Shapkin v Director of Public Prosecutions

Court of Appeal (NSW)|2024-09-27|Before: McHugh JA

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, Mr Vladimir Shapkin, was convicted of two charges in the Local Court on 1 September 2022. He was sentenced to an 18-month Community Correction Order and fined $1000. The applicant appealed to the District Court. On 13 December 2022, the primary judge, Robinson DCJ, dismissed the appeal, confirming the convictions and the sentence. By notice of motion in the District Court dated 10 January 2023, the applicant requested that a case be stated to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). The applicant filed submissions on 13 December 2023 which identified six proposed questions. On 5 March 2024, the primary judge declined to state a case, providing reasons in the form of a letter to the Registrar. The applicant filed a summons seeking judicial review of the primary judge's decision not to state a case, and a notice of motion seeking a stay until further order of the District Court's judgment dated 13 December 2022. The application raised three issues: 1. Whether, where a request pursuant to s 5B identifies a question of law, the District Court judge must state a case to the Court of Criminal Appeal, such that the primary judge's decision not to do so was a failure to exercise jurisdiction and thus a jurisdictional error. 2. Alternatively, whether the primary judge misapprehended the nature or limits of her functions or powers by taking into account considerations beyond those permitted by s 5B for declining to state a case, so as to fall into jurisdictional error. 3. Whether in the circumstances the Court could or should grant a stay. The Court (McHugh JA, Basten and Griffiths AJJA agreeing) dismissed the summons and refused the application for a stay, holding: As to issue (1): 1 The decision of the primary judge not to state a case was not a failure to exercise jurisdiction. There was no jurisdictional error: [72] (per McHugh JA, Griffiths AJA agreeing); [118] (per Basten AJA, Griffiths AJA agreeing). 2 A District Court judge has a discretion to decline to exercise the s 5B power to submit a question of law, which must be exercised judicially and on the basis of proper considerations which reflect the context and statutory purpose of the power: [70]-[71], [87] (per McHugh JA, Griffiths AJA agreeing). Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149; (2020) 93 MVR 242; Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162; Gibson v Director of Public Prosecutions (NSW) (No 2) (2021) 105 NSWLR 434; [2021] NSWCA 218; Franklin v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 198; [2022] NSWCA 58, followed. Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83; Landsman v R (2014) 88 NSWLR 534; [2014] NSWCCA 328, not followed. 3 Section 5B may impose a duty to state a case but only in rare circumstances. The section requires that the District Court judge be satisfied that power is engaged and that the case is an appropriate one in which to state a question of law: [109]-[110] (per Basten AJA, Griffiths AJA agreeing). Ward v Williams (1955) 92 CLR 496; [1955] HCA 4, referred to. 4 To enliven the s 5B power, there must be a "question of law", and one "arising on [the] appeal". The capacity of the evidence accepted by the trial judge to establish the elements of an offence can engage a question of law. However, if the evidence was not as stated, was not accepted, or there was other evidence not referred to, such a question will not have arisen on the appeal: [82], [86]-[87] (per McHugh JA, Griffiths AJA agreeing); [110], [112]-[115] (per Basten AJA, Griffiths AJA agreeing). Mack Fleet Pty Ltd; Forrest; Clancy v Director of Public Prosecutions [2018] NSWCA 102, referred to. As to issue (2): 5 The matters that the District Court judge is permitted to take into account in exercising the discretion to decline to state a case are not closed: [74]-[76] (per McHugh JA, Griffiths AJA agreeing); [110] (per Basten AJA, Griffiths AJA agreeing). Gibson v Director of Public Prosecutions (NSW) (No 2) (2021) 105 NSWLR 434; [2021] NSWCA 218; Franklin; Forrest, considered. 6 The primary judge did not take into account irrelevant matters: [77] (per McHugh JA, Basten and Griffiths AJJA agreeing). As to issue (3): 7 The applicant accepted that he could not obtain a stay if he failed on his summons. Even if the applicant had succeeded on his summons, the sentence could not be stayed as it had already been served. Nor could the convictions be stayed. The Court's function on the summons was limited to determining if the primary judge had fallen into jurisdictional error in declining to state a case: [97], [98], [101]-[102] (per McHugh JA, Basten and Griffiths AJJA agreeing).

JUDGMENT

McHUGH JA: The applicant, Mr Vladimir Alexandrovich Shapkin, was convicted in the Local Court on 1 September 2022 of two charges, being damage to property, contrary to s 195(1)(a) of the Crimes Act 1900 (NSW), and intimidation, contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). He was sentenced to an 18-month Community Correction Order and fined $1000.
Mr Shapkin appealed to the District Court. On 13 December 2022, Robinson DCJ, the primary judge, confirmed both the convictions and the sentence.
By notice of motion in the District Court dated 10 January 2023, Mr Shapkin requested that a case be stated to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). On 5 March 2024, the primary judge declined to state a case.
In this Court, Mr Shapkin seeks judicial review of the primary judge's decision not to state a case. He separately seeks an order that the District Court's "judgment dated 13 December 2022 and/or its execution be stayed until further order".
The application for a stay should be refused and the summons should be dismissed.

The convictions and sentence

It is unnecessary to set out in detail the circumstances in which the offences occurred. Both offences arose out of domestic disputes between Mr Shapkin and the complainant, who was Mr Shapkin's wife.
The offence of damage to property occurred on the evening of 11 December 2021 at the family home, when Mr Shapkin, believing that the complainant had been unfaithful to him, took her phone and smashed it a number of times against the bedhead, damaging the phone. He did not dispute that he had done so. Instead, his defence was "necessity", on the basis that he believed that the complainant, during the course of her infidelity, may have been involved in an incident of sexual activity without her consent, and in order to protect her from further harm he damaged her phone to prevent her from accessing the contact details of the person with whom she had been unfaithful.
The offence of intimidation occurred at the family home four days later, on 15 December 2021, when the complainant wanted to attend a party with the couple's two young children. She did not want Mr Shapkin to accompany them. Mr Shapkin took various steps to delay the complainant leaving the home, he stood near to her exit, essentially blocking her path from the home (but did not otherwise use physical force to restrain her), and, after the complainant had exited the home and put the children in the family car, he got into the car against the complainant's wishes. He interfered with the gearstick, causing the car to jolt, refused to get out despite the complainant's yelling and screaming at him to do so, and remained in the car while the complainant drove to the police station at Penrith, despite her having told him she was going there. When they arrived at the police station, Mr Shapkin went inside and made a complaint about the complainant's behaviour at an earlier point in time. The complainant later made a statement to the police, after which Mr Shapkin was charged with the two offences.
Mr Shapkin was convicted of both charges. The magistrate accepted that the defence of necessity had been raised in relation to the damage to property offence, but was satisfied that it was negatived. In respect of the damage to property offence, Mr Shapkin was ordered to pay a fine of $1000. In respect of the intimidation offence, he was sentenced to a Community Correction Order for a period of 18 months to commence on 1 September 2022 and expiring on 29 February 2024.
In the District Court, the focus of Mr Shapkin's appeal against his conviction on the damage to property charge was again the defence of necessity. The primary judge accepted that the defence had properly been raised, and said that the Crown was therefore required to disprove the following elements beyond reasonable doubt: Firstly, that the criminal act must have been done in order to avoid certain consequences which would have inflicted irreparable evil upon the accused or upon others whom he was bound to protect. Secondly, the accused must honestly have believed on reasonable grounds that he or she was placed in the situation of imminent peril. Thirdly, the act done to avoid the imminent peril must be at a proportion to the peril to be avoided. (Judgment on conviction appeal, p 7)
The primary judge said: The Crown fairly concedes that [Mr Shapkin] may have believed that the complainant was potentially facing some peril because of the possibility of sexual assault, and that the act of smashing her phone in the way that he did, was not out of proportion. It is the Crown's position, however, that the evidence would satisfy this Court beyond reasonable doubt that the belief which [Mr Shapkin] says he held was not held on reasonable grounds. (Judgment on conviction appeal, p 7)
The primary judge was satisfied that the Crown had negatived that Mr Shapkin's belief was held on reasonable grounds. Her Honour dismissed the appeal in relation to the damage to property charge, confirming the finding of guilt. (Judgment on conviction appeal, p 11)
On the second charge, intimidation, the focus of the appeal was whether there had been sufficient proof of Mr Shapkin's intention to cause the complainant to fear physical or mental harm. The primary judge concluded that there was ample evidence before the magistrate that Mr Shapkin intended to cause the complainant mental harm, and was satisfied that the offence was proved. Her Honour dismissed the appeal in relation to the intimidation charge and confirmed the finding of guilt.
Mr Shapkin also appealed against the severity of his sentence. The primary judge concluded that a conviction ought to be recorded against Mr Shapkin for both instances of offending, and was otherwise of the view that the penalties imposed by the magistrate were appropriate. Accordingly, her Honour dismissed the appeal and confirmed the orders of the magistrate.

Procedural history of the application to state a case

Section 5B of the Criminal Appeal Act provides as follows. (1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit. (2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow. (3) The Court of Criminal Appeal may, in connection with the determination of a question of law in the circumstances referred to in subsection (2), quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court.
Although Mr Shapkin was self-represented in relation to his request that the primary judge state a case to the Court of Criminal Appeal, he is legally trained and has been admitted as a lawyer of the Supreme Court of New South Wales (but he does not hold a practising certificate). On the face of the materials before the Court, the circumstances in which Mr Shapkin prosecuted his application to have a case stated are far from satisfactory. No explanation, still less a satisfactory explanation, is in evidence.
Mr Shapkin's appeals to the District Court were determined on 13 December 2022. On 9 January 2023, Mr Shapkin apparently attempted to file a Notice of Intention to Appeal. On 10 January 2023, the registry of the New South Wales Court of Criminal Appeal sent an email to Mr Shapkin, informing him that it was unable to lodge his application (i.e., the Notice of Intention to Appeal), as the matter had already been appealed to the District Court. The registry advised Mr Shapkin that he might wish to consider asking the District Court to state a case under section 5B of the Criminal Appeal Act on a point of law.
Later on 10 January 2023, Mr Shapkin sent a Notice of Motion engrossed for the District Court to the email address of the Local Court at Penrith. The District Court appears to have treated the Notice of Motion as duly filed. The only order sought in the Notice of Motion was: Submit the question of law to the Court of Criminal Appeal pursuant to section 5B of the Criminal Appeal Act 1912. There was no attempt to identify "the question of law", nor any facts on which a case could be stated.
Mr Shapkin did not serve the Director of Public Prosecutions with his Notice of Motion or otherwise notify her of his request to have a case stated.
The primary judge appears to have been on leave until 30 January 2023. On 22 February 2023, her Honour made directions that: Written submissions indicating the point of law the Appellant is seeking to be stated under s 5B as outlined in the Appellant's Notice of Motion are to be filed as soon as possible. If the appellant is not in a position to file written submissions, at the very least, the Notice of Motion needs to identify what point/s of law he is relying on for the stated case application.
Despite those directions, Mr Shapkin did not file any written submissions or otherwise purport to identify any question of law he was seeking to have submitted to the Court of Criminal Appeal until he filed a document entitled "Submissions for Appeal by Case Stated", which was dated 13 December 2023. That was exactly one year after his appeals had been determined, some eleven months after he had filed his Notice of Motion, and more than nine months after her Honour had made the directions.
The need to explain the delay was acute, given s 5B's requirement that any questions of law were to be submitted to the Court of Criminal Appeal within 28 days of the judgment, or such further time as the Court of Criminal Appeal might allow. There was an implied requirement that any request be made, with a draft stated case and containing the relevant questions, in sufficient time to allow the judge to submit the questions within the prescribed period: Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162 at [57] (Forrest). Mr Shapkin's Notice of Motion was filed on the 28th day after the judgment. It plainly did not comply with that requirement. His subsequent delay in formulating questions made matters worse.
There was no explanation in evidence for this delay. Instead, Mr Shapkin asserted from the bar table that there had been correspondence of some kind with the primary judge; that he had been waiting for the transcript which was not available until February; that he had been busy dealing with proceedings in the Federal Court to which he was a party; and that the Court of Criminal Appeal had the power to allow an extension of time. Even if accepted as fact, none of those matters, whether alone or in combination, would be a satisfactory explanation for the delay in identifying questions of law for the purposes of s 5B.

Mr Shapkin's submissions dated 13 December 2023

Mr Shapkin's submissions dated 13 December 2023 identified the following six questions, which are the subject of his summons seeking judicial review in this Court: (i) Question of law (1) for sequence 1: defence of necessity [49] Can the facts set out in the case state support a finding of guilt for an offence contrary to section 195(1)(a) of the Crimes Act 1900, in particular was the evidence capable of negativing beyond reasonable doubt the raised defence of necessity including element (ii) whilst taking into account the conceded elements (i) and (iii) by the Crown? (ii) Question of law (2) for sequence 1: no phone no evidence [57] On the facts set out in the case stated, was the tendered picture with three phones admissible, in particular: was the picture with three phones relevant evidence pursuant to sections 55-56 of the Evidence Act 1995 admitted for the purpose of the identity of the damaged phone? (iii) Question of Law (3) for sequence 2: conduct actus reus element [63] On the facts set out in the case stated, was the conduct of stalking/intimidation (harassment) capable of establishing beyond reasonable doubt the required actus reus of section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007? (iv) Question of law (4) for sequence 2: actual personal "knew" required to be proved beyond reasonable doubt towards "intent" mens rea element [64] On the facts set out in the case stated, was the evidence against the appellant's mental state of 15.12.2021 capable of establishing beyond reasonable doubt the required mens rea of section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007? (v) Question of law (5) for sequence 2: defence of necessity [65] Can the facts set out in the case stated support a finding of guilt for an offence contrary to section 13(1) of the Crimes (Domestic and Personal Violence) Act 2007, in particular was the evidence capable of establishing beyond reasonable doubt the raised defence of necessity including element (ii) whilst taking into account the conceded elements (i) and (iii) by the Crown? (vi) Question of law (6) for sequence 1 and 2: severity [71] Can the facts set out in the case stated support a fine of $1,000 for damage to the phone, and for the intimidation offence, the imposition of an 18-month Community Correction Order in particular which if breached may result in a term of imprisonment and/or taken into account for future sentencing?
Those proposed questions contained premises that were inaccurate or incomplete. For example, proposed Question 1 included the words, "whilst taking into account the conceded elements (i) and (iii) by the Crown". The Crown had not simply "conceded" those elements of the defence of necessity before the primary judge. Rather: 1. As to the first element, while the Crown accepted that "the consequence of a sexual assault would amount to irreparable evil" (Written Submissions dated 12 December 2022 at [14]; emphasis supplied), the Crown also submitted, as to "the aspect of imminent peril" that "there was absolutely no suggestion at all that the complainant was faced with imminent threat, being sexual assault, at the time that the appellant damaged the phone" (Transcript, 13 December 2022, page 3 lines 14-16). 2. As to the third element of the defence, the Crown accepted that if Mr Shapkin had held a reasonable belief that there existed a threat of imminent sexual assault, damage to a phone would not have been disproportionate (Written Submissions dated 12 December 2022 at [16]). But the Crown had already submitted that Mr Shapkin did not have such a reasonable belief.
The proposed questions referred to "facts". This appears to have been a reference to a section in Mr Shapkin's submissions dated 13 December 2023, which contained four pages headed "Ultimate Facts as Judicially Determined by the District Court of New South Wales on 13 December 2022 for the Purpose of Case Stated". This included material cross-referenced to the primary judge's judgment on the conviction appeal, which was to some extent quotation (but without the use of quotation marks), to some extent paraphrasing, and to some extent summary.
Although proposed Question 6 was directed to sentence, Mr Shapkin's four pages did not include any relevant material taken from the primary judge's judgment on the severity appeal, such as her Honour's observation that: "The appellant shows no remorse. He continues to show no remorse. That impacts upon his prospects of rehabilitation."

The primary judge's decision

On 5 March 2024, the primary judge declined to state a case to the Court of Criminal Appeal. Although her Honour communicated her decision and the reasons for it in the form of a letter to the Registrar, rather than by making orders disposing of Mr Shapkin's Notice of Motion and giving reasons for judgment in open court (cf Gibson v Director of Public Prosecutions (NSW) (No 2) (2021) 105 NSWLR 434; [2021] NSWCA 218 at [18] (Bell P) (Gibson)), it is clear that her Honour made an affirmative decision to decline to state a case and that she did so on a reasoned basis. Her Honour's reasons were brief, and are reproduced in full: Re: R v Vladimir SHAPKIN (2021/355975; 2021/356000) Notice of Intention to State Case I have read the recent application of Mr Vladimir Shapkin, submissions having been filed on 13 December 2023 with the Penrith District Court Registry, requesting that I state a case to the Court of Criminal Appeal pursuant to s 5B(2) of the Criminal Appeal Act 1912 (NSW). I decline to do so for the following reasons: 1. Question 1 misstates the Crown's position, the Crown's concession and the transcript. It does not properly reflect factual findings made and otherwise seeks to reagitate the Court's assessment of particular facts. 2. Question 2 raises an objection to the admissibility of evidence not previously raised. 3. Questions 3, 4 and 5 again misstate the Crown's position, the Crown's concession and the transcript. Each question seeks to reagitate the Court's assessment of particular facts and their application to the relevant law. 4. Generally, the questions raised seek to challenge the ultimate determinations made by both the District and Local Courts. 5. Generally, the questions raised are not questions of law or legal principle. 6. To the extent that any of the questions set out in the application refer to or may raise a question of law, the questions as set out do not raise for consideration any principle of general application, nor do they raise for consideration any issue, the resolution of which would provide guidance in a general sense to judges of the District Court: Duarte v Director of Public Prosecutions (NSW) [2020] NSWCCA 351 at [55]. 7. The primary purpose of the stated case procedure is to resolve questions of legal principle and is not a substitute for an appeal. 8. The stated case procedure should be reserved for its intended purpose: Duarte at [56].
Some of these reasons went to whether Mr Shapkin had identified a "question of law arising on [his] appeal to the District Court", so as to engage the s 5B power to submit the question to the Court of Criminal Appeal. The others assumed that the s 5B power was discretionary, and were reasons for exercising the discretion to decline to state a case even if the power was engaged.
Paragraphs 1, 2, and 3 of the primary judge's reasons identified specific issues with the premises or framing of individual questions proposed by Mr Shapkin.
Paragraph 4 identified an issue common to all the proposed questions, that they sought to challenge the courts' ultimate determinations (i.e., including the findings as to guilt).
Paragraph 5 identified further issues common to all the proposed questions, namely, that they did not raise a question of law (which would mean the power was not engaged), or did not raise a question of legal principle (which was a discretionary reason for declining to exercise the power to state a case), or both.
At [6], which followed from the two issues identified at [5], the primary judge reasoned that even if any of the proposed questions did raise a question of law (i.e., such that the s 5B power was engaged), the questions nevertheless involved no general principle nor any issue the resolution of which would provide general guidance (which were discretionary reasons for declining to exercise the power to state a case).
Following from the point at [4] (that the proposed questions sought to challenge the courts' ultimate determinations), at [7] and [8] her Honour characterised the proposed questions as an attempt to turn the stated case procedure into an appeal, contrary to the purpose of s 5B. That was another discretionary reason to decline to exercise the power to state the case.

The proceeding in this Court

On 5 June 2024, three months after the primary judge declined Mr Shapkin's request to state a case, he filed a summons seeking judicial review by this Court of the primary judge's decision. The main orders sought were: 1 Quash the order of the District Court of NSW refusing to state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW) in relation to the Questions(s) identified as 1, 2, 3, 4, 5, and 6 in the plaintiff's application dated 10 January 2023 and submissions dated 13 December 2023. 2 Remit the matter to the District Court of NSW to be dealt with according to law.
On 12 August 2024, Mr Shapkin filed a Notice of Motion in this proceeding, seeking an order "That the Second Respondent's judgment dated 13 December 2022 and/or its execution be stayed until further order."
When the Notice of Motion came on for hearing before Leeming JA on 27 August 2024, his Honour stood it over to the hearing of Mr Shapkin's summons on 27 September 2024: Shapkin v Director of Public Prosecutions [2024] NSWCA 217.
Consistently with the way in which the matter was argued, I will deal with the summons before turning to the Notice of Motion.

Mr Shapkin's two categories of jurisdictional error

Mr Shapkin acknowledged that in light of the privative clause in s 176 of the District Court Act 1973 (NSW), judicial review on his summons is confined to jurisdictional error, and does not extend to error of law on the face of the record.
Mr Shapkin identified two categories of jurisdictional error which he submitted were both relevant to his summons. He relied on the following passage in the reasons for judgment of Jagot J (which Mr Shapkin mistakenly attributed to Gordon, Edelman, Steward and Gleeson JJ) in Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; (2023) 97 ALJR 992 (Stanley) at [161]: Accordingly, an "inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist". The second kind of jurisdictional error (misapprehending or disregarding the nature or limits of functions or powers) was described as including: (a) disregarding or considering some matter if the statute conferring jurisdiction requires that particular matter to "be taken into account or ignored as a pre‑condition of the existence of any authority to make an order"; and/or (b) misconstruing the statute conferring jurisdiction so as to misconceive the nature of the function being performed. (Citations omitted; bold in Mr Shapkin's written submissions filed 6 September 2024.)
Mr Shapkin's "Category 1" jurisdictional error was what he called "a pure failure to exercise jurisdiction", i.e., at all.
Mr Shapkin's "Category 2" was where the court purported to exercise jurisdiction but misapprehended the nature or limits of its functions or powers. He used the word "misconception" when referring to his Category 2.
Consideration of jurisdictional error in this case depends on the proper construction of s 5B as the statute conferring jurisdiction (Stanley at [55] per Gordon, Edelman, Steward and Gleeson JJ); and, in particular, on the nature of the power it confers on a District Court judge to state a case.

Mr Shapkin's central contention as to the construction of s 5B

As will shortly be seen, central to Mr Shapkin's argument on both his Category 1 and his Category 2 was his contention that on the proper construction of s 5B, once a "pure question of law" is identified so as to engage the s 5B power, the District Court judge must state a case to the Court of Criminal Appeal. (Or, on a variant of his argument, the judge must state a case unless the "recognised exceptions" apply, namely, that the request is so obviously frivolous or baseless as to constitute an abuse of process.) On this construction, the judge has no discretion to decline to state a case.
In his written submissions, Mr Shapkin principally relied on two cases in support of his central contention (i.e., that once a "pure question of law" is identified, the District Court judge must state a case): Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83 (Franklin No. 1) and Landsman v R (2014) 88 NSWLR 534; [2014] NSWCCA 328 (Landsman). It will be necessary to return to those decisions below.
Mr Shapkin accepted that questions of fact, or of mixed fact and law, stood outside the section altogether. He relied on that distinction in submitting that the word "may" in s 5B(1) and (2) does not confer a discretion whether to state a case, in the sense that even where there was a "pure question of law" the judge had a discretion not to state the case. Instead, he submitted, "the intention of Parliament here with the word 'may' is to allow the District Court Judge to choose what questions of law are purely questions of law and which are not."
In light of the recent authorities in this Court discussed below, Mr Shapkin's construction of the word "may" must be rejected. However, it might be noted that even on Mr Shapkin's construction of the word "may", the critical function of "choosing" (i.e., determining) whether or not a proposed question was a pure question of law (so as to engage the s 5B power, and, on his argument, the duty to state a case) would be a function conferred on the District Court judge. Accepting that as a premise of his argument, it is not obvious that an error as to the characterisation of a proposed question made by the judge in the course of performing that function would be a jurisdictional error. Rather, it would be an error within jurisdiction.

Mr Shapkin's arguments as to jurisdictional error

In the present case, as to his Category 1, I understood the steps in Mr Shapkin's argument to be: 1. the proposed questions he had identified in his submissions of 13 December 2023 were pure questions of law; 2. section 5B required the primary judge to state a case submitting those pure questions of law to the Court of Criminal Appeal; 3. her Honour's failure to do so was a failure to exercise jurisdiction at all and therefore a Category 1 jurisdictional error.
Whether or not Mr Shapkin's proposed questions are properly characterised as questions of law for the purposes of s 5B at the first step, it suffices to note that his argument as to his Category 1 will fail at the second step if his central contention about the proper construction of s 5B is wrong.
As to his Category 2, Mr Shapkin submitted that the primary judge had misconceived the nature of her function. I understood the steps in his argument to be: 1. the primary judge purported to exercise her jurisdiction; 2. on the proper construction of s 5B her jurisdiction was confined to determining whether the proposed questions were pure questions of law; 3. instead, her Honour wrongly took into account the matters to which she referred in her reasons and declined to state the case; 4. in doing so her Honour misapprehended the nature or limits of her functions or powers, which was a Category 2 jurisdictional error. Mr Shapkin submitted that the primary judge's "reasoning showed that the misconception turned upon her providing reasons which went far beyond s 5B(2)." (Appeal Transcript page 14, line 38)
Again, this argument will fail at step 2 if Mr Shapkin is wrong in his central contention that once a "pure question of law" is identified, the District Court judge must state a case to the Court of Criminal Appeal. It is only on that basis that taking into account discretionary matters at step 3 would be to misconceive her function.
I understood Mr Shapkin's argument under his Category 2 to evolve in the course of the hearing of his summons. At some points, Mr Shapkin contemplated the possibility that the word "may" confers a discretion.
On the footing that the s 5B power is discretionary, his alternative contention under Category 2 was that s 5B permits only a limited number of grounds on which a District Court judge may decline to state a case. Mr Shapkin submitted that in going beyond those grounds, the primary judge misapprehended the nature or limits of her functions or powers, which he said was a Category 2 jurisdictional error.
In the result, in order for his arguments to succeed on the summons under either his Category 1 or his Category 2, Mr Shapkin needs to establish the correctness of either: 1. his central contention that on the proper construction of s 5B, once a "pure question of law" is identified, the District Court judge has no discretion and must state a case to the Court of Criminal Appeal; or 2. his alternative contention that, to the extent the s 5B power is discretionary, the primary judge went beyond the grounds permitted by s 5B for declining to state a case.

The recent authorities in this Court

In light of recent authority in this Court considering s 5B, Mr Shapkin cannot establish either of the contentions which are essential to the success of his arguments on the summons. The primary judge had a discretion to decline to state a case, and the discretionary matters to which she referred were relevant to its exercise.
In Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149; (2020) 93 MVR 242 (Mack Fleet), Basten JA (Ward P and Leeming JA agreeing) said at [16]-[17] and [20]: 16. There have been numerous cases in this jurisdiction in which it has been accepted or assumed that a virtually unqualified obligation is imposed on the District Court by s 5B. The origin of that approach is to be found in the judgment of Jordan CJ in Ex parte McGavin; Re Berne [(1945) 46 SR(NSW) 58 at 60-61]. The Chief Justice stated that it was "the duty of a chairman of quarter sessions to submit to the Court of Criminal Appeal any question of law which either party to the appeal may raise and ask to be so submitted, unless, in his opinion, the question is so obviously frivolous and baseless that its submission would be an abuse of process." 17. There are a number of reasons not to see that brief statement as determinative of the current effect of s 5B. First, s 5B was not in the same form in 1945 as it is today. It then had a deeming provision which required the question of law to be dealt with as if it were an appeal to the Court of Criminal Appeal. That provision at least blurred the distinction between the conferral on a party of a right of appeal and the conferral on the court of a power to submit a question of law. Secondly, at that time the question could not be submitted after the proceeding in the District Court had been finally determined. Thirdly, the briefly stated reason for adopting such a construction does not sit comfortably with the more nuanced approach to the principle of statutory construction, not expressly identified in Re Berne, but expounded a decade later in Ward v Williams. … 20. No doubt the power to submit a question of law under s 5B, or to decline to do so, must be exercised judicially and on the basis of proper considerations which reflect the context and statutory purpose of the power. However, it is within the jurisdiction of the judge who has determined a case to consider whether, in his or her opinion, the question sought to be submitted is indeed a question of law, and was (or would be) material in determining the issues requiring resolution. If not so satisfied, the proper course would be to decline to exercise the power. In considering those matters, the precise terms in which the question was formulated, if not formulated by the judge, would be a matter of some importance. Where the judge has no wish to seek the determination of any question of law, but is requested to submit a question in a form which does not, in the judge's view, satisfy the requirements of the section, there can be no obligation either to submit the question or to enter into negotiations with the requesting party as to the form of the question.
Then, in Forrest, Basten JA (Leeming and McCallum JJA agreeing) rejected the proposition that, upon receiving a request from a party to state a case with respect to a question of law, the judge was obliged to do so, unless the request was obviously frivolous or baseless. His Honour acknowledged at [11]-[12], [46], and [52] that Jordan CJ had made observations to that effect concerning the original form of s 5B in Ex parte McGavin; Re Berne (1945) 46 SR(NSW) 58 at 60-61, and that those observations had frequently been applied. However, after considering in depth the history of amendments to s 5B, together with judicial decisions after Re Berne, Basten JA said at [48]-[49]: 48. There is no good reason to limit the factors which the District Court judge may properly take into account in considering whether to accede to a request to state a question of law. Those factors may include (i) whether the question formulated by the applicant states clearly and precisely a question of law; (ii) whether the answer to the question, favourably to the applicant, might have been dispositive of the appeal; (iii) any delay in making the request and the absence or strength of any explanation given for the delay, and (iv) whether the judge has any significant doubt as to the correct answer to the question of law. 49. In functional terms, there is good reason to adopt such an approach in relation to a challenge to a refusal to submit a question of law to the Court of Criminal Appeal. First, it prevents the limited power conferred by s 5B being transformed into a general right of appeal on a question of law, which it patently is not. …
Next, in Gibson, Bell P (Meagher JA agreeing) acknowledged that the s 5B power was discretionary. His Honour said at [31]-[32] (italics in original): 31. If … the proper interpretation of the "reasons" was that her Honour declined in the exercise of her discretion to accede to the Applicant's request that questions be referred to the Court of Criminal Appeal, this would not have been a jurisdictional error which would engage this Court's supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). This would be so even if the judge committed some error in her analysis as to whether or not the questions involved questions of law. 32. To this extent, I have reservations as to the correctness of an aspect of the recent decision in Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83, where it was held that the District Court judge committed jurisdictional error by not referring a question of law to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act on the basis that he considered it was a question of mixed fact and law. His Honour may or may not have erred in his characterisation of the question sought to be referred, but it is strongly to be doubted that this was a "jurisdictional error". An error of law made within jurisdiction is not a jurisdictional error: see, for example, Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales (2014) 242 IR 338; [2014] NSWCA 116 at [76]; Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379 at [54]; see also Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29 at [42], where Basten JA (with whom Bathurst CJ and Beazley P agreed) observed that: "If every error of law constituted jurisdictional error, particularly in the case of a court such as the District Court, judicial review would transmogrify into an appeal for error of law, without regard to the requirement that certiorari is available only for error of law on the face of the record, and, in the case of a privative clause, only where an error is properly characterised as jurisdictional."
Basten JA (with whom Meagher JA also agreed) said the following at [40]-[43] (citations omitted): 40. The role of a District Court judge in deciding whether or not to submit a question of law to the Court of Criminal Appeal has been considered in a number of recent judgments of this Court, including Mack Fleet Pty Ltd v Transport for NSW, Forrest and Franklin v Director of Public Prosecutions (NSW). (A case of similar vintage, Jankovic v Director of Public Prosecutions, was not followed in a material respect in Forrest.) Subject to a qualification with respect to one aspect of the reasoning in Franklin, the following principles emerge: (1) Section 5B confers a power on a District Court judge determining an appeal from the Local Court in a criminal matter to submit a question of law "arising on" the appeal to the Court of Criminal Appeal. (2) A party to the District Court appeal may "request" the judge to submit a question of law: s 5B(2). If that step is taken after final orders have been made in the District Court, the Court of Criminal Appeal may quash the order of the District Court: s 5B(3). (3) If the District Court exercises the power of its own motion under subs (1), that step will generally be taken before any final order is made. If the submission of the question occurs pursuant to a request under subs (2), the question must be submitted either before, or within 28 days after, the final order. (4) When a request is made in accordance with subs (2) the judge has an obligation to consider the request: that exercise will involve the judge forming a state of satisfaction as to: (a) whether at least one of any proposed questions is a "question of law"; (b) whether the question arose on the appeal, in the sense that the answer to the question was capable of affecting the outcome; (c) whether the question was one as to which there was a real doubt as to the correct answer; and (d) if the request were made near or after the expiry of the 28 day period, so that the party seeking the submission would need to obtain an extension of time from the Court of Criminal Appeal, whether there was a reasonable prospect of such an extension being granted. (5) If the District Court judge were not satisfied as to any one or more of the factors set out in (4), the judge would be justified in refusing to comply with the request. If generally satisfied in relation to each matter, the power to submit the question or questions will be engaged: it will remain a discretionary decision for the judge, although one which must be exercised judicially. 41. The operation of s 5B is to be viewed in the context of three overarching considerations. First, s 5B does not create a right of appeal, either generally, or limited to a question of law. Rather, it confers a power on the District Court judge to submit questions of law, including the authority to settle the form and content of any questions which are to be submitted. 42. Secondly, satisfaction as to the factors set out [in] (4) above are matters to be determined by the District Court judge: it is not for this Court on a judicial review proceeding to satisfy itself that, for example, a particular question of law "arose on the appeal". This Court can only intervene if a material error (of a kind to be considered further below) had been made by the District Court judge in forming his or her state of satisfaction. To this extent, aspects of the reasoning in Franklin should not be followed. Thus, s 5B does not impose an obligation to submit a case to the Court of Criminal Appeal so long as the questions are "not obviously frivolous and baseless". A state of satisfaction may be set aside if formed arbitrarily or capriciously, irrationally, or not bona fide, as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu.
The last decision in the series is Franklin v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 198; [2022] NSWCA 58 (Franklin No. 2).
The decision in Franklin No 2 arose from the Court of Appeal's remitter in Franklin No 1. Franklin No 1 had involved judicial review of a decision by Bourke DCJ to refuse an application to state a case pursuant to s 5B on the basis that none of ten identified questions was a question of law. In the judicial review proceeding, this Court (Hamill J, Brereton and McCallum JJA agreeing) determined that one of the ten questions, which concerned the admissibility of a document, was a question of law. The Court quashed Bourke DCJ's decision and remitted the matter to the District Court to be dealt with according to law. Although Hamill J referred to the difficulty in reconciling the Re Berne line of authority and the more recent decisions in Mack Fleet and Forrest, his Honour said at [44] and [85] that he found it unnecessary to resolve the tension. (This was the decision of which it was then said in Gibson that certain aspects were to be strongly doubted or not followed, at [32] per Bell P and [42] per Basten JA, Meagher JA agreeing with both.)
On the remitter ordered in Franklin No. 1, Bourke DCJ, relying on what had been said by this Court in Forrest, determined that the admission of the document into evidence would have made no difference to the outcome of the appeal against Mr Franklin's conviction. His Honour declined to state a case for the Court of Criminal Appeal, notwithstanding that the question was one of law. In Franklin No. 2, this Court (by majority) dismissed a summons seeking judicial review of that decision.
Macfarlan JA gave the principal judgment in the majority. His Honour at [38]-[39] referred to Forrest and quoted the passages from Gibson at [31] and [40]-[42] set out above. His Honour then said at [40]: These authorities thus recognise that exercise of the power to state a case under s 5B of the Criminal Appeal Act involves the relevant judge of the District Court exercising a discretion, as reflected by the words "may submit" in s 5B(1).
At [41] Macfarlan JA referred, with evident approval, to Basten JA's observation in Forrest at [48] that "[t]here is no good reason to limit the factors which the District Court judge may properly take into account in considering whether to accede to a request to state a question of law". Macfarlan JA continued: One factor instanced by [Basten JA] was "whether the answer to the question, favourably to the applicant, might have been dispositive of the appeal". This was the issue Judge Bourke determined and which led to his second refusal of the stated case application. It was relevant at least because it implicitly focused on whether it would be futile and therefore a waste of judicial resources for his Honour to state a case. That is, his Honour adverted to what would likely happen if the Court of Criminal Appeal answered the question favourably to Mr Franklin and the matter was remitted to his Honour for redetermination of the conviction appeal.
Basten JA agreed at [2] with Macfarlan JA that the summons should be dismissed. His Honour made a number of further observations, to which it is unnecessary to refer for immediate purposes, save to note that, as his Honour said at [4], "The language of s 5B is self-evidently inapt to confer a right on a party to the appeal."
Brereton JA dissented in Franklin No.2. After considering the history of s 5B and the authorities interpreting it, he emphasised at [104]: Accordingly, in my view it can fairly be said that by 2020 it was well-established by a series of decisions of this Court, both before and after the insertion of sub-s (2) and (3), that a District Court judge asked to refer a question under s 5B had a duty to do so if the conditions which enlivened the power were satisfied - namely that the question was one of law and it arose in the appeal - unless doing so would involve an abuse of process; and that failure to do so was jurisdictional error.
Brereton JA referred to the sequence of recent decisions in this Court, including Mack Fleet, Forrest, and Gibson. His Honour regarded those decisions as appearing to hold "that a decision as to whether or not to submit a question of law is discretionary, and that an error by a District Court judge as to whether or not a proposed question sought to be referred was a question of law is not a jurisdictional error" (at [116]).
Taking a different view of the legislative and judicial history of s 5B from that taken in Forrest, his Honour concluded at [131]: Accordingly, in my judgment, there is no good reason to depart from the position which was until recently long and well established, namely that if the conditions are satisfied, it is the duty of a District Court judge asked to do so to state a question of law for the Court of Criminal Appeal, unless to do so would amount to an abuse of process. The conditions are that the question be one of law, and that it arises, in the sense that it is necessary to the decision in the proceedings. If the District Court judge declines to refer a question on the basis that no question of law arising on the appeal has been identified, that is a holding that there is no jurisdiction to refer a question, and if incorrect is jurisdictional error amenable to review notwithstanding District Court Act, s 176.

Conclusion as to recent authorities and application in this case

The parties did not directly address the tension between the Re Berne line of cases and the more recent authorities. The Director's submissions assumed that the more recent authorities were correct; Mr Shapkin relied on the earlier line of cases and attempted to confine the more recent cases to their facts, without attacking their correctness.
However, there are now four recent considered decisions of this Court - Mack Fleet, Forrest, Gibson, and Franklin No. 2 - in support of the proposition that the exercise of the power in s 5B is discretionary. In only one of those decisions was there a dissent seeking to uphold the line of cases proceeding from Re Berne. The proposition that the power is discretionary is now established.
Mr Shapkin's reliance on Franklin No. 1 and on the decision of the Court of Criminal Appeal in Landsman at [29] is thus misplaced. As explained above, Franklin No. 1 was expressly disapproved in Gibson. And the basic proposition in Landsman - that a District Court judge is under a duty to exercise the s 5B power to submit a question of law unless the question is so obviously frivolous and baseless that its submission would be an abuse of process - is no longer good law in light of the more recent authorities.
It follows that Mr Shapkin's central contention - that once a "pure question of law" is identified, the judge has no discretion and must state a case - cannot be sustained. Both Mr Shapkin's argument that the primary judge had fallen into what he called a Category 1 jurisdictional error, and the original formulation of his argument under his Category 2, depended on that contention. That being so, both arguments fail.
Mr Shapkin's secondary formulation of the argument under his Category 2 depended on his alternative contention that, to the extent the s 5B power is discretionary, the primary judge went beyond the grounds permitted by s 5B for declining to state a case. I do not accept that her Honour took into account any irrelevant or impermissible matters, and so the argument fails.
At [22] of his written submissions, Mr Shapkin submitted that the matters which the judge was permitted to take into account in exercising the s 5B power to decline to submit a question - which he called "the exceptions" to s 5B - "were fully closed" in Franklin No. 2. He quoted Franklin No. 2 at [38] which itself quoted Gibson at [40]. He emphasised subparagraph [40(4)], which is set out above. Mr Shapkin's submission at [23] was that none of the "exceptions" in Gibson at [40(4)(a)-(d)] "apply to Her Honour's reasons [1]-[8] so as not to state the case pursuant to s 5B," with the result that the primary judge fell into jurisdictional error.
I do not accept these submissions. The proposition that subparagraph [40(4)] of Gibson stated "exceptions", or that the matters referred to in that subparagraph were the only matters relevant to exercise of the power, is misconceived. Gibson and Franklin No. 2 establish that the District Court judge's power remains discretionary. That is made express in subparagraph (5), which includes the statement I have emphasised below: (5) If the District Court judge were not satisfied as to any one or more of the factors set out in (4), the judge would be justified in refusing to comply with the request. If generally satisfied in relation to each matter, the power to submit the question or questions will be engaged: it will remain a discretionary decision for the judge, although one which must be exercised judicially. Although Mr Shapkin's written submissions quoted subparagraph (5) they made no submission about it.
There was no error in the primary judge's approach to the exercise of her discretion. Her Honour reasoned at [6] that even if any of Mr Shapkin's proposed questions did raise a question of law, she nevertheless declined to state a case because "the questions as set out do not raise for consideration any principle of general application, nor do they raise for consideration any issue, the resolution of which would provide guidance in a general sense to judges of the District Court". Those matters fell within the scope of the s 5B discretion as described in the recent authorities, particularly Forrest at [48], Gibson at [40], and Franklin No. 2 at [38]-[41].
During the hearing of his summons, Mr Shapkin was asked what specifically the primary judge did that exceeded the limits of her function. He pointed to [6], [7], and [8] of her Honour's reasons. Mr Shapkin took the primary judge's [7] as an example. He volunteered that "no one is doubting that" the "primary purpose of the stated case procedure is to resolve questions of legal principle and is not [a substitute] for an appeal". (Appeal Transcript page 19 lines 1-11) Nevertheless, he submitted that what the primary judge said at [7] showed that she had misunderstood her function. In light of the scope of the discretion conferred on her Honour, that submission, and Mr Shapkin's submissions as to the other discretionary matters on which her Honour relied, must be rejected.
Moreover, in light of what was said in Gibson at [31] per Bell P and at [42] per Basten JA, even if the primary judge had erred in determining whether or not Mr Shapkin's proposed questions were questions of law arising on the appeal, those would have been errors within jurisdiction. This is not a case where, for example, it could be suggested that her Honour had acted arbitrarily or capriciously, irrationally, or not bona fide. Mr Shapkin properly made no such submission.
I should address one further way in which Mr Shapkin put the argument under his Category 2. He submitted that the primary judge had fallen into jurisdictional error because (so he said) her Honour had referred to discretionary considerations that had arisen in other cases and "her perception was … she no longer has the discretion to state the case". (Appeal Transcript page 19, line 43). That is not the correct way to understand the reasons the primary judge gave. Instead, her Honour identified a number of matters which she took into account in the exercise of what she understood to be her discretion to decline to state a case. She did not proceed on the basis that her discretion was taken away from her in the way Mr Shapkin suggested.
In light of those conclusions the summons must be dismissed.

Mr Shapkin's proposed questions

That being so, it is not strictly necessary to consider further whether any of Mr Shapkin's proposed questions was a "question of law arising on [the] appeal" to the primary judge, or the primary judge's reasoning about them. However, as the matters were argued, I will state my views.
As to proposed Question 1: a proposed question which mis-states the facts or some other premise is not a "question of law arising on any appeal" for the purposes of s 5B. In the primary judge's reasons at [1] she determined, correctly, that proposed Question 1 suffered from that vice for the reasons her Honour gave at [1]. In particular, as I have said above, the proposed question did not accurately state the Crown's concession.
But even if that had not been so, the primary judge would not have been required to submit the proposed question to the Court of Criminal Appeal merely because of the form it took. Mr Shapkin submitted that the primary judge erred by failing to apply the "doctrine of precedent" because she did follow Hammond v The Queen (2013) 85 NSWLR 313; [2013] NSWCCA 93 (Hammond) in stating a case. I reject that submission for the following reasons.
It is true that the form of Mr Shapkin's proposed Question 1, in particular its use of the words, "was the evidence capable of …", echoed the form of the question in Hammond. In that case, Slattery J (Hoeben CJ at CL and Bellew J agreeing) set out a question that the District Court judge had submitted to the Court of Criminal Appeal pursuant to s 5B as follows at [3]: … Lerve DCJ set out the essential facts that he had found in dismissing the appeal before him in the form of a case stated. On the basis of those facts he submitted the question for this Court's determination in the following form:- Can these facts [the facts set out in the case stated] support a finding of guilt for an offence contrary to section 195(1)(a) of the Crimes Act 1900, in particular was the evidence capable of proving beyond reasonable doubt that the seat had been damaged by the conduct of Dion John Hammond? (Interpolated words in square brackets in original.)
At [22]-[24], Slattery J held that that was a question of law, relying on the analysis of Jordan CJ in The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126, at 137-8.
However, in light of what was said in Mack Fleet at [28]-[30], the primary judge was not obliged to submit proposed Question 1 to the Court of Criminal Appeal merely because it took that form. 28. The question articulated in the present case was syntactically incoherent. Furthermore, in commencing "Did I err in law in concluding …", it failed to identify the specific error alleged. If the question had been properly stated it might have been in the following form: Was the uncontested evidence of non-compliance with clause 87(4) of Schedule 2 of the Heavy Vehicle (Vehicle Standards) National Regulation (NSW) capable of supporting a finding that the vehicle was 'unsafe' for the purposes of an offence under s 89 of the Heavy Vehicle National Law (NSW)? 29. This form of the question raises its own difficulties. As explained in Kostas v HIA Insurance Services Pty Ltd: A tribunal that decides a question of fact when there is 'no evidence' in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law. 30. It follows that in every case it will be possible to identify a question of law in the terms of "was the evidence accepted by the court capable of supporting the conviction." A reading of s 5B which obliges the District Court judge hearing an appeal to refer every such question to the Court of Criminal Appeal for determination would turn a provision designed to be under the control of the court into a universal right of appeal on a question of law. That would subvert the purpose of the section by giving it an entirely different function. Such a construction should not be accepted. (Citations omitted; italics in original)
A District Court judge is entitled to approach a proposed question with circumspection where, as in proposed Question 1, it is only the incorporation of a formula such as "was the evidence capable of negativing beyond reasonable doubt …" that affords a basis for concluding that the proposed question may be a question of law. Similar phrases are "capable of proving", "capable of establishing" and "capable of supporting". Provided that it is a question arising on the appeal to the District Court, a question stated in that form may raise a question of law suitable for submission to the Court of Criminal Appeal. No doubt the power to submit or to decline to submit such a question must be exercised judicially and on the basis of proper considerations which reflect the context and statutory purpose of the power: Mack Fleet at [20]. Here it was proper for the primary judge to consider whether the proposed question "seeks to reagitate the Court's assessment of particular facts" (at [1]), or "seek[s] to challenge the ultimate determinations made" (at [4]), or would in substance transform "the stated case procedure … [into] a substitute for an appeal" (at [7]). Her Honour would also have been entitled to take into account any other relevant matters, such as whether the proposed question was one as to which there was a real doubt as to the correct answer: Gibson at [40(4)(c)].
As to proposed Question 2, her Honour said it "raises an objection to the admissibility of evidence not previously raised". That was correct. No objection had been taken to "the tendered picture with three phones," either in the Local Court or on the appeal to the District Court judge. There was no mention of that fact, either in proposed Question 2 or in the four pages headed "Ultimate Facts as Judicially Determined by the District Court of New South Wales on 13 December 2022 for the Purpose of Case Stated" in Mr Shapkin's submissions dated 13 December 2023. The primary judge was right to regard that as a deficiency in the proposed question; the question did not arise on Mr Shapkin's appeal. The fact that no objection had been taken was also a strong discretionary factor against stating a case.
Proposed Questions 3 and 4 used variants of the "capable of …" language discussed in Mack Fleet, although Question 3 referred to "conduct" rather than evidence. The primary judge was entitled to regard these questions, as she said at [3], as seeking "to reagitate the Court's assessment of particular facts and their application to the relevant law," and to decline to submit them to the Court of Criminal Appeal.
Like proposed Question 1, proposed Question 5 did not accurately state the Crown's concession, as the primary judge said at [3]. Proposed Question 5 also contained a false premise, that there had been a "defence of necessity" to the s 13(1) charge. That had been the defence to the s 195(1) charge, not the s 13(1) charge. This was not a question of law arising on Mr Shapkin's appeal to the District Court judge.
As to proposed Question 6, this was directed to the severity of the sentence. The proposed question was expressed in the form, "Can the facts set out in the case stated support …" But, as noted above, the four pages of "facts" in Mr Shapkin's written submissions dated 13 December 2023 did not refer to, for example, what the primary judge had said about his lack of remorse. That was a serious defect in the question. It did not accurately state a question of law arising on Mr Shapkin's severity appeal.
By grounds 7 and 8 of his submissions, Mr Shapkin contended that the primary judge's failure to reformulate his six questions was a failure to exercise jurisdiction. I do not agree, for the reasons given in Mack Fleet at [20].
Mr Shapkin also submitted at [24] of his written submissions that the primary judge erred because each of the six questions "did raise for consideration a principle of general application, and/or did raise for consideration an issue, the resolution which would provide guidance in a general sense to Judges of the District Court of NSW." Those are essentially evaluative questions. I do not accept that her Honour erred in her evaluation. But even if her Honour had so erred, that would be an error within jurisdiction.

A discretionary consideration in this Court

There is one further matter relevant to the summons. The Court has a discretion whether to grant relief pursuant to s 69 of the Supreme Court Act 1970 (NSW). Depending on the circumstances, delay, particularly in invoking the jurisdiction of this Court, may be relevant to the exercise of that discretion. If Mr Shapkin had established a jurisdictional error, it would have been necessary to consider the significance of the year of unexplained delay between the determination of Mr Shapkin's appeal and his identification of proposed questions in December 2023, and the three months between the primary judge's decision declining to state a case and the filing of the summons in this Court. The primary judge did not address the question of delay in her reasons for decision, but it would have been preferable had her Honour done so (see Elias v The Director of Public Prosecutions (NSW) [2012] NSWCA 302 at [10]-[12]).

Disposition of summons

Mr Shapkin has failed to demonstrate any jurisdictional error. The summons should be dismissed.

The Notice of Motion seeking a stay

As noted above, Mr Shapkin sought an order "That the Second Respondent's judgment dated 13 December 2022 and/or its execution be stayed until further order." The Notice of Motion had sought a similar order in relation to the Local Court's judgment of 1 September 2022, which Mr Shapkin did not ultimately press on the basis that the Local Court's judgment had no independent effect after the District Court confirmed his convictions.
Mr Shapkin accepted that he could not obtain a stay if he failed on his summons. Although I am against him on the summons, I make the following observations against the possibility that I am wrong.
There were two components to the primary judge's "judgment dated 13 December 2022": the confirmation of his convictions and the confirmation of the sentence. Mr Shapkin did not press for a stay in relation to the sentence because, on his own evidence, he had already served the Community Corrections Order and he had paid the fine.
He did, however, press for a stay of the convictions. His reason for doing so was that the existence of the convictions had caused him a series of practical difficulties. He said that the convictions had resulted in the refusal of his application for citizenship (see Shapkin v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 681), in his failure to obtain a practising certificate from the Law Society (and potentially the Bar Association), and in his inability to obtain a working with children check. He tendered a good deal of irrelevant material in support of that submission, in the form of two folders of the court book in his citizenship proceedings. The tender should be rejected save insofar as I have referred to some of that material as evidence of the circumstances in which Mr Shapkin made and prosecuted his request for the primary judge to state a case. The pages identified as CB717-718 and CB837-840 should be admitted into evidence, and the balance of the two folders should be rejected.
There are two reasons why, even if Mr Shapkin's summons had not otherwise been dismissed, I would not have granted a stay of the convictions.
First, this Court's function on the summons for leave to appeal was limited to determining whether the primary judge had fallen into jurisdictional error in declining to state a case. On no outcome of the summons could this Court have quashed the convictions. Even if Mr Shapkin had succeeded on his summons, he would have been at least two stages removed from being in a position to have the convictions quashed. First the matter would have to be remitted to the primary judge to determine according to law whether a case should be stated. Only if her Honour determined to submit a question to the Court of Criminal Appeal, and the Court of Criminal Appeal determined to extend the 28 days in s 5B(2), would any possibility arise that the convictions might be quashed. That being so, it is difficult to see how this Court could stay the convictions in the exercise of its jurisdiction to determine the issues arising on the summons.
Secondly, I am not persuaded that in this case there remains anything to stay. The convictions were determinations of guilt. They did not themselves require anything to be done. Nor was there anything remaining to be done under the convictions. As Mr Shapkin recognised, the sentence could not be stayed as it had been served.
The application for a stay should be refused.

Costs

Mr Shapkin submitted that if he was successful he should have his costs but if he was unsuccessful he should not have to pay costs. The only reason he advanced as to why the usual order as to costs should not apply was that to order costs against him would create an incentive for him to bring an application for special leave to appeal to the High Court of Australia. Whether or not that is so, it would be irrelevant to the exercise of the Court's discretion as to costs that the order might create an incentive to commence proceedings in another court.
There is no reason why the usual order as to costs should not apply. Mr Shapkin should pay the Director's costs of his summons and the Notice of Motion.
There should be no order as to the costs of the second respondent, which had filed an appearance submitting save as to costs.
BASTEN AJA: The applicant, Vladimir Shapkin, appealed to the District Court from his conviction and sentence in the Local Court for two offences dealt with summarily. His appeal having been dismissed by Judge Robinson, the applicant (belatedly) requested the judge to submit six questions of law for determination by the Court of Criminal Appeal, pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). The judge declined to do so, and the applicant sought review of her refusal, pursuant to s 69 of the Supreme Court Act 1970 (NSW). No reviewable error having been established, the summons in this Court must be dismissed. I agree with the orders proposed by McHugh JA.
Three issues of principle as to the application of s 5B (set out at [15] above) arose in this case. The first concerns the word "may" first occurring in s 5B(1). It is apt to confer a power on a judge of the District Court: the question is whether it confers a power coupled with a duty. [1]
The answer established by authority in this Court is that it may do so, but only in rare circumstances. [2] That is because the section requires that the District Court judge (not this Court) be satisfied that the case is both one where the power is engaged and is an appropriate one in which to state a question of law. [3] That is in accord with the principle of statutory construction that a provision conferring jurisdiction or power on a court of record in defined circumstances should not be read as making the existence of each circumstance a jurisdictional fact to be established to the satisfaction of the reviewing Court. [4] It is also consistent with the privative clause in s 176 of the District Court Act 1973 (NSW), which prevents this Court reviewing decisions of the District Court for errors of law on the face of the record.
As will be noted shortly, there are generic phrases which can give rise to questions of law, but whether they in fact arise on the appeal is an issue which the judge who heard the appeal is best placed to answer. Further, even if the question may have arisen on the appeal, but the answer may not be in doubt, it would not warrant troubling the Court of Criminal Appeal. It is not hard to envisage other circumstances which the District Court judge, acting reasonably, could rely on to refuse to submit a question. [5]
Secondly, the jurisdiction of this Court to review the exercise of the power vested in the District Court judge is engaged in the present case. It is engaged by the existence of a discretionary power, a fact which militates against the imposition of a broad duty to submit a case, regardless of the circumstances. Indeed, the fact that it is a discretionary power supports the conclusion that the District Court, while exercising a gateway function with respect to the Court of Criminal Appeal, is exercising criminal jurisdiction under Pt 4 of the District Court Act, so as to engage s 176 of that Act which states that "No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court." This is a conventional form of privative clause, restricting this Court's jurisdiction to review for jurisdictional error. [6]
Thirdly, there must be a "question of law", and one "arising on [the] appeal". In the present case, four questions were in the form, "on the facts set out in the stated case" was the evidence "capable of establishing" an element of the charge. The capacity of the evidence accepted by the trial judge to establish the necessary elements of an offence can engage a question of law. However, if the evidence was not as stated, or the evidence was not accepted, or there was other evidence not referred to, such a question will not have arisen on the appeal. [7]
This Court observed in Mack Fleet Pty Ltd v Transport for NSW: [8] "30 It follows that in every case it will be possible to identify a question of law in the terms of 'was the evidence accepted by the court capable of supporting the conviction.' A reading of s 5B which obliges the District Court judge hearing an appeal to refer every such question to the Court of Criminal Appeal for determination would turn a provision designed to be under the control of the court into a universal right of appeal on a question of law. That would subvert the purpose of the section by giving it an entirely different function. Such a construction should not be accepted."
That statement did not seek to deny that such a question was, or could be, a question of law: the previous paragraph had set out a passage from the joint reasons in the High Court in Kostas v HIA Insurance Services Pty Ltd [9] to that effect. Rather, the point made was that the use of such a formula would not necessarily raise a question of law for the purposes of s 5B of the Criminal Appeal Act. It did not deny that in particular circumstances there might be such a question and, indeed, failure to recognise such a question might constitute a jurisdictional error. The issue usually is, did the question as formulated arise? Often the answer will be that it did not because the appeal has turned on the findings of fact, not on the capacity of the evidence to satisfy any element of the charge. If so, the rejection by the trial judge of the proposed question will usually be a determination within jurisdiction, as it was in this case.
The point of distinction may be illustrated by reference to a decision relied upon by the applicant, which did concern a question of law. The applicant in Hammond v The Queen [10] had been convicted of intentionally or recklessly destroying or damaging property of another person. The admitted conduct involved the applicant spitting onto a stainless-steel chair in the dock at a police station. The District Court judge submitted a case asking whether spitting on a stainless-steel chair could constitute damaging the chair, in the event the factual premise was established or (as in that case) agreed. That was a question of law because it went to the capacity of the prosecution evidence to satisfy the charge. (Unsurprisingly, the Court held that such an act could not amount to the charged offence.) However, the decision provides no assistance in determining whether there would have been jurisdictional error on the part of the District Court judge in that case had he declined to state a case.
A decision that s 5B is not engaged in a particular case, or that for discretionary reasons no case should be submitted, may be subject to judicial review on the grounds of manifest unreasonableness or other established grounds of possible jurisdictional error, as explained by Bell P in Gibson (No 2) at [33].
In a case such as the present, where the questions are formulated in terms of whether the evidence was capable of supporting the charge, the judge may consider that there undoubtedly was such evidence, if a particular witness or witnesses were to be believed. The real issue would then be, not the capacity of the evidence to support the charge, but whether the evidence was accepted and what weight it was given. The judge will usually be able to determine from knowledge of the way the appeal was run, together with the facts found, whether there was in reality any issue as to the capacity of the evidence to support a conviction. Hammond was a simple case involving the act of spitting on a stainless-steel chair: the facts were not in dispute.
Had the District Court judge rejected the questions on the basis that the capacity of evidence to satisfy a charge could not constitute a question of law, there could have been jurisdictional error. However, the judge did not take that approach: as explained by McHugh JA, in addressing each question she considered whether it was properly based on the facts found and whether it arose in the circumstances of the case. That was a correct exercise of the judge's function. There was no jurisdictional error.
A request to submit a question of law will usually be made to the judge who conducted the appeal from the Local Court; that is the regular (perhaps invariable) practice. A request should be made in compliance with the 28-day limitation period stated in s 5B(2). If that is not done, the District Court judge will need to consider the likelihood that the Court of Criminal Appeal may extend time. Where a request is refused on any basis, unjustified delay, coupled with an absence of a manifest miscarriage of justice, will warrant refusal of relief on judicial review. This could have been such a case, had a ground been made out.
Otherwise, I agree with the comprehensive disposal of the issues by McHugh JA.
GRIFFITHS AJA: I agree with the reasons of McHugh JA and the orders he proposes. I also agree with the additional observations of Basten AJA.

Endnotes

Ward v Williams (1955) 92 CLR 496, 505; [1955] HCA 4; P Herzfeld and T Prince, Interpretation (2024, 3rd ed, Thomson Reuters) at [4.230].
Gibson v Director of Public Prosecutions (NSW) (No 2) (2021) 105 NSWLR 434; [2021] NSWCA 218 at [31]-[32] (Bell P), [40] (in my reasons), [64] (Meagher JA); Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162; 286 A Crim R 191 at [46]-[48].
Gibson at [42].
Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369, 375-376 (Latham CJ); 391 (Dixon J) [1938] HCA 7.
Forrest at [48].
Forrest at [47].
Clancy v Director of Public Prosecutions [2018] NSWCA 102.
[2020] NSWCA 149.
(2010) 241 CLR 390; [2010] HCA 32.
(2013) 85 NSWLR 313; [2013] NSWCCA 93. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2024

(2022) 109 NSWLR 198

(2021) 105 NSWLR 434

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (19 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (32)