Jankovic v Director of Public Prosecutions

Proceedings in the Local Court

1. The applicant maintained before the Local Court that her arrest was unlawful and that, as a consequence, her conduct towards police while in custody as a result of the arrest did not occur in the context of execution of the duty of any police officer. If, as she maintained, the arrest was unlawful and she was not lawfully in police custody, it was no part of the duty of any police officer to seek to constrain her actions as if she were. On that basis, she argued that she was not guilty of the charges under statutory provisions predicated on conduct towards a police officer while in execution of duty. The correctness of that reasoning is confirmed by decided cases [5] and is not questioned in these proceedings.
2. The lawfulness of the arrest of the applicant without warrant fell to be addressed under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"): [6] (1) A police officer may, without a warrant, arrest a person if: (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and (b) the police officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons: (i) to stop the person committing or repeating the offence or committing another offence, (ii) to stop the person fleeing from a police officer or from the location of the offence, (iii) to enable inquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that identity information provided is false, (iv) to ensure that the person appears before a court in relation to the offence, (v) to obtain property in the possession of the person that is connected with the offence, (vi) to preserve evidence of the offence or prevent the fabrication of evidence, (vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence. (2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant. (3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law. [Note: The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer - see section 105.] (4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part. (5) This section does not authorise a person to be arrested for an offence for which the person has already been tried. (6) For the purposes of this section, property is connected with an offence if it is connected with the offence within the meaning of Part 5.
3. It was not disputed that Leading Senior Constable Drylie arrested the applicant without a warrant and that he suspected on reasonable grounds that the applicant had committed an offence, namely, contravention of an apprehended domestic violence order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). [7] The condition laid down by s 99(1)(a) was satisfied. [8] The issue was whether, as required by s 99(1)(b), the police officer was satisfied that the arrest was reasonably necessary for any one or more of the reasons in s 99(1)(b)(i) to (ix). The magistrate held that the prosecution had proved beyond reasonable doubt that Leading Senior Constable Drylie was satisfied that the arrest was reasonably necessary to stop the applicant repeating the offence, as contemplated by s 99(1)(b)(i).

District Court decision on the appeal

1. The applicant's appeal to the District Court against conviction was governed by s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) and was accordingly by way of rehearing on the basis of evidence given in the Local Court proceedings. There was no application under s 18(2) or s 19 with a view to additional evidence being adduced.
2. Having canvassed the evidence given in the Local Court and submissions made in the District Court, the primary judge dismissed the appeal. The essence of his decision appears from the following part of the judgment: It was not for this officer to form a judgment about what might ultimately be done by the Court in respect of that breach. The question was whether he was satisfied that the arrest was reasonably necessary in order to stop any further commission of offences. In my view that exercise of his discretion was carried out appropriately, that is, he was arresting that person to take her back to a police station to be charged with this breach, albeit that she was given bail immediately, but that breach was then brought to the attention of the court and she was charged with that breach. That in itself carries with it a further protection to the victim. If there was to be any further offences well than that would have necessitated of course further action being taken and more stringent penalties being applied.
3. The decision on the lawfulness of the arrest was thus that Leading Senior Constable Drylie had been satisfied that the arrest was reasonably necessary to stop the applicant repeating the offence of breaching the apprehended violence order protecting the complainant. That being so, the arrest was lawful, the applicant was lawfully in custody and a central element of the offences under s 58 and s 60(1) of the Crimes Act was established.
4. The judgment dismissing the appeal was delivered on 4 October 2017.

District Court decision on submission of a question of law

1. In March 2019 the applicant, through her lawyers, made a request that the primary judge submit to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act what was said to be a "question of law arising on" the appeal to the District Court that his Honour had dismissed some eighteen months earlier. The question, as framed, was whether, with certain stated facts proved beyond reasonable doubt, the evidence was: capable of establishing beyond reasonable doubt that Leading Senior Constable Drylie was satisfied that the arrest of the applicant was reasonably necessary for one or more of the reasons set out in s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002.
2. The applicant's request became the subject of a hearing before the primary judge on 1 May 2019. His Honour refused the request on 6 May 2019 for reasons published on that day. [9] The decision was that the question that the applicant wished to see submitted to the Court of Criminal Appeal was "so obviously frivolous and baseless that its submission would be an abuse of process". These are words quoted by his Honour from the judgment of Jordan CJ in Ex parte McGavin; Re Berne (1945) 46 SR (NSW) 58 at 61. The primary judge was thus of the opinion that there was no room for any doubt that Leading Senior Constable Drylie had been satisfied in the way contemplated by LEPRA, s 99(1)(b).
3. Having given that reason for refusing the application, the primary judge went on to refer to the fact that the request of March 2019 had been made some eighteen months after the decision on the appeal and that s 5B imposed a time limit of 28 days "or such longer period as the Court of Criminal Appeal may allow".
4. In reaching his conclusion on the s 5B application, the primary judge referred expressly to his decision on the conviction appeal and made it clear that the same reasoning applied. [10] It is therefore appropriate to have regard to the reasons for dismissal of the conviction appeal in order to obtain a full understanding of the reasons for dismissal of the s 5B application. Argument in this Court proceeded on that basis.

The LEPRA, s 99(1)(b) issue

1. The applicant's contention in this Court is that, while the evidence sufficiently established that Leading Senior Constable Drylie's purpose in making the arrest was to stop the applicant repeating the offence of breaching the apprehended violence order, it was not shown that he was "satisfied" that arrest was "reasonably necessary" to achieve that end. In that way, it is said, one of the matters essential to the existence of the power under LEPRA, s 99(1) to arrest without warrant was lacking and the arrest was not lawful. The applicant maintains that, although the primary judge said in his reasons that "[t]he question was whether he was satisfied that the arrest was reasonably necessary in order to stop any further commission of offences" and answered that question in the affirmative, the evidence before him did not permit a conclusion that Leading Senior Constable Drylie was so "satisfied" on the matter of what was "reasonably necessary".
2. The respondent Director of Public Prosecutions contended that, although there was no explicit statement from the mouth of Leading Senior Constable Drylie that he was relevantly "satisfied", there arose from the whole of the evidence an irresistible inference that he was "satisfied" that the arrest was "reasonably necessary" for the purpose that he said had actuated him, that is, the purpose of stopping the applicant repeating the offence of breaching the apprehended violence order.
3. The appropriate course is to consider whether the primary judge's conclusion that Leading Senior Constable Drylie was relevantly "satisfied" was affected by error and, if it was, to assess whether the error amounted to jurisdictional error. As I have said, the latter question arises separately in relation to the decision on the conviction appeal and in relation to the decision on the s 5B matter.

The state of mind called for by LEPRA, s 99(1)(b)

1. For an arrest without warrant to be authorised by LEPRA, s 99(1), it must be established that, as described in s 99(1)(b), the arresting officer was "satisfied" that the arrest was "reasonably necessary for" any one or more of the "following reasons" stated in the section. An issue as to the officer's state of mind arises; and it is for the party asserting that the arrest was authorised by the section to show that, at the time of making the arrest, the officer had reached a state of being "satisfied" that the circumstances as a whole made it "reasonably necessary", for one or more of the stated reasons, that the person concerned be deprived of their liberty.
2. The party asserting the lawfulness of the arrest must thus prove that the police officer had formed a particular opinion (or state of satisfaction) about the connection, in terms of cause and effect, between depriving the person of their liberty and achieving the results with which the "following reasons" are concerned. The connection is defined by the words "reasonably necessary".

The "reasonably necessary" criterion

1. The word "necessary" does not always refer to something that is essential or indispensable. In Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 (at [39]), Gleeson CJ pointed out that: [t]here is, in Australia, a long history of judicial and legislative use of the term "necessary", not as meaning essential or indispensable, but as meaning reasonably appropriate and adapted.
2. Thus, for example, the power of a liquidator to "do all such other things as are necessary for winding up the affairs of the company and distributing its property" [11] is not confined to actions without which that result cannot be achieved. It extends to actions "expedient with reference to" or "conducive to" the progress and completion of the process. [12] At the same time, however, "necessary" connotes something more than "convenient" [13] and indicates that the provision incorporating the "necessary" criterion is "not dealing with trivialities". [14]
3. When the adverb "reasonably" is added and the statute adopts a "reasonably necessary" criterion, there is an obvious element of dilution and an even more distinct indication that the test is not one directed to that which is essential or indispensable. In Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 (at [20]-[27]), Gleeson CJ identified a number of contexts in which the expression "reasonably necessary" is used. It is sufficient to refer to two of these. In relation to the common law doctrine of restraint of trade, the "real test" is whether the restriction exceeds "what is reasonably necessary for the protection of the covenantee", [15] so that attention is directed to whether the covenant imposes a greater degree of restraint than reasonable protection requires. In the law of real property, [16] the question whether an easement is "reasonably necessary" for the effective use or development of land turns on whether use or development with the benefit of the easement is substantially preferable to use or development without it. [17]
4. A "reasonably necessary" criterion directs comparison of the situations or results that will pertain on alternative hypotheses or in alternative circumstances. In Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2, Kiefel J said (at [89]): It could not be said that the means employed by a statute were reasonably necessary if there were other, less drastic, means available by which the legislative objective could be achieved.
5. Kiefel J continued (at [91]), referring to the particular statutory provision in issue: The restriction allows a parole board to attach only such conditions as are reasonably necessary to the achievement of the objectives of ensuring the good conduct of a parolee and preventing that person offending. The sub-section therefore imports a requirement of proportionality into a parole board's decision-making process.
6. That identifies the essence of the "reasonably necessary" criterion in LEPRA, s 99(1)(b). The section imports a requirement of proportionality into police officers' decision-making. Each of the reasons in s 99(1)(b)(i) to (ix) is expressed in terms of a particular outcome relevant to law enforcement. [18] The reasons are concerned with the risk that lack of constraint upon a person through arrest might frustrate the attainment of one or more of those outcomes and thereby prejudice law enforcement. In Robinson v State of New South Wales [2018] NSWCA 231 at [164], Basten JA said of the s 99(1)(b)(i) to (ix) reasons: Those reasons provide, in effect, that the police functions of law enforcement would not be sufficiently carried out by steps short of arrest, which, with respect to the commencement of proceedings, would commonly mean the issue of a court attendance notice.
7. The reasonably foreseeable consequences of continued freedom (either alone or in conjunction with other available measures) are to be compared with the obvious consequences of arrest. That comparison is to be made by reference to the whole of the circumstances prevailing at the time. The comparison will quantify the extent, if any, to which a continuation of freedom creates a risk that the attainment of any one or more of the stated law enforcement outcomes will be jeopardised. Only if, according to an objectively reasonable assessment, continuing freedom (with or without some other available measure) presents a significant risk to attainment of any of the law enforcement results will immediate arrest be a proportionate response to that risk and therefore substantially preferable and "reasonably necessary". The police officer is required to assess the situation at hand and make an evaluative judgment.
8. A vital component in the comparison is the alternatives to arrest at the disposal of the police officer. LEPRA, s 107 says that nothing in Pt 8 (which includes s 99) affects the power of a police officer either to commence proceedings for an offence otherwise than by arresting the person or to issue a warning, a caution or a penalty notice. Ch 4 Pt 2 of the Criminal Procedure Act 1986 (NSW) allows proceedings for numerous offences (including an offence of breaching an apprehended violence order) to be commenced by the issue of a court attendance notice. A range of measures obviously less drastic than arrest is thus identified as material to a police officer's decision to arrest without warrant.

The evidence

1. As Beazley P noted in Lule v State of New South Wales [2018] NSWCA 125 at [2], a police officer's state of satisfaction "is a subjective matter and must exist as a matter of fact at the time of the arrest". It is therefore incumbent upon the party seeking to establish the lawfulness of the arrest to lead evidence from which it can be inferred that, at the time of the arrest, the officer was actually of the state of mind that s 99(1)(b) describes.
2. It is necessary, at this point, to record key aspects of the evidence: 1. The applicant was, at all material times, subject to the apprehended domestic violence order made on 20 October 2015 on the application of the complainant. The text message sent by the applicant to the complainant on 25 March 2016 concerned children and was in these terms: Please don't ask the Foster Agency to contact me again. If you have a problem, this needs to go back to Children's Court. I don't associate with the Department because I don't have to. Maroubra police also know you give misleading information and you won't get any more assistance with the kids. I've been to another Barrister about you specifically and after June, you will be hearing from him. I'm going to sue you! 1. After receiving the text message, the complainant made a statement to police at Maroubra who, in turn, informed police at Chatswood of the apprehended violence order and that the applicant had sent the text message. The communication received at Chatswood included a copy of the text message and contained a request that the applicant be arrested. 2. After receipt of that communication, Leading Senior Constable Drylie and Constable Holden visited the applicant's home. Before they did so, however, Leading Senior Constable Drylie looked into the applicant's "previous criminal history" and found a conviction for breach of an apprehended violence order (it was put to him that this had occurred in 2008 but he could not recall the year). He did not know whether the earlier breach related to the particular order about which the message had been received from Maroubra. He had not read in full the statement made by the complainant to police at Maroubra. 3. Leading Senior Constable Drylie was asked in cross-examination whether "the purpose of going there [ie, to the applicant's home] was to arrest her". He answered, "Effectively, yes". 4. When the officers arrived at the applicant's home, they pressed the buzzer at the front door, identified themselves as police officers and were invited to enter. A brief conversation then took place inside the premises. Leading Senior Constable Drylie's account of the conversation was: I've had a conversation to her where I've said, "We're here in relation to a breach of an AVO with a [first name]" - I believe [surname], I'm not 100% on her surname, "In relation to text messages. Did you send her any text messages?". She replied, "Yes, I'm sick of her getting people to harass me," and at that point I said to her again, "I'm Senior Constable Drylie from Chatswood Police Station and you're under arrest for breach of an AVO. You don't have to say or do anything unless you want to, but anything you do say can be used in court as evidence. Do you understand that?" 1. Leading Senior Constable Drylie testified that the applicant's response to the last question was: "Okay". 2. Constable Holden gave evidence about the conversation. He said that he did not recall Leading Senior Constable Drylie saying, "You've breached your AVO". But he did recall the applicant saying, "Yes I'm sick of her getting people to harass me". 3. At the time he made the arrest, Leading Senior Constable Drylie's "primary concern" was said by him to be the complainant who was "protected pursuant to a court order". 4. Leading Senior Constable Drylie's evidence was that, while he had asked the applicant whether she had sent the text message, he did not "ask for any further explanation". He also said that he was not aware of any violence between the applicant and the complainant. 5. Leading Senior Constable Drylie testified that he made the arrest without considering the alternative of a court attendance notice. 6. His evidence as to the purpose of the arrest was as follows: Q. What do you say was the purpose of the arrest? A. I believe it was in order to protect the victim. Q. On what information were you basing that? A. The fact that she had breached an Apprehended Violence Order that was in place to protect the victim. Q. So it was solely because there had been a breach? A. I believe that there was a reason why that Apprehended Violence Order was in place by the court and therefore I believed her breach - it also did pose a risk to the victim. Q. But just to clarify - and please answer yes or no - the sole reason for the arrest was because there had been a breach of an Apprehended Violence Order - A. Well yes.

Assessment of the primary judge's decision on state of mind

1. The primary judge decided that the question for determination by him was whether Leading Senior Constable Drylie "was satisfied that the arrest was reasonably necessary in order to stop any further commission of offences". [19] In framing the question in that way, his Honour singled out one of the nine reasons in s 99(1)(b)(i) to (ix), namely, the reason in s 99(1)(b)(i). And in giving an affirmative answer to the question he had posed, the primary judge obviously had regard to the evidence referred to at [64] above.
2. What the primary judge did not do was to engage in discussion and analysis of the evidence as a whole in order to discover whether Leading Senior Constable Drylie had made the comparison required by s 99(1)(b) and, by bringing evaluative judgment to bear, had reached the required state of satisfaction.
3. The primary judge had before him evidence that Leading Senior Constable Drylie had decided before arrival at the applicant's home that he would arrest her; that the sole reason for the arrest was the breach of the apprehended violence order (which caused him to be concerned for the complainant who, he thought, was thereby exposed to risk); and that he did not turn his mind to the alternative of issuing a court attendance notice. That evidence, coupled with the absence of evidence that the police officer had considered any other alternative course of action, showed that he did not engage at all in the process of comparison and evaluation called for by LEPRA, s 99(1)(b) and did not address in any way the question whether arrest (the course he had decided upon in advance) was a proportionate response to a risk that he perceived upon coming into contact with the applicant - or, indeed, that his contact with the applicant had given him cause to think that she presented any risk. In the short conversation that took place after the police officers' arrival and before the arrest (see [64(5)] above), the applicant readily admitted that she had sent the text message and gave an explanation that did not indicate any intention of committing further wrongdoing. Her statement, "Yes, I'm sick of her getting people to harass me" explained why she had sent the offending text message. It did not indicate any possibility of future action. There was nothing to suggest that the police officer was aware of any violence between the applicant and the complainant. The offending text message (which he had read) did not threaten violence. It said that legal proceedings would be commenced in some months' time.
4. The primary judge's positive finding that Leading Senior Constable Drylie "was satisfied that the arrest was reasonably necessary in order to stop any further commission of offences" had no foundation in the evidence at his Honour's disposal. There was, at most, evidence that he had concern for the complainant, that he was, from a time before he came into contact with the applicant, determined to arrest her and that he never considered the alternative of issue of a court attendance notice or, for that matter, any other alternative. The evidence did not indicate that he considered any course of action (such as a warning or caution or the issue of a court attendance notice: see [62] above) other than that upon which he had made a decision in advance, that is, arrest. The evidence therefore disclosed nothing at all about the state of his satisfaction as to what, in the circumstances as he found them, was "reasonably necessary" for any of the LEPRA, s 99(1)(b)(i) to (ix) reasons.
5. The primary judge's finding as to the state of mind of Leading Senior Constable Drylie had no basis in the evidence.

The nature and effect of the error - the appeal decision

1. A decision maker commits an error of law by making a finding for which there is no basis in the evidence. For a conclusion of such error to be reached, there must be no probative evidence at all, no matter how slight, to justify the decision. The stringency of the test is illustrated by the statement of Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-6 that several kinds of inadequate fact finding do not amount to error of law, these being: That the finding is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it.
2. At issue in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 was the nature of error consisting of the making of a finding that certain notices had been served when there was no evidence of service. Hayne, Heydon, Crennan and Kiefel JJ said (at [91]): The Tribunal's factual finding in this case, that the builder had served the two relevant claims for extension of time, necessarily depended upon its first accepting that there was evidence to support the finding.
3. The following passage in the judgment of Dixon CJ in Gurnett v The Macquarie Stevedoring Co Pty Ltd (No 2) (1956) 95 CLR 106; [1956] HCA 29 at CLR 113 was then quoted: [I]n the legal dichotomy between questions of fact and questions of law we place under the latter head a question whether there is sufficient evidence to submit to a jury in support of a cause of action. That is because it is a question for the court to decide and not for a tribunal of fact.
4. The joint judgment in Kostas continued (also at [91]); A tribunal that decides a question of fact when there is "no evidence" in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law. And in this case, for the reasons given by the primary judge, there was no evidence before the Tribunal, when it decided the separate question identified by the parties, upon which the Tribunal could find that the disputed notices had been served.
5. In the present case, the primary judge made such an error of law. It remains to consider whether the error amounts to jurisdictional error.
6. As was recently pointed out in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [63], there are two competing approaches to the question whether an error of law committed when a factual finding is made in the absence of evidence amounts to jurisdictional error. On one view, such a finding amounts to jurisdictional error only where the finding is a precondition to the exercise of jurisdiction. On the other view, a finding made with no evidence amounts to jurisdictional error where the finding is a critical step in the ultimate conclusion of the decision-maker.
7. In Buchwald v Minister for Immigration and Border Protection (2016) 242 FCR 65; [2016] FCA 101, Bromberg J referred to High Court authority suggesting that the first of these approaches should be taken to the exclusion of the second. His Honour pointed out that, in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said at [39]: To return to the first ground identified in the Federal Court, the "no evidence" ground, nothing in the Act made the question of whether or not the respondent suffered from PTSD a precondition to the exercise of jurisdiction. No question of a "no evidence" ground of jurisdictional error arises.
8. Bromberg J referred to apparent approval by Gummow A-CJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 of the distinction drawn by Wilcox J in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 between a "no evidence" ground respecting the existence of a jurisdictional fact and "the more debatable question . . . of defective fact finding as an independent ground of judicial review, or as indicative of an 'error of law'".
9. In Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423, Allsop CJ (with whom Markovic and Steward JJ agreed) referred to findings of central importance to a particular administrative decision and said: The making of the findings, without any material to found them, given their central importance in the reasoning, is a sufficient basis to conclude that there has been jurisdictional error. [20]
10. As the High Court pointed out in Craig v South Australia and Kirk v Industrial Relations Commission, inferior courts do not necessarily stand on the same plane as administrative decision-makers when it comes to questions of jurisdictional error. The reason, it was said, is that inferior courts, unlike administrative decision-makers, are entrusted with authority to identify, formulate and determine relevant issues, relevant questions, and what is and is not relevant evidence. [21]
11. The particular decision now under consideration is a decision of an inferior court. But the statutory regime under which that court operated in making the decision did not allow it to perform all the functions described by the High Court. Because, on the particular occasion, it had no authority to identify the body of evidence that it was to take into account, the court did not have the whole of the hallmark authority referred to by the High Court.
12. In the particular case, the District Court's function under s 18 of the Crimes (Appeal and Review) Act was to proceed "by way of rehearing on the basis of evidence given" in the Local Court. [22] The primary judge's authority was defined and confined accordingly. The District Court did not determine what was and was not relevant evidence (one of the distinguishing characteristics referred to in the High Court cases). The only authority it had was authority to decide the appeal "on the basis of" a pre-existing body of evidence that had been assembled independently of it. That pre-existing body of evidence was the only source upon which the primary judge was permitted to draw in making the findings of fact required for the performance of the task assigned by s 18. It was no part of that task to make findings for which that evidence provided no foundation. The finding for which there was no "basis" in the evidence (unlike a finding that misconstrues the evidence or is against the weight of it) was not made in performance of the statutory function or in exercise of the statutory authority.
13. It was said in Craig v South Australia [23] that "an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do". In this case, the authority conferred on the District Court was delineated in terms that did not enable or permit it to make the finding as to Leading Senior Constable Drylie's state of mind for which the body of evidence put at its disposal by the statute provided no "basis". There was an error of law which, in the context in which it occurred (and as referred to by Allsop CJ in Hands v Minister for Immigration and Border Protection (above)), amounted to jurisdictional error.
14. It follows that s 176 of the District Court Act does not stand in the way of exercise of the Supreme Court's supervisory jurisdiction to correct the appeal decision of the District Court. The corrective jurisdiction should be exercised accordingly.

The nature and effect of the error - the decision on the s 5B application

1. The position I have reached in relation to the decision on the conviction appeal is sufficient to dispose of these proceedings. I nevertheless proceed to consider the question whether, if that result had not emerged, relief would have been available in relation to the primary judge's decision under s 5B of the Criminal Appeal Act. That section is in these terms: (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.
2. The question that the applicant sought to have submitted to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act (set out at [46] above) was whether enumerated facts having a clear basis in the evidence were "capable of establishing beyond reasonable doubt that" Leading Senior Constable Drylie was satisfied that the arrest of the applicant was reasonably necessary for one or more of the reasons set out in LEPRA, s 99(1)(b). [24]
3. In his judgment on that application, the primary judge noted the aspects of the evidence to which reference has already been made. The essence of his decision was then stated (at [20]-[23]): A court is able to draw inferences from the evidence as a whole. The overwhelming inference from the evidence of the officer is that he considered the arrest was reasonably necessary to "protect the safety and welfare of the victim", seeing that there was an admitted breach of the AVO. In Elias v DPP reference was made to observations of Jordan CJ in ex parte McGavin; re Berne and others (1946) 46 SR 58 in respect of the duty of the District Court Judge, (then Chairman of Quarter Sessions) to state a case. Jordan CJ stated inter alia: "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 submitted, unless in his opinion the question is so obviously frivolous and baseless that its submission would be an abuse of process." That is the position that I have come to in respect of the present application and it will be refused.
4. His Honour went on to refer to the fact that the request for submission had been made long after the expiration of the period of 28 days referred to in s 5B(2). In the penultimate paragraph of his reasons, he set out the following passage in the judgment of Basten JA in Elias v Director of Public Prosecutions (2012) 222 A Crim R 28; [2012] NSWCA 302 at [17]: It is not the job of the trial Judge to pre-empt the power of the Court of Criminal Appeal to extend time but where there is no arguable basis for extending time the trial Judge may refuse to state a case being satisfied that the application would be hopeless.
5. Then followed the final paragraph of the reasons: As earlier indicated this application is refused.
6. The primary judge's decision on the LEPRA, s 99(1)(b) issue was affected by the error of law identified at [69] above. In relation to the primary judge's decision on the s 5B application, that error of law led his Honour to the conclusion that the question he was asked to submit was "so obviously frivolous and baseless that its submission would be an abuse of process". The applicant submitted that that conclusion, reached in consequence of what I have found to be an error of law, caused the decision on the s 5B application to be affected by jurisdictional error. The submission was based on the decision of this Court in Charara v Director of Public Prosecutions (2001) 120 A Crim R 225; [2001] NSWCA 140 in which Giles JA (with whom Powell JA and Ipp AJA concurred) said (at [48]-[50]) of a decision beyond jurisdiction as distinct from a decision within jurisdiction. 48 The distinction may be difficult to draw in the particular case. In Saffron v Director of Public Prosecutions (1989) 16 NSWLR 397 Gleeson CJ said (at 399) - "As was observed by Glass JA in Wentworth v Rogers [1984] 2 NSWLR 422 at 433, the distinction between a real and an ostensible performance of duty, or between an actual and a constructive failure to exercise jurisdiction, is, in a context such as the present, easier to state than to apply. A magistrate, engaged upon the performance of the tasks imposed upon him by s 41, might be alleged by the prosecution or the defence to have fallen into various kinds of error of fact or of law. It might be claimed that he has misunderstood the evidence, or given too much or too little weight to particular parts of it, or misapprehended the law relating to the charge in question. Errors of this kind, however, would ordinarily constitute errors within jurisdiction rather than failures to exercise jurisdiction. By contrast, the error of the magistrate which resulted in the granting of relief in Wentworth v Rogers was described (1984 2 NSWLR 422 at 433) as 'a misunderstanding on his part as to the circumstances in which he had power to discharge (the defendant) under s 41(6)(a)'. In that case the magistrate's error was an error as to the nature of his powers and duties under s 41 rather than an error either of fact or law in the exercise of those powers or the performance of those duties." 49 But no narrow view has been taken of where there is a failure or refusal to exercise jurisdiction. In Director of Public Prosecutions v Cassell it was clear enough. The District Court judge had declined to state a case because he considered that s 5B did not permit him to do so once the appeal had been upheld. He was mistaken as to the boundaries of his jurisdiction. But in West v Director of Public Prosecutions [1999] NSWCA 398 it was held that, where a District Court judge had declined to state a case under s 5B of the Criminal Appeal Act because he considered the question of law unarguable and the application for a stated case therefore frivolous, he had effectively refused to exercise his jurisdiction. Priestley JA, with whom Meagher and Beazley JJA agreed, considered that the question of law was arguable, and said (at [19]) that - " … the law as stated in Cassell seems to me to be applicable here to the extent that the trial judge appears to have mistaken the nature of the question upon which he was asked to state a case, and effectively refused to exercise his jurisdiction to state a case in circumstances where he was bound to do so. My conclusion on this point depends on my opinion that the question of construction which the plaintiff was seeking to raise by way of stated case was an arguable and not frivolous question of construction." 50 In the present case I consider that, for the reasons I have explained, the second question in the draft stated case was apt to raise for determination a question of law which was at the least arguable, but in declining to state a case Latham DCJ misunderstood the notion of use adversely to the offender on which the claimant relied and thus mistook the nature of the question on which she was asked to state a case. The opponent did not submit that West v Director of Public Prosecutions was wrongly decided, or was inapplicable if it was thought that her Honour had mistaken the nature of the question on which she was asked to state a case: it did not suggest that what was said in Craig v The State of South Australia (1995) 184 CLR 163 at 178-80 affected the basis of that decision. On the authority of West v Director of Public Prosecutions, relief in the nature of prerogative relief is available.
7. Of particular relevance for present purposes is the reference in this passage to West v Commonwealth Director of Public Prosecutions [1999] NSWCA 398 and 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.
8. 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. [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.
9. 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.
10. In the second part of his reasons on the s 5B application, the primary judge referred to the fact that the application was grossly out of time and that, under s 5B(2), the Court of Criminal Appeal had power to extend time. It has been said that it is "procedurally awkward" [26] that the issue of extension of time comes, in the first instance, before the District Court judge who is asked to submit a question. If satisfied that there is no prospect of an extension being granted, that judge might properly conclude that the application is an abuse of process on the basis already noticed. That is the import of the statement in Elias v Director of Public Prosecutions quoted by the primary judge and set out at [86] above.
11. The primary judge did not, in explicit terms, base his decision on the proposition that there was no prospect of the grant of an extension of time by the Court of Criminal Appeal. Having stated his opinion that submission of the question whether Leading Senior Constable Drylie was "satisfied" in terms of LEPRA, s 99(1)(b) would be an abuse of process because the question was obviously frivolous and baseless, he merely quoted what had been said in Elias v Director of Public Prosecutions on the matter of extension of time. He did so in the context of a brief discussion of evidence going to the reasons why the s 5B application had not been progressed more expeditiously.
12. In this case, it is possible that submission of the question to the Court of Criminal Appeal would produce an ultimate result different from that which emerged in the District Court. The appropriate course is therefore to leave to one side speculation about the attitude that that court might take to the question of extension of time. Only in circumstances of absence of any semblance of argument (including as to any necessary extension of time) should a judge asked to settle what are, in substance, grounds of appeal from his or her own decision refuse to do so. The matter was put thus in Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 (at [5]): [S]ubject to the liberty to refuse to state a case which is obviously frivolous or baseless, a District Court judge is in effect compelled to state a case despite the failure to make a request within the 28 days specified, unless satisfied that the application for an extension of time would obviously be refused as an abuse of process.

Conclusion and orders

1. Jurisdictional error is established in relation to both the decision on the appeal from the Local Court and the decision on the application to have a question submitted for determination by the Court of Criminal Appeal. Each decision is amenable to correction by the Supreme Court pursuant to s 69 of the Supreme Court Act. As I have said, the conclusion I have reached that the decision on the conviction appeal is affected by jurisdictional error is sufficient to dispose of these proceedings. Relief should be granted in respect of the appeal decision by quashing the District Court's determination and remitting the matter for determination according to law. [27]
2. The orders I propose are: 1. Order that the appellate determination of the District Court on 4 October 2017 upholding convictions of Rodna Jankovic on one charge of resisting a police officer while in execution of duty contrary to s 58 of the Crimes Act 1900 (NSW) and two charges of intimidating a police officer while in execution of duty contrary to s 60(1) of the Crimes Act 1900 (NSW), which convictions were recorded at the Local Court at the Downing Centre on 15 February 2017, be quashed. 2. Order that the appellate proceeding be remitted to the District Court for determination according to law. 3. Order that the Director of Public Prosecutions pay the costs of Rodna Jankovic of the proceedings in this Court.

Endnotes

1. Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013 (NSW).
2. I do not express any view on the issue that divided this court in AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218.
3. His Honour Judge Conlon SC retired from office on 28 January 2018 and later became an Acting Judge of the District Court.
4. See Kirk v Industrial Relations Commission (2010) 239 CLR 531; [2010] HCA 1 and, among several cases in this Court, Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115, Morgan v District Court of New South Wales (2017) 345 ALR 621; [2017] NSWCA 105 and Gelle v Director of Public Prosecutions (NSW) (2017) 269 A Crim R 298; [2017] NSWCA 245.
5. See, for example, Williams v Director of Public Prosecutions (NSW) (2011) 210 A Crim R 554; [2011] NSWSC 1085 and Semaan v Poidevin (2013) 228 A Crim R 363; [2013] NSWSC 226.
6. This form of s 99 has been in force since 16 December 2013 following amendments made by the Law Enforcement (Powers and Responsibilities) Amendment (Arrest Without Warrant) Act 2013 (NSW).
7. In fact, the applicant readily admitted that conduct and later entered a plea of guilty to a charge under s 14(1).
8. As McColl JA explained in Robinson v State of New South Wales (above), the s 99(1)(a) condition is reflective of both the common law and earlier statutory provisions. The section 99(1)(b) condition, by contrast, had no precise counterpart in legislation predating its introduction with effect from 16 December 2013. The legislative history is traced in some detail in New South Wales v Robinson (2019) 94 ALJR 10; [2019] HCA 46 at [30]-[49] and [88]-[108].
9. R v Jankovic [2019] NSWDC 186.
10. Dealing with a submission by the applicant's counsel that there was no evidence from the officer that he was satisfied that the arrest was reasonably necessary, his Honour said (at [16]): "A reading of the transcript of the conviction appeal judgment makes it clear I was of a different view".
11. A provision of long standing in company law, now found in s 477(2)(b) of the Corporations Act 2001 (Cth).
12. See for example Re Cambrian Mining Co (1882) 48 LT 114, Re Bairnsdale Food Products Ltd [1948] VLR 264, Re McGrath (in their capacity as liquidators of HIH Insurance Ltd) (2010) 266 ALR 642; [2010] NSWSC 404; Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 89 NSWLR 110; [2015] NSWCA 85.
13. Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30].
14. Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 234.
15. McEllistrim v Ballymacelligott Co-operative Agricultural and Dairy Society [1919] AC 548.
16. Conveyancing Act 1919 (NSW), s 77K.
17. Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445; 117 York Street Pty Ltd v Proprietors Strata Plan No 16123 (1998) 43 NSWLR 504.
18. While some are expressed in negative terms ("to stop", "to prevent") and others in positive terms ("to enable", "to ensure", "to obtain", "to preserve"), all are concerned with bringing about a result related to the enhancement of law enforcement.
19. See the extract from the judgment on the conviction appeal at [43] above.
20. The same approach has been taken by the Full Federal Court in later cases: see Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132; Weti-Safwan v Minister for Home Affairs [2019] FCAFC 173.
21. (1995) 184 CLR 163; [1995] HCA 58 at CLR 179-180; (2010) 239 CLR 531; [2010] HCA 1 at [67].
22. There was no supplementation of that evidence either under s 19 (which allows the court to direct a person to attend and give evidence in certain limited circumstances) or by way of fresh evidence given by leave of the District Court under s 18(2).
23. (1995) 184 CLR 163; [1995] HCA 58 at CLR 177.
24. No issue was raised in this Court as to whether a question in the terms set out at [46] above is framed so as to be a "question of law" for the purposes of s 5B, whether it satisfies the technicalities and limitations inherent in the procedure by way of stated case or, indeed, whether those technicalities and limitations must be satisfied: see Tritton v Clarke [2018] NSWCCA 31 at [9]-[20].
25. Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398; [2012] HCA 25.
26. Elias v Director of Public Prosecutions (above) at [14] (Basten JA).
27. This course is appropriate since it is by no means clear that the species of error that consists of making a decision having no foundation in the evidence is, as referred to in s 69(3) of the Supreme Court Act, an error that appears on the face of the record of the proceedings. 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: 05 March 2020