Gibson v Director of Public Prosecutions

Court of Appeal (NSW)|2021-08-20|Before: Bell P, Basten JA, Meagher JA, Commission J

of Public Prosecutions v Cassell (1995) 80 A Crim R 160 Esso Australia Pty Ltd v Robertson [2005] VSCA 138 Ex parte Hall; Re Howie (1932) 50 WN (NSW) 30 Forrest v Director of Public Prosecutions (NSW) (2020) 286 A Crim R 191; [2020] NSWCA 162 Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Jankovic v Director of Public Prosecutions [2020] NSWCA 31 King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407; [1944] HCA 42 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17 Nominal Defendant v Livaja [2011] NSWCA 121 Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 Palmer v Clarke (1989) 19 NSWLR 158 Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales (2014) 242 IR 338; [2014] NSWCA 116 Reimers v Health Care Complaints Commission [2012] NSWCA 317 Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253 Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29 Category: Principal judgment Parties: Scott Gibson (Applicant) Office of the Director of Public Prosecutions (NSW) (First Respondent) District Court of New South Wales (Second Respondent) (Submitting appearance) Representation: Counsel:

In Person (Applicant) C O Gleeson (First Respondent)

Office of the Director of Public Prosecutions (NSW) (First Respondent) Crown Solicitor's Office NSW (Second Respondent) File Number(s): 2021/77088 Publication restriction: N/A Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 26 November 2020 Before: Baly SC DCJ File Number(s): 2019/260542

[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.]

HEADNOTE [This headnote is not to be read as part of the judgment] Mr Scott Gibson (the Applicant) was convicted in the Local Court of New South Wales of eight offences contrary to ss 13(1) and 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). On appeal, a District Court judge quashed the conviction for 5 charges, but re-sentenced the Applicant in respect of 3 charges and imposed a conditional release order for a term of 6 months. Following this, the Applicant sought to have some 12 purported "questions of law" referred to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). The District Court judge's refusal to refer those questions was relayed to the Applicant through an email from the Registrar of the Local Court at Queanbeyan who advised that the judge "has advised that she is functus officio (that is, a valid result has been imposed after a lawful hearing) and she cannot reopen the case" and that, accordingly, her Honour had "declined to state a case in this matter". The Applicant filed a Summons in this Court, seeking judicial review of the decision not to refer the "questions of law" to the Court of Criminal Appeal. The principal issues on appeal were: 1. Whether the decision to refuse to refer the questions involved jurisdictional error. 2. Whether relief should be withheld even if there were jurisdictional error. The Court held, dismissing the summons with costs: 1. The reasons for refusing to refer the questions to the Court of Criminal Appeal were not wholly clear as to whether or not they were in fact the judge's reasons or a paraphrase of them, and what the precise basis of the refusal was: [23]-[24] (Bell P); [38] (Basten JA); [64] (Meagher JA). 2. The reasons did not affirmatively demonstrate that the District Court judge misconceived her true function in relation to the request to submit questions of law: [57]-[59] (Basten JA); [64] (Meagher JA). 3. If a proper understanding of the reasons was that the judge could not entertain the request to refer questions to the Court of Criminal Appeal because she had no power to do so and was functus officio in that sense, this would have involved jurisdictional error, if the error were material: [23]-[24] (Bell P); [38] (Basten JA); [64] (Meagher JA). Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58; Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, applied. 1. If the email from the Registrar was not to be taken as the judge's reasons for refusing to submit a case, the decision would still not have been invalidated by a failure to give reasons, as it is not a requirement that a judge give reasons for every decision made in the course of exercising the judicial function: [61]-[62] (Basten JA); [64] (Meagher JA). Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, considered. 1. If there was jurisdictional error, it was "immaterial" as the purported questions of law sought to be referred were plainly not "questions of law" within the meaning of s 5B: [27]-[29] (Bell P); [38], [58] (Basten JA); [64] (Meagher JA). Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3; MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17; Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220, applied. 1. Alternatively, relief should be withheld in the exercise of the Court's discretion because of its lack of demonstrated utility: [30] (Bell P); [38] (Basten JA); [64] (Meagher JA). Charara v The Director of Public Prosecutions (2001) 120 A Crim R 225; [2001] NSWCA 140; Reimers v Health Care Complaints Commission [2012] NSWCA 317; Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253, considered. 1. An error of law made within jurisdiction is not a jurisdictional error. Thus an error by a District Court judge as to whether or not a proposed question sought to be referred was a question of law is not a jurisdictional error: [31]-[33] (Bell P); [38], [42] (Basten JA); [64] (Meagher JA). Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83 doubted. 1. Formal judgments should generally be given in open court where it is practicable to do so and it is fundamental that there be clarity as to when a judgment has in fact been given: [18]-[21] (Bell P); [48]-[53] (Basten JA); [64] Meagher JA. Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd [2018] VSCA 33; Di Benedetto v Granger Kilton Grange Pty Ltd [2017] VSCA 119; Esso Australia Pty Ltd v Robertson [2005] VSCA 138; Ex parte Hall; Re Howie (1932) 50 WN (NSW) 30; Nominal Defendant v Livaja [2011] NSWCA 121; Palmer v Clarke (1989) 19 NSWLR 158, considered. 1. Discussion by Basten JA as to the role of a District Court judge in deciding whether or not to submit a question of law to the Court of Criminal Appeal, and contextual considerations surrounding the operation of s 5B of the Criminal Appeal Act: [39]-[43]. Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162; Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83; Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149, considered.

Judgment

BELL P: On 1 June 2020, Mr Scott Gibson (the Applicant) was convicted in the Local Court of New South Wales of seven offences of knowingly contravening a restriction in an apprehended violence order, contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (the CDPV Act), and one offence of stalking or intimidation with intent to cause fear of physical or mental harm, contrary to s 13(1) of the CDPV Act.
On 10 June 2020, the Applicant filed a Notice of Appeal in the District Court of New South Wales, challenging his convictions. The appeal was heard before Baly SC DCJ on 26 and 28 October 2020. The Applicant represented himself ably before her Honour.
On 28 October 2020, her Honour upheld the appeal in relation to sequences 3, 4, 6, 8 and 10, and quashed the convictions for those charges. Her Honour dismissed the conviction appeal for sequences 1 and 7, and re-sentenced the Applicant in respect of those offences and sequence 9 (to which the Applicant had pleaded guilty), imposing a conditional release order for a term of 6 months.
On 25 November 2020, the Applicant purported to lodge what he described as an "[a]ppeal under Section 5B of the Criminal Appeal Act 1912 (NSW) to the Criminal Court of Appeal" by an email to the Queanbeyan Local Court. It is not necessary to explore why this somewhat irregular course was taken but, as shall be seen, the Queanbeyan Local Court Registrar (the Registrar) sought to assist the Applicant and to facilitate the process he evidently sought to pursue. Thus, later on 25 November 2020, the Registrar responded to the Applicant in these terms: "I acknowledge receipt of your Appeal under Section 5B of the Criminal Appeal Act 1912. However, before it can be forwarded to the [sic] Her Honour, you need to amend the date of signature - you have dated it 22/10/2020, which is before the date of the District Court determination. Additionally, you need to have forwarded the document to the Director of Public Prosecutions, and need to provide me a copy of your email forwarding your Appeal, as it is inappropriate to make an application to state a case without serving the notice on the other party. The parties should then seek to finalise the facts to be included in the stated case well as the formulation of the question(s) of law as it is crucial for the parties to settle the facts and question(s) of law together. A[s] a matter of procedural fairness, the judge should [sic] won't state a case without having the input of both parties."
Later that same day, the Applicant acknowledged the Registrar's assistance and resubmitted his "amended appeal" papers. The document accompanying the Applicant's email was headed "Appeal under Section 5B of the Criminal Appeal Act 1912 (NSW) to the Criminal Court of Appeal". It referenced sequences 1, 7 and 9 in respect of which the Applicant's appeal had been unsuccessful in the District Court, and set out a statement of facts comprising some 19 paragraphs presumably purporting to state a case by reference to or in the context of which various questions of law were to be answered. Under the heading "Questions of Law", some 12 purported questions of law were formulated.
The Registrar informed the Applicant on the same day that he had "forwarded your document to Judge Baly's Associate at Goulburn for consideration by the Judge".
On the following day, the Registrar emailed the Applicant in the following terms: "Whilst Section 5B of the Act does allow for a Judge to state a case, by using the word 'may' they do not always have to do so. If a Judge is not satisfied that the questions intended to be stated are truly a question of law, or that the questions are frivolous and baseless and that their submission to the CCA would be an abuse of process, then they can refuse to state a case. In this case her Honour has advised that she is functus officio (that is, a valid result has been imposed after a lawful hearing) and she cannot reopen the case. Accordingly, her Honour has declined to state a case in this matter".
The Applicant filed a Summons seeking to invoke the supervisory jurisdiction of this Court on 18 March 2021. That Summons was out of time, but the Director of Public Prosecutions (NSW) (the Director) did not oppose an extension of time and one should be granted.
The decision identified in the Summons in respect of which judicial review was sought was that dismissing the Applicant's appeal in respect of sequences 1, 7 and 9 and setting a 6 month conditional release order. The order sought in the Summons, however, was that: "…the questions of law raised in the 5b appeal be put before the Criminal Court of Appeal for consideration and that the additional evidence and facts be considered by the Criminal Court of Appeal and that the CCA consider if the questions of law and the additional evidence and facts are grounds for finding the appellant not guilty of all charges".
The ground for the application, as stated in the Summons, was as follows: "The 5b appeal on questions of law was rejected by Judge J [Baly] on the grounds the case was Functus Officio - this is not grounds for the rejection of a 5b appeal under NSW law and is a denial of procedural fairness and a failure to enact jurisdiction. These questions of law - which are both far reaching and highly significant not just to the individuals well being but to the functioning of law and justice in NSW should be considered by the CCA. Additionally there are significant issues of a victim of domestic violence being denied the protection of the law and then prosecuted for trying to seek justice. The AVO statement (taken without admission) not only being false but being agreed to under duress due to violence, threats and harassment triggering serious mental health issues which also [a]ffected the defendant[']s ability to obtain procedural fairness and other issues outlined in the 5b appeal attached". (emphasis in original).
There is a degree of conceptual confusion in the Summons seeking judicial review. No personal criticism is intended of the Applicant in that respect. He represented himself in this Court, as he had done below, with dignity and sincerity in what was obviously a difficult matter for him.
Notwithstanding the degree of conceptual confusion in the Summons, it is tolerably clear from the terms of the order sought and the ground for review articulated that what in substance was being challenged was the "decision" (if in fact it was a decision - a matter discussed below and in the separate reasons of Basten JA) not to refer the 12 "Questions of Law" formulated by the Applicant to the Court of Criminal Appeal.
The "Questions of Law" as formulated by the Applicant for referral to the Court of Criminal Appeal were as follows: "1. Did the police pervert the course of justice by refusing on multiple occasions to take reports o[f] domestic violence and other offences by the PINOP, refusing to act as required by their own policy and procedures relating to domestic violence and their legal duty and by using harassment, threats and intimidation to cause additional mental health issues in a victim of domestic violence on behalf of the PINOP with whom they had a pre existing relationship? 2. Was the AVO taken by the accused (without admission) under duress? 3. Could the accused understand the potential ramifications of taking an AVO without admission given the state of his mental health and the need to escape the effects of complex PTSD and traumatic reminiscence being triggered by the police? 4. Can the court proceed to conviction and do the charges have any basis in these circumstances when there is unheard evidence that the AVO statement was false and that the accused was not in a state of mental health to argue against the AVO at the time it was taken? 5. Given that the effects of domestic abuse, childhood abuse, trauma and complex PTSD are recognised by the state, could the accused be said to have the capacity to recognise the nature and quality of the acts in the 3 sequences of which they remain convicted were breach[e]s of the law? Eg seq 1 putting hand on his heart in a gentle gesture of conciliation was deemed to be breaching the AVO. 6. In failing to provide the support services promised to the victims of domestic and childhood abuse by the state and instead seeking to prosecute the accused, did the police criminalise the individual and pervert the course of justice extending to the planting of court appointed lawyers and leaving the accused self represented whilst battling with the trauma and mental health issues and exposure to their abuser against which victims are meant to be protected in a court and thereby denying the accused his right to a fair trial? 7. Does not the law require there to be some threat of danger to a PINOP for a[n] AVO to be issued or domestic violence laws to be invoked against an accused especially in a case where the PINOP has shown herself to be a danger on multiple occasions and where the accused has passively sat through violence and abuse? 8. Seq 1: does the act of putting one[']s hand on one[']s heart actually contravene the AVO? Is it to 'approach or contact' the PINOP? And if this was a breach - given the mental health issues related to the case and the effects of domestic and childhood abuse acknowledge[d] by the state could the accused be reasonabl[y] said to understand this as a breach of the law and is the requirement of Mens R[ea] met? 9. Seq 7: given that the PINOP was driving her car and turning around to film the accused whilst heading into a sharp bend was it not an act of necessity that the accused signal all is ok to the PINOP so as to act on behalf of the public and the greater good of the community to avoid an accident? Is it not also a factor for the court to consider that the PINOP was breaking the law and again given freedom from prosecution (there is video evidence of this which has been hidden by police). And if this was a breach of the AVO - given the mental health issues related to the case and the effects of domestic and childhood abuse acknowledge[d] by the state, could the accused be reasonably said to understand this as a breach of the law in a moment of concern for the wellbeing of others and is the requirement of Mens R[ea] met? 10. Seq 10: In sending a gentle and caring email offering his business to the PINOP so the accused could leave for overseas so as to escape harassment and intimidation and heal from the abuse and mental health issues that were being constantly triggered by police, did the accused have the mental capacity to understand this as a breach of the law and was there an intent (mens r[ea]) to breach the law? 11. Given that the integrity of the witness (PINOP) has been called into question by the fact she has lied which is evident through the dismissal of several sequences brought as charges against the accused, and that there is unheard evidence of the AVO statement being false and irrationality in her statements to police; does this not bring into question the whole case, the validity of the AVO and require that the question of whether the PINOP was acting to protect herself from prosecution (in conjunction with the police) and out of vindictiveness be looked at by the court? 12. Is it within the powers of police, the court and the crown to use the laws designed to protect victims of domestic violence to act against and convict a victim of domestic violence?"

Was there a decision at all?

No formal order was made dismissing or refusing the Applicant's request to refer questions to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). That section provides that: "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."
Nor were any reasons published by Baly DCJ for declining the Applicant's request. That may have been because of the somewhat irregular way in which the request was made, as has been recounted above, namely through the Registrar of the Queanbeyan Local Court.
Ms Gleeson, who appeared for the Director before this Court, submitted that an inference could be drawn that the judge did make a decision to decline to submit questions of law to the Court of Criminal Appeal and that her Honour's reasons for this were contained in the Registrar's email of 26 November 2020, reproduced at [7] above.
Ms Gleeson further submitted and indeed conceded that those "reasons", insofar as they volunteered that the judge considered herself to be functus officio, involved a jurisdictional error, namely a failure to exercise jurisdiction or a mistake as to the extent of jurisdiction.
The indirect and informal communication of "reasons", being relayed in the manner they were, namely in the form of an email from the Registrar of the Queanbeyan Local Court, was not, with respect to her Honour, entirely satisfactory. True it is that the "application" to her Honour lacked formality and regularity. But even allowing for the irregular way in which the application was made, its formal disposition was at the very least desirable for a number of reasons.
First, the Applicant had a statutory right pursuant to s 5B of the Criminal Appeal Act to request the referral of questions to the Court of Criminal Appeal, at least within 28 days of "the end of the appeal proceedings". The judge was obliged to give consideration to that request and, in my opinion, to give at least short reasons for declining it. In one sense, this is what her Honour did albeit informally and indirectly through the Registrar. Even if, as Basten JA has suggested at [62], reasons for such a decision may not be required unless requested, when given, this should be done formally and, where possible, in open court.
Secondly, when a decision is made, it is necessary that there be clarity as to when that occurs: see Ex parte Hall; Re Howie (1932) 50 WN (NSW) 30 at 31; Palmer v Clarke (1989) 19 NSWLR 158 at 174; and Nominal Defendant v Livaja [2011] NSWCA 121 at [20]-[21]. That is because, amongst other reasons, applicable time limits for appeals or judicial review run from the date of the making of relevant decision. Knowledge of such time periods is essential for all parties to the litigation.
Thirdly, the parties are entitled to know that the reasons given for orders are the reasons of the judge who has heard the matter, and not some summary or paraphrase of those reasons by the administrative officer who may have passed them on, as the Registrar did in the present case cf Di Benedetto v Kilton Grange Pty Ltd [2017] VSCA 119 at [99], quoted by Basten JA at [50].
The application for judicial review in the present case was conducted on the basis that the relevant decision was one made by Baly DCJ, that her Honour declined to refer questions to the Court of Criminal Appeal, and that the decision was made on 26 November 2020 for the reasons stated in the Registrar's email, as reproduced at [7] above. It is sufficient to consider the application for judicial review on that footing.

What was the decision and did it involve jurisdictional error?

In Craig v The State of South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58, it was said that an: "inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act… an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction". See also Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72].
If the proper understanding of the "reasons", as relayed to the Applicant by the Registrar, was that her Honour could not even entertain his "request", to use the language of s 5B(2) of the Criminal Appeal Act, to refer questions to the Court of Criminal Appeal, because she had no power to do so, having already disposed of the appeal from the Local Court on 28 October 2020 and was functus officio in that sense, that would have been a jurisdictional error. This is because of the words "even though the appeal proceedings during which the question arose have been disposed of" in s 5B(2) of the Criminal Appeal Act, which make it plain that a request may be submitted to the District Court and acceded to after disposal of the appeal. Her Honour was not functus officio.
Reading the Registrar's email and her Honour's reasons as contained in that email as a whole, however, it is not absolutely clear that the basis of the primary judge's reasons was that her Honour was functus officio. In this regard, the Director may have been too generous in the concession made as to jurisdictional error (see [17] above). This is so for two reasons.
First, the explanation in the first paragraph of the email to the effect that a judge has a discretion whether or not to refer questions to the Court of Criminal Appeal, and that that discretion need not be exercised favourably in the circumstances referred to, would have been irrelevant and otiose if the judge considered that she lacked power to refer the questions sought to be referred because she was functus officio. Secondly, the language of the last paragraph, namely that the judge had "declined to state a case in this matter" is consistent with her Honour considering whether or not to state a case and declining, in the exercise of her discretion, to do so. This language is not apt to convey a conclusion that a judge has no power either to accede to or to decline a request because he or she is functus officio.
Ultimately, in my view it is not necessary to decide whether the Director's concession was correctly made. If it was and if jurisdictional error is established, relief should nevertheless be withheld because the questions sought to be referred to the Court of Criminal Appeal were plainly not "questions of law", as that expression has been considered in the context of the Criminal Appeal Act in Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Orr). As Bathurst CJ and I observed at [109]: "Those questions of law should be, in our opinion, what are sometimes described as 'pure questions of law'. They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts."
The questions propounded by the Applicant and sought to be referred to the Court of Criminal Appeal as set out at [13] above do not meet this description. They were for the most part either questions of fact, or questions of mixed fact and law. Proposed questions 6 and 12 reflect a grievance that the Applicant no doubt sincerely felt, but they are not questions of law that properly arose in the course of the proceedings below.
Any jurisdictional error may thus be regarded as "immaterial": see MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17 at [27]-[39]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34; and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3.
Alternatively, relief should be withheld in the exercise of the Court's discretion because of its lack of demonstrated utility: see Charara v The Director of Public Prosecutions (2001) 120 A Crim R 225; [2001] NSWCA 140 at [62]-[63]; Reimers v Health Care Complaints Commission [2012] NSWCA 317 at [6]-[8]; and Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253 at [33]. That is to say, were the decision quashed and the matter remitted for determination in accordance with law, the form of the questions propounded by the Applicant and sought to be referred was such that the Court could be confident that they would not be referred because they were not in truth questions of law.
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.
To this extent, I have reservations as to the correctness of an aspect of the recent decision in Franklin v Director of Public Prosecutions (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 of New South Wales v State of 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."
Furthermore, s 5B of the Criminal Appeal Act operates to permit questions of law to be referred. It does not exist for the purpose of the correction of errors of law made by a District Court judge hearing an appeal from the Local Court: see Orr at [105]. As Basten JA said in Forrest v Director of Public Prosecutions (NSW) (2020) 286 A Crim R 191; [2020] NSWCA 162 at [47]: "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." The only qualification to this passage is, of course, where a District Court judge exercises the jurisdiction conferred by s 5B of the Criminal Appeal Act to refer questions of law to the Court of Criminal Appeal.

Conclusion

It follows from the above that, whether or not the decision not to refer the questions of law involved jurisdictional error, the Applicant's Summons should be dismissed.
If there was jurisdictional error, it was not material; alternatively, any relief should be withheld on the basis of a lack of utility. If there was no jurisdictional error, there is no proper basis for this Court to interfere with the decision.
The Director sought an award of costs. Although this was opposed by the Applicant by reference to his personal circumstances, there is no principled basis for departure from the usual rule, as enshrined in UCPR r 42.1, that they should follow the event.
Accordingly, the Court should, in my opinion, make the following orders: 1. Extend the time for the filing of the Summons. 2. Summons dismissed with costs.
BASTEN JA: The applicant, Scott Gibson, sought judicial review of a decision by a District Court judge to refuse his request for the submission of certain questions to the Court of Criminal Appeal. I agree with the President that the application must be dismissed with costs. I also agree with his reasons for those orders and do not repeat either the background or the dispositive reasoning. However, I would supplement that reasoning with the following analysis.

Nature of power of District Court judge

The history of s 5B of the Criminal Appeal Act 1912 (NSW) was set out in Forrest v Director of Public Prosecutions (NSW) and need not be repeated. [1] The section in its present form provides: "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 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, [2] Forrest and Franklin v Director of Public Prosecutions (NSW). [3] (A case of similar vintage, Jankovic v Director of Public Prosecutions, [4] 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: 1. whether at least one of any proposed questions is a "question of law"; 2. whether the question arose on the appeal, in the sense that the answer to the question was capable of affecting the outcome; 3. whether the question was one as to which there was a real doubt as to the correct answer; and 4. 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. 1. 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.
The operation of s 5B is to be viewed in the context of three overarching considerations. First, s 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.
Secondly, satisfaction as to the factors set out (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". [5] 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". [6] 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. [7]
Thirdly, a decision as to whether or not to submit a question of law, if exercised after final orders have been made, is incidental to the process of determining an appeal from the Local Court under Pt 3 of the Crimes (Appeal and Review) Act 2001 (NSW). It is not strictly the exercise of a judicial power: nor is there any suggestion in the Criminal Appeal Act that the power is to be exercised judicially in the sense of quelling a controversy after hearing the parties. The power under s 5B is not identified as one of the powers to be exercised by the District Court in order to "determine an appeal", pursuant to the Crimes (Appeal and Review) Act, ss 20, 27 and 28. In effect, the District Court judge is acting as a gateway to the exercise of jurisdiction by another court. Nor does that other court (the Court of Criminal Appeal) have any jurisdiction to review the decision made by the District Court judge, although it may decline to answer questions submitted to it.
The next issue is whether the power to be exercised under s 5B of the Criminal Appeal Act constitutes part of the criminal jurisdiction of the District Court for the purposes of Pt 4 of the District Court Act 1973 (NSW). If it does, s 176 of the District Court Act (appearing in Pt 4) states that "[n]o adjudication on appeal of the District Court is to be removed by any order into the Supreme Court." It has long been held that this provision precludes judicial review in the supervisory jurisdiction of this Court for errors of law on the face of the record and permits only review for jurisdictional error. [8]
The scope of the phrase "adjudication on appeal" is capable of a meaning broader than "a determination of an appeal" and may extend beyond the making of a final order. The supervisory jurisdiction is sometimes expressed as limited to orders affecting legal rights, but that does not exclude orders which may for some purposes be treated as interlocutory, but which affect legal rights. As explained in Ainsworth v Criminal Justice Commission: [9] "The function of certiorari is to quash the legal effect or the legal consequences of the decision or order under review. The report made and delivered by the Commission has, of itself, no legal effect and carries no legal consequences, whether direct or indirect. It is different when a report or recommendation operates as a precondition or as a bar to a course of action, or as a step in a process capable of altering rights, interests or liabilities. A report or a recommendation of that kind may be quashed, that is to say its legal effect may be nullified by certiorari." A decision to refuse a request to submit a question of law to an appellate court satisfies that test.
If the District Court submitted, or refused to submit, a question of law prior to making a final order, that act would readily fall within the concept of "adjudication on appeal". If the section applies to an interlocutory order involving the power to submit a question of law, it should be accepted that it also applies to a decision on a request made after the final determination of the appeal in the District Court. Accordingly, if the applicant has a right to seek judicial review of a refusal to submit a question under s 5B, as has frequently been accepted, the applicant is limited to review based on jurisdictional error.
There are two further issues relating to the nature of the process. The first is whether the decision of the judge is required to be conveyed in a particular manner, such as by making an order in open court. The second is whether the judge is under an obligation to give reasons for his or her decision.
The decision of the judge in the present case was conveyed to the applicant by the Registrar of the Local Court at Queanbeyan in an informal manner in the course of an email exchange. Directions of an administrative kind, such as listing arrangements, are given in that manner every day in every court. In principle, however, formal judgments should be delivered in open court, if it is practicable to do so. In normal times that is undertaken by the statement in open court of the orders of the court and, if available, the delivery of reasons. However, that practice is by no means universal. In many cases, especially in civil trials of some complexity, a judgment will be delivered which invites the parties to formulate appropriate orders, which may be provided to the judge in writing. The orders may not be pronounced in open court. The necessary element of formality is provided by the entry of orders in the records of the court, now computerised. There may be no fixed procedure for conveying the record to the parties, although obviously that should be done.
In June 2005, the Victorian Court of Appeal discountenanced the practice of "posting or emailing by judges of their written reasons". [10] In 2017, in Di Benedetto v Kilton Grange Pty Ltd, [11] the Court accepted a more flexible approach. While noting the importance of open justice, the Court also referred to the overarching purpose in the Civil Procedure Act 2010 (Vic), namely to facilitate the just, efficient, timely and cost effective resolution of the real issues in dispute (s 7(1)), and continued: "[98] The above passage emphasises the importance of open justice. As mentioned, the advent of the Civil Procedure Act may have lessened the rigours of the requirement that reasons be handed down in open court, or that it be announced in open court that reasons will be published in due course, rather than reasons being provided directly to the parties. It is now not uncommon, in some limited situations, for reasons of the Court to be provided to the parties by prior arrangement and for those reasons then to be able to be located only on the Court file (not being thought of sufficient importance to justify publication on the Internet), without the decision ever having been the subject of an announcement in open court. In practice it was always the case that, even if reasons were given orally in open court, the only effective source of those reasons thereafter was transcript held on the Court file. But whether the reasons are handed down or foreshadowed in open court, or simply provided to the parties and thereafter made available on the Court file (or the Internet), the reasons thereby published must be those of the Court."
There was a further factor of concern in that case, namely that the reasons were transmitted by the associate: "[99] … The judge proceeded by having her reasons for making the orders reduced to writing and conveyed to the parties by the associate. As noted above, there is nothing necessarily wrong with a judge's reasons for decision being provided to the parties electronically through the judge's chambers or the court registry. In this case the parties received by email only the associate's account of the judge's reasons, albeit no doubt approved by the judge and, we assume, placed on the Court file and available for public inspection after the emails were sent. The associate's email addressed issues of some complexity, even though principally about costs, which had been contested in open court and subsequent submissions. Caution must be applied in proceeding in this way, because there will be cases where providing reasons in this manner may so substantially fail to achieve the purposes of publishing judicial reasons as to deprive what is provided of that character altogether."
In 2018, in Bodycorp Repairers Pty Ltd v Oakley Thompson & Co Pty Ltd, [12] the Court stated, with respect to Esso Australia: "[95] Reference was then made to circumstances where the practice properly might be adopted, such as consent directions in busy managed lists. The appeal was determined on substantive grounds unrelated to the manner in which the reasons had been delivered and leave to appeal was refused. [96] The decision in Esso is significant in two respects. First, the Court strongly disapproved of the practice of forwarding reasons by email and expressed the view that it was inconsistent with the fundamental principle that courts hear and determine proceedings in public. Secondly, there is no suggestion that what had occurred rendered the order made a nullity. On the contrary, the substantive grounds were considered and leave to appeal was refused."
With respect to Di Benedetto, the Court made two points: "[104] The first is that, just as in Esso, there is no suggestion that the fact that the reasons were not delivered in open court and the orders were not made in open court resulted in the orders being a nullity. On the contrary, the judgment proceeds on the assumption that the orders were not a nullity. Otherwise, it would have been unnecessary to deal with the substantive grounds of appeal. [105] Secondly, this Court in Di Benedetto was less critical of the practice of delivery of reasons by email than the Court in Esso, and went so far as to suggest that there was nothing 'necessarily wrong' with delivering reasons in that way."
A matter of greater importance than where and how a judgment is delivered is to ensure that it reaches the parties. Handing down judgment in open court will not achieve that if the parties are not notified in advance of the hearing. Further, the current pandemic, which has resulted in the public being precluded on occasion from entering court buildings would have stopped the course of justice in its tracks if judgments could not be delivered electronically, or by post, although the former has the advantage of contemporaneous delivery equivalent to hearing the judgment delivered in open court. (This Court now generally provides remote links to the court room for delivery of orders, followed by electronic and postal transmission of orders and reasons, and uploading them to the internet.)
The issues of concern in the present case were twofold. The first was that the applicant received no document recording the decision from the judge. The decision was conveyed by a person identified only by his or her initials and described as "Registrar, per MH Queanbeyan Local Court", stating what the judge had "advised". Secondly, there is no record of the application, or its disposition, on the computerised records of the District Court. If there is a notation on the file, it is not available to this Court. Nevertheless, there is no suggestion that a decision was not made in accordance with the Registrar's email to the applicant.
The more difficult question is whether the three brief paragraphs in the Registrar's email should be taken as the reasons of the judge for the decision. If they are so taken, there might be a further question as to whether they constitute part of the court record for the purposes of s 69 of the Supreme Court Act 1970 (NSW), which relevantly provides: "69 Proceedings in lieu of writs … (3) The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings - (a) jurisdiction to quash the ultimate determination of the court or tribunal …. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. (5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision."
It is not necessary to resolve whether s 69(4) is engaged, because, as noted above, review for error of law on the face of a record is precluded by s 176 of the District Court Act. That did not leave the applicant without a remedy if he could demonstrate jurisdictional error. It may be possible to demonstrate jurisdictional error from the judge's reasons, or from a consideration of the result, if it can be shown, without having access to the reasoning of the judge, that the decision in fact reached could not have been reached if the function were exercised according to law. [13]
In the present case, the three paragraphs in the Registrar's email (set out at [7] above), while not entirely coherent, do not affirmatively demonstrate that the District Court judge misconceived her true function in relation to the request to submit questions of law. The first paragraph accurately, so far as it goes, reflected the discretionary scope of the power in s 5B. To the extent that it was inaccurate, it favoured the applicant by suggesting more limited grounds for refusal than those identified in Forrest.
The second paragraph is obscure. It may have been correct that the judge was "functus officio" and did not have power to "reopen" the case. That was not what the applicant, in terms, sought. If it were to be inferred that the judge believed she was required to reopen the case in order to submit questions of law to the Court of Criminal Appeal, that might possibly have indicated jurisdictional error on the basis that it denied power in circumstances where power existed. On the other hand, the judge may have formed the view that the twelve discursive and argumentative "questions" (set out in full at [13] above) were in truth a request to reopen the hearing. That would not have been an unreasonable view, given that none of the questions could be described as pure questions of law, but rather read like a repetition of the applicant's case on the appeal.
Whatever the correct understanding of the second paragraph in the email, the statement in the third paragraph, that the judge "has declined to state a case", is less consistent with an (incorrect) belief that she lacked power, than a refusal to exercise the power. Given the statement as to the existence of the power in the first paragraph, jurisdictional error should not be inferred.
The only other alternative is not to treat the reasons provided by the Registrar as the reasons of the judge. In that event, it is appropriate to ask whether the refusal to submit the questions in the form in which they were presented by the applicant was consistent only with a misconception as to the judge's function under s 5B. In fact, a consideration of the questions demonstrates the contrary; applying proper principles, the judge could not have submitted any of the questions.
The final issue is whether, if the email from the Registrar is not to be taken as the judge's reasons for refusing to submit a case, the decision was invalidated by a failure to give reasons. It has never been required that a judge give reasons for every decision made in the course of exercising the judicial function. In Soulemezis v Dudley (Holdings) Pty Ltd [14] Mahoney JA observed that "where ordinarily an appeal is not contemplated, there may not be a need for reasons" and that in cases of "applications for leave, where the considerations of fact and law are clear, reasons need not ordinarily be given." In the same case, McHugh JA, after rejecting the proposition that reasons were only required where there was a right of appeal, stated: [15] "However, neither the need nor the appearance of justice requires that reasons be given for every decision made by a judicial tribunal …. In the course of an action, a judge may make many decisions concerning interlocutory matters which cannot reasonably be held to require reasons …. Justice is a multi-faceted concept. In determining whether justice was done and seen to be done other interests and values, beside the giving of reasons, have to be considered. The limited nature of judicial resources and the cost to litigants and the general public in requiring reasons must also be weighed. For example, many questions concerning the admissibility of evidence may require nothing more than a ruling: in New South Wales common law judges have long held that they are not obliged to hear argument on the admissibility of every question of evidence let alone give reasons. It all depends on the importance of the point involved and its likely effect on the outcome of the case."
There is, of course, an intermediate course which operates in some of the circumstances outlined in Soulemezis. In circumstances where a judge would not ordinarily be expected to give reasons, a party may request reasons. In my view, a request to exercise the power to submit a question of law under s 5B is such a case. Ordinarily the judge would not be required to give reasons unless reasons were sought, there being no right of appeal and the judge being required to exercise a gateway function with respect to a limited form of appeal. If, despite a request for reasons, the judge declined to provide them, the applicant could test the matter by seeking an order from this Court that the judge provide reasons. Such a process would be cumbersome and expensive, but the situation would rarely arise. The possible difficulty of enforcement of a contingent right does not warrant the imposition of a rigid requirement for reasons, nor does it require that decisions be invalidated in the absence of reasons.
For these reasons, additional to those given by the President, the application must be dismissed.
MEAGHER JA: As the separate reasons of the President and Basten JA show, the making and communication to the parties of decisions and orders of a court, whether or not required to be accompanied by reasons, remains an essential aspect of its functions. The present case illustrates some of the difficulties that arise where there is a departure from a process which includes, at an appointed time, the delivery to the parties of the court's decision, preferably in open court. I agree for the reasons their Honours give that Mr Gibson's application should be dismissed with costs.

Endnotes

[2020] NSWCA 162.
[2020] NSWCA 149.
[2021] NSWCA 83.
[2020] NSWCA 31.
MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441 at [51] (Kiefel CJ, Gageler, Keane and Gleeson JJ).
Franklin at [3]; [45] and [56].
(1999) 197 CLR 611; [1999] HCA 21 at [133] (referring to the King v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 430, 432; [1944] HCA 42); [136] (referring to Buck v Bavone (1976) 135 CLR 110 at 118-119 (Gibbs J); [1976] HCA 24; and [145].
See Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 at 167 (Kirby P), addressing a "no certiorari clause" in s 146 of the Justices Act 1901 (NSW), in similar terms to s 176 of the District Court Act.
(1992) 175 CLR 564 at 580 (Mason CJ, Dawson, Toohey and Gaudron JJ); [1992] HCA 10 (footnotes omitted).
Esso Australia Pty Ltd v Robertson [2005] VSCA 138 at [9] (Warren CJ, Batt and Chernov JJA).
[2017] VSCA 119 (Ferguson and McLeish JJA, Cameron AJA).
[2018] VSCA 33 (Ferguson CJ, Whelan and McLeish JJA).
Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360 (Dixon J); [1949] HCA 26.
(1987) 10 NSWLR 247 at 270E-F.
Soulemezis at 279E-F. 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: 14 September 2021

Justices Act 1901(NSW)s 146

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