(1) Procedure for case stated
5There is no appeal from a decision of the District Court in its criminal jurisdiction determining an appeal from a judgment in the Local Court. Apart from judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW), the only step available to an aggrieved party in the District Court is to invite the judge to submit for determination by this Court a question of law arising on the appeal to the District Court. That procedure is available under s 5B of the Criminal Appeal Act, which provides:
"5B Case stated from District Court
(1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit.
(2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow.
(3) The Court of Criminal Appeal may, in connection with the determination of a question of law in the circumstances referred to in subsection (2), quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court."
6The absence of any appeal from the District Court in such cases is long standing and deliberate: a case stated is not to be converted into a general right of appeal, or even one limited to error of law. Rather, the subject matter of the proceedings in this Court is identified by the questions submitted by the judge of the District Court.
7The essential step to be taken by the District Court judge, almost invariably upon the application of one party or the other, is to formulate the questions of law to be submitted. The second essential step is to identify the facts which demonstrate that the questions of law are questions "arising on" the appeal to the District Court. In the absence of an agreed statement of facts, it is necessary for the District Court judge to determine the facts in issue: cf Muin v Refugee Review Tribunal (No 3) [2000] HCA 49; 174 ALR 681 at [4] (Gaudron J).
8It is clear that the powers conferred on this Court do not include making findings of fact or drawing inferences from facts found by the Court below. In those circumstances, it is curious, to the extent of being confusing, that the Criminal Appeal Rules require that the questions submitted to the Court shall be accompanied by "a summary of the evidence and a statement showing the names of the parties and their legal representatives, if any": r 29. The evidence is, generally speaking, irrelevant to the exercise required of this Court and should generally be ignored. On the other hand, there is no reference in the Rules to the case being accompanied by the judgment below. That is probably an historical anomaly, dating from a time when the questions had to be submitted before judgment was given.
9In relying on authorities from other jurisdictions, it is important to take into account variations in legislative schemes, which are not all identical. It is possible that the scheme in this State is affected by the applicable Rules. However, r 29 is not merely anomalous, having regard to other regimes; its purpose is unclear when read in context. It cannot vary the statutory provision for determination of a question of law.
10Although there is no reference in the Rules to submissions made by the parties below, and generally submissions will be irrelevant, there may be circumstances in which it is necessary for the case stated to identify a submission in order to demonstrate that the question said to have arisen on the appeal was in fact proffered for determination by the District Court. No issue subsequently identified by the aggrieved party, not having been proffered for determination below, can form the basis of a stated case.
11A difficulty can arise where there are discrepancies or inconsistencies between the findings of fact identified by the trial judge in the stated case and those appearing from the judgment.
12Where a case is stated prior to delivery of a final judgment (as occurred in Muin) facts may be agreed. Generally speaking, however, where a case is stated following a final judgment it will be inappropriate for the stated case to identify findings of fact other than those identified in the judgment. In the present case, under the heading "My findings", the trial judge summarised the content of her judgment. That was inappropriate: all that was required (and appropriate) was to identify findings of fact made in the judgment.
13The critical part of the case stated is the setting out of the questions of law. In the present case, six questions were identified, five of which started, "Did I err in law in deciding that ...". This form of question has been criticised on more than one occasion. Such a question does not identify an error of law and, indeed, will usually obscure the fact that the particular finding about which the question is asked involved mixed questions of fact and law: see Robinson v Woolworths Ltd (T/as Woolworth Plus Petrol Werrington) [2005] NSWCCA 426; 64 NSWLR 612 at [8]; Sasterawan v Morris [2007] NSWCCA 185; 69 NSWLR 547 at [15]. To ask whether a particular conclusion was "open" on the basis of identified facts, or to ask whether the identified facts were "capable of supporting" that conclusion may well constitute a question of law, which it would be appropriate for this Court to answer.
14Finally, the requirement for questions of law to be submitted to this Court within 28 days after determination of the appeal proceedings in the District Court has consequences for the process of formulating a stated case. In Talay v R [2010] NSWCCA 308, after noting the obligation of the judge to state a case on request unless frivolous (or, in the words of Jordan CJ in Ex parte McGavin; Re Berne (1946) 46 SR (NSW) 58 at 61, "so obviously frivolous and baseless that its submission would be an abuse of process") Simpson J said that the settling of the case involved matters of "some considerable importance, in which the opposing party has an interest, and to which it is entitled to make a contribution": at [11]. Howie AJ posited an obligation to inform the prosecutor of the proposed procedure and invite his or her participation, characterised as "really a matter of procedural fairness": at [63].
15The term "procedural fairness" is sometimes used colloquially, rather than by reference to its legal meaning. It was probably intended to be used in a practical or colloquial sense by Howie AJ in Talay, no analysis being undertaken of the statutory scheme, nor any authority being cited for the proposition that the respondent to a stated case had a right to be consulted about the form of the questions or the findings of fact to be stated. The issue need not be pursued further, except that the manner in which the draft stated case came to be submitted is relevant to the need for the applicant for an extension of time.
16It is not without significance that, until 1 March 1999, a request for a case to be stated to this Court had to be made before the District Court judge actually delivered judgment on the appeal: Justices Legislation Amendment (Appeals) Act 1998 (NSW), item 2.8[1]. Not infrequently, it was only upon hearing the reasons for judgment being delivered that one party was able to identify a supposed error of law which might be placed before this Court for its determination. There could then be an unseemly attempt to interrupt the judge before he or she delivered final orders. There was then no limit on the time for submitting the case to this Court, but that step usually occurred with little delay.
17In a practical sense, there might be much to be said for the involvement of the party other than the one applying for the case to be stated; however, in the present case, the "contribution" made by the Director was to lodge detailed "submissions", together with further objections to each variation of the draft stated case. Although there are difficulties with the form of the questions stated, no material improvement occurred after the first draft stated case was lodged with the District Court judge, exactly 28 days after the appeal to that Court was dismissed. It was no doubt unfortunate (but not uncommon) that a transcript of her Honour's judgment was not immediately available, to allow for precise identification of the findings of fact which she had made. However, that provided no excuse for what followed.
18First, the applicant was undoubtedly at fault in failing to file the draft stated case with a request for submission to this Court within a few days of the judgment. Secondly, the adversarial approach of the Director was entirely inappropriate. If he thought that the questions needed to be reformulated, he should have given assistance in that regard by indicating what he thought would be an appropriate variation to the proposed questions in the draft stated case prepared by the applicant. Thirdly, both parties appear to have accepted the need (or at least the desirability) of waiting for the transcript of the judgment on sentence. Fourthly, significant further costs and delay must have been incurred through a series of "mentions" and directions hearings which then occurred before a number of judges in the District Court. That process was based on a misconception: it was a matter for the sentencing judge to determine whether she would sign or amend the draft stated case in the form in which it was submitted. At least so far as the challenge to the sentencing appeal was concerned, there was no suggestion in the material before this Court that her Honour was unavailable to perform that task, nor was there any suggestion that another judge had any involvement in the task. Given the statutory time limit, not extendable by the District Court, the judge was obliged to sign, or amend and sign the draft case expeditiously.