Tritton v Clarke

Limitations of s 5B procedure

1. Although s 5B is included in Pt 3 headed "Right of appeal and determination of appeals" it does not provide for an appeal to this Court from a decision of the District Court on an appeal to that Court from the Local Court. There are three relevant limitations in s 5B. The first two are express: namely that the question to be submitted for determination be a question of law, and that the question be one that arises or arose in the appeal to the District Court. The third generally accepted limitation (and accepted in this case) is that the procedure by which a question is submitted for determination of the Court of Criminal Appeal is by way of stated case. The applicant and the Attorney General accept that the technicalities and limitations inherent in the procedure by way of stated case apply to a submission of a question for determination under s 5B (see e.g. Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61). Those limitations include that the Court cannot refer to any material not contained in the stated case (Thomas v The King (1937) 59 CLR 279 at 286, 299, 313; R v Rigby (1956) 100 CLR 146 at 150-1, 153; Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41 at 58; R v Chan (1992) 28 NSWLR 421 at 431; R v Madden (1995) 85 A Crim R 367 at 370-371; Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 at [10]-[11]; Lavorato v The Queen at [8]; Hammond v The Queen (2013) 85 NSWLR 313; [2013] NSWCCA 93 at [11]).
2. Another limitation of the stated case procedure is that the court cannot draw inferences as to matters of additional fact that are not expressly stated, as distinct from making a necessary implication as to what the judge stating the case must be understood to have said (R v Rigby at 151).

The First Question

1. Section 35(2) of the Fisheries Management Act 1994 (NSW) provides: "35 Possessing fish illegally taken … (2) It is a defence to a prosecution for an offence under this section if the person charged satisfies the court that the person could not reasonably have known that the fish had been illegally taken."
2. The first of the questions stated for determination by this Court is set out above at [4]. The question admits of only one answer: yes. The surrounding circumstances of the individual case must be taken into account in order to determine whether the person charged, if acting reasonably, could not have known that fish had been illegally taken. What a person could or could not have reasonably known can only be assessed by considering the circumstances in which he or she acquired and held possession of the fish.
3. That does not mean that the question arose on the hearing of the appeal in the District Court.
4. It was common ground that para 9 of the stated case was to be taken as a finding of fact and not merely a statement of the evidence before the District Court. The findings of fact made by the primary judge included that the endorsement holders (which it was common ground were the persons who took the pipis), were reliable fishermen and that the volume, number and depths of pipis would have prevented an accurate visual inspection of them. These findings necessarily entailed a consideration of the surrounding circumstances. The primary judge's finding expressed in para 7 of the stated case was not merely that the respondent believed that the pipis taken were not undersized, nor that that belief was reasonable, but rather that he could not reasonably have known that the pipis were undersized and therefore had been illegally taken.
5. As noted above the stated case included a statement of the applicant's contentions. They included the following: "11 It is contended by the appellant that there was a failure to determine and apply what the test for the statutory defence was, and therefore that the wrong test was applied. It is contended by the appellant that all that was articulated was the fact that certain circumstances made out the defence. … 14 The definition of the test to be applied when considering the defence of 'could not reasonably have known' was fundamental to the outcome of the proceedings. It required clear articulation of the principles relied upon in reaching the conclusion that was reached. 15 The error is said to be that: (i) a failure to consider whether or not the prosecution had negatived that defence; and, secondly, (ii) the application of purely subjective considerations to a determination as to whether that defence was made out. 16 The word 'subjective' is used in the sense that the judge considered that the respondent could not have reasonably known because of his belief as to (i) the reliability, and (ii) the actions of the fisherman in circumstances where the illegality was not immediately apparent on cursory inspection. The evidence from the respondent, accepted as a fact, was to the effect that he had not looked nor had he turned his mind to the issue. The respondent had said in a record of interview 'I never pay attention, I don't pay attention because I was under the impression that when the pipis come in that they were all okay'. 17 To succeed on the defence contained within s 35(2), more was required.'" (Emphasis in original.)
6. Whether or not the judge's reasons for judgment could be characterised as stated in para 16, the facts stated in the case cannot be so characterised. There is no finding of fact that "the illegality was not immediately apparent on cursory inspection". Rather, there is a finding that the volume, number and depths of pipis would have prevented an accurate visual inspection of them. There is no necessary implication that the judge was referring only to a cursory inspection. As noted above, on a case stated it is not open to the court to draw an inference of fact that does not arise by necessary implication.
7. The evidence of the respondent referred to in para 16 of the stated case quoted above at [15] is not a finding of fact made by the judge. The applicant's counsel correctly accepted that it was merely a statement of the applicant's contentions. Likewise, the statement of what the respondent said in a record of interview is not a finding of fact. Such a statement of evidence could not be properly included in the stated case (R v Rigby at 149; Industrial Equity Limited v Commissioner for Corporate Affairs [1990] VR 780 at 782).
8. The applicant submitted that there was evidence that the respondent had a financial interest in the pipis. He submitted that the primary judge accepted the evidence of the respondent that he had not taken any steps as regards the pipis which were in his possession and found that any cursory inspection of the pipis would not in any event have revealed that the pipis were undersized and thus been taken illegally. These contentions are not expressed nor necessarily implied in the facts stated.
9. The applicant argued that the evidence considered by the magistrate that was relevant to the application of the defence in s 35(2) included the respondent's financial interest in the pipis, evidence as to the respondent's prior involvement in the handling of pipis, evidence from an inspector of fisheries that the inspector was under the immediate impression that they were undersized, evidence from a Mr Shane Geary that in his experience it would be possible to identify the presence of undersized pipis, and evidence from a fisheries officer that he knew that the pipis were undersized from the moment he picked them up.
10. These matters are not included in the findings of fact in the stated case. Whether correct or not, they are irrelevant to the determination of the stated case. The stated case procedure does not confer a general avenue of further appeal (R v Madden at 370; Castlebar Holding v Riley [2005] NSWCCA 105 at [3]-[4]; Lavorato v The Queen at [26]).

The Second Question

1. The second question in the stated case does not raise a question of law. Even if it did, it cannot be answered. In order to answer the question it would be necessary to have regard to the reasons for judgment. In Brisbane City Council v Valuer-General (Qld) Gibbs J said (at 58) that: "… it is customary to annex the reasons for judgment to a case stated and convenient to do so to enable the matter to be properly understood."
2. That was not done in this case.
3. As the Attorney General recognised, the question whether the respondent could not reasonably have known that the pipis had been illegally taken is a question of fact. When asked to identify what was the "correct test" that the primary judge failed to apply, counsel for the Attorney repeated the terms of s 35(2).
4. If there were a right of appeal from the respondent's acquittal on questions of fact or law, then it might be found that the primary judge erred in not considering all of the circumstances relevant to an assessment of what was reasonable in the circumstances for the respondent to do to investigate the size of pipis in his possession. The applicant's contention is that the primary judge failed to do that. But if that contention were made good, it would not, merely on that account, raise a question of law. Prima facie, it would amount only to an erroneous finding of fact.
5. In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Glass JA, with whom Samuels JA agreed, said that error in determining facts by way of primary findings and inferences, even though marred by patent error, illogicality or perversity cannot be attacked as an error of law. His Honour added (at 157): "An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the [course] of employment, substantial interruption to journey, or failure to provide suitable employment would ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law because no other application is reasonably open." (quoting Hope v Bathurst City Council (1980) 144 CLR 1 at 10 and Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 at 138).
6. In Hope v Bathurst City Council Mason J, with whose reasons Gibbs, Stephen and Aickin JJ agreed, observed (at 7) that: "Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law". (Emphasis added.) An example is Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51; [1956] HCA 21 referred to with approval in Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 394-395; [1996] HCA 36.
7. The applicant's complaint is not of that character. It is that the primary judge did not fully find the primary facts.
8. In NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 Kitto J said (at 511-512) that although the common understanding of a word in ordinary speech is a question of fact, whether the evidence reasonably admits of different conclusions as to whether the appellant's operations fell within the ordinary meaning of the words of a statute was a question of law. If different conclusions were reasonably possible, then deciding which is the correct conclusion is a question of fact.
9. To similar effect it has been held that a finding of fact will amount to an error of law if the decision-maker could not reasonably have reached the decision on the evidence before him or her (Dennis v Watt (1942) 43 SR (NSW) 32). Dennis v Watt was a case stated from a decision of a magistrate who found an accused not guilty of driving a motorcar negligently in a public street contrary to the provisions of s 4 of the Motor Traffic Act 1909. Jordan CJ said (at 32): "What the Statute penalises, for all purposes relevant to the present case, is the act of driving negligently, and the question whether negligence has occurred is essentially one of degree. From certain findings of fact it would necessarily follow, as a matter of law, that an accused person had been negligent; from others, that he had not. Between these extremes, however, there lies a broad limbo in which, upon the facts found, the question whether negligence had occurred would depend upon the view taken of their relative importance and significance. In such a case, the ultimate determination becomes also one of fact, and a decision either way by a tribunal of fact cannot be said to be wrong in law, unless it appears that the case has been so decided because some legal principle has been wrongly applied." At 33, he quoted Currie v The Commissioners of Inland Revenue [1921] 2 KB 332 where Lord Sterndale said at 336: "There may be circumstances in which nobody could arrive at any other conclusion than that what the man was doing was carrying on a profession; and therefore, looking at the matter from the point of view of a judge directing a jury, the judge would be bound to direct them that on the facts they could only find that he was carrying on a profession. That reduces it to a question of law. On the other hand, there may be facts on which the direction would have to be given the other way. But between those two extremes there is a very large tract of country in which the matter becomes a question of degree; and where that is the case the question is undoubtedly, in my opinion, one of fact; and if the Commissioners come to a conclusion of fact without having applied any wrong principle, then their decision is final upon the matter."
10. A question whether facts found are capable of supporting a conviction is a question of law (Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251). A question whether facts found by the judge were not capable of supporting a defence under s 35(2) could be a question of law, at least if the facts were fully found. That was not the question submitted.
11. If the reasons of the primary judge had been appended to the stated case and the second question were answered in the negative that might be on the ground that the judge did not make a correct finding of fact. It must be borne in mind that the so-called "correct test" was a requirement that the primary judge consider the surrounding circumstances of the individual case. The question is not whether the primary judge did not consider the surrounding circumstances to be relevant, but whether or not he took adequate account of all of the surrounding circumstances. Failure to do so would prima facie be an error of fact, but could be an error of law if only one conclusion were open on the facts found.
12. The Attorney General submitted that because there was no dispute that the fishers had supplied the respondent with illegally sized pipis, the stated case itself cast doubt upon the finding that the fisherman were reliable. It is not open however on the stated case to go behind the stated finding. The Attorney General also submitted that it was not apparent why the quantity of fish would prevent an accurate assessment by a fisherman with the respondent's experience of whether they were undersized. Again, that submission seeks to challenge the finding of fact recorded in para 9(iv). The Attorney General submitted that whether the respondent established on the balance of probabilities that at the time of his possession he could not reasonably have known that the fish had been illegally taken, required consideration of the knowledge which he could have reasonably obtained having regard to his actual knowledge, capacity and the circumstances at the time he possessed the fish. So much may be accepted. But whether in the circumstances further (or any) investigation was required was a question of fact.
13. The stated case did not seek to identify as a question of law whether the primary judge's ultimate finding could not reasonably have been arrived at on the facts found. Nor did the stated case raise as a question whether the evidence was incapable of supporting the finding of fact in para 9(iv) that the volume, number and depths of pipis would have prevented an accurate visual inspection of them.
14. The Attorney also submitted that there may have been an error of law in the primary judge's reversal of a credibility finding made by the magistrate in relation to the respondent. Neither the magistrate's reasons nor the reasons of the primary judge were part of the stated case. In any event, the suggested error of law is not a question of law submitted for determination by this Court.
15. For these reasons it would not be appropriate to answer the questions in the stated case if time were extended under s 5B(2). The court will be slow to reformulate the questions stated (Castlebar Holding v Riley at [33]). That is particularly so in this case, given that the respondent did not have legal representation. Nor did the applicant seek to reformulate the questions submitted for determination or to amend the stated case by appending the reasons for judgment.

Extension of time

1. The applicant applied for an extension of time within which the question of law was to be submitted to this Court under s 5B. The primary judge's decision was delivered on 4 August 2016. Section 5B(2) required the question of law to 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". As stated in para 2 of the case stated, after the appeal against conviction was allowed on 4 August 2016 the proceedings were adjourned for argument on a question of costs and the appeal proceedings were not finalised until 3 March 2017. It was not until 31 March 2017 that a draft stated case pursuant to s 5B was submitted to the primary judge. There were then delays in the finalisation of the form of the stated case for which the applicant was not responsible. The case stated was not filed until 7 September 2017.
2. Nonetheless, the applicant did not have to wait until the determination of the issue concerning costs before requesting the judge to state a case.
3. If this Court were to extend time under s 5B(2) each question submitted for determination should be answered "inappropriate to answer". Because it is not appropriate to answer the questions, and because of the delay, the preferable course is not to extend time.
4. It is legitimate to have regard to the reasons of the primary judge in deciding whether to extend time under s 5B(2). The Attorney submitted that a reason in favour of extending time and answering the questions posed is that the questions have possible significance in other cases. I do not agree. The challenge to the primary judge's reasons is a challenge to his Honour's finding of fact. The fact that the primary judge found that the statutory defence was made out in the present case has no precedential value to any other case.

Postscript

1. The stated case procedure has often been criticised. In Hope v Bathurst City Council Murphy J said (at 11): "Most of the difficulties in this case arise from the stated case procedure. These have resulted in much time being wasted by judges, counsel and other legal representatives at the various stages of this case and they are typical of the procedure."
2. In Lavorato v The Queen, Schmidt J referred to the need for law reform and referred to what Street CJ said in Collins v State Rail Authority (NSW) (1986) 5 NSWLR 209 at 211 that the stated case procedure was cumbersome, often unsatisfactory and fraught with difficulties. In Sasterawan v Morris Basten JA said (at [11]) that the form of a stated case has long provided difficulties for would be appellants. So it is in this case.
3. Law reform should not be difficult. It could be as simple as providing for an appeal on a question of law, either with or without leave, to the Court of Criminal Appeal from a decision of the District Court in the exercise of its criminal and special jurisdiction, and conferring the same powers as are provided for in s 5B(3).
4. If s 5B is not amended, in a future case it might be appropriate for this Court to consider whether the technicalities and limitations attendant upon the stated case procedure are incorporated in s 5B, as has been assumed. In Thomas v The King, R v Rigby, Brisbane City Council v Valuer-General (Qld) and Hope v Bathurst City Council, the legislation provided for a question to be submitted for determination by a court in the form of a stated case. Section 5B simply provides that a Judge of the District Court may submit any question of law arising on an appeal to the District Court in its criminal and special jurisdiction coming before the Judge, to the Court of Appeal for determination. The section does not say that the question must be submitted in the form of a stated case. The heading to s 5B is "Case stated from District Court", but that heading is not part of the body of the Act (Interpretation Act 1987 (NSW), s 35(2)). Section 35(3) of the Interpretation Act provides: "35 Headings etc … (3) A heading to a provision of an Act or instrument (not being a heading referred to in subsection (1)) shall be taken to be part of the Act or instrument if, immediately before 1 February 1981 (being the date on which section 3 of the Interpretation (Amendment) Act 1980 commenced), it was part of the Act or instrument."
5. Immediately before 1 February 1981 there was no heading to s 5B. There was a marginal note: "Case stated from District Court". The marginal note was not part of the Act.
6. Notwithstanding the long course of authority in this Court there might be scope to argue that s 5B does not prescribe any particular procedure as to the way in which a question of law can be submitted for determination of the Court of Criminal Appeal and that the limitations and restrictions inherent in the stated case procedure need not be incorporated. If that were so, r 29 of the Criminal Appeal Rules requiring the questions submitted to the court to be accompanied by a summary of the evidence would not be anomalous (compare Lavorato v The Queen at [8]-[9]). It might be significant that in R v Bates [2007] NSWCCA 297; (2007) 68 ATR 265 Hodgson JA (Hislop and Latham JJ concurring) referred to material not included in the document submitted to the court pursuant to s 5B. Whether such an argument might be open cannot be determined in the present case. The issue was not raised by the parties.

Proposed orders

1. For these reasons I propose the following order: 1. Refuse the applicant's application for an extension of time to submit the questions contained in the case stated dated 28 August 2017 and filed on 7 September 2017.
2. The respondent appeared by videolink and made short oral submissions on the hearing. He was not legally represented and did not ask for costs. No order for costs should be made.
3. FULLERTON J: I agree with White JA.

Amendments 08 March 2018 - [26] - Aicken changed to Aickin [29] - typographical change to "principle" 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: 08 March 2018