Chief Commissioner of Police v Crupi

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0029

CHIEF COMMISSIONER OF POLICE	Applicant
v
VINCENZO CRUPI	First Respondent
AND
DIRECTOR OF PUBLIC PROSECUTIONS	Second Respondent

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JUDGES:	EMERTON P, NIALL and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	10 August 2023
DATE OF JUDGMENT:	13 October 2023
ORIGINATING PROCESS:	Case Stated, Beale J, Supreme Court of Victoria 9 March 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 245

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CRIMINAL LAW – Case stated – Whether reserved questions are questions of law – Meaning of ‘question of law’ depends on context – Issue of whether open or reasonable to conclude material would render substantial assistance is a factual inquiry – No basis to determine issue of substantial assistance without making findings of fact based on the evidence – Extent of relevance or forensic utility of a fact is quintessentially evaluative and impressionistic – Not permissible to frame question as whether decision maker correct – Public interest immunity an evaluative exercise – Inevitably involves compound of factual and legal considerations – Real dispute one of fact – No jurisdiction to answer reserved questions.

Criminal Procedure Act 2009, s 302.

Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135; Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315; Orr v Cobar Management PtyLtd (2020) 103 NSWLR 36; R v Peters (a pseudonym) [2018] VSCA 115, considered.

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Counsel
Applicant:	Ms SJ Maharaj KC with Mr J Bayly
First Respondent:	Mr L Richter
Second Respondent:	No appearance
Interested Party:	Mr JP McMahon SC with Mr C O’Bryan
Amici Curiae:	Mr CT Carr SC with Ms H Canham
Solicitors
Applicant:	Victorian Government Solicitor
First Respondent:	Stary Norton Halphen Criminal Lawyers
Second Respondent:	—
Interested Party:	Chris McLennan & Co
Amici Curiae:	—

EMERTON P
NIALL JA
TAYLOR JA:

The first respondent, Vincenzo Crupi, is facing trial in the Supreme Court on a single charge of murder. In preparation for trial, Mr Crupi sought from the Chief Commissioner of Police (‘Chief Commissioner’) production of certain documents (‘the PI material’), which the Chief Commissioner asserts are immune from production on the ground of public interest immunity. That claim fell to be determined by the trial judge having regard to s 130 of the Evidence Act2008.
After hearing argument, the judge declined to uphold the immunity claim and ordered the Chief Commissioner to produce the documents. He gave brief oral reasons for his decision. Although it was an interlocutory decision of considerable gravity, no interlocutory appeal lay from the judge’s decision to this Court.[1]
[1]Interlocutory appeals under s 295 of the Criminal Procedure Act2009 are confined to parties. The Chief Commissioner is not a party to the prosecution. The Chief Commissioner accepts that the judge’s decision was amenable to an application for special leave to appeal to the High Court.
The Chief Commissioner sought to have the trial judge reserve certain questions under s 302 of the Criminal Procedure Act2009 (‘CPA’) and the judge state a case in relation to those questions.
Accordingly, on 9 March 2023, the judge reserved the following questions:
Question 1: On the material before it, was it open to the Court to find that the [PI material] was likely to be of substantial assistance to the accused and, therefore, that the public interest in its disclosure outweighs the public interest contended by the Chief Commissioner of Police?
Question 2: In rejecting the public interest immunity claim over the [PI material], did the Court commit an error of law by failing to give adequate reasons for this decision?
We pause to note that this was the second iteration of reserved questions arising from the judge’s decision. This Court declined to deal with the earlier version on the basis that the questions sought to be agitated by the Chief Commissioner were not questions of law.[2]
[2]Chief Commissioner of Police v Crupi (Court of Appeal of the Supreme Court of Victoria, Emerton P, Niall and Taylor JJA, 13 February 2023).

The facts

Under the heading ‘Circumstances in which the questions of law have arisen’, the judge set out the following facts.
2.On 15 March 2016, Giuseppe ‘Pino’ Acquaro was shot and killed outside business premises in Brunswick East.
3.On 9 November 2018, the accused was charged with Mr Acquaro’s murder.
4.On 14 November 2019, the accused was committed by the Magistrates’ Court to stand trial in this court for Mr Acquaro’s murder. The committal proceeding produced 1,380 pages of deposition material (Annexure 1).
5.During the course of the committal proceeding, the parties filed a ‘Form 32 Case Direction Notice’, in which the accused requested disclosure of certain information held by the prosecution and/or by Victoria Police (Annexure 2).
6.On 20 January 2020, the prosecution filed a summary of prosecution opening (Annexure 3).
7.On 13 March 2020, the accused filed a defence response to prosecution opening (Annexure 4).
8.       The accused denies that he was involved in killing Mr Acquaro.
9.In response to the request made by the accused in the Form 32 Case Direction Notice, the prosecution and Victoria Police have disclosed to the accused 2,126 pages of documents, which Victoria Police has compiled into a paginated bundle (Annexure 5).
10.In addition, the prosecution and Victoria Police have disclosed to the accused the following further documents:
10.1 A bundle of transcripts of conversations between members of Victoria Police and various persons conducted during the course of Operation Tamora II, which was a Victoria Police investigation into Mr Acquaro’s death (Annexure 6).
10.2A Victoria Police ‘Information Report’ (INT15IR760298) dated 15 May 2015 (Annexure 7).
10.3An undated file note of an internal Victoria Police meeting (Annexure 8).
11.Included in the documents disclosed to the accused is information to the effect that:
11.1In 2008 and 2014, Mr Acquaro engaged in covert meetings with members of Victoria Police, and was assessed by members of Victoria Police for registration as a ‘human source’.
11.2In 2014, Mr Acquaro provided members of Victoria Police with information about Tony Madafferi, Frank Madafferi, and other figures involved in or associated with organised crime in the Italian-Australian community in Melbourne.
11.3From about April of 2015, members of Victoria Police believed that a ‘contract’ to kill Mr Acquaro had been offered by Frank and/or Tony Madafferi (and/or persons associated with the Madafferi family) to various criminal entities.
12.In light of the above matters, it is likely that the accused will submit to the jury that persons other than the accused had a motive to kill Mr Acquaro, and that the prosecution has not excluded the possibility that one or more of those persons in fact killed Mr Acquaro. In particular, the accused may submit to the jury that any number of unidentified persons (including persons associated with Frank and Tony Madafferi) may have killed Mr Acquaro because they believed he was providing information to members of Victoria Police about persons involved in organised crime and/or because they had accepted a contract to kill Mr Acquaro in exchange for money.
13.In 2022, Victoria Police formed the view that the [PI material] was or might be disclosable to the accused in accordance with the Crown’s disclosure obligations in criminal proceedings (subject to a claim of [public interest immunity (‘PII’)]). Victoria Police has compiled the [PI material] into a paginated bundle (Annexure 9). In addition, Victoria Police formed the view that certain other material … may be disclosable to the accused.
14. On 6 June 2022, the Chief Commissioner of Police’s legal representatives emailed this court requesting that a hearing be listed for the determination of a PII claim made by the Chief Commissioner over certain material, including the [PI material].
15.On 16 September 2022, this court appointed amici curiae to act as contradictors in relation to the Chief Commissioner’s PII claim (Annexure 10).
16.The documents filed in relation to the Chief Commissioner’s PII claim were as follows:
16.1A confidential affidavit sworn by [a Detective Inspector] on 15 June 2022, which related to the [PI material and other material] (Annexure 11).
16.2A confidential affidavit sworn by [the Detective Inspector] on 26 September 2022, which related to [other material], and not to the [PI material].
16.3A confidential affidavit sworn by [the Detective Inspector] on 15 November 2022, which related to [other material], and not to the [PI material].
16.4Submissions on behalf of the Chief Commissioner filed on 15 June 2022 (Annexure 12) and 26 September 2022.
16.5The amici’s submissions filed on 9 November 2022 (Annexure 13).
16.6The Chief Commissioner’s reply submissions filed on 14 November 2022 (Annexure 14). These submissions referred to a document described as ‘Annexure B’, in which the Chief Commissioner identified where in the paginated bundle of material disclosed to the accused in accordance with the Form 32 Case Direction Notice he submitted relevant information contained in the [PI material] had already been disclosed to the accused (Annexure 15).
17.For the purposes of drafting their written submissions, the amici were provided with the following material:
17.1The confidential affidavits of [the Detective Inspector] dated 15 June 2022 (see Annexure 11 above) and 26 September 2022.
17.2The Chief Commissioner’s confidential submissions dated 15 June 2022 (see Annexure 12 above) and 26 September 2022.
17.3     The defence response (see Annexure 4 above).
17.4     The deposition material (see Annexure 1 above).
17.5The information report dated 15 May 2015 (see Annexure 7 above) and the undated file note (see Annexure 8 above).
17.6     The ‘Form 32’ material (see Annexure 5 above).
17.7     The Operation Tamora II transcripts (see Annexure 6 above).
17.8Annexure B to the Chief Commissioner’s reply submissions (see Annexure 15 above).
18.An oral hearing of the Chief Commissioner’s PII application took place on 16 November 2022, and was transcribed (Annexure 16). At the conclusion of this hearing:
18.1This court held that the Chief Commissioner’s PII claim in relation to the [PI material] should be rejected.
18.2This court gave brief ex tempore reasons for overruling the Chief Commissioner’s PII claim (Annexure 17).
18.3     This court ordered that:
(a)The Chief Commissioner file and serve a redacted version of the [PI material] on the Court and the amici by 23 November 2022.
(b)The amici review the appropriateness of the redactions and advise the Court by 30 November 2022 (Annexure 18).
19.In addition, the Court made orders with respect to [material other than the PI material]. Those orders have been complied with, and are not the subject of the Chief Commissioner’s application to refer questions of law to the Court of Appeal.
20.In accordance with the orders made on 16 November 2022, the Chief Commissioner has filed a paginated bundle of the [PI material] in a redacted form approved by the amici.
21.On 26 November 2022, the Chief Commissioner filed a general application seeking an order that pursuant to s 302 of the CPA, this court reserve for determination by the Court of Appeal two questions of law identified by him in relation to his PII claim over the [PI material].
22.On 15 December 2022, this court refused to order that the two questions of law identified by the Chief Commissioner be reserved for determination by the Court of Appeal, and published written reasons for its decision. However, this court ordered that its order requiring disclosure of the [PI material] be stayed until 5:00 pm on 23 December 2022, or until any application made by the Chief Commissioner under s 304 of the CPA had been completed.
23.On 23 December 2022, the Chief Commissioner applied to the Court of Appeal under s 304 of the CPA for an order calling on this court, the prosecution and the accused to show cause why the two questions of law identified by the Chief Commissioner in his application dated 26 November 2022 should not be reserved for determination by the Court of Appeal, and for an order that those questions of law be reserved for the Court of Appeal’s determination.
24.The Court of Appeal ordered that the Chief Commissioner’s application under s 304 of the CPA be dismissed (Annexure 19), and gave brief ex tempore reasons for judgment. The Court of Appeal’s oral reasons have since been revised into written reasons for judgment (Annexure 20). Amongst other things, the Court of Appeal stated in its reasons for judgment that:
24.1It did not have power to reformulate the questions of law identified by the Chief Commissioner or to order this court to reserve for determination by the Court of Appeal questions of law other than those identified by the Chief Commissioner in his application to this court under s 302 of the CPA.
24.2It ‘would observe that the reasons given by the judge on 16 November 2022 for refusing the public interest immunity application do not expose his reasoning, nor do they reveal the matters that the judge took into account in balancing the competing public interests that were identified.’
24.3It was open to the Chief Commissioner to make a further application to this court under s 302 of the CPA, seeking an order that this court reserve for determination by the Court of Appeal the two questions identified at paragraph 1 of this case stated.
25.On 15 February 2023, the Chief Commissioner filed a general application seeking an order that pursuant to s 302 of the CPA, this court reserve for determination by the Court of Appeal the two questions identified at paragraph 1 of this case stated.
26.On 9 March 2023, this Court ordered that the questions of law identified at paragraph 1 of this case stated be reserved for determination by the Court of Appeal.

Public interest immunity and s 130 of the Evidence Act

Common law principles apply to s 130

In Sankey v Whitlam, Gibbs ACJ explained the common law principles that are engaged where a claim is made to resist production on the basis of the public interest:
The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v Rimmer as follows:
There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.
It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies.[3]
[3](1978) 142 CLR 1, 38–9 (citations omitted); [1978] HCA 43. See also Alister v The Queen (1984) 154 CLR 404; [1984] HCA 85.
In Victoria v Seal Rocks (Australia) Pty Ltd, Ormiston JA (with whom Phillips and Buchanan JJA agreed) described some of the features of the immunity in the following way:
In my opinion, therefore, public interest immunity in a document or other communication is a right by way of an immunity or a privilege which enures in the body politic and indeed in the nation (or relevant polity) as a whole, and not merely in the executive, being designed to protect the operation of the instruments of government at the highest level and for the benefit of the public in general, subject only to a court’s reaching a conclusion to the contrary on sound grounds that no other public interest, especially in the administration of justice, should prevail in the particular circumstances.[4]
[4](2001) 3 VR 1, 6–7 [17]; [2001] VSCA 94.
The consequence of success of such a claim is that information which is subject to the immunity is not available as evidence to be taken into account in deciding the outcome of the proceedings. As noted by Maxwell P in Royal Women’s Hospital v Medical Practitioners Board of Victoria, public interest operates ‘as a fetter on the discovery of truth’ and limits the ability of a court to do justice between parties.[5] The immunity exists because other dimensions of the public interest are seen to override the public interest in full disclosure.
[5](2006) 15 VR 22, 32 [41]; [2006] VSCA 85, citing R v Young (1999) 46 NSWLR 681, 696 [72] (Spigelman CJ); [1999] NSWCCA 166.
The identification of the relevant public interest and the balancing of competing interests is governed by s 130 of the Evidence Act, made applicable to a pre-trial production by s 131A. Section 130(5) prescribes a non-exhaustive list of matters that a court must take into account in determining whether a document should be immune from production. Those matters are:
(a) the importance of the information or the document in the proceeding;
(b) if the proceeding is a criminal proceeding—whether the party seeking to adduce evidence of the information or document is an accused or the prosecutor;
(c) the nature of the offence, cause of action or defence to which the information or document relates, and the nature of the subject matter of the proceeding;
(d) the likely effect of adducing evidence of the information or document, and the means available to limit its publication;
(e) whether the substance of the information or document has already been published;
(f) if the proceeding is a criminal proceeding and the party seeking to adduce evidence of the information or document is an accused—whether the direction is to be made subject to the condition that the prosecution be stayed.

The jurisdiction of this Court

Division 5 of pt 6.3 of the CPA is headed ‘Case Stated for Court of Appeal’.
Section 302 applies to proceedings in both the Trial Division and County Court for the prosecution of an indictable offence.
As the provisions apply to the Trial Division of the Supreme Court, s 302(2) provides that ‘if a question of law arises before or during the trial, the court may reserve the question for determination by the Court of Appeal if the court is satisfied that it is in the interests of justice to do so’. In forming that opinion, ss 302(a) and (b) set out various matters to which the court must have regard. They include the extent of any disruption to the trial that may be caused by reserving a question and whether the determination of the question of law may render the trial unnecessary, reduce the time required for the trial, resolve a ‘novel question of law that is necessary for the proper conduct of the trial’ or reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial.

If a court reserves a question of law under s 302 it must state a case, setting out the question and the circumstances in which the question has arisen.[6] The court reserving the question must sign the case stated and transmit it to the Court of Appeal. The Court of Appeal may return a case stated transmitted to it under s 302(2) for amendment and the court that stated the case must amend it as required.[7]
[6]CPA, s 305(1).
[7]Ibid s 305(3).
Section 306 of the CPA details the powers of this Court on a case stated and is in the following terms:
(1) The Court of Appeal may hear and finally determine a question of law set out in a case stated.
(2) In the case of a question of law reserved under section 302, 302A or 304, the Court of Appeal may remit the question and the determination of the Court of Appeal back to the court which reserved the question.
Section 307 provides that the Registrar of Criminal Appeals must transmit the judgment and order (if any) of the Court of Appeal to the court that reserved the question of law and that court must enter the judgment and order (if any) on the court record.

Authorities on reserved questions

It is convenient to briefly describe the principal authorities upon which the amicus and the Chief Commissioner relied, before moving to set out to their submissions.

R v Peters (a pseudonym)[8]

[8][2018] VSCA 115 (‘Peters’).

Peters is a decision of this Court which has a number of similarities with the present case. Like this case, the reservation arose from a public interest immunity ruling in a murder trial. The defence sought production of documentation from the Commonwealth, which claimed public interest immunity with respect to the information held by it. The trial judge ordered the Commonwealth to disclose the information to the defence. The Commonwealth sought and obtained a stay of this order and requested the trial judge to state a case reserving a question of law under s 302 of the CPA as to the correctness of his decision.
The trial judge reserved a number of questions for determination by the Court, including the following:
(a)On ‘the material filed before the Court’ was the Court correct to find … that the public interest in non-disclosure of ‘the Information’ did not outweigh the public interest in disclosure of ‘the Information’?
The question was later reformulated as follows:
(a) On ‘the material filed before the Court’, was it open to the trial judge to find ... that the disclosure of ‘the Information’:
(i)is not likely to significantly undermine the public interest for which the Commonwealth contends;
(ii) could be of significant assistance to the defence;
(iii) could be regarded as raising an issue of the public interest in a fair trial;
(iv) was not prohibited by public interest immunity.
The Court in Peters referred to Furze v Nixon,[9] in which this Court said that because the facts will be set out in the case stated there will generally be no reason to include the evidence, but noted two exceptions to that rule: where the question concerns the admissibility of a particular item of evidence; and where the question of law is whether there is evidence to support a particular and critical finding.
[9](2000) 2 VR 503, 506 [5] (Phillips, Batt and Buchanan JJA); [2000] VSCA 149 (‘Furze’).
After referring to Furze and other authorities, the Court recognised that it was not permissible to frame a reserved question in terms that asked whether the primary decision maker was correct to have made the decision. On the other hand, by reference to three cases,[10] the Court concluded that it was permissible to ask whether findings made by the trial judge were open on the evidence.
[10]Australian Broadcasting Commission v Bond (1990) 170 CLR 321, 355 (Mason CJ); [1990] HCA 33; Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390, 412 [69] (Hayne, Heydon, Crennan and Kiefel JJ); [2010] HCA 32; S v Crimes Compensation Tribunal [1998] 1 VR 83, 89–93 (Phillips JA).
In approaching the matter in that way, the Court applied a number of authorities considering an appeal on a question of law. In answering the question, ‘Was it open to the trial judge to find that the disclosure of the Information was not likely to significantly undermine the public interest for with the Commonwealth contends?’ the Court held that the question was to be decided ‘on the evidence and inferences most favourable to that conclusion’.[11]

Director of Public Prosecutions (Cth) v JM[12]

[11]Peters [2018] VSCA 115, [44] (Osborn, Kaye and Niall JJA), citing ISPT Pty Ltd v Melbourne City Council (2008) 20 VR 447, 464–5 [65]–[69] (Warren CJ, Kellam JA and Osborn AJA); [2008] VSCA 180.

[12](2013) 250 CLR 135; [2013] HCA 30 (‘JM’).

JM also concerned questions of law reserved for determination by this Court in the course of a criminal trial under s 302 of the CPA. The accused faced trial on 39 charges of ‘market manipulation’ in breach of s 1041A of the Corporations Act2001 (Cth). That provision made it an offence to engage in a transaction that created or maintained an ‘artificial price’ for a financial product, which included shares in a company listed on the ASX.
An issue at trial was the meaning of the term ‘artificial price’ and whether on the facts asserted by the prosecution the accused had engaged in a transaction that created or maintained an artificial price. The prosecution alleged that the accused ‘had bought shares in X Ltd for the sole, or “at the very least… dominant”, purpose of ensuring that the price of shares in X Ltd was not less than 35 cents at the close of trade on the ASX on that day’.[13] The prosecution further alleged that for that reason, the price was an ‘artificial price’. By contrast, the accused contended that more than subjective intent was required, and that the provision was directed to the use of market power to extract an arbitrary or artificial price which in turn required an analysis of the state of the market and the effect that the transaction had on the price.
[13]Ibid 155 [35] (the Court).
Given the debate about the meaning of the term ‘artificial price’, the trial judge reserved questions for determination by the Court of Appeal based on the facts alleged by the prosecution. The questions reserved by the trial judge were as follows:
1. For the purpose of s 1041A of the Corporations Act 2001 (Cth), is the price of a share on the ASX which has been created or maintained by a transaction on the ASX that was carried out for the sole or dominant purpose of creating or maintaining a particular price for that share on the ASX an ‘artificial price’?
2.Was the closing price of shares in [X Ltd] on the ASX on 4 July 2006 an ‘artificial price’ within the meaning [of] s 1041A(c) of the Corporations Act 2001 (Cth)?
3.Was the price of shares in [X Ltd] on the ASX on 4 July 2006 maintained at a level that was ‘artificial’ within the meaning of s 1041A(d) of the Act?
By majority, the Court of Appeal held that the questions were not questions of law and that the first question was a ‘mixed question of fact and law dependent upon the assumed but as yet unfound fact of sole or dominant purpose’. The Court of Appeal reformulated the questions in the following way:
(a) Is the expression ‘artificial price’ in s 1041A of the Corporations Act 2001 (Cth) used in the sense of a term having a legal signification (as opposed to its sense in ordinary English or some non-legal technical sense); and
(b) If so, what is its legal signification?
The High Court held that the Court of Appeal had erred in reformulating the questions, reinstated the original questions and answered each of them ‘yes’.
The High Court held that the Court of Appeal had taken a wrong turn by formulating abstract questions divorced from the facts of the case. In seeking to avoid trespassing into the facts, the Court of Appeal had drafted abstract questions that were disconnected from the facts and circumstances of the particular case and therefore impermissibly hypothetical.
The High Court concluded that answering the original questions would not involve the Court in any impermissible fact finding exercise and there was no problem with the questions formulated by the trial judge. The High Court observed that ‘[a]t no point in this matter (whether before [the trial judge], in the Court of Appeal, or in argument in this Court) has it been suggested that any of the original questions was only a question of fact and not a question of law’.[14]
[14]Ibid 157 [39] (the Court).
The High Court noted that s 302 of the CPA allows for the reservation of questions that have arisen ‘before or during the trial’. At that point, few if any of the facts will have been agreed or admitted, but the prosecution will have identified the facts that it will seek to prove at trial to establish the offence. At that point in time, it will be possible to determine whether there is any issue between the parties about how the law applies to the acts, facts, matters and circumstances on which the prosecution intends to rely to support a finding of guilt.[15]
[15]Ibid 153 [30] (the Court).
The High Court next noted that there was no constitutional impediment to a court exercising federal jurisdiction deciding whether facts asserted by one party would, if proved, establish a claim made, or defence advanced, by that party.[16] Such a course is adopted in relation to demurrers which proceed on the assumption that the facts relied on by a party are true.[17] Provided the relevant facts are stated and assumed, and those facts ‘exhaust the universe of relevant factual material’, it will be from those facts that the relevant question of law arises and to which the answer to that question must be applied.[18] A binding determination of law can be made by answering the question.
[16]Ibid 154 [32] (the Court).
[17]Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334, 357 [50] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); [1999] HCA 9 (‘Bass’).
[18]JM (2013) 250 CLR 135, 155 [34] (the Court); [2013] HCA 30.
Applying those principles, the facts were assumed to include that the accused entered into a transaction for the purchase of shares for the purpose or dominant purpose of creating or maintaining a particular price. On those facts, the High Court held that the price was an artificial price and answered the questions accordingly.

Orr v Cobar Management Pty Ltd[19]

[19](2020) 103 NSWLR 36; [2020] NSWCCA 220 (‘Orr’).

In Orr a five-member New South Wales Court of Criminal Appeal considered the meaning of a question of law in the context of a reserved question in a criminal proceeding in the District Court of New South Wales brought under the Work Health and Safety Act 2011 (NSW). The trial judge found the defendant not guilty of the charges and the prosecution sought to have questions referred to the Court of Criminal Appeal, which, in effect, challenged the findings of not guilty. The trial judge duly reserved a series of questions, a number of which asked whether it was ‘open’ to the trial judge to find, on facts found, that particular measures were not ‘reasonably practicable’ to be taken by the defendant.
The judgment of the Court of Criminal Appeal was given by Bathurst CJ and Bell P, with Johnson, Garling and Lonergan JJ agreeing. The Court held that the meaning of the term ‘question of law’ was sensitive to context,[20] and that it was not merely the antonym of a ‘question of fact’. The Court noted that the purpose of answering the reserved question was not the correction of error and that at that point in time there will have been no determination by the primary court.
[20]Ibid 45 [40] (Bathurst CJ and Bell P).
The Court referred to authority[21] explaining when the application of the facts to a statutory phrase involves a question of fact or a question of law. The Court concluded that, at most, the exercise might involve a mixed question of fact and law. Their Honours said:
It follows from these decisions that, whether or not the answer to a question framed along the lines of ‘whether or not it was “open” to a judge to hold, on the facts as fully found, that a particular matter fell within the ordinary English meaning of a statutory expression reveals an error of fact or an error of law’ depends upon the answer to the question. If it was open to so find, any error in the judge’s conclusion would be one of fact, and not one with which a court authorised only to intervene on a question of law could disturb… if it was not open to so find, the error would be one of law…
A question so framed is not, in our opinion, obviously or self-evidently a question of law; rather it is simply a question which, depending upon the answer, will reveal either an error of fact or an error of law. If the latter, an appellate court authorised to intervene only in respect of such errors may do so. Putting the matter slightly differently, a question whether or not a particular conclusion based upon facts fully found was ‘open’ to a judge cannot be characterised as a question of law in any a priori sense. It is, at most, a question of mixed fact and law, an expression which, in Da Costa v The Queen[22] Windeyer J said ‘seems to describe a hybrid, the progeny of a dispute as to facts and as to the effect of the facts when they have been determined one way or the other’.[23]
[21]Australian Gas Light (1940) 40 SR (NSW) 126; Hope (1980) 144 CLR 1; [1980] HCA 16; NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509; [1956] HCA 80; Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12 (‘Vetter’).
[22](1968) 118 CLR 186, 195; [1968] HCA 51.
[23]Orr (2020) 103 NSWLR 36, 49 [58]–[59] (Bathurst CJ and Bell P); [2020] NSWCCA 220.
The Chief Justice and President went on to say that it was well established that a question of mixed fact and law is to be differentiated from, and is not, a ‘question of law’.[24] They concluded:
questions of law should be, in our opinion, what are sometimes described as ‘pure questions of law’. They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts.[25]
[24]Ibid 49 [60] (Bathurst CJ and Bell P).
[25]Ibid 58 [109] (Bathurst CJ and Bell P).

Submissions on jurisdiction

Given that the PI material has not been provided to either Mr Crupi or the prosecution, an amicus curiae was appointed to assist the Court. The amicus was provided with the PI material and the Chief Commissioner’s confidential submissions in support of the immunity claim. The amicus has made both written and oral submissions on whether the proposed questions are questions of law within s 302 of the CPA and, if so, on the merits of the claimed immunity.
In addition, an interested person sought to participate in the hearing and was represented by Senior Counsel. We shall return to the proper role of that person in due course.
On the issue of jurisdiction, the amicus submits that:
(a)the meaning of the term ‘question of law’ is context specific;[26]
(b)s 302 of the CPA is confined to ‘pure’ questions of law;[27] and
(c)there is a distinction between a question of law and a question the answer to which may disclose an error of law.
[26]Attorney-General (NSW) v X (2000) 49 NSWLR 653; [2000] NSWCA 199 (‘X’).
[27]Orr (2020) 103 NSWLR 36; [2020] NSWCCA 220.
The amicus submits that asking whether it was open to the judge to find that the PI material was likely to be of substantial assistance to Mr Crupi is to ask a question of fact or, at best, a mixed question of fact and law. According to the amicus, neither a question of fact nor a mixed question of fact and law falls within s 302. Even if the phrase ‘substantial assistance’ in the context of s 130 of the Evidence Act has a legal meaning, to ask whether the finding that the PI material would be of ‘substantial assistance’ to Mr Crupi was ‘open’ does not raise a pure question of law and, based on Orr, is outside the scope of s 302 of the CPA.
The amicus submits that that whether the ‘substantial assistance’ question is a question of law depends upon the answer given, which in turn depends upon scrutiny of the facts. If, on the material before the primary judge, only one conclusion was open, the question of whether the correct conclusion was reached is a question of law. However, if the facts as found are capable of being regarded as either within or without the description ‘substantial assistance’, the correctness of the conclusion is a question of fact. The ‘substantial assistance’ question is not capable of being answered without reference to the facts and whether it ultimately discloses an error of law depends upon scrutiny of the facts. Accordingly, it is submitted, question 1 is not a pure question of law.
In relation to question 2, the amicus accepts that a failure to give adequate reasons is an error of law, but submits that the question is not a pure question of law because it is not a question that can be ‘stated and considered separately from the facts with which it may be connected in a given case’.[28]
[28]Williams v The Queen (1986) 161 CLR 278, 287 (Gibbs CJ), 314 (Wilson and Dawson JJ); [1986] HCA 88.
The amicus also submits that it would be inappropriate to answer question 2. Under ss 306 and 307 of the CPA, the determination of a reserved question is transmitted to the trial court and stands as a determination in the trial. The amicus submits that the inaptness of a question of the adequacy of reasons to such a context is immediately apparent. Reasons are appurtenant to, but not part of, the decision; they merely provide material from which arguments about the correctness of the decision may be crafted. Therefore, a question about the adequacy of reasons for a determination sits outside of the determination itself, and an answer to that question cannot stand in for the determination itself. Moreover, just as it would not be appropriate for the trial court to make a determination about the adequacy of its own reasons, it would not be appropriate for such a determination to be entered in the record of the trial court.
The Chief Commissioner submits that the questions are consistent with questions answered in Peters, where this Court held that it was permissible to ask whether it was open to the judge to make a critical finding of fact by asking whether there is evidence to support such a finding.[29] The Chief Commissioner submits that this Court should follow Peters unless persuaded that it is clearly wrong.
[29]Peters [2018] VSCA 115, [37]–[38] (Osborn, Kaye and Niall JJA).
The Chief Commissioner submits that Orr is inconsistent with the decision of the High Court in JM, which was not referred to in Orr. JM holds that a question must generally be posed ‘by reference to the assertions of fact which the prosecution will seek to make good at trial’. The Chief Commissioner submits that, in accordance with the reasoning in JM, a ‘pure’ question of law will generally be precisely the type of question that cannot be reserved pursuant to s 302 of the CPA, because the answer to such a question generally will not assist the trial court to resolve any issue that arises before or during a criminal trial.
The Chief Commissioner says that the historical practice in Victoria of referring questions of law after a conviction shows that referrals of questions of law can have features that are similar to an appeal on a question of law in that both serve to correct an error of law that has already been made.[30] He submits that s 302 is available after a decision has been made before or during a trial.
[30]The Chief Commissioner seeks to trace back the lineage of s 302 to 1848 and notes that it was not until 1993 that a question could be referred before conviction: Crimes (Criminal Trials) Act 1993.

Next, the Chief Commissioner submits that whether or not a claim for public interest immunity is made out requires the determination of a legal question that admits of only one correct answer. For that reason, so it is said, whether a document is entitled to be withheld from production or use is a legal question, and whether a judge has answered it correctly is a question of law. Further, whether the document would provide substantial assistance is an essential aspect of balancing the competing interests. It follows that an error in that step is an error of law and whether the error has occurred is a question of law.
Alternatively, the Chief Commissioner submits that, as a permissible variant of question 1, this Court could reframe, or have the judge reframe, the question so as to ask: ‘Did the Trial Division commit an error of law by rejecting the Chief Commissioner’s PII claim over the PI material?’

Consideration

The axis on which s 302 revolves is the reserving of a ‘question of law’. The existence of a question of law is both the subject matter and the qualifying condition for this Court’s jurisdiction.[31] Put simply, if that which has been reserved is not a question of law, this Court has no jurisdiction to entertain it.
[31]Osland v Secretary to the Department of Justice (2010) 241 CLR 320, 333 [21] (French CJ, Gummow and Bell JJ); [2010] HCA 24.
The proper ambit of a ‘question of law’ is elusive. It is often used in contra-distinction to a question of fact and the dichotomy between questions of fact and questions of law has been productive of numerous cases and judicial statements of principle, none of which has yielded a single unifying definition.[32] The difficulty in discerning a clean line of demarcation between a question of fact and a question of law has led to the use of contrasting phrases such as a ‘mixed question of fact and law’ and a ‘pure question of law’, which may introduce their own uncertainty of meaning.
[32]Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389, 394 (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ); [1996] HCA 36 (‘Agfa-Gevaert’).
A starting point for the analysis is a recognition that what constitutes a question of law may depend on the context in which the concept is employed and that when Parliament uses the phrase it does not necessarily intend to include everything that might fall within the phrase.[33] Like any question of statutory construction, it is to be resolved by reference to the particular statutory text and context in which the issue arises. Two common areas which depend on the identification of a question of law are an appeal on a question of law,[34] and a referral of a question of law for determination by a court.
[33]X (2000) 49 NSWLR 653, 660 [25] (Spigelman CJ); [2000] NSWCA 199; Orr (2020) 103 NSWLR 36; [2020] NSWCCA 220.
[34]Examples include s 148 of the Victorian Civil and Administrative Tribunal Act1998 and s 44 of the Administrative Appeals Tribunal Act1975 (Cth).
Two matters of general context are relevant. The first is that a jurisdiction conferred by reference to a question of law will often, perhaps invariably, reflect an underlying division of responsibility between fact finding and the determination and application of the law. In the context of appeals from administrative decision makers, which are often couched as appeals on a question of law, the determination of the merits, including factual questions, is given to the executive arm and the role of the court is limited to the determination and declaration of the law.[35] This dichotomy, although sometimes difficult to apply in practice, is a fundamental aspect of the separation of powers and the limits of judicial power.
[35]Attorney-General (NSW) v Quin (1990) 170 CLR 1, 36 (Brennan J); [1990] HCA 21.
In the case of a question reserved in the context of a trial for an indictable offence, questions of fact are principally the province of the jury rather than the judge. In the prosecution of an indictable offence, it will be for the jury, and not the judge, to determine the facts and reserving a question of law cannot be a means to avoid that fundamental distinction.
There is a second general point of significance. Conferring jurisdiction by reference to questions of law does not mean that the facts are irrelevant or that the Court must not have regard to them. Reserving a question of law does not provide the occasion for the determination of hypothetical questions that are not tied to facts either found or assumed.[36] The existence of relevant facts grounds the controversy and ensures that the reservation of questions does not trespass into the realm of seeking advisory opinions. For that reason, the phrase ‘pure question of law’ might erroneously suggest that it is open to the Court to give judicial advice on contested legal questions divorced from the controversy between the parties.
[36]Bass (1999) 198 CLR 334; [1999] HCA 9.
These precepts apply generally where a court’s jurisdiction is limited by reference to the identification of a question of law. Although they are not in conflict with each other, they can produce a degree of tension and, on occasion, emphasising one aspect has led to problems with the other. For example, in JM, this Court[37] was concerned that the questions reserved by the trial judge involved trespassing into the facts and were not pure questions of law. The Court reformulated the questions because they depended on assumed but unfound facts.[38] However, the High Court considered that the reformulated questions were too abstract and divorced from the facts.
[37]DPP (Cth) v JM (2012) 37 VR 1; [2012] VSCA 21.
[38]Ibid 68 [300] (Nettle and Hansen JJA).
As already noted, two main areas in which the issue of what is a question of law arises are appeals and reserved questions. As the analysis of the authorities shows, the two areas have quite different contexts, having regard to their purpose and the procedures that attach to them.

Appeals on a question of law

An appeal on a question of law is predominantly about the correction of error. In respect of appeals brought from administrative decision makers, the jurisdiction echoes the general supervisory jurisdiction of the Supreme Court that ensures that decision makers acted lawfully and within the scope of their powers.[39] Equally, it serves to keep courts within their proper province. In cases of appeal, it will often be difficult, both conceptually and practically, to keep separate the question of law, which founds jurisdiction, and the existence of an error of law, on which the result of the appeal will depend.
[39]Avetmiss Easy Pty Ltd v Australian Skills Qualifications Authority [2014] FCA 314, [75]–[77], (Mortimer J), cited with approval in Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd (2014) 45 VR 771; [2014] VSCA 353.
In addition to the purpose of detecting error, a feature of appeals is that a primary decision of some form will have been made, generally involving the finding of facts and the application of the law to those facts.
In the exercise of judicial power, the court must find the facts and apply the law which at the relevant time prescribes antecedent rights and liabilities.[40] In the case of administrative tribunals, the determination of what the law is is not binding but, nevertheless, each adjudicative body is required to form its view about the law and, having found the facts, apply the law as it understands it to be to those facts. The authority of the administrative decision maker is not to ‘reach a conclusion having legal effect’ but to form an opinion for the purpose of ‘moulding its conduct to accord with the law’.[41] In both situations, the overall task involves the application of the law to the facts as found.
[40]Nicholas v The Queen (1998) 193 CLR 173, 187–8 [19] (Brennan CJ); [1998] HCA 9.
[41]Re Adams and the Tax Agents’ Board (1976) 7 ATR 87, 91 (Brennan J); Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16, [24] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ).
In this context, an error of law is not exclusively confined to mistakes in the articulation of the applicable law. It is well established that an error of law may arise in the application of the facts to the law, and even in certain cases in the findings of fact.[42]
[42]Agfa-Gevaert (1996) 186 CLR 389; [1996] HCA 36; Hope v Bathurst City Council (1980) 144 CLR 1; [1980] HCA 16 (‘Hope’); Vetter (2001) 202 CLR 439; [2001] HCA 12.
Understandably, in many appeals on a question of law, the focus is on the grounds of appeal and on the identification of an error of law. In such cases, the principles that demarcate an error of law from an error of fact assume significance and often represent the starting point to answer the logically and legally anterior question of whether there is a question of law. The temptation to assume that if there is an error of law there must be a question of law is, in this context, strong. However, to start with the error rather than the question may invert the proper process, and the assumption that an error of law will always be associated with a question of law may beg the question of what constitutes a question of law.
Given the breadth of an error of law, including in the vexed context of factual errors, there may, in an appeal on a question of law, be scope for legitimate arguments about the facts. A five-member Court of the Full Court of the Federal Court considered these issues in Haritos v Federal Commissioner of Taxation.[43]
[43](2015) 233 FCR 315 (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ); [2015] FCAFC 92 (‘Haritos’).
After an extensive review of the authorities, the Full Court in Haritos concluded that an appeal on a question of law under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) could include an appeal on a mixed question of fact and law. While an appeal did not extend to ‘mere questions of fact’ and did not entitle the Federal Court to usurp the fact finding function of the Tribunal, in certain circumstances the Court may need to consider the facts.
In reaching that conclusion, the Full Court emphasised the types of legal error that may require a consideration of the facts. For example, in Vetter , a majority of the High Court noted that ‘[w]hether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law.’[44] As explained by the High Court in Vetter:
In Hope v Bathurst City Council, Mason J pointed out that when it is necessary to engage in a process of construction of the meaning of a word (or phrase) in a statute a question of law will be involved, but that the question may be a mixed one of fact and law. His Honour’s reasons make it clear that a question exclusively of law arises, as the respondent sought to argue was the position in this case, if, on the facts found only one conclusion is open.[45]
[44](2001) 202 CLR 439, 450 [24] (Gleeson CJ, Gummow and Callinan JJ); [2001] HCA 12.
[45]Ibid 451 [27] (Gleeson CJ, Gummow and Callinan JJ) (citations omitted).
In contrast, as explained by Hill J in Sharp Corporation of Australia Pty Ltd v Collector of Customs:
... where the facts found are capable of falling within or without the description used in the statute, the decision which side of the line they fall on will be a decision of fact and not law. Such a decision will generally involve weight being given to one or other element of the facts and so involve matters of degree.[46]
[46]Sharp Corporation of Australia Pty Ltd v Collector of Customs (1995) 59 FCR 6, 16 (Hill J); [1995] FCA 707 (‘Sharp’), quoted in Haritos (2015) 233 FCR 315, 383 [195] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ); [2015] FCAFC 92.
To put it another way, ‘[w]hilst the question of whether a given set of facts could fall within such a standard is a question of law the question of whether a particular set of facts does do so is a question of fact.’[47]
[47]Aldi Foods Pty Ltd v Moroccanoil Israel Ltd (2018) 261 FCR 301, 317 [49] (Perram J) (emphasis in original) (citations omitted); [2018] FCAFC 93.
The Full Court in Haritos spent some time analysing the meaning of the phrase ‘mixed questions of fact and law’. After noting that the phrase is imprecise, the Full Court said that if what is meant is a question that can only be answered by both determining the facts of a case and determining what the relevant law means, such a question does not fall within s 44.[48] On the other hand, the Full Court recognised, after extensive consideration of the authorities, that a question of law may be bound up in the facts and arise from a factual conclusion. The Full Court said:
In summary, the terms, the context…, the history, authority and the purpose of s 44 each indicates that the right of appeal in s 44 should not be read as meaning that ‘may appeal to the Federal Court of Australia, on a question of law, from any decision of the Tribunal’ may never extend to a mixed question of fact and law or as requiring that the question of law be a ‘pure’ question. Rather, it may more accurately be said that the right of appeal does not extend to mere questions of fact. As French CJ, Gummow and Bell JJ emphasised in Osland, at [19], the Court ‘should not usurp the fact-finding function of the AAT’, citing Repatriation Commission v O’Brien.[49] It follows that the right of appeal does not extend to mixed questions of fact and law where, in order to decide the question of law, the Court must positively determine a question of fact itself, rather than judicially review the Tribunal’s fact finding.[50]
[48]Haritos (2015) 233 FCR 315, 375 [169] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ); [2015] FCAFC 92.
[49](1985) 155 CLR 422, 430 (Gibbs CJ, Wilson and Dawson JJ); [1985] HCA 10.
[50]Haritos (2015) 233 FCR 315, 383 [192] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ); [2015] FCAFC 92.
For these reasons, the description ‘mixed question of fact and law’ is not necessarily inapt for an appeal on a question of law. Where there is a mixed question of law and fact, it will be necessary to identify whether the administrative decision maker is alleged to have made an error of law or an error of fact.[51]

Questions of law reserved

[51]Ibid 384 [200] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ).

In its analysis of what constitutes a question of law for the purpose of an appeal, the Full Court in Haritos expressly distinguished an appeal from a reserved question of law. Importantly, some of the earlier authorities in the Federal Court had construed s 44 of the AAT Act (which conferred a right of appeal on a question of law) as requiring a pure question of law. In those cases an analogy was drawn with s 45 of the AAT Act, which allowed the Tribunal to refer a question of law to the Federal Court.[52] In Haritos the Full Court did not construe s 44 by reference to the different purpose of s 45 and the discretionary considerations relevant to whether or not such a question should be stated or answered.[53] Indeed, the Federal Court expressly contrasted the two provisions and accepted their different meaning and operation.
[52]For example, Comcare v Etheridge (2006) 149 FCR 522; [2006] FCAFC 27.
[53]Haritos (2015) 233 FCR 315, 356 [114], 369–71 [149] (Allsop CJ, Kenny, Besanko, Robertson and Mortimer JJ); [2015] FCAFC 92.
As accepted in Haritos, different considerations apply to reserved questions. Although the form in which legislation has permitted either a question of law to be reserved or an appeal on a question of law is not uniform, there are two important differences between a reserved question of law and an appeal on a question of law. First, the principal purpose of a question reserved in the course of a proceeding is not the correction of error. Secondly, no decision will have been made, and the procedure will often require the stating of a case in which the facts are fixed, with the court having no role in the determination of facts and no ability to depart from, or supplement, even by way of inference, the factual setting in which the question must be answered.
Each aspect requires some elaboration.
The power to reserve questions of law for determination by a court usually arises in the course of a proceeding and involves getting a determination in advance of the decision being made by the primary body.
The purpose of such provisions is to avoid, rather than detect, error.
However, that is not universally the case. An important exception arises in references by a prosecuting authority after an acquittal. As the Chief Commissioner submitted, before 1993 the ability to refer a case arising from a prosecution was confined to cases that had originated in the Magistrates’ Court and were amenable to appeal in the County Court, with no further appeal available. In that context, it was possible to reserve a question after conviction.
Another example is found in s 308 of the CPA which enables the Director to refer a question of law after an acquittal. A similar provision in Queensland was the subject of consideration by the High Court in Mellifont v Attorney-General (Qld).[54] In that case a trial judge had given a ruling about the materiality of certain evidence. Following a ruling adverse to the prosecution, a nolle prosequi was entered and there was no practical prospect of the prosecution being reinstated. The Director of Public Prosecutions referred a question of law to the Court of Appeal. The issue in the High Court was whether answering the question in those circumstances would involve giving a purely advisory opinion. The High Court answered that question in the negative, holding that answering the question involved the valid exercise of judicial power.
[54](1991) 173 CLR 289; [1991] HCA 53.
The High Court accepted that the purpose of the provision was the correction of error. The decision on the reference ‘was made with respect to a “matter” which was the subject-matter of the legal proceedings at first instance and was not divorced from the ordinary administration of the law.’[55]
[55]Ibid 305 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ).
The High Court said:
The fundamental point... is that s 669A(2) enables the Court of Criminal Appeal to correct an error of law at the trial. It is that characteristic of the proceedings that stamps them as an exercise of judicial power and the decision as a judgment or order within the meaning of s 73. 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 under s 669A(2) and similar provisions in other jurisdictions which have as their object the giving of authoritative decisions on questions of criminal law for the better administration of justice.[56]
[56]Ibid.
Even where the correction of error is relevant, these cases differ from an appeal. A Director’s referral seeks to correct error to advance the administration of justice in other cases generally.
The second aspect relates to the procedure in which questions are generally reserved. Commonly it requires the primary body to state a case and set out the facts. Where that course is adopted, strict principles apply to the treatment that must be accorded to those facts.
In Furze, this Court adopted the following passage from the judgment of Dixon CJ, McTiernan, Webb, Kitto and Taylor, JJ in R v Rigby:
Upon a case stated the court cannot determine questions of fact and it cannot draw inferences of fact from what is stated in the case. Its authority is limited to ascertaining from the contents of the case stated what are the ultimate facts, and not the evidentiary facts, from which the legal consequences ensue that govern the determination of the rights of parties. The question may be one of the relevance of evidence and then the nature of the evidence becomes in a sense an ultimate fact for the purpose of that question. But that is not a common case. The general rule is clearly stated by Isaacs J in the three following passages:
It cannot be too clearly understood that on a ‘case stated’ the facts stated are to be taken as the ultimate facts for whatever purpose the case is stated. The Court is not at liberty to draw inferences unless the power is, by express words or by necessary implication, specially conferred by some enactment.[57]
[57]Furze (2000) 2 VR 503, 506 [5] (Phillips, Batt and Buchanan JJA) (citations omitted); [2000] VSCA 149, quoting R v Rigby (1956) 100 CLR 146, 150–1; [1956] HCA 38.

Consistently with this, in R v Assange Hayne JA said, ‘The thread that runs through all the authorities to which I have referred is that the court to whom the case is stated must confine itself to the facts that are stated and to the questions that are reserved.’[58] The amicus referred to this passage in its oral submissions.
[58]R v Assange [1997] 2 VR 247, 253.
It is a corollary of this procedure that there is no room for a court, on a reserved question, to entertain an argument that there has been an error of law in relation to the making of a finding of fact. And of course, at that point the tribunal of fact will generally not have made any findings of fact.

Conclusions

In our opinion, question 1 is not a question of law and this Court has no authority to answer it.
As both Haritos and Orr establish, the meaning of the phrase ‘question of law’ depends on the context in which it is used. Here, the context includes that—
(a)the purpose of the provisions is to enable the authoritative determination of a question of law arising before or during a trial;
(b)although a referral may be available after an interlocutory decision, its purpose is not primarily the correction of error but to assist the trial judge in the discharge of judge’s role to try the case together with the jury; and
(c)all of the facts that are necessary for the determination of the question must be stated in the case, and they must be either found or assumed. In the context of s 302, it may be necessary for the facts to be assumed because the power exists before or during the trial.
This context strongly points to the conclusion that this Court has no role to play in finding facts and the purpose of a reservation is not to assess whether the facts as found or assumed were correctly found or assumed. The functional differences between a trial judge and jury are also an important aspect of the context in which s 302 operates.
Both Haritos and Orr show that there is an important distinction between an appeal on a question of law and a reserved question. Orr stands for the proposition that the cognate provision in NSW requires a ‘pure’ question of law. A pure question of law is one that does not ‘draw the Court of Appeal into questions of fact’. The characteristics of a question as a pure question of law should be apparent from its terms and ‘not depend upon the answer given to the question’.[59]
[59]Orr (2020) 103 NSWLR 36, 58 [109] (Bathurst CJ and Bell P); [2020] NSWCCA 220.
In our opinion this Court should follow the approach in Orr. Orr contains a detailed review of the authorities, and a detailed and persuasive analysis of the proper limits of a reserved question.
JM does not call for a different conclusion. JM addresses a very different question. It proceeded on the orthodox approach of using assumed facts. The issue in dispute was the meaning of the statutory term ‘artificial price’. The Court determined that legal meaning (and no factual inquiry was required). However, it was necessary for the legal meaning to be ascertained in a factual context so that the exercise was not hypothetical. The prosecution identified the facts that it contended made out the charge. Those facts exhausted the universe of facts relied on by the prosecution to establish a contravention of the provision and the legal position could be ascertained on the basis of those facts.
The High Court drew an analogy with a demurrer. By reference to the High Court’s earlier decision in Bass,[60] the Court said:
As six members of the Court pointed out in [Bass], demurrer is ‘a form of procedure which assumes the truth of a particular set of facts’. As the joint judgment continued, ‘a demurrer assumes that the pleadings exhaust the universe of relevant factual material’. On that assumption, the answer provided on demurrer has utility for the parties, if no other evidence could add to or qualify the facts asserted in the relevant pleading, because ‘the parties’ rights will be determined when the evidence finally determines the existence or non-existence of those “facts”’. Likewise, when a case is stated under s 302(2) of the [CPA], by reference to the assertions of fact which the prosecution will seek to make good at trial, ‘the parties’ rights will be determined [by the jury] when the evidence finally determines the existence or non-existence of those “facts”’.[61]
[60](1999) 198 CLR 334, 357 [50] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ); [1999] HCA 9.
[61]JM (2013) 250 CLR 135, 154–5 [33] (the Court) (citations omitted); [2013] HCA 30.
The analysis adopted in JM is completely different from that which question 1 would invite. Here, the Chief Commissioner invites the Court to review all of the material, draw its own factual conclusions and make an evaluative assessment of the degree of assistance that disclosure of the PI material would afford the accused. Plainly, that is a multi-faceted evaluative and factual inquiry. The question does not ask, for example, whether the relevant interest is relevant to a claim under s 130, nor does it ask whether the evidence supports a finding that Mr Crupi would get any assistance from the material. Rather, the Court is asked to decide whether it is ‘open’ or perhaps ‘reasonable’ to conclude that the PI material would render substantial assistance. On any view, that is a factual inquiry.
In any event, in the circumstances, it is not necessary to accept, as we do, that s 302 requires a pure question of law. As the analysis in Haritos shows, the concept of a pure question of law and a mixed question of fact and law can be imprecise. But both Haritos and Orr stand for the proposition that a question of law in either context does not permit the court to engage in fact finding. That is the very task that the Chief Commissioner asks this Court to engage in. There is no basis on which to determine the issue of substantial assistance without making primary findings of fact based on the evidence. Whether the conclusion that the PI material would be of substantial assistance to Mr Crupi was open depends on how the primary facts are viewed. And, given that public interest immunity involves identifying and weighing competing interests, it is not possible to identify the viewpoint from which the facts are to be taken at their highest.
An examination of the Chief Commissioner’s submissions on the substance of the questions reinforces our view that question 1 seeks a review of the facts in order to arrive at a different conclusion about whether the PI material would or could be of substantial assistance to Mr Crupi (so as to outweigh the countervailing public interest in keeping them confidential). During the course of argument, senior counsel for the Chief Commissioner referred extensively to the evidence set out in tabular form and invited the Court to draw its own conclusions about the potential relevance of the PI material in light of other material that had been disclosed. The argument took the form of submitting that given that Mr Crupi knows facts A, B and C, little would be gained from disclosing fact D. Where fact D lies on the spectrum of relevance or forensic utility is not a legal question and it is quintessentially evaluative and impressionistic. The concept of ‘substantial assistance’ is not a statutory concept, nor does it have a fixed or settled meaning. For that reason, the question is different from questions that may arise in an appeal on a question of law, namely, whether the facts fully found fit within a statutory term or description.
Nor is there an analogy to be drawn with the altogether different question as to whether, for the purposes of an appeal by way of rehearing, a particular judicial decision is evaluative or discretionary. It will be recalled that the Chief Commissioner submits that whether or not public interest immunity attaches to a document admits of a single legal answer, therefore whether the immunity exists in a given case must be a question of law.[62] It may be accepted that a decision as to whether or not immunity exists is not discretionary, but it is a legal conclusion that involves both a factual and legal inquiry; it is a conclusion which is inevitably a composite of various legal and factual elements.[63]
[62]Relying on Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541, 561 [44], 563 [49] (Gageler J); [2018] HCA 30.
[63]Elias v Director of Public Prosecutions (NSW) [2012] NSWCA 302, [18] (Basten JA).
Section 302 is not available as a substitute right of appeal. It is not permissible to frame the question to ask whether the judge was correct to make a decision or make a particular finding. Nor is s 302 available to have this Court assess whether an ultimate legal conclusion, based on myriad facts and from which a discrete question of law cannot be distilled, is correct.
Having had the benefit of full argument, including on the decision in Orr, we would not follow the approach taken in Peters. Peters is premised on the proposition that whether a critical finding of fact was open to a primary judge is a question of law and that, in answering that question, it is necessary to take the facts and any inferences that may be drawn from those facts at their highest.
There are a number of problems with that approach:
(a)there is no consideration in Peters of the distinction between an appeal on a question of law and a reserved question; and
(b)contrary to the approach taken in Peters,[64] there is no scope for this Court to draw inferences of fact from the case stated.
[64][2018] VSCA 115, [44] (Osborn, Kaye and Niall JJA).
In any event, question 1 is not in the same form as the question considered in Peters and Peters can be distinguished on that basis. Question 1 is not confined to asking whether a particular finding was open on the evidence. It is a compound question that covers both the finding as to assistance and whether or not the public interest in providing the assistance outweighs the public interest contended for by the Chief Commissioner.
Given the gravity of the issue, we would not decide this case against the Chief Commissioner merely because of infelicity in the expression of the question. But the problem goes deeper. It is plain that the focus of the Chief Commissioner’s concern is the outcome arrived at by the judge. As the brief exposition of the applicable principles shows, public interest immunity is an evaluative exercise involving the identification of competing interests. The question of whether the immunity is established is not a question of law other than in the broadest sense of being the product of a legal exercise. That exercise inevitably involves a compound of factual and legal considerations. Given that both the interest contended for by the Chief Commissioner and that contended for by Mr Crupi are indubitably relevant to the immunity, the real dispute before the judge was one of fact.
Even with the most benevolent attitude, it is impossible to discern in question 1 a question of law that is capable of falling within s 302 of the CPA.

Question 2

In our opinion, question 2 is not a question of law for the purposes of s 302. It is not permissible to frame the question in such a way that it merely asks whether the primary decision maker committed an error of law.
Even if it were a question of law for the purposes of s 302, we would decline, in the exercise of our discretion, to answer it. We accept the amicus’s submissions at [44] above in this respect.

Conclusion

The Court has no jurisdiction to answer the questions.
Before leaving this matter, we would add the following.
First, a decision taken in the course of a trial to uphold or reject a claim for public interest immunity can, and often will, have the potential to produce very grave consequences. That is the situation in this matter. Consideration should be given to whether the circumstances in which an interlocutory appeal may be brought from decisions in the context of a trial should be extended to cover a situation such as the present.
Secondly, and even allowing for the fact that this was an interlocutory hearing, there is much to be said for the view that the judge’s reasons did not expose his path of reasoning, other than in a most conclusory sense, nor illuminate how the withheld material might assist the accused in light of all of the material that has already been provided to him. We acknowledge that these are very difficult things for a trial judge to expose, but that sense of concern remains unabated.
Thirdly, we would not give leave to the interested party to intervene. The relevant interest, that is the subject matter of the application, is the public interest, not the private interest of any person. To the extent that there is an impact on other persons or entities, it is consequential and does not confer standing on the person or entity. We are not persuaded that the arguments of the interested party are in any material way different from those advanced by the Chief Commissioner. It is not the role of an intervener to adduce evidence, and we see no reason why the Chief Commissioner is not able to adduce all of the evidence that might be relevant to the application. In any event, the facts on the case stated were fixed by the reservation made by the trial judge and there is no room to supplement them.
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[2023] VSCA 245

13 October 2023