Where questions sought to be referred by the applicant to the Court of Criminal Appeal were plainly not pure “questions of law”, was the jurisdictional error by the primary judge in finding that she was functus officio material?

Gibson v Director of Public Prosecutions (NSW) (No 2) [2021] NSWCA 218 (14 September 2021)

Intro:-

Mr Scott Gibson (the Applicant) was convicted in the Local Court of New South Wales of eight offences contrary to ss 13(1) and 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). On appeal, a District Court judge quashed the conviction for 5 charges, but re-sentenced the Applicant in respect of 3 charges and imposed a conditional release order for a term of 6 months.

Following this, the Applicant sought to have some 12 purported “questions of law” referred to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). The District Court judge’s refusal to refer those questions was relayed to the Applicant through an email from the Registrar of the Local Court at Queanbeyan who advised that the judge “has advised that she is functus officio (that is, a valid result has been imposed after a lawful hearing) and she cannot reopen the case” and that, accordingly, her Honour had “declined to state a case in this matter”.

The “Questions of Law” as formulated by the Applicant for referral to the Court of Criminal Appeal were as follows:-

“1. Did the police pervert the course of justice by refusing on multiple occasions to take reports o[f] domestic violence and other offences by the PINOP, refusing to act as required by their own policy and procedures relating to domestic violence and their legal duty and by using harassment, threats and intimidation to cause additional mental health issues in a victim of domestic violence on behalf of the PINOP with whom they had a pre existing relationship?

2. Was the AVO taken by the accused (without admission) under duress?

3. Could the accused understand the potential ramifications of taking an AVO without admission given the state of his mental health and the need to escape the effects of complex PTSD and traumatic reminiscence being triggered by the police?

4. Can the court proceed to conviction and do the charges have any basis in these circumstances when there is unheard evidence that the AVO statement was false and that the accused was not in a state of mental health to argue against the AVO at the time it was taken?

5. Given that the effects of domestic abuse, childhood abuse, trauma and complex PTSD are recognised by the state, could the accused be said to have the capacity to recognise the nature and quality of the acts in the 3 sequences of which they remain convicted were breach[e]s of the law? Eg seq 1 putting hand on his heart in a gentle gesture of conciliation was deemed to be breaching the AVO.

6. In failing to provide the support services promised to the victims of domestic and childhood abuse by the state and instead seeking to prosecute the accused, did the police criminalise the individual and pervert the course of justice extending to the planting of court appointed lawyers and leaving the accused self represented whilst battling with the trauma and mental health issues and exposure to their abuser against which victims are meant to be protected in a court and thereby denying the accused his right to a fair trial?

7. Does not the law require there to be some threat of danger to a PINOP for a[n] AVO to be issued or domestic violence laws to be invoked against an accused especially in a case where the PINOP has shown herself to be a danger on multiple occasions and where the accused has passively sat through violence and abuse?

8. Seq 1: does the act of putting one[’]s hand on one[']s heart actually contravene the AVO? Is it to ‘approach or contact’ the PINOP? And if this was a breach – given the mental health issues related to the case and the effects of domestic and childhood abuse acknowledge[d] by the state could the accused be reasonabl[y] said to understand this as a breach of the law and is the requirement of Mens R[ea] met?

9. Seq 7: given that the PINOP was driving her car and turning around to film the accused whilst heading into a sharp bend was it not an act of necessity that the accused signal all is ok to the PINOP so as to act on behalf of the public and the greater good of the community to avoid an accident? Is it not also a factor for the court to consider that the PINOP was breaking the law and again given freedom from prosecution (there is video evidence of this which has been hidden by police). And if this was a breach of the AVO – given the mental health issues related to the case and the effects of domestic and childhood abuse acknowledge[d] by the state, could the accused be reasonably said to understand this as a breach of the law in a moment of concern for the wellbeing of others and is the requirement of Mens R[ea] met?

10. Seq 10: In sending a gentle and caring email offering his business to the PINOP so the accused could leave for overseas so as to escape harassment and intimidation and heal from the abuse and mental health issues that were being constantly triggered by police, did the accused have the mental capacity to understand this as a breach of the law and was there an intent (mens r[ea]) to breach the law?

11. Given that the integrity of the witness (PINOP) has been called into question by the fact she has lied which is evident through the dismissal of several sequences brought as charges against the accused, and that there is unheard evidence of the AVO statement being false and irrationality in her statements to police; does this not bring into question the whole case, the validity of the AVO and require that the question of whether the PINOP was acting to protect herself from prosecution (in conjunction with the police) and out of vindictiveness be looked at by the court?

12. Is it within the powers of police, the court and the crown to use the laws designed to protect victims of domestic violence to act against and convict a victim of domestic violence?”

The Applicant filed a Summons in this Court, seeking judicial review of the decision not to refer the “questions of law” to the Court of Criminal Appeal.

Issues:-

1) Whether the decision to refuse to refer the questions involved jurisdictional error?

2) Whether relief should be withheld even if there were jurisdictional error?

Was there a decision at all?

No formal order was made dismissing or refusing the Applicant’s request to refer questions to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). That section provides that:

“5B Case stated from District Court

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

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

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

Nor were any reasons published by Baly DCJ for declining the Applicant’s request. That may have been because of the somewhat irregular way in which the request was made, as has been recounted above, namely through the Registrar of the Queanbeyan Local Court.

Ms Gleeson, who appeared for the Director before this Court, submitted that an inference could be drawn that the judge did make a decision to decline to submit questions of law to the Court of Criminal Appeal and that her Honour’s reasons for this were contained in the Registrar’s email of 26 November 2020, reproduced at [7] above.

Ms Gleeson further submitted and indeed conceded that those “reasons”, insofar as they volunteered that the judge considered herself to be functus officio, involved a jurisdictional error, namely a failure to exercise jurisdiction or a mistake as to the extent of jurisdiction.

The indirect and informal communication of “reasons”, being relayed in the manner they were, namely in the form of an email from the Registrar of the Queanbeyan Local Court, was not, with respect to her Honour, entirely satisfactory. True it is that the “application” to her Honour lacked formality and regularity. But even allowing for the irregular way in which the application was made, its formal disposition was at the very least desirable for a number of reasons.

The application for judicial review in the present case was conducted on the basis that the relevant decision was one made by Baly DCJ, that her Honour declined to refer questions to the Court of Criminal Appeal, and that the decision was made on 26 November 2020 for the reasons stated in the Registrar’s email, as reproduced at [7] above. It is sufficient to consider the application for judicial review on that footing.

What was the decision and did it involve jurisdictional error?

In Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177; [1995] HCA 58, it was said that 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... 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”.

See also Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72].

If the proper understanding of the “reasons”, as relayed to the Applicant by the Registrar, was that her Honour could not even entertain his “request”, to use the language of s 5B(2) of the Criminal Appeal Act, to refer questions to the Court of Criminal Appeal, because she had no power to do so, having already disposed of the appeal from the Local Court on 28 October 2020 and was functus officio in that sense, that would have been a jurisdictional error. This is because of the words “even though the appeal proceedings during which the question arose have been disposed of” in s 5B(2) of the Criminal Appeal Act, which make it plain that a request may be submitted to the District Court and acceded to after disposal of the appeal. Her Honour was not functus officio.

Reading the Registrar’s email and her Honour’s reasons as contained in that email as a whole, however, it is not absolutely clear that the basis of the primary judge’s reasons was that her Honour was functus officio. In this regard, the Director may have been too generous in the concession made as to jurisdictional error (see [17] above). This is so for two reasons.

First, the explanation in the first paragraph of the email to the effect that a judge has a discretion whether or not to refer questions to the Court of Criminal Appeal, and that that discretion need not be exercised favourably in the circumstances referred to, would have been irrelevant and otiose if the judge considered that she lacked power to refer the questions sought to be referred because she was functus officio. Secondly, the language of the last paragraph, namely that the judge had “declined to state a case in this matter” is consistent with her Honour considering whether or not to state a case and declining, in the exercise of her discretion, to do so. This language is not apt to convey a conclusion that a judge has no power either to accede to or to decline a request because he or she is functus officio.

Ultimately, in my view it is not necessary to decide whether the Director’s concession was correctly made. If it was and if jurisdictional error is established, relief should nevertheless be withheld because the questions sought to be referred to the Court of Criminal Appeal were plainly not “questions of law”, as that expression has been considered in the context of the Criminal Appeal Act in Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 (Orr). As Bathurst CJ and I observed at [109]:

“Those questions of law should be, in our opinion, what are sometimes described as ‘pure questions of law’. They should not draw the Court of Criminal Appeal into questions of fact. Moreover, they must be questions whose character as a question of law can be recognised on the face of the question, and not depend upon the answer given to the question. This does not include a question which may ultimately disclose an error of law depending on an analysis of the facts but where this cannot be known without scrutiny of the facts.”

The questions propounded by the Applicant and sought to be referred to the Court of Criminal Appeal as set out above do not meet this description. They were for the most part either questions of fact, or questions of mixed fact and law. Proposed questions 6 and 12 reflect a grievance that the Applicant no doubt sincerely felt, but they are not questions of law that properly arose in the course of the proceedings below.

Any jurisdictional error may thus be regarded as “immaterial”: see MZAPC v Minister for Immigration and Border Protection (2021) 95 ALJR 441; [2021] HCA 17 at [27]- [39]; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34; and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3.

Alternatively, relief should be withheld in the exercise of the Court’s discretion because of its lack of demonstrated utility: see Charara v The Director of Public Prosecutions (2001) 120 A Crim R 225; [2001] NSWCA 140 at [62]- [63]; Reimers v Health Care Complaints Commission [2012] NSWCA 317 at [6]- [8]; and Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253. That is to say, were the decision quashed and the matter remitted for determination in accordance with law, the form of the questions propounded by the Applicant and sought to be referred was such that the Court could be confident that they would not be referred because they were not in truth questions of law.

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

To this extent, I have reservations as to the correctness of an aspect of the recent decision in Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83, where it was held that the District Court judge committed jurisdictional error by not referring a question of law to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act on the basis that he considered it was a question of mixed fact and law. His Honour may or may not have erred in his characterisation of the question sought to be referred, but it is strongly to be doubted that this was a “jurisdictional error”. An error of law made within jurisdiction is not a jurisdictional error: see, for example, Public Service Association and Professional Officers' Association Amalgamated Union of New South Wales v State of New South Wales (2014) 242 IR 338; [2014] NSWCA 116; Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd (No 2) (2016) 95 NSWLR 157; [2016] NSWCA 379; see also Wang v Farkas (2014) 85 NSWLR 390; [2014] NSWCA 29, where Basten JA (with whom Bathurst CJ and Beazley P agreed) observed that:

“If every error of law constituted jurisdictional error, particularly in the case of a court such as the District Court, judicial review would transmogrify into an appeal for error of law, without regard to the requirement that certiorari is available only for error of law on the face of the record , and, in the case of a privative clause, only where an error is properly characterised as jurisdictional.”

Furthermore, s 5B of the Criminal Appeal Act operates to permit questions of law to be referred. It does not exist for the purpose of the correction of errors of law made by a District Court judge hearing an appeal from the Local Court: see Orr at [105]. As Basten JA said in Forrest v Director of Public Prosecutions (NSW) (2020) 286 A Crim R 191; [2020] NSWCA 162:-

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

The only qualification to this passage is, of course, where a District Court judge exercises the jurisdiction conferred by s 5B of the Criminal Appeal Act to refer questions of law to the Court of Criminal Appeal.

Conclusion:-

Mr Gibson’s application should be dismissed with costs.