Hammond v R

Judgment 1HOEBEN CJ AT CL: I agree with Slattery J. 2SLATTERY J: The applicant was convicted in May 2012 in the Local Court of NSW at Warren of a single count under Crimes Act 1900, s 195(1)(a) of maliciously damaging the property of another, by the act of spitting on a stainless steel seat. He appealed against that conviction to the District Court sitting at Dubbo in its criminal and special jurisdiction. On 20 September 2012 his Honour Judge Lerve dismissed his appeal but, at the applicant's request, stated a case to this Court under Criminal Appeal Act 1912 s 5B. The point at issue on this case stated is whether the facts Lerve DCJ found are capable of supporting the applicant's conviction. 3The Criminal Appeal Act s5B(2) authorises the submission of a question of law "even though the appeal proceedings during which the question arose have been disposed of", as the proceedings had been in this case. Lerve DCJ set out the essential facts that he had found in dismissing the appeal before him in the form of a case stated. On the basis of those facts he submitted the question for this Court's determination in the following form:- Can these facts [the facts set out in the case stated] support a finding of guilt for an offence contrary to section 195(1)(a) of the Crimes Act 1900, in particular was the evidence capable of proving beyond reasonable doubt that the seat had been damaged by the conduct of Dion John Hammond? 4The applicant submits that this question should be answered "no". And the respondent, the Director of Public Prosecutions, submits it should be answered "yes". 5The procedure and powers of the Court upon the District Court's submission of a question of law are prescribed under Criminal Appeal Act s 5B: 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. 6If the question stated by his Honour is determined in the negative, as the applicant contends it should, that determination would form the basis for an order quashing the applicant's conviction under Criminal Appeal Act s 5B(3). In the result this Court finds that the question should be answered in the negative and that his conviction should be quashed. Crimes Act 1900 s 195 and the Case Stated 7The disposition of the point at issue in part depends upon the proper construction of Crimes Act s 195. Crimes Act s 195, which bears the heading "Destroying or Damaging Property" lies within Crimes Act, Part 4AD - Criminal Destruction and Damage and then within Division 2 - Crimes Against Property Generally. Some of the legislative history of Crimes Act s 195 is recounted below. The section relevantly provides: 195 Destroying or damaging property (1) A person who intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable: (a) to imprisonment for 5 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 10 years. (1A) A person who, in the company of another person or persons, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable: (a) to imprisonment for 6 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 11 years. (2) A person who, during a public disorder, intentionally or recklessly destroys or damages property belonging to another or to that person and another is liable: (a) to imprisonment for 7 years, or (b) if the destruction or damage is caused by means of fire or explosives, to imprisonment for 12 years. 8The Crimes Act does not define the word "damages" as it is used within Crimes Act s 195(1). But Crimes Act s 194(4) gives an inclusive but not exhaustive definition for the purpose of Crimes Act Part 4AD in relation to the occurrence of damage to particular items of property known as "unique identifiers" (being permanent marks - such as bar codes - that distinguish the property from other similar property). Crimes Act s 194(4) provides:- (4) For the purposes of this Part, damaging property includes removing, obliterating, defacing or altering the unique identifier of the property. The unique identifier is any numbers, letters or symbols that are marked on or attached to the property as a permanent record so as to enable the property to be distinguished from similar property. 9No such unique identifiers were said to have been damaged in this case. Although this inclusive definition provides an example of conduct that the legislation contemplates may amount to "damage" within s 195, its presence in the legislation throws little light on the application of s 195(1) to other forms of property. 10The applicant did not take issue with the prosecution's contention that he had acted intentionally or recklessly. Nor did he take issue with the contentions that it was his act that caused the spit to be deposited on the seat within the police dock or that the seat was "property belonging to another". The full facts in the case stated were:- "In determining the appeal against conviction by Dion John Hammond on 20 September 2012 I was satisfied of the following beyond reasonable doubt: 1. Dion John Hammond was apprehended by Constable Emily May of the Warren Police at the address of 18 Wilson Street, Warren, New South Wales at about 5.20pm on 13 January 2012; 2. Upon being apprehended he was taken in policy custody to the Warren Police Station; 3. Once at the Police Station at Warren he was placed in the dock area, which is used by police to detain persons who are in police custody at the Warren Police Station; 4. At the Warren Police Station he was charged with the offences commonly or shortly known as "Common Assault" contrary to s 61 of the Crimes Act 1900 and "Resist Police Officer in the Execution of Duty" contrary to s 58 of the Crimes Act 1900; 5. While so detained at about or shortly before 7pm (time is taken from the original Court Attendance Notice, part of the Tender Bundle tendered by the Crown and marked as Exhibit A on the Appeal) projected spittle or mucus from his mouth causing it to land on the metal seat of the dock. The amount of spittle or mucus was considerable. The substance so projected is depicted in the photograph marked Exhibit "D" on the appeal before me; 6. The act of Dion John Hammond in so projecting that spittle or mucus was an intentional act; 7. No permanent or ongoing damage was occasioned to the dock of the Warren Police Station; and 8. Police informed Dion John Hammond that the presence of the spittle or mucus in the dock area would require professional cleaning. Inferences drawn I drew an inference that the dock area of the Warren Police Station had to be cleaned. I drew a further inference that such cleaning required some degree of effort by some person." 11With one qualification, these stated facts are a complete description of the facts necessary to resolve the contest on this appeal. Criminal Appeal Act s 5B(2) restricts the resources that appellate courts may deploy in their reasoning on a stated case. These restrictions have often been emphasised. In Collins v State Rail Authority of NSW (1986) 5 NSWLR 209, at 211, per Street CJ (Slattery CJ at CL and Yeldham J agreeing) called the procedure, "... a cumbersome and often unsatisfactory means of bringing a matter up for consideration on appeal ... fraught with difficulties..." The case stated must contain "at least a statement of all the ultimate facts which in the opinion of the judge [in the court below] dictated his ultimate conclusion ... the case must state the ultimate facts including those found by inference, but not the evidence on which the ultimate facts were founded": Industrial Equity Limited v Corporate Affairs Commissioner [1990] VR 780. Upon a case stated the Court's authority is limited to ascertaining from the contents of the case stated what are the ultimate facts and not the evidentiary facts and the Court may not have regard to matters outside the stated case: R v Rigby [1956] HCA 38; 100 CLR 146 and R v Madden (1995) 85 A Crim R 367 applying Re Van der Lubbe (1949) 49 SR (NSW) 309, at 312. 12The present stated case was generally drafted in conformity with these principles. This Court can rely upon the case as a complete statement of the District Court's ultimate findings on the appeal. 13But there is one qualification to this assumption of completeness. Both parties accepted in their respective arguments that the "metal seat" described in the stated case was actually comprised of stainless steel. This fact was a common feature of the parties' arguments. The facts Lerve DCJ stated certainly included a reference to the "metal seat of the dock". But they do not include an ultimate finding that the metal of the seat was stainless steel. 14The Court can accept the parties' consensus about that fact in their conduct of the appeal, although it makes no difference to the result. There are examples of Courts departing from this strict rule for the purpose of dealing with stated case proceedings "within the constraints of their deficiencies"; see City of Hawthorn v Victorian Welfare Association [1970] VR 205 and Talay v R [2010] NSWCCA 308. On this minor factual issue, which does not affect the result, I will adapt to the deficiencies of this stated case by having regard, as both parties have done in their submissions, to the fact that the metal seat in question was of stainless steel. 15But on the materials before this Court there are clear limits as to what inferences are open. Exhibit D, which is the photograph of the seat, seems only to be referred to in Lerve DCJ's findings to show that the seat in question had been clearly identified. But Exhibit D itself did not become a part of the stated case. So no inference about the appearance of the seat could be drawn directly from exhibit D on the hearing of the stated case. This approach is consistent with the requirements of Rule 29 of the Criminal Appeal Rules made under the Supreme Court Act 1970. Criminal Appeal Rules r 29 provides:- 29 Submission of question of law Any question of law submitted to the Court for determination under sections 5A, 5B or 5BA of the Act shall be in writing and signed by the Judge. Such submission shall be sent to the Registrar together with a summary of the evidence and a statement showing the names of the parties and their legal representatives, if any. 16Exhibit D was referred to in, but was not itself a part of, the "summary of the evidence" in the stated case under Criminal Appeal Rules r 29. Two Procedural Issues 17Two preliminary procedural issues arise. The applicant did not bring his application within the 28 days that Criminal Appeal Act s 5B(2) requires. The question thus arises whether leave should be granted under Criminal Appeal Act s 5B(2). The respondent also contended that the applicant had not submitted "a question of law" within Criminal Appeal Act s 5B(1) for this Court's determination. Both those preliminary procedural issues should be determined in the applicant's favour. 18An extension of time. The applicant's submission of the stated case was marginally out of time. It was submitted a few days beyond the time limited under Criminal Appeal Act s 5B, which requires its submissions "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". The applicant's appeal was dismissed on 20 September 2012. Therefore the permitted 28 day period expired on 18 October 2012. Lerve DCJ signed the stated case on that day, 18 October 2012, and it was submitted to this Court and marked as filed on 26 October 2012, just after the 28-day period had expired. The applicant therefore needed an extension of time until 26 October 2012. 19The applicant did not expressly make an application for extension of time. And he did not make any submissions in relation to factors favouring an extension. The respondent submitted that the leave of the Court is required for this matter to proceed. But it did not oppose the extension nor did it point to any factors to be weighed against granting the extension. The delay was very minor: a matter of only a few days. Applicants do not control the time within which judicial officers settle the final form of a stated case for submission under Criminal Appeal Act s 5B. Courts have often emphasised the need to observe the time limits set by s 5B, but usually in a context of much longer delay and where there are contests about the form of the case stated: Lavorato v Regina [2012] NSWCCA 61, at [5] - [18] and Elias v Director of Public Prosecutions (NSW) [2012] NSWCCA 302, at [10] - [17]. 20Some flexibility should be afforded to this applicant for this very minor delay. Lerve DCJ signed the stated case on the date on which it was due to be filed. The matter is one in the Court's discretion. In my view in the circumstances it is appropriate to grant the necessary extension of time. 21A question of law. Cases stated under Criminal Appeal Act s 5B(1) must be limited to questions of law. The applicant argued that the question posed by Lerve DCJ was a question of law. The respondent disagreed. 22The test of what is a question of law for the purpose of statutory provisions such as Criminal Appeal Act s 5B(1) is well established. In Australian Gaslight Co v The Valuer-General (1940) 40 SR (NSW) 126, at 137-8 Jordan CJ stated the distinction between a question of law and a question of fact (or a mixed question of law and fact). Without the supporting authorities his Honour cited, Jordan CJ's statements of principle may be summarized in the following terms: (1)The question what is the meaning of an ordinary English word or phrase as used in the State is one of fact not of law. This question is to be resolved by the relevant tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence. Evidence is receivable as to the meaning of technical terms. And the meaning of a technical legal term is a question of law. (2)The question whether a particular set of facts comes within the description of such a word or phrase is one of fact. (3)A finding of fact by a tribunal of fact cannot be disturbed if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its inferences. (4)Such a finding can be disturbed only (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences, or (c) if it has misdirected itself in law. Thus if the facts inferred by the tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law. If, however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, a decision either way by a tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law. 23The respondent contended that the facts inferred by the District Court "are capable of being regarded as either within or without the description [of damage], according to the relative significance attached to them" and accordingly this is not a decision which can be disturbed by a Court which can determine only questions of law. The respondent further submitted that this was not a case in which there is no evidence to support the determination, nor is it one in which the evidence is inconsistent with and contradictory of the determination, nor one in which the only true and reasonable conclusion contradicts the determination: see also Edwards v Bairstow [1956] AC 14, at 36. The respondent contended that the present application involved no more than deciding the meaning of an ordinary English word, "damages", used in a statute or deciding whether a particular set of facts comes within such a phrase, which are only questions of fact. 24But the applicant's submissions are the more persuasive on this question. The applicant points out that the question for determination is framed to raise only a question of law: "was the evidence capable of proving beyond reasonable doubt that the seat had been damaged?" The applicant is only asking the Court to decide whether the facts actually inferred by the District Court are necessarily outside the meaning of "damages" in Crimes Act s 195(1) and therefore incapable of supporting a conviction beyond reasonable doubt. The applicant accepts all Lerve DCJ's findings of fact and contends on the basis of Jordan CJ's statement in Australian Gaslight Co v The Valuer-General (1940) 40 SR (NSW) 126, at 137-8 that the question is one of law. I agree it is a question of law. It comes within Jordan CJ's category (4): the applicant contends that facts inferred by the tribunal below from the evidence before it are necessarily outside the description of a word "damages" in this statute, so that a contrary decision is said to be wrong in law. 25This leads to an examination of the parties' respective contentions on the case stated.