Pursuant to s 5B(2) of the Criminal Appeal Act 1912 (NSW), under what circumstances must a District Court state a case to the Criminal Court of Appeal for determination?
Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83 (19 May 2021)
Intro:-
The applicant applied to the District Court judge for the primary Judge to state a case to Court of Criminal Appeal pursuant to s 5B(2) of the Criminal Appeal Act 1912 (NSW). That section says that a party to a District Court appeal may request the judge to submit any question of law arising on that appeal to the Court of Criminal Appeal. The applicant referred to a list of 10 matters, all of which he submitted were questions of law. The District Court judge declined to state the case, predominantly because the questions posed were not questions of law or because they attempted to exercise a general right of appeal. The applicant sought judicial review of that decision in this Court
Facts:-
Craig Andrew Franklin seeks judicial review of a decision of his Honour Judge Bourke SC on 4 September 2020 by which his Honour declined to state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW).
The application to state a case arose at the conclusion of Mr Franklin’s District Court appeal against his conviction in the Local Court for an offence of assault. Judge Bourke dismissed the conviction appeal. No appeal lies for such a decision, and the scope for review is limited. Mr Franklin wrote to Judge Bourke on 21 August 2020 and requested that his Honour state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act. The applicant submitted there were:“...serious questions of law that remain unanswered in my case. I believe it is in the interest[s] of justice that those questions are determined by a panel of judges at the highest level in this State”. The applicant listed 10 matters, all of which he submitted were questions of law.
Judge Bourke listed the matter on 4 September 2020 and delivered a judgment that same day. His Honour refused the application, predominately on the basis that none of the questions posed were questions of law or because they attempted to exercise a general right of appeal. The summons before this Court, in essence, seeks review of the decision of Judge Bourke declining to state a case to the Court of Criminal Appeal. However, the nature of that review is confined.
Mr Franklin relies on the Court’s jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). He submits that Judge Bourke fell into jurisdictional error and that his Honour made an error of law on the face of the record.
Issue:-
Did the District Court fall into jurisdictional error in failing to state a case to the Court of Criminal Appeal?
Analysis:-
The applicant’s proposed questions of law
With one exception, each of the purported questions of law posed by the applicant is readily disposed of, and Judge Bourke was correct in declining to submit those questions as part of a stated case to the Court of Criminal Appeal.
Question (d): Was a business record of NSW Community Correction officer Ms Deborah Buckley admissible?
This brings me to the exception. It concerns the question of whether question (d) amounted to a question of law that should have been stated to the Court of Criminal Appeal and whether Judge Bourke’s failure to state a case based on that question is amenable to judicial review on the grounds of jurisdictional error. Question (d) was in the following terms:
“Was a business record of NSW Community Corrections officer Ms Deborah Buckley admissible?”
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.The question of whether the note was admissible was a question of law (not a question of mixed fact and law) and did not seek to convert the stated case procedure into a general right of appeal:
The failure of the District Court judge to recognise that question (d) was a question of law alone, and 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.
Decision:-
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.
(3) Otherwise, refuse the relief sought by the plaintiff in relation to the remaining nine (9) questions.
(4) No order as to costs, to the intent that each party bears its own costs.
