BRK v Police [No 2] - [2020] SASC 151

Supreme Court of South Australia
(Civil)
BRK v POLICE [NO 2]
[2020] SASC 151
Reasons for Decision of The Honourable Justice Livesey (ex tempore)
7 August 2020
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW
On 26 June 2020 this Court delivered judgment in BRK v Police [2020] SASC 116 which identified two errors of law in the sentencing Magistrate’s reasons, enlivening this Court’s discretion to intervene and, if appropriate, resentence the appellant. However, on 17 July 2020 the appellant withdrew the appeal with the result that the appeal was dismissed.
On the same occasion the respondent indicated that it would apply to this Court to state a case on a point of law arising out of the reasons delivered on 26 June 2020. Accordingly, liberty to apply to make the application was granted.
On 31 July 2020 the respondent made an informal application to refer three questions of law to the Full Court for its consideration pursuant to s 49 of the Supreme Court Act 1935 (SA).
Held, dismissing the application:
1. The answers to the questions of law that the respondent seeks to refer to the Full Court would not be dispositive of the appeal. The long-standing practice of this Court under s 49 of the Supreme Court Act 1935 (SA) is that the Court will not exercise the power conferred by s 49 unless the answer to the question of law which is reserved will be dispositive of the rights and liabilities of the parties, or at least capable of resolving an intermediate step in the determination of their rights and liabilities.
2. As the Full Court has held that s 49 cannot be applied to a point arising in a criminal trial, R v Millhouse (1980) 24 SASR 555, it is difficult to see how it can apply to a Magistrates appeal against sentence on the application of the prosecution after the appeal has been resolved in favour of the prosecution.
3. Other discretionary considerations are: (i) the application is made some time after the matter has been resolved, (ii) because the appeal was dismissed the reasoning the subject of the application did not dispose of the case and (iii) there are likely to be other opportunities to test the reasoning the subject of the application.
Criminal Appeal Act 1912 (NSW) s 5B; Criminal Law Consolidation Act 1935 (SA) s 340, s 350; Criminal Procedure Act 1921 (SA) s 151, s 153, s 155; Magistrates Court Act 1991 (SA) s 41, s 42, s 43; Sentencing Act 2017 (SA) s 69, s 71; Supreme Court Act 1935 (SA) s 49, referred to.
Martin v Employers Mutual Ltd (2012) 112 SASR 436, applied.
BRK v Police [2020] SASC 116; Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162; J N Taylor Holdings Ltd (In Liq) v Bond (1993) 59 SASR 432; Knight v FP Special Assets Ltd (1992) 174 CLR 178; Mellifont v Attorney-General (Qld) (1991) 173 CLR 289; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; Pearce v The Queen (1998) 194 CLR 610; R v Mann [2020] SASCFC 69; R v Millhouse (1980) 24 SASR 555; R v Thaller and Gee (Question of Law Reserved) (2001) 79 SASR 295, considered.

BRK v POLICE [NO 2]
[2020] SASC 151

LIVESEY J: On 26 June 2020 I delivered reasons in BRK v Police[1] identifying what I regarded as two errors of law that enlivened this Court’s power to intervene and, if appropriate, to re-sentence. However, following submissions, on 17 July 2020 I indicated that I was seriously considering a harsher penalty and the appellant elected to withdraw the appeal with the result that the appeal was dismissed.[2]
[1] BRK v Police [2020] SASC 116.
[2] As I explained in remarks given on 17 July 2020, I was concerned that the subject offending appeared to be the third occasion of domestic violence and that this may not have been apparent to the sentencing Magistrate. Given that there were two previous suspended sentences and little evidence of attempts to rehabilitate, a harsher sentence was appropriate. In the circumstances, home detention was not appropriate because it was inconsistent with the need for both general and specific deterrence and the requirements of ss 69 and 71 of the Sentencing Act 2017 (SA).
At the same time I was told that the Director of Public Prosecutions wanted to apply to the Court to state a case on a point of law arising out of my reasons. Accordingly, I granted liberty to apply. At that stage there was no suggestion that the order for dismissal would be other than dispositive of the appeal.
On 31 July 2020 I received from the Director of Public Prosecutions a document containing three proposed questions of law to be reserved for the consideration of the Full Court:
1.   Was I right to conclude that the Magistrate erred in law in that, to the extent that she determined that she was foreclosed from considering home detention, and in failing to consider home detention, before settling upon partial suspension of the sentence of imprisonment, the Magistrate needed to have regard to home detention when surveying the array of sentencing options at her disposal:
a. because home detention remained an available sentencing option in this case, whatever the terms of s 71(1)(b) of the Sentencing Act 2017 (SA), because a partially suspended sentence was “at once more onerous and less onerous than home detention; and
b.   because the Magistrate partially acceded to the contention that a suspended sentence be imposed, and because a partially suspended sentence was “at once more onerous and less onerous than home detention”?
2.   Was I right to conclude that the Magistrate erred in law in that her reasons contain no consideration of one of the two key submissions made to her, being that she should order that any sentence of imprisonment be served on home detention, with the consequence that it cannot be said that home detention was considered, but rejected?
3.   Was I right to determine that a sentencer must proceed by first surveying and considering the appropriate and available sentencing options having regard to the offending, the offender, the matters mandated by the Sentencing Act 2017 (SA) and the submissions and evidence before the court, before focusing on the specific requirements of any preferred sentencing option, and, must reveal such process of reasoning in the reasons for sentence?
The application was made pursuant to s 49(1) of the Supreme Court Act 1935 (SA), which provides:
(1) The court constituted of a single judge, master or judicial registrar may reserve a question of law for the consideration of the Full Court.
The application is not made pursuant to s 153(2) of the Criminal Procedure Act 1921 (SA), which states:
(2) A court by which a person has been, is being or is to be tried or sentenced for an indictable offence may reserve for consideration and determination by the Full Court a relevant question on an issue –
(a)antecedent to trial; or
(b)relevant to the trial or sentencing of the defendant,
and the court may (if necessary) stay the proceedings until the question has been determined by the Full Court.
By s 151 the word “court” is defined to mean the Supreme Court or the District Court. In context, s 153(2) confers a power only on the court by which a person “has been, is being or is to be tried or sentenced for an indictable offence”. A separate power is conferred on the Full Court by s 153(5).
Magistrates are given a similar power by s 43 of the Magistrates Court Act 1991 (SA) in the following terms:
(1)The Court may reserve any question of law arising in a criminal action (except committal proceedings for a charge of an indictable offence) for determination by a superior court.
(2) The question will be reserved—
(b) in any other case – for determination by the Supreme Court constituted of a single Judge (but the Judge may, if he or she thinks fit, refer the matter for determination by the Full Court).
(3)The Court for whose determination a question of law is reserved under this section may determine the question and give any consequential orders or directions that may be appropriate in the circumstances of the case.
There is a separate power to reserve any question of law arising in a civil action under s 41 of the Magistrates Court Act 1991 (SA).
The parties were agreed that, as I was hearing an appeal from the sentence imposed by a Magistrate pursuant to s 42 of the Magistrates Court Act 1991 (SA) the Director could not apply under s 153 of the Criminal Procedure Act 1921 (SA), formerly, s 350 of the Criminal Law Consolidation Act 1935 (SA).[3]
[3] The history of ss 350 and 351 was reviewed in R v Millhouse (1980) 24 SASR 555, 556ff (Mitchell J, with whom King CJ agreed), R v Thaller and Gee (Question of Law Reserved) (2001) 79 SASR 295, [33]ff (Doyle CJ, with whom Prior and Duggan JJ agreed, Bleby J contra) and [144]ff (Lander J), Application for Reservation of Questions of Law (No 1 of 2017) [2017] SASCFC 90, [9]-[13] (Nicholson, Parker and Lovell JJ) and Question of Law Reserved (No 1 of 2018) [No 2] [2019] SASCFC 17. The difference between s 42 of the Magistrates Court Act 1991 (SA) and s 340 of the Criminal Law Consolidation Act 1935 (SA) was highlighted in Police v Patterson [2012] SASC 182, [60] (Peek J).
In R v Millhouse it was held that s 49 did not empower a judge conducting a criminal trial in the court’s original criminal jurisdiction to reserve a question to the Full Court.[4]   Whilst the Full Court relied upon the availability of procedures under the Criminal Law Consolidation Act 1935 (SA), King CJ was emphatic: “[i]n my opinion s. 49 of the Supreme Court Act does not apply to points arising in a criminal trial. There is therefore no valid reference to this Court and the points raised cannot be answered”.[5]
[4]    R v Millhouse (1980) 24 SASR 555 (King CJ, Mitchell and Zelling JJ), referred to without disapproval in Legal Services Commission v JHW (2012) 223 A Crim R 534.
[5]    R v Millhouse (1980) 24 SASR 555, 556.
Whilst it is not suggested that s 49 of the Supreme Court Act 1935 (SA) cannot, in terms, apply to an appeal being heard and determined pursuant to s 42 of the Magistrates Court Act 1991 (SA), neither counsel in the time available to them, nor the Court, has identified any example of s 49 having been relied upon in this context, still less where the appeal has already been finally heard and determined favourably to the prosecution.
Though it is well recognised that legislation conferring a power ought not be hedged with artificial constraints not articulated in the grant of that power,[6] a broad view of s 49 could conceivably permit the reservation of a question which does affect the rights of a defendant, potentially raising issues which might be described as problems of “double jeopardy” and legality.[7]
[6] In Knight v FP Special Assets Ltd (1992) 174 CLR 178, 205 (Gaudron J) it was emphasised that it is “contrary to long-established principle and wholly inappropriate that the grant of power to a court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant”, citing Hyman v Rose [1912] AC 623, 631 and FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, 290.
[7] North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569, [11] (French CJ, Kiefel and Bell JJ).
That may be contrasted with the procedure available under the Criminal Procedure Act 1921 (SA) which, from time to time, has been applied in relation to acquittals, but which by that Act explicitly cannot affect the disposition of the proceeding.[8] That is, whereas the power conferred by the Criminal Procedure Act 1921 (SA) is expressed to canvas situations arising antecedent to trial, as well as during or following the trial, including following sentencing, that grant is coupled with explicit provisions guarding against problems of “double jeopardy”. For example, s 155(2) provides:
[8]    R v Mann [2020] SASCFC 69.
(2)     However—
(a)     a conviction must not be set aside on the ground of the improper admission of evidence if—
(i) the evidence is merely of a formal character and not material to the conviction; or
(ii)     the evidence is adduced for the defence; and
(b)     a conviction need not be set aside if the Full Court is satisfied that, even though the question reserved should be decided in favour of the defendant, no miscarriage of justice has actually occurred; and
(c)     if the defendant has been acquitted by the court of trial, no determination or order of the Full Court can invalidate or otherwise affect the acquittal.
I shall return to the question of the exercise of discretion which, it was suggested, would be sufficient to guard against any risk associated with “double jeopardy”.[9]
[9] It must be acknowledged that “double jeopardy” is an expression that is “not always used with a single meaning”, Pearce v The Queen (1998) 194 CLR 610, [9] (McHugh, Hayne and Callinan JJ) and [54]-[56] (Gummow J): “[t]hese principles (or precepts or values) necessarily are general in nature. They have been implemented in civil and criminal law in various specific doctrines … and influence such matters as the control by the courts of their process to prevent abuse and the principles of sentencing”.
Given the broad terms in which jurisdiction or power is conferred by s 49 I would be loath to find that, as a matter of implication, this Court lacks power to reserve a question of law even after the Court has itself finally resolved the appeal.
The power conferred by s 49 is discretionary. In the different context of this Court’s jurisdiction to grant declaratory relief under s 31 of the Supreme Court Act 1935 (SA), King CJ has explained:[10]
Authoritative judicial statements make it clear that the jurisdiction to grant declaratory relief is very wide and that judicial pronouncements appearing to restrict the circumstances in which such relief will be granted relate to the sound exercise of the discretion rather than to jurisdiction …
…
I can find no warrant for the imposition by the courts of a self-denying restriction on their jurisdiction to grant declaratory relief. In my opinion there is no jurisdictional limit. The court’s power to grant such relief is “only limited by its own discretion” … and the boundaries of judicial power … The settled practice of the courts may indicate the manner in which the discretion will be exercised in given circumstances.
(Citations omitted.)
[10] J N Taylor Holdings Ltd (In Liq) v Bond (1993) 59 SASR 432, 435-436 (King CJ, with whom Prior and Perry JJ agreed).
It is, in my view, also important to recognise that, though King CJ found that there was “no limit to the jurisdiction of the court”[11] in that case, that proposition would be:[12]
… an incomplete and misleading statement of the true position unless there be added the further proposition that there are circumstances which are so contra-indicative to the exercise of the discretion in favour of the grant of declaratory relief that the existence of those circumstances would lead almost inevitably to the exercise of the discretion against the making of a declaration.
[11] J N Taylor Holdings Ltd (In Liq) v Bond (1993) 59 SASR 432, 435-436.
[12] J N Taylor Holdings Ltd (In Liq) v Bond (1993) 59 SASR 432, 436.
The Director contended that it was important to draw a distinction between cases arising under the civil law and those which have a criminal or public law element which, he submitted, applies here. Although arising in a different statutory context, reliance was placed on what was said by the High Court in Mellifont v Attorney-General (Qld):[13]
The statutory procedure, which has counterparts in other Australian jurisdictions, is a standard procedure for correcting error of law in criminal proceedings without exposing the accused to double jeopardy. It is a procedure which was designed to enable the Crown to secure a reversal of a ruling by a trial judge without infringing the common law rule that the Crown cannot appeal against a verdict of acquittal, a rule which precluded the review of a trial judge’s ruling at the instance of the Crown in the case of acquittal … Were it otherwise, the appellate jurisdiction of this Court would not extend to a review of decisions of courts of criminal appeal and full courts … which have as their object the giving of authoritative decisions on questions of criminal law for the better administration of justice.
[13] Mellifont v Attorney-General (Qld) (1991) 173 CLR 289, 305 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ).
It cannot be doubted that reviewing reasoning about the operation of the Sentencing Act 2017 (SA) which the Director wishes to challenge may assist the “better administration of justice”.
However, the very long-standing practice of this Court under s 49 of the Supreme Court Act 1935 (SA) is that the Court will decline to exercise the power conferred by s 49 unless the answer to the question of law which is reserved will be dispositive of the rights and liabilities of the parties, or at least capable of resolving an intermediate step in the determination of their rights and liabilities.[14] As well, as the decision in R v Millhouse tends to suggest that the discretion ought not be exercised in connection with criminal trials, it is difficult to see why it ought be exercised in connection with a Magistrates appeal, on the application of the prosecution after the appeal has been resolved in favour of the prosecution.
[14] Martin v Employers Mutual Ltd (2012) 112 SASR 436, [16] (White J, with whom Doyle CJ and Anderson J agreed). A recent example of reliance upon s 49 where the answer was likely to be dispositive is provided by Question of Law Reserved (No 1 of 2019) [2019] SASCFC 149.
Though whether to exercise discretion may be influenced by whether the reservation of questions could raise problems with double jeopardy, that does not overcome what appears to be long-standing practice.
At the hearing on 7 August 2020 the Director placed emphasis upon the “liberty to apply” which I granted on 17 July 2020, contending that the matter was not finalised. However, granting liberty to apply merely permitted an application to be made to state a case on a point of law and said nothing about the final disposition of the appeal. The appeal was, and remains, dismissed.
As best I can tell, this Court has never favourably exercised its discretion under s 49 to reserve a question of law in circumstances such as these.
There are of course other considerations which are well recognised regarding the exercise of discretion. Some of these were referred to in Martin v Employers Mutual Ltd, and others were recently mentioned by the New South Wales Court of Appeal in the different context of s 5B of the Criminal Appeal Act 1912 (NSW). In Forrest v Director of Public Prosecutions (NSW), Basten JA (with whom Leeming and McCallum JJA agreed), explained:[15]
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.
[15] Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162, [48].

Whilst the parties were agreed that the three proposed questions articulated questions of law of general importance, I have some concerns about that. Quite apart from the fact that the questions all use the terminology “was I right to conclude”,[16] proposed question 3 represents a misreading of my reasons at [81] because I did not suggest that it was necessary to “reveal such process of reasoning in the reasons for sentence”. Quite the contrary.
[16] Which has been said to be “generally inapt to identify a question of law”, Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162, [59] (Basten JA, with whom Leeming and McCallum JJA agreed), citing Robinson v Woolworths Ltd (2005) 64 NSWLR 612, [8] and Sasterawan v Morris (2007) 69 NSWLR 547, [15], but contrast the recent utilisation of that terminology without apparent criticism in R v Mann [2020] SASCFC 69.
Ultimately, it is not necessary to form a final view about the proposed questions.
I have decided, in the exercise of my discretion, to refuse the application for three reasons. These are in addition to what appears to be the long-standing practice of the Court to applications under s 49(1) of the Supreme Court Act 1935 (SA). First, the application comes after the matter has been finally resolved and there has been some, though I accept not considerable, delay. Secondly, the fact that the appeal was ultimately abandoned and formally dismissed means that my reasoning was not ultimately dispositive of the case nor, strictly, part of any ratio decidendi. Thirdly, and most importantly, there are likely to be many other opportunities in which to test the reasoning employed in this case which can be reviewed in the course of a sentencing hearing or on appeal where a defendant’s rights are actually in issue.
I should record that the Director made it plain that there would be no attempt to revisit the actual sentence in this case, and that the hearing of any proposed questions would proceed on the basis that the defendant would not be out of pocket because his representatives, as contradictors, would be appropriately funded.
Finally, recognising some of the difficulties associated with the exercise of jurisdiction or discretion to which I have referred, the Director at the outset suggested that I could include in the proposed questions the question whether I had power to refer pursuant to s 49 of the Supreme Court Act 1935 (SA). As should be clear, I have not found that I lack power but, rather, I have declined to refer in the exercise of my discretion having regard to what appears to be the long-standing practice of the Court.
The application to refer questions of law pursuant to s 49 of the Supreme Court Act 1935 (SA) is dismissed.
I assume that it is not necessary to make an order for costs given the funding arrangements in place, but I will hear from the parties.