SASTERAWAN v MORRIS

Crimes Act 1900 (NSW), ss 178BB, 338 Crimes (Appeal and Review) Act 2001 (NSW), ss 11, 18, 20 Crimes and Court Legislation Amendment Act 2006 (NSW), Sch 1 [12] LEGISLATION CITED: Criminal Appeal Act 1912 (NSW), s 5B Criminal Procedure Act 1986 (NSW), ss 3, 11, 14, 15, 16, 17, 20, 21, 22, 126, 172, 173, 174, Ch 2, Pt 1; Ch 4, Pt 2, Div 1 National Parks and Wildlife Act 1974 (NSW), s 179 Occupational Health and Safety Act 2000 (NSW), s 106 Supreme Court Act 1970 (NSW), ss 46, 69

Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41 Charara v The Queen [2006] NSWCCA 244, (2006) 164 A Crim R 39 Dennis v Watt (1942) 59 WN(NSW) 204 Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 Epacris Pty Ltd v Director-General, Department of Natural Resources [2007] NSWCCA 76 Ex parte McGavin; Re Berne (1945) 46 SR(NSW) 58 Fordham v Fordyce [2007] NSWCA 129 Garrett v Freeman [2006] NSWCCA 278 CASES CITED: Hill v King (1993) 31 NSWLR 654 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373 Meagher v Stephenson (1993) 30 NSWLR 736 R v Janceski (2005) 64 NSWLR 10 R v Longshaw (1990) 20 NSWLR 554 Robinson v Woolworths Ltd [2005] NSWCCA 426, (2005) 64 NSWLR 612 Swansson v Regina; Henry v Regina [2007] NSWCCA 67 The Queen v Rigby (1956) 100 CLR 146

PARTIES: Wahyu Sasterawan - Appellant Judith Morris - Respondent

COUNSEL: R. Killalea - Appellant P. O'Donnell - Respondent

SOLICITORS: B. Bian, City Law Firm Pty Ltd - Appellant Smyth Wozniak - Respondent

IN THE COURT OF CRIMINAL APPEAL CCA 2007/707 DC 05/22/0149

BASTEN JA GROVE J HIDDEN J

The defendant, Mr Sasterawan, was a licensed taxi driver in NSW. On 29 March 2005, the defendant was convicted at Parramatta Local Court of three offences against s178BB Crimes Act 1900 (NSW). Each charge related to claiming moneys by fraudulently altering Cabcharge dockets. A $300 fine was imposed for each charge and orders were made as to costs. The court attendance notices for the hearing had been issued by Ms Morris, an Officer of the Ministry of Transport.

The defendant appealed to the District Court. As in the Local Court, the charge before the District Court was brought under s178BB Crimes Act. However, while the charge in the Local Court was that the defendant "made or published" or "concurred in making or publishing" Cabcharge dockets, the charges in the District Court proceedings were circumscribed to "the publishing of a statement". On 7 September 2005, Nicholson DCJ dismissed the appeal and upheld the Magistrate's orders as to penalty and costs.

After erroneously seeking to institute appeal proceedings in the Court of Appeal, the defendant obtained a form of case stated from Nicholson DCJ. The stated case was sought and submitted out of time, and the defendant sought an extension of time from the Court of Criminal Appeal pursuant to s 5B(2) Criminal Appeal Act 1912 (NSW).

(i) Whether an officer of the Ministry of Transport had authority to commence the proceedings in the Local Court.

(ii) Whether the District Court had jurisdiction to rehear the prosecution instituted by an officer of the Ministry of Transport.

(iii) Whether the District Court erred in proceeding to deal with the appeal before it by reference to charges which differed from those before the Local Court.

The Court held, in granting the extension of time and answering the questions submitted: (per Basten JA, Grove and Hidden JJ agreeing)

1. Police and public officers are not excluded from the concept of "person" under s 14 Criminal Procedure Act 1986 (NSW). There is no qualification in relation to persons who may prosecute for breaches of s 178BB Crimes Act 1900 (NSW). Accordingly any person may commence proceedings for such an offence, pursuant to s 173 Criminal Procedure Act: [22]-[23].

2. The jurisdiction of the District Court was validly invoked by the court attendance notice issued by a public officer pursuant to s173 Criminal Procedure Act 1986 (NSW): [37].

3. How the matter proceeded in the Local Court was a question of fact which was not stated to the Court by Nicholson DCJ. The Court cannot examine the transcript of prior proceedings in order to draw inferences of fact: [10], [32]. Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373; The Queen v Rigby (1956) 100 CLR 146; Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41, applied.
4. The jurisdiction of the District Court was limited to consideration of the charge laid in the Local Court, pursuant to s 11(1) Crimes (Appeal and Review) Act 2001 (NSW). However, it was open to the District Court to consider variations in the evidence or particulars, subject to the understanding that it was an appeal by way of rehearing and not a fresh trial: [34].

5. The District Court did not lack jurisdiction to hear the charges because the charge as laid in the court attendance notice was treated by the prosecution as a charge that the defendant had published a statement, and not that he had done any other act referred to in s 178BB Crimes Act 1900 (NSW): [37].

IN THE COURT OF CRIMINAL APPEAL CCA 2007/707 DC 05/22/0149

BASTEN JA GROVE J HIDDEN J

28 June 2007 Wahyu SASTERAWAN v Judith MORRIS Judgment 1 BASTEN JA: On 10 March 2004 Ms Judith Morris ("the prosecutor") issued a court attendance notice returnable on 21 May 2004 before the Local Court at Parramatta. The notice alleged that on three occasions in 2003 Mr Sasterawan ("the defendant") had altered a cabcharge document with intent to obtain a financial advantage. The charges were heard by the Local Court on 29 March 2005. The defendant was convicted on each charge and fined. 2 On a date which is not revealed in the material properly before this Court, the defendant appealed to the District Court, pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal & Review Act"). The appeal was dismissed by Nicholson DCJ, pursuant to s 20(1)(b) of that Act. 3 The matter comes before this Court on an application for an extension of time within which to appeal against his Honour's judgment, by way of a case stated pursuant to s 5B(2) of the Criminal Appeal Act 1912 (NSW). In order to deal with that application, it is necessary to give some further procedural background in relation to the steps taken by the defendant following the judgment in the District Court. The first step taken by the defendant (acting on his own behalf) on 29 September 2005 was to file a summons for leave to appeal in the Court of Appeal. That application was misconceived, there being no right of appeal, with or without leave, to the Court of Appeal. Upon appreciating that error, the defendant filed a further summons, on 7 December 2005, seeking relief in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW). That summons had not been disposed of by the time the present proceedings came before this Court. In the meantime, pursuant to a variety of steps which need not be detailed, the defendant obtained legal advice and eventually obtained from Judge Nicholson in the District Court a form of case stated to this Court. 4 As will be seen shortly, the primary issue sought to be raised on the case stated was a challenge to the authority of the prosecutor to commence the proceedings in the Local Court. The second matter sought to be raised was an alleged error on the part of the District Court in proceeding to deal with the appeal before it by reference to charges which differed from those before the Local Court. At least by 18 April 2006, when an amended summons was filed in the Court of Appeal, the first point had been identified as a basis of challenge under s 69 of the Supreme Court Act to the decision of the District Court. Other grounds were contained in the amended summons, which could have covered the second matter sought to be raised, but did not expressly do so.

Extension of time 5 Pursuant to s 5B(2) of the Criminal Appeal Act, a question of law must be submitted to this Court within 28 days of the conclusion of the appeal, or within such longer period as this Court may allow. No doubt the purpose of conferring power to extend time on this Court is to ensure that extensions of time are not given by the trial judge in circumstances where this Court would not be minded to permit a late application. However, where the District Court has no power to determine the propriety of an extension of time, it must follow that, subject to the liberty to refuse to state a case which is obviously frivolous or baseless, a District Court judge is in effect compelled to state a case despite the failure to make a request within the 28 days specified, unless satisfied that the application for an extension of time would obviously be refused as an abuse of process: see Ex parte McGavin; Re Berne (1945) 46 SR(NSW) 58 at 60 (Jordan CJ) applied in Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 at 164-165 (Kirby P, Priestley and Powell JJA relevantly agreeing). By the time the matter gets to this Court, it will be usual for both parties to have prepared full argument in relation to the substantive issues and, because of the limited nature of the jurisdiction invoked, there may be a tendency for this Court to take the course of least resistance and grant an extension of time, even where it might have been appropriate for the application to have been refused by the District Court judge as a threshold matter, had there been power to do so. 6 The right of appeal from the District Court, itself hearing an appeal from the Local Court, has been deliberately limited so that no general right of appeal is available. Where relief in the nature of prerogative writs would otherwise be available, it was open to an aggrieved party in the District Court to seek to set aside a judgment on the basis of jurisdictional error or error of law on the face of the record. However, perhaps inappropriately, such matters would go to the Court of Appeal and not to this Court, despite the criminal nature of the jurisdiction. Although it was open to the District Court to submit a question of law for determination by this Court, understandably a judge of the District Court would rarely take that option unless invited to by one of the parties. However, whether a particular question of law would arise was often not clear until the Court was giving judgment. Because the power originally conferred by s 5B applied only in proceedings which were still on foot, that could give rise to difficult questions of judgment on the part of the parties, as a request was required before a final order was pronounced: see Cassell at pp 165-166. Sometimes it was necessary to interrupt a judgment. 7 This somewhat unedifying procedure was avoided by the conferral on either party of a right to request that a case be stated, after final orders had been given, as provided in s 5B(2). However, the imposition of a 28 day limit within which to submit a question clearly involved a very limited temporal concession, because not merely the request, but also the submitting of a question to this Court, has to be effected within 28 days of the end of the appeal. Generally speaking, this Court would be reluctant to grant an extension of time, especially where the first attempt to formulate the specific questions of law to be determined occurred many months after the delivery of judgment. 8 A second reason for not granting an extension of time was that, when this matter was called for hearing in this Court, there remained on foot the summons seeking relief in the Court of Appeal. There are decisions in the Court of Appeal which suggest that it is an abuse of process to maintain an application for leave to pursue a statutory appeal and to maintain an application for judicial review: see Meagher v Stephenson (1993) 30 NSWLR 736 at 739 and Hill v King (1993) 31 NSWLR 654. On the other hand, concurrent steps may be thought appropriate where there is uncertainty as to which jurisdiction is properly invoked: see Fordham v Fordyce [2007] NSWCA 129. Under s 5B(2), a request for a case to be stated must relate to a question of law which has arisen in the appeal to the District Court. There may be a nice question in a particular case as to whether there may be a jurisdictional error (such as a want of procedural fairness) which does not involve a question of law arising on the appeal. However, it is a matter for the party seeking to challenge the judgment of the District Court to determine in which jurisdiction to proceed: it will usually be an abuse of process to maintain proceedings in this Court and, contemporaneously, in the Court of Appeal, even though the grounds may not be identical. As Spigelman CJ noted in Swansson v Regina; Henry v Regina [2007] NSWCCA 67 at [45], it is a purpose of the Criminal Appeal Act "to ensure that this Court will hear all appeals in which errors of laws are alleged to have occurred in the course of criminal proceedings". 9 No doubt anticipating that he might have difficulty in obtaining an extension of time within which to proceed by way of case stated, if the proceedings remained on foot in the Court of Appeal, at the commencement of oral argument, counsel for the defendant handed up a notice of discontinuance (although not in correct form) relating to the proceedings in the Court of Appeal. Those proceedings were accordingly dismissed by me in exercise of my power as a single judge of appeal, under s 46 of the Supreme Court Act. Questions of costs were reserved, as Mr O'Donnell, who appeared for the prosecutor, did not have instructions in that matter.

Form of case stated 10 The primary basis upon which the prosecutor sought to resist the extension of time was that the case stated had inadequate prospects of success. Before dealing with the substance of the case stated, however, it is necessary to note the constraints under which this Court operates in considering such a statutory appeal. Section 5B provides that a judge of the District Court may submit a "question of law" to this Court "for determination" and empowers this Court to make appropriate orders or give appropriate directions. What it does not do is authorise this Court to determine any questions of fact or to draw factual inferences. This Court is constrained to act on the facts as stated by the District Court: see Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373 at 381 (Isaacs J); The Queen v Rigby (1956) 100 CLR 146 at 150-151 (Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ) and Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41 at 58 (Gibbs J, Stephen, Mason, Murphy and Aickin JJ agreeing). 11 That does not mean that facts other than those expressly identified in the case stated may not be gleaned from the form of the case: see The Queen v Rigby, 100 CLR at 151. However, the Court is not obliged (nor should it be expected) to sift through documents to identify "facts found" which the applicant has not thought it necessary to include in the case requested to be stated. Nor should any different result eventuate because an application for an extension of time is required and is supported by related material. The form of a stated case has long provided difficulties for would-be appellants, and a fertile field for judicial advice: see Dennis v Watt (1942) 59 WN(NSW) 204 (Jordan CJ). 12 The facts stated by Nicholson DCJ were as follows: "At material times, Mr Sasterawan was a licensed taxi driver in New South Wales. From time to time Mr Sasterawan's passengers would pay their fares by Cabcharge dockets. On 10 March 2004 a Court Attendance Notice (CAN) was issued by the Local Court, Parramatta, requiring Mr Sasterawan to attend the Court on 21 May 2004 re 3 charges contra s 178BB of the Crimes Act 1900. The 3 charges were each particularised to the effect that Mr Sasterawan 'altered a cab charge docket' on each of 3 occasions being 24 June 2003, 22 July 2003 and 27 October 2003. The Court Attendance Notices for hearing had been issued by Judith Morris, an Officer of the Ministry of Transport. On 29 March 2005 the Local Court found each of the 3 charges proved. Mr Sasterawan appealed to the District Court from his convictions (s.11, 18 Crimes (Local Courts Appeal and Review) Act 2001 ). The appeal was heard by the District Court on 7 September 2005. The Prosecutor proceeded on the same charges (contra s 178BB, Crimes Act 1900 ) but circumscribed the charges to 'the publishing of a statement'. The accused impliedly, if not expressly, consented to that course. The accused also, impliedly if not expressly, agreed that Judith Morris, an Officer of the Ministry of Transport, was entitled to prosecute. On 7 September 2005 the District Court found that each of the 3 documents (Cabcharge dockets) was false in a material and particular and was published by the accused with an intention to obtain financial advantage." 13 The case also identified under the heading "Summary of evidence" the fact that there were exhibits and oral evidence before the District Court or the Local Court as to which "no issue is taken in these proceedings". The issue in these proceedings was said to arise upon the court attendance notice, submissions and statements by legal representatives in the District Court and the findings of the Local Court. The precise intention of these statements is unclear: merely to state that evidence was taken which was "not in issue" is not to identify a fact or make a finding of fact. It does not, in my view, justify this Court going to the exhibits or the evidence, let alone the submissions or statements recorded by the legal representatives, in order to glean some additional material to which neither the parties nor the District Court judge thought it appropriate to make specific reference in the statement of the facts. 14 The questions of law submitted for determination were as follows: "1. Did I err in law in accepting that the Local Court, Parramatta, had jurisdiction to hear the prosecution instituted by Judith Morris, an officer of the Ministry of Transport. 2. If so, or in any case, bearing in mind s 18 and s 20 of the Crimes (Appeal and Review) Act 2001, did I err in law in accepting that the District Court had jurisdiction to rehear the prosecution instituted by Judith Morris, an Officer of the Ministry of Transport. 3. Did I err in law in accepting that the District Court had jurisdiction to rehear, on the charges as pleaded in the District Court, the prosecution as heard and determined in the Local Court, Parramatta." 15 In Robinson v Woolworths Ltd [2005] NSWCCA 426, (2005) 64 NSWLR 612, I suggested that there may be some awkwardness in formulating questions in this way: at [7]-[10], Barr J agreeing at [82]. The questions in the present case seek to ask "Did I err in law", which does not leave open the possibility of other forms of error, but, at the same time, does not identify any specific question of law for determination by this Court. (This form of question seems not uncommon, but is not therefore appropriate: see Garrett v Freeman [2006] NSWCCA 278 at [43].) 16 If the first question had been formulated in terms as, 'Was the prosecutor a public officer authorised to commence the proceedings?' the possibility that at least two questions of fact might be involved would have been readily apparent. Some statutes provide that proceedings may only be instituted by an individual holding a particular office or with the written consent of such an individual: see, eg, Occupational Health and Safety Act 2000 (NSW), s 106; see also National Parks and Wildlife Act 1974 (NSW), s 179 considered in Garrett v Freeman [2006] NSWCCA 278. Such difficulties did not arise in the present case for two reasons: first, it was accepted that the prosecutor, described in the statement of facts as "an Officer of the Ministry of Transport" was a "public officer" within the meaning of that term in s 3(1) of the Criminal Procedure Act. Secondly, it was not argued that the prosecutor was required to have authority pursuant to a statutory power to confer authority, but only that she had or did not have authority by direct operation of the relevant statutory provisions. 17 The provisions relied on were ss 14, 172, 173 and 174 of the Criminal Procedure Act 1986 (NSW). It is convenient to commence with s 172, which provides that proceedings for an offence are to be commenced "by the issue and filing of a court attendance notice in accordance with this Division": s 172(1). The following two sections then provided, as in force in March 2004: " 173 Commencement of proceedings by police officer or public officer If a police officer or public officer is authorised to commence proceedings for an offence against a person, the officer may commence the proceedings by issuing a court attendance notice and filing the notice in accordance with this Division. 174 Commencement of private prosecutions (1) If a person other than a police officer or public officer is authorised to commence proceedings for an offence against a person, the person may commence the proceedings by issuing a court attendance notice, signed by a registrar, and filing the notice in accordance with this Division." 18 The intention of ss 173 and 174 was to require that a notice, issued otherwise than by a police officer or public officer with authority to do so, must be issued by the registrar. The registrar must be satisfied that the notice discloses grounds for the proceedings, that it is in the appropriate form and that no ground for refusal, identified in the rules, is applicable: s 174(2). 19 The provisions set out above are found in Chapter 4, Part 2, Division 1 of the Criminal Procedure Act. The other relevant provision, s 14, is found in Chapter 2, Part 1 and provides: " 14 Common informer A prosecution or proceeding in respect of any offence under an Act may be instituted by any person unless the right to institute the prosecution or proceeding is expressly conferred by that Act on a specified person or class of persons." 20 The case for the prosecutor was quite simple: she asserted that her authority to commence proceedings was derived from s 14, she being a person and a prosecution under s 178BB of the Crimes Act 1900 (NSW) not being the subject of any restriction requiring it to be instituted by any particular person or class of persons. Further, she, being a public officer, was entitled to commence proceedings by issuing the court attendance notice in her own name, pursuant to s 173. 21 The notice in question, which was before this Court, was, as the trial judged stated, issued by the prosecutor and not signed by a registrar. Accordingly, to be valid it must have been issued pursuant to s 173. The defendant's contention was, in effect, that ss 173 and 174 dealt separately with two groups, namely police and public officers on the one hand and private persons on the other. Section 14 provided authority for private persons to commence prosecutions, but police and public officers required specific authority from another source. Reliance on separate sources of authority was said to derive from the reflection in the separate provisions of historical developments, which commenced with a common law power in private persons to institute prosecutions which, over time, has in practical terms been eroded by the formation of regular police forces and offices of public prosecutions. 22 The historical description may be conceded, but it provides little guidance in relation to the language of the Criminal Procedure Act. Section 14 is unambiguous and clear in the breadth of its operation. There is no basis for reading it down to exclude from the concept of "person" those persons who may happen to be police officers or public officers. Similarly, the purpose of ss 173 and 174 is also clear. Those provisions say nothing about the source of authority to institute proceedings: each commences with the conditional, 'if … is authorised to commence proceedings'. The purpose is to place a control on persons other than police and public officers, no doubt to ensure that members of the public are not vexed by private prosecutions which have no proper basis in law, being a control placed in the hands of a registrar. Each of ss 14, 173 and 174 is qualified to reflect the fact that some statutory offences, including some which arise under the Crimes Act, are subject to restrictions on authority to prosecute for their contravention: see, eg, Crimes Act, s.338 (perjury). 23 There is no qualification in relation to persons who may prosecute for breaches of s 178BB of the Crimes Act. Accordingly, any person may commence proceedings for such an offence, pursuant to s 14 of the Criminal Procedure Act. If the person who in fact commences proceedings is a public officer, as the prosecutor in the present case was, the procedure for issuing a court attendance notice, pursuant to s 173 of the Criminal Procedure Act, is available. 24 The substance of the legal challenge which was apparently intended to form the basis of questions 1 and 2 in the case stated must fail. However, even if the legal issues had had some substance, the defendant would have needed to overcome two further difficulties. First, although the questions were formulated in terms which suggested that the District Court judge had "accepted" that both the Local Court and the District Court had jurisdiction to hear and re-hear the prosecutions respectively, in fact there is serious doubt as to whether any question as to the jurisdiction of either Court "arose" in the proceedings below. Counsel for the defendant acknowledge that neither Court had been required to rule on the challenge to jurisdiction now sought to be raised. No ruling was identified in the facts stated. 25 Secondly, had there been some error in the manner in which the proceedings were commenced, it would have been necessary to demonstrate that, as a matter of law, there was a defect in the notice which did not fall within the exclusion of the right to take objections under s 16 of the Criminal Procedure Act, applicable to a court attendance notice by virtue of s 15(2). Although the defendant sought to call in aid the decision of this Court in R v Janceski (2005) 64 NSWLR 10, the lack of authority which invalidated the criminal proceedings in that case arose from a failure by the Director of Public Prosecutions to give written authority to a person other than a Crown prosecutor to sign an indictment, in contravention of s 126(2) of the Criminal Procedure Act. The amendment to s 16(1), by the addition of par (i), has ensured that such an objection would not now succeed. However, it does not follow that questions of authority relating to the commencement of criminal proceedings will necessarily fall outside the privative provision, commonly known as a Lord Jervis' Act provision, now found in s 16: see, eg, Garrett v Freeman [2006] NSWCCA 278 and Epacris Pty Ltd v Director-General, Department of Natural Resources [2007] NSWCCA 76. These additional issues need not be pursued further in this case. 26 Since the commencement of these proceedings, the question sought to be agitated has been put beyond doubt by the insertion in s 173, after the word "authorised", the words "under section 14 of this Act or under any other law": see Crimes and Courts Legislation Amendment Act 2006 (NSW), Schedule 1 [12]. However, that amendment cannot affect the resolution of the question raised as to the validity of a notice issued in March 2004.

Variation in charge 27 The third question, although somewhat obliquely, sought to raise an entirely separate issue, namely whether the charges as prosecuted before the District Court were "different" charges to those on which the defendant was found guilty by the Local Court and, if so, whether the District Court had jurisdiction to hear such fresh charges. 28 To understand the substance of this issue, it is necessary to note the charges as laid before the Local Court, as identified in the court attendance notice, and the variation which occurred when the matter reached the District Court. Although the dates and the amounts differed, each of the charges adopted a common form, of which the first may provide an example: Description of Offence: That the Accused, with intent to obtain for himself any money, or valuable thing or any financial advantage of any kind whatsoever, made or published, or concurred in making or publishing a statement, namely a cab charge docket, which he knew to be false or misleading in a material particular and was made with reckless disregard as to whether it is true or is false or misleading in a material particular Time & Date of Offence: On or about 24 June 2003 Place of Offence: Sydney Short Particulars: The Accused altered a cab charge docket number 003973 from $6.15 to $136.15 Statutory Provision Describing Offence: Crimes Act 1900 s.178BB

29 The statement under the heading "Description of Offence" follows the language of the section, without regard for the fact that the section encompasses alternatives which may require the prosecutor to make a choice in order to avoid duplicity or uncertainty. This form of pleading is probably encouraged by s 11 of the Criminal Procedure Act, which provides that the description of an offence "in the words of an Act … creating the offence" is "sufficient in law". However, it is well-established that a provision in that form does not remove the need to identify with sufficient precision one offence, properly particularised: see Johnson v Miller (1937) 59 CLR 467 at 486 (Dixon J), applied by Brennan J in John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 529. A degree of precision was achieved by the further particulars of the time, date, place and manner of commission of the offence, also set out in the notice. 30 The facts, identified by Nicholson DCJ in the stated case, said that the prosector proceeded in the District Court on "the same charges … but circumscribed the charges to 'the publishing of a statement'." 31 It is not contended that the prosecutor could not properly circumscribe the charge in this manner; rather, the complaint is that the result of taking that course was that the charge which proceeded before the District Court was not the same charge as that heard by the Local Court. 32 There are a number of difficulties with this contention. First, it assumes that the case in the Local Court was not run on the basis identified in relation to the proceedings in the District Court, namely that the charge was treated as involving only "the publishing of a statement". How the matter proceeded in the Local Court would be a question of fact, and no fact is stated by Nicholson DCJ other than that the prosecutor proceeded on "the same charges". It is not for this Court to read the transcript in the Local Court (which is not in any event before it) in order to draw inferences of the kind which would be necessary to form the basis of the argument. 33 Secondly, the contention assumes that the form of the charge is rendered inflexible by the constraints implicit in the fact that the proceedings in the District Court constitute "an appeal", pursuant to s 11 of the Appeal & Review Act. It is true that that appeal is now an appeal by way of "rehearing" (s 18) and may therefore have different elements from the former appeal to the District Court, colloquially known as an "all grounds appeal" under the Justices Act 1902 (NSW): see R v Longshaw (1990) 20 NSWLR 554 and, in relation to the changed procedures, Charara v The Queen [2006] NSWCCA 244, (2006) 164 A Crim R 39 at [12]-[23] (Mason P). 34 In some circumstances, the term "appeal" is used in a statute where in fact the original (rather than the appellate) jurisdiction of a court is being invoked. However, there is no reason to suppose that the use of the term "appeal" in s 11(1) of the Appeal & Review Act, as explained in ss 18 and 20, does other than invoke the appellate jurisdiction of the District Court. Accordingly, the Court's jurisdiction is, broadly speaking, limited to a consideration of the charge laid in the Local Court. However, that does not mean that there may not be variations in the evidence presented in the District Court (subject to the understanding that it is an appeal by way of rehearing and not a fresh trial), nor that the powers of amendment which were available to the Local Court are not available in the District Court: see, eg, Criminal Procedure Act, ss 17, 20, 21 and 22. Nor does it mean that the District Court cannot take appropriate steps to ensure procedural fairness to the defendant, which may require the giving of particulars which were not provided in the court below or a circumscription of the scope of the charge laid, as occurred in the present case, perhaps for the first time. 35 Thirdly, if, in an appropriate case, it were established that there was a variation between the charge pressed in the District Court and that found in the court attendance notice, it would be necessary to demonstrate that this was not an objection of the kind precluded by s 16 of the Criminal Procedure Act. 36 Fourthly, there is the fact that the defendant "impliedly, if not expressly", consented to the course taken by the prosecutor in the District Court in circumscribing the extent of the charge. If this constituted an amendment of the notice, it appears to fall within the power conferred by s 20(1)(b) of the Criminal Procedure Act. Further, it is an express factual finding inconsistent with the proposition that the question now sought to be raised was a question which arose in the proceedings in the District Court, for the purposes of s 5B of the Criminal Appeal Act.

Conclusions 37 It follows from the preceding discussion that the legal errors sought to be raised by the defendant lack merit. There are powerful considerations, including the delay in applying for a case to be stated and the awkwardness of properly identifying and answering the questions of law as set out in the case stated, which would militate against an extension of time. However, a failure to answer the questions may suggest that the substance of the issues sought to be raised has not been the subject of determination by this Court. In these circumstances, I would propose the following orders:

(1) Extend the time within which questions of law might be submitted to this Court until 16 March 2007.

(2) Answer the questions submitted as follows: (i) Question: Did I err in law in accepting that the Local Court, Parramatta, had jurisdiction to hear the prosecution instituted by Judith Morris, an Officer of the Ministry of Transport? Answer: Without determining whether the question arose on the appeal to the District Court, or whether the objection taken to the form of the court attendance notice was an objection which the defendant was entitled to take, the court attendance notice validly commenced proceedings in the Local Court, being issued by a public officer pursuant to s 173 of the Criminal Procedure Act 1986 (NSW). (ii) Question: If so, or in any case, bearing in mind s 18 and s 20 of the Crimes (Appeal and Review) Act 2001 (NSW), did I err in law in accepting that the District Court had jurisdiction to rehear the prosecution instituted by Judith Morris, an Officer of the Ministry of Transport? Answer: As to the first part of the question, no answer is required; in relation to the second part of the question the jurisdiction of the District Court was validly invoked by the court attendance notice issued pursuant to s 173 of the Criminal Procedure Act , by a public officer. (iii) Question: Did I err in law in accepting that the District Court had jurisdiction to rehear, on the charges as pleaded in the District Court, the prosecution as heard and determined in the Local Court, Parramatta? Answer: The District Court did not lack jurisdiction to hear the charges because the charge as laid in the court attendance notice was treated by the prosecution as a charge that the defendant had published a statement, and not that he had done any other act referred to in s 178BB of the Crimes Act 1900 (NSW), as set out in the court attendance notice. 38 In the light of these answers, there is no call for the Court to exercise any power under s 5B(3) because no error has been identified in the judgment of the District Court, calling for such relief. 39 GROVE J: I agree with the answers to the questions in the case stated proposed by Basten JA and with the order for extension of time. 40 HIDDEN J: I agree with Basten JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.