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.