Sasterawan v Morris
[2008] NSWCA 70
•24 April 2008
NEW SOUTH WALES COURT OF APPEAL
CITATION:
Sasterawan v Morris [2008] NSWCA 70
FILE NUMBER(S):
40496/07
HEARING DATE(S):
5 March 2008
JUDGMENT DATE:
24 April 2008
PARTIES:
Wahyu Sasterawan
Judith Morris an Officer of the Ministry of Transport
A Judge of the District Court of New South Wales
JUDGMENT OF:
Beazley JA Tobias JA McClellan CJ at CL
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 05/22/0149
LOWER COURT JUDICIAL OFFICER:
LOWER COURT DATE OF DECISION:
March 2007
COUNSEL:
Cl: R Killalea
1 Opp: P O'Donnell / G Porter
2 Opp: Submitting
SOLICITORS:
Cl: City Law Pty Ltd, Sydney
1 Opp: Smythe Wozniak, St Marys
2 Opp: Crown Solicitor's Office
CATCHWORDS:
Certiorari – Application pursuant to s 69 Supreme Court Act 1970 – Common law duty to give reasons for decision – Whether failure to give reasons error of law – Whether failure to give reasons jurisdictional error – Whether party could request primary judge to amend or supplement reasons prior to entry of judgment – Whether primary judge failed to find essential element of charge proven – Whether primary judge misstated burden of proof – Whether Court should exercise discretion to grant relief in nature of certiorari – Considerations for exercise of discretion to grant relief – Whether errors of law should have been submitted as questions of law in case stated from District Court pursuant to s 5B Criminal Appeal Act 1912.
LEGISLATION CITED:
Crimes Act 1900 (NSW) s 178BB
Crimes (Appeal and Review) Act 2001 (NSW) s 11, s 20
Criminal Appeal Act 1912 (NSW) s 5B
Supreme Court Act 1970 (NSW) s 46, s 69
Supreme Court Rules (NSW) Pt 51 r 5
CASES CITED:
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Bell v Veigel [2008] NSWCA 36
Campbelltown City Council v Vegan & Ors [2006] NSWCA 284; (2006) 67 NSWLR 372
Craig v The State of South Australia (1995) 184 CLR 163
Donges v Ratcliffe [1975] 1 NSWLR 501
Fordham v Fordyce [2007] NSWCA 129; (2007) 154 LGERA 49
He Kaw Teh v The Queen (1985) 157 CLR 523
Meagher v Stephenson (1993) 30 NSWLR 736
Minister for Immigration and Multicultural and Indigenous Affairs v NBDS [2006] FCA 265
Ramskogler v Director of Public Prosecutions (1995) 82 A Crim R 128
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212
Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW & Anor [2007] NSWCA 128
Sasterawan v Morris [2007] NSWCCA 185
SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463
Varney v Parole Board of Western Australia [2000] WASCA 393; (2000) 23 WAR 187
Wilde v The Queen (1988) 164 CLR 365
TEXTS CITED:
DECISION:
(a) That District Court Proceedings No. 05/22/0149 in the Matter of the Appeal of Wahyu Sasterawan be removed into the Court of Appeal;
(b) That the orders made by Nicholson DCJ in the said proceedings on 7 September 2005 be quashed;
(c) That the said proceedings be remitted to the District Court for rehearing;
(d) That the costs of the hearing before the Local Court and Nicholson DCJ be reserved for determination on the remitted hearing of the appeal;
(e) That the first opponent pay the claimant’s costs of the second amended summons filed in this Court on 5 December 2007.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40496/07
DC 05/22/0149BEAZLEY JA
TOBIAS JA
McCLELLAN CJ at CLThursday 24 April 2008
WAHYU SASTERAWAN v JUDITH MORRIS AN OFFICER OF THE MINISTRY OF TRANSPORT & ANOR
Judgment
BEAZLEY JA: I agree with Tobias JA.
TOBIAS JA: On 10 March 2004 the first opponent, Ms Judith Morris (the Prosecutor) issued a Court Attendance Notice (the Notice) returnable before the Local Court at Parramatta on 21 May 2004. The Notice alleged that on three occasions in 2003 Mr Sasterawan, the claimant, altered a Cabcharge docket with intent to obtain a financial advantage contrary to the provisions of s 178BB of the Crimes Act 1900 (NSW). The charges were heard in the Local Court on 29 March 2005 when the claimant was convicted on each charge and fined $300 in respect of each offence.
On 7 April 2005 the claimant appealed to the District Court against his conviction in the Local Court pursuant to s 11 of the Crimes (Appeal and Review) Act 2001 (NSW) (the Review Act). Nicholson DCJ (the primary judge) dismissed that appeal pursuant to s 20(1)(b) of that Act on 7 September 2005.
The claimant ultimately issued a summons in this Court seeking relief pursuant to ss 69(1) and (3) of the Supreme Court Act 1970 (the SC Act) by way of an order quashing the decision of the primary judge on the grounds of jurisdictional error and error of law appearing on the face of the record. It is that summons with which the Court is now concerned.
The steps taken by the claimant after the decision of the primary judge
Acting for himself and without the benefit of legal advice, on 29 September 2005 the claimant filed in the Court of Appeal a summons for leave to appeal from the decision of the primary judge. That application was misconceived, there being no right of appeal, with or without leave, to this Court from his Honour’s decision under the Review Act. Upon appreciating that error, on 7 December 2005 the claimant filed in this Court a further summons seeking relief in the nature of certiorari pursuant to s 69 of the SC Act (the first s 69 summons). An amended summons was filed on 18 April 2006 (the amended first s 69 summons).
As a consequence of obtaining legal advice the claimant, prior to any hearing of the amended first s 69 summons, requested the primary judge to state a case to the Court of Criminal Appeal pursuant to s 5B(2) of the Criminal Appeal Act 1912 (the CA Act). On 16 March 2007, three questions of law were stated for the opinion of that Court, which ultimately answered them contrary to the submissions of the claimant on 28 June 2007: Sasterawan v Morris [2007] NSWCCA 185.
When the matter came before the Court of Criminal Appeal it was necessary for the claimant to obtain an extension of time within which to submit the questions of law raised by the stated case as s 5B(2) of the CA Act required that such questions of law be submitted not later than 28 days after the end of the appeal proceedings in the District Court.
At this stage, the Court had not disposed of the claimant’s amended first s 69 summons. It is recorded by Basten JA, with whom Grove and Hidden JJ agreed, in his judgment in the Court of Criminal Appeal (at [9]) that at the commencement of oral argument before that Court, counsel for the claimant handed up a Notice of Discontinuance relating to the proceedings in the Court of Appeal. His Honour then dismissed the amended first s 69 summons in exercise of his power as a single judge of appeal under s 46 of the SC Act.
As I have indicated, the Court of Criminal Appeal rejected the submissions of the claimant, with the result that the decision of the primary judge stood.
On 27 July 2007 the claimant filed a further summons in this Court pursuant to s 69 of the SC Act that was first amended on 8 October 2007 and further amended on 5 December 2007 (the second s 69 summons). Although a third amended summons was filed, the claimant relied only on his second amended summons before this Court. It relevantly sought the following orders:
that the time for the filing of the summons be extended to 27 July 2007 pursuant to Pt 51 r 5 of the Supreme Court Rules;
that the judgment of the District Court be sent up to the Court of Appeal to be quashed.
that the matter be remitted to the District Court for rehearing.
However, an extension of time was not required for the filing of the second s 69 summons as such a summons is an originating process in respect of which there is no relevant statutory time limit within which it must be filed. Of course, any question of delay in seeking relief under s 69 will be relevant to the exercise by the Court of its discretion to grant such relief, where grounds have otherwise been demonstrated.
The grounds on which s 69 relief is claimed
It is necessary at this point to observe that the questions of law raised in the stated case and determined by the Court of Criminal Appeal do not overlap with the errors of law that are now alleged in the second s 69 summons. In this respect, the grounds upon which relief is sought under that summons were particularised as follows:
(a) The judgment of the primary judge was attended by jurisdictional error by reason of the fact that he failed to provide sufficient reasons for his decision;
(b) The judgment of the primary judge was attended by error on the face of the record as he determined the proceedings before him without finding that all the prescribed statutory elements of each of the alleged offences were proven.
With respect to the first ground, the claimant relied on the terms of his Honour’s judgment. With respect to the second ground, it will be necessary to set out s 178BB(1) of the Crimes Act, which prescribes the relevant offences with which he was charged in the following terms:
“Whosoever, with intent to obtain for himself or herself or another person any money or valuable thing or any financial advantage of any kind whatsoever, makes or publishes, or concurs in making or publishing, any statement (whether or not in writing) which he or she knows to be false or misleading in a material particular or which is false or misleading in a material particular and is made with reckless disregard as to whether it is true or is false or misleading in a material particular shall be liable to imprisonment for 5 years.”
It was submitted that the primary judge made no finding that the claimant knew the relevant statements in the Cabcharge dockets to be false.
The reasons of the primary judge
In order to appreciate these claims for relief, it is appropriate and necessary to set out the whole of his Honour’s ex tempore judgment which, to say the least, is spare:
“The appellant appeals from three convictions entered by the Local Court at Burwood in respect of three offences that were charged under s 178BB(1) of the Crimes Act of New South Wales.
Those offences require the Crown to prove beyond reasonable doubt three propositions, so far as this case is concerned that each cab charge, that is to say that each document is false in a material particular; that the accused published the document and that he did so with intent to obtain a financial advantage.
Each of the documents nominates the correct driver authority number and the correct ABN number in three of the three charges.
The first in time nominates a fare of one hundred and thirty-six dollars and fifteen cents for a trip from Campbelltown Station to the city. The second nominates a total fare of two hundred and sixty dollars and fifteen cents for a trip described as being from “City-Wollongong to Manly township” and the third nominates a trip fro[m] the city to Chippendale.
The fare for city to Chippendale is said to be seventy dollars. Clearly something there is false in a material particular, whether it be the fare or whether it be the ultimate destination.
The appellant says that he never drove to Wollongong or from Wollongong, so the appearance of the word Wollongong coupled with his name on the document means the document must either in respect of his name or in respect of the destination be false in a material particular.
It does not much matter who wrote the document, it is a question of whether it is false in a material particular. Likewise as I understand the defence case, he never went to Campbelltown Station, but the document asserts that the driver of this vehicle went to Campbelltown. Clearly those two facts cannot live together, so it must be false on the defence case even, in a material particular.
I am satisfied beyond reasonable doubt that each of these documents was published in the sense that it was handed in to the owner of the cabs, Mr Halin and I am satisfied from the material that is before me, that the appellant sought a financial advantage in each case, in part because of the written documents that he has generated, for instance to the managing director of Lindany [Landini Associates, the account name printed on one of the dockets] explaining to him that the ladies were travelling various places: ‘In the entire journey I have been badly abused by two ladies of your personnel, in addition I have been threatened with sexual harassments that I will be reported to the police and at the end of the journey they forcefully took two hundred dollars cash against this docket from me.’ And then the punch line ‘I am seeking your mannerly action in this letter’ meaning of course the return of at least two hundred dollars.
He has given in respect of the first document, three versions which I canvassed in the course of submissions. His evidence was not such as to impress me and this was a case in which in that sense, because of the strength of the Crown case or the Prosecution case, there was this evidential onus on him to raise a reasonable doubt.
It is normally said that there is no burden of proof upon the accused to prove his innocence and that is true, but if he accepts an evidential burden by going into the [witness box], the evidential burden was one of at least raising a doubt in the face of the Crown case. That did not occur and I did not accept his evidence on the fundamental propositions and in all the circumstances I find each of the offences proved.”
The facts alleged by the Prosecutor
The first Cabcharge docket referred to by his Honour was dated 24 June 2003 (the 24 June docket) and recorded a trip from Campbelltown Station to the City at a fare of $136.15. The Prosecutor alleged in the District Court that the claimant published the statements contained in that document knowing them to be false in that no trip was undertaken from Campbelltown Station to the City as stated in the docket, that the true fare was $6.15 which had been altered to $136.15, and that in order to justify that fare the trip was recorded as being from Campbelltown Station to the City.
The claimant’s defence to the charge arising out of the 24 June docket was that first, he was not driving on that date; second, that it was not his writing on the docket; and, third, that although he requested payment on the docket from FBA Health (the account name on the docket), he had done so after his taxi operator had given him the docket and told him that it had not been honoured by Cabcharge. He had then paid the $136.15 to his taxi operator not realising at the time that he had not “paid in” the docket to his operator in the first place. He then requested FBA Health to pay the fare on the face of the docket without providing that docket to that organisation in the mistaken belief that it had been originally presented to him by the passenger(s) in the course of his work as a taxi driver.
Accordingly, so it was submitted, his defence was that he did not publish this particular docket to anyone and that, in any event, his claim for payment of the docket from FBA Health was made under an honest but mistaken belief that he was entitled to the amount of the fare shown on its face.
The second Cabcharge docket was dated 22 July 2003 (the 22 July docket) and recorded a trip from City to Chippendale at a fare of $70. It was alleged that the original fare was $7 but had been altered to $70. In the District Court the claimant asserted that he had not driven on 22 July 2003 but that the job recorded in the docket actually occurred on 19 July 2003. After receipt of the docket he noticed that it contained incorrect entries whereupon he made his own notes on the docket as follows:
“Pax went to Liverpool – handed over me a pre-written cab charge – I did not notice the wrong destination on the docket.”
In other words, his defence was that in fact he drove the passenger from the City to Liverpool – not Chippendale – and that the proper fare was $70 but that the trip details had been inserted by the passenger and at the time he had not noticed that the destination had been written in as Chippendale rather than Liverpool.
Furthermore, the claimant gave evidence in the District Court that he had contacted Cabcharge informing it of the discrepancy on the face of the docket, thus acknowledging that a trip from the City to Chippendale could not have resulted in a fare of $70. However, as I have indicated, the claimant’s defence was that the passenger had inserted the destination of Chippendale whereas in fact the true destination was Liverpool but that the claimant had not noticed this discrepancy at the time that he received the docket from the passenger.
The third Cabcharge docket was dated 27 October 2003 (the 27 October docket) and detailed a trip from the City to Wollongong and return to Manly for a fare of $260. The Prosecutor alleged that the cost of the trip which actually occurred was only $6 but that the fare had been altered to $260 and justified by the trip details recorded in the docket.
In the District Court the claimant asserted that he had not driven on 27 October 2003 but on 21 October 2003, that being the date upon which the docket was presented to him by his passenger and which he submitted to his taxi operator after informing Landini Associates, being the account name printed on the docket, that the docket contained problems. He was nevertheless told by Cabcharge to submit it for payment. The docket was endorsed with the claimant’s handwriting in the following terms:
“2 Female Pax. Bargained this highly discounted offer. I accept. 15 mins waiting time applied in Wollongong township. Docket was pre-written. Pax insert fare and signed for me 3 times as I requested for. Thanks.”
The passenger’s signature does appear three times on the docket.
It would thus appear that the claimant’s defence before his Honour was, with respect to the 24 June docket, that he was unaware of its falsity and that he only presented it for payment to the account holder because he had been requested to do so by his taxi operator in circumstances where he mistakenly believed that he had “paid-in” that docket to Cabcharge for payment. He later denied that he had published the docket at all.
As to the 22 July docket, his defence was that he had failed to notice that the destination, which was not in his handwriting, was incorrect when he was given the docket by the passenger although it was clear that when he presented the docket for payment he was aware of its falsity (at least in relation to the destination recorded on its face) and endorsed the docket accordingly prior to its presentation to Cabcharge for payment.
As to the 27 October docket, his defence was that although he accepted there were problems with the docket which he had endorsed on the docket prior to presentation, nevertheless he had been told by Cabcharge to submit it for payment.
Accordingly, at least with respect to the 22 July and 27 October dockets, it would appear that the claimant accepted that each docket was false to his knowledge although he does not appear to concede that it was false in a material particular. Of course, if the trip details on the 22 July docket were incorrect and those on the 27 October docket were incorrect, then each docket was false in a material particular.
The claimant submitted that the Prosecutor’s case before his Honour was that he had published each Cabcharge docket which was false with respect to the fare entered therein with intent to obtain a financial advantage. He submitted that in taking that approach the Prosecutor appears to have disregarded first, the requirement to prove that the claimant knew the dockets were false in a material particular and, second, his evidence to the effect that he entertained an honest and reasonable belief as to circumstances which made each of his impugned acts innocent. Furthermore, the primary judge had failed to deal with the circumstances relating to each docket separately and to consider and refer to the claimant’s defence with respect to each of them.
Thus, for instance, his Honour apparently understood the defence case with respect to the 24 June docket to be that the claimant never went to Campbelltown Station as he was not driving on that day. However, he found that, as the docket asserts that the driver of the vehicle (whoever it might have been) did do so, the claimant’s defence and the “facts” recorded on the docket could not live together so that the docket must be false in a material particular, even on the defence case. It was submitted that this at least indicated a misunderstanding of the defence case and an inappropriate way to deal with it that was in any event inadequate. Again, with respect to the 22 July docket, his Honour determined that it was false in a material particular as a fare from the City to Chippendale could not be $70 so that, whether the fare or the destination was incorrect, either way the document was false in a material particular. It was submitted that the primary judge had again failed to deal with the claimant’s defence with respect to that docket which in essence he had endorsed upon its face.
As to the 27 October docket, it was submitted that it was not the claimant’s case that he never drove from Wollongong to Manly; in fact, he did, so that again his Honour had misunderstood his defence to the charge based on that docket.
The first ground of challenge – the primary judge’s reasons were so inadequate in circumstances as to amount to jurisdictional error
The claimant submitted first, that the primary judge’s reasons were inadequate and, second, that his failure to provide adequate reasons amounted to jurisdictional error. Reliance was placed upon the following passages from the judgment of McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 277F-G where his Honour said (omitting citations):
“Until recently reasons for judgment were not considered part of the record … However, at least in some cases the failure to give reasons may constitute a failure to exercise jurisdiction: see Donges v Ratcliffe [1975] 1 NSWLR 501 at 511. Speaking generally, neither by way of appeal nor by way of a prerogative writ was there much scope for the common law to raise the question whether the failure by an inferior tribunal to give reasons for its decision was an error of law.”
The present case bears no relationship to what was said in Donges v Ratcliffe to which McHugh JA refers. In any event, his Honour continued (at 280G-281C):
“Moreoever, I agree with the statement by Mahoney JA in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (at 386) that the extent of the duty to give reasons is related ‘to the function to be served by the giving of reasons’. Thus more elaborate reasons are required where legislation gives a right of appeal against a decision than where no appeal lies. In the first class of case, unless the basis of the decision is properly articulated, the losing party may be effectively deprived of his right of appeal.
In a case where a right of appeal is given only in respect of a question of law, different considerations apply from the case where there is a full appeal. An ultimate finding of fact, which is not subject to appeal and which is in no way dependent upon the application of a legal standard, can be treated less elaborately than an issue involving a question of law or mixed fact and law. If no right of appeal is given against findings of fact, a failure to state the basis of even a crucial finding of fact, if it involves no legal standard, will only constitute an error of law if the failure can be characterised as a breach of the principle that justice must be seen to be done. If, for example, the only issue before a court is whether the plaintiff sustained injury by falling over, a simple finding that he fell or sustained injury would be enough, if the decision turned simply on the plaintiff’s credibility. But, if, in addition to the issue of credibility, other matters were relied on as going to the probability or improbability of the plaintiff’s case, such a simple finding would not be enough.”
In applying the principles which he articulated to the facts of the case in Soulemezis, McHugh JA expressed the following caveat (at 281G):
“The issue, therefore, is whether the failure to explain the basis of the crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done. If it was, that is itself an error of law because, as Asprey JA pointed out in Pettitt v Dunkley …, the learned judge ‘has not properly fulfilled the function which the law calls upon a judicial person to exercise’. However, in determining the issue which this appeal raises, great care needs to be taken that dissatisfaction with the finding of fact does not mislead the Court into holding that the learned judge has failed to give his reasons for his finding.”
See also Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 441-444 per Meagher JA.
In the present case there was no right of appeal from the decision of the primary judge, although the claimant did request the judge to submit questions of law to the Court of Criminal Appeal pursuant to s 5B(2) of the CA Act, as mentioned in [6] and [7] above. However, as McHugh JA observed in Soulemezis in the passages to which I have referred, the duty to provide reasons can be rested on the wider basis that justice must not only be done but must be seen to be done. Although there are no ‘formulae’ for determining whether reasons are sufficiently detailed, it is usually sufficient, as Mahoney JA observed in Soulemezis (at 273E), “if by his reasons the judge appraises the parties of the broad outline and constituent facts of the reasoning on which he has acted.”
This requirement does not necessarily mandate lengthy or detailed reasons. The extent of the duty to give reasons is, as McHugh JA observed in Soulemezis (at 280G), “related to the function to be served by the giving of reasons”.
In a case such as the present where there was no right of appeal from the decision of the primary judge, the critical determinant as to whether the primary judge’s reasons were sufficient was whether they were so inadequate as to render the decision unintelligible to the reader and/or whether the absence of an explicit finding by the primary judge in relation to the defences raised by the claimant suggests that those defences were not considered.
In Soulemezis (at 273B) Mahoney JA recognised that the failure to give adequate reasons may, in courts other than superior courts, constitute defects of jurisdiction to which prerogative relief will go. However, his Honour’s observation to that effect related to cases where specific findings of fact are necessary to ground the power of the trial judge to make the order that he has made. The proceedings in the District Court in the present case were not of that character.
The issue was recently adverted to by Basten JA in Campbelltown City Council v Vegan & Ors [2006] NSWCA 284; (2006) 67 NSWLR 372 at 399 [130] where his Honour said:
“There is extensive authority for the proposition that a failure, on the part of a tribunal exercising judicial functions, to give reasons for its decision will constitute an error of law which will permit the decision to be set aside on appeal, where the right of appeal is limited to errors of law: see, eg, Soulemezis (supra). Whether it also constitutes jurisdictional error is not a matter which needs to be determined, in relation to the statutory mandate of the Appeal Panel. It is sufficient for the purposes of relief under s 69 of the Supreme Court Act that an error of law has been identified, which appears on the face of the record. Because the record includes the reasons of the Panel, inadequacy of reasons will inevitably be such an error. As a result, the decision of the Panel may be set aside.”
Like Basten JA, I find it strictly unnecessary in the present case to express a concluded view as to whether, assuming the primary judge’s reasons were inadequate, that inadequacy could amount to an error going to his jurisdiction. I would therefore agree with his Honour that as the reasons of a court now form part of the record (see s 69(4) of the SC Act), where those reasons are on their face inadequate, there is an error of law on the face of the record in respect of which appropriate relief may be granted.
Nevertheless, in a case such as the present, in my opinion the better view is that inadequacy of reasons does not constitute an error going to jurisdiction. Judicial review for jurisdictional error is concerned with whether the decision-maker or inferior court had the authority to decide what it did and whether it properly understood the nature and limits of its jurisdiction in that regard. In relation to inferior courts such as the District Court, the issue of jurisdictional error was authoritatively canvassed in the joint judgment of the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) in Craig v The State of South Australia (1995) 184 CLR 163. Their Honours said (at 177):
“An inferior court 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 in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.
Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.”
Their Honours continued at 179-180 in these terms:
“In contrast, 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. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.”
More recently the High Court considered a submission loosely comparable to that advanced by the claimant in the present case, namely, that failure by a Minister to give reasons for the cancellation of a visa where there is a duty to do so amounts to jurisdictional error. This submission was rejected: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212 where Gleeson CJ, Gummow and Heydon JJ said (at 226 [48]):
“The visa cancellation decision may be reviewed in this court for jurisdictional error. Such error may be found from what is disclosed by reasons provided under s 501G(1)(e). Failure to provide reasons may also be reviewed in this court and compliance by the minister with the statutory duty may be ordered. The reasons then provided may furnish grounds for prohibition under s 75(v) in respect of the visa cancellation decision. But what is not provided for is for a prosecutor, as in this case, to bypass that earlier step utilising mandamus, and to impeach the visa cancellation decision itself for want of discharge of the duty to provide reasons. There is, as was pointed out in argument, a critical distinction between failure to comply with s 501G(1)(e) and using that failure to conclude that the visa cancellation decision is flawed by jurisdictional error.”
It would therefore seem that the failure to give reasons in that case, where there was a statutory duty to do so, may have founded a claim for discretionary relief in the nature of mandamus but could not be reframed as an error going to jurisdiction.
In Minister for Immigration and Multicultural and Indigenous Affairsv NBDS [2006] FCA 265, it was suggested that a decision-maker who was required to furnish reasons had dealt with the evidence in a “vague” way. Allsop J characterised that criticism (at [23]-[24]) as “one of the adequacy of the reasons. This is not jurisdictional error”.
This is not to say that there could not be cases where a failure to give reasons or adequate reasons may constitute jurisdictional error. In Ex partePalme, McHugh J, who reached the same result as the majority, said (at 227 [55]):
“Jurisdiction is the authority to decide. It is not easy to accept the notion that a decision is made without authority because subsequently the decision-maker fails to give reasons for the decision. Nevertheless, it is always possible that a statutory scheme has made the giving of reasons a condition precedent to the validity of a decision. If it has, a decision that does not give reasons will be made without authority.”
This statement is consistent with that of Mahoney JA in Soulemezis referred to in [35] above and with the passages from Craig earlier recorded.
Also in Ex partePalme, Kirby J (in dissent) suggested at 249-250 [126]-[128] that a failure to give reasons where there was a statutory duty to do so indicated a failure of the decision-making process which, at its highest, amounted to a “jurisdictional error in the form of a constructive failure to exercise jurisdiction” which might allow constitutional writ relief. In the present case there was no statutory duty on the primary judge to give reasons.
The nature of the concept of jurisdictional error was recently referred to by Basten JA, with whom Mason P agreed, in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW & Anor [2007] NSWCA 128 where, at [81], his Honour cited the following passage from the judgment of the Full Court of the Federal Court (Hall, Branson and Stone JJ) in SDAV v Minister for Immigration and Multicultural & Indigenous Affairs (2003) 199 ALR 43 at 49 [27]:
“The statement that a particular error is a ‘jurisdictional error’ is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void: Plaintiff S157 [/2002 v The Commonwealth (2003) 211 CLR 476] at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker’s lawful authority or it is not. If it falls within the decision maker’s lawful authority then the error is made ‘within jurisdiction’. If it does not fall within the decision maker’s lawful authority then the error is a ‘jurisdictional error’ and as such it cannot be a valid action or decision.”
In Rockdale Beef at [85] Basten JA referred to the distinction between a decision beyond jurisdiction and a constructive failure to exercise jurisdiction. He said:
“85… The flavour of the distinction can be understood by reference to the explanation given by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR(NSW) 416 at 420:
’I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction … But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply ‘a wrong and inadmissible test’: … or to ‘misconceive its duty’, or ‘not to apply itself to the question which the law prescribes’: The King v War Pensions Entitlement Appeal Tribunal [Ex parte Bott] (1933) 50 CLR 228 at 242-3]; or ‘to misunderstand the nature of the opinion which it is to form’: The King v Connell [(1944) 69 CLR 407 at 432], in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law ….’”
As I stated above in [37], I agree with Basten JA in Vegan that inadequacy of reasons constitutes an error of law on the face of the record which, subject to the exercise of the Court’s discretion, will justify the grant of relief in the nature of certiorari.
In my view the primary judge’s reasons in the present case were inadequate. I acknowledge that his Honour’s judgment was ex tempore and, no doubt, he was under pressure from the considerable workload of the District Court. However, his reasons are disjointed and, although expressing conclusions, do not enlighten the reader as to the reasoning process which led to them.
I accept, as did Mahoney JA in Soulemezis at (271C-D), that it is not necessary for a judge to reason or be seen to reason from one fact to the next. Nevertheless, the conclusion to which he or she comes must be sufficiently explained to enable the unsuccessful party to understand why they have lost.
In my view, his Honour’s reasoning, which extends over only two and a half pages and leads to his conclusions that each of the dockets was published by the claimant, that he sought a financial advantage with respect to each and that each was false in a material particular, did not meet the minimum threshold to satisfy the demands of justice. The resultant inadequacy thus constituted an error of law on the face of the record.
For completeness I should mention the submission of the Prosecutor that any perceived inadequacy in the primary judge’s reasons could, and should, have been subject to a request at the time of judgment for his Honour to supplement the reasons he had given. Reliance was placed on the decision of the Court of Criminal Appeal in Ramskogler v Director of Public Prosecutions (1995) 82 A Crim R 128 where (at 136) Kirby P agreed that it was, in general, true that where a trial judge has failed to give, or has given insufficient reasons for a decision, the dissatisfied party should immediately point this out to the judge lest it be concluded that that party had acquiesced in that failure or insufficiency.
Reference was also made to the statement of Handley JA in the same case (at 141) that given the well known and heavy workloads carried by judges of the District Court, such judges would not wish to waste time giving fuller reasons “if it was made clear that this was not required”.
In the present case the claimant was represented in the District Court by his solicitor. It is clear from the transcript of the exchanges that took place after his Honour delivered his ex tempore reasons that the solicitor was then present and participated in what then occurred with respect to the confirmation of the penalty imposed upon the claimant by the Local Court magistrate and the question of costs. In fact it would appear from that transcript that although his Honour found each of the offences proved, he did not formally order that the claimant’s appeal to the District Court be dismissed. There was therefore the opportunity for the claimant’s solicitor to raise the matter of his Honour’s inadequate reasons before he proceeded to make final orders. Although this is so, it is another matter whether it was permissible for his Honour to have remedied that inadequacy.
A similar argument was advanced recently in this Court in Bell v Veigel [2008] NSWCA 36 at [217]-[221]. The matter was raised in that appeal in circumstances where the successful party invited the losing party to raise the issue of the judge’s allegedly inadequate reasons with him when the proceedings were next listed before him for argument on costs. That invitation was not taken up. In that circumstance it was submitted that the failure to request the judge to remedy the perceived inadequacy of his reasons was relevant to the question of any possible miscarriage stemming from that inadequacy, if found.
Mason P, with whom Giles JA and myself agreed, responded to that argument in the following terms:
“218Mr Veigel submits that nothing would have been lost by raising the matter with the trial judge before he proceeded to make final orders. The judge may have declined to supplement his reasons. He may have been persuaded that he lacked power to do so or that it would be inappropriate in the circumstances. On the other hand he might, it was submitted, have been prepared to go further. At the very least those appellants now complaining about the adequacy of the reasons ought to have this matter brought into account in determining whether a new trial should be ordered, in the interests of justice.
219I find this latest submission attractive. It gains some support from an English Court of Appeal decision which the Court drew to the attention of the parties during argument (Adami v The Ethical Standards Officer [2005] EWCA Civ 1754). There are local cases recognising that a court may, in limited circumstances, amend or supplement reasons prior to entry of judgment in order to correct certain categories of mistake (see eg Smith v Australia and New Zealand Banking Group Ltd, [1999] NSW Conv R 56,904 (55-884), [1996] 7 BPR 15, 069).
220It would in my view be wrong for a judge who has pronounced reasons for final judgment to make a material addition or alteration to those reasons simply because some better idea has come to mind. Sometimes, however, a judge fails to spell out what was in his or her mind referable to a particular argument, simply due to oversight. I see no reason why such an oversight could not be remedied, on application or on the judge’s own motion, in a proper case.”
Of greater significance in the present case is that any changes which the primary judge may have made to his reasons for judgment to cater for inadequacies now alleged would, in my view, have been changes of substance rather than form. Such changes are impermissible: Todorovic v Moussa [2001] NSWCA 419; (2001) 53 NSWLR 463 at 468 [46] and [47]. Accordingly, the Prosecutor’s submission should be rejected.
I would also add that even if it had been open to the claimant’s solicitor to have requested the primary judge to deal expressly with the defences raised by the claimant in his evidence and in submissions and it was permissible for his Honour to have acceded to that request, it does not follow that the solicitor’s failure to do so necessarily resulted in what would otherwise constitute an error of law on the face of the record ceasing to be such. His Honour may have declined to supplement the reasons he had given and he would have been right to do so. Further, the claimant’s solicitor may understandably not have appreciated at the time that the reasons (delivered ex tempore) were inadequate. In Bell v Veigel the trial judge’s reasons had been published in written form after judgment had been reserved so that the complaining party had ample opportunity to consider those reasons and conclude that they were relevantly inadequate.
That is not the present case, where his Honour’s reasons were delivered ex tempore. There is no information before us as to the experience of the claimant’s solicitor in litigating criminal matters. His position can at least be contrasted with that of the experienced senior counsel the subject of discussion in Ramskagler.
In any event, the issue can only be relevant, if at all, to the matters to be considered in the exercise of the Court’s discretion to grant or withhold relief under s 69 of the SC Act. In all the circumstances, I would have given it no weight in that exercise even if it would have been permissible for the primary judge to have acceded to a request to cure the alleged inadequacies of his reasons as delivered.
The second ground of challenge – the primary judge failed to find an essential element of the charges proven
The second ground of error advanced by the claimant was the failure of the primary judge to make a finding, express or implied, that the claimant knew that each of the dockets was false in a material particular. That he failed to do so was conceded by the Prosecutor and correctly so. His Honour’s error is in the following passage from his judgment where, after referring to the fact that the three offences were charged under s 178BB(1) of the Crimes Act, he said:
“Those offences require the Crown to prove beyond reasonable doubt three propositions, so far as this case is concerned that each cab charge, that is to say that each document is false in a material particular; that the accused published the document and that he did so with intent to obtain a financial advantage.”
There were in fact four elements to an offence charged under s 178BB(1) of which his Honour only considered that three had to be proved. He inexplicably (at least on the face of his reasons) omitted the element of knowledge of the accused person of the falsity of the statement published by him.
There was some attempt by the Prosecutor to suggest that the case was conducted before the primary judge on behalf of the claimant upon the basis that his knowledge of the falsity of the statements contained in the three dockets was not in issue. However, if that was so it still behoved the judge to state that that was the case. His failure to do so indicates to me that it was still a matter in issue. Accordingly, his Honour’s statement that there were only three elements of the subject offence which the Prosecutor needed to prove rather than four, constituted a manifest error of law on the face of the record.
The Prosecutor nevertheless submitted that it was unnecessary for the primary judge to deal with, and make formal findings with respect to, the claimant’s knowledge of the falsity of the dockets as he had conducted his appeal on the basis that that element of the offences was not in issue.
In support of this submission the Prosecutor therefore drew the Court’s attention to an exchange between his Honour and the claimant’s solicitor at the commencement of the hearing when the former invited the solicitor to concisely identify the issue or issues upon which it was claimed that the conviction should be overturned. It was submitted that the issues then identified did not include the claimant’s knowledge of the falsity of the dockets.
The appellant’s solicitor had stated to his Honour that his client had no intention to obtain for himself any money when “he uplift (sic) these dockets”. He added that the question was somewhat complicated and although his client had published the dockets, he had only done so with the intention of getting that to which he was entitled. His evidence would be that he honestly believed that he was entitled to the amount stated in the three dockets.
His Honour responded in these terms:
“So, basically the Crown case or the prosecution case is conceded. It’s just a question of so far as what I might call the raised gesture [sic] of, that is the factual matters, is simply a question of what the intent was. Is that what I’m focussing on? In other words there is no dispute that the cheques [sic] were published, there is no dispute that there was – did you tell me there was some alterations?”
The claimant’s solicitor then interrupted his Honour and indicated that it was also asserted by his client that he did not publish the 24 June docket. His Honour then referred to the 22 July docket and asked whether it was agreed that that was published and that it was simply a question of the claimant’s intent, a question which elicited an affirmative answer from his solicitor. With respect to the 27 October docket, his Honour asked whether it was agreed that it was published to which the claimant’s solicitor gave an affirmative answer. His Honour then said it was “a question of intent”.
It is to be noted that nowhere in this exchange was there any concession made on behalf of the claimant that all three dockets were false in a material particular to his knowledge. It is true that his Honour said “So basically the Crown case or prosecutor’s case is conceded” to which the claimant’s solicitor did not affirmatively respond. But it is clear that there was no such concession.
In any event, during closing submissions the following exchange took place between his Honour and counsel for the Prosecutor:
“O’DONNELL: Your Honour the learned solicitor for the claimant in identifying issues which were to be ventilated in this appeal indicated that in relation to the first and the third journey and I am using them in a chronological order, it was to be contended that there was no fraudulent intent associated with the claiming of the monies.
Your Honour the elements of a s 178BB prosecution do not require the prosecution to prove a fraudulent intent and your Honour the proposition comes from CCA appeal decision of Stolpe. …
HIS HONOUR: Are all these under the same section of the Crimes Act.
O’DONNELL: They are. They are identical your Honour.
HIS HONOUR: And what is it? One --
O’DONNELL: 178BB.
HIS HONOUR: ‘Which he or she knows to be false or misleading’ is it – surely to goodness that has got to be proved hasn’t it?
O’DONNELL: Yes your Honour. Certainly has to be proof of knowledge but dishonesty is not an additional element in the way that it is with the 178BA prosecution.
HIS HONOUR: I see. …
O’DONNELL: I don’t believe so your Honour, no but if your Honour --
HIS HONOUR: All right, so what you’ve got to prove is an intent to obtain advantage, publishing, knowing the publication to be false or misleading. All right.”
It is apparent from the foregoing that his Honour clearly considered that the Prosecutor had to prove that the claimant knew that the statement published was false or misleading in a material particular. There is nothing in the conduct of the case before the primary judge which, in my view, relieved his Honour from making a finding with respect to that essential element of the offence charged. As I have said, his failure to do so constituted an error of law on the face of the record. In any event, such conduct would only go to the discretion of the Court to grant relief as it required examination of material outside the confines of the record. It is incapable of negativing what is otherwise an error of law on the face of that record: in this case, his Honour’s reasons.
A third ground of challenge emerges
Towards the end of oral argument the Court drew the claimant’s attention to the two final paragraphs of his Honour’s judgment which, for convenience, I again set out:
“He [the claimant] has given in respect of the first document [the 24 June docket], three versions which I canvassed in the course of submissions. His evidence was not such as to impress me and this was a case in which in that sense, because of the strength of the Crown case of the Prosecution case, there was this evidential onus on him to raise a reasonable doubt.
It is normally said that there is no burden of proof upon the accused to prove his innocence and that is true, but if he accepts an evidential burden by going into the [box], the evidential burden was one of at least raising a doubt in the face of the Crown case. That did not occur and I did not accept his evidence on the fundamental propositions and in all the circumstances I find each of the offences proved.”
It was suggested to counsel during the course of argument on the appeal that those two paragraphs also revealed an error of law on the face of the record in that his Honour had, in effect, reversed the onus of proof. When this was drawn to the attention of the Prosecutor’s counsel, he properly conceded that this was so. The claimant sought leave to amend his summons to raise this ground, which was not opposed, and leave was granted. The ground is clearly made out
Should the Court exercise its discretion to grant relief?
Accepting as I do that the primary judge’s reasons disclose three errors of law on the face of the record, the question arises as to whether the Court should exercise its discretion to grant the claimant relief in the nature of certiorari. In this respect it was not in contest that the grant of such relief is discretionary: Meagher v Stephenson (1993) 30 NSWLR 736 at 738B. The relevant principles that inform the exercise of that discretion are well established although it is acknowledged that there is no closed category of cases in which such relief may be refused on discretionary grounds. The statement in the authorities and the legal texts that relief may be refused if in all the circumstances that seems the proper course is not of itself particularly enlightening.
Of greater assistance is the following passage from the joint judgment of Latham CJ, Rich, Dixon, McTiernan and Webb JJ, in The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 400, where the Court observed that there were well recognised grounds upon which the Court may, in its discretion, withhold the granting of the writ of mandamus:
“For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld.”
The Prosecutor submitted that the Court should exercise its discretion to refuse relief upon the following grounds: first, to grant relief would achieve no useful purpose in that it would be futile as it was inevitable that the claimant would ultimately be convicted of the three offences upon any remitted hearing of his appeal to the District Court; second, that the claimant had been guilty of unwarrantable delay and had acted in bad faith, this ground arising out of his stated case proceedings before the Court of Criminal Appeal; and third, the errors identified by the complainant in the present proceedings could and should have been included in his stated case to the Court of Criminal Appeal. I shall deal with the first ground separately from the second and third grounds, which I will consider together.
(a) To quash the primary judge’s decision and to remit the appeal to the District Court for rehearing would be futile
The Prosecutor submitted that, notwithstanding the primary judge’s error with respect to the onus of proof, the error had no effect on his decision. Whilst his Honour may have misstated the principles relating to the question of onus in what was a criminal prosecution, he never reached the point of applying those incorrect principles as he simply did not accept the evidence of the claimant on what he referred to as “the fundamental propositions”, an expression, I observe, upon which he did not elaborate. Accordingly, it was agreed in principle that if his Honour accepted all or part of the evidence of the claimant and then found that he had not discharged his so-called “evidential burden”, the error would have been of consequence. But, it was submitted that is not what had occurred. The Prosecutor further submitted that the case against the claimant was overwhelming. His stance in 2003 relating to the three dockets differed from the defence he ran in the Local Court, which in turn differed from that upon which he relied in the District Court. It was thus inevitable that upon a rehearing his appeal would be dismissed.
In response the claimant accepted that an order in the nature of a writ of certiorari would not ordinarily be made if the court considered that to be a futile remedy: Varney v Parole Board of Western Australia [2000] WASCA 393; (2000) 23 WAR 187 at 210 [87] per Ipp J. However, in that case the court refused the issue of the writ upon the basis that if the decision of the inferior tribunal was quashed and the matter remitted to it for rehearing, any further decision would be based upon the same materials that were before the tribunal when it made its decision and on the basis of that material, the “overwhelming probabilities” were that it would come to the same decision.
However, if in the present case the Court quashed the District Court’s orders and remitted the appeal for rehearing, there was no limitation upon the evidence that might then be brought before that Court for the purposes of the rehearing. It was submitted that the District Court would hear the case afresh, which could give rise to three possibilities. First, it might be expected, that objection would be taken to substantial parts of a record of interview between the Prosecutor and the claimant on 3 December 2003 which was admitted into evidence before the Local Court and was, therefore, in evidence before the District Court in circumstances where the primary judge had indicated that had he been asked to do so, he would have excised “an awful lot of that interview”, noting that it was a “bullying interview in parts”.
Second, the judge rehearing the appeal may well be persuaded to give diminished weight to the claimant’s oral evidence in the Local Court in circumstances where he was not legally represented and was constrained in presenting his own case as well as in cross-examining the Prosecutor’s witnesses. With regard to those witnesses, I have already observed that a reading of the transcript of their evidence in chief before the Local Court indicates that it was elicited by a series of leading questions. Whether those witnesses would come up to proof if they were required to respond to non-leading questions may well be another matter.
Third, the claimant would raise a defence which was not put before the primary judge by his legal representative (who decried any plea of justification and was therefore not considered by his Honour), of honest and reasonable belief under circumstances which made his impugned acts with respect to all three dockets innocent. Reliance would be placed upon the decision of the High Court in He Kaw Teh v The Queen (1985) 157 CLR 523.
Although not directly in point, some assistance can be obtained from the decision of the High Court in Wilde v The Queen (1988) 164 CLR 365 with respect to the proviso to s 6(1) of the CA Act which empowers the Court of Criminal Appeal to dismiss an appeal if it considers that no substantial miscarriage of justice has actually occurred. In that case Brennan, Dawson and Toohey JJ said (at 371-372):
“As the prosecution case was so strong and the defence was so weak, the authorities which are customarily cited when it is sought to challenge the application of the proviso were insufficient to found an attack upon the judgment of the Court of Criminal Appeal. Those authorities establish that where there has been a departure from the requirements of a properly conducted trial, it cannot be said that there has been no substantial miscarriage of justice if the applicant has thereby lost ‘a chance which was fairly open to him of being acquitted’ to use the phrase of Fullagar J in Mraz v The Queen (1987) or ‘a real chance of acquittal’ to use the phrase of Barwick CJ in Reg. v Storey. Unless it can be said that, had there been no blemish in the trial, an appropriately instructed jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused, the conviction must be set aside: see Driscoll v The Queen; Reg. v Storey; Gallagher v The Queen. Unless that can be said, the accused may have lost a fair chance of acquittal by the failure to afford him the trial to which he was entitled, that is to say, a trial in which the relevant law was correctly explained to the jury and the rules of procedure and evidence were strictly followed: see Mraz v The Queen. The loss of such a chance of acquittal cannot be anything but a substantial miscarriage of justice. The question whether the jury would inevitably have convicted falls to be determined by the Court of Criminal Appeal. It is a question which the Court of Criminal Appeal must answer according to its assessment of the facts of the case.”
Cf. AK V The State of Western Australia [2008] HCA 8 at [59] per Gummow and Hayne JJ.
In my opinion the ground of futility advanced by the Prosecutor should be rejected. In its context, futility means that no useful result could possibly ensue from the granting of relief as the result, were the matter to be determined again, would inevitably be the same. Applying by analogy the test compassed by the proviso to s 6(1) of the CA Act, it cannot be said that if the claimant’s appeal is remitted to the District Court for rehearing, its dismissal will inevitably result so as to render that remittal futile.
Accordingly, although I am prepared to accept for present purposes that what the Prosecutor has referred to as the shifting defences of the claimant will not assist his case in terms of his credibility, nevertheless I am not prepared to find that an appeal properly conducted on his behalf in which evidence is properly led, objections properly taken, and defences properly raised can be said to have no real chance of resulting in a different outcome. Accordingly, I would therefore reject the ground based on futility advanced by the Prosecutor in opposition to the grant of relief.
(b)The claimant has been guilty of unwarrantable delay and has acted in bad faith;
(c)The errors now identified should have been submitted as questions of law in the stated case
Although I have set out the history of this matter earlier in this judgment, it is convenient to refer to the salient facts upon which the Prosecutor relies in support of these considerations for discretion. The primary judge dismissed the claimant’s appeal on 7 September 2005. He then filed a holding summons in this Court on 29 September 2005. When it was realised that he had no right of appeal to this Court, the first s 69 summons was filed on 6 December 2005 and an amended summons on 18 April 2006. Thereafter the claimant was advised to have the primary judge state a case pursuant to s 5B(2) of the CA Act. The Court of Criminal Appeal delivered judgment on the stated case on 28 June 2007 and the second s 69 summons was filed on 27 July 2007. The period of time between 7 September 2005 and 27 July 2007 was in the order of 22 months.
The stated case was argued in the Court of Criminal Appeal on 4 June 2007. As I have already observed in [8] above, at the commencement of the hearing Basten JA invited the claimant’s counsel to consider whether it was appropriate to proceed both in the Court of Criminal Appeal and this Court at the same time. The relevant exchange between his Honour and counsel was as follows:
”BASTEN JA: Are you aware there is a proceeding in the Court of Appeal in relation to some misuse ---
KILLALEA: Yes I am, but an undertaking has been given to my friend that if leave is granted here that anything considered here will be taken out of any matter, and not, of course run in the Court of Appeal.
BASTEN JA: I think it may need to go further than that.
KILLALEA: There are separate issues to be run in the Court of Appeal.
BASTEN JA: If you are aware of it, you may wish to think about whether your client is entitled to have two bites of the cherry.
KILLALEA: It is not two bites of the cherry. If this Court doesn’t give leave we will raise the questions we seek to raise here in the Court of Appeal. If this Court gives leave and hears the questions, we can’t, of course, take those points in the Court of Appeal. But there are other points to be taken.
BASTEN JA: You may wish to think about whether it is appropriate to proceed in two courts at the same time.
MATTER STOOD IN LIST
BASTEN JA: You have an application for leave?
KILLALEA: Yes, pass up notice of discontinuance referred to earlier.
…
BASTEN JA: I note the discontinuance and those proceedings are to be dismissed. …”
When dealing in his reserved judgment with the claimant’s application for an extension of time within which to submit a question of law to the Court of Criminal Appeal pursuant to s 5B(2), Basten JA stated the relevant principles in the following terms (at [8]):
“A second reason for not granting an extension of time was that, when this matter was called for hearing in this Court, there remained on foot the summons seeking relief in the Court of Appeal. There are decisions in the Court of Appeal which suggest that it is an abuse of process to maintain an application for leave to pursue a statutory appeal and to maintain an application for judicial review: see Meagher v Stephenson (1993) 30 NSWLR 736 at 739 and Hill v King (1993) 31 NSWLR 654. On the other hand, concurrent steps may be thought appropriate where there is uncertainty as to which jurisdiction is properly invoked: see Fordham v Fordyce [2007] NSWCA 129 [(2007) 154 LGERA 49]. Under s 5B(2), a request for a case to be stated must relate to a question of law which has arisen in the appeal to the District Court. There may be a nice question in a particular case as to whether there may be a jurisdictional error (such as a want of procedural fairness) which does not involve a question of law arising on the appeal. However, it is a matter for the party seeking to challenge the judgment of the District Court to determine in which jurisdiction to proceed: it will usually be an abuse of process to maintain proceedings in this Court and, contemporaneously, in the Court of Appeal, even though the grounds may not be identical. As Spigelman CJ noted in Swansson v Regina; Henry v Regina [2007] NSWCCA 67 at [45], it is a purpose of the Criminal Appeal Act ‘to ensure that this Court will hear all appeals in which errors of laws are alleged to have occurred in the course of criminal proceedings’.”
The Prosecutor submitted that as a result of the foregoing, two factors emerged. First, that when counsel for the claimant was taxed by Basten JA on the difficulties which lay in his client obtaining an extension of time for the submission of a stated case when there remained on foot the first s 69 summons in the Court of Appeal, counsel did not seek to argue that this was a matter where there was uncertainty as to which jurisdiction could be properly invoked in accordance with the decision of this Court in Fordham v Fordyce. It may be noted, however, that that decision was handed down on 29 May 2007 and there was nothing in the transcript of the argument before the Court of Criminal Appeal on 4 June 2007 (only 6 days later) to indicate that it was brought to counsel’s attention at the time. Nevertheless, the Prosecutor submitted that counsel appeared to have accepted that it was inappropriate to have on foot at the same time concurrent challenges to the primary judge’s decision in different courts.
Second, the exchange between Basten JA and the claimant’s counsel to which reference has been made contained, so it was submitted, an acceptance that the Court of Criminal Appeal proceedings were to be in place of the Court of Appeal proceedings. It was therefore submitted that, as the Court of Criminal Appeal had relied on that acceptance by the claimant’s counsel in granting an extension of time, the claimant should not now be permitted to depart from his position in the Court of Criminal Appeal to pursue yet another appeal in this Court, a fortiori as the first s 69 summons to this Court was dismissed on the claimant’s own application.
The foregoing submissions of the Prosecutor should be dealt with in conjunction with the third ground that the three errors of law on the part of the primary judge which were agitated before this Court should properly have been raised by way of the submission of questions of law in the case stated to the Court of Criminal Appeal pursuant to s 5B(2) of the CA Act.
The present case is not, in my view, one that would attract the principle in Fordham v Fordyce – it is not a case of uncertainty as to which jurisdiction is properly invoked. Rather, for reasons which I shall explain, it is one where the errors of law alleged in the second s 69 summons could not have constituted questions of law capable of being submitted under s 5B(2) of the CA Act to the Court of Criminal Appeal for determination. If this be so, I do not see why it would be an abuse of process for the claimant to have maintained s 69 proceedings before this Court (had the grounds of relief now sought been alleged in the first s 69 summons) and at the same time to have pursued his statutory right to have questions of law submitted to the Court of Criminal Appeal by way of stated case.
In particular, I do not think that the statement in the joint judgment in Meagher v Stephenson (at 739D) that a claim for relief in the nature of certiorari might amount to an abuse of process where a statutory appeal process is being pursued, is apposite in the present case. In Meagher, this Court (Priestley, Handley and Cripps JJA) was minded to discourage claimants in proceedings related to determinations by the Licensing Court circumventing the need to apply for leave in relation to the statutory appeal by joining the statutory appeal with a claim for relief in the nature of certiorari. In those circumstances, the claim for certiorari for non-jurisdictional error on the face of the record would not have provided any relief which was not also available in the statutory appeal: see at 738G-739D.
In the stated case proceedings in the Court of Criminal Appeal in the present case, Basten JA (at [4]) observed that the primary issues sought to be raised on the case stated was first, a challenge to the authority of the Prosecutor to commence proceedings in the Local Court and, second, an alleged error on the part of the District Court in proceeding to deal with the appeal before it by reference to charges which differed from those before the Local Court. When the amended first s 69 summons was filed in the Court of Appeal on 18 April 2006, the first issue was identified as a basis of challenge under s 69 to the primary judge’s decision. Other grounds, his Honour observed, contained in the amended summons could have covered the second matter sought to be raised in the stated case but did not.
The amended first s 69 summons, which was the subject of his Honour’s remarks in the Court of Criminal Appeal, set out the following eight grounds upon which relief was sought and is reproduced below:
“1)Natural Justices has been denied.
2)Both the Local & District Courts has been blackmailed by Ministry of Transport (MOT).
3)The matter should not be brought before the Court by MOT without the involvement or the liaison of Police as the matter for the Police.
4)Error both in facts and the question of point laws.
5)The claimant contends that the Respondent has no authority and/or power reinforced upon it or its delegate which allows to prosecute Taxi-driver under the Section 178BB of Crimes Act 1900.
6)The claimant contends that His Honour the Magistrate James Garbett was in error in allowing the Prosecutor to proceed before him.
7)The claimant contends that his Honour the Judge Nicholson SC was in error in all the circumstances in convicting the appellant.
8)The claimant contends that his Honour the Judge Nicholson SC was in error in accepting that the respondent was entitled to prosecute an action under the Section 178BB of Crimes Act 1900.”
Although Ground 4 asserted error in relation to points of law, those errors were not articulated as they now are. The summons was prepared by the claimant himself, which no doubt explains the problems which it gave rise to when the matter came before the Court of Criminal Appeal in relation to questions of law submitted for determination in the stated case which found some resonance in Grounds 5, 6 and 8 of the first s 69 summons.
The question which therefore arises is whether the three errors of law now relied upon could and should have been the subject of the stated case. It was submitted that the claimant could have simply added the following three questions to his stated case in the Court of Criminal Appeal:
Question 1 – did I err in failing to give sufficient reasons when determining the appellant’s matter at Parramatta District Court on 7 September 2005?
Question 2 - did I err in determining that the [Prosecutor] needed to prove only three essential elements in a prosecution under s 178BB of the Crimes Act 1900?
Question 3 – did I misstate the onus and standard of proof applicable in this appeal?
It was submitted that had the stated case been framed in this way the primary judge could simply have finalised the claimant’s appeal in accordance with any decision of the Court of Criminal Appeal on these questions of law.
Although s 5B(2) authorises a party to appeal proceedings in the District Court to request a question of law to be submitted to the Court of Criminal Appeal for determination even though the appeal proceedings have been disposed of (as in this case), nevertheless the only questions of law which may be so submitted are those which arose on the appeal itself. This is because any question of law which may be submitted as a consequence of s 5B(2) can only be submitted under s 5B(1) which provides for a judge of the District Court to submit “any question of law arising on any appeal” to the Court of Criminal Appeal. Further, s 5B(2) itself refers to a question of law being submitted under subsection (1) to the Court of Criminal Appeal for determination,
“even though the appeal proceedings during which the question arose have been disposed of” (emphasis added).
The same point was made by Basten JA in the Court of Criminal Appeal at [24] where he observed that there was serious doubt as to whether any question as to the jurisdiction of either the Local or District Courts “arose” in the appeal proceedings before the District Court. This was because neither court had been required to rule on the challenge to jurisdiction which was sought to be raised in the stated case.
It seems to me, therefore, that the only questions of law that may be submitted under the combined operation of ss 5B(1) and (2) for determination by the Court of Criminal Appeal are those which arise anterior to the disposal of the appeal proceedings. Questions of law that arise as a consequence of that disposal are not, in my view, amenable to the stated case procedure.
Each of the three questions which it is now asserted could and, therefore, should have been raised in the stated case arise only out of the reasons provided by the primary judge to support his decision to dismiss the appeal. Thus, whether he erred in failing to give sufficient and adequate reasons when determining the appeal was not a question of law that arose on the appeal or during the appeal proceedings. In my view the same observation applies to the Prosecutor’s Questions 2 and 3. The erroneous statement of the primary judge as to the elements of the offence, which were required to be proved by the Prosecutor beyond reasonable doubt, was one that arose out of his reasons and did not, of itself, arise during the course of the proceedings. Equally, his Honour’s misstatement of the onus and standard of proof applicable to the appeal was not a question of law which arose on or during the appeal but only as a consequence of his Honour’s erroneous expression of his reasoning process. In other words up until the primary judge delivered his reasons, no question of law or other controversy arose on or during the appeal with respect to either the elements of the relevant offence which the Prosecution was required to prove or as to whether any evidentiary onus lay upon the claimant.
It therefore follows in my view that the claimant was not able to submit the three questions of law now advanced on the second s 69 summons as part of the stated case to the Court of Criminal Appeal. This being so, those questions could only be determined on a s 69 summons filed in this Court. So much was foreshadowed by counsel for the claimant before Basten JA, where he denied his Honour’s suggestion that he was seeking to have “two bites of the cherry”.
In my view the claimant was therefore entitled to pursue the questions in the stated case which, had they been answered in his favour, would have resulted in his acquittal on the charges preferred against him. Having failed to achieve that outcome, he was entitled, in the particular circumstances of this case, to pursue by way of the second s 69 summons the relief which he now seeks with respect to errors of law on the face of the record. I do not detect any unwarrantable delay, let alone bad faith, in the claimant having taken the course he did. The second and third grounds relied on by the Prosecutor in resisting the relief sought by the claimant should, therefore, be rejected.
Conclusion
The claimant having established errors of law by the primary judge on the face of the record, the Court should exercise its discretion and grant him the relief he has sought. I would therefore propose the following orders:
(a) That District Court Proceedings No. 05/22/0149 in the Matter of the Appeal of Wahyu Sasterawan be removed into the Court of Appeal;
(b) That the orders made by Nicholson DCJ in the said proceedings on 7 September 2005 be quashed;
(c) That the said proceedings be remitted to the District Court for rehearing;
(d) That the costs of the hearing before the Local Court and Nicholson DCJ be reserved for determination on the remitted hearing of the appeal;
(e) That the first opponent pay the claimant’s costs of the second amended summons filed in this Court on 5 December 2007.
McCLELLAN CJ at CL: I agree with Tobias JA.
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LAST UPDATED:
24 April 2008
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