Landsman v Director of Public Prosecutions

f New South Wales (Second Respondent) Representation: Counsel: P Lange (Applicant) C Webster SC (First Respondent) Submitting Appearance (Second Respondent Solicitors: Alexander Lawyers (Applicant) Solicitor for Public Prosecutions (First Respondent) File Number(s): CA 2013/170153 Decision under appeal Jurisdiction: 9101 Citation: R v Warren Brent Landsman Date of Decision: 2013-05-20 00:00:00 Before: Blanch CJDC File Number(s): 2011/347713

Judgment 1MACFARLAN JA: The applicant, Mr Warren Landsman, was tried in the Local Court on 22 May and 13 August 2012 on two charges of assault occasioning actual bodily harm. The applicant's case was conducted upon the basis that the prosecution evidence was not capable of satisfying the Court beyond reasonable doubt that it was the applicant who had assaulted the victims. 2After the magistrate convicted the applicant of both offences, he adjourned the proceedings to enable the applicant to be assessed for eligibility to serve his sentence in the community by way of an Intensive Correction Order (an "ICO"; see s 69(1) Crimes (Sentencing Procedure) Act 1999). Having been assessed as suitable for it, the magistrate made an ICO. Thereafter, the applicant exercised his right under s 11(1) of the Crimes (Appeal and Review) Act 2001 to appeal to the District Court against his conviction. 3The evidence upon which an appeal under s 11 against conviction in the Local Court is to proceed is identified in s 18 of the Crimes (Appeal and Review) Act as follows: "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. ..." 4Before the appeal was heard, the Crown sought leave to call on the appeal fresh evidence, to be given by Mr Paul Yeomans, a Corrective Services' Officer. The proposed fresh evidence was outlined in a statement of Mr Yeomans of 26 March 2013. Mr Yeomans stated that on 8 November 2012 he conducted an interview with the applicant for the purpose of assessing his suitability for an ICO. Mr Yeomans said that he explained the nature of an ICO to the applicant and said to him, at the commencement of the assessment, "It's important that you are honest with me regarding your answers as it helps me conduct a thorough assessment". Mr Yeomans said that the following exchange occurred during the interview: "I [s]aid - in your own words, tell me what happened on the night of the offence. He [s]aid - I was at a dress up party. I bumped into two other guys. There was a verbal altercation with these two other guys which became physical. I hit each of the males once. If sentenced to an ICO I plan to appeal based on severity." 5Mr Yeomans also said that upon returning to his office he typed a case note which included the following: "The offender stated that he understood the current charges and agreed with Police facts. The offender stated that what began as a verbal altercation soon escalated to a physical altercation where he acted first as he thought he was going to be assaulted". 6In argument in the District Court on the application to call fresh evidence, the applicant's counsel pointed out that Mr Yeomans had not warned the applicant that anything he said might be used against him on his appeal. He submitted that, although a formal caution such as is given on arrest was not necessarily required, it was unfair that the applicant had been given "an [exhortation] to say everything without any proviso about what use might be made of it subsequently" and that that unfairness should lead to the Court refusing to accede to the Crown's application. 7In granting the Crown leave to adduce the fresh evidence Blanch CJDC made the following remarks: "It appears to me that what has occurred is that the appellant has simply been honest and made a confession that he was the person who committed the assault. I have no doubt that he did that on the basis of cooperating with the probation officer bearing in mind that what was in contemplation was either a gaol sentence or a non full-time custodial sentence and it would have been very much in his interests to try to avoid going to gaol. ... One thing that does need to be looked at is the circumstances in which it arose, and that is whether there is any unfairness or impropriety in what occurred between him and the probation officer. I see nothing in what occurred to lead to any conclusion about impropriety, it is not a case where the law requires a probation officer to give a warning, the confession seems to have been one that was volunteered in the course of an overall assessment by the probation officer and in my view it is in the interests of justice that the prosecution be allowed to call the material." 8His Honour noted that the applicant would be given leave to call evidence in rebuttal, including as to an apparent defence of self-defence. 9On 20 May 2013, the applicant requested that his Honour state a case to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912. Prior to the hearing, the applicant identified the following as the form of the question he wished to be stated: "Did I err in law by holding that, within the meaning of s. 18(2) Crimes (Appeal and Review) Act 2001, it was in the interests of justice to permit the prosecution to lead fresh evidence at an appeal against a conviction recorded at the Local Court, in circumstances where such fresh evidence consisted of an admission obtained from the appellant, after he had been found guilty, and where such admission was made within the process of assessing whether the appellant was a suitable person to serve his sentence by way of intensive correction in the community?" 10Early in the course of argument on this issue, his Honour said that "it occurs to me that it's not a point of law at all, but a thinly disguised appeal against the decision which is not open on the stated case procedure". The applicant's counsel rejected that proposition and indicated that his submission was that "the Court was bound to find that it was contrary [to] the interests of justice given the circumstances in which the admission was made". Shortly thereafter, he added the following: "LANGE: Your Honour, to the extent that perhaps my poor drafting has led to your Honour's comments, perhaps if, without wishing to barter with your Honour, the question were phrased in this way, was I bound to conclude that it was not in the interests of justice when the statements relied upon by the prosecution was made after a finding of guilt and in circumstances where it was made during an assessment for an ICO. Of course, doing that on my feet. That then plainly raises a legal question whether there was a threshold[ ] determination in the assessment of whether it was in the interests of justice rather than a balancing act, which your Honour appears to be of the view that that question attacks". 11In his judgment delivered on the same day, Blanch CJDC noted he had an obligation to state a case unless the application for him to do so was frivolous or vexatious, but that this only applied if the application related to a question of law. 12His Honour then set out the terms of the question identified prior to the hearing (see [9] above) and concluded: "In my view that is simply an attempt to appeal against the decision that was made. On the facts of the case it is not a question of law. It is always open for questions of fact to be attempted to be turned into questions of law by the use of the formula such as 'Did I err in law by holding?' However, what is in reality sought to be done here is simply to appeal against a decision based on the facts of the case. In those circumstances I decline to state a question of law, because no question of law arises". 13By Summons filed in this Court on 3 June 2013, the applicant sought, under s 69 of the Supreme Court Act 1970, an order in the nature of certiorari quashing the decision of Blanch CJDC not to state a case for consideration by the Court of Criminal Appeal. The applicant contended in his Summons that his Honour erred in concluding that the question posed by the applicant was not a "question of law". In the course of argument in this Court, the applicant recognised that, to succeed, he would have to establish that his Honour committed a jurisdictional error (Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531), this being the consequence of the preclusion by s 176 of the District Court Act of other judicial review challenges to the District Court's decisions (Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; 78 NSWLR 499 at [133] - [134]). 14It is convenient to consider whether his Honour's refusal to state a case involved any error before considering whether that error was a jurisdictional error entitling the applicant to relief from this Court.

THE REFUSAL TO STATE A CASE 15Section 11(1) of the Crimes (Appeal and Review) Act 2001 confers a right of appeal to the District Court on a person who has been convicted or sentenced by the Local Court. Sections 5 and 5AA of the Criminal Appeal Act 1912, which confer rights of appeal on those convicted in the District Court either on indictment or in its summary jurisdiction, do not extend to determinations by the District Court of appeals to it against convictions or sentences in the Local Court. As a result, no further appeal lies from such a determination, the general right of appeal to the Supreme Court under s 127 of the District Court Act being inapplicable to the criminal jurisdiction of the District Court (see the definition of "action" in s 4). Section 176 of the District Court Act precludes judicial review of District Court decisions, although, as noted above, decisions infected by jurisdictional error remain open to review. 16In these circumstances, the ability and duty of a District Court judge to submit to the Court of Criminal Appeal for determination any question of law arising in an appeal to the District Court in its criminal (and special) jurisdiction is of considerable importance. This is particularly so in the present case where the Crown sought to adduce important fresh evidence at the hearing of the District Court appeal. There is no avenue available to the applicant to have the decision on that appeal reviewed on its merits. 17Section 5B(1) of the Criminal Appeal Act is in the following terms: "5B Case stated from District Court (1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit." 18District Court judges have a duty to submit a question of law to the Court of Criminal Appeal unless "the question is so obviously frivolous and baseless that its submission would be an abuse of process" (Elias v DPP [2012] NSWCA 302; 222 A Crim R 286 at [8] citing Ex parte McGavin; Re Berne (1945) 46 SR (NSW) 58), or adoption of the procedure would otherwise be an abuse of process (Elias at [9]). Although the parties are entitled to be heard on an application for a case to be stated, "[u]ltimately it is for the judge stating the case to settle the terms of the case which is stated" (Lavorato v The Queen [2012] NSWCCA 61; 82 NSWLR 568 at [73]). 19The question that the applicant formulated prior to the hearing of his application in the District Court (see [9] above) and which the judge addressed in his judgment was, in effect, whether it was in the interests of justice for leave to be granted to the Crown to adduce the fresh evidence of Mr Yeomans. The judge considered this was a question of fact. On appeal to this Court, the applicant contended that the question was one of law because it required the construction of the expression "the interests of justice" which was not an ordinary English term but a technical legal one. 20The applicant relied in this respect upon the third general proposition stated by the Full Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 322; 43 FCR 280 at 287 that the "meaning of a technical legal term is a question of law" and the High Court's apparent approval in principle of this in Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; 186 CLR 389 at 395 - 6 (see also Lombardo v Federal Commissioner of Taxation [1979] FCA 105; 40 FLR 208 at 215). 21There may have been force in this submission if the issue to which s 18(2) actually gave rise in this case was whether it was in the interests of justice that leave be given to adduce the fresh evidence. The issue was however whether the judge was satisfied that that was the case, not whether it was the case (compare Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135 at [33] - [34]). Determination by the Court of Criminal Appeal of the meaning of the expression "the interests of justice" in vacuo would not have assisted the judge in considering that issue because the term is undoubtedly of "the widest possible reference" (Herron v Attorney-General for New South Wales (1987) 8 NSWLR 601 at 613). In these circumstances, there was in my view no duty on him to refer the question to the Court of Criminal Appeal. Its referral would have been futile. 22During the hearing in the District Court of the stated case application the applicant's counsel did however seek to have the question for referral reformulated (see [10] above) to raise what in my view was a material question of law, that is, whether the uncontested facts before the judge were capable of supporting the judge's view that it was in the interests of justice that the leave sought be given or, to put it as the applicant's counsel did, whether the judge was bound to conclude that it was not in the interests of justice for leave to be given. As stated by the plurality in Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at [24], "whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law". Their Honours referred in that case with approval to the observations of Jordan CJ in Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138 that: "[I]f the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law". 23The decision of the Court of Criminal Appeal in Hammond v R [2013] NSWCCA 93 is a recent example of that Court's consideration of such a question on a stated case (see at [24]). The position is analogous where the statutory power is conditioned upon the decision maker being satisfied of identified circumstances (R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407; CHEP Australia Ltd v Strickland [2013] NSWCA 351 at [5]). The state of satisfaction must be "such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts" (Connell at 430). This cannot be so where the facts are incapable of supporting the required state of satisfaction. 24Whilst this was not the question that the applicant formulated prior to the hearing in the District Court, the applicant's counsel in my view sought the reformulation of the question in a sufficiently clear fashion to enliven the judge's duty to refer the reformulated question to the Court of Criminal Appeal. To assist him, it would of course have been entirely appropriate for his Honour to have required the applicant to produce a written reformulation of the question but his Honour did not do this. 25The reformulated question to which I have referred is in my view arguable and not one whose submission to the Court of Criminal Appeal would be futile. The alleged admissions of the applicant were made in response to the encouragement of a person in authority, the probation officer, and in a context where it was plainly indicated to the applicant, at least by implication, that from a sentencing point of view his interests lay with complete frankness. The applicant was not given any warning that what he said might be used against him on an appeal from his conviction, or otherwise. In my view he is entitled to have determined by the Court of Criminal Appeal the question of whether in these circumstances it was open to the District Court judge to be satisfied that it was in the interests of justice to permit the Crown to lead the fresh evidence of the probation officer on the applicant's appeal.

WHETHER JUDICIAL REVIEW AVAILABLE 26As noted earlier, judicial review for jurisdictional error is available notwithstanding s 176 of the District Court Act. 27In general terms, jurisdictional error occurs "if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do" (Kirk v Industrial Court at [66] citing Re Refugee Review Tribunal; ex parte Aala [2000] HCA 57; 204 CLR 82 at [163]). 28The District Court judge declined to state a case for the Court of Criminal Appeal because he did not consider that a relevant question of law arose. For the reasons I have given above, that was incorrect. As his Honour was mistaken about the extent of his jurisdiction, that is, he failed to recognise that a question of law had arisen such that he was bound to state a case, an order should be made quashing his decision. It will be for the District Court to formulate the question to be referred to the Court of Criminal Appeal to reflect the applicant's argument in the District Court to which I have referred in [22] above. In order to properly reflect the issue raised by that argument, the statement of the probation officer, Mr Yeomans, should be annexed to the stated case. It records the facts upon which the judge proceeded, these not being disputed for the purposes of the s 5B application (see Hammond v R at [11]).

ORDERS 29For these reasons I propose the following orders: (1)That the order made by Blanch CJDC on 20 May 2013 refusing to submit a question for determination by the Court of Criminal Appeal be quashed. (2)That the proceedings be remitted to the District Court to be heard and determined according to law. (3)That the respondent pay the applicant's costs of the application to this Court. 30LEEMING JA: I agree with the orders proposed by Macfarlan JA, and very substantially with his reasons, which enable me to be concise. 31I agree with Macfarlan JA for the reasons which he gives that s 5B of the Criminal Appeal Act 1912 imposes an obligation to submit questions of law to the Court of Criminal Appeal unless it would be frivolous or futile to do so. I agree that there was no duty to submit the question as originally framed by counsel for the applicant. I prefer not to express any view on whether a question framed by reference to "the interests of justice" gives rise to a question of law; as Macfarlan JA points out, the question posed by s 18(2) of the Crimes (Appeal and Review) Act 2001 turned upon the primary judge's state of satisfaction. I agree, again for the reasons given by Macfarlan JA, that the reformulated question (whether the primary judge was bound to conclude that admitting the fresh evidence was in the interests of justice) did give rise to a question of law and that that reformulated question was put forward sufficiently clearly so as to engage the duty under s 5B. 32As Macfarlan JA observes, s 5B is important for the duty it imposes upon the Judge of the District Court, from whose interlocutory or final decisions in the course of hearing an appeal from the Local Court no appeal lies. It is also important because it appoints the Court of Criminal Appeal to determine that question, and confers power upon that Court to "make any such order or give any such direction to the District Court as it thinks fit". Prima facie, the relief which may be given by the Court of Criminal Appeal exceeds that which is available in the exercise of this Court's supervisory jurisdiction. 33It is relatively common for the same court to have both appellate and supervisory jurisdiction in respect of the same order or conduct. Many of the principles governing the exercise of those overlapping jurisdictions may be seen in New South Wales Bar Association v Stevens [2003] NSWCA 95 at [11]-[14]. Speaking generally, prerogative relief, which is discretionary, is often refused because the alternative remedy of an appeal is available. Those considerations are of added force where, as here, the Legislature has provided for questions of law arising out of appeals to the District Court from the Local Court to be determined by the Court of Criminal Appeal, upon which Court a broad power to make orders and give directions has been conferred. 34Here the primary judge failed to accede to a request under s 5B. The only recourse available is this Court's supervisory jurisdiction. The exercise of that jurisdiction is discretionary. But in my opinion it is inappropriate in this case to accede to the submission advanced by the respondent that relief be refused in the exercise of that discretion. 35Counsel for the applicant advanced essentially two arguments directed to the ultimate question (namely, whether the primary judge was bound to reject the fresh evidence application). His larger submission was that s 18(2) was not available to the prosecution in any case in respect of evidence obtained after the conviction. That cannot be so. Appeals are creatures of statute, and in each case the language of the statute must be the starting point: Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; 241 CLR 390 at [89]. The appeal created by s 11 of the Crimes (Appeal and Review) Act, whose incidents are specified in s 17 and s 18, may be contrasted with prosecutors' appeals (on sentence), either to the District Court or the Land and Environment Court, in respect of which s 26(2) and s 47(2) of the same Act make special provision for the giving of fresh evidence by the prosecutor, "only in exceptional circumstances". Subsection 18(2) is in marked contrast: it speaks identically and symmetrically in relation to applications for giving fresh evidence. Where the same statute expressly qualifies the right to adduce fresh evidence in an appeal by a prosecutor, there is no textual foundation for the applicant's larger submission. 36The applicant's narrower submission was that, in the particular circumstances of this case, the Court was bound to find that the interests of justice were not advanced by permitting the fresh evidence to be given. The difficulty here is the breadth of the term "interests of justice". One aspect of the interests of justice is the important interest served by the "right to silence" (more precisely, the disparate group of immunities encompassed by that expression: see X7 v Australian Crime Commission [2013] HCA 29; 87 ALJR 858 at [40], [105]), which includes the cautious use of admissions obtained from persons in authority. But the "interests of justice" is a very wide term, of which (albeit in a different context) Kirby P has said that "there could scarcely be a wider judicial remit": Herron v Attorney-General for NSW (1987) 8 NSWLR 601 at 613. The interests of justice are capable of including a broader interest: permitting the statutory mechanism of appeals to be used appropriately and efficiently. It might be thought that it would be a large proposition to conclude that it was not possible for the primary judge, correctly applying the law to the facts of this case, to do anything other than to be satisfied that it was not in the interests of justice to permit the giving of fresh evidence. However, although the merits of that ultimate question were touched on when the application for leave was heard in the course of the parties' submissions on discretion, it was not fully argued. The structure of the legislation is that it is a matter for the Court of Criminal Appeal, and not lightly ought this Court to accede to a submission which deprives the applicant of his right to have the Court of Criminal Appeal answer that question. I agree with Macfarlan JA that it should be submitted to the Court of Criminal Appeal for determination. 37I agree with Macfarlan JA that s 176 does not stand in the way of this Court granting relief. Section 176 of the District Court Act 1973 purports to prevent an "adjudication on appeal" from being removed into the Supreme Court. It has been held that the provision requires jurisdictional error to be demonstrated: Garde v Dowd [2011] NSWCA 115; 80 NSWLR 620 at [10]; Mahmoud v Sutherland [2012] NSWCA 306 at [7]-[8] and [51] and as much was common ground when the summons for leave was heard. I agree with Macfarlan JA that by declining to submit a question of law, which, for the reasons given by Macfarlan JA with which I agree, the primary judge was bound to submit, there was jurisdictional error whose review could not be prevented by s 176. 38Finally, it is not entirely clear on the face of the record whether in fact an order was made on 20 May 2013 susceptible of being quashed. However, an order in the nature of certiorari was sought by the applicant, perhaps out of an abundance of caution, and without opposition in this respect from the respondent. Accordingly, I agree with the orders proposed by Macfarlan JA. 39SIMPSON J: I agree with Macfarlan JA.

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 November 2013