Supreme Court was given power to "reverse, affirm or amend the judgment which shall have been given on the indictment or information on the trial whereof such question or questions shall have arisen".
In 1881, provision was made for a party dissatisfied with a determination of a justice "as being erroneous in point of law" to apply in writing within eight days for the justice to state and sign a case (which was to be done in accordance with a form set out in the schedule to the Act) "setting forth the facts and the grounds of such determination for the opinion thereon of the Supreme Court of New South Wales". [18] Section 3 provided a limited power to refuse to state a case: 3. If the Justice or Justices be of opinion that the application is merely frivolous but not otherwise he or they may refuse to state a case and shall on the request of the appellant sign and deliver to him a certificate of such refusal provided that the Justice or Justices shall not refuse to state a case where application for that purpose is made to him or them by or under the direction of Her Majesty's Attorney General for the said Colony. The first part of this provision bore a striking resemblance to the opinion expressed in relation to s 5B in Re Berne, but was dealing with a different procedure. Section 4 provided a form of statutory mandamus, whereby the Supreme Court, on the application of the putative appellant, could direct the justice or justices, not just to reconsider a decision, but to state a case.
The Justices Acts Amendment Act of 1900 (NSW) provided for a general right of appeal from a conviction or order of a justice to the Court of Quarter Sessions for the district where the conviction or order was made. [19] Shortly thereafter, that right of appeal was repeated in s 122 of the Justices Act 1902 (NSW). There was, at that stage, no right of appeal from the determination of the appeal to Quarter Sessions, and, pursuant to s 18, there was a prohibition on removal by way of certiorari into the Supreme Court. (That provision is now found in s 176 of the District Court Act.)

(ii) s 5B pre-1945

Section 5B was introduced into the Criminal Appeal Act in 1924. [20] In its original form, it contained only subs (1). It had a marginal note: "Case stated from Court of Quarter Sessions", although it did not use the term "case stated" in the text. It provided no power to quash any order made by quarter sessions, but rather provided that the question submitted be dealt with "as if it were an appeal under this Act."
The provision was amended in 1929 to insert at the end of the section the words "and the Court of Criminal Appeal may make any such order or give any such direction to the Court of Quarter Sessions as it thinks fit." [21] Curiously, the next amendment was to be found in the Child Welfare Act 1939 (NSW), which changed the conferral of power from a power conferred on the court to one conferred on a chairman of quarter sessions. [22]
In 1951, s 5B was amended to omit the deeming provision ("as if it were an appeal under this Act"). [23] Also that year, by an amendment introducing a new s 131A into the Justices Act 1902 (NSW), a power was conferred on quarter sessions to submit a question of law "arising on any appeal to quarter sessions" to the Supreme Court for determination.
These were common procedures at that time, when general rights of appeal from inferior courts and tribunals were uncommon, and even rights of appeal limited to points of law were less common than they are today. The form of a stated case, though considered awkward and anomalous today, no doubt had a practical value when proceedings were not mechanically recorded, and most judgments were delivered orally with brief reasons to an audience who had just heard all the evidence and the parties' submissions.
When the Parliament came to legislate in 1924 for a statutory mechanism to review decisions of Quarter Sessions on appeal from justices in Petty Sessions, it had available to it examples of all five means of review set out above. It cannot have been inadvertence which led to the adoption, not of a right of appeal to the Court of Criminal Appeal, but the conferral of a power on the Chairman of Quarter Sessions to submit a question of law. Nor was the form of the Justices Appeal Act of 1881, limiting the discretion of the justices requested to refuse to state a case, adopted. That too appears not to have been inadvertent. There is a material difference between empowering a lay justice or justices to submit a question of law to a court and empowering a Chairman of Quarter Sessions, being a legally qualified judge with security of tenure, to state a question of law. The judge is expected to understand the law and be able to judge whether there is in truth a dispute as to the law in the terms asserted by a party. Counsel will frequently challenge propositions of law stated by an opponent; they may even contest whether a question of law arises. The ability of lay justices to resolve such disputes may have been doubted; appointing a legally qualified judge alleviated such doubts. The different provisions for review surely reflected the differing institutional arrangements. The available inference is that, in the latter case (a court presided over by a judge), there was no intention to confer on an aggrieved party a right of appeal on a question of law and no intention to impose on the judge an obligation to state a question whenever so requested. The 1881 model was eschewed.

(iii) caselaw 1945-1999

Ten years after Re Berne, a more nuanced approach to the nature of a power conferred on a judicial officer was adopted in Ward v Williams. [24] The case concerned defective conditions of residential premises which, once found to constitute a nuisance, were subject to a power in the magistrate under the Public Health Act 1902 (NSW) to order abatement. As the High Court noted: [25] "The Supreme Court held that the magistrate, once he was satisfied that there existed a state of affairs which the statute called a nuisance, had no discretion to refuse to make an order in one or other of the forms authorized by s 66 for the abatement of the nuisance; his discretion went no further than adopting one of the alternative forms of order."
In considering whether the conferral of a power on the magistrate required its exercise, the High Court started with the proposition expounded by Cussen J in Re Gleeson: [26] "The authorities clearly indicate that it lies on those who assert that the word 'may' has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning". The High Court then referred to the observations of Lord Selborne in Julius v Bishop of Oxford, [27] that the question whether a power is bound to be used in a particular situation or manner is not to be resolved by reference to the use of "may", but must in general be solved "from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power".
Further, the Court noted that pursuant to the Acts Shortening Act of 1858 (22 Vic 12, s 8) where an enactment conferred a power using the word "'may' … the power may be exercised or not at discretion but where the word 'shall' is applied to the exercise of any such power the construction shall be that the power conferred must be exercised." A similar provision was to be found in the Interpretation Act 1897 (NSW), and is now found in s 9 of the Interpretation Act 1987 (NSW).
The question of law to be submitted must be one "arising" in the appeal from a magistrate, but the power was spent once the court had determined the question itself. So much was held in Roberts v Jones [28] with respect to a power to state a case under the Workmen's Compensation Act 1926 (NSW), s 37(4). That section stated: "When any question of law arises in any proceeding before the Commission, the Commission may of its own motion state a case for the decision of the Supreme Court thereon." Ferguson J, speaking for the Full Court, stated: [29] "Prima facie the intention of the Act seems to be that when a question of law arises upon which the Commission desires the opinion of a Court it should submit that question to the Court for its own guidance in making an award. That suggests that the question should be submitted before any award is made. As has been pointed out in this case, the Chairman has practically stated a case to enable one of the parties to appeal against the decision of the Commission."
Although Ferguson J expressed some doubt as to the outcome, the doubt was as to whether the Chairman had exercised a power of the Commission to reconsider the matter, a power which he alone did not possess. Had the hearing been reopened, the matter would not yet have been decided and the power to state a case would have remained available.
That understanding of the temporal element was affirmed by the High Court in Ward v Williams, dealing with s 131A of the Justices Act: "This provision does not give an appeal from a determination or order of quarter sessions but it enables the chairman to refer any question of law to the Supreme Court for its determination. Once an appeal to quarter sessions has been heard and determined, so that that court has disposed of it by a judicial decision, the opportunity of stating a case under s 131A has passed: Roberts v Jones."
The situation as to timing, as it existed in 1974, was expressed in unequivocal terms by Jacobs P in Reg v Garnet-Thomas: [30] "It seems to me that once one reaches the stage where a conviction cannot be the subject matter of an appeal, one is thrown back to a consideration of the section as one which only allows the submission of questions of law before conviction, or before acquittal. In these circumstances it would not appear that there is any reason why the chairman of the court of quarter sessions should not seek the assistance of this Court of his own motion, or on the motion of either party. I should add that the decision in Ward v Williams was applied by the Court of Criminal Appeal in R v Lazarevic. [31] It seems to me that it is open to the chairman of quarter sessions now, in the light of these decisions, to state a case to the Court of Criminal Appeal at any stage of the proceedings before acquittal or conviction, or before upholding or dismissing the appeal, but that thereafter he can never state such a case. I do not think it is necessary that he should have indicated his result or his intended result one way or the other. That is a factor not relevant to the power given to him under s 5B."
In 1995 in Director of Public Prosecutions v Cassell, [32] Kirby P, referring to Re Berne, described the obligation of a Chairman of Quarter Sessions "to conform, when reasonably asked to do so, with the requirements of s 5B of the Criminal Appeal Act." The indication that the request must be reasonable reflected an approach to the observations in Re Berne which did not treat them as equivalent to a statutory formula, governing the nature of the power.

(iv) later amendments to s 5B

On 1 March 1999, s 5B was amended to introduce sub-s (2). The change was explained in Sasterawan v Morris: [33] "[6] … Although it was open to the District Court to submit a question of law for determination by this Court, understandably a judge of the District Court would rarely take that option unless invited to by one of the parties. However, whether a particular question of law would arise was often not clear until the Court was giving judgment. Because the power originally conferred by s 5B applied only in proceedings which were still on foot, that could give rise to difficult questions of judgment on the part of the parties, as a request was required before a final order was pronounced: see Director of Public Prosecutions v Cassell. [34] Sometimes it was necessary to interrupt a judgment. [7] This somewhat unedifying procedure was avoided by the conferral on either party of a right to request that a case be stated, after final orders had been given, as provided in s 5B(2). However, the imposition of a 28 day limit within which to submit a question clearly involved a very limited temporal concession, because not merely the request, but also the submitting of a question to this Court, has to be effected within 28 days of the end of the appeal."
That situation was understood by the legislature in amending s 5B to add subs (2); the Minister's Second Reading Speech noted: [35] "At present, a District Court judge hearing an appeal under section 122 of the Justices Act cannot be asked to state a case on a question of law to the Court of Criminal Appeal under section 5B of the Criminal Appeal Act 1912 after the District Court has disposed of the appeal. The Crown or the appellant must ask the judge to state a case prior to the judge making final orders disposing of the appeal. This gives rise to hardship and constitutes an unreasonable restriction on the ability of the parties before the District Court to have a question of law properly determined by the Court of Criminal Appeal in an appropriate case. The bill will address that technical restriction by permitting the Crown or the appellant to appeal to the Court of Criminal Appeal after conviction on a question of law."
There was a further technical problem which was not resolved until the insertion of subs (3), with effect from 15 December 2006. [36] Prior to that time, there was no express power for the Court of Criminal Appeal to set aside a decision of the District Court, as if on an appeal, following removal of the words deeming the case stated to be an appeal. Of course, such a power was not required when a case could only be stated prior to the order disposing of the appeal. There was then a built-in temporal constraint on formulating and settling the stated case: it had to occur before the final determination of the appeal.

(v) inferences from legislative history and caselaw

There is a tendency in subsequent cases to extract selectively aspects of the reasoning in Ward v Williams as to the nature of the power conferred on the magistrate under the Public Health Act which support the conclusion reached in Re Berne. One commonly cited passage is as follows: [37] "In the subject matter and context of s 66(2) there are few positive considerations to be found in support of the interpretation which makes it obligatory upon the magistrate, once he is satisfied that the statutory nuisance exists, to make an order of one description or another. But there is one consideration which is usually accounted very strong. It is that the power is conferred upon a judicial tribunal and to be invoked by a judicial proceeding. Jurisdiction and powers are conferred on judicial bodies, usually for the enforcement of rights and the protection of interests, and permissive language will often in such a case be used not because it is intended to give the tribunal a discretion to grant or refuse the remedy, but because, although it is intended or contemplated that persons interested will be entitled to the remedy the tribunal is empowered to give, it is also intended, or at all events taken for granted, that the existence of the interest and the validity of the claim to the remedy of a person seeking it will be for the tribunal to determine."
However, the following discussion, noting that "[t]he magistrate is interposed between [the authority giving the notice] and the owner … and almost certainly he is interposed for the protection of the latter", concluded by finding that the magistrate possessed a discretion. [38] The Court continued: "It is, however, a discretion which must be exercised judicially and upon grounds which do not go beyond the scope and object of [the statute]. … Prima facie, therefore, proof of the existence of such a nuisance should lead a magistrate to make an order when a complaint comes before him. But he may consider that to make an order of a kind which lies within his power would be unreasonable … having regard to its effect upon the owner".
In Re Berne, Jordan CJ was dealing with an issue as to the jurisdiction of Quarter Sessions. He had determined, immediately before the discussion as to the effect of s 5B, to uphold the challenge to jurisdiction. It is by no means clear that he had in mind setting out a comprehensive statement of the circumstances in which the duty did not arise, or might not be exercised. He did, however, identify a qualification if the Chairman of Quarter Sessions was of the opinion that the question was "so obviously frivolous and baseless that its submission would be an abuse of process."
The recent amendments have changed significantly the nature of the power conferred by s 5B. Yet there has been no attempt in any case since 1 March 1999 to reconfigure any implied duty to exercise the power under the new regime.
Section 5B is still not in form the conferral on a dissatisfied litigant of a right of appeal on a question of law. Prior to determining a matter, the judge has a power to submit a question of law absent a request from a party. (Sometimes a conditional request would be made, in the form "If your Honour is against me on that point, as a matter of law, I would ask your Honour to state a case.") Thereafter the power turns on the existence of a request. When a request is made at a time which renders it impossible for the judge to comply with the temporal limitation (that is after the 28 day period has elapsed), the existence of the power to state a case will be contingent upon an exercise of discretion by the Court of Criminal Appeal to extend time, as to which the judge can only speculate.
On one view, once the period of 28 days from the date on which judgment was given had expired, there was no duty on the trial judge to consider, let alone grant, a request to state a case to the Court of Criminal Appeal. Further, if the request were made at a time when it was impracticable to comply with it prior to the expiration of 28 days, there would also be no implied duty to grant the request. (Whether there would be an obligation to consider it need not be determined.) Arguably the power to submit a question of law might remain, but would not be engaged in circumstances where the request did not state with clarity and precision a question of law which could be seen to have arisen, in the sense of being material to the outcome, in the concluded proceedings.
A similar issue might have arisen in recent decisions, including Landsman v Director of Public Prosecutions [39] and Jankovic v Director of Public Prosecutions, [40] referred to below. However, the issue was not raised and the reasoning in those cases did not address the issue.
It is true, as counsel for the applicant submitted, that the principle stated in Re Berne has been applied on numerous occasions. [41] However, it is also true that the scope and limits of the obligation have not been identified or addressed. Further, a number of cases have recognised that limits exist, including Charara v Director of Public Prosecutions, [42] where Giles JA referred to there being "a qualified obligation to state a case". [43] In Elias v Director of Public Prosecutions (NSW) [44] constraints were recognised in the following terms: "[8] The applicant placed reliance upon the observations of Jordan CJ in Ex parte McGavin; Re Berne (1946) 46 SR(NSW) 58; 63 WN(NSW) 45, to the effect that a District Court judge (then a Chairman of Quarter Sessions) is obliged to exercise the power to submit a question of law unless 'the question is so obviously frivolous and baseless that its submission would be an abuse of process'. Those observations, and their subsequent history, were referred to in Sasterawan (2007) at [5]. It is, however, important to understand the premise underlying the duty identified by Jordan CJ, namely that the occasion to exercise the power has in fact arisen. There is no power unless the question raised for submission is a question of law, an assessment which Jordan CJ had already made before observing that a duty arose. Thus, at least in the first instance, the District Court judge must be satisfied that a relevant question of law has been identified before there can be a duty to submit the question to the Court of Criminal Appeal. [9] Furthermore, there may be other bases for identifying an abuse of process which were not relevant in the circumstances of McGavin. For example, and subject to the comments already made in this regard, the prior commencement of an alternative procedure, or unjustifiable delay, may be factors relevant to the scope of the power and thus the duty. The primary judge, not having been satisfied that the issue sought to be submitted for consideration by the Court of Criminal Appeal was indeed a question of law, was under no duty to submit the proposed question. If, in not being so satisfied, the primary judge committed jurisdictional error, that error would be reviewable by this Court and a mandatory order might follow. For the reasons given below, the primary judge did not err in that respect."
It has not been submitted that the existence of an occasion to submit a question of law, namely that it has arisen on the appeal, is not a matter to be determined by the District Court judge. Nor is it sufficient to identify an error of law on the face of the record of the District Court. The effect of the privative clause in s 176 of the District Court Act is to confer power to determine all questions of law on the District Court judge, such determinations being unreviewable unless the judge has mistaken his or her function, and in doing so has exceeded, or failed to exercise, the jurisdiction of the court.
There is no good reason to limit the factors which the District Court judge may properly take into account in considering whether to accede to a request to state a question of law. Those factors may include (i) whether the question formulated by the applicant states clearly and precisely a question of law; (ii) whether the answer to the question, favourably to the applicant, might have been dispositive of the appeal; (iii) any delay in making the request and the absence or strength of any explanation given for the delay, and (iv) whether the judge has any significant doubt as to the correct answer to the question of law.
In functional terms, there is good reason to adopt such an approach in relation to a challenge to a refusal to submit a question of law to the Court of Criminal Appeal. First, it prevents the limited power conferred by s 5B being transformed into a general right of appeal on a question of law, which it patently is not. In Lavorato v The Queen, [45] I explained, in a passage cited with approval in Landsman v R: [46] "[5] There is no appeal from a decision of the District Court in its criminal jurisdiction determining an appeal from a judgment in the Local Court. Apart from judicial review pursuant to s 69 of the Supreme Court Act 1970, the only step available to an aggrieved party in the District Court is to invite the judge to submit for determination by this Court a question of law arising on the appeal to the District Court."
Secondly, if there were a jurisdictional error in the judgment dismissing the appeal, that would be reviewable by this Court pursuant to s 69 of the Supreme Court Act 1970 (NSW). Thirdly, although there is merit in allowing such issues to be determined by the Court of Criminal Appeal, rather than this Court, that consideration is of limited importance in circumstances where the challenge to a refusal to submit a question of law under s 5B comes to this Court.
Although the Court in Charara held that the judge below had committed a jurisdictional error, the Court refused relief on the basis that there was no real prospect of a different outcome. [47] It is surprising, in those circumstances, that jurisdictional error was identified on the part of the District Court judge in failing to identify a question of law for submission.
The applicant noted that in Jankovic v Director of Public Prosecutions [48] this Court had recently applied the test in Re Berne in reaching a conclusion that the District Court judge had committed a jurisdictional error in refusing to state a case. The reasoning by which the Court concluded there had been a jurisdictional error in the original judgment on appeal and, perhaps consequentially, a jurisdictional error in refusing to state a case is, in some respects, novel. However, the critical passage for present purposes is the finding, based on Charara, that: "[90] Of particular relevance for present purposes is the … conclusion that a District Court judge who had refused to submit a question of law under s 5B because he considered the question unarguable had 'effectively refused to exercise his jurisdiction'. Because, on a correct assessment of it, the question of law was arguable, the judge had declined to exercise jurisdiction in circumstances where it should have been exercised. That, it was held, was jurisdictional error."
This treats the issue of whether the condition of engagement of the power conferred by s 5B (has a question of law been proposed by the requesting party) has been satisfied as a jurisdictional fact to be determined by the reviewing court. If, contrary to the analysis set out above, that approach is correct, it is not a proposition which was addressed by Re Berne. Nor is there any subsequent authority which explicitly addresses that issue. Further, as with the other authorities relied on by the applicant, no question was raised in Jankovic as to the effect of the restructuring of s 5B from 1 March 1999, nor the effect of the subsequent amendment in December 2006.
This aspect of the reasoning in Jankovic may have followed from the conclusion that, in determining an appeal from the Local Court under the Appeal and Review Act, the District Court "had no authority to identify the body of evidence that it was to take into account" and therefore "did not have the whole of the hallmark authority referred to by the High Court [in Craig v South Australia]." [49] This characterisation of the District Court's function is untenable; as it appears to have infected the reasoning with respect to jurisdictional error, Jankovic is not an authority which provides assistance in this regard.
As concluded in Mack Fleet Pty Ltd v Transport for NSW: [50] "[20] No doubt the power to submit a question of law under s 5B, or to decline to do so, must be exercised judicially and on the basis of proper considerations which reflect the context and statutory purpose of the power. However, it is within the jurisdiction of the judge who has determined a case to consider whether, in his or her opinion, the question sought to be submitted is indeed a question of law, and was (or would be) material in determining the issues requiring resolution. If not so satisfied, the proper course would be to decline to exercise the power. In considering those matters, the precise terms in which the question was formulated, if not formulated by the judge, would be a matter of some importance. Where the judge has no wish to seek the determination of any question of law, but is requested to submit a question in a form which does not, in the judge's view, satisfy the requirements of the section, there can be no obligation either to submit the question or to enter into negotiations with the requesting party as to the form of the question."

Application of principles

As the brief chronology noted above discloses, on 31 July 2019 the District Court judge heard the applicant's appeal from his conviction in the Local Court. The defendant did not give evidence in the Local Court, nor in the District Court. Indeed, he appears not to have attended the hearing in the District Court. He did not attend for the delivery of judgment either.
The request to state a case incorrectly asserted that "any application for a stated case is required to be made within 28 days of judgment or such further time as the Court of Criminal Appeal may allow." Rather, s 5B required that the questions of law were to be submitted to the Court of Criminal Appeal within 28 days of the judgment, or such further time as the Court of Criminal Appeal may allow. There is an implied requirement that any request be made, with a draft stated case and containing the relevant questions, in sufficient time to allow the judge, if so minded, to submit the questions within the prescribed period: the timing of the request did not comply with that requirement.
The questions of law set out in the request were as follows: "1. Did I err in determining that the Appellant should be convicted of a charge pursuant to s 193C in concluding that the charge of Deal with Property Reasonably Suspected of being the Proceeds of Crime was established on the basis that the cash dealt with by the Appellant might reasonably be suspected of being proceeds of crime notwithstanding the Prosecution's failure to allege or point to any possible antecedent serious crime or class of crime from which the cash might reasonably be suspected of having derived from, directly or indirectly? 2. Did I err in holding that, on the true construction of 193C(3(e)) of the Crimes Act 1900, the application of that provision in support of the Prosecution case does not require the Prosecution to tender evidence of the Appellant's income and expenditure over a reasonable period within which the dealing occurred? 3. Did I err in law in holding that, on the true construction of 193(4) a defendant is required to, when asserting the defence provided by that subsection, show on the balance that either: a. There is in the case no factual basis for conjecture or surmise for the property being proceeds of crime; or b. The Appellant's income and assets are from grossly inappropriate to the value in question."
It would have been open to the judge to decline to submit questions in that form. As the courts have observed on more than one occasion, the formula "Did I err in determining" or "Did I err in law in holding that" is generally inapt to identify a question of law. [51] The applicant sought to reformulate the questions in this Court. Neither reformulation clearly identified a question of law, but the exercise was in any event futile; the repository of the power to submit a question of law was the District Court, not this Court. The judge did not commit a jurisdictional error in failing to submit a question not before her. No doubt she had power to identify a question of her own motion, but no obligation to do so. (That power may have been spent once final orders were made.)
On the facts, the case was one in which the appellant was apprehended by police in possession of $165,000 in cash, near an apartment suspected of being the location of drug dealing, and in circumstances where pieces of paper had been found identifying drugs and prices, including references to 1kg of cocaine costing $165,000. There was also evidence as to the response of the appellant when stopped by police, including his admission that it was all his money, that he had "just recently picked it up" that it was "about $100 plus", and, inconsistently, that he had "had it for a very long time". Although the appellant was leaving the location of suspected drug dealing with the money, the appellant's argument on the appeal was that the money might have been in the appellant's possession for the purpose of purchasing drugs, and was therefore not shown to be "the proceeds of crime".
The offence pursuant to s 193C(1) of the Crimes Act required only that there be "reasonable grounds to suspect" that the money was the proceeds of crime. There was a defence provided by s 193C(4), "if the defendant satisfies the court that the defendant had no reasonable grounds for suspecting that the property was substantially derived or realised, directly or indirectly, from [unlawful activity]." The appellant did not give evidence, and it was open to the judge to reject the evidence given by his mother as providing a basis upon which the defence could have been made out. There was undoubtedly evidence upon which it was open to the judge to draw the necessary inferences as to reasonable suspicion as to the money being derived from criminal activity. The issues in dispute were entirely factual. It was therefore open to the judge to decline to submit the questions to the Court of Criminal Appeal on the basis that they did not identify any error of law arising on the appeal.
The summons seeking judicial review in this Court's supervisory jurisdiction identified a single ground, namely the judge's failure "to provide reasons in refusing to exercise the Court's jurisdiction to state a case to the Court of Criminal Appeal".
It is true that the judge provided no reasons; it is also true that she was not requested to do so. The day following the emailed request to submit a question of law, the judge's associate replied stating that "her Honour has considered your application however she is not prepared to state a case." The appellant's solicitor took the matter no further until, almost three months later, the present proceedings were commenced.
The ground identified in the summons was dealt with only in the final substantive paragraph of the appellant's written submissions. The failure to provide reasons was relied upon as support for the primary submission, that the judge had no good reason to refuse the request.
The bulk of the submissions for the applicant comprised a challenge to the factual findings in the judgment dismissing the appeal, in support of the proposition that there was "no good reason not to state a case".
On the basis that to engage s 5B the judge was to be satisfied that the request identified a question of law arising on the appeal, it is not possible to infer that she misapprehended her function in refusing the request. In the absence of reasons, the decision was not unexaminable in the supervisory jurisdiction. However, it remained necessary for the applicant to establish jurisdictional error on the part of the judge. It would not, for example, be jurisdictional error for the judge to misapprehend the precise question sought to be raised by the syntactically obscure and imprecise questions in the request. In effect, the applicant's case must depend on the principles outlined by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation: [52] "If the result appears to be unreasonable on the supposition that [the judge] addressed [herself] to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which [she] has gone wrong. It is enough that you can see that in some way [she] must have failed in the discharge of [her] exact function according to law."
No such inference is available in the present case, in circumstances where (i) the request identified no clear question of law; and (ii) the appeal was almost entirely concerned with inferences drawn from facts. Further, the judge would have been entitled to take into account the delay and the apparent lack of justification for any delay. The need to obtain a written transcript of the judgment was no justification in circumstances where judgment was given in the presence of the applicant's legal representatives, who were therefore able to note the reasons given. It was not immaterial that the issues agitated on the present application, by senior counsel for the applicant, were agitated by him at the hearing of the appeal in the District Court. No application was made in the course of the hearing for submission of any question of law to the Court of Criminal Appeal. Junior counsel who had appeared at the hearing appeared to take the judgment. She did not make any application at the conclusion of the proceeding on that day, either before or after orders were made, for the submission of a question.
In these circumstances, this Court cannot be satisfied that any jurisdictional error was made by the District Court judge in refusing to submit a question of law to the Court of Criminal Appeal.

Conclusion

There being no jurisdictional error on the part of the District Court judge, the application for judicial review must be refused. The applicant must pay the respondent's costs in this Court.
LEEMING JA: I agree with Basten JA. Insofar as my reasons in Landsman v Director of Public Prosecutions [2013] NSWCA 369 as to the effect of s 5B are to the contrary, they were reached without the benefit of the historical analysis of s 5B contained in Basten JA's reasons for judgment, and I respectfully think that they cannot survive that analysis.
McCALLUM JA: I agree with Basten JA. As to his Honour's analysis of the reasoning in Jankovic, I would confine my own reasoning to the consideration that no question was raised in that case as to the effect of the restructuring and subsequent amendment of s 5B. I otherwise agree with his Honour's reasons and would add only one observation.
In Landsman, Macfarlan JA (with whom Leeming JA and Simpson J agreed at [32] and [39]) remarked at [16]: "In these circumstances, the ability and duty of a District Court judge to submit to the Court of Criminal Appeal for determination any question of law arising in an appeal to the District Court in its criminal (and special) jurisdiction is of considerable importance".
The circumstances to which his Honour referred were the fact that no further appeal lies from such an appeal to the District Court and the privative clause (s 176 of the District Court Act). The force of his Honour's remarks is not undermined by our different conclusion as to the scope of the power to decline to submit a question of law under s 5B of the Criminal Appeal Act. On the contrary, as Basten JA's discussion of the legislative history reveals, the designation of the District Court judge as the repository of the power (in effect) to determine the finality of his or her own decision emphasises the importance of that power and the recognised requirement that it be exercised judicially and on grounds that accord with the scope and object of the Criminal Appeal Act.

Endnotes

Uniform Civil Procedure Rules 2005 (NSW), r 59.10.
District Court Act 1973 (NSW), s 8(2).
(1945) 46 SR (NSW) 58 at 60-61.
(1851) 11 CB 755 at 773.
G D Woods, A History of Criminal Law in New South Wales: The Colonial Period 1788-1900 (The Federation Press, 2002) pp 253-255, 325-326, 335-357, 371-372; W Cornish et al, The Oxford History of the Laws of England: Vol XI 1820-1914: English Legal System, (Oxford University Press, 2010) pp 492-498, 804-808.
In relation to the UK, see, for example, C Stebbings, Legal Foundations of Tribunals in Nineteenth Century England (2006, Cambridge University Press) Ch 6 Judicial Supervision, esp pp 237-247; Cornish et al, The Oxford History of the Laws of England, pp 128-130 in Part 1 Criminal Law, K Smith; G D Woods, A History of Criminal Law in New South Wales - Vol 2 (Federation Press, 2018) pp 245-247.
10 Geo IV, No 7 (1829).
22 Vic No 18.
District Courts Act, s 25.
Conway v The Queen (2002) 209 CLR 203; [2009] HCA 2 at [7]-[10].
Alex C Castles, An Australian Legal History, (LawBook Co, 1982) p 202.
Reserved Criminal Cases Act, 1849, 13 Vic No 8, s 1.
See fn 10 above.
Before 1848, the Court for Crown Cases Reserved was not in fact a court. Hence the remark of Park J in R v Parry, Rea and Wright (1837) 7 Car & P 836 at 841, "We cannot grant a venire de novo, because we are not a Court of Justice - we are merely advising the learned Judge who tried the case; [1837] 173 ER 364 at 367.
11 & 12 Vict c 78.
R v Keyn (1876) LR 2 Ex D 63 is a famous example of all 15 judges hearing a question referred.
Stephen, A History of the Criminal Law of England, (1883), vol 1 at 312.
Justices Appeal Act of 1881, 45 Vic No 4, s 1.
Justices Acts Amendment Act, s 9.
Crimes (Amendment) Act 1924 (NSW), s 33.
Crimes (Amendment) Act 1929 (NSW), s 17.
Child Welfare Act 1939, s 176.
Crimes (Amendment) Act 1951 (NSW), s 7(b).
(1955) 92 CLR 496 at 511 (Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ); [1955] HCA 4.
Ward at 501.
(1907) VLR 368 at 373.
(1880) LR 5 AC 214 at 235.
(1928) 28 SR (NSW) 543 (Ferguson J, James and Campbell JJ concurring).
Roberts at 544-545.
[1974] 1 NSWLR 702 at 706B.
(1966) 85 WN (Pt 1) (NSW) 159.
(1995) 80 A Crim R 160 at 165.
(2007) 69 NSWLR 547; [2007] NSWCCA 185.
(1995) 80 A Crim R 160 at 165-166 (Kirby P, Priestley and Powell JJA relevantly agreeing).
NSW Legislative Council, Parliamentary Debates (Hansard), 17 September 1998, p 7594 at 7598.
Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW), Sch 2.2[2].
Ward at 506-507.
Ward at 508.
[2013] NSWCA 369.
[2020] NSWCA 31.
See, for example, Cassell v Director of Public Prosecutions (1995) 80 A Crim R 160; West v Commonwealth Director of Public Prosecutions [1999] NSWCA 398 at [19], cases predating the 1999 and 2006 amendments, but cited thereafter.
[2001] NSWCA 140; 120 A Crim R 225.
Charara at [35].
[2012] NSWCA 302; 222 A Crim R 286.
(2012) 82 NSWLR 568; [2012] NSWCCA 61.
(2014) 88 NSWLR 534; [2014] NSWCCA 328 at [27] (Beazley P, Hidden and Fullerton JJ agreeing).
Charara at [63].
[2020] NSWCA 31 at [92].
Jankovic at [80]; Craig v South Australia (1995) 184 CLR 163; 179-80; [1995] HCA 58.
[2020] NSWCA 149.
Robinson v Woolworths Ltd (t/as Woolworths Plus Petrol Werrington) (2005) 64 NSWLR 612; [2005] NSWCCA 426 at [8]; Sasterawan v Morris at [15].
(1949) 78 CLR 353 at 360; [1949] HCA 26.

Amendments 07 August 2020 - [17] - "1949" in quotation replaced with "1849". DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 August 2020

Child Welfare Act 1939(NSW)

Crimes (Amendment) Act 1924(NSW)

Crimes (Amendment) Act 1929(NSW)

Crimes (Amendment) Act 1951(NSW)

Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006(NSW)

Justices Act 1901(NSW)

Justices Act 1902(NSW)

Workmen's Compensation Act 1926(NSW)

Public Health Act 1902(NSW)

Interpretation Act 1897(NSW)

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