Orr v Cobar Management Pty Limited

Background

1. On 27 May 2019, following a hearing of some 36 days spanning 15 months between November 2017 to February 2019, the primary judge delivered reasons for judgment in a prosecution against Cobar Management Pty Ltd (Cobar): see Stephen James Orr v Cobar Management Pty Ltd [2019] NSWDC 224 (the primary judgment).
2. Mr Orr is an inspector under the WHS (MP Act) and a delegate of the regulator under the WHS Act. It was common ground that he was the Crown for the purpose of s 5AE of the Criminal Appeal Act, even though the Crown may itself be the subject of a prosecution under the WHS Act ss 245-248: see, for example, Ove Arup Pty Ltd v Industrial Court of NSW (2006) 149 IR 193; [2006] NSWCA 28 at [59]; Nash v Glennies Creek Coal Management Pty Ltd (No 3) [2013] NSWIRComm 72 at [8]; and Morrison v Peacock (2000) 110 A Crim R 454; [2000] NSWLEC 32. That is significant because it is only if the prosecutor is the Crown that the District Court judge exercising summary jurisdiction is obliged to ("must") submit questions of law for determination by the Court of Criminal Appeal, pursuant to s 5AE of the Criminal Appeal Act.
3. Cobar was prosecuted for an alleged breach of s 32 of the WHS Act, it being alleged that Cobar, having a health and safety duty under s 19(1) of the WHS Act, failed to comply with that duty and thereby exposed Mr James Hern (Mr Hern), a worker at work in the business or undertaking, to a risk of death or serious injury contrary to s 32 of that Act.
4. It suffices to note for present purposes that Mr Hern was employed in the services crew of Cobar's CSA Mine. On 11 June 2014, Mr Hern was attempting to unblock a drain hole in a flooded sump when his leg was sucked into the drain hole, trapping him under the surface of the water. Owing to the water pressure, he could not be removed from the drain hole for some time and tragically drowned.
5. Cobar pleaded not guilty to the charge under s 32 of the WHS Act. The maximum penalty for this offence by a body corporate at the time of the alleged commission of the offence was $1,500,000.
6. Section 229B(1) of the WHS Act provides: "Procedure for offences Except as provided by this section, proceedings for an offence against this Act or the regulations are to be dealt with summarily - (a) before the Local Court, or (b) before the District Court in its summary jurisdiction." The summary jurisdiction exercised by the District Court in respect of breaches of the WHS Act was formerly exercised by the NSW Industrial Relations Commission (IRC), with the jurisdiction being reassigned to the District Court by the WHS Act.
7. At [322] of the primary judgment, under the heading "Conclusion and Orders", the primary judge stated that "[t]he prosecution has not proved all of the elements of the offence beyond reasonable doubt." Earlier in his judgment, at [298] and [321], the primary judge expressed the conclusion that the prosecutor had not established elements 3 and 4 respectively of the offence charged. The obvious consequence of these conclusions is that Cobar should have been acquitted. The primary judge went on, however, to state at [323] that: "The matter is adjourned to 24 June 2019 to allow the prosecutor to consider its position in relation to an appeal pursuant to s 5AE [of the] Criminal Appeal Act 1912."
8. The characterisation of the purpose of the adjournment, namely for the prosecutor "to consider its position in relation to an appeal", was at once inaccurate but revealing. Unlike the position that previously resulted when breaches of work health and safety legislation were heard by the IRC, there is no right of appeal against an acquittal from a decision of the District Court exercising summary jurisdiction in relation to offences under the WHS Act: cf Industrial Relations Act 1996 (NSW) s 197A.
9. The primary judge's characterisation of the purpose of the adjournment was revealing, in that it was said by Cobar to highlight the true but illegitimate use of s 5AE of the Criminal Appeal Act by the prosecutor to provide a de facto right of appeal from an acquittal. This was said to be both foreign to the purpose for which s 5AE existed, and inconsistent with the absence of any right of appeal from an acquittal under the Criminal Appeal Act. A similar verbal "slip", referring to the s 5AE procedure as involving an "appeal", may be seen in Garrett at [23] ("in this appeal…").
10. Paragraph [323] of the primary judgment (extracted at [15] above) was evidently a last minute addition to the primary judge's reasons. This is made plain by a subsequent judgment (Orr v Cobar Management Pty Ltd [2019] NSWDC 796 (the subsequent judgment)), in which the primary judge observed that: "[13] On 22 May 2019 I informed the parties that the matter would be listed for judgment on 27 May 2019. [14] At 8.36am on 27 May 2019 my Associate received an email from the solicitors for the prosecutor requesting that in the event that a finding was made that the offence was not proven that the prosecutor be given the opportunity to consider his position in relation to stating a case to the Court of Criminal Appeal. [15] On 27 May 2019 I published my reasons for judgment in Orr v Cobar Management Pty Ltd [2019] NSWDC 224. I concluded that the prosecution had not proved all of the elements of the offence beyond a reasonable doubt. The proceedings were adjourned to allow the prosecutor to consider his position on this application."
11. Later in the subsequent judgment (at [29]), the primary judge said: "As to the second argument, the only order that the Court made on 27 May 2019 was to adjourn the proceedings. The statement in [322] of the judgment was a conclusion based on the evidence and on my present understanding of the law at the time of handing down those reasons."
12. Later still in the subsequent judgment (at [50]), the primary judge observed that: "The prosecutor does not contend that I misstated any aspect of the law in the principal judgment. The prosecutor does not contend that I made a factual finding in the absence of evidence."
13. Thus, what occurred on the morning of 27 May 2019 was that the primary judge, having heard a lengthy trial and detailed submissions, and having reserved judgment some 3 months earlier, delivered and published reasons for judgment which the prosecutor accepted did not involve any misstatement of the law. Those reasons found, in an unqualified way, that the prosecutor had failed to establish two elements of the offence charged beyond reasonable doubt.
14. Subsequent to the publication of the primary judgment on 27 May 2019 and the adjournment of the matter, on 8 July 2019, the prosecution served some 26 questions to be considered for stating to the Court of Criminal Appeal.
15. The primary judge heard argument on 23 October 2019, both as to the form of those questions and as to a threshold question, namely whether the District Court had jurisdiction under s 5AE of the Criminal Appeal Act to refer questions to the Court of Criminal Appeal in circumstances where it was submitted that the conclusion expressed at [322] of the primary judgment, namely that the prosecution had not proved all of the elements of the offence beyond reasonable doubt, amounted in substance to an acquittal.
16. In the subsequent judgment, the primary judge concluded that he did have jurisdiction under s 5AE of the Criminal Appeal Act to state questions of law although, as seen at [26] below, the first question that he stated in fact related to his power to do so. As to the "questions of law" propounded by the prosecutor, the primary judge noted at [51]-[52]: "[51] The crux of the prosecutor's arguments is that I made an error of law in the application of the law to the facts. [52] It is apparent that some of the questions put forward by the prosecutor are questions of law and it follows that I should state those questions. The questions raised in some instances should be revised for clarity and to simplify the stated case. I have set out the questions to be stated in Appendix B to this judgment." (emphasis added).
17. The primary judge did not submit the questions in the form propounded by the prosecutor to this Court, but rather stated six questions which his Honour considered to be questions of law, being a reformulated subset of those questions propounded by the prosecutor. As shall be seen, an issue in the hearing in this Court was whether or not the questions posed were in truth questions of law within the meaning of that expression in s 5AE(1) of the Criminal Appeal Act.
18. The terms of the stated case and the questions said to be questions of law were as follows: "I, Andrew Scotting, a Judge of the District Court of New South Wales, having on 27 May 2019 at the District Court in Sydney found that 'the prosecution has not proved all of the elements of the offence beyond reasonable doubt' in the prosecution brought by Stephen James Orr against Cobar Management Pty Ltd (CMPL) (Judgment) submit the following facts and questions of law to the Court of Criminal Appeal pursuant to section 5AE of the Criminal Appeal Act 1912: Facts In determining the prosecution against CMPL I was satisfied of the facts as found in the Judgment. Questions of Law The questions of law I now submit are: 1 Did I have the power to state the following questions of law pursuant to section 5AE of the Criminal Appeal Act 1912? 2 Was it open for me to find at [254] of the Judgment, on the facts as found, that the measure pleaded in [16] of the Amended Summons was not a reasonably practicable measure? 3 Was it open for me to find at [263] of the Judgment, on the facts as found, that the measure pleaded in [17(a)] of the Amended Summons was not a reasonably practicable measure? 4 Did I fail to apply section 18 of the Work Health and Safety Act 2011 in [264]-[285] of the Judgment? 5 Was it open for me to find at [285] of the Judgment, on the facts as found, that the measure pleaded in [17(b)] of the Amended Summons was not a reasonably practicable measure? 6 Was my finding at [281] of the Judgment, relevant to determining if the measure pleaded at [17(b)] of the Amended Summons was reasonably practicable? 7 Are the findings in [301]-[306] of the Judgment relevant to determining if the failure to take the measures pleaded in [16] and [17] of the Amended Summons were a significant or substantial cause of Mr Hern being exposed to the pleaded risk?"
19. There is no doubt that the first question (the jurisdiction question) is a question of law. Consideration of that question raised, amongst other matters, a question of the correctness of the earlier decisions of the Court of Appeal in the EPA Case and of the Court of Criminal Appeal in Grafil. It was for that reason that a bench of five judges was assembled to hear the current stated case in this Court.
20. The jurisdiction question also raised the issue as to what was the meaning of the expression "questions of law" in the context of s 5AE of the Criminal Appeal Act and as to whether or not questions 2-7, as extracted at [26] above, were properly characterised as questions of law. Cobar contended that they were not.
21. A further issue that arose and which emerged in the course of the hearing in this Court was as to whether, even if the primary judge had power to state the questions submitted and they were properly characterised as questions of law, this Court was obliged to answer them, or whether it had a discretion not to do so. The parties were at issue on that question.
22. Before turning to the jurisdiction question and the proper construction of s 5AE of the Criminal Appeal Act, it is convenient to make a number of observations about the expression "question(s) of law".

Question(s) of law

1. Almost 25 years ago, in Collector of Customs v AGFA-Gevaert Limited (1996) 186 CLR 389 at 394; [1996] HCA 36, the High Court said that "[t]he distinction between questions of fact and questions of law is a vital distinction in many fields of law". The Court continued (at 394) by observing that: "Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has as yet been formulated."
2. That observation remains as true today as when it was first made. And yet this often elusive distinction remains a feature of the statute books and there are many different statutory and other contexts in which the expression "question(s) of law" or a variant on this expression such as "a question of law alone" (see, for example, Crimes (Appeal and Review) Act ss 32, 43, 52 and 57; and Criminal Appeal Act s 14), or a "special question of law" (see, for example, Charitable Trusts Act 1993 (NSW) s 14(1)) may be found.
3. Some are provisions simply relating to appeals on a question of law: indeed, s 73(iii) of the Commonwealth Constitution makes provision for appeals to the High Court from the judgments, decrees, orders and sentences of the Inter-State Commission "but as to questions of law only"; see also, for example, Casino Control Act 1992 (NSW) s 155; National Electricity (NSW) Law s 71(1); Commercial Arbitration Act 2010 (NSW) s 34A(1); and Civil and Administrative Tribunal Act 2013 (NSW) s 83, but compare, for example, District Court Act 1973 (NSW) s 142N which, although headed "Appeal to Court of Appeal on question of law", does not use that expression in the section, but rather speaks of a party in the Court's compensation jurisdiction being aggrieved "by an award of the Court in point of law or on a question as to the admission or rejection of evidence".
4. Some are provisions providing for the referral or submission of questions of law to another Court or tribunal: see, for example, Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 351 which provides for references of "a novel or complex question of law" from an Arbitrator to the Commission, constituted by the President of the Workers Compensation Commission of New South Wales.
5. Some use the expression "question(s) of law" in the context of the awarding of costs (see, for example, Suitors' Fund Act 1951 (NSW) s 6), or in relation to the division of responsibility between a judge and a jury: see, for example, District Court Act s 77.
6. Some statutes give some guidance as to what a question of law is or may include, at least for the purposes of that particular statute: see, for example, Civil and Administrative Tribunal Act s 57(4) ("In this section, 'question of law' includes the question whether a particular question is a question of law"); Mental Health (Forensic Provisions) Act s 77A(14) ("A reference in this section to a matter of law includes a reference to a matter relating to the jurisdiction of the Tribunal"); and Crimes Act 1900 (NSW) s 327(4) which deals with the offence of perjury, and which provides that "[t]he question of whether any matter is material to a proceeding is a question of law".
7. So too the expression "question of law" in the context of s 5B of the Criminal Appeal Act has been construed and delimited as not including a question that, even if it may otherwise be characterised as a question of law, is "so obviously frivolous and baseless that its submission would be an abuse of process": Ex parte McGavin; Re Berne (1945) 46 SR (NSW) 58 at 61.
8. Some statutes differentiate between or make express reference to questions of law, questions of fact and questions of mixed law and fact: see, for example, Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 135(2); Crimes (High Risk Offenders) Act 2006 (NSW) s 22; Crimes (Administration of Sentences) Act 1999 (NSW) Sch 1 cl 22A; and Crimes (Appeal and Review) Act s 53.
9. Other statutes make reference to "errors of law": see, for example, Administrative Decisions (Judicial Review) Act 1977 (Cth) s 5(1)(f); and Supreme Court Act 1970 (NSW) ss 69(3) and 107(c). Care must be exercised, however, in using such references to inform the meaning of the expression "question of law" when used in different statutory contexts: see CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338 at [89].
10. This survey makes it clear that the expression "question(s) of law" and cognate expressions are not deployed uniformly in the statute books and, as shall also be seen, there is no universal meaning or understanding of what is a question of law. Like any statutory expression, its meaning is ultimately to be derived from its statutory context and by reference to the purpose of the provision and statute in which it appears.
11. Nor is there any uniformity as to how and when a question of law is to be referred or submitted to a court, such as the Court of Criminal Appeal, in those cases where this procedure (as opposed to an appeal) is provided for.
12. As to how a question of law is to be referred or submitted, one may compare, for example, the Workplace Injury Management and Workers Compensation Act s 351(7), which provides but does not mandate that "[t]he reference of a question of law under this section may be by stating a case on a question of law", with the Valuation of Land Act 1916 (NSW) s 42 and the Taxation Administration Act 1996 (NSW) s 106, all to like effect. In contrast, however, the Supreme Court Act s 101A(2) provides, in the context of a submission of a question of law after the conclusion of contempt proceedings where the alleged contemnor is found not to have committed the offence, that "[t]he Attorney General must submit with the question to be determined a statement of the circumstances out of which the question arose, and thereafter must furnish such further statement as the Court of Appeal may require." (emphasis added).
13. As to when a question of law is to be submitted or referred, s 5BA(2) of the Criminal Appeal Act provides that: "At the request of a person who was the appellant in an appeal 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." (emphasis added). This section contemplates the submission of a question of law from the Land and Environment Court to the Court of Criminal Appeal after the completion of proceedings. Section 5BA(2) employs essentially the same drafting as s 5B of the Criminal Appeal Act, with respect to the submission of a question of law from the District Court to the Court of Criminal Appeal. Section 5AE of the same Act (see [4] above), by way of contrast, contemplates the submission of a question of law "[a]t any time before the completion of proceedings" by the judge "hearing" the proceedings.
14. Statute apart, whether or not a matter raises a pure question of law has a well known relevance to the ability to raise fresh arguments on appeal: see Suttor v Gundowda Proprietary Limited (1950) 81 CLR 418 at 438; [1950] HCA 35; University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483; [1985] HCA 28; Coulton v Holcombe (1986) 162 CLR 1 at 7-8; [1986] HCA 33; and O'Brien v Komesaroff (1982) 150 CLR 310 at 319; [1982] HCA 33.
15. An illuminating consideration of the variable meaning of the expression "question of law" was undertaken by Spigelman CJ in Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199 (Attorney-General v X). In his judgment, the Chief Justice made a number of salient points including that:

• the formulation "question of law" employs general words capable of application at different levels of generality and that, when Parliament uses such words, it does not necessarily intend to encompass everything that is capable of falling within them: at [25];
• the determination of whether a particular alleged error in matters such as fact finding, the exercise of a discretion or a process of evaluation answers the description "question of law" will depend on the scope, nature and subject matter of the statute, including the nature of the body making the relevant decision: at [28];
• it is not necessarily the case that the meaning given to the words in one statutory context should be applied in another: at [29];
• it is often the case that analysis of whether a particular matter answers the description of "question of law" proceeds on the basis that those words are used in contra-distinction to "question of fact", and that the combination of the two formulations exhausts the whole of the relevant sphere of discourse. It is usually, but not always, useful to proceed on this basis: at [32]. In other words, the distinction is not necessarily binary.

1. Reference should also be made to Jordan CJ's well-known judgment and his discussion of the meaning of a question of law in The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126 at 137-138 (Australian Gas Light), although it is important to note that the Chief Justice prefaced and limited this section of his observations by reference to "cases in which an appellate tribunal has jurisdiction to determine only questions of law": at 137 (emphasis added). Although s 5AE of the Criminal Appeal Act with whose meaning this Court is currently engaged is concerned with the submission of questions of law to the Court of Criminal Appeal, the Court is not exercising appellate jurisdiction in any strict sense when such questions are referred. Indeed, the s 5AE jurisdiction may and most obviously will be exercised where no facts at all have been found; questions may or (where the Crown has required) must be referred by the District Court judge "at any time" before completion of proceedings. That may include at the outset of, or at a very early stage of, proceedings.
2. Where a statute affords a right of appeal on a question of law, it will necessarily be the case that the court at first instance will have found facts and applied the law to those facts to result in final orders. Where, on the other hand, a question of law may be referred to another court "for determination", that language suggests that the question will not already have been "determined" by the Court seised of the matter and, as such a reference may occur during or in the course of a hearing, facts will not (or will not usually) have been found by the court referring the question of law for determination.
3. As was noted in Bass v Permanent Trustee Company Limited (1999) 198 CLR 334 at 358; [1999] HCA 9 at [52], some questions of law can be decided without any reference to the facts, or may proceed by reference to assumed facts. These are sometimes described as "pure questions of law". This was the terminology used, for example, by Leeming and White JJA in strictly confining a grant of leave to appeal in Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62 at [11]; see also Medical Council of New South Wales v Lee [2017] NSWCA 282 at [77]; and Violi v Commonwealth Bank of Australia [2015] NSWCA 152 at [66] and [125].
4. In Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55; [2003] FCAFC 232 at [18], Branson and Stone JJ construed O 53 r 3(2) of the Federal Court Rules (Cth) in its then form as disclosing "an intention that a question of law to be raised on an appeal from the tribunal should be stated with precision as a pure question of law." See also Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; [2003] FCAFC 244 at [45]-[47] and [107].
5. R v Lewis; ex parte Attorney General [1991] 2 Qd R 294 (Lewis), referred to with apparent approval by Spigelman CJ in Attorney-General v X at [40], was a decision of the Queensland Court of Criminal Appeal in a case concerning the proper construction of s 669A of the Criminal Code (Qld). Macrossan CJ (with whom Kelly SPJ agreed) equated "point of law" in s 669A with "question of law" (at 300) and expressed the view that the expression was: "…concerned with a point involving principle capable of some general application as opposed to rulings which are dependent upon the manner in which an assessment is made of particular factual situations which are not readily capable of wider application to other situations." The Chief Justice of Queensland rejected a wide interpretation of the expression "point of law", stating (at 299) that such an interpretation "will only lead to difficulties, time-wasting effort and, at the worst, some mischievous consequences."

Questions of law in the context of Part 3 of the Criminal Appeal Act

1. Section 5AE with which the current case is concerned, falls within Part 3 of the Criminal Appeal Act. Within that section, s 5(1)(a) refers to "a question of law alone" and ss 5AE, 5A, 5B, and 5BA refer to "any question of law".
2. On orthodox principles of statutory interpretation, the same expression used in multiple sections within a single Act, still more a single Part of an Act, would ordinarily be expected to carry the same meaning although this presumption must yield to context: Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1 at 15; [1981] HCA 40; Commissioner of Taxation of the Commonwealth of Australia v Australian Building Systems Pty Ltd (In Liquidation) (2015) 257 CLR 544; [2015] HCA 48 at [27] and [120]; and see P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) at [5.170] (Interpretation).
3. Even in the context of a statute such as the Criminal Appeal Act that has been amended over time and seen the introduction of different sections within Part 3 over its long history, we would not readily be disposed to find an intention on the part of the legislature to ascribe to the same expression a different meaning.
4. This position is fortified when one also has regard to the fact that, where legislation has been amended and new sections use an expression cognate with an expression in the same statute that has previously been interpreted judicially, the legislature will generally be taken to have intended that the expression will bear the interpretation afforded to it judicially - "the best and surest mode of construing an instrument is to read it in the sense that would have been applied when it was drawn up": Corporate Affairs Commission of New South Wales v Yuill (1991) 172 CLR 319 at 322-323; [1991] HCA 28.
5. In Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96 at 106; [1994] HCA 34 (Alcan), the High Court noted that there "is abundant authority for the proposition that where the Parliament repeats words which have been judicially construed, it is taken to have intended the words to bear the meaning already 'judicially attributed to [them]'". Although the Court noted that the "validity of that proposition has been questioned" (citing Salvation Army (Victoria) Property Trust v Shire of Fern Tree Gully (1952) 85 CLR 159 at 174 and 182; [1952] HCA 4; R v Reynhoudt (1962) 107 CLR 381 at 388; [1962] HCA 23; and Flaherty v Girgis (1987) 162 CLR 574 at 594; [1987] HCA 17), the Court accepted it as a permissible approach to interpretation. Alcan was cited with approval and applied in Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489; [2015] HCA 10 at [15]; see also Interpretation at [8.60].
6. In light of these principles, it is relevant to note that s 5A(2)(a) of the Criminal Appeal Act, which was repealed in 2006 by the Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW), provided that: "Where a person tried on indictment has been acquitted (whether in respect of the whole or part of the indictment) either before or after the commencement of the Criminal Appeal (Amendment) Act 1977 the Attorney-General or Director of Public Prosecutions may at any time after the conclusion of the trial submit for determination by the Court of Criminal Appeal any question of law arising at or in connection with the trial." (emphasis added).
7. Section 5AE of the Criminal Appeal Act, in what is materially its current form, was introduced by the Crimes Legislation Amendment Act 1998 (NSW) at a time when s 5A(2) also formed part of the Act. (Although it has subsequently been amended to add a reference to the District Court exercising summary jurisdiction, s 5AE remains in materially the same form as when enacted in 1998).
8. Consistent with the principles noted at [65]-[66] above, one would not expect the expression "any question of law arising at or in reference to the proceedings" in s 5AE to bear a different meaning to the materially indistinguishable expression in s 5A(2) as it existed at the time of the introduction of s 5AE into the Criminal Appeal Act. That is significant because the expression "question of law" in the context of s 5A(2) of the Criminal Appeal Act was considered by both Lee and Hunt JJ (as the future Chief Judges in Common Law both then were) in R v J (1987) 9 NSWLR 615; (1987) 30 A Crim R 173 (R v J).
9. In passages that were referred to with evident approval by Spigelman CJ in Attorney-General v X at [41] and [42], both Lee and Hunt JJ gave to the expression "any question of law" in s 5A(2) of the Criminal Appeal Act a narrow meaning, similar to the approach taken by Macrossan CJ in Lewis (see [50] above). Thus, in R v J at 616, Lee J said: "The purpose of s 5A(2) is to provide a procedure whereby the court can pronounce upon a question of law raised that is or may be of importance in the conduct of criminal trials in this State. The mere fact that a trial judge has made an error of law will not be sufficient. The question of law raised should be one of substance, the significance of which to the criminal law does not come to an end when the trial in which it arose concludes." At 626, Hunt J said to similar effect: "There must be involved a question of sufficient substance as to justify the adoption of the procedure, and questions of transitory or minimal significance in relation to the criminal law generally or questions which do no more than establish the trial judge in the particular case made some error of law do not justify either argument before or decision by this Court pursuant to s 5A(2)."
10. For completeness it should be noted that s 5A of the Criminal Appeal Act was relocated in 2006 as s 108 of the Crimes (Appeal and Review) Act. That provision has rarely been used: see, for example, Application of Attorney General (NSW) (2014) 246 A Crim R 150; [2014] NSWCCA 251, which concerned the proper construction of provisions in the Children and Young Persons (Care and Protection) Act 1998 (NSW). The availability of a form of appeal against acquittal in s 107 of the Crimes (Appeal and Review) Act probably explains why the Crown does not seek to use the s 108 avenue. There have been a number of s 107 appeals including R v JS (2007) 230 FLR 276; [2007] NSWCCA 272; R v RK (2008) 73 NSWLR 80; [2008] NSWCCA 338 (confirmed in R v LK (2010) 241 CLR 177; [2010] HCA 17); R v IL [2016] NSWCCA 51 (overturned in IL v R (2017) 262 CLR 268; [2017] HCA 27) and R v Lazarus (2017) 270 A Crim R 378; [2017] NSWCCA 279.
11. It should also be noted that the formulation of purported questions of law in the context of s 5B of the Criminal Appeal Act has been the subject of comment, criticism and guidance by this Court and the Court of Appeal on a number of occasions: see, for example, Robinson at [7]-[10]; Elias v Director of Public Prosecutions (NSW) (2012) 222 A Crim R 286; [2012] NSWCA 302 (Elias); and, most recently, Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149 at [22]-[30]. In Sasterawan at [15], Basten JA said "[t]he questions in the present case seek to ask 'Did I err in law', which does not leave open the possibility of other forms of errors, but, at the same time, does not identify any specific question of law for determination by this Court";
12. In Elias at [18], Basten JA observed that: "What may be submitted to the Court of Criminal Appeal under s 5B is 'any question of law arising on any appeal to the District Court' from a judgment in the Local Court. That the exercise in formulating a question of law requires legal training may be accepted; however, the routine practice of ignoring guidance given by this Court and the Court of Criminal Appeal can not be justified. The preferred form of question proposed by applicants is along the lines, 'Did I err in law in making finding x?' The finding referred to is usually an ultimate conclusion which inevitably involves a composite of various legal and factual elements: see Robinson v Woolworths Ltd ... at [7]-[10]. Similar remarks were made in Sasterawan (2007) at [15]-[16]."
13. The character and form of the purported "questions of law" submitted by the primary judge to this Court form part of the larger question sought to be raised as to this Court's jurisdiction under s 5AE of the Criminal Appeal Act. It will be necessary to return to the proper characterisation and form of those questions as part of the discussion of that issue, to which attention is now turned.

The competing contentions

1. Cobar contended that, as a matter of the proper construction of s 5AE of the Criminal Appeal Act, the submission of the questions to this Court was "too late". Section 5AE only permits questions to be submitted "[a]t any time before the completion of proceedings", and it was submitted that the proceedings had, at least in substance, been completed following the handing down of the primary judgment, in which the primary judge expressed his unqualified conclusion that the prosecutor had failed to establish two elements of the offence (the construction argument). Part of this argument was to the effect that form should not be elevated over substance.
2. Cobar invoked various canons of statutory interpretation which it submitted aided its interpretation, some but not all of which were referred to in the EPA Case and Grafil. These were that s 5AE should be interpreted in such a way so as not to expose Cobar to double jeopardy (the double jeopardy argument), and should not be interpreted in a way which would, in substance, afford the prosecutor a right of appeal on questions of law, in circumstances where the legislature made no provision for an appeal from an acquittal. This statutory omission was said to be all the more significant in circumstances where an express "all grounds" right of appeal from an acquittal had existed under the Industrial Relations Act, when the summary criminal jurisdiction in respect of work, health and safety offences lay with the IRC (the de facto appeal argument).
3. The double jeopardy argument was the platform from which the Court was taken, with a degree of rhetorical flourish, to statements of high authority and powerful forensic appeal. Thus it was submitted, for example, that the fact that the Crown does not, at common law, have a right of appeal from an acquittal is a fundamental principle which may only be modified by clear statutory language, citing R v Cheng (1999) 48 NSWLR 616 at 619; [1999] NSWCCA 373 at [20] (Cheng); Potter v Minahan (1908) 7 CLR 277 at 304; [1908] HCA 63; Electrolux Home Products Pty Limited v The Australian Workers' Union (2004) 221 CLR 309 at 329; [2004] HCA 40 at [21]; see also Bropho v State of Western Australia (1990) 171 CLR 1 at 17-18; [1990] HCA 24; Coco v R (1994) 179 CLR 427 at 437-438; [1994] HCA 15.
4. It was also submitted that exposure to double jeopardy involved a violation of art 14 para 7 of the International Covenant on Civil and Political Rights, which provides that: "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country." It was put that, being an international obligation, the Court should favour a construction of s 5AE which was attuned to this obligation: see, for example, Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287; [1995] HCA 20; Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 at 363; (1908) 14 ALR 701; Polites v Commonwealth (1945) 70 CLR 60 at 68-69; [1945] HCA 3; Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31 at [134]; [2015] HCA 43.
5. The force of the so-called principle of legality or "clear statement" approach in the context of the double jeopardy argument and the de facto appeal argument really depended on the correctness of the construction argument because if, as the prosecutor contended, the expression "the completion of proceedings" in s 5AE meant their disposition by formal court order (such as an order finding or declaring the defendant to be not guilty or dismissing the summons by reference to which the prosecution was brought), there would be no double jeopardy or de facto appeal since, ex hypothesi, there would not have been any acquittal at the time of submission of questions to the Court of Criminal Appeal, no final dispositive orders having been made, and thereby nothing to appeal from.
6. Whilst Cobar pointed to cases (outside the context of s 5AE of the Criminal Appeal Act) where persons have been treated as acquitted in the absence of final dispositive orders, or at least without such orders having been formally entered (see, for example, Registrar, Court of Appeal v Craven (No 2) (1995) 120 FLR 464; (1995) 80 A Crim R 272), the prosecutor submitted that, however strong the appeal to substance over form may be in other contexts, the formality of court orders played an important and well established role in precisely delineating the end of proceedings. The certainty provided by the making of court orders allowed, for example, time for the bringing of appeals or the referral of questions, pursuant to s 5B(3) of the Criminal Appeal Act, to be calculated with clarity and confidence.
7. The prosecutor also maintained, correctly, that his construction of s 5AE was supported by the earlier decisions of the Court of Appeal and the Court of Criminal Appeal in the EPA Case and Grafil respectively.
8. Cobar recognised this and sought to counter the submission with an argument to the effect that these two decisions were "plainly wrong" and should not be followed or, alternatively, should be distinguished: see Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76, and see the valuable collection of cases dealing with the overruling of existing decisions of intermediate appellate courts in Interpretation at [33.500].
9. In this context, it was submitted that this Court should be less reluctant to overrule an earlier decision involving a matter of statutory interpretation than one involving the statement of common law doctrine. This topic is discussed in L Burton Crawford and D Meagher, "Statutory Precedents under the "Modern Approach" to Statutory Interpretation" (2020) 42 Syd Law Rev 209 but, for the reasons advanced below, we do not consider it necessary to explore this interesting question further.

The EPA Case and Grafil

1. In the EPA Case, the Court of Appeal were concerned with a situation in which Talbot J of the Land and Environment Court of New South Wales announced that he was satisfied that a party had defeated a charge of polluting by making out a statutory defence. His Honour was about to hand down his judgment and formally acquit the party when the claimant requested that the matter be stood over in order to consider requesting the judge to state a case to the Court of Criminal Appeal pursuant to s 5AE(1) of the Criminal Appeal Act. Talbot J initially agreed and then, before publishing his reasons, changed what had apparently been referred to in those reasons as "formal orders" to "proposed formal orders".
2. Subsequently, before a case was stated, the defendant objected on the basis that proceedings had been completed on 9 September 2003 when Talbot J announced that the charge had been defeated, and that, since the proceedings were completed, his Honour had no jurisdiction to state a case under s 5AE(1). Talbot J accepted this argument, recast the proposed formal orders into formal orders, and dismissed the proceedings. In doing so, his Honour held that: "I am satisfied that the words of s 5AE when applied to the circumstances of this case, even before this morning, are not in terms that are sufficiently clear to set aside the fundamental right of the defendant to have the summons dismissed. The request to state a case is refused. The request to further defer a final determination of the matter is also refused, fundamentally for the reasons that have passed in argument this morning and also reiterated in the judgment which I am about to publish. The orders in paragraph 119 of the judgment delivered on 9 September 2003 are confirmed and now made. I publish my reasons."
3. Talbot J's subsequent reasons, as reproduced in the Court of Appeal's decision, and the Court of Appeal's reasons disclose that almost exactly the same arguments and many of the same authorities (such as Cheng and Davern v Messel (1984) 155 CLR 21; [1984] HCA 34) that were rehearsed by Mr Moses SC, who appeared for Cobar in the current proceedings, were put in the EPA Case. Thus, Talbot J held that it was: "…not intended that the Crown can sit back until the final verdict is made and then seek to use the section as a general right of appeal on a question of law. Any decision that involves an error of law that occurs as a consequence of an acquittal nevertheless can be reviewed by appeal under s 5A(2) of the Criminal Appeal Act without interfering with the acquittal. The alternative procedure protects an accused from double jeopardy."
4. Talbot J also deprecated the prosecutor's approach as "akin to an abuse of process", and said that the "decision of the Court was encompassed by the short oral summary made prior to the handing down of the written judgment." Mr Moses also invoked the language of abuse of process in his submissions. This was inapposite: apart from anything else, it is difficult to see how the submission of questions to this Court by a District Court judge, even on the prosecutor's application, could attract this description.
5. Returning to the EPA Case, on an application for judicial review, the Court of Appeal declared that, upon the proper construction of s 5AE of the Criminal Appeal Act, and in the events which had happened, the primary judge had no jurisdiction to dismiss the Summons, and that decision was quashed. The proceedings were remitted to the primary judge for consideration according to law of the application that his Honour state questions of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.
6. The principal issue to be determined by the Court of Appeal concerned whether or not the request for the submission of questions of law to the Court of Criminal Appeal occurred "before the completion of proceedings before the Land and Environment Court". This turned upon the question of when the proceedings were completed. Tobias JA, with whom Meagher and Santow JJA agreed, held at [34] that he saw: "…no reason why, both as a matter of principle and common sense, it should not be concluded that proceedings in the Land Court of the nature of those presently under consideration are not concluded until that Court announces its final orders."
7. In answering this question, Tobias JA referred to a string of decisions of this Court (see, especially, R v Garnet-Thomas [1974] 1 NSWLR 702 at 705-706; Kopuz v District Court of New South Wales (1992) 28 NSWLR 232 at 244; (1992) 62 A Crim R 337 (Kopuz); and Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 at 165 (Cassell)) in relation to the cognate procedure for submission of questions of law to the Court of Criminal Appeal, provided for by s 5B of the Criminal Appeal Act. These decisions were to the effect that the proceedings were not completed until a final order had been made. In Cassell at 165, Kirby P said this in terms: "[t]he judge is not so disqualified [from submitting questions to the Court of Criminal Appeal] until the final order is pronounced". See also Kopuz at 244 and Sasterawan at [6].
8. To the extent that Tobias JA invoked "common sense" in the EPA Case at [34] to support his conclusion on the principal issue, it will frequently be necessary to know with certainty when a proceeding has finished or been completed. The making of final orders is the obvious candidate to mark that occasion. There are sound reasons for formality to take precedence in this context.
9. It is also trite that a court's judgment is represented by its orders and not its reasons for judgment, although the former may (but need not) be made at the same time as the latter are delivered.
10. The subsequent decision of the Court of Criminal Appeal in Grafil followed the reasoning in the EPA Case to reach the same conclusion, namely that proceedings were not completed for the purposes of s 5AE of the Criminal Appeal Act, until such time as formal orders had been made.

The EPA Case and Grafil should not be overruled

1. Far from being "plainly wrong" as submitted by Cobar, both the EPA Case and Grafil were, in our opinion, correctly decided.
2. Representing the well understood law and practice at the time s 5AE was introduced into the Criminal Appeal Act, the decisions referred to by Tobias JA in the EPA Case noted at [90] above form an important part of the context against which s 5AE falls to be construed. A more detailed and typically scholarly account of the history of this practice is provided by Basten JA in Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162 at [13]-[44] (Forrest).
3. It would be most surprising if, against the rich backdrop of the accumulated jurisprudence concerning s 5B of the Criminal Appeal Act, s 5AE, which sits alongside s 5B, introduced the notion that proceedings may be completed prior to the making of final orders, when considering that the s 5B jurisprudence is precisely to the opposite effect.
4. The procedure of being able to seek to have questions of law submitted to the Court of Criminal Appeal at the very heel of the hunt, even in the course of the delivery of reasons for judgment (see Sasterawan at [6], quoted in Forrest at [36]) may well have been artificial, inconvenient and unedifying but amendments to the Criminal Appeal Act, such as the introduction of s 5B(2) in 1999 which permitted questions of law to be referred in certain contexts after formal acquittal, implicitly recognised the importance of the making of formal orders as the point after which, subject to statutory exceptions such as s 5B(2), the jurisdiction to do so would be spent. Indeed, as Basten JA pointed out in Forrest at [37], in the Second Reading Speech introducing s 5B(2) of the Criminal Appeal Act, the Minister had referred to the need to ask the judge to state a case (for the purpose of referring questions of law) prior to the making of final orders (see NSW Legislative Council, Parliamentary Debates (Hansard), 17 September 1998 at 7598).
5. The decisions in the EPA Case and Grafil also highlight the fact that the double jeopardy and de facto appeal arguments relied upon in these proceedings by Cobar are question begging: their potency depends on proceedings being held to have been completed before the making of final orders but that of course is the very question of construction to be determined. There was also nothing novel about those arguments: they were made and thoroughly canvassed by Tobias JA in the EPA Case.

Other matters

1. Reference should be made to a textual argument posited during the course of the hearing, namely that insofar as s 5AE of the Criminal Appeal Act speaks of questions of law being submitted by the judge "hearing" the matter, the present tense implies that the submission of questions of law to the Court of Criminal Appeal must be made whilst the matter is still being heard, that is to say, prior to judgment being reserved.
2. Were s 5AE freestanding and its interpretation not intimately connected with s 5B and the case law associated with it, this argument may have had some appeal, although it would still have needed to overcome the common sense considerations noted at [91] above, and the conventional understanding as to when proceedings are completed. Moreover, as Kirby P said in Cassell at 165, invoking Lord Denning: "until the final order, no cause is lost and no decision made which cannot by persuasion, reconsideration (and in the case of an opinion stated pursuant to a submission of a question under s 5B), an order or direction of the Court of Criminal Appeal, produce a different result from that to which the judge has earlier proceeded."

Resolution of the jurisdiction question

1. It follows from the above that the publication of the primary judge's reasons for judgment in the present case did not preclude the subsequent submission of questions of law to this Court, as no formal orders had been made.
2. That is not, however, the end of the jurisdiction question because, if the questions submitted were not properly characterised as questions of law, this Court is not authorised to answer them. It is at this point of the argument that the analysis of the expression "question(s) of law" set out at [31]-[74] above needs to be revisited in the particular context of its use in s 5AE of the Criminal Appeal Act, bearing in mind that the meaning of that expression may be affected by context and statutory purpose.
3. The purpose of s 5AE of the Criminal Appeal Act was correctly identified by Simpson J (as her Honour then was) and with whom Bell and Buddin JJ agreed in Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289 at 299; [2004] NSWCCA 439 at [36] (Goulburn Wool). There, her Honour observed that: "… s 5AE is designed to facilitate the giving of advice by this Court to a first instance judge in order to enable the proper resolution of the issues in the proceedings. It arises where proceedings are still on foot and enables the proper and just determination of those proceedings, according to law, and in the correct application of the law. Section 5AE is expressed to apply to proceedings that have not come to an end, and which may, therefore, themselves be resolved by the determination of the questions of law ..."
4. A rather different purpose was attributed to s 5AE by Adamson J, sitting in the Court of Criminal Appeal, in Grafil. At [422], her Honour said: "The mechanism provided for under s 5AE is that questions be asked and answered. The evident intent of s 5AE is for this Court to correct errors of law before orders, which would have the effect of completing the proceedings, are made by the judge." (emphasis added). Neither Preston CJ of LEC nor Davies J expressed agreement with Adamson J's identification of the purpose of s 5AE of the Criminal Appeal Act.
5. In the present case, Cobar submitted that Adamson J's identification of the purpose of s 5AE in Grafil was plainly wrong. With respect to her Honour, we do not agree that the "evident intent" of s 5AE is for the Court of Criminal Appeal to "correct errors of law". It may well be that the "correction" of errors of law accurately describes the purpose of provisions such as s 669A of the Criminal Code (Qld) and its analogues which provide for the submission of points or questions of law following an acquittal (see, in this respect, Mellifont v Attorney General for the State of Queensland (1991) 173 CLR 289 at 304-305; [1991] HCA 53). There is a difference, however, in relation to a provision such as s 5AE where the reference or submission of question is to occur prior to the completion of proceedings.
6. In terms, the purpose of s 5AE is for this Court to determine questions of law which have been submitted to it for determination. That language presupposes that those questions of law have not first been determined by the judge who submits the questions. This is consistent with the section not operating as a surrogate right of appeal. As Hunt J (with whom Grove and Allen JJ agreed) observed in Budget Nursery Pty Limited v Commissioner of Taxation (1989) 42 A Crim R 81 at 82: "The purpose of the stated case procedure is not to provide an appeal after the judge has made his decision; the purpose is to provide him with assistance in coming to his decision." This passage was quoted with approval by Kirby P in Cassell at 166, in turn cited by Tobias JA in the EPA Case at [24].
7. Hunt CJ at CL returned to this topic with emphasis in R v Madden (1995) 85 A Crim R 367 at 370 where, with the agreement of Allen and Dunford JJ, his Honour said: "The question which is posed for this Court's determination is whether the judge's finding that the offence had been proved was erroneous in law. That is not an appropriate question to be asked in a stated case. The procedure provided by s 5B of the Criminal Appeal Act 1912 (NSW) is intended to permit the district court judge to obtain advice from this Court upon questions of law which will assist that judge in determining the fate of the appeal to that Court pursuant to s 122 of the Justices Act. The procedure is not intended to provide a means of challenging the ultimate determination made (or to be made) by the judge upon that appeal to the district court, as there is no right of appeal to this Court from that determination. The question asked here is in form no more that an attempt to exercise such a right of appeal. It is for that reason that this Court has said, and often repeated, that it is necessary that the particular question or questions of law upon which advice is to be obtained are specifically stated [See, for example, Re Van De Lubbe (at 312); Law Society v Goodwin [1972] 2 NSWLR 462 at 464]."
8. In keeping with the observations of Simpson J in Goulburn Wool, the evident purpose of the procedure provided by s 5AE is to provide a facility whereby, if there is a difficult or unsettled question of law or a question of law as to which there are conflicting authorities or no clear authority, the judge hearing the matter may or, if the Crown requires, must submit such questions to the Court of Criminal Appeal.
9. Those questions of law should be, in our opinion, what are sometimes described as "pure questions of law". They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts. The construction accords with the cases we have referred to at [48] and [70] above.
10. Further, as has been observed at [72]-[73] above, questions which take the form "Did I err in…?" are not questions of law, at least for the purposes of s 5AE (and s 5B) of the Criminal Appeal Act. Deployment of the formula "Was it open to me to find …" in our opinion carries the same vice in the context of s 5AE of the Criminal Appeal Act.
11. In our view, none of questions 2-7 submitted to this Court by the primary judge, extracted at [26] above, were "questions of law" within the meaning of that expression in s 5AE of the Criminal Appeal Act. This Court is not empowered to answer them.

Discretion

1. Even if, contrary to the above, this Court did have jurisdiction to answer questions 2 - 7 because they could properly be characterised as "questions of law", an issue arises as to whether or not this Court is obliged by s 5AE to answer such questions, or whether it may, in the exercise of its discretion, decline to answer them. If so, a further issue arises as to whether that discretion should be exercised on the facts of the current case on the hypothesis that they were questions of law.
2. Nothing in s 5AE of the Criminal Appeal Act in terms requires this Court to answer any questions submitted to it. It could be contended, however, that the words "for determination" at the end of s 5AE(1) contemplate that any questions of law submitted will be determined by the Court of Criminal Appeal. The fact that s 5AE may contemplate that outcome does not, however, mean that the questions must be answered. Further, s 5AE(2), in providing that "[t]he Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit", points in the opposite direction. Although an answer to a question may not obviously constitute "an order" or a "direction", "order" is a broad term, and answers to questions arising on a case stated are commonly so described.
3. The jurisdiction of a superior court is broadly construed and not to be cut down by implication: see The Owners of the Ship "Shin Kobe" Maru v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54. That is because any jurisdiction conferred is to be exercised "judicially". The simple conferral of jurisdiction does not, however, compel it to be exercised: see, for example, Voth v Manildra Flour Mills Proprietary Limited (1990) 171 CLR 538; [1990] HCA 55.
4. In our opinion, the jurisdiction conferred on the Court of Criminal Appeal by s 5AE of the Criminal Appeal Act to determine questions of law submitted for determination must carry with it a discretion to decline to answer such questions where the Court of Criminal Appeal considers that it is not appropriate to do so. Such instances may include cases where the questions submitted are misconceived or proceed on a false basis, or where any answer would lack utility. Another instance may include a case where underpinning the question is an argument or contention that could have been, but was not, put in the course of the hearing, and the raising of it at a very late stage of the proceedings may work procedural unfairness or vexation or oppression on a defendant.
5. Attorney-General v X provides support for the existence of such a discretion. In that case, five questions had been submitted by the Attorney-General to the Court of Appeal pursuant to s 101A(1) of the Supreme Court Act which provided: "At any time after the conclusion of contempt proceedings in which the alleged contemnor is found not to have committed contempt, the Attorney General may submit to the Court of Appeal any question of law arising from or in connection with the proceedings."
6. Spigelman CJ, with whom Priestley JA agreed, declined to answer four of these five questions referred. It is instructive to note the Chief Justice's reasons for taking this course. As for the first question, his Honour said (at [16]) that: "No submission was made that the test as stated in Question (i) was wrong. The submissions were directed to alleged errors in the application of such a test. This is reflected in the fact that the terminology of this test is relied upon in Question (v). In these circumstances it is not appropriate, in my opinion, to answer Question (i)."
7. His Honour said (at [18]-[20]) that it was not appropriate to answer the second question which was "whether his Honour in fact carried out" a balancing exercise in the circumstances of the case.
8. As to the third question submitted which was: "Whether the principles set out in Ex parte Bread Manufacturers Ltd; Re Truth and Sportsman Ltd prevent a finding of contempt in circumstances where, as his Honour found, the articles in question stated that the accused was charged with the supply of heroin and also stated that the accused was in the business of supplying heroin", his Honour said (at [21]) that: "This question refers to only two matters in the publication: that the accused was charged with the supply of heroin and that the accused was in the business of supplying heroin. The question suffers from two defects. First, it is too closely tied to the facts of the particular case to constitute a question of law. Second, it proceeds upon the assertion that it is possible to treat as a question of law, a process of evaluation based on something less than the full range of relevant facts (c/f DPP Reference (No 1 of 1984) [1984] VR 727 at 729). To mention only one such, obviously material, factor for determining the extent of the prejudice to the administration of justice, the question makes no reference to the length of time before the trial." (emphasis added) Accordingly, Spigelman CJ concluded (at [22]) that "it is not appropriate to answer this question."
9. His Honour also declined to answer the fourth question on the basis that "No submissions of the Crown were directed to this question" and it was, accordingly "not appropriate to answer this question": at [23].
10. In the present case, Mr Moses pointed to a number of considerations which he submitted should lead to this Court declining, in the exercise of its discretion, to answer the questions submitted, on the assumption that there was power to refer the questions and that they were questions of law.
11. In some respects, these considerations overlapped with the reasons why he contended that there was no jurisdiction to submit questions for determination in the first place. Thus, he emphasised that embarking on the exercise of answering the questions only had the potential to prolong lengthy criminal proceedings to which his client had already been subject, and which carried the possibility of exposing his client to double jeopardy. It was also submitted that answering the questions would undermine the apparent finality reflected in the reasons for judgment published by the primary judge on 27 May 2019, and there was said to be a gross delay in the formulation of the questions following the publication of reasons on this date.
12. Given the conclusion that properly formulated questions of law may be submitted under s 5AE of the Criminal Appeal Act at any time up until the making of final orders, submitting questions only after a judge has delivered reasons for judgment but not orders could not, per se, justify the refusal to exercise the discretion to decline to answer the questions. Something more would be required and every case will turn on its own facts. Charges of abuse of process as a reason for declining to answer questions is also likely to be problematic in circumstances where the questions under s 5AE must be submitted to the Court by the judge seised of the summary proceedings.
13. Because of the conclusions that we have reached in relation to questions 2-7, it is not necessary to consider the substance of the contention that the questions should not be answered in the exercise of the Court's discretion.

Conclusion

1. The first question submitted should be answered "No, because the questions submitted were not questions of law for the purposes of s 5AE of the Criminal Appeal Act".
2. The balance of the questions should be answered "As these questions are not questions of law, it is inappropriate to answer them".
3. The prosecutor should be ordered to pay Cobar's costs of the hearing in this Court and the matter should be remitted to the primary judge for the making of final orders.
4. JOHNSON J: I have had the considerable advantage of reading in draft the joint judgment of the Chief Justice and the President. I agree with the orders proposed by their Honours and with the reasons for those orders.
5. The present proceedings provide another telling illustration of the difficulties and complications which can arise with use of the stated case procedure in the Criminal Appeal Act 1912. In Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209, Street CJ (Slattery CJ at CL and Yeldham J agreeing) said at 211: "It should be recognised at the outset that a stated case is well-known as a cumbersome and often unsatisfactory means of bringing a matter up for consideration on appeal. There are occasionally issues of law which can conveniently be dealt with through this appellate procedure. In general, however, it is a procedure which is fraught with difficulties and the present case is no exception from that generality."
6. The stated case procedure originates from an era before the ready availability of transcripts and court judgments.
7. Until 1998, appeals by way of stated case could be brought from the Local Court to the Supreme Court in summary criminal proceedings under s.101 Justices Act 1902. The stated case procedure was abolished by the Justices Legislation Amendment (Appeals) Act 1998. In the second reading speech concerning that Act, the Attorney General said (Hansard, Legislative Council, 17 September 1998) that "procedures for appeals by way of stated case are generally regarded as being cumbersome and unwieldy" with the procedure having "few supporters among the judiciary or practitioners".
8. Part 5 of the Crimes (Appeal and Review) Act 2001 now provides for appeals by both the prosecutor and the defendant from the Local Court to the Supreme Court in criminal proceedings. Those provisions have functioned without particular difficulty in the years which have passed since the demise of the stated case procedure.
9. In 2014, the New South Wales Law Reform Commission, in Report 140 entitled "Criminal Appeals", recommended the abolition of the stated case procedure under s.5B Criminal Appeal Act 1912 (paragraphs 5.141-5.150). A further recommendation was made for the repeal of provisions allowing a trial Judge to submit a question of law arising during or after proceedings to the Court of Criminal Appeal as contained in ss.5A, 5AE, 5B, 5BA and 5BB of the Criminal Appeal Act 1912 (paragraphs 10.83-10.89). A recommendation was made for an expanded right of appeal against acquittal.
10. It is a matter for the legislature to determine the nature and scope of appeals against acquittals in criminal proceedings. In this respect, s.107 Crimes (Appeal and Review) Act 2001 provides for an appeal to this Court by the Attorney General or the Director of Public Prosecutions against an acquittal "on any ground that involves a question of law alone" in a relatively wide range of circumstances, which do not extend to a summary trial before the District Court of the type under consideration in the present proceedings.
11. What these proceedings have demonstrated, however, is that s.5AE Criminal Appeal Act 1912 is a narrow provision intended to provide authoritative assistance on questions of law to a trial Judge whilst the first instance proceedings remain on foot. As the joint judgment of the Chief Justice and the President makes clear, although the door remains open for a question of law to be referred to this Court before a final order of acquittal is made, the question must be a true question of law and not a proposition designed to ask this Court to exercise a type of final appellate function, directed to the facts of the case, which lies outside the proper scope of the section.
12. GARLING J: I agree with the orders proposed by the Chief Justice and the President for the reasons set out in their judgment.
13. LONERGAN J: I agree with the judgment of the Chief Justice and the President and I agree with the orders that they propose.

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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: 28 August 2020