Franklin v Director of Public Prosecutions (NSW)

[2022] NSWCA 58

Court of Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Franklin v Director of Public Prosecutions (NSW) [2022] NSWCA 58

Hearing dates:

1 February 2022

Date of orders:

12 April 2022

Decision date:

12 April 2022

Before:

Basten JA at [1];
Macfarlan JA at [22];
Brereton JA at [48]

Decision:

Summons dismissed with costs.

Catchwords:

CRIME — appeal and review — appeal from Local Court to District Court — privative clause precludes judicial review unless jurisdictional error — whether refusal by a District Court judge to state a case to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW) amounted to a jurisdictional error

APPEALS — procedural fairness — bias or apprehension of bias — District Court judge after correction on appeal declined for a second time to state a case because an answer by the Court of Criminal Appeal to the question of law in favour of the applicant would not have affected the outcome of the appeal to the District Court

Legislation Cited:

Child Welfare Act 1939 (NSW), s 176

Crimes (Amendment) Act 1924 (NSW), s 33

Crimes (Amendment) Act 1929 (NSW), s 17

Crimes (Amendment) Act 1951 (NSW), s 7(b)

Crimes (Appeal and Review) Act 2001 (NSW), s 18(2)

Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW), Sch 2.2[2]

Criminal Appeal Act 1912 (NSW), s 5B

District Court Act 1973 (NSW), ss 8, 176

Evidence Act 1995 (NSW), s 69

Fair Work Act 1994 (SA), s 206

Justices Act 1902 (NSW)

Justices Appeal Act 1881 (NSW), 45 Vic No 4, s 1

Reserved Criminal Cases Act 1849 (NSW)

Supreme Court Act 1970 (NSW), s 69

Cases Cited:

Abebe v Commonwealth (1999) 197 CLR 510; [1999] HCA 14

Australian National Industries Ltd v Spedley Securities Ltd (1992) 26 NSWLR 411

Charara v Director of Public Prosecutions [2001] NSWCA 140; (2001) 120 A Crim R 225

Charisteas v Charisteas [2021] HCA 29; (2021) 95 ALJR 824

Cook v Cook (1923) 33 CLR 369

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160

Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Elias v DPP(NSW) [2012] NSWCA 302; 222 A Crim R 286

Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106; [1971] HCA 12

Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162; 286 A Crim R 191

Franklin v Director of Public Prosecutions [2021] NSWCA 83

Gibson v Director of Public Prosecutions (NSW) (No2) (2021) 105 NSWLR 434; [2021] NSWCA 218

Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34

Jankovic v Director of Public Prosecutions [2020] NSWCA 31; (2020) 281 A Crim R 378

Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48

Julius v Bishop of Oxford (1880) 5 App Cas 214

Kirby v Dental Council of New South Wales [2018] NSWSC 1869

Kirby v Dental Council of New South Wales [2020] NSWCA 91

Kirk v The Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1

Landsman v Director of Public Prosecutions [2013] NSWCA 369

Lynch v His Honour Judge Cameron-Smith (NSWCA, Reynolds, Glass and Samuels JJA, 29 April 1982, unreported); (1982) 6 Petty Sessions Review 2565

Macdougall v Paterson (1851) 11 CB 755; 138 ER 672

Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149; (2020) 93 MVR 242

McDonald v Cogill (NSWCA, Moffitt P, Samuels JA and Mahoney JA), 13 October 1978, unreported)

McGavin, ex parte; Re Berne (1945) 46 SR(NSW) 58; 63 WN(NSW) 45

Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21

Mraz v R (1955) 93 CLR 493; [1955] HCA 59

Neyland v Neyland (1956) 56 SR (NSW) 284

Nitiva v Director of Public Prosecutions (1999) 29 MVR 471; [1999] NSWCA 332

Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54

Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7

Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398; [2012] HCA 25

Quinn v Commonwealth Director of Prosecutions [2021] NSWCA 294; [2022] ALMD 65

R v Lazarevic (1966) 85 WN (Pt 1) (NSW) 159

R v Shoreditch Assessment Committee [1910] 2 KB 859

R v Sirocic (2000) 32 MVR 165; [2000] NSWCCA 327

Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185

Stanley v Director of Public Prosecutions(NSW) [2021] NSWCA 337

Ward v Williams (1955) 92 CLR 496; [1955] HCA 4

West v Commonwealth Director of Public Prosecutions [1999] NSWCA 398

Wilde v R (1988) 164 CLR 365; 76 ALR 570; [1988] HCA 6

Texts Cited:

NSW Legislative Council, Parliamentary Debates (Hansard), 17 September 1998, p 7594

NSW Legislative Council, Parliamentary Debates (Hansard), 23 November 1998, pp 10414-10416

Category:

Principal judgment

Parties:

Craig Andrew Franklin (Applicant)
Director of Public Prosecutions (NSW) (First Respondent)
District Court of New South Wales (Second Respondent)

Representation:

Counsel:
C Franklin (self-represented) (Applicant)
E Balodis (First Respondent)

Solicitors:
Office of the Director of Public Prosecutions (First Respondent)
Crown Solicitor’s Office (Second Respondent)

File Number(s):

2021/234658

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

12 July 2021

Before:

Bourke SC DCJ

File Number(s):

2016/348410

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 5 December 2019, the applicant Craig Andrew Franklin was convicted in the Local Court of common assault of his former wife on 2 September 2016, contrary to s 61 of the Crimes Act 1900 (NSW).

On appeal to the District Court Mr Franklin sought leave pursuant to s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW) to tender evidence not before the Local Court, including a case note report which referred to a telephone call Mr Franklin made to the Department of Corrective Services concerning the incident the subject of the assault charge. Judge Bourke refused leave to tender the report and subsequently dismissed the appeal.

Mr Franklin thereafter requested the Judge to state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW), in relation to ten questions, one of which concerned the report. His Honour refused the application on the basis that the questions were not questions of law, as s 5B of required them to be. Mr Franklin then sought judicial review of that decision in this Court which found that, contrary to Judge Bourke’s decision dated 19 May 2020, the question concerning the admissibility of the case note report was a question of law, and accordingly set aside the decision and remitted the matter to the District Court “to be dealt with according to law” (“Franklin No 1”) ([2021] NSWCA 83).

Judge Bourke considered the reasons given by this Court but then declined for a second time to state a case to this Court as his Honour considered that the admission of the report into evidence would have made no difference to the outcome of the appeal against Mr Franklin’s conviction. In the present proceedings, Mr Franklin sought judicial review under s 69 of the Supreme Court Act 1970 (NSW) of the second decision of Judge Bourke dated 12 July 2021.

There is no right to judicial review of a determination of the District Court on an appeal from the Local Court unless jurisdictional error is demonstrated (see District Court Act1973 (NSW), s 176). The primary issue on appeal therefore was whether Judge Bourke fell into jurisdictional error on the basis that he denied Mr Franklin procedural fairness or in declining to exercise the function of a District Court judge under s 5B of the Criminal Appeal Act 1912 (NSW).

The Court (Basten JA and Macfarlan JA; Brereton JA dissenting) dismissed the appeal with costs: [21], [47].

(Per Basten JA):

Section 5B of the Criminal Appeal Act does not confer a statutory right of appeal: [3]–[4]. It confers on the appeal judge, and not the reviewing court, the determination of materiality: [17].

There is no basis to conclude that Judge Bourke misconceived the function he was exercising so as to constitute a jurisdictional error: [19], [20]. Judge Bourke was entitled to conclude that even if the case note report had been admitted it would not have affected the outcome of the case: [19].

(Per Macfarlan JA):

Judge Bourke did not deny Mr Franklin procedural fairness: [35]. First, there was no basis for concluding that Judge Bourke prejudged the issue of whether to state a case: [31]–[32]. The fair-minded lay observer would not have had any reasonable apprehension that, because Judge Bourke had previously dismissed the stated case application, he would not reconsider that application on its merits, as directed by the Court of Appeal: [32]. Secondly, there was no reasonable basis for thinking, as Mr Franklin asserted, that Judge Bourke refused the stated case application “for the purpose of avoiding the Court of Criminal Appeal having the opportunity to determine whether he had erred in law on the principle of admissibility of business records”: [33].

Judge Bourke did not fall into jurisdictional error on any other basis: [46]. Contrary to Mr Franklin’s submission, Judge Bourke had a discretion under s 5B of the Criminal Appeal Act to decline for a second time to state a case as the effect of Franklin No 1 was not to require his Honour to automatically state a case: [36]–[40]. If this Court had considered that statement of a case was the only determination that should have been made then it could have exercised its powers under s 69(3) of the Supreme Court Act to make that order itself: [37]. Judge Bourke was entitled to conclude that a statement of a case would be futile because an answer to the question of law in favour of Mr Franklin would not have affected the result of the conviction appeal: [41]. Even if Judge Bourke erred by taking into account a factor that was not relevant, this did not amount to a jurisdictional error: [43], [46].

(Per Brereton JA, contra):

The orders of this Court in Franklin No 1 did not require Judge Bourke to automatically state a case; it quashed the prior decision and required the power to be exercised afresh “according to law” but did not otherwise confine the re-exercise of the power: [69].

As to the nature of the power conferred by s 5B of the Criminal Appeal Act, until recent years there has been a well-established line of authority to the effect that a judge, once requested to do so by a party, is obliged to state a case to the Criminal Court of Appeal, so long as the question is one of law arising in the District Court appeal, unless its submission would be an abuse of process: [75]–[104]. Since 2020, several decisions have held that a determination by a District Court judge as to whether to state a case is a discretionary one and any error as to whether a proposed question is a question of law is not a jurisdictional one: [105]–[116]. However, the import of the earlier line of authorities is that the power to state a case is not a discretionary one attended by a range of potentially relevant considerations, but one that must be performed once the conditions for its exercise are established: [121]. Thus, if the jurisdiction of the court is engaged but the judge declines to exercise it on the basis that it has not been engaged, then that amounts to a jurisdictional error: [125].

For the purpose of jurisdiction under s 5B, the touchstone of the jurisdiction is the existence of a question of law arising on the appeal: [127]–[129]. An incorrect answer to that question means that a judge wrongly assumes, or refuses to exercise, jurisdiction; that is not a mere error of law, but one which goes to jurisdiction: [127], [146].

In the present proceedings, Judge Bourke committed a jurisdictional error by treating as a discretionary consideration the question of materiality, that is, whether the admissibility of the case note report was capable of affecting the outcome of the appeal: [132]–[135]. The test is whether the wrongly excluded evidence could not have, as opposed to would not have, resulted in a different outcome: [134]. If the question were referred to it, this Court would, if satisfied that the evidence had been wrongly excluded, quash the conviction and remit the appeal for rehearing by a different judge who had not already made up his or her mind: [134].

Furthermore, an apprehension of bias reasonably arises from the same judge’s determination of the appellant’s guilt: [137]. It was not for Judge Bourke, after already having expressed himself to be satisfied beyond reasonable doubt of the applicant’s guilt, to determine that upon reviewing the whole of the evidence, including that which he had wrongly excluded, he would still have been of that opinion: [136]. A reasonably minded lay observer might well apprehend that, having already decided that an appellant was guilty beyond reasonable doubt, the same judge might not be able to bring an impartial mind to the question whether he was still so satisfied having regard to an additional piece of evidence pointing in the opposite direction: [141].

Judge Bourke’s second refusal to state a case should be quashed and the matter remitted to the District Court to state a case: [149].

Judgment

1. BASTEN JA: The applicant, Craig Andrew Franklin, stands convicted on one charge of assault, the victim being his former wife. He was convicted in the Local Court and appealed to the District Court. The District Court rejected the appeal. Mr Franklin sought to have the District Court judge submit a question of law to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). Judge Bourke, who had heard the appeal, declined to do so. That decision was set aside by this Court on an earlier occasion and the matter remitted to Judge Bourke. ^[1] The judge took careful account of the reasoning of this Court, but again refused to state a case. The applicant now seeks to set aside the judge’s second decision.

   1. Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83.

2. I agree with Macfarlan JA that the summons must be dismissed. As the Court is divided, I add the following further observations.

3. There is no statutory appeal from a judgment of the District Court in a criminal matter on appeal from the Local Court. However, s 5B of the Criminal Appeal Act permits a judge to “submit any question of law arising on any appeal … to the Court of Criminal Appeal”: s 5B(1). A party to the appeal may “request” the judge to submit a question of law: s 5B(2).

4. The language of s 5B is self-evidently inapt to confer a right on a party to the appeal. Its effect is to provide an opportunity for a party to have questions of law determined by the Court of Criminal Appeal, but to do so the applicant must demonstrate to the judge who heard the appeal in the District Court that there is a relevant “question of law”, and it is a question of law “arising on” the appeal. The District Court thus performs a gate-way control function.

5. In the recent decision of Gibson v Director of Public Prosecutions (NSW) (No 2) ^[2] Bell P, quoting a passage from Forrest v Director of Public Prosecutions (NSW), ^[3] stated:

“The effect of the privative clause in s 176 of the District Court Act is to confer power to determine all questions of law on the District Court judge, such determinations being unreviewable unless the judge has mistaken his or her function, and in doing so has exceeded, or failed to exercise, the jurisdiction of the court.”

2. (2021) 105 NSWLR 434; [2021] NSWCA 218 at [33].

3. [2020] NSWCA 162; 286 A Crim R 191 at [47].

6. There is one criterion of engagement expressed in this passage, namely that “the judge has mistaken his or her function”. It must have a consequence, namely exceeding or failing to exercise the Court’s jurisdiction. However, it is an error to read that passage as stating three separate and independent criteria of engagement, namely mistaking a function, exceeding jurisdiction, or failing to exercise jurisdiction. The reasons given by the District Court judge in the present case reveal no basis for concluding that he mistook the function he was required to consider under s 5B of the Criminal Appeal Act.

7. There is a further, more nuanced, issue which can arise in these cases. Where a statutory power of the kind provided in s 5B is conferred on the judge who conducts an appeal, there is good reason, as a matter of statutory construction, not to imply constraints on the exercise of the power by the judge. Particularly is that so where statute immunises the exercise of the gateway function by the appellate judge from review for error of law on the face of the record.

8. It is true that a grant of jurisdiction to a court ordinarily carries with it a duty to exercise it; it is less common to find that a judicial duty is required to be exercised in only one way. The exercise of a judicial function usually involves determining both the facts which will engage the power and the applicable law, and then applying the law to the facts as found.

9. It is necessary to identify the criterion of engagement of the statutory power before deciding whether, and in what circumstances, a judge can decline to submit a question to the Court of Criminal Appeal. That will turn upon the nature of the function and the statutory language of conferral.

10. Importantly, there are two ways of approaching a statutory power. One, as noted above, is to focus on the conditions of engagement of the power. The alternative, and more common approach, is to identify the factors or considerations which condition the exercise of the power. These can be characterised as prohibited considerations, mandatory considerations and, often the broadest category, permissible considerations. The first two factors condition the validity of the exercise of the power. Depending upon the statute and the context, the law will generally impose other requirements, including an obligation to accord procedural fairness, and an obligation to act within the bounds of reasonableness.

11. The difference between these two approaches may be important. When criteria are stated to constitute conditions of engagement, failure to comply will constitute jurisdictional error. Accordingly, the supervising court will be entitled (and obliged) to review the judge’s assessment of a particular criterion against the correctness standard. On the other hand, if a particular criterion is identified as a permissible consideration going to the exercise of the power, the reviewing court will be limited to identifying error in the judge’s formation of the relevant state of satisfaction, such as acting for an improper purpose, or reaching a decision which the court determines exceeds the boundaries of legal reasonableness. If a particular criterion permits only a binary choice, with no scope for evaluation or assessment, the two forms of analysis may be similar. However, that will not often occur; generally the respective exercises are fundamentally different. Which approach should be adopted turns on statutory interpretation.

12. There are several reasons in this case for not defining all issues as conditions of engagement depending on a determination by a supervising court. First, there is the fact that s 5B confers a power on a court of record. ^[4] “It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.” ^[5]

    4. District Court Act 1973 (NSW), s 8(2).

    5. Owners of the Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421; [1994] HCA 54.

13. Secondly, as explained by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte: ^[6]

“It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court’s opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.”

6. (1938) 59 CLR 369 at 391; [1938] HCA 7.

14. Thirdly, although in principle whether a particular question is or is not a question of law is an objective circumstance which might equally be dealt with by a court on review as by the judge hearing the matter, the same cannot be said of the criterion identified in s 5B(1), namely a “question of law arising on any appeal”. There are two aspects of that language which are important. One is that the connection between the appeal and the question of law is a matter likely to involve an evaluative judgment. One of the most common questions asked of counsel seeking to tender evidence or make a submission is, “how does that arise on your case?” The second aspect is that the power to refer a question of law is conferred on the judge before whom the appeal comes. That judge will be the person best placed to determine whether a proposed question of law truly arises on the appeal.

15. Fourthly, and perhaps as a corollary of the last point, a question of law will not arise on an appeal unless it is material to its outcome. The present case involved a common assault: it might have been possible to formulate a question of law, based on findings of fact as to what occurred between the applicant and his former wife, as to whether the findings satisfied the legal concept of an assault. Whether that question arose on the appeal might have depended upon whether there was in truth an issue as to the legal characterisation of the conduct, and whether there was any doubt as to the relevant legal principles.

16. It may be doubted that the admissibility of evidence necessarily raises a question of law, as opposed to a mixed question of fact and law. More importantly, there will often be a fine line between a determination of relevance and the weight which might be given to the evidence if admitted. Evidence capable of supporting or undermining a particular finding of fact may for that reason be admissible. On the other hand, in the circumstances of the case it may carry little or no weight. If, in the view of the appeal judge, evidence which had been rejected would not have affected the outcome, it must be open to the judge to conclude that any question of law as to its admissibility was immaterial.

17. Because the statute confers on the appeal judge the determination of materiality, it is not a matter for the reviewing court. The contrary view would result in (i) a question being submitted to the Court of Criminal Appeal, (ii) a hearing before the Court of Criminal Appeal, (iii) which, if it resulted in a finding that the evidence was admissible, would require a further hearing of the appeal in the District Court, with no change in the result. It is a view which, in the words of Dixon J, “produces so inconvenient a result that no enactment dealing with proceedings in [the District Court] should receive such an interpretation unless the intention is clearly expressed.” No such intention appears from s 5B. Read with s 176 of the District Court Act (which denies a power of review where the District Court makes an error of law which appears on the face of the record), the intention imputed to the legislature must be to the contrary. The context is that the proceeding was first heard in the Local Court; the policy of limiting relatively minor matters to two hearings on the merits, with a third level of judicial consideration only where a judge is satisfied that a real doubt arises as to a material question of law is self-evident.

18. In Gibson, this Court referred to the judge forming a state of satisfaction as to “whether the question arose on the appeal, in the sense that the answer to the question was capable of affecting the outcome”. ^[7] For the reasons explained above, the term “capable” was not intended to refer to an abstract capacity to affect the outcome, but a practical capacity to affect the outcome in the circumstances of the case. That is clear from the fact that what was being described was the state of satisfaction of the judge who was hearing the appeal.

    7. Gibson at [40(4(b))].

19. Applying these principles to the present case, there is no basis to conclude that the District Court judge misconceived the function he was exercising. He stated that he had formed the view, after considering the complainant’s evidence and what he described as “the entirety of the evidence and the very lengthy cross-examination of the complainant by the applicant”, that she was “both an honest and accurate witness as to the essential aspects of the alleged assault.” ^[8] The judge noted that the magistrate had come to a similar view. He continued:

“[31]   As I have said I shared and still share those views. Having taken into account the terms of Ms Buckley’s note on the assumption that it was admissible and was admitted in the proceedings I nonetheless remain satisfied beyond reasonable doubt of the essence of the complainant’s version of events about the assault, and I remain satisfied beyond reasonable doubt that the offence is made out.”

8. Judgment at [28]-[29].

20. There is no legal basis upon which to reject that finding. It is not for this Court to make its own finding in that respect. No jurisdictional error has been established on the part of the District Court judge.

21. The summons must be dismissed with costs.

22. MACFARLAN JA: By summons filed on 11 August 2021 the applicant, Mr Craig Franklin, seeks orders pursuant to s 69 of the Supreme Court Act 1970 (NSW) by way of judicial review of a decision dated 12 July 2021 of Judge Bourke of the District Court. By the decision his Honour declined for a second time to state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). His Honour had earlier heard and dismissed an appeal by Mr Franklin from his conviction in the Local Court of common assault of his former wife.

23. On his appeal to the District Court Mr Franklin had sought leave pursuant to s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW) to tender evidence not before the Local Court, including a case note report prepared by an officer of the Department of Corrective Services, Ms Deborah Buckley. The report referred inter alia to a telephone call Mr Franklin made to Ms Buckley concerning the incident the subject of the assault charge. Judge Bourke refused leave to tender the report and subsequently delivered a judgment dismissing the appeal. Mr Franklin thereafter requested the judge to state a case to the Court of Criminal Appeal in relation to 10 questions, one of which concerned the report. His Honour refused the application on the basis that the questions were not questions of law, as s 5B of the Criminal Appeal Act required them to be. Mr Franklin then sought judicial review of that decision in this Court (“Franklin No 1”).

24. In Franklin No 1, delivered on 19 May 2020 ([2021] NSWCA 83), this Court found, contrary to Judge Bourke’s decision, that one (although only one) of the 10 questions was a question of law, namely:

“… (d) Was the business record of NSW Community Correction officer Ms Deborah Buckley admissible?”

25. The Court concluded that the decision of Judge Bourke should be quashed insofar as it related to question (d) and ordered that the matter be remitted to the District Court. Its formal order was for the matter to be remitted “to the District Court to be dealt with according to law”. The Court’s reasoning (per Hamill J, with whom Brereton JA and McCallum JA agreed) was relevantly as follows:

“[81] The evidence of Mr Franklin’s representations to Ms Buckley was relevant to the issues before the Local Court. It was generally consistent with the case the applicant ran in defence of the charge. Like the ‘complaint’ evidence adduced by the Prosecutor, it was capable of impacting an assessment of Mr Franklin’s credibility. It was potentially important evidence and, if admitted, it had the capacity to impact on the tribunal of fact’s determination of whether the case was established beyond reasonable doubt.

[82] The question of whether the note was admissible was a question of law. The respondent put an argument to the effect that the issue did not raise a ‘pure question of law’ but was a question of ‘mixed fact and law’ because it involved an examination or consideration of the evidence itself. The logical extension of that submission is that no issue of admissibility would fall into the category of question encompassed by s 5B of the Criminal Appeal Act. I am unable to accept that submission. As was put by the presiding Judge at the hearing of the application in this Court:

‘If a decision to reject a business record is made solely on the basis that it contravenes the hearsay rule, there’s no factual element is there? It’s just an error of law.’

[83] The respondent also made a somewhat diffident submission to the effect that, perhaps, Judge Bourke determined that the note would not have impacted on his determination of guilt and, therefore, was an inappropriate use of the procedure to state a case. However, there is nothing in his Honour’s judgments to suggest this was the basis upon which he rejected the tender or declined to state the case. Rather, the judgment relating to the attempt to tender new evidence held that the note was inadmissible for the reasons provided by the Magistrate … The judgment rejecting the stated case categorised the question as one of mixed fact and law and asserted that it constituted an attempt to convert the stated case procedure into a general right of appeal …

[84] There was no other basis, referred to by Judge Bourke or recognised by the authorities referred to… above, upon which to decline to state the question to the Court of Criminal Appeal. The case note was material to the central issues in the case and it could not reasonably be held that the application to state a case in this respect was baseless or frivolous. The failure to recognise that question (d) was a question of law alone, and the fact that it was amenable to the procedure provided for in s 5B of the Criminal Appeal Act, resulted in his Honour failing to exercise the jurisdiction conferred on him by s 5B.”

26. Following that decision, Mr Franklin requested the District Court to relist his appeal before Judge Bourke. After receiving submissions his Honour delivered judgment on 12 July 2021 again refusing Mr Franklin’s application for his Honour to state a case to the Court of Criminal Appeal. His Honour accepted that, based on the Court of Appeal’s judgment, question (d) constituted a question of law. He noted however that the Court of Appeal’s orders did not require him to state a case but instead required him to determine Mr Franklin’s application for a case to be stated “according to law”. In considering the nature of the task left for him to perform, the primary judge applied the following observations of Basten JA (with whom Leeming JA and McCallum JA relevantly agreed) in Forrest v DPP (NSW) [2020] NSWCA 162 at [48]; (2020) 286 A Crim R 191:

“There is no good reason to limit the factors which the District Court judge may properly take into account in considering [in his or her decision] 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.”

27. Judge Bourke then turned to consider whether the admission of the report into evidence would have resulted in a different outcome to the appeal. His Honour said that for the purpose of considering that issue he revisited the evidence before him on the appeal, the arguments put to him and his reasons for dismissing the appeal. He assumed in Mr Franklin’s favour that the conversations as recorded by Ms Buckley occurred and did so in the terms that she recorded.

28. His Honour considered that the note provided “some support” for Mr Franklin’s case but said that he remained “satisfied beyond reasonable doubt of the essence of the complainant’s version of events about the assault”, and that the offence occurred ([26] and [31]). In these circumstances his Honour concluded that Mr Franklin’s application for statement of a case should be rejected because the admission of Ms Buckley’s note into evidence would have made no difference to the outcome of the appeal against Mr Franklin’s conviction ([32]).

Mr Franklin’s bias claims

29. In support of his application to this Court under s 69 of the Supreme Court Act Mr Franklin first contended that Judge Bourke fell into jurisdictional error by denying him procedural fairness as a result of the judge being biased when determining Mr Franklin’s application for a stated case or alternatively in determining it in circumstances where a fair-minded lay observer might have had a reasonable apprehension of bias. It is not entirely clear whether Mr Franklin did in fact allege actual bias on the part of Judge Bourke but, to the extent that he impliedly did so, the contention should be rejected as there is no evidence to support it.

30. The principles applicable to allegations of apprehended bias were recently summarised by the High Court in Charisteas v Charisteas [2021] HCA 29 at [11]; (2021) 95 ALJR 824, and are as follows:

“…The apprehension of bias principle is that ‘a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’. The principle gives effect to the requirement that justice should both be done and be seen to be done, reflecting a requirement fundamental to the common law system of adversarial trial – that it is conducted by an independent and impartial tribunal. Its application requires two steps: first, ‘it requires the identification of what it is said might lead a judge… to decide a case other than on its legal and factual merits’; and, second, there must be articulated a ‘logical connection’ between that matter and the feared departure from the judge deciding the case on its merits. Once those two steps are taken, the reasonableness of the asserted apprehension of bias can then ultimately be assessed.” (Citations omitted.)

31. The first basis on which Mr Franklin submitted that these principles were satisfied was that a fair-minded lay observer might reasonably have apprehended that, as Judge Bourke had previously refused to state a case in respect of question (d), his Honour had prejudged the issue that he was required by the Court of Appeal decision in Franklin No 1 to re-decide (that is, to determine whether to state a case in respect of question (d)).

32. I reject that submission. The Judge had relevantly only determined previously the issue of whether question (d) was a question of law. He had not determined the issues he decided on 12 July 2021 of whether, as a matter of discretion, he should order a case to be stated and whether the admission into evidence of Ms Buckley’s report would have made any difference to the outcome of the appeal. Assuming, as is appropriate, that the fair-minded observer would have been apprised of what had occurred in the courts, that person would in my view not have had any reasonable apprehension that Judge Bourke might have prejudged the relevant issues. That is to say, the fair-minded lay observer would not have had any reasonable apprehension that, because Judge Bourke had previously dismissed the stated case application, he would not reconsider that application on its merits, as directed by the Court of Appeal. There is therefore simply no basis on which it could be concluded that a fair-minded observer might have apprehended that Judge Bourke would, or might, fail in this way to perform his judicial duties.

33. Turning to the second basis for the apprehended bias claim, a fair-minded lay observer would in my view similarly not have had any reasonable basis for thinking that, as Mr Franklin asserts, Judge Bourke refused the stated case application on 12 July 2021 “for the purpose of avoiding the Court of Criminal Appeal having the opportunity to determine whether he had erred in law on the principle of admissibility of business records”.

34. Moreover, Mr Franklin’s submission in respect of this second basis conflicts with the decision of the High Court in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 305; [2011] HCA 48 in which it was held that the reasons for judgment delivered in determining issues are not relevant to an assessment of whether a fair-minded lay observer might reasonably have apprehended before delivery of the judgment that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues (see [67]–[68]).

35. For these reasons, Judge Bourke did not deny Mr Franklin procedural fairness.

Whether jurisdictional error on any other basis

36. Mr Franklin submitted that the effect of this Court’s decision in Franklin No 1 was that, on remission to him, Judge Bourke was required automatically to state a case to the Court of Criminal Appeal in respect of question (d), which this Court had found was a question of law. Thus, Mr Franklin submitted that at that point Judge Bourke had no discretion to decline to state a case.

37. This Court did not however say or infer in Franklin No 1 that this is what should occur on remission to the District Court. Its order (and the preceding statement in [91] of its reasons) indicated that on remission to the District Court the stated case application was “to be dealt with according to law”. If the Court had considered that statement of a case should follow automatically from its decision, it could have, and no doubt would have, exercised the jurisdiction conferred on it by s 69(3) of the Supreme Court Act which permits the Court to make the order that should have been made in the primary court where the Court considers “that, as a matter of law, only one particular determination should have been made by the court or tribunal”.

38. There was therefore no indication that the Court intended to contradict the approach identified in Forrest (see [6] above) that Judge Bourke followed. The correctness of that approach was later confirmed in Gibson v Director Public Prosecutions (NSW) (No 2) [2021] NSWCA 218 where Basten JA said (with the concurrence of Meagher JA):

“[40] The role of a District Court judge in deciding whether or not to submit a question of law to the Court of Criminal Appeal has been considered in a number of recent judgments of this Court, including Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149; (2020) 93 MVR 242, Forrest v DPP(NSW) [2020] NSWCA 162 and Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83. (A case of similar vintage, Jankovic v Director of Public Prosecutions [2020] NSWCA 31; (2020) 281 A Crim R 378, was not followed in a material respect in Forrest.) Subject to a qualification with respect to one aspect of the reasoning in Franklin, the following principles emerge:

(1) Section 5B confers a power on a District Court judge determining an appeal from the Local Court in a criminal matter to submit a question of law ‘arising on’ the appeal to the Court of Criminal Appeal.

(2) A party to the District Court appeal may ‘request’ the judge to submit a question of law: s 5B(2). If that step is taken after final orders have been made in the District Court, the Court of Criminal Appeal may quash the order of the District Court: s 5B(3).

(3)   If the District Court exercises the power of its own motion under subs (1), that step will generally be taken before any final order is made. If the submission of the question occurs pursuant to a request under subs (2), the question must be submitted either before, or within 28 days after, the final order.

(4)   When a request is made in accordance with subs (2) the judge has an obligation to consider the request: that exercise will involve the judge forming a state of satisfaction as to:

(a)   whether at least one of any proposed questions is a ‘question of law’;

(b)   whether the question arose on the appeal, in the sense that the answer to the question was capable of affecting the outcome;

(c)   whether the question was one as to which there was a real doubt as to the correct answer; and

(d)   if the request were made near or after the expiry of the 28 day period, so that the party seeking the submission would need to obtain an extension of time from the Court of Criminal Appeal, whether there was a reasonable prospect of such an extension being granted.

(5)   If the District Court judge were not satisfied as to any one or more of the factors set out in (4), the judge would be justified in refusing to comply with the request. If generally satisfied in relation to each matter, the power to submit the question or questions will be engaged: it will remain a discretionary decision for the judge, although one which must be exercised judicially.

[41] The operation of section 5B is to be viewed in the context of three overarching considerations. First, section 5B does not create a right of appeal, either generally, or limited to a question of law. Rather, it confers a power on the District Court judge to submit questions of law, including the authority to settle the form and content of any questions which are to be submitted.

[42] Secondly, satisfaction as to the factors set out [in] (4) above are matters to be determined by the District Court judge: it is not for this Court on a judicial review proceeding to satisfy itself that, for example, a particular question of law ‘arose on the appeal’. This Court can only intervene if a material error (of a kind to be considered further below) had been made by the District Court judge in forming his or her state of satisfaction. To this extent, aspects of the reasoning in Franklin should not be followed. Thus, s 5B does not impose an obligation to submit a case to the Court of Criminal Appeal so long as the questions are ‘not obviously frivolous and baseless’. A state of satisfaction may be set aside if formed arbitrarily or capriciously, irrationally, or not bona fide, as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21.”

39. This was consistent with Bell P’s approach at [31] where his Honour said that if the proper interpretation of what the Judge below in that case did was that:

“… her Honour declined in the exercise of her discretion to accede to the Applicant’s request that questions be referred to the Court of Criminal Appeal, this would not have been a jurisdictional error which would engage this Court’s supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). This would be so even if the judge committed some error in her analysis as to whether or not the questions involved questions of law.”

40. These authorities thus recognise that exercise of the power to state a case under s 5B of the Criminal Appeal Act involves the relevant judge of the District Court exercising a discretion, as reflected by the words “may submit” in s 5B(1).

41. As recorded in [26] above, Basten JA said in Forrest at [48], “[t]here is no good reason to limit the factors which the District Court judge may properly take into account in considering whether to accede to a request to state a question of law”. One factor instanced by his Honour was “whether the answer to the question, favourably to the applicant, might have been dispositive of the appeal”. This was the issue Judge Bourke determined and which led to his second refusal of the stated case application. It was relevant at least because it implicitly focused on whether it would be futile and therefore a waste of judicial resources for his Honour to state a case. That is, his Honour adverted to what would likely happen if the Court of Criminal Appeal answered the question favourably to Mr Franklin and the matter was remitted to his Honour for redetermination of the conviction appeal.

42. I add that Judge Bourke’s reasoning was not in my view inconsistent with the observations of this Court in Franklin No 1 which considered the materiality of Ms Buckley’s report (see [83] and [84] quoted in [25] above). Judge Bourke accepted that the report provided “some support” for Mr Franklin’s case (and was therefore relevant) but his Honour went beyond the issue of materiality or relevance to determine that admission of the report into evidence would not have affected the outcome of the appeal (see [26] and [32]). Even if this Court had expressed a view on that particular issue, that would not have been binding on Judge Bourke unless it was part of the Court’s reasoning on the issue it determined.

43. Even if the factor Judge Bourke took into account was not relevant, it would have remained for this Court to consider whether his Honour’s assumed error of law in that regard was a jurisdictional error, the privative provision in s 176 of the District Court Act 1973 (NSW) being a limitation on this Court’s power to intervene except in relation to jurisdictional errors (see Kirk v The Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [90] and [97] and Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 at [133]–[134]).

44. The essence of jurisdictional error was described by the plurality (Kiefel CJ, Gageler and Keane JJ) in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [24] as follows:

“Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as ‘involving jurisdictional error’ is to describe that decision as having been made outside jurisdiction.”

45. Not every error of law is a jurisdictional error (Kirk v The Industrial Court of New South Wales (2010) 239 CLR 531 at 571; [2010] HCA 1 at [66] citing Craig v South Australia (1995) 184 CLR 163 at 177–80; [1995] HCA 58; Quinn v Commonwealth Director of Prosecutions [2021] NSWCA 294 at [4]–[24] (Leeming JA); [2022] ALMD 65 and Stanley v Director of Public Prosecutions(NSW) [2021] NSWCA 337 at [35]–[36] (Bell P)). This is particularly so where, as here, the postulated error was made by a court of law, as opposed to an administrative tribunal, because “the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine” (Kirk v The Industrial Court of New South Wales (2010) 239 CLR 531 at 572–3; [2010] HCA 1 at [68] citing Craig v South Australia (1995) 184 CLR 163 at 179–80; [1995] HCA 58). Thus, an inferior court’s errors of law will not ordinarily constitute jurisdictional error (Craig v South Australia (1995) 184 CLR 163 at 180; [1995] HCA 58). While it is “neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error” (Kirk v The Industrial Court of New South Wales (2010) 239 CLR 531 at 573; [2010] HCA 1 at [71]), it is clear that in order for an error to be a jurisdictional error, there must be some further factor present, such as a legislative instrument requiring an inferior court to take into account or to disregard some matter, as an “essential condition of the existence of [its] jurisdiction with respect to a particular matter” (Craig v South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58; see also Quinn v Commonwealth Director of Prosecutions [2021] NSWCA 294 at [12]–[13] (Leeming JA)).

46. An error of the presently postulated character is in my view clearly not a jurisdictional error, there being no indication in the legislation that the legislature intended to treat an error of that type as jurisdictional. The discretion which the legislature conferred on the District Court by s 5B of the Criminal Appeal Act, as evinced by the words “may submit”, was clearly intended to be exercised as part of the court’s jurisdiction. As a result, if Judge Bourke is assumed to have made an error, he had jurisdiction to do so and judicial review of his decision is not available.

Order

47. For the reasons given above, Mr Franklin did not establish that Judge Bourke made any jurisdictional error. As a result, his summons for relief under s 69 of the Supreme Court Act should be dismissed with costs.

48. BRERETON JA: In the Local Court at Katoomba, on 5 December 2019, the applicant Craig Andrew Franklin was found guilty, convicted, and sentenced (to a Community Corrections Order for a period of 2 years, subject to supervision) in respect of an offence of common assault (contrary to s 61 of the Crimes Act 1900 (NSW)), in that he assaulted his then wife during an argument about money in the early hours of the morning on 2 September 2016. The prosecution case was that Mr Franklin pushed and shoved his wife repeatedly as she tried to access the couple’s safe, causing her to fall backwards; that each time she tried to stand up, he pushed her back down; that she ultimately ceased to try to access the safe, but endeavoured to gather some papers from the floor; that at this point the applicant grabbed her shoulders and shoved her to the floor, and then dragged her out of their bedroom by one arm. The complainant did not sustain any injuries. Mr Franklin did not give evidence in his defence, but his case, as appears from his cross-examination of the complainant, was that it was she who was the aggressor; that she was ‘out of control’ and assaulted him, and threatened to (falsely) accuse him of assault.

49. Before the Magistrate, Mr Franklin tendered a “Case Note Report” dated 2 September 2016 from the records of the Department of Corrective Services, prepared by Ms Buckley, an officer of Lithgow Community Corrections, under whose supervision Mr Franklin then was in respect of a prior matter, which recorded a “Phone call from offender”, as follows:

“Craig phoned sounded stress[ed] and crying on phone … Stated Emma having been displaying negative behaviour and they have been arguing after finances - stating she wanted a divorce. [T]hrew off her rings and threw them at him ... Craig contacted parents … and has asked for help. Directed Craig to leave the premises … He spoke with his father and he followed his advice and left and avoided him she chased him to bathroom and threatened him.

The previous night Emma accused Craig of having an affair with on line(sic) student. Emma was moving around cupboards with her clothes in them. Out of control kicking and screaming. She was sleeping in the spare room at the rear of the house.

Emma encouraged Craig to punch her, she commenced punching him she kicked him in the genitals and them(sic) commenced rummaging through the desk looking for money … Made threats to Craig saying she was going to call the Police and make an allegation that Craig had assaulted. Fearful of leaving his daughter. Emma went to work then came home – had told their daughter she was moving to her new home.”

50. The document contains two further notes on the same page. The first refers to Ms Buckley contacting the Katoomba police. The second records a call made by Ms Buckley to the applicant’s mother, in the following terms:

“P/c to Desley Franklin (mother) [‘phone number redacted] landline [‘phone number redacted].

Desley advised that she is well aware of Emma’s behaviour as she has witnessed it personally and heard her on the phone to Craig.

I advised Desley I have directed Craig [to] leave the family home and return to live with her and his dad until things cool down and the relationship is assessed. She agrees and will support Craig to achieve…She will collect him and will contact me on Monday.

[BUCKLEY, DEBORAH appended the case note on 02/09/2016 16:55:37]:

Directed him to stay with his parents until relationship is assessed he agreed. Will contact me on Monday.”

51. The Magistrate rejected the tender, on the basis that the document was self-serving hearsay and not within any exception to the hearsay rule. In the course of argument, the Magistrate said to the applicant that the tender was: ^[9]

“really trying to pull yourself up by your bootstraps, because it’s what you say that you told the counsellor. That’s a matter that you can give first-hand evidence of.”

9. Tcpt, 4 September 2019, p 55.

52. The Magistrate also said: ^[10]

“It only becomes relevant if there was a challenge to what you had to say, but the document itself, it’s a hearsay document, and I accept what the Sergeant has said. It’s self-serving. It really comes entirely from you.”

10. Tcpt, 4 September 2019, p 56.

53. Mr Franklin appealed from his conviction to the District Court. In the course of the appeal, he again sought to tender Ms Buckley’s “Case Record Note”. He submitted to the District Court judge: ^[11]

“And that is in relation to His Honour Magistrate Corry’s refusal to admit a business record of Corrective Services and their Community Corrections officer Ms Deborah Buckley and that goes really to the core of the factual matters that it exists with respect to September 2016, very late in the –”

11. Tcpt, 31 July 2020, p 21.

54. Bourke DCJ rejected the tender, on the same grounds as the Magistrate had done so: ^[12]

“The next document that was the subject of an application is a case note report from the Department of Corrective Services which refers to a telephone call apparently made by the appellant to an officer of Lithgow Community Corrections on 2 September 2016 relating to an incident that is the subject of the charge and also that contains some other references to other information. The primary relevance of the document as I understand it is the first entry on the top of the page which relates to the appellant’s telephone call to that case officer. That document was sought to be tendered in the proceedings below but it was rejected by the magistrate on the basis that it was hearsay in that form and therefore not admissible and not subject to any of the exceptions to hearsay. The magistrate effectively ruled that such a document might become admissible or might have become admissible in the Local Court proceedings if for example the appellant had given evidence there, and certain other examples possibly might have arisen. I am in agreement with the learned magistrate that the document is not admissible and I therefore am not satisfied that it is in the interests of justice to admit it and I do not admit that document.”

12. Judgment Tcpt, 31 July 2020, p 2.

55. Neither the Magistrate nor the District Court judge had regard to the admissibility of the document as a business record under Evidence Act 1995 (NSW), s 69, regardless of its contents being hearsay and regardless of whether Mr Franklin was called.

56. After Judge Bourke had dismissed Mr Franklin’s appeal and confirmed the conviction, Mr Franklin requested that his Honour refer a number of supposed questions of law to the Court of Criminal Appeal, pursuant to Criminal Appeal Act 1912 (NSW), s 5B. One of those questions was “(d): Was a business record of NSW Community Correction officer Ms Deborah Buckley admissible?”. His Honour declined to refer any question to the Court of Criminal Appeal for reasons which, in respect of question (d), were as follows: ^[13]

“In my opinion this question seeks, like others, to use the stated case procedure as a general right of appeal from my decision, which is not the purpose of s 5B. The question of whether the document in question was a business record would require the Court of Criminal Appeal to examine and interpret the document and the question of its admissibility would further require that Court to form an opinion based on the issues raised in the proceedings as to whether it could rationally affect the assessment of the probability of a fact in issue. This involves mixed questions of fact and law and does not in my view involve a question appropriate for referral as a stated case.”

13. Judgment Tcpt, 4 September 2020, pp 3-4.

57. It formed no part of Bourke DCJ’s reasons for rejecting the tender, or for then declining to state a case, that the contents of the file note would or could have made no difference to the outcome of the proceedings.

58. Mr Franklin applied for judicial review of his Honour’s refusal to state a case, and, in respect of question (d) only, this Court upheld the application (“Franklin No 1”). ^[14] Hamill J, with whom McCallum JA and I agreed, said (emphasis added):

    14. Franklin v Director of Public Prosecutions [2021] NSWCA 83 (Brereton JA, McCallum JA and Hamill J) (“Franklin No 1”).

“[81] The evidence of Mr Franklin’s representations to Ms Buckley was relevant to the issues before the Local Court. It was generally consistent with the case the applicant ran in defence of the charge. Like the “complaint” evidence adduced by the Prosecutor, it was capable of impacting an assessment of Mr Franklin’s credibility. It was potentially important evidence and, if admitted, it had the capacity to impact on the tribunal of fact’s determination of whether the case was established beyond reasonable doubt.

[82] The question of whether the note was admissible was a question of law. The respondent put an argument to the effect that the issue did not raise a “pure question of law” but was a question of “mixed fact and law” because it involved an examination or consideration of the evidence itself. The logical extension of that submission is that no issue of admissibility would fall into the category of question encompassed by s 5B of the Criminal Appeal Act. I am unable to accept that submission. As was put by the presiding Judge at the hearing of the application in this Court:

“If a decision to reject a business record is made solely on the basis that it contravenes the hearsay rule, there’s no factual element is there? It’s just an error of law.”

[83] The respondent also made a somewhat diffident submission to the effect that, perhaps, Judge Bourke determined that the note would not have impacted on his determination of guilt and, therefore, was an inappropriate use of the procedure to state a case. However, there is nothing in his Honour’s judgments to suggest this was the basis upon which he rejected the tender or declined to state the case. Rather, the judgment relating to the attempt to tender new evidence held that the note was inadmissible for the reasons provided by the Magistrate: see above at [78]. The judgment rejecting the stated case categorised the question as one of mixed fact and law and asserted that it constituted an attempt to convert the stated case procedure into a general right of appeal: see above at [68].

[84] There was no other basis, referred to by Judge Bourke or recognised by the authorities referred to in [30]-[45] above, upon which to decline to state the question to the Court of Criminal Appeal. The case note was material to the central issues in the case and it could not reasonably be held that the application to state a case in this respect was baseless or frivolous. The failure to recognise that question (d) was a question of law alone, and the fact that it was amenable to the procedure provided for in s 5B of the Criminal Appeal Act, resulted in his Honour failing to exercise the jurisdiction conferred on him by s 5B.”

59. His Honour concluded:

“[86] Judge Bourke’s reasons for declining to exercise the jurisdiction to state a case pursuant to 5B were that (i) the question raised an issue of mixed law and fact and (ii) Mr Franklin was seeking to exercise “a general right of appeal from my decision”. Neither of those propositions can be sustained and there is no occasion to determine whether the current state of the law would permit the Judge to decline to state a case under 5B. On the material and the arguments before this Court, the question of law ought to have been stated to the Court of Criminal Appeal. The failure to do so amounted to jurisdictional error.”

60. The orders of the Court were, relevantly:

“(1) Quash the order of the District Court refusing to state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW) in relation to the question identified as (d) in the plaintiff’s application dated 21 August 2020.

(2) Remit the matter to the District Court to be dealt with according to law.”

61. When the matter returned on remitter to Bourke DCJ, his Honour observed, in the course of argument on 7 July 2021, that “I think l I have some residual discretion to refuse to refer a stated case”, and: ^[15]

“For instance, if I was to form the opinion that even if the so called business record had been admitted and given full weight and whether that would have made any difference to the ultimate decision that I made on the conviction appeal, in that regard I am making reference to the observation of Hamill J at para 83 in the Court of Appeal’s judgment.

Nonetheless, my current thinking is I’m inclined to refer the issue to the Court of Criminal Appeal. Although in doing so I may well make my own observations or express my conclusions as to what effect, if any, the admission of that so called business record would have had on my decision concerning the conviction appeal.”

15. Tcpt 7 July 2021, p2.08-12.

62. His Honour made a direction that Mr Franklin provide by 9 July a document setting out what facts he suggests should accompany any stated case, to which the Crown could reply, and stood the matter over to 12 July for a decision as to whether he would state a case.

63. On 12 July 2021, before delivering judgment, his Honour asked: ^[16]

“Firstly, one of the issues I raised last week when the matter was before me was the question of whether I would indeed state a case or whether I would decline to do so and I think Mr Crown you submitted that there might be some residual discretion but Mr Franklin you submitted that, in effect, and I think you said para 86 and other parts of the Court of Appeal’s judgment are clear, and I am effectively required to state a case. Am I putting your position correctly?

APPELLANT: Yes, that is correct.

HIS HONOUR: Is there anything further you want to say about that issue, about namely, whether I would state a case?

APPELLANT: No.

HIS HONOUR: So you rely upon the submissions you made last time, is that correct?

APPELLANT: Correct.”

16. Tcpt 12 July 2021, p1.45-2.13.

64. Nor did the Crown wish to add anything. The argument which had taken place on 7 July was chiefly concerned with the scope of the material to be included in any stated case. No party addressed any argument to whether, if admitted, the file note would have made any difference, nor (beyond the passages set out above) did his Honour at any stage seek assistance or submissions on that point. Beyond what has been set out above, his Honour did not foreshadow that he proposed to reconsider the evidence to see whether he would remain satisfied beyond reasonable doubt of Mr Franklin’s guilt.

65. His Honour then delivered judgment, which included the following: ^[17]

“[9] When the proceedings came before me last Wednesday 7 July, I invited submissions from the parties as to two matters. Firstly, whether notwithstanding the determination of the Court of Appeal, I could or should decline to state a case to the Court of Criminal Appeal, and secondly as to the form of any stated case and its facts in the event that I acceded to the applicant’s request to state a case.

[10] In relation to the first question, the Crown submitted that I retained a residual discretion to refuse to submit a case whereas the applicant submitted that the Court of Appeal’s judgment in effect obliged me to state a case in relation to Question (d).”

17. Judgment Tcpt 12 July 2021.

66. His Honour proceeded to conclude that while he did not have a discretion in the ordinary sense to refuse to state a case, and there was a “qualified obligation” to do so, he was entitled in deciding whether or not to do so to take into account the factors identified by Basten JA in the following passage in Forrest v Director of Public Prosecutions (NSW) (“Forrest”): ^[18]

“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.”

18. [2020] NSWCA 162 at [48].

67. After dealing with the other factors mentioned, the District Court judge turned to “whether the answer to the question, favourably to the applicant, might have been dispositive of the appeal”, and proceeded:

“[24] … In considering this question I have revisited the evidence heard on the appeal against conviction, the arguments put to me on that appeal and my reasons for dismissing it.

[25] I have also had regard to the case note report of Ms Buckley, the terms of which are set out in Hamill J’s judgment, and I have operated on the assumption that that document was admissible on the conviction appeal and in the Local Court hearing. The weight to be given to the contents of such a document would ordinarily be affected by whether evidence was led from the author and also whether evidence was given by the person who made the previous representation to the author, in other words the applicant Mr Franklin. Although neither of those persons gave evidence in the Local Court or in the District Court, I have assumed in the applicant’s favour that the conversations recorded by Mr Buckley occurred, and occurred in the terms that she has recorded.

[26] The representations made by the applicant to Ms Buckley provide some support for the case that the applicant ran in defence of the charge in the Local Court and on the appeal to this Court.

[27] Those representations confirm that the applicant, who was evidently upset, had reported an argument and a physical altercation between he and his wife on the night in question. Taken at their highest, the representations provide a version of events from the applicant which support the case he put by means of cross-examination, namely that his wife was the aggressor, was out of control, had assaulted him and had made a threat to falsely accuse him of assault. Furthermore, the fact that the applicant made these complaints promptly not long after the relevant events, is a matter which can be said to add weight to the evidence.

[28] However, and as noted in my reasons for dismissing the appeal against conviction I was satisfied, having exercised caution and after examining the complainant’s evidence very carefully, that she was both an honest and accurate witness as to the essential aspects of the alleged assault.

[29] I came to that view having read the entirety of the evidence and the very lengthy cross-examination of the complainant by the applicant who is a former barrister. That cross-examination included it being put to the complainant that it was she who was the aggressor and the applicant who was the victim of assault.

[30] I was also satisfied that each of the “complaint” witnesses were credible and reliable. As stated in my reasons for dismissing the conviction appeal, I also noted that the magistrate, who had the benefit of hearing evidence over five days spread over a period of 18 months and observing the complainant give evidence over two days, had also formed the opinion that the complainant was an honest and reliable witness. The magistrate also, after observing the lengthy cross-examination of the complaint witnesses, formed a positive view about the credit of those witnesses.

[31] As I have said I shared and still share those views. Having taken into account the terms of Ms Buckley’s note on the assumption that it was admissible and was admitted in the proceedings I nonetheless remain satisfied beyond reasonable doubt of the essence of the complainant’s version of events about the assault, and I remain satisfied beyond reasonable doubt that the offence is made out.

[32] In those circumstances, it would be inappropriate in my opinion to accede to the request to state a case in relation the [sic] Question (d) because the admission of the evidence contained in Ms Buckley’s note would have made no difference to the outcome of the appeal against conviction.”

68. His Honour therefore again declined to state a case, on grounds other than those which had been relied upon on the first occasion. Mr Franklin again applies for prerogative relief quashing that decision and commanding the District Court to state a case.

The remit to the District Court judge

69. Insofar as the applicant submits that the District Court judge was effectively required by the orders of this Court in Franklin No 1 to state a case, and was not entitled to decline to do so on grounds which had not hitherto been relied upon, I do not agree. The order of this Court did not in terms require the District Court Judge to state a case. It quashed the prior decision not to do so, and required that the power be exercised afresh. The order did not otherwise confine the re-exercise of the power, save that it be “according to law”. To the extent that that there was any ground upon which the judge might properly decline to do so – other than that the question was not one of law, that having been resolved – that course remained open.

70. That, however, directs attention to the nature of the function of a District Court Judge who is requested to state a case under s 5B, and the grounds if any upon which a judge so requested may decline to do so.

The function of the District Court judge under s 5B

71. In this State, there is no general right of appeal from an adjudication of the District Court on an appeal from the Local Court. Nor is there any right of judicial review, except for jurisdictional error: District Court Act1973 (NSW), s 176, provides:

“No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court.”

72. However, s 5B of the Criminal Appeal Act1912 (NSW) provides a limited avenue of review, confined to a question of law, by way of stated case, in its current form as follows:

“5B Case stated from District Court

(1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit.

(2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow.

(3) The Court of Criminal Appeal may, in connection with the determination of a question of law in the circumstances referred to in subsection (2), quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court.”

73. For the following review of s 5B and its history I am considerably indebted to the judgment of Basten JA in Forrest, ^[19] notwithstanding that I am unable to share some of his Honour’s conclusions.

    19. Forrest at [8]-[55].

74. Section 5B was introduced into the Criminal Appeal Act in 1924. ^[20] Its original form contained only subs (1). Although it provided no express power to quash any order made by Quarter Sessions (to which, rather than the District Court, it then applied), it provided that the question submitted was to be dealt with “as if it were an appeal under this Act.” In 1929, an amendment added the words “and the Court of Criminal Appeal may make any such order or give any such direction to the Court of Quarter Sessions as it thinks fit.” ^[21] A further amendment in 1939 gave the power to a Chairman of Quarter Sessions rather than to the Court. ^[22]

    20. Crimes (Amendment) Act 1924 (NSW), s 33.

    21. Crimes (Amendment) Act 1929 (NSW), s 17.

    22. Child Welfare Act 1939 (NSW), s 176.

75. In that form it was, as appears below, set out and considered by Jordan CJ in Ex parte McGavin; Re Berne (“McGavin”), which founded what became, at least until very recent years, a well-established line of authority to the effect that, once requested to do so by a party, a judge is obliged to refer a question of law to the Court of Criminal Appeal under s 5B, so long as the question is one of law arising in the District Court appeal, unless its submission would be an abuse of process. His Honour said: ^[23]

“… I am of opinion that there was no evidence before the magistrate that the conditions requisite to give [summary] jurisdiction under s 529 [of the Crimes Act] were fulfilled.

There is another point, which cannot be allowed to pass without notice. The learned Chairman of Quarter Sessions, when the question of jurisdiction was raised before him, refused to submit it to the Court of Criminal Appeal, notwithstanding that it was a question of law. This was wrong. Section 5B of the Criminal Appeal Act of 1912 is in the following terms:

"A court of quarter sessions may submit any question of law arising on any appeal coming before it to the Court of Criminal Appeal for determination and such submission shall be dealt with as if it were an appeal under this Act, and the Court of Criminal Appeal may make any such order or give any such direction to the Court of Quarter Sessions as it thinks fit."

The word ‘may’ is prima facie facultative only; but it was pointed out in Macdougall v Paterson (1851) 11 CB 755 at 773, that ‘when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application’: Cook v Cook (1923) 33 CLR 369 at 377; R v Mitchell [1913] 1 KB 561. Section 23 of the Interpretation Act of 1897 does not prevent the application of this rule, where it is necessary to give effect to the evident intention of the statute: Smith v Watson (1906) 4 CLR 802 at 811, 819, 827. In my opinion, it is the duty of a Chairman of Quarter Sessions to submit to the Court of Criminal Appeal any question of law which either party to the appeal may raise and ask to be so submitted, unless, in his opinion, the question is so obviously frivolous and baseless that its submission would be an abuse of process."

23. (1945) 46 SR(NSW) 58 at 60-61; 63 WN (NSW) 45.

76. In 1951, the deeming provision (“as if it were an appeal under this Act”) was omitted. ^[24]

    24. Crimes (Amendment) Act 1951 (NSW), s 7(b).

77. In Forrest, Basten JA observed that, ten years after McGavin, the High Court in Ward v Williams ^[25] (in the context of a power conferred by the Public Health Act 1902 (NSW) on a magistrate to order abatement, if defective conditions of residential premises were found to constitute a nuisance) adopted a more nuanced approach to the nature of such a power conferred on a judicial officer. ^[26] His Honour said: ^[27]

“In considering whether the conferral of a power on the magistrate required its exercise, the High Court started with the proposition expounded by Cussen J in Re Gleeson:

“The authorities clearly indicate that it lies on those who assert that the word ‘may’ has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning”.

The High Court then referred to the observations of Lord Selborne in Julius v Bishop of Oxford, that the question whether a power is bound to be used in a particular situation or manner is not to be resolved by reference to the use of “may”, but must in general be solved “from the context, from the particular provisions, or from the general scope and objects, of the enactment conferring the power”.”

25. (1955) 92 CLR 496 at 505–506.

26. Forrest at [28].

27. Forrest at [29].

78. Subsequently, in Finance Facilities Pty Ltd v Federal Commissioner of Taxation,^[28] Windeyer J, with whom Barwick CJ agreed (in the context of a power conferred by the Income Tax Assessment Act 1936 (Cth) on the Commissioner to allow a private company a further rebate if satisfied, inter alia, that the shareholder has not paid a dividend to another private company) said – quoting from the judgment of Jervis CJ in Macdougall v Paterson, ^[29]  on which Jordan CJ had relied in McGavin:

“The question then is, must the permitted power be exercised if one of those conditions be fulfilled?

This does not depend on the abstract meaning of the word "may" but of whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised — so that in those events the "may" becomes a "must". Illustrative cases go back to 1663: R v Barlow (1663) Carth, 293 (90 ER 773); 2 Salk 609 (91 ER 516). Today it is enough to cite Julius v Bishop of Oxford (1880) 5 App Cas 214; and add in this Court Ward v Williams (1955) 92 CLR 496, at pp 505–506. But I select one other reference out of a multitude: Macdougall v Paterson (1851) 11 CB 755 (138 ER 672). There Jervis CJ said in the course of the argument (1851) 11 CB, at p 766 (138 ER, at p 677) "The word 'may' is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise". And, giving judgment, he said (1851) 11 CB, at p 773 (138 ER, at p 679): "We are of opinion that the word 'may' is not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises." I consider that to be directly applicable to the present case. If the Commissioner, having considered the matter, is satisfied of facts out of which the power to allow a rebate arises, he cannot nevertheless refuse to allow it. That is obvious in the case of condition (c): and it seems to me to be so also in the case of the alternatives (a) and (b).”

28. (1971) 127 CLR 106 at 134-135.

29. (1851) 11 CB 755;138 ER 672.

79. Owen J reached the same conclusion, ^[30] relying on authorities which included Ward v Williams and Julius v Bishop of Oxford. ^[31]

    30. (1971) 127 CLR 106 at 138-139.

    31. Julius v Bishop of Oxford (1880) 5 App Cas 214.

80. The implications of these decisions of the High Court in the context of s 5B were considered by this Court – after the omission of the deeming provision – in McDonald v Cogill, ^[32] where Samuels JA (with whom Moffitt P agreed), after referring to McGavin (and observing that the other members of the Court had not expressed agreement with Jordan CJ’s dictum, and that it had subsequently been inconclusively questioned by another Full Court in Neyland v Neyland ^[33] ), and discussing the judgments in Finance Facilities, nonetheless said:

(4)   When a request is made in accordance with subs (2) the judge has an obligation to consider the request: that exercise will involve the judge forming a state of satisfaction as to:

(a)   whether at least one of any proposed questions is a ‘question of law’;

(b)   whether the question arose on the appeal, in the sense that the answer to the question was capable of affecting the outcome;

(c)   whether the question was one as to which there was a real doubt as to the correct answer; and

(d)   if the request were made near or after the expiry of the 28 day period, so that the party seeking the submission would need to obtain an extension of time from the Court of Criminal Appeal, whether there was a reasonable prospect of such an extension being granted.

(5)   If the District Court judge were not satisfied as to any one or more of the factors set out in (4), the judge would be justified in refusing to comply with the request. If generally satisfied in relation to each matter, the power to submit the question or questions will be engaged: it will remain a discretionary decision for the judge, although one which must be exercised judicially.

[41] The operation of section 5B is to be viewed in the context of three overarching considerations. First, section 5B does not create a right of appeal, either generally, or limited to a question of law. Rather, it confers a power on the District Court judge to submit questions of law, including the authority to settle the form and content of any questions which are to be submitted.

[42] Secondly, satisfaction as to the factors set out [in] (4) above are matters to be determined by the District Court judge: it is not for this Court on a judicial review proceeding to satisfy itself that, for example, a particular question of law ‘arose on the appeal’. This Court can only intervene if a material error (of a kind to be considered further below) had been made by the District Court judge in forming his or her state of satisfaction. To this extent, aspects of the reasoning in Franklin should not be followed. Thus, s 5B does not impose an obligation to submit a case to the Court of Criminal Appeal so long as the questions are ‘not obviously frivolous and baseless’. A state of satisfaction may be set aside if formed arbitrarily or capriciously, irrationally, or not bona fide, as explained by Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21.”

116. Thus it appears now to have been held that a decision as to whether or not to submit a question of law is discretionary, and that an error by a District Court judge as to whether or not a proposed question sought to be referred was a question of law is not a jurisdictional error. Although this is at odds with the numerous authorities up to Jankovic in 2000 to which I have earlier referred and, as it seems to me, would require overruling no less than ten previous decisions of this Court, with the exception of the disapproval in Forrest of the reasoning in Jankovic relating to jurisdictional error, and the doubt expressed in Gibson as the conclusion in Franklin No 1 on the same question, this has occurred, if at all, sub silentio.

117. The result reached in the recent authorities appears to me to be derived from a number of propositions, which I now address.

118. First, there is the suggestion that it may be inferred, from the enactment of s 5B in 1924, in the form in which it was including the word “may” rather than the earlier 1881 ^[68] and 1849 ^[69] models which used the word “shall”, that – the Court of Quarter Sessions being a court presided over by a judge, as distinct from a lay justice – there was no intention to confer on an aggrieved party a right of appeal on a question of law and no intention to impose on the judge an obligation to state a question whenever so requested. ^[70] I acknowledge that if the law were in this respect tabula rasa, there would be some force in that reasoning – although it is countered by the equally available inference that Parliament chose to use a formula the mandatory effect of which had been established in 1851 by Macdougall v Paterson and had been confirmed as recently as 1923 by the High Court in Cook v Cook. ^[71] However, the more powerful indicator is that Parliament’s amendments in 1999 and 2006 were made against the background of the by then well-established McGavin approach, and appear to have proceeded on the basis of that approach, without any apparent intention to alter it. This may be taken as some Parliamentary confirmation of the then existing approach.

     68. Under the Justices Appeal Act 1881 (NSW), s 1.

     69. Under the Reserved Criminal Cases Act 1849 (NSW).

     70. Forrest at [27].

     71. (1923) 33 CLR 369 at 377 (Isaacs J).

119. Secondly, there is the suggestion that the 1999 and 2006 amendments inserting sub-s (2) and (3) have significantly changed the nature of the power conferred by s 5B. ^[72] However, I am unable to discern anything in these amendments, their context, or the extraneous material relating to them, to suggest that there was any intention other than to expand the existing power to refer a question of law so as to permit a request to be made after, as well as before, final disposition of the District Court appeal. Moreover, the amendments, and the Parliamentary debates, appear to proceed on the basis of s 5B as it had to that point been interpreted by the Courts. In particular, I am unable to discern from the (belated) insertion into s 5B(2) of a time limit for stating a case after disposal of an appeal – analogous to a time for appeal after conviction – any basis for concluding that the legislature intended to depart from the approach settled since McGavin, and confirmed in the very case (Cassell) which appears to have provoked the amendment to insert sub-s (2). If it were intended to reverse McGavin and Cassell by the 1999 amendments, a much more direct approach than the introduction of a time limit would have been adopted. The purpose of the amendment was to extend the procedure to enable it to be invoked after final judgment, not to reduce it to a mere discretion. Nor did this Court, in the judgments delivered between 2000 and 2020, discern any such change.

     72. Forrest at [42].

120. Thirdly, I agree that, as has been accepted in the past, there are limits to the obligation to state a case. ^[73] However, these limits are not general discretionary considerations. As has been noted, in the case in which the terminology of “qualified obligation” was first employed, the sole qualification identified was that the questions of law were so obviously frivolous and baseless that their submission would be an abuse of process, ^[74] which is no more than a restatement of the McGavin approach.

     73. Forrest at [46].

     74. Charara at [35]; see [93] above.

121. I agree that the District Court judge may determine whether the occasion to submit a question of law – namely that such a question has arisen on the appeal – has occurred. ^[75] Indeed I entirely accept that a District Court judge not only may, but must, decline to state a case, if (1) no question of law (2) arising on the appeal is identified. However, that is not because those are relevant discretionary considerations, but because they are conditions for the exercise of the power to refer a question: the power is not enlivened if they are not satisfied. I respectfully agree that there is no obligation to submit a question which is not a question of law; indeed there is no jurisdiction to do so. But that is because the existence of a question of law is a condition for the exercise of the power, not because it is a relevant discretionary consideration. Further, I do not disagree that materiality is relevant, in the sense that it is a condition for the exercise of the power that the question is one “arising on any appeal”. That requires that the question be one necessary to the ultimate disposition of the appeal, as distinct from an advisory opinion on a question which may or may not arise. However, the import of McGavin is that the power is not a discretionary one attended by a range of potentially relevant considerations, but that once the conditions for its exercise are established, it must be performed.

     75. Forrest at [47].

122. Fourthly, it is said that an error by a District Court judge as to whether or not a proposed question sought to be referred was a question of law is not a jurisdictional error, and thus that judicial review is excluded by the privative clause in District Court Act, s 176. In Gibson, Bell P quoted the statement of Basten JA in Forrest (emphasis added):

“The effect of the privative clause in s 176 of the District Court Act is to confer power to determine all questions of law on the District Court judge, such determinations being unreviewable unless the judge has mistaken his or her function, and in doing so has exceeded, or failed to exercise, the jurisdiction of the court.”

123. Although s 176 does not confer power but simply removes a right of review, I agree that its effect is that determinations of questions of law by the District Court judge are unreviewable – unless the judge has mistaken his or her function, exceeded, or failed to exercise, the jurisdiction of the court. The qualification arises because s 176 cannot deprive this Court, as part of the constitutional structure, of its inherent jurisdiction to control the jurisdiction of inferior courts by granting relief on account of jurisdictional error. ^[76]

     76. Kirk v The Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [91]–[100] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), [113] (Heydon J).

124. However, this does not mean that an error of law which goes to jurisdiction is unreviewable. While the judge has jurisdiction to decide whether the conditions are satisfied, that does not mean that an error in deciding those questions is not jurisdictional in character. The circumstance that an inferior court may err in law without committing jurisdictional error does not mean that every error of law by such a court is not jurisdictional. Every court has jurisdiction to decide whether it has jurisdiction, but if it errs in doing so, the error is nonetheless jurisdictional. Another way of putting it may be to say that while an inferior court has jurisdiction to err in law within jurisdiction, it does not have jurisdiction to err as to its jurisdiction.

125. If the jurisdiction of the court is engaged, but the judge declines to exercise it (when there is a duty to do so) on the basis that it has not been engaged, that is jurisdictional error. It has always been jurisdictional error to fail to understand that jurisdiction has been engaged. In R v Shoreditch Assessment Committee, Farwell LJ said (emphasis added): ^[77]

“No tribunal of inferior jurisdiction can by its own decision finally decide on the question of the existence or extent of such jurisdiction: such question is always subject to review by the High Court, which does not permit the inferior tribunal either to usurp a jurisdiction which it does not possess, … or to refuse to exercise a jurisdiction which it has and ought to exercise.”

77. [1910] 2 KB 859 at 880.

126. In Craig v South Australia,^[78] the High Court stated that an inferior court falls into jurisdictional error if (emphasis added) "it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers". In Abebe v Commonwealth, ^[79] Gaudron J said (emphasis added):

“[107] Jurisdictional error is not confined to situations in which a tribunal either lacks jurisdiction or exceeds its jurisdiction, situations which fall within s476(1)(b) and s476(1)(c) of the Act and, thus, ground review by the Federal Court. Rather, a tribunal falls into jurisdictional error if "it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers". S476 does not include a ground of review specifically concerned with failure to exercise jurisdiction.

[108] Not every failure to have regard to relevant matters or to disregard irrelevant matters constitutes jurisdictional error. Even so, a failure of that kind may, in the particular circumstances of a case, lead a tribunal to wrongly deny the existence of its jurisdiction or to mistakenly place limits on its functions or powers. If so, relief is available under s75(v) of the Constitution, although the decision is not reviewable by the Federal Court in proceedings under Pt8 of the Act.”

78. (1995) 184 CLR 163 at 177 (Brennan, Deane, Toohey, Gaudron and McHugh JJ).

79. (1999) 197 CLR 510 at 552 {107]-[108] (Gaudron J).

127. For the purpose of jurisdiction under s 5B, the touchstone of the jurisdiction is the existence of a question of law arising on the appeal. In the context of s 5B, whether a question is a question of law is definitive of the jurisdiction to state a case. An incorrect answer to that question means that a judge wrongly assumes, or refuses to exercise, jurisdiction. That is not a mere error of law, but one which goes to jurisdiction. If the judge wrongly holds that there is no such question, that amounts to an incorrect decision that there is no jurisdiction to state a case. That is an error as to jurisdiction. As appears from the above discussion, so much has, at least until recently, been consistently accepted in this Court. I do not think that this analysis can be said to be novel; ^[80] it reflects that adopted by this Court in Cassell, West, Charara, Landsman, Jankovic and Franklin No 1. Indeed, in stating that a court errs in the determination of its jurisdiction if it erroneously decides that the question before it is not of a description that it has power to determine, ^[81] Barrett AJA cited the judgment of the High Court in Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia, ^[82] concerning s 206 of the Fair Work Act 1994 (SA), which provided that a determination of the Commission was final and may only be challenged, appealed against or reviewed as provided by the Act, but that a determination of the Commission may be challenged before the Full Supreme Court “on the ground of an excess or want of jurisdiction”. Jurisdiction was engaged by the existence of an industrial dispute. French CJ said: ^[83]

“Consistently with these reasons, I agree with the proposition in the joint reasons that if the commission decides erroneously not to proceed upon an application before it on the footing that there is no industrial dispute as required by s 26 of the Fair Work Act, the commission has erred in the determination of its jurisdiction and has exceeded its jurisdiction in doing so [Reasons of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [65]]. Such a decision falls within the scope of “excess or want of jurisdiction” for the purposes of s 206(2).”

80. Cf Forrest at [52].

81. Jankovic at [91]; see above at [102].

82. (2012) 249 CLR 398; [2012] HCA 25.

83. (2012) 249 CLR 398; [2012] HCA 25 at [34].

128. Gummow, Hayne, Crennan and Bell JJ said: ^[84]

“When the commission decides erroneously not to proceed upon an application on the footing that there is no industrial dispute as required by s 26 of the Fair Work Act, the commission has erred in the determination of its jurisdiction, and has exceeded its jurisdiction in doing so. The expression in s 206(2) “on the ground of excess or want of jurisdiction” is apt to include jurisdictional error, rather than merely some species of jurisdictional error.”

84. (2012) 249 CLR 398; [2012] HCA 25 at [65].

129. In my respectful view, that reasoning is equally applicable where a District Court judge decides erroneously not to state a case on the footing that the proposed question is not a question of law arising on the appeal.

130. Finally, as a matter of policy, it is not clear why the Court should be astute to impose further constraints on the already very limited rights of an aggrieved party to a District Court appeal from a magistrate. As has been said more than once, ^[85] s 5B is important, because there is no other form of appeal available, and s 176 precludes judicial review, other than for jurisdictional error, which in an appeal from a magistrate’s decision rarely arises.

     85. Landsman at [16] (Macfarlan JA); Forrest at [62]-[63] (McCallum JA).

131. Accordingly, in my judgment, there is no good reason to depart from the position which was until recently long and well established, namely that if the conditions are satisfied, it is the duty of a District Court judge asked to do so to state a question of law for the Court of Criminal Appeal, unless to do so would amount to an abuse of process. The conditions are that the question be one of law, and that it arises, in the sense that it is necessary to the decision in the proceedings. If the District Court judge declines to refer a question on the basis that no question of law arising on the appeal has been identified, that is a holding that there is no jurisdiction to refer a question, and if incorrect is jurisdictional error amenable to review notwithstanding District Court Act, s 176. It also follows that in my respectful opinion, despite the doubts expressed in Gibson, the conclusion in Franklin No 1, that it was jurisdictional error for the judge to decline to refer question (d) on the incorrect basis that it was not a question of law, was correct.

Was there jurisdictional error here?

132. As has been seen, Judge Bourke disposed of the application on the basis of the second factor referred to by Basten JA in Forrest, namely whether the question arose on the appeal, in the sense that the answer to the question was capable of affecting the outcome. Insofar as his Honour treated that as a discretionary consideration, that approach was inapt. If his Honour believed that he was exercising a discretion, he misconceived his function and erred as to his jurisdiction.

133. However, the second factor referred to by Basten JA in Forrest may properly be seen not as a discretionary consideration, but as referable to whether the second condition of the power was satisfied – namely whether the question ‘arose’. A question will not arise if it is hypothetical and unnecessary to the resolution of the appeal. A judge is not only justified in not referring such a question, but because it does not “arise” in the relevant sense, may not do so.

134. Thus, if the judge, having rejected the tender of the Case Note Report, had nonetheless allowed Mr Franklin’s appeal and quashed the conviction, the question would not arise in the relevant sense, because if admitted the document could only have supported the decision which was in any event reached. Likewise, a question concerning the admissibility of evidence tendered by the prosecution but rejected would not arise if the appeal were dismissed and the conviction confirmed. In either case, it would, to use the term employed by Leeming JA in Landsman, ^[86] be “futile” to state a case. However, I do not accept that where, as here, the question of law is one as to the admissibility of relevant evidence which points in the opposite direction from the ultimate outcome of the appeal, the tender of which has been rejected, it is open to hold that the question does not arise. If the question were referred, the Court of Criminal Appeal would, if satisfied that the evidence had been wrongly excluded, quash the conviction and remit the appeal for rehearing, and by a different judge. The applicant would be entitled to be judged on all the properly admissible evidence, by a tribunal which had not already made up its mind, albeit only on some of that evidence. This is analogous to the position in a criminal appeal, where evidence tendered for the accused is found to have been wrongly excluded: there would at the least be a new trial, before a differently constituted tribunal of fact, unless the proviso were engaged, which would be so only if it could be said that the wrongly excluded evidence could have made no difference, so that even if it had been admitted the jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused; otherwise, the conviction must be set aside. ^[87] In that context, the question is not whether the wrongly excluded evidence would not have resulted in a different outcome, but whether it could not have done so.

     86. See above at [101].

     87. Wilde v R (1988) 164 CLR 365 at 372; see also Mraz v R (1955) 93 CLR 493 at 514: the proviso cannot be applied if the appellant has by the error in the trial lost “a chance which was fairly open to him of being acquitted”.

132. In my judgment, therefore, the question of the admissibility of the Case Note Report arose in the relevant sense: it was a question as to whether relevant evidence had been excluded which could have raised a reasonable doubt, even if for his Honour reviewing the matter retrospectively it did not do so. Reasons why it could have raised a reasonable doubt were articulated by his Honour: ^[88]

“[26] The representations made by the applicant to Ms Buckley provide some support for the case that the applicant ran in defence of the charge in the Local Court and on the appeal to this Court.

[27] Those representations confirm that the applicant, who was evidently upset, had reported an argument and a physical altercation between he and his wife on the night in question. Taken at their highest, the representations provide a version of events from the applicant which support the case he put by means of cross-examination, namely that his wife was the aggressor, was out of control, has assaulted him and had made a threat to falsely accuse him of assault. Furthermore, the fact that the applicant made these complaints promptly not long after the relevant events, is a matter which can be said to add weight to the evidence.”

88. Judgment Tcpt 12 July 2021.

136. It was not for his Honour to determine, after already having expressed himself to be satisfied beyond reasonable doubt of the applicant’s guilt, that upon reviewing the whole of the evidence, including that which he had hypothetically wrongly excluded, he would still have been of that opinion.

137. A further reason for adopting this approach is that in principle apprehended bias would disqualify a District Court judge from reconsidering, on an application to state a case, whether he or she would still have been satisfied beyond reasonable doubt of the appellant’s guilt, if the evidence which had arguably been wrongly excluded were to be admitted. Such an apprehension reasonably arises from the same judge’s prior determination of the appellant’s guilt.

138. The applicable test for apprehended bias is provided by the so-called “double might” test stated in Ebner v Official Trustee in Bankruptcy: ^[89]

“Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.”

89. (2000) 205 CLR 337; [2000] HCA 63 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ); see also Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [31]. The test is an objective one: Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48 at [12].

139. The burden inevitably borne by a party which has to dissuade a tribunal from an opinion already formed is well understood. As Kirby P said in Australian National Industries Ltd v Spedley Securities Ltd (emphasis added): ^[90]

“Judges and other lawyers hasten to deny the possibility that they or their
colleagues actually suffer from bias. They protest this rare psychological
capacity, as a class, to put prior conclusions entirely “out of mind”. This is
said to be so, even of the bias which attends the natural human desire for consistency of thought and action and the usual inclination of any human
being to uphold an opinion earlier expressed if supported by grounds which

90. (1992) 26 NSWLR 411 at 417.

seemed totally convincing to that person at the time of their expression. …”

140. The problem was also described by Barrett AJ (as he had by then become) in Kirby v Dental Council of New South Wales (emphasis added): ^[91]

“A conflict of interest of the kind relevant to Dr Kirby's submissions may arise from any of many circumstances ranging from a personal financial interest in the subject matter to the kind of interest alleged here – in substance, the interest that a proponent has in what he or she proposes, being an interest born of the natural human inclination to wish to see one's own position prevail and that invests the proponent with a form of "ownership" for the purposes of the principle that nobody should be a judge in their own cause. In Carver, the interest arose from the decision-maker's membership of the committee and council each of which had formed and expressed concluded (and adverse) views about the quality of the solicitor's conduct. In lsbester, the interest arose from the earlier conduct of the decision-maker, as a council enforcement officer, in prosecuting the dog owner and securing a conviction. Both those cases exhibited the kind of commitment to (or "ownership" of) a particular outcome that had existed in Dickason v Edwards (1910) 10 CLR 243; [1910] HCA 7 where it was held that a particular officer of a friendly society was disqualified from participating in a meeting of the governing body to consider disciplinary charges brought against a member where the charges had been preferred by the officer himself; and that the disqualification applied even though the constitution directed that the particular officer should chair such meetings.”

91. [2018] NSWSC 1869 at [68] (Barrett AJ); affirmed Kirby v Dental Council of NSW [2020] NSWCA 91.

141. In my view, a reasonably minded lay observer might well apprehend that, having already decided that an appellant was guilty beyond reasonable doubt, the same judge might not be able to bring an impartial mind to the question whether he or she was still so satisfied having regard to an additional piece of evidence pointing in the opposite direction. Both prejudgment and interest (in the sense of the natural human inclination to wish to see one's previous position vindicated) are in play. This is not an apprehension that arises from the refusal to state a case, but one which arises from the earlier judgment dismissing the conviction appeal.

142. That is not to say that it is not usually permissible for the District Court judge who disposes of an appeal to deal with the application for a stated case; to the contrary, that is the usual and appropriate course, due to that judge’s familiarity with the case. Generally, that the judge has determined a question of law adversely to the applicant would not give rise to an apprehension that he or she might not bring an impartial mind to determining the questions ordinarily relevant to whether a case should be stated. But if the question were whether, if additional evidence were before the court, the judge would depart from a previously expressed satisfaction that the appellant was guilty beyond reasonable doubt, the position is otherwise.

143. Given the conclusion which I have reached above with respect to jurisdictional error, it is unnecessary to decide whether any objection on grounds of apprehended bias was waived in this case, although, while it is true that Mr Franklin did not raise any such objection prior to the judgment of 12 July 2021, I do not think that it sufficiently appeared that the judge might embark on the exercise he did as to regard any such objection as having been waived. The passing reference to the possibility on 7 July 2021, coupled with an invitation to make submissions (only) as to whether he retained a discretion and the scope of any case to be stated, was not such as to alert even diligent counsel to the prospect that the judge was going to embark on a reconsideration of the question of Mr Franklin’s guilt on the assumption that the Case Note Report was in evidence.

Conclusion

144. My conclusions may be summarised as follows:

145. The earlier remitter from this Court did not command the District Court Judge to state a case, but required the power to do so to be exercised afresh, “according to law”. Insofar as there was any ground upon which the judge might properly decline to do so – other than that the question was not one of law, that having been resolved – it remained open.

146. Exercising the power according to law, the judge was obliged to state a case if the conditions which enlivened it were satisfied, unless to do so would amount to an abuse of process. Those conditions are that the question be one of law, and that it arises in the proceedings, in the sense that it is necessary to the decision. If the District Court judge declines to state a case on the basis that no question of law arising on the appeal has been identified, that is a holding that there is no jurisdiction to refer the question, and if incorrect is jurisdictional error amenable to review notwithstanding District Court Act, s 176.

147. Franklin No 1 resolved that question (d) was one of law. If his Honour regarded the “materiality” of the question as a relevant discretionary consideration, his Honour mistook the function to be performed, which was not discretionary. If the judge’s refusal to state a case is to be understood as determining that the second condition was not satisfied, in that the question did not arise in the relevant sense, his Honour was in error. Whether relevant evidence which might have raised a reasonable doubt as to the appellant’s guilt was wrongly excluded as hearsay is a question which arose in the proceedings.

148. His Honour therefore declined to state a case, either on the incorrect basis that no question of law arising on the appeal had been identified, thus wrongly holding that there was no jurisdiction to refer the question; or wrongly supposing that his function was a discretionary one, when it was his duty to refer the question. In either case, that was jurisdictional error, and is amenable to review.

149. In my judgment, therefore, the District Court judge’s second refusal to state a case on question (d) should be quashed, and the matter remitted to the District Court to state a case.

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Endnotes

Amendments

22 March 2023 - [6] - 2nd line inserted "has" after the word "judge".

[18] - 1st line - changed "Forrest" to "Gibson" and in fn 7.

Decision last updated: 22 March 2023