Patsalis v Attorney General for New South Wales

Judgment 1BATHURST CJ: I have had the benefit of reading the judgment of Basten JA in draft. 2I agree with his Honour for the reasons given by him that in considering the application of Mr Patsalis under s 78 of the Crimes (Appeal and Review) Act 2001, R A Hulme J was not exercising judicial power, nor did the consideration of the application by him constitute judicial proceedings. 3It follows that I agree with Basten JA that the decision of R A Hulme J to decline to order an inquiry or to refer the matter to the Court of Criminal Appeal is susceptible to judicial review for jurisdictional error. 4I also agree with Basten JA for the reasons given by him that R A Hulme J made no error of law in rejecting the application. 5It follows that the orders proposed by Basten JA should be made. 6In the circumstances, I would prefer to defer consideration of the other matters raised by Basten JA until the need arises. 7BEAZLEY P: I agree with the orders proposed by Basten JA for the reasons his Honour gives in respect of those orders. I also prefer to defer consideration of the other matters raised by Basten JA as they do not directly arise in this case. 8BASTEN JA: On 24 September 1999 the applicant, Michael Patsalis, was convicted of murder. He was sentenced to imprisonment for a minimum term of 16 years with a balance of term of 5 years 6 months. He and his co-accused, Alexios Spathis, each appealed against their convictions and sentences. On 29 November 2001 each appeal was dismissed: R v Spathis; R v Patsalis [2001] NSWCCA 476. The applicant sought leave to appeal to the High Court, but that application was refused: Patsalis v The Queen [2007] HCA Trans 651. 9His rights of appeal under the Criminal Appeal Act 1912 (NSW) were thus exhausted: Grierson v The King [1938] HCA 45; 60 CLR 431; International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; 240 CLR 319 at [129]. Nevertheless, against the possibility that matters may subsequently come to light which cast doubt upon the fairness or correctness of a conviction, there has long been power to hold an inquiry where rights of appeal have been exhausted: see eg Crimes Act 1900 (NSW), s 475 (as enacted). There has also long been a power in the Executive to confer a pardon which could, somewhat anomalously, be exercised where doubts arise with respect to a conviction or sentence: see eg Criminal Appeal Act, s 26. These provisions have since been repealed and replaced by Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) ("Appeal and Review Act"). In particular, s 78 of the Appeal and Review Act permits an application to be made to the Supreme Court by or on behalf of a convicted person, seeking an inquiry into the conviction or sentence. A copy is to be provided to the relevant Minister: s 78(2). The powers of the Supreme Court are found in s 79 which, so far as relevant, provides: 79 Consideration of applications (1) After considering an application under section 78 or on its own motion: (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: (a) it appears that the matter: (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. ... (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) The registrar of the Criminal Division of the Supreme Court must report to the Minister as to any action taken by the Supreme Court under this section (including a refusal to consider or otherwise deal with an application). 10The pardoning power has been retained in s 76 of the Appeal and Review Act, which permits a petition for review of a conviction or sentence to be made to the Governor. The Governor may direct that an inquiry be conducted by a judicial officer, refer the matter to the Court of Criminal Appeal or request the Court of Criminal Appeal to give an opinion on any particular point: s 77(1). The Governor's power to take one of those steps is limited to a case where it appears "that there is a doubt or question as to the convicted person's guilt": s 77(2). 11On 22 August 2011 the applicant submitted a petition to the Governor pursuant to s 76 of the Appeal and Review Act. On 16 April 2012 the applicant was advised that his petition had been declined. The same material, although supplemented from time to time during the course of the process, was lodged, whilst the petition to the Governor was pending, with an application under s 78 of the Appeal and Review Act. That application was referred to R A Hulme J for inquiry, pursuant to s 79(1)(a). On 20 November 2012 R A Hulme J determined that the application be refused, providing written reasons for that determination: Patsalis - Application for Inquiry into Conviction pursuant to section 78 of the Crimes (Appeal & Review) Act 2001 [2012] NSWSC 1597. 12Although the proceedings are described in s 79(4) as "not judicial proceedings", the decision in this case was entitled "judgment". Whether that appellation was correct is a matter which will need to be addressed. It may in part have been responsible for the view of the applicant that he was entitled to appeal from that decision. On 10 December 2012 he filed a notice of intention to appeal to this Court. A summons seeking leave to appeal was subsequently filed, leading to a motion by the Attorney General for New South Wales, seeking dismissal of the application on the ground that it was incompetent. That motion was heard on 17 April 2013, when the Court granted the applicant leave to file an amended summons which invoked the supervisory jurisdiction of this Court under s 69 of the Supreme Court Act 1970 (NSW): Patsalis v Attorney General for the State of New South Wales [2013] NSWCA 98. Those steps were taken without prejudice to the right of the Attorney to submit that the appeal should be dismissed as incompetent and the summons dismissed generally as incompetent on the basis that the supervisory jurisdiction of the Court did not extend to a decision of a judge of the Court sitting alone, in the exercise of non-judicial power. These are matters to which it will be necessary to return. 13It is convenient to note that the Attorney General gave notice of a constitutional matter, pursuant to s 78B of the Judiciary Act 1903 (Cth), identifying the following question: "Whether in the light of the principles discussed in Kirk v Industrial Relations [Court (NSW)] (2010) 239 CLR 531, the supervisory jurisdiction of the Court extends to the review of a decision of a single judge of the Court in relation to an application made under section 78 of the [Appeal and Review Act] seeking action under section 79(2) of [that Act] on the basis of an alleged 'doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case'." 14For the reasons given below, the proceeding should be dismissed on the basis that there is no right of appeal from the refusal of the application and that the matters relied upon by the applicant do not provide a basis for the exercise of the Court's supervisory jurisdiction, without finally determining the existence or scope of that jurisdiction. Nature of inquiry 15In order to identify the validity of the challenges by the applicant to the decision of the primary judge, it is necessary to consider the nature of the inquiry conducted by him. Both parties relied upon discussion of this issue in the cases. The significance of such discussion is, however, dependent upon an understanding of the legislative history: the relevance of an authority will be materially affected if the legislation were in a different form at the time it was decided. Central to the ultimate conclusion in the present case must be the statement in the current legislation that "[p]roceedings under [s 79] are not judicial proceedings": s 79(4). 16The legislative history has been considered in numerous cases, including White v The King [1906] HCA 53; 4 CLR 152; Varley v Attorney General (NSW) (1987) 8 NSWLR 30; Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 and Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) [2006] NSWCA 172; 66 NSWLR 151. A sufficient history is provided by Heydon J in Eastman at [64]-[71], in relation to the New South Wales provisions later adopted in the ACT. 17Two points of significance arise from that history. The first is that earlier forms of these provisions pre-dated the existence of criminal appeals. Prior to the Criminal Appeal Act 1912 (NSW), the only available means of "appeal" were by writ of error and reservation of a point of law: Eastman at [70], Heydon J, referring to the analysis of Sir James Fitzjames Stephen in A History of the Criminal Law of England (1883). The first legislative provision in this State which sought to remedy the deficiency in procedure where a doubt or question was raised with respect to a conviction was s 383 of the Criminal Law Amendment Act 1883 (NSW), which later became s 475 of the Crimes Act 1900 (NSW). As explained by McHugh J in Eastman at [8]: "Against that background, s 475 can be seen as intended to authorise the Executive government to inform itself of possible miscarriages of justice resulting from deficiencies in the evidence adduced at the trial. The section left it to the Executive government to determine whether any actual or suspected miscarriages of justice had occurred. It also left to the discretion of the Executive government what steps should be taken to remedy any actual or suspected miscarriage of justice. The remedies were of course limited and confined to commuting death sentences, granting free and conditional pardons and releasing prisoners on licence." 18Section 383 envisaged two separate procedures by which persons could be summoned and examined on oath before a justice of the peace, who was required to take down the evidence as a deposition. That step could be taken either by direction of the Governor on behalf of the Executive government, or by a judge of the Supreme Court "of his own motion". Where the depositions were transmitted to the judge, the judge was required to report to the Governor. The Governor, either on the report of the judge or on his or her own consideration of the depositions, was then to take such steps as appeared to be just. 19In Varley, this Court was concerned with an appeal from an order made by Lusher J in the Common Law Division dismissing a summons seeking an inquiry under s 475 into the applicant's conviction. The Court (Hope JA, with Samuels JA agreeing; Kirby P dissenting) held that the role of the Supreme Court under s 475, like that of the Governor, was administrative and not judicial. 20Since that judgment, the Crimes Act was amended to include a new Pt 13A, which, subject to some minor amendments, is reflected in Pt 7 of the Appeal and Review Act. In particular, s 474E (s 79 of the current legislation) contained a sub-s (4) in the same terms as s 79(4), stating that "[p]roceedings under this section are not judicial proceedings". Accordingly, there is no purpose in reviewing the analysis of this Court in Varley. Nor are the facts of Varley any longer relevant: the question in that case was whether a person could bring proceedings by summons in the Supreme Court, or whether the Court was required to act on its own motion. (The Court upheld the latter view, treating the summons as an invalid attempt to commence judicial proceedings.) The Appeal and Review Act now provides that an "application" for an inquiry may be made to the Supreme Court by the convicted person: s 78(1). 21Section 79 in effect permits the following steps to be taken in the Supreme Court, namely that the Court may: (a)consider an application for an inquiry into a conviction or sentence; (b)on its own motion, consider whether there should be an inquiry into a conviction or sentence; (c)after (a) or (b) - (i)direct that an inquiry be conducted, or (ii)refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal. 22There is a question as to the meaning of "proceedings" in s 79(4). It is unlikely that it was intended to cover a referral to the Court of Criminal Appeal. Referral of "the whole case" leads to the matter being dealt with "as an appeal" under the Criminal Appeal Act, which would involve a judicial proceeding. However, by the time that stage would be reached, the proceedings would not be "proceedings under" s 79. Whether an inquiry conducted by a judicial officer on direction of a Supreme Court judge would be a judicial proceeding is less clear. Because the judicial officer would have no other source of authority, it may well be that the inquiry is a proceeding "under" s 79. If that were so, then s 79(4) in its terms would characterize the inquiry as "not judicial proceedings". On the other hand, the reference in s 79(4) to the Supreme Court considering written submissions by the Crown "with respect to an application", suggests that the "proceedings" envisaged by that subsection may be limited to the consideration of an application for an inquiry or consideration of any matter which the Supreme Court seeks to address on its own motion. The present case involves the consideration of an application for an inquiry which did not result in a direction that an inquiry be conducted. Accordingly, it is not necessary to decide whether the inquiry would itself constitute a "judicial proceeding"; it is sufficient to conclude that the consideration of the application was, pursuant to s 79(4), not a judicial proceeding. 23The Supreme Court Act provides for an appeal from "any judgment or order of the Court in a Division": s 101(1)(a). Similar language is found in s 73 of the Constitution ("judgments, decrees, orders and sentences"), in the Judiciary Act (ss2 and 35) and many other statutes conferring appellate jurisdiction. One point made in cases discussing these provisions is that a finding of fact or a ruling on a submission is not, of itself, an operative judicial act: The Commonwealth v Mullane [1961] HCA 28; 106 CLR 166 (Dixon CJ); Salter v Director of Public Prosecutions (NSW) [2009] NSWCA 357; 75 NSWLR 392 (Spigelman CJ). Another is that a reference to a "judgment" may mean an operative order as distinguished from reasons for judgment: Driclad Pty Ltd v Commissioner of Taxation (Cth) [1968] HCA 91; 121 CLR 45 at 64 (Barwick CJ and Kitto J). Relevantly for present purposes, it has never been doubted that the language applies only to the exercise of judicial power. That is made clear by its context, namely a judgment or order "of the Court in a Division". In a passage cited with approval in this Court in Johnston v Nationwide News Pty Ltd [2005] NSWCA 17; 62 NSWLR 309 at [30] (Spigelman CJ) and in Salter at [19] (Spigelman CJ), King CJ in Legal Complaints Committee v A Practitioner (1987) 46 SASR 126 at 127 stated: "A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge." 24It follows that no appeal lay, whether by leave or otherwise, from the determination of R A Hulme J, rejecting the application for an inquiry. The only right of appeal arises pursuant to s 101 of the Supreme Court Act, which is limited to the exercise of judicial power, as opposed to administrative determinations. Review of administrative determination 25The fact that the primary judge was not exercising a judicial function does not mean that his decision was beyond review. If, for example, he purported to exercise a power which was not available as a matter of law, it may well be that this Court could intervene on the motion of a party having standing to seek the appropriate relief, either to set aside the decision or to grant a declaration. An example of superior courts exercising such powers without the perceived need to determine first whether there was jurisdiction to do so may be found in the three levels of decision in relation to a claim by David Harold Eastman that he had been unfit to plead when tried and convicted of a murder in the Australian Capital Territory: Director of Public Prosecutions (ACT) v Eastman [2002] ACTSC 35; 130 A Crim R 588 (Gray J); [2002] FCAFC 209; 118 FCR 360 (on appeal), and in the High Court, Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318. The substantive issue in those proceedings was whether s 475 of the Crimes Act 1900 (ACT), which mirrored the earlier form of s 475 in the Crimes Act 1900 (NSW), extended to an inquiry into the fitness of the offender to plead at his trial. The original determination of the Chief Justice of the ACT Supreme Court, somewhat anomalously reviewed by a single judge of that Court, was to direct an inquiry on the question of fitness to plead. 26An application by the Director for a review of that decision and for a declaration that it was not a determination available under s 475 was rejected by Gray J. That decision was reversed by the Full Court of the Federal Court, but, on further appeal, the High Court reinstated the decision of Gray J. The consequence was that the inquiry directed by the Chief Justice was allowed to continue. In the High Court, Heydon J (with whom all other members of the Court agreed other than McHugh J, who wrote separately but to similar effect) stated at [55]: "The primary issue in the appeal was the construction of s 475. Among the issues which the parties argued in writing, and came prepared to argue orally, were whether the Director had power to institute the Supreme Court proceedings; whether, if he did, he had power to appeal against Gray J's orders; whether he was a 'person aggrieved' for the purposes of the AD(JR) Act; and whether the time for commencing the second proceedings should have been extended." 27That identification of the issues does not suggest that the function of judicial review, in one form or another, was not properly invoked. Nor does any such issue appear to have been taken before Gray J. Clearly the majority in the Full Court considered that such proceedings were available, because the effect of their order was to set aside the decision of the Chief Justice to order an inquiry. Further, this Court may have power to grant declaratory relief in respect of a non-judicial determination by a single judge of the Court, purportedly exercising a statutory power, when that power is not engaged or, arguably, is exercised otherwise than in accordance with law. As explained by the majority in the Full Court of the Federal Court, it would seem to be wrong in principle that a determination to hold an inquiry, involving mandatory powers to call witnesses and subject them to examination, should be exercised in circumstances where the power to direct such an inquiry has not arisen. Similarly in a case where a review had been refused on a legally wrong basis, it would be unfortunate if the error were beyond correction. The latter example is, perhaps, less persuasive than the former: refusal to direct an inquiry may be sidestepped by a further application. Nevertheless, a further application on the same grounds might be refused without full consideration, pursuant to s 79(3). Thus, if the only obstacle to review is the fact that the repository of the power is a judge of the Court, and if the right of review arises in the case where an inquiry is granted, it should be available where an inquiry is refused. 28The question remains whether the scope of the power should be restricted to a wrongful rejection or acceptance of jurisdiction, or should extend to any error of law material to the determination. 29If there is no appeal against the determination of RA Hulme J in disposing of the application for an inquiry, the question is whether the Court can grant relief pursuant to s 69 of the Supreme Court Act. That section assumes the existence of the power of the Court of Kings Bench to review the records of inferior courts and tribunals for jurisdictional error or error of law on the face of the record, by the issue of prerogative writs. The section continues the jurisdiction but removes the power to issue a writ. It thus preserves the power to grant appropriate relief but removes the procedural technicalities which historically accompanied the exercise of the jurisdiction. With one possible qualification, it is not necessary to consider whether the procedural changes broadened the jurisdiction of the Court. 30The possible qualification relates to the principle that the prerogative writs "went only to an inferior court": Craig v The State of South Australia [1995] HCA 58; 184 CLR 163 at 174, referring to The Queen v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; 82 CLR 208 and The Queen v Gray; Ex parte Marsh [1985] HCA 67; 157 CLR 351. In Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [55] the High Court affirmed the proposition that a privative provision in State legislation "which purports to strip the Supreme Court of the State of its authority to confine inferior courts within the limits of their jurisdiction by granting relief on the ground of jurisdictional error, is beyond the powers of the State legislature." The joint reasons returned to that issue at [107], noting that "at least since federation, the State Supreme Courts have not been courts of unlimited jurisdiction." The joint reasons continued: "Just as the amenability of a judge of a federal court to a writ of prohibition does not depend upon the court of which the judge is a member being an 'inferior' court, but upon the jurisdiction of the court being limited, the amenability of the Industrial Court to the supervisory jurisdiction of the Supreme Court is a corollary of the Industrial Court being a court of limited power and the position which the State Supreme Court has in the constitutional structure." 31For those reasons, the statutory designation of the Industrial Court as a "superior court of record" did not mean that it was exempt from review and orders in the nature of certiorari: at [106]. However, that conclusion may follow from the fact that the Industrial Court was a creature of statute and its jurisdiction therefore depended upon statute, rather than the general law. The constitutionally protected jurisdiction of a State Supreme Court, as explained in Kirk, depended upon the existence of a jurisdiction at the time of federation which constituted a "defining characteristic of the Supreme Court of the State": at [55]; see also at [98]. 32The present case does not involve the operation of a statutory privative clause, but it is nevertheless necessary to identify the limits of the Court's powers with respect to the exercise of power by a judge of the Court, from whose decision there is no appeal. That question is unaffected by the reasoning in Kirk. However, the point may be resolved by the conclusion that R A Hulme J was not exercising judicial power. It may be inappropriate to divide all governmental powers of a State into the three categories of legislative, administrative (or Executive) and judicial, as distinct categories, each exclusive of the others; thus the conferral of a function on a judge of a superior court may be described as invoking a "quasi judicial" capacity. There remains a question whether the immunity from review under general law principles operates. 33In Craig, the references at footnote (52) to the limits of the writ of certiorari include R v Gray; Ex parte Marsh, at 387. Although that case dealt with control of a federal court, and the operation of s 75(v) of the Constitution, Deane J noted (at 388) that "a clear distinction was drawn between the judicial and administrative functions of the old Arbitration Court in relation to the question whether a prerogative writ could be directed to it", referring to The Queen v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; 78 CLR 389 at 399-400. 34The principle was stated in similar terms by Lord Diplock in Re Racal Communications Ltd [1981] AC 374 at 384, considering an order of the Court of Appeal setting aside a decision of a single judge to refuse an order for access to papers held by a corporation. Lord Diplock stated: "There is in my view, however, also an obvious distinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a defined question finally and conclusively or unappealably, and a similar jurisdiction conferred on the High Court or a judge of the High Court acting in his judicial capacity. The High Court is not a court of limited jurisdiction and its constitutional role includes the interpretation of written laws. There is thus no room for the inference that Parliament did not intend the High Court or the judge of the High Court acting in his judicial capacity to be entitled and, indeed, required to construe the words of the statute by which the question submitted to his decision was defined. There is simply no room for error going to his jurisdiction, nor, as is conceded by counsel for the respondent, is there any room for judicial review. Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judge's decision shall not be appealable, they cannot be corrected at all." [Emphasis added.] 35It should therefore be concluded that the immunity of a superior court judge from correction for non-jurisdictional legal error does not extend to a determination made when not acting in his or her judicial capacity. 36Re Racal Communications involved the exercise of the power of review by the Court of Appeal: the House of Lords noted that that Court was not a common law court but a statutory court and thus did not enjoy the general powers of a common law court. It is possible that the Supreme Court, even if relief were not available pursuant to s 69 of the Supreme Court Act, might have power pursuant to the general conferral of jurisdiction "necessary for the administration of justice in New South Wales", by s 23 of that Act, to make a declaration as to legal rights and obligations. 37There is a further issue as to the availability of relief in the nature of certiorari. Justice Hulme's decision did not directly affect any right or entitlement of the applicant, in the sense that it was and is open to him to make a further application, although if there were no change in the circumstances, it might be unlikely to succeed: see s 79(3) and Re Racal Communications at 385 (Lord Salmon). 38The principle as stated by the High Court appears to be that a quashing order will not be made where a decision does not directly affect the legal rights of the applicant or constitute a step in a process which may result in legal consequences: Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 at 580 (Mason CJ, Dawson, Toohey and Gaudron JJ); Hot Holdings Pty Ltd v Creasy [1996] HCA 44; 185 CLR 149 at 161-162 (Brennan CJ, Gaudron and Gummow JJ); Aronson and Groves, Judicial Review of Administrative Action (5th ed, 2013) at [12.230]. 39Following the decisions in Eastman referred to above, an inquiry was held to determine whether Mr Eastman had been unfit to plead at any stage of his trial: the judge concluded that unfitness had not been established and that there had been no miscarriage of justice. A report was made to the Attorney-General for the ACT, who advised Mr Eastman that no further action would be taken. Mr Eastman sought to challenge the conclusion of the inquiry by proceedings in the Supreme Court which invoked both the Administrative Decisions (Judicial Review) Act 1989 (ACT) and the issue of prerogative relief under the Supreme Court Act 1933 (ACT). At first instance, Lander J held that the report had no legal effect and carried no legal consequences: Eastman v Miles [2007] ACTSC 27; 210 FLR 417 at [80]. That conclusion was upheld by the Court of Appeal of the ACT: Eastman v Australian Capital Territory [2008] ACTCA 8; 227 FLR 279 at [18]. For similar reasons, Lander J concluded that no declaration should be made (at [82]), a decision accepted by the Court of Appeal at [20]-[21]. 40The assumption (noted above) that the decision to conduct an inquiry was open to review may not sit easily with the conclusion that the determination of an inquiry is not open to review. The justification may lie in the nature of each determination which, at the preliminary stage was a positive determination requiring further action, but at the inquiry stage was a negative determination not leading to further action. The present case is concerned with a negative determination at the preliminary stage. 41Aronson and Grove are critical of the decision in Eastman v Miles, suggesting that the Act should have been construed as requiring the Executive to consider the report and commenting that "[a] court should be reluctant to interpret an Act as getting a judge to engage in a wholly useless exercise": at [12.230]. The possible distinction between a negative and a positive outcome was not addressed. However it is true that the precise scope of the test laid down in Ainsworth and Hot Holdings is not easy to identify and apply. Because, for the reasons set out below, the challenge presented by the applicant must fail, it is undesirable to reach a firm conclusion as to the availability of relief, had an appropriate legal error been identified. Nature of challenge 42In order to understand the nature of the complaint made by the applicant with respect to his conviction, it is necessary to outline certain aspects of the evidence called at the trial. The factual background was summarised by the trial judge in a judgment on sentence and reproduced by Heydon JA in the Court of Criminal Appeal at [3], in the following terms: "Mr Patsalis and Mr Spathis were friends, although not of long standing. Mr Spathis had a business serving food at the Three Swallows Hotel. Mr Patsalis was a patron of that hotel. They shared certain interests. In the year or so before Mr Ludwig's murder, Mr Spathis advanced $16,500 to Mr Patsalis by way of loan. They gave strikingly different accounts of the circumstances in which the debt accumulated. It was, however, acknowledged by Mr Patsalis that certain advances had been made in circumstances where he had deceived Mr Spathis. The money was used for gambling, and lost. Mr Patsalis was not in a position to repay the loan. And so the friendship soured. It was in the context of that debt, that Mr Patsalis became acquainted with Mr Ludwig. Mr Ludwig had a small business restocking cigarette vending machines. One such machine was located in a small coffee house at Restwell Parade, Bankstown. The coffee house was frequented mainly by persons of Greek origin. They included Mr Patsalis. Mr Patsalis was attracted by a card game in which patrons played for money. Mr Patsalis met Mr Ludwig. He discussed with him the prospect of obtaining cheap cigarettes, which was a matter of interest to Mr Ludwig. Although Mr Patsalis may describe it otherwise, I am satisfied that he persuaded Mr Ludwig that he was able to arrange the supply of cheap cigarettes through contacts he had. Mr Ludwig, on the evening he met his death, believed that he was travelling to a warehouse at Botany where he would exchange the cash he was carrying ($58,500) for a large consignment of contraband cigarettes. The accounts given by Mr Patsalis and Mr Spathis as to the events before and after the stabbing of Mr Ludwig were not remarkably different. They met at 3.00pm at Mr Patsalis' flat. Thereafter a number of purchases were made. There were two pairs of gloves, two knives, a tarpaulin, and one tin of petrol. Mr Patsalis and Mr Spathis differed from each other as to the circumstances in which the purchases were made, and their knowledge of the items purchased. They both denied having any appreciation of the sinister purpose of these items, as revealed by the events of that evening. I will return to this issue shortly. Arrangements were thereafter made to meet Mr Ludwig at Bankstown. Two vehicles were driven from Bankstown to the Marrickville RSL. Mr Spathis drove his car [POZ 344]. Mr Patsalis was a passenger in the truck driven by Mr Ludwig. It was common ground that Mr Spathis, having left first, doubled back in order to follow the truck, and thereby ensure that the truck was not being followed. This fact was communicated to Mr Patsalis. Both, therefore, knew that Mr Ludwig was alone. Once at Marrickville, Mr Spathis parked his car. He then entered the truck, sitting alongside Mr Ludwig, with Mr Patsalis on the other side, nearest the door. Mr Spathis then drove to Botany. At some point the vehicle parked by the side of the road at Botany. Whilst parked, Mr Ludwig was stabbed. Mr Patsalis and Mr Spathis each blamed the other for the stabbing. Each asserted ignorance of the sinister purpose of the other. Both acknowledged that money was removed from Mr Ludwig's jacket after the stabbing by Mr Spathis. Mr Spathis asserted (and Mr Patsalis denied) that he did so at the direction of Mr Patsalis. Mr Spathis drove the truck back to Marrickville with Mr Patsalis as a passenger. Mr Ludwig's body remained in the cabin. Mr Patsalis then alighted. He thereafter drove Mr Spathis' vehicle. Mr Patsalis was covered with blood. The car seat was protected by the plastic tarpaulin purchased earlier in the day. The two vehicles were driven to Terrey Hills, although by a circuitous route. Each asserted the other led the way. At Terrey Hills the body was removed from the cabin by Mr Spathis, and left by the side of the road. It was doused in petrol. Further money was removed from the jacket of the deceased. The body was then set alight. There were differences as to who removed the money, and who set fire to the body. The vehicles then left the scene, although in circumstances which were somewhat chaotic. The burning of the body, and the rapid exit from the area, were witnessed by the occupants of a number of vehicles which were in the area. The vehicles proceeded to Mr Patsalis' flat at Homebush. Mr Spathis drove the truck, whilst Mr Patsalis remained in Mr Spathis' car. Having met at Homebush, the two vehicles were then driven to Chester Hill, where the truck was set alight. Mr Patsalis placed his bloodstained clothes inside the truck, so that they were also destroyed." 43The applicant raised a number of issues on his application for an inquiry, not all of which were expressly dealt with by R A Hulme J in his reasons for rejecting the application. He explained the approach he had taken, which was inevitably selective, given the volume of material put forward by the applicant, at [31]. The issue upon which the applicant focused in his challenge to R A Hulme J's determination concerned events following the murder. The applicant had attended Bankstown Police Station at about 6.30pm on the day after the murder. He answered certain questions and signed a handwritten record of the conversation in the notebook of a police officer. He also handed over some written notes which he had prepared and which became Exhibit G at the trial. He was not cautioned before making the statement or handing over the notes. He contended that he should have been cautioned and that police officers had lied in their evidence as to what they knew at the time he made his statement and handed over the notes. 44Before the Court of Criminal Appeal he complained that there had not been produced to him copies of police computer records for the time in question. The issue was dealt with by Heydon JA in the following passage: "[120] Patsalis indicated a desire to obtain production of certain computer records dated 12 April 1996 associated with the investigation into the murder of the victim. He described what he hoped to prove thus: 'I will prove that no police inquiry was made on the computer system until well after 6.30pm on the Friday evening of 12 April 1996. In the court transcript and on the voir dires in particular where counsel continually cross-examined the police officers their in court testimony was that at about ten past six in the evening of 12 April 1996 that they received a telephone call from particular witnesses i.e. Mr and Mrs Jeffries who passed on the car registration of POZ-344 which was the vehicle of Mr Spathis. And in turn they used that information to find out Mrs Spathis' home address at Randwick and they specifically testified to these events as being true and correct. What I will be hoping to prove to the court are two matters: one is that no search was made until after 6.30pm on that evening. Two, that the in court testimony of the police officers was from the voir dires false and two particular police officers had in fact lied. Three, it then goes to the admissibility of Ex G and how it was illegally obtained and fourthly it will allow me to make further allegations that two witnesses' statements were manufactured in the police brief and I will be able to prove all that through those two documents.' [121] Patsalis gave no satisfactory explanation for why he had taken no effective steps to obtain the documents in the twenty months that passed between his conviction and the hearing of the appeal. The Crown said it had not received any notice since the trial that Patsalis wanted the material included in the appeal papers. The Crown also said that the Registrar of this Court had warned Patsalis that all relevant material had to be before the Court by 2 July 2001. And the Crown pointed out that even if the police records recorded no call before 6.10pm, it would not follow that none had been made. None of these propositions was controverted by Patsalis. [122] Leaving aside the wholly unsatisfactory failure to bring this matter before the Court with appropriate speed and the fact that Patsalis evidently and unacceptably contemplated that the appeal could be adjourned as often and for as long as he desired, no substantive ground was made out for an adjournment of the appeal or for an order to be made under s 12 of the Criminal Appeal Act 1912. That is because the matter of whether Exhibit G was admissible was thoroughly investigated at trial. Even if the production of the documents sought might have showed that some part of the relevant police officers' evidence was mistaken, it was not shown how any part of the trial judge's reasoning in support of the admission of Exhibit G was flawed in such a way as to raise any reasonable possibility that the conclusion was wrong. [123] Further, even if further police records would reveal that Exhibit G was handed in by Patsalis at a time when one of the circumstances described in s 139(1)(a) or (5)(a), (b) or (c) of the Evidence Act 1995 existed, it is inconceivable that the trial judge would have exercised his discretion under s 138 against reception of the evidence. All the material factors bearing on the problem pointed towards admission." 45By the time of the application for an inquiry, the applicant had access to the relevant records, which he placed before R A Hulme J. After setting out the background and noting the provisions of ss 138 and 139 of the Evidence Act 1995 (NSW), dealing with evidence improperly obtained from a person under arrest who had not been informed of his or her right to silence, the judge continued: "[19] In this case, the applicant had voluntarily attended the police station, after having consulted with his solicitor. He brought the notes with him, undoubtedly for the purpose of either providing them to police or relaying to the police their contents. He went there for the purpose of giving the police his version of the events that occurred the previous day. Even if the police believed that he had committed an offence, or that one of the other matters in s 139 applied, it is inconceivable that a failure to caution would result in this evidence being held to be inadmissible. [20] A considerable amount of the purported 'fresh' or 'new' evidence, and the submissions made in support of the application, concern this issue. I have considered all the material that has been put forward and do not have the slightest doubt as to the correctness of the trial judge admitting into evidence the notes and admissions made by the applicant." 46The material which had been obtained was identified as annexures "A", "B" and "C". Annexure "A" consisted of a printout of a computer record entitled "NSW Police Service Inquiries Monitoring Report" and set out inquiries which had been made of the Roads and Traffic Authority for a car bearing registration number POZ 344 on 12 and 13 April 1996. The first recorded search, carried out by Detective Cooke, was recorded as being made at 18:37 hours on 12 April, that is after the time the applicant arrived at the police station. 47Annexure "B" was a statement prepared by Detective Senior Constable Robert Folpp. Detective Folpp had been told of the discovery of the body of the deceased at 9.40am on Friday, 12 April 1996. He had attended the location and secured the crime scene during that day, until 5pm when he returned to Mona Vale Police Station. At 6.30pm he and Detective Sergeant Fitzgibbins attended a briefing at Chatswood. He undertook further investigations later that evening. 48Annexure "C" was a statement by Detective Sergeant Olen who also attended at the crime scene on 12 April 1996. His statement revealed that at about 5.15pm he was handed two documents, including an envelope with handwriting in the following terms - "Confidential open only after 2300 on Thursday 11/4/96 don't open if I ring or contact you earlier". At about 3.30pm, Detective Olen had obtained a copy of a handwritten letter marked "K Peter Ludwig" (being the name of the deceased) and had spoken to Detective Jubelin of the Homicide Unit, and sent to him by facsimile a document "in relation to mobile phone number 019 366 513". 49The telephone number (which was the applicant's mobile number) was obtained from a letter, which referred to the applicant as "Michael", without reference to his surname. The letter recounted meeting "Michael" to "arrange things". On the basis of this material, the applicant submitted that "once the facsimiled document in relation to mobile phone number 019366513 was cross-referenced with the elements ... emanating from Mr Ludwig's letter, all the police associated in the investigation of Mr Ludwig's murder, and specifically Det Olen, Det Jubelin and Det Jacob, sometime after 3.42pm and prior to 5pm on Friday, 12 April 1996, knew the applicant's surname and had compelling and overwhelming evidence which inter alia enabled them to instantaneously consider the applicant as the Prime Suspect in Mr Ludwig's murder". 50The next step in the submission, was that Detective Jubelin, knowing that the applicant was the prime suspect, informed Detective McGillicuddy and directed Detective McGillicuddy to arrest the applicant. Detective Jubelin gave evidence that he spoke with Detective McGillicuddy at approximately 6.40pm when the latter was at Bankstown Police Station. (There was an issue as to who telephoned whom.) According to the applicant, that evidence would not be believed, if it were accepted that Detective Jubelin knew that the applicant was a prime suspect prior to 5pm that afternoon. The applicant supported his doubt as to the accuracy of the timing of the telephone calls, noting that the charge sheet recorded his arrest at Bankstown Police Station at 6.20pm on 12 April. 51The other element of the applicant's complaint is the prosecution evidence that shortly after the murder occurred, though without their knowledge of that event, a Mr and Mrs Jefferis (also referred to as Jeffries) had noted the car later identified to be that of Mr Spathis (the co-accused) being driven erratically at Terrey Hills, near the place where the victim's body had been dumped and burned. They had provided the number to the police the following morning, after learning of the discovery of the body. The applicant sought to contend, for reasons which need not be explored, that this evidence was false and that the police in fact got the details of the vehicle from the applicant himself. (Why Mr and Mrs Jefferis would be involved in a fabrication of evidence was not explained.) The allegation against them appears to have been part of a more general complaint as to fabrication of the prosecution case, rather than as part of the basis upon which the applicant's statement and notes should have been excluded. However, the submissions on this relationship were confused. 52Enough has been said to make it clear that the issues sought to be raised before R A Hulme J were matters of fact. They did not demonstrate any jurisdictional or other legal error on his part. 53Secondly, whilst it is true that R A Hulme J did not explore the detail of the allegations with respect to the state of knowledge of the police at the time the applicant attended Bankstown Police Station to make a statement, he approached the matter on the assumption that the officer who took the statement had reason to suspect the applicant and yet did not caution him before taking his statement. His conclusion that the statement would not in any event have been excluded was clearly open as a matter of fact and rendered it unnecessary to consider the basis on which the assumptions rested and therefore demonstrated no error of law. 54For these reasons, the challenge to the determination to reject the application must be dismissed. Orders 55The Court should make the following orders: (1) Dismiss the application for leave to appeal as incompetent. (2) Dismiss the summons to the extent that it seeks relief otherwise than by way of seeking leave to appeal. (3) Order the applicant to pay the costs of the respondent to the summons.

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