Franklin v Director of Public Prosecutions [2022] NSWCA 58 | Case summary

Franklin v Director of Public Prosecutions [2022] NSWCA 58 | Case summary | Zoe

Judgment (14 paragraphs)

[1]

Kirk v The Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Landsman v Director of Public Prosecutions [2013] NSWCA 369 Lynch v His Honour Judge Cameron-Smith (NSWCA, Reynolds, Glass and Samuels JJA, 29 April 1982, unreported); (1982) 6 Petty Sessions Review 2565 Macdougall v Paterson (1851) 11 CB 755; 138 ER 672 Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149; (2020) 93 MVR 242 McDonald v Cogill (NSWCA, Moffitt P, Samuels JA and Mahoney JA), 13 October 1978, unreported) McGavin, ex parte; Re Berne (1945) 46 SR(NSW) 58; 63 WN(NSW) 45 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 Mraz v R (1955) 93 CLR 493; [1955] HCA 59 Neyland v Neyland (1956) 56 SR (NSW) 284 Nitiva v Director of Public Prosecutions (1999) 29 MVR 471; [1999] NSWCA 332 Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7 Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398; [2012] HCA 25 Quinn v Commonwealth Director of Prosecutions [2021] NSWCA 294; [2022] ALMD 65 R v Lazarevic (1966) 85 WN (Pt 1) (NSW) 159 R v Shoreditch Assessment Committee [1910] 2 KB 859 R v Sirocic (2000) 32 MVR 165; [2000] NSWCCA 327 Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337 Ward v Williams (1955) 92 CLR 496; [1955] HCA 4 West v Commonwealth Director of Public Prosecutions [1999] NSWCA 398 Wilde v R (1988) 164 CLR 365; 76 ALR 570; [1988] HCA 6 Texts Cited: NSW Legislative Council, Parliamentary Debates (Hansard), 17 September 1998, p 7594 NSW Legislative Council, Parliamentary Debates (Hansard), 23 November 1998, pp 10414-10416 Category: Principal judgment Parties: Craig Andrew Franklin (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: C Franklin (self-represented) (Applicant) E Balodis (First Respondent)

[2]

Solicitors: Office of the Director of Public Prosecutions (First Respondent) Crown Solicitor's Office (Second Respondent) File Number(s): 2021/234658 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 12 July 2021 Before: Bourke SC DCJ File Number(s): 2016/348410

[3]

[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.]

[4]

HEADNOTE [This headnote is not to be read as part of the judgment] On 5 December 2019, the applicant Craig Andrew Franklin was convicted in the Local Court of common assault of his former wife on 2 September 2016, contrary to s 61 of the Crimes Act 1900 (NSW). On appeal to the District Court Mr Franklin sought leave pursuant to s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW) to tender evidence not before the Local Court, including a case note report which referred to a telephone call Mr Franklin made to the Department of Corrective Services concerning the incident the subject of the assault charge. Judge Bourke refused leave to tender the report and subsequently dismissed the appeal. Mr Franklin thereafter requested the Judge to state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW), in relation to ten questions, one of which concerned the report. His Honour refused the application on the basis that the questions were not questions of law, as s 5B of required them to be. Mr Franklin then sought judicial review of that decision in this Court which found that, contrary to Judge Bourke's decision dated 19 May 2020, the question concerning the admissibility of the case note report was a question of law, and accordingly set aside the decision and remitted the matter to the District Court "to be dealt with according to law" ("Franklin No 1") ([2021] NSWCA 83). Judge Bourke considered the reasons given by this Court but then declined for a second time to state a case to this Court as his Honour considered that the admission of the report into evidence would have made no difference to the outcome of the appeal against Mr Franklin's conviction. In the present proceedings, Mr Franklin sought judicial review under s 69 of the Supreme Court Act 1970 (NSW) of the second decision of Judge Bourke dated 12 July 2021. There is no right to judicial review of a determination of the District Court on an appeal from the Local Court unless jurisdictional error is demonstrated (see District Court Act 1973 (NSW), s 176). The primary issue on appeal therefore was whether Judge Bourke fell into jurisdictional error on the basis that he denied Mr Franklin procedural fairness or in declining to exercise the function of a District Court judge under s 5B of the Criminal Appeal Act 1912 (NSW). The Court (Basten JA and Macfarlan JA; Brereton JA dissenting) dismissed the appeal with costs: [21], [47]. (Per Basten JA): Section 5B of the Criminal Appeal Act does not confer a statutory right of appeal: [3]-[4]. It confers on the appeal judge, and not the reviewing court, the determination of materiality: [17]. There is no basis to conclude that Judge Bourke misconceived the function he was exercising so as to constitute a jurisdictional error: [19], [20]. Judge Bourke was entitled to conclude that even if the case note report had been admitted it would not have affected the outcome of the case: [19]. (Per Macfarlan JA): Judge Bourke did not deny Mr Franklin procedural fairness: [35]. First, there was no basis for concluding that Judge Bourke prejudged the issue of whether to state a case: [31]-[32]. The fair-minded lay observer would not have had any reasonable apprehension that, because Judge Bourke had previously dismissed the stated case application, he would not reconsider that application on its merits, as directed by the Court of Appeal: [32]. Secondly, there was no reasonable basis for thinking, as Mr Franklin asserted, that Judge Bourke refused the stated case application "for the purpose of avoiding the Court of Criminal Appeal having the opportunity to determine whether he had erred in law on the principle of admissibility of business records": [33]. Judge Bourke did not fall into jurisdictional error on any other basis: [46]. Contrary to Mr Franklin's submission, Judge Bourke had a discretion under s 5B of the Criminal Appeal Act to decline for a second time to state a case as the effect of Franklin No 1 was not to require his Honour to automatically state a case: [36]-[40]. If this Court had considered that statement of a case was the only determination that should have been made then it could have exercised its powers under s 69(3) of the Supreme Court Act to make that order itself: [37]. Judge Bourke was entitled to conclude that a statement of a case would be futile because an answer to the question of law in favour of Mr Franklin would not have affected the result of the conviction appeal: [41]. Even if Judge Bourke erred by taking into account a factor that was not relevant, this did not amount to a jurisdictional error: [43], [46]. (Per Brereton JA, contra): The orders of this Court in Franklin No 1 did not require Judge Bourke to automatically state a case; it quashed the prior decision and required the power to be exercised afresh "according to law" but did not otherwise confine the re-exercise of the power: [69]. As to the nature of the power conferred by s 5B of the Criminal Appeal Act, until recent years there has been a well-established line of authority to the effect that a judge, once requested to do so by a party, is obliged to state a case to the Criminal Court of Appeal, so long as the question is one of law arising in the District Court appeal, unless its submission would be an abuse of process: [75]-[104]. Since 2020, several decisions have held that a determination by a District Court judge as to whether to state a case is a discretionary one and any error as to whether a proposed question is a question of law is not a jurisdictional one: [105]-[116]. However, the import of the earlier line of authorities is that the power to state a case is not a discretionary one attended by a range of potentially relevant considerations, but one that must be performed once the conditions for its exercise are established: [121]. Thus, if the jurisdiction of the court is engaged but the judge declines to exercise it on the basis that it has not been engaged, then that amounts to a jurisdictional error: [125]. For the purpose of jurisdiction under s 5B, the touchstone of the jurisdiction is the existence of a question of law arising on the appeal: [127]-[129]. An incorrect answer to that question means that a judge wrongly assumes, or refuses to exercise, jurisdiction; that is not a mere error of law, but one which goes to jurisdiction: [127], [146]. In the present proceedings, Judge Bourke committed a jurisdictional error by treating as a discretionary consideration the question of materiality, that is, whether the admissibility of the case note report was capable of affecting the outcome of the appeal: [132]-[135]. The test is whether the wrongly excluded evidence could not have, as opposed to would not have, resulted in a different outcome: [134]. If the question were referred to it, this Court would, if satisfied that the evidence had been wrongly excluded, quash the conviction and remit the appeal for rehearing by a different judge who had not already made up his or her mind: [134]. Furthermore, an apprehension of bias reasonably arises from the same judge's determination of the appellant's guilt: [137]. It was not for Judge Bourke, after already having expressed himself to be satisfied beyond reasonable doubt of the applicant's guilt, to determine that upon reviewing the whole of the evidence, including that which he had wrongly excluded, he would still have been of that opinion: [136]. A reasonably minded lay observer might well apprehend that, having already decided that an appellant was guilty beyond reasonable doubt, the same judge might not be able to bring an impartial mind to the question whether he was still so satisfied having regard to an additional piece of evidence pointing in the opposite direction: [141]. Judge Bourke's second refusal to state a case should be quashed and the matter remitted to the District Court to state a case: [149].

[5]

Judgment

BASTEN JA: The applicant, Craig Andrew Franklin, stands convicted on one charge of assault, the victim being his former wife. He was convicted in the Local Court and appealed to the District Court. The District Court rejected the appeal. Mr Franklin sought to have the District Court judge submit a question of law to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). Judge Bourke, who had heard the appeal, declined to do so. That decision was set aside by this Court on an earlier occasion and the matter remitted to Judge Bourke. [1] The judge took careful account of the reasoning of this Court, but again refused to state a case. The applicant now seeks to set aside the judge's second decision.
I agree with Macfarlan JA that the summons must be dismissed. As the Court is divided, I add the following further observations.
There is no statutory appeal from a judgment of the District Court in a criminal matter on appeal from the Local Court. However, s 5B of the Criminal Appeal Act permits a judge to "submit any question of law arising on any appeal … to the Court of Criminal Appeal": s 5B(1). A party to the appeal may "request" the judge to submit a question of law: s 5B(2).
The language of s 5B is self-evidently inapt to confer a right on a party to the appeal. Its effect is to provide an opportunity for a party to have questions of law determined by the Court of Criminal Appeal, but to do so the applicant must demonstrate to the judge who heard the appeal in the District Court that there is a relevant "question of law", and it is a question of law "arising on" the appeal. The District Court thus performs a gate-way control function.
In the recent decision of Gibson v Director of Public Prosecutions (NSW) (No 2) [2] Bell P, quoting a passage from Forrest v Director of Public Prosecutions (NSW), [3] stated: "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 one criterion of engagement expressed in this passage, namely that "the judge has mistaken his or her function". It must have a consequence, namely exceeding or failing to exercise the Court's jurisdiction. However, it is an error to read that passage as stating three separate and independent criteria of engagement, namely mistaking a function, exceeding jurisdiction, or failing to exercise jurisdiction. The reasons given by the District Court judge in the present case reveal no basis for concluding that he mistook the function he was required to consider under s 5B of the Criminal Appeal Act.

[6]

Mr Franklin's bias claims

In support of his application to this Court under s 69 of the Supreme Court Act Mr Franklin first contended that Judge Bourke fell into jurisdictional error by denying him procedural fairness as a result of the judge being biased when determining Mr Franklin's application for a stated case or alternatively in determining it in circumstances where a fair-minded lay observer might have had a reasonable apprehension of bias. It is not entirely clear whether Mr Franklin did in fact allege actual bias on the part of Judge Bourke but, to the extent that he impliedly did so, the contention should be rejected as there is no evidence to support it.
The principles applicable to allegations of apprehended bias were recently summarised by the High Court in Charisteas v Charisteas [2021] HCA 29 at [11]; (2021) 95 ALJR 824, and are as follows: "…The apprehension of bias principle is that 'a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide'. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial - that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, 'it requires the identification of what it is said might lead a judge… to decide a case other than on its legal and factual merits'; and, second, there must be articulated a 'logical connection' between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed." (Citations omitted.)
The first basis on which Mr Franklin submitted that these principles were satisfied was that a fair-minded lay observer might reasonably have apprehended that, as Judge Bourke had previously refused to state a case in respect of question (d), his Honour had prejudged the issue that he was required by the Court of Appeal decision in Franklin No 1 to re-decide (that is, to determine whether to state a case in respect of question (d)).
I reject that submission. The Judge had relevantly only determined previously the issue of whether question (d) was a question of law. He had not determined the issues he decided on 12 July 2021 of whether, as a matter of discretion, he should order a case to be stated and whether the admission into evidence of Ms Buckley's report would have made any difference to the outcome of the appeal. Assuming, as is appropriate, that the fair-minded observer would have been apprised of what had occurred in the courts, that person would in my view not have had any reasonable apprehension that Judge Bourke might have prejudged the relevant issues. That is to say, the fair-minded lay observer would not have had any reasonable apprehension that, because Judge Bourke had previously dismissed the stated case application, he would not reconsider that application on its merits, as directed by the Court of Appeal. There is therefore simply no basis on which it could be concluded that a fair-minded observer might have apprehended that Judge Bourke would, or might, fail in this way to perform his judicial duties.

[7]

Whether jurisdictional error on any other basis

Mr Franklin submitted that the effect of this Court's decision in Franklin No 1 was that, on remission to him, Judge Bourke was required automatically to state a case to the Court of Criminal Appeal in respect of question (d), which this Court had found was a question of law. Thus, Mr Franklin submitted that at that point Judge Bourke had no discretion to decline to state a case.
This Court did not however say or infer in Franklin No 1 that this is what should occur on remission to the District Court. Its order (and the preceding statement in [91] of its reasons) indicated that on remission to the District Court the stated case application was "to be dealt with according to law". If the Court had considered that statement of a case should follow automatically from its decision, it could have, and no doubt would have, exercised the jurisdiction conferred on it by s 69(3) of the Supreme Court Act which permits the Court to make the order that should have been made in the primary court where the Court considers "that, as a matter of law, only one particular determination should have been made by the court or tribunal".
There was therefore no indication that the Court intended to contradict the approach identified in Forrest (see [6] above) that Judge Bourke followed. The correctness of that approach was later confirmed in Gibson v Director Public Prosecutions (NSW) (No 2) [2021] NSWCA 218 where Basten JA said (with the concurrence of Meagher JA): "[40] The role of a District Court judge in deciding whether or not to submit a question of law to the Court of Criminal Appeal has been considered in a number of recent judgments of this Court, including Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149; (2020) 93 MVR 242, Forrest v DPP (NSW) [2020] NSWCA 162 and Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83. (A case of similar vintage, Jankovic v Director of Public Prosecutions [2020] NSWCA 31; (2020) 281 A Crim R 378, was not followed in a material respect in Forrest.) Subject to a qualification with respect to one aspect of the reasoning in Franklin, the following principles emerge: (1) Section 5B confers a power on a District Court judge determining an appeal from the Local Court in a criminal matter to submit a question of law 'arising on' the appeal to the Court of Criminal Appeal. (2) A party to the District Court appeal may 'request' the judge to submit a question of law: s 5B(2). If that step is taken after final orders have been made in the District Court, the Court of Criminal Appeal may quash the order of the District Court: s 5B(3). (3) If the District Court exercises the power of its own motion under subs (1), that step will generally be taken before any final order is made. If the submission of the question occurs pursuant to a request under subs (2), the question must be submitted either before, or within 28 days after, the final order. (4) When a request is made in accordance with subs (2) the judge has an obligation to consider the request: that exercise will involve the judge forming a state of satisfaction as to: (a) whether at least one of any proposed questions is a 'question of law'; (b) whether the question arose on the appeal, in the sense that the answer to the question was capable of affecting the outcome; (c) whether the question was one as to which there was a real doubt as to the correct answer; and (d) if the request were made near or after the expiry of the 28 day period, so that the party seeking the submission would need to obtain an extension of time from the Court of Criminal Appeal, whether there was a reasonable prospect of such an extension being granted. (5) If the District Court judge were not satisfied as to any one or more of the factors set out in (4), the judge would be justified in refusing to comply with the request. If generally satisfied in relation to each matter, the power to submit the question or questions will be engaged: it will remain a discretionary decision for the judge, although one which must be exercised judicially. [41] The operation of section 5B is to be viewed in the context of three overarching considerations. First, section 5B does not create a right of appeal, either generally, or limited to a question of law. Rather, it confers a power on the District Court judge to submit questions of law, including the authority to settle the form and content of any questions which are to be submitted. [42] Secondly, satisfaction as to the factors set out [in] (4) above are matters to be determined by the District Court judge: it is not for this Court on a judicial review proceeding to satisfy itself that, for example, a particular question of law 'arose on the appeal'. This Court can only intervene if a material error (of a kind to be considered further below) had been made by the District Court judge in forming his or her state of satisfaction. To this extent, aspects of the reasoning in Franklin should not be followed. Thus, s 5B does not impose an obligation to submit a case to the Court of Criminal Appeal so long as the questions are 'not obviously frivolous and baseless'. A state of satisfaction may be set aside if formed arbitrarily or capriciously, irrationally, or not bona fide, as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21."

[8]

Order

For the reasons given above, Mr Franklin did not establish that Judge Bourke made any jurisdictional error. As a result, his summons for relief under s 69 of the Supreme Court Act should be dismissed with costs.
BRERETON JA: In the Local Court at Katoomba, on 5 December 2019, the applicant Craig Andrew Franklin was found guilty, convicted, and sentenced (to a Community Corrections Order for a period of 2 years, subject to supervision) in respect of an offence of common assault (contrary to s 61 of the Crimes Act 1900 (NSW)), in that he assaulted his then wife during an argument about money in the early hours of the morning on 2 September 2016. The prosecution case was that Mr Franklin pushed and shoved his wife repeatedly as she tried to access the couple's safe, causing her to fall backwards; that each time she tried to stand up, he pushed her back down; that she ultimately ceased to try to access the safe, but endeavoured to gather some papers from the floor; that at this point the applicant grabbed her shoulders and shoved her to the floor, and then dragged her out of their bedroom by one arm. The complainant did not sustain any injuries. Mr Franklin did not give evidence in his defence, but his case, as appears from his cross-examination of the complainant, was that it was she who was the aggressor; that she was 'out of control' and assaulted him, and threatened to (falsely) accuse him of assault.
Before the Magistrate, Mr Franklin tendered a "Case Note Report" dated 2 September 2016 from the records of the Department of Corrective Services, prepared by Ms Buckley, an officer of Lithgow Community Corrections, under whose supervision Mr Franklin then was in respect of a prior matter, which recorded a "Phone call from offender", as follows: "Craig phoned sounded stress[ed] and crying on phone … Stated Emma having been displaying negative behaviour and they have been arguing after finances - stating she wanted a divorce. [T]hrew off her rings and threw them at him ... Craig contacted parents … and has asked for help. Directed Craig to leave the premises … He spoke with his father and he followed his advice and left and avoided him she chased him to bathroom and threatened him. The previous night Emma accused Craig of having an affair with on line(sic) student. Emma was moving around cupboards with her clothes in them. Out of control kicking and screaming. She was sleeping in the spare room at the rear of the house. Emma encouraged Craig to punch her, she commenced punching him she kicked him in the genitals and them(sic) commenced rummaging through the desk looking for money … Made threats to Craig saying she was going to call the Police and make an allegation that Craig had assaulted. Fearful of leaving his daughter. Emma went to work then came home - had told their daughter she was moving to her new home."

[9]

The remit to the District Court judge

Insofar as the applicant submits that the District Court judge was effectively required by the orders of this Court in Franklin No 1 to state a case, and was not entitled to decline to do so on grounds which had not hitherto been relied upon, I do not agree. The order of this Court did not in terms require the District Court Judge to state a case. It quashed the prior decision not to do so, and required that the power be exercised afresh. The order did not otherwise confine the re-exercise of the power, save that it be "according to law". To the extent that that there was any ground upon which the judge might properly decline to do so - other than that the question was not one of law, that having been resolved - that course remained open.
That, however, directs attention to the nature of the function of a District Court Judge who is requested to state a case under s 5B, and the grounds if any upon which a judge so requested may decline to do so.

[10]

The function of the District Court judge under s 5B

In this State, there is no general right of appeal from an adjudication of the District Court on an appeal from the Local Court. Nor is there any right of judicial review, except for jurisdictional error: District Court Act 1973 (NSW), s 176, provides: "No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court."
However, s 5B of the Criminal Appeal Act 1912 (NSW) provides a limited avenue of review, confined to a question of law, by way of stated case, in its current form as follows: "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."
For the following review of s 5B and its history I am considerably indebted to the judgment of Basten JA in Forrest, [19] notwithstanding that I am unable to share some of his Honour's conclusions.
Section 5B was introduced into the Criminal Appeal Act in 1924. [20] Its original form contained only subs (1). Although it provided no express power to quash any order made by Quarter Sessions (to which, rather than the District Court, it then applied), it provided that the question submitted was to be dealt with "as if it were an appeal under this Act." In 1929, an amendment added 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] A further amendment in 1939 gave the power to a Chairman of Quarter Sessions rather than to the Court. [22]

[11]

Was there jurisdictional error here?

As has been seen, Judge Bourke disposed of the application on the basis of the second factor referred to by Basten JA in Forrest, namely whether the question arose on the appeal, in the sense that the answer to the question was capable of affecting the outcome. Insofar as his Honour treated that as a discretionary consideration, that approach was inapt. If his Honour believed that he was exercising a discretion, he misconceived his function and erred as to his jurisdiction.
However, the second factor referred to by Basten JA in Forrest may properly be seen not as a discretionary consideration, but as referable to whether the second condition of the power was satisfied - namely whether the question 'arose'. A question will not arise if it is hypothetical and unnecessary to the resolution of the appeal. A judge is not only justified in not referring such a question, but because it does not "arise" in the relevant sense, may not do so.
Thus, if the judge, having rejected the tender of the Case Note Report, had nonetheless allowed Mr Franklin's appeal and quashed the conviction, the question would not arise in the relevant sense, because if admitted the document could only have supported the decision which was in any event reached. Likewise, a question concerning the admissibility of evidence tendered by the prosecution but rejected would not arise if the appeal were dismissed and the conviction confirmed. In either case, it would, to use the term employed by Leeming JA in Landsman, [86] be "futile" to state a case. However, I do not accept that where, as here, the question of law is one as to the admissibility of relevant evidence which points in the opposite direction from the ultimate outcome of the appeal, the tender of which has been rejected, it is open to hold that the question does not arise. If the question were referred, the Court of Criminal Appeal would, if satisfied that the evidence had been wrongly excluded, quash the conviction and remit the appeal for rehearing, and by a different judge. The applicant would be entitled to be judged on all the properly admissible evidence, by a tribunal which had not already made up its mind, albeit only on some of that evidence. This is analogous to the position in a criminal appeal, where evidence tendered for the accused is found to have been wrongly excluded: there would at the least be a new trial, before a differently constituted tribunal of fact, unless the proviso were engaged, which would be so only if it could be said that the wrongly excluded evidence could have made no difference, so that even if it had been admitted the jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused; otherwise, the conviction must be set aside. [87] In that context, the question is not whether the wrongly excluded evidence would not have resulted in a different outcome, but whether it could not have done so.

[12]

Conclusion

My conclusions may be summarised as follows:
The earlier remitter from this Court did not command the District Court Judge to state a case, but required the power to do so to be exercised afresh, "according to law". Insofar as there was any ground upon which the judge might properly decline to do so - other than that the question was not one of law, that having been resolved - it remained open.
Exercising the power according to law, the judge was obliged to state a case if the conditions which enlivened it were satisfied, unless to do so would amount to an abuse of process. Those conditions are that the question be one of law, and that it arises in the proceedings, in the sense that it is necessary to the decision. If the District Court judge declines to state a case on the basis that no question of law arising on the appeal has been identified, that is a holding that there is no jurisdiction to refer the question, and if incorrect is jurisdictional error amenable to review notwithstanding District Court Act, s 176.
Franklin No 1 resolved that question (d) was one of law. If his Honour regarded the "materiality" of the question as a relevant discretionary consideration, his Honour mistook the function to be performed, which was not discretionary. If the judge's refusal to state a case is to be understood as determining that the second condition was not satisfied, in that the question did not arise in the relevant sense, his Honour was in error. Whether relevant evidence which might have raised a reasonable doubt as to the appellant's guilt was wrongly excluded as hearsay is a question which arose in the proceedings.
His Honour therefore declined to state a case, either on the incorrect basis that no question of law arising on the appeal had been identified, thus wrongly holding that there was no jurisdiction to refer the question; or wrongly supposing that his function was a discretionary one, when it was his duty to refer the question. In either case, that was jurisdictional error, and is amenable to review.
In my judgment, therefore, the District Court judge's second refusal to state a case on question (d) should be quashed, and the matter remitted to the District Court to state a case.

[13]

Endnotes

Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83.
(2021) 105 NSWLR 434; [2021] NSWCA 218 at [33].
[2020] NSWCA 162; 286 A Crim R 191 at [47].
District Court Act 1973 (NSW), s 8(2).
Owners of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404 at 421; [1994] HCA 54.
(1938) 59 CLR 369 at 391; [1938] HCA 7.
Gibson at [40(4(b))].
Judgment at [28]-[29].
Tcpt, 4 September 2019, p 55.
Tcpt, 4 September 2019, p 56.
Tcpt, 31 July 2020, p 21.
Judgment Tcpt, 31 July 2020, p 2.
Judgment Tcpt, 4 September 2020, pp 3-4.
Franklin v Director of Public Prosecutions [2021] NSWCA 83 (Brereton JA, McCallum JA and Hamill J) ("Franklin No 1").
Tcpt 7 July 2021, p2.08-12.
Tcpt 12 July 2021, p1.45-2.13.
Judgment Tcpt 12 July 2021.
[2020] NSWCA 162 at [48].
Forrest at [8]-[55].
Crimes (Amendment) Act 1924 (NSW), s 33.
Crimes (Amendment) Act 1929 (NSW), s 17.
Child Welfare Act 1939 (NSW), s 176.
(1945) 46 SR(NSW) 58 at 60-61; 63 WN (NSW) 45.
Crimes (Amendment) Act 1951 (NSW), s 7(b).
(1955) 92 CLR 496 at 505-506.
Forrest at [28].
Forrest at [29].
(1971) 127 CLR 106 at 134-135.
(1851) 11 CB 755;138 ER 672.
(1971) 127 CLR 106 at 138-139.
Julius v Bishop of Oxford (1880) 5 App Cas 214.
NSWCA (Moffitt P, Samuels JA and Mahoney JA), 13 October 1978, unreported. See also Lynch v His Honour Judge Cameron-Smith (NSWCA, Reynolds, Glass and Samuels JJA, 29 April 1982, unreported); (1982) 6 Petty Sessions Review 2565.
(1956) 56 SR (NSW) 284 (Street CJ, Herron and Hardie JJ).
(1995) 80 A Crim R 160 at 164-165 (Kirby P; Priestley and Powell JJA agreeing).
As had previously been held in R v Lazarevic (1966) 85 WN (Pt 1) (NSW) 159 (Sugerman J; Brereton and Macfarlan JJ agreeing).

[14]

Amendments 22 March 2023 - [6] - 2nd line inserted "has" after the word "judge". [18] - 1st line - changed "Forrest" to "Gibson" and in fn 7. 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: 22 March 2023

The Court concluded that the decision of Judge Bourke should be quashed insofar as it related to question (d) and ordered that the matter be remitted to the District Court. Its formal order was for the matter to be remitted "to the District Court to be dealt with according to law". The Court's reasoning (per Hamill J, with whom Brereton JA and McCallum JA agreed) was relevantly as follows: "[81] The evidence of Mr Franklin's representations to Ms Buckley was relevant to the issues before the Local Court. It was generally consistent with the case the applicant ran in defence of the charge. Like the 'complaint' evidence adduced by the Prosecutor, it was capable of impacting an assessment of Mr Franklin's credibility. It was potentially important evidence and, if admitted, it had the capacity to impact on the tribunal of fact's determination of whether the case was established beyond reasonable doubt. [82] The question of whether the note was admissible was a question of law. The respondent put an argument to the effect that the issue did not raise a 'pure question of law' but was a question of 'mixed fact and law' because it involved an examination or consideration of the evidence itself. The logical extension of that submission is that no issue of admissibility would fall into the category of question encompassed by s 5B of the Criminal Appeal Act. I am unable to accept that submission. As was put by the presiding Judge at the hearing of the application in this Court: 'If a decision to reject a business record is made solely on the basis that it contravenes the hearsay rule, there's no factual element is there? It's just an error of law.' [83] The respondent also made a somewhat diffident submission to the effect that, perhaps, Judge Bourke determined that the note would not have impacted on his determination of guilt and, therefore, was an inappropriate use of the procedure to state a case. However, there is nothing in his Honour's judgments to suggest this was the basis upon which he rejected the tender or declined to state the case. Rather, the judgment relating to the attempt to tender new evidence held that the note was inadmissible for the reasons provided by the Magistrate … The judgment rejecting the stated case categorised the question as one of mixed fact and law and asserted that it constituted an attempt to convert the stated case procedure into a general right of appeal … [84] There was no other basis, referred to by Judge Bourke or recognised by the authorities referred to… above, upon which to decline to state the question to the Court of Criminal Appeal. The case note was material to the central issues in the case and it could not reasonably be held that the application to state a case in this respect was baseless or frivolous. The failure to recognise that question (d) was a question of law alone, and the fact that it was amenable to the procedure provided for in s 5B of the Criminal Appeal Act, resulted in his Honour failing to exercise the jurisdiction conferred on him by s 5B."

Mr Franklin applied for judicial review of his Honour's refusal to state a case, and, in respect of question (d) only, this Court upheld the application ("Franklin No 1"). [14] Hamill J, with whom McCallum JA and I agreed, said (emphasis added): "[81] The evidence of Mr Franklin's representations to Ms Buckley was relevant to the issues before the Local Court. It was generally consistent with the case the applicant ran in defence of the charge. Like the "complaint" evidence adduced by the Prosecutor, it was capable of impacting an assessment of Mr Franklin's credibility. It was potentially important evidence and, if admitted, it had the capacity to impact on the tribunal of fact's determination of whether the case was established beyond reasonable doubt. [82] The question of whether the note was admissible was a question of law. The respondent put an argument to the effect that the issue did not raise a "pure question of law" but was a question of "mixed fact and law" because it involved an examination or consideration of the evidence itself. The logical extension of that submission is that no issue of admissibility would fall into the category of question encompassed by s 5B of the Criminal Appeal Act. I am unable to accept that submission. As was put by the presiding Judge at the hearing of the application in this Court: "If a decision to reject a business record is made solely on the basis that it contravenes the hearsay rule, there's no factual element is there? It's just an error of law." [83] The respondent also made a somewhat diffident submission to the effect that, perhaps, Judge Bourke determined that the note would not have impacted on his determination of guilt and, therefore, was an inappropriate use of the procedure to state a case. However, there is nothing in his Honour's judgments to suggest this was the basis upon which he rejected the tender or declined to state the case. Rather, the judgment relating to the attempt to tender new evidence held that the note was inadmissible for the reasons provided by the Magistrate: see above at [78]. The judgment rejecting the stated case categorised the question as one of mixed fact and law and asserted that it constituted an attempt to convert the stated case procedure into a general right of appeal: see above at [68]. [84] There was no other basis, referred to by Judge Bourke or recognised by the authorities referred to in [30]-[45] above, upon which to decline to state the question to the Court of Criminal Appeal. The case note was material to the central issues in the case and it could not reasonably be held that the application to state a case in this respect was baseless or frivolous. The failure to recognise that question (d) was a question of law alone, and the fact that it was amenable to the procedure provided for in s 5B of the Criminal Appeal Act, resulted in his Honour failing to exercise the jurisdiction conferred on him by s 5B."

After dealing with the other factors mentioned, the District Court judge turned to "whether the answer to the question, favourably to the applicant, might have been dispositive of the appeal", and proceeded: "[24] … In considering this question I have revisited the evidence heard on the appeal against conviction, the arguments put to me on that appeal and my reasons for dismissing it. [25] I have also had regard to the case note report of Ms Buckley, the terms of which are set out in Hamill J's judgment, and I have operated on the assumption that that document was admissible on the conviction appeal and in the Local Court hearing. The weight to be given to the contents of such a document would ordinarily be affected by whether evidence was led from the author and also whether evidence was given by the person who made the previous representation to the author, in other words the applicant Mr Franklin. Although neither of those persons gave evidence in the Local Court or in the District Court, I have assumed in the applicant's favour that the conversations recorded by Mr Buckley occurred, and occurred in the terms that she has recorded. [26] The representations made by the applicant to Ms Buckley provide some support for the case that the applicant ran in defence of the charge in the Local Court and on the appeal to this Court. [27] Those representations confirm that the applicant, who was evidently upset, had reported an argument and a physical altercation between he and his wife on the night in question. Taken at their highest, the representations provide a version of events from the applicant which support the case he put by means of cross-examination, namely that his wife was the aggressor, was out of control, had assaulted him and had made a threat to falsely accuse him of assault. Furthermore, the fact that the applicant made these complaints promptly not long after the relevant events, is a matter which can be said to add weight to the evidence. [28] However, and as noted in my reasons for dismissing the appeal against conviction I was satisfied, having exercised caution and after examining the complainant's evidence very carefully, that she was both an honest and accurate witness as to the essential aspects of the alleged assault. [29] I came to that view having read the entirety of the evidence and the very lengthy cross-examination of the complainant by the applicant who is a former barrister. That cross-examination included it being put to the complainant that it was she who was the aggressor and the applicant who was the victim of assault. [30] I was also satisfied that each of the "complaint" witnesses were credible and reliable. As stated in my reasons for dismissing the conviction appeal, I also noted that the magistrate, who had the benefit of hearing evidence over five days spread over a period of 18 months and observing the complainant give evidence over two days, had also formed the opinion that the complainant was an honest and reliable witness. The magistrate also, after observing the lengthy cross-examination of the complaint witnesses, formed a positive view about the credit of those witnesses. [31] As I have said I shared and still share those views. Having taken into account the terms of Ms Buckley's note on the assumption that it was admissible and was admitted in the proceedings I nonetheless remain satisfied beyond reasonable doubt of the essence of the complainant's version of events about the assault, and I remain satisfied beyond reasonable doubt that the offence is made out. [32] In those circumstances, it would be inappropriate in my opinion to accede to the request to state a case in relation the [sic] Question (d) because the admission of the evidence contained in Ms Buckley's note would have made no difference to the outcome of the appeal against conviction."

In that form it was, as appears below, set out and considered by Jordan CJ in Ex parte McGavin; Re Berne ("McGavin"), which founded what became, at least until very recent years, a well-established line of authority to the effect that, once requested to do so by a party, a judge is obliged to refer a question of law to the Court of Criminal Appeal under s 5B, so long as the question is one of law arising in the District Court appeal, unless its submission would be an abuse of process. His Honour said: [23] "… 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 (1851) 11 CB 755 at 773, 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': Cook v Cook (1923) 33 CLR 369 at 377; R v Mitchell [1913] 1 KB 561. Section 23 of the Interpretation Act of 1897 does not prevent the application of this rule, where it is necessary to give effect to the evident intention of the statute: Smith v Watson (1906) 4 CLR 802 at 811, 819, 827. 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."

Subsequently, in Finance Facilities Pty Ltd v Federal Commissioner of Taxation, [28] Windeyer J, with whom Barwick CJ agreed (in the context of a power conferred by the Income Tax Assessment Act 1936 (Cth) on the Commissioner to allow a private company a further rebate if satisfied, inter alia, that the shareholder has not paid a dividend to another private company) said - quoting from the judgment of Jervis CJ in Macdougall v Paterson, [29] on which Jordan CJ had relied in McGavin: "The question then is, must the permitted power be exercised if one of those conditions be fulfilled? This does not depend on the abstract meaning of the word "may" but of whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised - so that in those events the "may" becomes a "must". Illustrative cases go back to 1663: R v Barlow (1663) Carth, 293 (90 ER 773); 2 Salk 609 (91 ER 516). Today it is enough to cite Julius v Bishop of Oxford (1880) 5 App Cas 214; and add in this Court Ward v Williams (1955) 92 CLR 496, at pp 505-506. But I select one other reference out of a multitude: Macdougall v Paterson (1851) 11 CB 755 (138 ER 672). There Jervis CJ said in the course of the argument (1851) 11 CB, at p 766 (138 ER, at p 677) "The word 'may' is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise". And, giving judgment, he said (1851) 11 CB, at p 773 (138 ER, at p 679): "We are of opinion that the word 'may' is not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises." I consider that to be directly applicable to the present case. If the Commissioner, having considered the matter, is satisfied of facts out of which the power to allow a rebate arises, he cannot nevertheless refuse to allow it. That is obvious in the case of condition (c): and it seems to me to be so also in the case of the alternatives (a) and (b)."

Next, in Elias v DPP (NSW), [50] Blanch J, with whom Beazley JA agreed, set out the relevant statement of Jordan CJ in McGavin and observed, without qualification, that it had been applied consistently, referring to Cassell and Charara. Basten JA, with whose additional comments Beazley JA also expressed agreement, added: [51] "[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."

Finally, in Jankovic v Director of Public Prosecutions ("Jankovic"), this Court again applied the McGavin and Cassell approach, also confirming that a refusal to state a case on the basis of an incorrect conclusion that a question is not one of law (or, if it is, an incorrect conclusion that it is frivolous or vexatious) is jurisdictional error. [54] Barrett AJA, with whom Macfarlan JA agreed, said: "[91] A court or tribunal errs in the determination of its jurisdiction if it erroneously decides that the question before it is not of a description that it has power to determine [Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398; [2012] HCA 25]. In the present case, as in West v Commonwealth Director of Public Prosecutions, the primary judge decided that the question he was asked to submit to the Court of Criminal Appeal was a question submission of which would be an abuse of process. He made that clear by quoting the following passage in the judgment of Jordan CJ in Ex parte McGavin; Re Berne (above) concerning a predecessor to s 5B and saying that it reflected the decision he had reached on the application before him: 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. [92] As there explained, s 5B imposes a duty to submit a question of law to the Court of Criminal Appeal unless the judge is relieved of that duty because the question is so frivolous or baseless that submission would be an abuse of process. The primary judge's decision to refuse the application under s 5B on that ground, being a decision produced by the error of law already identified, was a decision on a question of law going to jurisdiction. For the reasons I have stated, the question that the primary judge declined to submit to the Court of Criminal Appeal was neither frivolous nor baseless. By concluding that submission of the question would be an abuse of process and accordingly beyond the duty to which Jordan CJ referred, the primary judge declined to exercise jurisdiction in circumstances where jurisdiction should have been exercised. His decision was therefore affected by error of law amounting to jurisdictional error."

Since 2020, however, there have been several decisions to the contrary effect. First, in Mack Fleet Pty Ltd v Transport for NSW, Basten JA (with whom Ward and Leeming JJA agreed) questioned whether the observations of Jordan CJ in McGavin should govern the application of s 5B in its current form: [56] "[14] The statutory context demonstrates a different subject-matter and purpose. The subject-matter is a criminal case which has been heard by a magistrate and is subject to only one right of appeal: there is no right of appeal from the decision of the District Court. Identification of the statutory purpose requires reference to some legislative history. Historically, there are three main control mechanisms imposed by legislation conferring a limited right to seek redress in a higher court. One mechanism is to limit an appeal to a question of law. (That common provision complements the general supervisory jurisdiction of the Supreme Court.) A second mechanism is to confer a right of appeal subject to a requirement to obtain leave from the court to which the appeal is to be taken. A third mechanism confers no right on an aggrieved party to institute an appeal, but rather confers a power on the lower court to refer or submit a question of law to, or state a case for determination of a question of law by, a superior court. By declining to grant any unilateral and uncontrolled right of appeal to a party, the statute vests control of any further proceeding in the court in which the case was heard. [15] Section 5B of the Criminal Appeal Act is an example of the third mechanism. Adoption of that mechanism renders it most unlikely that Parliament intended that the court submitting or referring the question had a duty to take that step whenever requested to do so by a party, even if the request were made in a timely fashion. Such a reading would convert the third mechanism into the first, namely a right of appeal on a question of law, absent even a leave requirement. [16] There have been numerous cases in this jurisdiction in which it has been accepted or assumed that a virtually unqualified obligation is imposed on the District Court by s 5B. The origin of that approach is to be found in the judgment of Jordan CJ in Ex parte McGavin; Re Berne. The Chief Justice stated that it was '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.' [17] There are a number of reasons not to see that brief statement as determinative of the current effect of s 5B. First, s 5B was not in the same form in 1945 as it is today. It then had a deeming provision which required the question of law to be dealt with as if it were an appeal to the Court of Criminal Appeal. That provision at least blurred the distinction between the conferral on a party of a right of appeal and the conferral on the court of a power to submit a question of law. Secondly, at that time the question could not be submitted after the proceeding in the District Court had been finally determined. Thirdly, the briefly stated reason for adopting such a construction does not sit comfortably with the more nuanced approach to the principle of statutory construction, not expressly identified in Re Berne, but expounded a decade later in Ward v Williams."

As to whether declining to state a case may involve jurisdictional error, his Honour said: "[51] 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. 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. [52] The applicant noted that in Jankovic v Director of Public Prosecutions 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." [53] 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. [54] 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]." 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."

Most recently, in Gibson v Director Public Prosecutions (NSW) (No 2), [66] Bell P (as his Honour then was, with whom Basten JA and Meagher JA agreed) said: "[31] If the Director's concession as to jurisdictional error was not well made, and the proper interpretation of the "reasons" was that her Honour declined in the exercise of her discretion to accede to the Applicant's request that questions be referred to the Court of Criminal Appeal, this would not have been a jurisdictional error which would engage this Court's supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW) . This would be so even if the judge committed some error in her analysis as to whether or not the questions involved questions of law. [32] To this extent, I have reservations as to the correctness of an aspect of the recent decision in Franklin v DPP (NSW) [2021] NSWCA 83 , where it was held that the District Court judge committed jurisdictional error by not referring a question of law to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act on the basis that he considered it was a question of mixed fact and law. His Honour may or may not have erred in his characterisation of the question sought to be referred, but it is strongly to be doubted that this was a "jurisdictional error". An error of law made within jurisdiction is not a jurisdictional error: see, for example, Public Service Association and Professional Officers' Association Amalgamated Union (NSW) v New South Wales (2014) 242 IR 338; [2014] NSWCA 116 at [76] ; Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379 at [54] ; see also Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29 at [42] , where Basten JA (with whom Bathurst CJ and Beazley P agreed) observed that: 'If every error of law constituted jurisdictional error, particularly in the case of a court such as the District Court, judicial review would transmogrify into an appeal for error of law, without regard to the requirement that certiorari is available only for error of law on the face of the record, and, in the case of a privative clause, only where an error is properly characterised as jurisdictional.'"

Basten JA, with whom Meagher JA also agreed, summarised the function of a District Court judge asked to state a case as follows: [67] "[40] The role of a District Court judge in deciding whether or not to submit a question of law to the Court of Criminal Appeal has been considered in a number of recent judgments of this Court, including Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149; (2020) 93 MVR 242, Forrest v DPP (NSW) [2020] NSWCA 162 and Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83. (A case of similar vintage, Jankovic v Director of Public Prosecutions [2020] NSWCA 31; (2020) 281 A Crim R 378, was not followed in a material respect in Forrest.) Subject to a qualification with respect to one aspect of the reasoning in Franklin, the following principles emerge: (1) Section 5B confers a power on a District Court judge determining an appeal from the Local Court in a criminal matter to submit a question of law 'arising on' the appeal to the Court of Criminal Appeal. (2) A party to the District Court appeal may 'request' the judge to submit a question of law: s 5B(2). If that step is taken after final orders have been made in the District Court, the Court of Criminal Appeal may quash the order of the District Court: s 5B(3). (3) If the District Court exercises the power of its own motion under subs (1), that step will generally be taken before any final order is made. If the submission of the question occurs pursuant to a request under subs (2), the question must be submitted either before, or within 28 days after, the final order. (4) When a request is made in accordance with subs (2) the judge has an obligation to consider the request: that exercise will involve the judge forming a state of satisfaction as to: (a) whether at least one of any proposed questions is a 'question of law'; (b) whether the question arose on the appeal, in the sense that the answer to the question was capable of affecting the outcome; (c) whether the question was one as to which there was a real doubt as to the correct answer; and (d) if the request were made near or after the expiry of the 28 day period, so that the party seeking the submission would need to obtain an extension of time from the Court of Criminal Appeal, whether there was a reasonable prospect of such an extension being granted. (5) If the District Court judge were not satisfied as to any one or more of the factors set out in (4), the judge would be justified in refusing to comply with the request. If generally satisfied in relation to each matter, the power to submit the question or questions will be engaged: it will remain a discretionary decision for the judge, although one which must be exercised judicially. [41] The operation of section 5B is to be viewed in the context of three overarching considerations. First, section 5B does not create a right of appeal, either generally, or limited to a question of law. Rather, it confers a power on the District Court judge to submit questions of law, including the authority to settle the form and content of any questions which are to be submitted. [42] Secondly, satisfaction as to the factors set out [in] (4) above are matters to be determined by the District Court judge: it is not for this Court on a judicial review proceeding to satisfy itself that, for example, a particular question of law 'arose on the appeal'. This Court can only intervene if a material error (of a kind to be considered further below) had been made by the District Court judge in forming his or her state of satisfaction. To this extent, aspects of the reasoning in Franklin should not be followed. Thus, s 5B does not impose an obligation to submit a case to the Court of Criminal Appeal so long as the questions are 'not obviously frivolous and baseless'. A state of satisfaction may be set aside if formed arbitrarily or capriciously, irrationally, or not bona fide, as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21."

For the purpose of jurisdiction under s 5B, the touchstone of the jurisdiction is the existence of a question of law arising on the appeal. In the context of s 5B, whether a question is a question of law is definitive of the jurisdiction to state a case. An incorrect answer to that question means that a judge wrongly assumes, or refuses to exercise, jurisdiction. That is not a mere error of law, but one which goes to jurisdiction. If the judge wrongly holds that there is no such question, that amounts to an incorrect decision that there is no jurisdiction to state a case. That is an error as to jurisdiction. As appears from the above discussion, so much has, at least until recently, been consistently accepted in this Court. I do not think that this analysis can be said to be novel; [80] it reflects that adopted by this Court in Cassell, West, Charara, Landsman, Jankovic and Franklin No 1. Indeed, in stating that a court errs in the determination of its jurisdiction if it erroneously decides that the question before it is not of a description that it has power to determine, [81] Barrett AJA cited the judgment of the High Court in Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia, [82] concerning s 206 of the Fair Work Act 1994 (SA), which provided that a determination of the Commission was final and may only be challenged, appealed against or reviewed as provided by the Act, but that a determination of the Commission may be challenged before the Full Supreme Court "on the ground of an excess or want of jurisdiction". Jurisdiction was engaged by the existence of an industrial dispute. French CJ said: [83] "Consistently with these reasons, I agree with the proposition in the joint reasons that if the commission decides erroneously not to proceed upon an application before it on the footing that there is no industrial dispute as required by s 26 of the Fair Work Act, the commission has erred in the determination of its jurisdiction and has exceeded its jurisdiction in doing so [Reasons of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [65]]. Such a decision falls within the scope of "excess or want of jurisdiction" for the purposes of s 206(2)."

Franklin v Director of Public Prosecutions

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