R v Greenwood

[2014] NSWDC 50

District Court

New South Wales

Medium Neutral Citation:	R v Greenwood [2014] NSWDC 50
Hearing dates:	14 March 2014
Decision date:	14 March 2014
Before:	Berman SC DCJ
Decision:	Decline to state a case under s 5B of the Criminal Appeal Act
Catchwords:	CRIMINAL LAW - Judgment - Application to state a case after unsuccessful conviction appeal - Question of law or question of fact
Legislation Cited:	Criminal Appeal Act Crimes Act Evidence Act
Cases Cited:	Cassell v DPP [2000] NSWCA 226 Elias v DPP [2012] NSWCA 302 Hammond v R [2013] NSWCCA 93 Robinson v Woolworhts Kimited [2005] NSWCCA 302
Category:	Principal judgment
Parties:	The Crown Michael Francis Greenwood
Representation:	Counsel: Mr C Miralis - Appellant Solicitors: Director of Public Prosecutions - Respondent
File Number(s):	2012/402416

Judgment

1. HIS HONOUR: In June last year, Michael Francis Greenwood was convicted of an offence of assault occasioning actual bodily harm in Waverley Local Court. He appealed against that conviction. He came before me on 1 October 2012. I dismissed his appeal and confirmed his conviction. I have now been asked to state a case for the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912.

1. It is important to note that questions that I can state are limited to those of law. The applicant has submitted what he says are three questions of law. The respondent says that they are not questions of law at all but are merely questions of fact. The questions of law which I am now asked to submit are as follows: One, for the subject offence being an offence contrary to s 59(1) of the Crimes Act 1900, can these facts support a finding beyond reasonable doubt that Mr Greenwood was not acting in self defence at the time of the assault in accordance with s 418 of the Crimes Act 1900?; Two, can these facts support a finding that Mr Greenwood was not acting in self defence in accordance with ss 418(1), (2), (2a) and (2b) of the Crimes Act 1900?; Three, on the findings of fact, was the conduct of Mr Greenwood capable of constituting self defence for the purposes of s 418(1), (2), (2a) and (2b) of the Crimes Act 1900?

1. It is important to note that it is not suggested that I have made any misstatement of the law in my judgment. Instead, the applicant says that it is only by looking at the facts that I have found that the error can be identified, that is that I have made a latent error. The suggestion is, I gather, that the facts are such that it would only be an unreasonable outcome if, given those facts, the judicial officer did not find that the prosecution had failed to negate self defence beyond reasonable doubt.

1. The stated case procedure is of some, by now, antiquity. It has undergone changes from time to time. For example, it used to be that there was an unseemly rush to interrupt a judge in delivering judgment so that the requested stated case could be made before final orders were pronounced. Fortunately the Criminal Appeal Act has now been amended so that is no longer necessary.

1. In this case, an application was made to me in chambers. I have ensured that the applicant and the respondent corresponded in an effort to identify common ground as to the case to be stated. When it became apparent that there was a fundamental dispute between the parties as to whether what I had been asked to state is properly a question of law, I listed the matter for hearing in open Court for determination of that issue. It seems to me best that I resolve these matters after hearing oral argument rather than simply deciding such matters in chambers. It is consistent with the procedure I adopted in a case that later went to the Court of Criminal Appeal in which that Court held that I had made an error of law, Robinson v Woolworths Limited [2005] NSWCCA 426. I will return to that case in a little while.

1. There is of course an obligation for me to state a case if I am satisfied that questions of law properly arise. A recent example of that obligation is to be found in Elias v DPP [2012] NSWCA 302. In some ways the easiest thing to do for a judge when an application for a stated case is presented to him or her is to simply state the case, but I am familiar enough with the authorities to know that there are many cases in which judges have been criticised for simply acceding too willingly to request that a case be stated.

1. One fundamental needs to be observed. No appeal lies from my decision on a mere question of fact. A stated case procedure is not intended to provide a means of challenging the ultimate determination made by the judge because there is no right of appeal to the Court of Criminal Appeal from that determination. There is, for example, no right of appeal on the basis that my decision was unsafe, unsatisfactory or unreasonable. A question of law must first be stated.

1. What I was satisfied of was that the prosecution had negatived self defence beyond reasonable doubt in that it had proved there was no reasonable possibility that Mr Greenwood believed that his conduct was necessary to defend himself and also proved that his conduct was not a reasonable response to the circumstances as he saw them.

1. What I did in making those findings was engage in a fact finding exercise. To adopt the words of Cassell v DPP [2000] NSWCA 226, I was satisfied that self defence was negated beyond reasonable doubt. The questions proposed by Mr Miralis for the applicant go not to a question of law but to a question of fact which is not open to be raised under s 5B of the Criminal Appeal Act.

1. The written submissions of the respondent refer to other cases which have stated the principles which I have outlined above. It is not necessary for me to repeat the contents of those written submissions beyond noting that they set out a number of authorities which emphasise that appeals against findings of fact are not encompassed by the stated case procedure.

1. In response to those authorities, Mr Miralis refers to two particular cases, Robinson v Woolworths which I have mentioned earlier and Hammond v R [2013] NSWCCA 93. Robinson v Woolworths is illustrative of the point that I have been making. There was no dispute about the facts in that case. There was no dispute that at the encouragement of the prosecutor, two children had purchased cigarettes in circumstances where it was an apparent breach of the law to sell them. The question of law which arose was whether that conduct was capable of constituting improper conduct. What is improper conduct was to be identified under s 138 of the Evidence Act so it can be immediately seen that what was stated in that case was a question of law. That is quite different to the present case where I resolved facts which necessarily meant that self defence had been negated.

1. In the other case, Hammond v R a similar issue arose. The issue in that case was not what had been done in terms of the physical actions but whether a seat in a police station had been damaged. The question as to what amounted to damage for the purposes of s 195(1A) of the Crimes Act was a question of law.

1. It is always somewhat uncomfortable to be placed in the position of having to determine whether an appeal can be brought against a decision that I have made but my obligation is clear. For the reasons above, I decline to state a case under s 5B of the Criminal Appeal Act.

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Decision last updated: 12 May 2014