Jankovic v Director of Public Prosecutions

Court of Appeal (NSW)|2019-10-28|Before: Macfarlan JA, White JA

Background

Although it will be necessary to examine the evidence in due course, the basic facts should be recorded at the outset.
A magistrate made an apprehended domestic violence order against the applicant on 20 October 2015 on the application of the applicant's former mother-in-law ("the complainant").
On 25 March 2016, the applicant sent a text message to the complainant by mobile phone. The complainant contacted Maroubra police who circulated through the police network both relevant information (including a copy of the text message) and a request that the applicant be arrested.
Having received that communication, two officers attached to Chatswood police station, Leading Senior Constable Drylie and Constable Holden, went to the applicant's home on 28 March 2016. The applicant invited the officers into the dwelling. A short conversation took place and Leading Senior Constable Drylie arrested the applicant. There was no warrant for her arrest.
Actions of the applicant while she was in custody after being arrested by Senior Constable Drylie formed the basis of the charges under the Crimes Act.

Proceedings in the Local Court

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.

District Court decision on the appeal

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.
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.
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.
The judgment dismissing the appeal was delivered on 4 October 2017.

District Court decision on submission of a question of law

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.
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).
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".
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

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".
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.
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)

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.
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

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.
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]
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]
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.
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.
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.
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.
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

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.
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

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.
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.
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.
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.
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

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.
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.
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.
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.
In the present case, the primary judge made such an error of law. It remains to consider whether the error amounts to jurisdictional error.
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.
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.
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'".
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]
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]
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.
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.
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.
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

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.
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]
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.
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.
Then followed the final paragraph of the reasons: As earlier indicated this application is refused.
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.
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.
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.
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.
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.
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.
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

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]
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

Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013 (NSW).
I do not express any view on the issue that divided this court in AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218.
His Honour Judge Conlon SC retired from office on 28 January 2018 and later became an Acting Judge of the District Court.
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.
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.
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).
In fact, the applicant readily admitted that conduct and later entered a plea of guilty to a charge under s 14(1).
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].
R v Jankovic [2019] NSWDC 186.
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".
A provision of long standing in company law, now found in s 477(2)(b) of the Corporations Act 2001 (Cth).
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.
Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 at [30].
Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 234.
McEllistrim v Ballymacelligott Co-operative Agricultural and Dairy Society [1919] AC 548.
Conveyancing Act 1919 (NSW), s 77K.
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.
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.
See the extract from the judgment on the conviction appeal at [43] above.
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.
(1995) 184 CLR 163; [1995] HCA 58 at CLR 179-180; (2010) 239 CLR 531; [2010] HCA 1 at [67].
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).
(1995) 184 CLR 163; [1995] HCA 58 at CLR 177.
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].
Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398; [2012] HCA 25.
Elias v Director of Public Prosecutions (above) at [14] (Basten JA).
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

Law Enforcement (Powers and Responsibilities) Amendment (Arrest Without Warrant) Act 2013(NSW)

Law Enforcement (Powers and Responsibilities) Amendment (Arrest without Warrant) Act 2013(NSW)

Charara v Director of Public Prosecutions (2001) 120 A Crim R 225; [2001] NSWCA 140 Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Dyason v Butterworth [2015] NSWCA 52 Ex Parte McGavin; Re Berne & Ors (1946) 46 SR (NSW) 58 Elias v Director of Public Prosecutions (2012) 222 A Crim R 28; [2012] NSWCA 302 Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 89 NSWLR 110; [2015] NSWCA 85 Garde v Dowd (2011) 80 NSWLR 620; [2011] NSWCA 115 Gelle v Director of Public Prosecutions (NSW) (2017) 269 A Crim R 298; [2017] NSWCA 245 Gurnett v The Macquarie Stevedoring Co Pty Ltd (No 2) (1956) 95 CLR 106; [1956] HCA 29 Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423; [2018] FCAFC 225 Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21 Kirk v Industrial Relations Commission (2010) 239 CLR 531; [2010] HCA 1 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 Lule v State of New South Wales [2018] NSWCA 125 McEllistrim v Ballymacelligott Co-operative Agricultural and Dairy Society [1919] AC 548 Ex parte McGavin; Re Berne (1945) 46 SR (NSW) 58 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992 Moorebank Recyclers Pty Ltd v Tanlane Pty Ltd (2012) 16 BPR 31,257; [2012] NSWCA 445 Morgan v District Court of New South Wales (2017) 345 ALR 621; [2017] NSWCA 105 Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 Navoto v Minister for Home Affairs [2019] FCAFC 135 New South Wales v Robinson (2019) 94 ALJR 10; [2019] HCA 46 Pratten v State of New South Wales [2019] NSWCA 124 Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398; [2012] HCA 25 R v Jankovic [2019] NSWDC 186 Re Bairnsdale Food Products Ltd [1948] VLR 264 Re Cambrian Mining Co (1882) 48 LT 114 Re McGrath (in their capacity as liquidators of HIH Insurance Ltd) (2010) 266 ALR 642; [2010] NSWSC 404 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Robinson v State of New South Wales [2018] NSWCA 231 Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 Semaan v Poidevin (2013) 228 A Crim R 363; [2013] NSWSC 226 State of New South Wales v Randall [2017] NSWCA 88 State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334 Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 Tritton v Clarke [2018] NSWCCA 31 Vok v Director of Public Prosecutions (NSW) [2019] NSWCA 242 West v Commonwealth Director of Public Prosecutions [1999] NSWCA 398 Weti-Safwan v Minister for Home Affairs [2019] FCAFC 173 Williams v Director of Public Prosecutions (NSW) (2011) 210 A Crim R 554; [2011] NSWSC 1085 Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2 Category: Principal judgment Parties: Rodna Jankovic (applicant) District Court of New South Wales (first respondent) Director of Public Prosecutions (second respondent) Representation: Counsel: T Molomby SC (applicant) Submitting appearance (first respondent) D Kell SC / B Baker (second respondent)

headnote [This headnote is not to be read as part of the judgment] On 28 March 2016, the applicant was arrested without a warrant for breaching an Apprehended Domestic Violence Order by sending an SMS message on 25 March 2016 threatening legal action. Her behaviour following arrest led to further charges for which she was ultimately convicted on 15 February 2017 in the Local Court. The relevant convictions were one offence of resisting a police officer while in execution of duty and two offences of intimidating a police officer while in execution of duty. The applicant appealed the convictions to the District Court by way of rehearing on the basis of evidence given in the Local Court. The applicant argued that her arrest was unlawful due to the arresting officer not complying with s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"). The appeal was heard by Conlon SC DCJ on 4 October 2017 and dismissed ("the conviction decision"). The applicant then applied to the District Court to submit a question of law to the Court of Criminal Appeal for determination under s 5B of the Criminal Appeal Act 1912 (NSW). The question was whether the evidence was capable of establishing beyond reasonable doubt that the arresting officer was satisfied that the arrest was "reasonably necessary" for a reason contained in s 99(1)(b) of the LEPRA. Conlon SC DCJ heard the application and dismissed it on 6 May 2019 ("the stated case decision"). The applicant then applied to this Court for an order in the nature of prerogative relief under s 69 of the Supreme Court Act 1970 (NSW). The principal issues on appeal were: 1. In relation to the conviction decision: whether the primary judge erred in finding that the arresting officer was satisfied that the applicant's arrest was "reasonably necessary" to achieve a purpose stated in s 99(1)(b) of the LEPRA, and whether any such error was jurisdictional; 2. In relation to the stated case decision: whether the primary judge erred in refusing to submit the question of law to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act, and whether any such error was jurisdictional. The Court (Macfarlan JA, White JA and Barrett AJA) allowed the appeal: In relation to Question 1: (Per Barrett AJA, Macfarlan JA agreeing): Section 99(1)(b) of the LEPRA requires an arresting officer to engage in a process of evaluative judgment and be satisfied that an arrest is "reasonably necessary" for a reason stated in that section: [53], [61]. "Reasonably necessary" connotes more than "convenient" but does not mean essential or indispensable: [55], [56]. As part of the process the officer must consider proportionate responses including alternatives to arrest: [58], [60], [62]. The evidence showed that the arresting officer did not engage at all in the process of evaluation called for by s 99(1)(b) before arresting the applicant: [68]. Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41; Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33; Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2; Robinson v State of New South Wales [2018] NSWCA 231, referred to. In the particular statutory context, the primary judge erred in law by making a finding as to the officer's state of mind that had no basis in the evidence adduced in the Local Court. Because the statutory authority of the primary judge was confined to making a decision "on the basis of" that evidence, the fact that the evidence provided no basis for the decision made caused the error to be jurisdictional: [81], [82]. Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423; [2018] FCAFC 225, applied. Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, referred to. (Per White JA): If the primary judge did err, the error was not jurisdictional. The District Court has jurisdiction pursuant to s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) to decide whether on the basis of evidence given in the Local Court the appellant's conviction should be set aside or upheld. If the Court erred in its assessment of the effect of the evidence in the Local Court, it does not follow that it would have no jurisdiction to dismiss the appeal: [14], [17]. Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92; Vok v Director of Public Prosecutions (NSW) [2019] NSWCA 242, referred to. Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, applied. In relation to Question 2: (Per Barrett AJA, Macfarlan JA and White JA agreeing at [24], [25]): Section 5B of the Criminal Appeal Act imposed a duty on the primary judge to submit the question of law to the Court of Criminal Appeal. The primary judge's refusal to submit the question for being "frivolous and baseless" was an error of law. That error amounted to jurisdictional error because there was a declination to exercise jurisdiction in circumstances where it should have been exercised: [92]. The decision insofar as it was based on the application being out of time also contained jurisdictional error: [93], [95]. West v Commonwealth Director of Public Prosecutions [1999] NSWCA 398, applied. Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185, referred to.

Judgment

MACFARLAN JA: I agree with Barrett AJA.
WHITE JA: The circumstances giving rise to this application for judicial review of orders of the District Court are set out in the reasons for judgment of Barrett AJA.
Three issues arise on the application. They are: 1. whether the District Court Judge (Conlan SC DCJ) erred in finding that the police officer in question (Leading Senior Constable Drylie) was satisfied that the applicant's arrest was reasonably necessary for one or more of the reasons stated in s 99(1)(b) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) ("LEPRA"); 2. if so, whether that error was a jurisdictional error, as no appeal lies from his Honour's orders to this Court; and 3. whether in any event the judge erred in refusing to submit the question of law propounded by the applicant to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW), and possibly, if so, whether that was jurisdictional error.
For the reasons given by Barrett AJA there are powerful reasons from which it might be concluded that the judge erred in finding that the police officer was satisfied that the arrest was reasonably necessary for any one or more of the reasons stated in s 99(1)(b) of LEPRA. I prefer not to express a concluded view on that question. If the judge did err, the error was not jurisdictional error. I have concluded that the judge's refusal to state a case to the Court of Criminal Appeal under s 5B was erroneous and was an error as to the District Court's jurisdiction so that the refusal should be set aside. Accordingly, in my view it should be a matter for the Court of Criminal Appeal, and not this Court, to determine the lawfulness of the arrest.
In saying that, I am not to be taken as disagreeing with the reasons of Barrett AJA on the first issue. I would however add the following observations.
Prior to its amendment in 2013, [1] s 99 of the LEPRA provided that a police officer must not arrest a person without warrant for the purpose of taking proceedings for an offence against the person, unless the police officer suspected on reasonable grounds that it was necessary to arrest the person to achieve one or more of the specified purposes in s 99(3). Amendments made in 2013 changed the requirement that the police officer have reasonable grounds for suspecting that the arrest was necessary for one or more of the specified purposes, to a requirement that the police officer be satisfied that the arrest was reasonably necessary for one or more of the specified purposes. The element that the police officer's suspicion be reasonable was removed. The element that the police officer be satisfied that the arrest was necessary was diluted (State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334 at [42]-[43]).
If a police officer is satisfied that an arrest is reasonably necessary for one of the stated purposes, the arrest is not unlawful merely because the police officer's satisfaction of that matter is not reasonable. The question rather is as to the police officer's state of mind as to whether the arrest is reasonably necessary for one of the stated purposes. In State of New South Wales v Randall [2017] NSWCA 88 Basten JA said at [13]: "... unlike the requirement for reasonable grounds, a challenge to the existence of a suspicion or state of satisfaction will only be available where it can be shown that the suspicion or state of satisfaction was manifestly unreasonable, [Holgate-Mohammed v Duke [1984] AC 437 at 443 (Lord Diplock), adopted in Hyder v Commonwealth [2012] NSWCA 336; 217 A Crim R 571 at 15 (McColl JA)] or 'arbitrary, capricious, irrational, or not bona fide', [R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 at 432 (Latham CJ)] as explained by Gummow J in Minister for Immigration & Multicultural Affairs v Eshetu [(1999) 197 CLR 611; [1999] HCA 21 at [131]-[137]]."
There may be many cases in which a police officer could be satisfied that an arrest was reasonably necessary for one of the stated purposes without the officer's having consciously to weigh all alternatives. A violent assault could be such a case. In Pratten v State of New South Wales [2019] NSWCA 124 McCallum JA said of the circumstances in that case (at [23]) that the process of reaching a decision to effect an arrest rather than taking some other course required little explanation in the circumstances.
Nonetheless, as Barrett AJA explains, it is not enough that the police officer effecting the arrest without warrant is satisfied that the arrest is appropriate for one of the purposes specified in s 99(1)(b). It must be reasonably necessary for one of those purposes and reasonable necessity calls for the consideration of alternatives, except perhaps if the case is so clear that no alternative could reasonably be available.
Barrett AJA's reasons for his conclusion (with which Macfarlan JA agrees) that the police officer did not consider alternatives to arrest are powerful and could lead to a conclusion that the police officer's state of mind was not that he was satisfied that the arrest was reasonably necessary. But it may be arguable that the police officer was satisfied, although not reasonably satisfied, that the arrest was reasonably necessary for one of the stated purposes.
However this may be, if it be accepted that the primary judge erred because there was no evidence that the police officer was justified in arresting the applicant, it would not follow that that would be jurisdictional error.
Section 18 of the Crimes (Appeal and Review) Act 2001 (NSW) relevantly provides: "18 Appeals against conviction to be by way of rehearing on the evidence (1) An appeal against conviction is to be by way of rehearing on the basis of evidence given in the original Local Court proceedings, except as provided by section 19. (2) Fresh evidence may be given, but only by leave of the District Court which may be granted only if the Court is satisfied that it is in the interests of justice that the fresh evidence be given."
The purpose of s 18 is to identify on what materials the District Court is to hear the appeal (AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 at [97]-[100] per Simpson JA).
The District Court has jurisdiction to decide whether on the basis of the evidence given in the original Local Court proceedings the appellant's conviction should be upheld or set aside. If there were no evidence before the Local Court that would sustain the conviction, the District Court, if correctly exercising its jurisdiction, would set aside the conviction. It does not follow that if it erred in its assessment of the effect of the evidence in the Local Court it would have no jurisdiction to dismiss the appeal.
In Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 Gleeson JA (with whom Ward JA and Johnson J agreed) said, in relation to a "no evidence" challenge: "147 The remaining grounds relate to factual challenges and the sufficiency of the evidence upon which the convictions in the Local Court were based, and the appeals to the District Court against conviction were dismissed. These complaints do not raise any question of jurisdictional error. 148 Both the Local Court and the District Court within their jurisdictional limits were exercising criminal jurisdiction in respect of federal offences. The avenue of judicial review in this court does not involve a merits review. Each of grounds (2), (4), (5), (7), (8), (10), (11) and (12) falls within this category. These complaints must be rejected."
In Vok v Director of Public Prosecutions (NSW) [2019] NSWCA 242 Meagher JA (with whom Payne JA and I agreed) said of a contention that there was no evidence to justify a finding and that this gave rise to jurisdictional error: "26 Ground 3 is that the District Court judge erred in law in upholding the conviction of the Local Court 'based on no evidence of any offence being committed' by Mr Vok. This ground appears to be addressed by contention 5, which concludes that the Crown 'failed to establish the location of the alleged puddle… failed to define the exclusion zone, [and] hence failed to prove that any offence was whatsoever committed by me'. 27 This ground should be dismissed for two reasons. First, there was evidence providing more than a sufficient basis for the District Court judge to find that each of the elements of the relevant offence was made out. That evidence included the photograph showing a puddle of water below Ms Stead's window (Ex 4), and Ms Stead's oral evidence that the puddle was 'within 1 metre, 1 and a half metres, maybe up to 2 metres of my bedroom window'. Accordingly there was no error of law constituted by the making of findings in the absence of any probative evidence supporting them: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356; [1990] HCA 33. Secondly, deciding those questions of fact was within the District Court's jurisdiction and any error in its doing so was not sufficient, without more, to engage this Court's supervisory jurisdiction: see, for example, Gelle v Director of Public Prosecutions (NSW) [2017] NSWCA 245 at [4], [72]."
Except where further evidence is adduced in the District Court, the District Court's judgment on an appeal under s 11 is to be "on the basis of the evidence given in the original Local Court proceedings". That means that the District Court has authority to determine whether the evidence given in the Local Court is capable of sustaining the conviction, and, if so, whether the weight of the evidence, having regard to the magistrate's findings, supports the conviction (Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39 at [18]-[19]; Dyason v Butterworth [2015] NSWCA 52 at [27]). [2]
The District Court judge has authority to decide, correctly or incorrectly, whether on the basis of the evidence given in the Local Court the conviction should be set aside (Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [163] (per Hayne J); Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [66]).
If the District Court only has jurisdiction to determine an appeal against conviction on what an appellate court on review considers to be the "basis of the evidence given in the original Local Court proceedings", then review for jurisdictional error would lie not only where there is no evidence to support a finding, but where the appellate court considers that the finding is against the weight of the evidence and therefore not properly based on the evidence considered as a whole.
If the District Court has no jurisdiction to make a finding that an appellate court on review considers not to be based on the evidence given in the Local Court, then the distinction between merits review and review for jurisdictional error is eviscerated.
In Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 the High Court said (at 177-178) that an inferior court would fall into jurisdictional error if it wholly mistook its jurisdiction, such as by entertaining a matter of a kind which lay outside the theoretical limits of its functions and powers, or acted wholly outside the general area of its jurisdiction by, as an example, hearing and determining a criminal charge where its jurisdiction was strictly limited to civil matters, or by making an order of a kind which it had no power to make, such as an order for specific performance where its powers were limited to awarding damages, or by doing "something which it lacks authority to do" (at 177). Examples of an inferior court falling into jurisdictional error by doing something which it lacked authority to do were given as follows (at 177-178): "If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern [ee, eg, R v Dunphy; Ex parte Maynes (1978) 139 CLR 482; R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 371; Public Service Association (SA) v Federated Clerks Union (1991) 173 CLR 132]."
In this case the District Court has authority to decide whether on the basis of the evidence given in the Local Court the conviction should be set aside or the appeal should be dismissed. None of the examples of an inferior court's falling into jurisdictional error set out in Craig v South Australia is demonstrated in this case.
For these reasons I do not agree with the orders proposed by Barrett AJA that the orders of the District Court upholding the convictions of the applicant should be quashed.
I agree with Barrett AJA that the primary judge erred in his disposition of the applicant's application for the submission of a question of law to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW). The judge correctly stated the test for referring such a question by reference to the reasons of Jordan CJ in Ex Parte McGavin; Re Berne & Ors (1946) 46 SR (NSW) 58 that: "... 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 will be an abuse of process."
The judge applied that test but considered that the question of law sought to be referred was obviously frivolous and baseless. That was a decision as to the extent and limits of the Court's jurisdiction to refer the question of law that the appellant sought to have referred to the Court of Criminal Appeal. The reasons in this court demonstrate that the judge erred in considering that the question proposed was obviously frivolous and baseless. Although the judge did not mis-state the test, his application of the test disclosed jurisdictional error.
No submission was made as to whether it was necessary for jurisdictional error to be established.
Barrett AJA has noted that no issue was raised in this Court as to whether the question proposed to be submitted to the Court of Criminal Appeal was appropriate.
For these reasons the orders I propose are: 1. Set aside the orders of the District Court made on 6 May 2019 refusing the applicant's application that a case be stated to the Court of Criminal Appeal pursuant to s 5B(2) of the Criminal Appeal Act. 2. Remit the proceeding to the District Court for the formulation of a case to be stated or a question of law to be submitted to the Court of Criminal Appeal. 3. Order that the amended summons be otherwise dismissed. 4. Order that within 21 days the parties file and serve written submissions on costs.
BARRETT AJA: On 15 February 2017, the applicant was convicted at the Local Court at the Downing Centre of one offence of resisting a police officer while in execution of duty contrary to s 58 of the Crimes Act 1900 (NSW) and two offences of intimidating a police officer while in execution of duty contrary to s 60(1) of that Act. The Local Court convictions became the subject of an appeal to the District Court. The appeal was heard by Conlon SC DCJ ("the primary judge") on 4 October 2017 and dismissed.
On 29 March 2019, the applicant applied by notice of motion in the District Court proceedings to have the primary judge [3] submit a question of law to the Court of Criminal Appeal for determination. That application was made under s 5B of the Criminal Appeal Act 1912 (NSW). The primary judge dismissed the application.
Now before this Court is an application by the applicant for relief in the nature of prerogative relief under s 69 of the Supreme Court Act 1970 (NSW). Her principal claim is for an order quashing both the decision of the District Court dismissing the appeal from the Local Court and the convictions recorded in the Local Court. As an alternative, she seeks relief having the effect of requiring submission of the particular question of law to the Court of Criminal Appeal.

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