Jankovic v Director of Public Prosecutions

1. [1]

   MACFARLAN JA: I agree with Barrett AJA.

2. [2]

   WHITE JA: The circumstances giving rise to this application for judicial review of orders of the District Court are set out in the reasons for judgment of Barrett AJA.

3. [3]

   Three issues arise on the application. They are:

4. [4]

   For the reasons given by Barrett AJA there are powerful reasons from which it might be concluded that the judge erred in finding that the police officer was satisfied that the arrest was reasonably necessary for any one or more of the reasons stated in s 99(1)(b) of LEPRA. I prefer not to express a concluded view on that question. If the judge did err, the error was not jurisdictional error. I have concluded that the judge’s refusal to state a case to the Court of Criminal Appeal under s 5B was erroneous and was an error as to the District Court’s jurisdiction so that the refusal should be set aside. Accordingly, in my view it should be a matter for the Court of Criminal Appeal, and not this Court, to determine the lawfulness of the arrest.

5. [5]

   In saying that, I am not to be taken as disagreeing with the reasons of Barrett AJA on the first issue. I would however add the following observations.

6. [6]

   Prior to its amendment in 2013, [1] s 99 of the LEPRA provided that a police officer must not arrest a person without warrant for the purpose of taking proceedings for an offence against the person, unless the police officer suspected on reasonable grounds that it was necessary to arrest the person to achieve one or more of the specified purposes in s 99(3). Amendments made in 2013 changed the requirement that the police officer have reasonable grounds for suspecting that the arrest was necessary for one or more of the specified purposes, to a requirement that the police officer be satisfied that the arrest was reasonably necessary for one or more of the specified purposes. The element that the police officer’s suspicion be reasonable was removed. The element that the police officer be satisfied that the arrest was necessary was diluted (State of New South Wales v Robinson (2016) 93 NSWLR 280; [2016] NSWCA 334 at [42]-[43]).

7. [7]

   If a police officer is satisfied that an arrest is reasonably necessary for one of the stated purposes, the arrest is not unlawful merely because the police officer’s satisfaction of that matter is not reasonable. The question rather is as to the police officer’s state of mind as to whether the arrest is reasonably necessary for one of the stated purposes. In State of New South Wales v Randall [2017] NSWCA 88 Basten JA said at [13]:

8. [8]

   There may be many cases in which a police officer could be satisfied that an arrest was reasonably necessary for one of the stated purposes without the officer’s having consciously to weigh all alternatives. A violent assault could be such a case. In Pratten v State of New South Wales [2019] NSWCA 124 McCallum JA said of the circumstances in that case (at [23]) that the process of reaching a decision to effect an arrest rather than taking some other course required little explanation in the circumstances.

9. [9]

   Nonetheless, as Barrett AJA explains, it is not enough that the police officer effecting the arrest without warrant is satisfied that the arrest is appropriate for one of the purposes specified in s 99(1)(b). It must be reasonably necessary for one of those purposes and reasonable necessity calls for the consideration of alternatives, except perhaps if the case is so clear that no alternative could reasonably be available.

10. [10]

    Barrett AJA’s reasons for his conclusion (with which Macfarlan JA agrees) that the police officer did not consider alternatives to arrest are powerful and could lead to a conclusion that the police officer’s state of mind was not that he was satisfied that the arrest was reasonably necessary. But it may be arguable that the police officer was satisfied, although not reasonably satisfied, that the arrest was reasonably necessary for one of the stated purposes.

11. [11]

    However this may be, if it be accepted that the primary judge erred because there was no evidence that the police officer was justified in arresting the applicant, it would not follow that that would be jurisdictional error.

12. [12]

    Section 18 of the Crimes (Appeal and Review) Act 2001 (NSW) relevantly provides:

13. [13]

    The purpose of s 18 is to identify on what materials the District Court is to hear the appeal (AG v Director of Public Prosecutions (NSW) [2015] NSWCA 218 at [97]-[100] per Simpson JA).

14. [14]

    The District Court has jurisdiction to decide whether on the basis of the evidence given in the original Local Court proceedings the appellant’s conviction should be upheld or set aside. If there were no evidence before the Local Court that would sustain the conviction, the District Court, if correctly exercising its jurisdiction, would set aside the conviction. It does not follow that if it erred in its assessment of the effect of the evidence in the Local Court it would have no jurisdiction to dismiss the appeal.

15. [15]

    In Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 Gleeson JA (with whom Ward JA and Johnson J agreed) said, in relation to a “no evidence” challenge:

16. [16]

    In Vok v Director of Public Prosecutions (NSW) [2019] NSWCA 242 Meagher JA (with whom Payne JA and I agreed) said of a contention that there was no evidence to justify a finding and that this gave rise to jurisdictional error:

17. [17]

    Except where further evidence is adduced in the District Court, the District Court’s judgment on an appeal under s 11 is to be “on the basis of the evidence given in the original Local Court proceedings”. That means that the District Court has authority to determine whether the evidence given in the Local Court is capable of sustaining the conviction, and, if so, whether the weight of the evidence, having regard to the magistrate’s findings, supports the conviction (Charara v The Queen [2006] NSWCCA 244; 164 A Crim R 39 at [18]-[19]; Dyason v Butterworth [2015] NSWCA 52 at [27]). [2]

18. [18]

    The District Court judge has authority to decide, correctly or incorrectly, whether on the basis of the evidence given in the Local Court the conviction should be set aside (Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 at [163] (per Hayne J); Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [66]).

19. [19]

    If the District Court only has jurisdiction to determine an appeal against conviction on what an appellate court on review considers to be the “basis of the evidence given in the original Local Court proceedings”, then review for jurisdictional error would lie not only where there is no evidence to support a finding, but where the appellate court considers that the finding is against the weight of the evidence and therefore not properly based on the evidence considered as a whole.

20. [20]

    If the District Court has no jurisdiction to make a finding that an appellate court on review considers not to be based on the evidence given in the Local Court, then the distinction between merits review and review for jurisdictional error is eviscerated.

21. [21]

    In Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 the High Court said (at 177-178) that an inferior court would fall into jurisdictional error if it wholly mistook its jurisdiction, such as by entertaining a matter of a kind which lay outside the theoretical limits of its functions and powers, or acted wholly outside the general area of its jurisdiction by, as an example, hearing and determining a criminal charge where its jurisdiction was strictly limited to civil matters, or by making an order of a kind which it had no power to make, such as an order for specific performance where its powers were limited to awarding damages, or by doing “something which it lacks authority to do” (at 177). Examples of an inferior court falling into jurisdictional error by doing something which it lacked authority to do were given as follows (at 177-178):

22. [22]

    In this case the District Court has authority to decide whether on the basis of the evidence given in the Local Court the conviction should be set aside or the appeal should be dismissed. None of the examples of an inferior court’s falling into jurisdictional error set out in Craig v South Australia is demonstrated in this case.

23. [23]

    For these reasons I do not agree with the orders proposed by Barrett AJA that the orders of the District Court upholding the convictions of the applicant should be quashed.

24. [24]

    I agree with Barrett AJA that the primary judge erred in his disposition of the applicant’s application for the submission of a question of law to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912 (NSW). The judge correctly stated the test for referring such a question by reference to the reasons of Jordan CJ in Ex Parte McGavin; Re Berne & Ors (1946) 46 SR (NSW) 58 that:

25. [25]

    The judge applied that test but considered that the question of law sought to be referred was obviously frivolous and baseless. That was a decision as to the extent and limits of the Court’s jurisdiction to refer the question of law that the appellant sought to have referred to the Court of Criminal Appeal. The reasons in this court demonstrate that the judge erred in considering that the question proposed was obviously frivolous and baseless. Although the judge did not mis-state the test, his application of the test disclosed jurisdictional error.

26. [26]

    No submission was made as to whether it was necessary for jurisdictional error to be established.

27. [27]

    Barrett AJA has noted that no issue was raised in this Court as to whether the question proposed to be submitted to the Court of Criminal Appeal was appropriate.

28. [28]

    For these reasons the orders I propose are:

    1. (1)

       Set aside the orders of the District Court made on 6 May 2019 refusing the applicant’s application that a case be stated to the Court of Criminal Appeal pursuant to s 5B(2) of the Criminal Appeal Act.

    2. (2)

       Remit the proceeding to the District Court for the formulation of a case to be stated or a question of law to be submitted to the Court of Criminal Appeal.

    3. (3)

       Order that the amended summons be otherwise dismissed.

    4. (4)

       Order that within 21 days the parties file and serve written submissions on costs.

29. [29]

    BARRETT AJA: On 15 February 2017, the applicant was convicted at the Local Court at the Downing Centre of one offence of resisting a police officer while in execution of duty contrary to s 58 of the Crimes Act 1900 (NSW) and two offences of intimidating a police officer while in execution of duty contrary to s 60(1) of that Act. The Local Court convictions became the subject of an appeal to the District Court. The appeal was heard by Conlon SC DCJ (“the primary judge”) on 4 October 2017 and dismissed.

30. [30]

    On 29 March 2019, the applicant applied by notice of motion in the District Court proceedings to have the primary judge [3] submit a question of law to the Court of Criminal Appeal for determination. That application was made under s 5B of the Criminal Appeal Act 1912 (NSW). The primary judge dismissed the application.

31. [31]

    Now before this Court is an application by the applicant for relief in the nature of prerogative relief under s 69 of the Supreme Court Act 1970 (NSW). Her principal claim is for an order quashing both the decision of the District Court dismissing the appeal from the Local Court and the convictions recorded in the Local Court. As an alternative, she seeks relief having the effect of requiring submission of the particular question of law to the Court of Criminal Appeal.

The need for the applicant to establish jurisdictional error

1. [32]

   Section 176 of the District Court Act 1973 (NSW) states that no adjudication on appeal of the District Court is to be removed by any order into the Supreme Court. Judicial review is nevertheless available in case of jurisdictional error. [4] The applicant’s application for relief in the nature of prerogative relief in respect of the appeal decision of the District Court cannot succeed unless she establishes that the decision was affected by jurisdictional error.

2. [33]

   There is a question whether s 176 of the District Court Act applies to the decision of the District Court on the applicant’s request under s 5B of the Criminal Appeal Act that a question be submitted to the Court of Criminal Appeal. That decision may not be, in terms of the section, an “adjudication on appeal”. Nevertheless I proceed on the assumption, favourable to the respondent, that the applicant must show that that decision was affected by jurisdictional error.

Background

1. [34]

   Although it will be necessary to examine the evidence in due course, the basic facts should be recorded at the outset.

2. [35]

   A magistrate made an apprehended domestic violence order against the applicant on 20 October 2015 on the application of the applicant’s former mother-in-law (“the complainant”).

3. [36]

   On 25 March 2016, the applicant sent a text message to the complainant by mobile phone. The complainant contacted Maroubra police who circulated through the police network both relevant information (including a copy of the text message) and a request that the applicant be arrested.

4. [37]

   Having received that communication, two officers attached to Chatswood police station, Leading Senior Constable Drylie and Constable Holden, went to the applicant’s home on 28 March 2016. The applicant invited the officers into the dwelling. A short conversation took place and Leading Senior Constable Drylie arrested the applicant. There was no warrant for her arrest.

5. [38]

   Actions of the applicant while she was in custody after being arrested by Senior Constable Drylie formed the basis of the charges under the Crimes Act.

Proceedings in the Local Court

1. [39]

   The applicant maintained before the Local Court that her arrest was unlawful and that, as a consequence, her conduct towards police while in custody as a result of the arrest did not occur in the context of execution of the duty of any police officer. If, as she maintained, the arrest was unlawful and she was not lawfully in police custody, it was no part of the duty of any police officer to seek to constrain her actions as if she were. On that basis, she argued that she was not guilty of the charges under statutory provisions predicated on conduct towards a police officer while in execution of duty. The correctness of that reasoning is confirmed by decided cases [5] and is not questioned in these proceedings.

2. [40]

   The lawfulness of the arrest of the applicant without warrant fell to be addressed under s 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (“LEPRA”): [6]

3. [41]

   It was not disputed that Leading Senior Constable Drylie arrested the applicant without a warrant and that he suspected on reasonable grounds that the applicant had committed an offence, namely, contravention of an apprehended domestic violence order contrary to s 14(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). [7] The condition laid down by s 99(1)(a) was satisfied. [8] The issue was whether, as required by s 99(1)(b), the police officer was satisfied that the arrest was reasonably necessary for any one or more of the reasons in s 99(1)(b)(i) to (ix). The magistrate held that the prosecution had proved beyond reasonable doubt that Leading Senior Constable Drylie was satisfied that the arrest was reasonably necessary to stop the applicant repeating the offence, as contemplated by s 99(1)(b)(i).

District Court decision on the appeal

1. [42]

   The applicant’s appeal to the District Court against conviction was governed by s 18 of the Crimes (Appeal and Review) Act 2001 (NSW) and was accordingly by way of rehearing on the basis of evidence given in the Local Court proceedings. There was no application under s 18(2) or s 19 with a view to additional evidence being adduced.

2. [43]

   Having canvassed the evidence given in the Local Court and submissions made in the District Court, the primary judge dismissed the appeal. The essence of his decision appears from the following part of the judgment:

3. [44]

   The decision on the lawfulness of the arrest was thus that Leading Senior Constable Drylie had been satisfied that the arrest was reasonably necessary to stop the applicant repeating the offence of breaching the apprehended violence order protecting the complainant. That being so, the arrest was lawful, the applicant was lawfully in custody and a central element of the offences under s 58 and s 60(1) of the Crimes Act was established.

4. [45]

   The judgment dismissing the appeal was delivered on 4 October 2017.

District Court decision on submission of a question of law

1. [46]

   In March 2019 the applicant, through her lawyers, made a request that the primary judge submit to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act what was said to be a “question of law arising on” the appeal to the District Court that his Honour had dismissed some eighteen months earlier. The question, as framed, was whether, with certain stated facts proved beyond reasonable doubt, the evidence was:

2. [47]

   The applicant’s request became the subject of a hearing before the primary judge on 1 May 2019. His Honour refused the request on 6 May 2019 for reasons published on that day. [9] The decision was that the question that the applicant wished to see submitted to the Court of Criminal Appeal was “so obviously frivolous and baseless that its submission would be an abuse of process”. These are words quoted by his Honour from the judgment of Jordan CJ in Ex parte McGavin; Re Berne (1945) 46 SR (NSW) 58 at 61. The primary judge was thus of the opinion that there was no room for any doubt that Leading Senior Constable Drylie had been satisfied in the way contemplated by LEPRA, s 99(1)(b).

3. [48]

   Having given that reason for refusing the application, the primary judge went on to refer to the fact that the request of March 2019 had been made some eighteen months after the decision on the appeal and that s 5B imposed a time limit of 28 days “or such longer period as the Court of Criminal Appeal may allow”.

4. [49]

   In reaching his conclusion on the s 5B application, the primary judge referred expressly to his decision on the conviction appeal and made it clear that the same reasoning applied. [10] It is therefore appropriate to have regard to the reasons for dismissal of the conviction appeal in order to obtain a full understanding of the reasons for dismissal of the s 5B application. Argument in this Court proceeded on that basis.

The LEPRA, s 99(1)(b) issue

1. [50]

   The applicant’s contention in this Court is that, while the evidence sufficiently established that Leading Senior Constable Drylie’s purpose in making the arrest was to stop the applicant repeating the offence of breaching the apprehended violence order, it was not shown that he was “satisfied” that arrest was “reasonably necessary” to achieve that end. In that way, it is said, one of the matters essential to the existence of the power under LEPRA, s 99(1) to arrest without warrant was lacking and the arrest was not lawful. The applicant maintains that, although the primary judge said in his reasons that “[t]he question was whether he was satisfied that the arrest was reasonably necessary in order to stop any further commission of offences” and answered that question in the affirmative, the evidence before him did not permit a conclusion that Leading Senior Constable Drylie was so “satisfied” on the matter of what was “reasonably necessary”.

2. [51]

   The respondent Director of Public Prosecutions contended that, although there was no explicit statement from the mouth of Leading Senior Constable Drylie that he was relevantly “satisfied”, there arose from the whole of the evidence an irresistible inference that he was “satisfied” that the arrest was “reasonably necessary” for the purpose that he said had actuated him, that is, the purpose of stopping the applicant repeating the offence of breaching the apprehended violence order.

3. [52]

   The appropriate course is to consider whether the primary judge’s conclusion that Leading Senior Constable Drylie was relevantly “satisfied” was affected by error and, if it was, to assess whether the error amounted to jurisdictional error. As I have said, the latter question arises separately in relation to the decision on the conviction appeal and in relation to the decision on the s 5B matter.

The state of mind called for by LEPRA, s 99(1)(b)

1. [53]

   For an arrest without warrant to be authorised by LEPRA, s 99(1), it must be established that, as described in s 99(1)(b), the arresting officer was “satisfied” that the arrest was “reasonably necessary for” any one or more of the “following reasons” stated in the section. An issue as to the officer’s state of mind arises; and it is for the party asserting that the arrest was authorised by the section to show that, at the time of making the arrest, the officer had reached a state of being “satisfied” that the circumstances as a whole made it “reasonably necessary”, for one or more of the stated reasons, that the person concerned be deprived of their liberty.

2. [54]

   The party asserting the lawfulness of the arrest must thus prove that the police officer had formed a particular opinion (or state of satisfaction) about the connection, in terms of cause and effect, between depriving the person of their liberty and achieving the results with which the “following reasons” are concerned. The connection is defined by the words “reasonably necessary”.

The “reasonably necessary” criterion

1. [55]

   The word “necessary” does not always refer to something that is essential or indispensable. In Mulholland v Australian Electoral Commission (2004) 220 CLR 181; [2004] HCA 41 (at [39]), Gleeson CJ pointed out that:

2. [56]

   Thus, for example, the power of a liquidator to “do all such other things as are necessary for winding up the affairs of the company and distributing its property” [11] is not confined to actions without which that result cannot be achieved. It extends to actions “expedient with reference to” or “conducive to” the progress and completion of the process. [12] At the same time, however, “necessary” connotes something more than “convenient” [13] and indicates that the provision incorporating the “necessary” criterion is “not dealing with trivialities”. [14]

3. [57]

   When the adverb “reasonably” is added and the statute adopts a “reasonably necessary” criterion, there is an obvious element of dilution and an even more distinct indication that the test is not one directed to that which is essential or indispensable. In Thomas v Mowbray (2007) 233 CLR 307; [2007] HCA 33 (at [20]-[27]), Gleeson CJ identified a number of contexts in which the expression “reasonably necessary” is used. It is sufficient to refer to two of these. In relation to the common law doctrine of restraint of trade, the “real test” is whether the restriction exceeds “what is reasonably necessary for the protection of the covenantee”, [15] so that attention is directed to whether the covenant imposes a greater degree of restraint than reasonable protection requires. In the law of real property, [16] the question whether an easement is “reasonably necessary” for the effective use or development of land turns on whether use or development with the benefit of the easement is substantially preferable to use or development without it. [17]

4. [58]

   A “reasonably necessary” criterion directs comparison of the situations or results that will pertain on alternative hypotheses or in alternative circumstances. In Wotton v Queensland (2012) 246 CLR 1; [2012] HCA 2, Kiefel J said (at [89]):

5. [59]

   Kiefel J continued (at [91]), referring to the particular statutory provision in issue:

6. [60]

   That identifies the essence of the “reasonably necessary” criterion in LEPRA, s 99(1)(b). The section imports a requirement of proportionality into police officers’ decision-making. Each of the reasons in s 99(1)(b)(i) to (ix) is expressed in terms of a particular outcome relevant to law enforcement. [18] The reasons are concerned with the risk that lack of constraint upon a person through arrest might frustrate the attainment of one or more of those outcomes and thereby prejudice law enforcement. In Robinson v State of New South Wales [2018] NSWCA 231 at [164], Basten JA said of the s 99(1)(b)(i) to (ix) reasons:

7. [61]

   The reasonably foreseeable consequences of continued freedom (either alone or in conjunction with other available measures) are to be compared with the obvious consequences of arrest. That comparison is to be made by reference to the whole of the circumstances prevailing at the time. The comparison will quantify the extent, if any, to which a continuation of freedom creates a risk that the attainment of any one or more of the stated law enforcement outcomes will be jeopardised. Only if, according to an objectively reasonable assessment, continuing freedom (with or without some other available measure) presents a significant risk to attainment of any of the law enforcement results will immediate arrest be a proportionate response to that risk and therefore substantially preferable and “reasonably necessary”. The police officer is required to assess the situation at hand and make an evaluative judgment.

8. [62]

   A vital component in the comparison is the alternatives to arrest at the disposal of the police officer. LEPRA, s 107 says that nothing in Pt 8 (which includes s 99) affects the power of a police officer either to commence proceedings for an offence otherwise than by arresting the person or to issue a warning, a caution or a penalty notice. Ch 4 Pt 2 of the Criminal Procedure Act 1986 (NSW) allows proceedings for numerous offences (including an offence of breaching an apprehended violence order) to be commenced by the issue of a court attendance notice. A range of measures obviously less drastic than arrest is thus identified as material to a police officer’s decision to arrest without warrant.

The evidence

1. [63]

   As Beazley P noted in Lule v State of New South Wales [2018] NSWCA 125 at [2], a police officer’s state of satisfaction “is a subjective matter and must exist as a matter of fact at the time of the arrest”. It is therefore incumbent upon the party seeking to establish the lawfulness of the arrest to lead evidence from which it can be inferred that, at the time of the arrest, the officer was actually of the state of mind that s 99(1)(b) describes.

2. [64]

   It is necessary, at this point, to record key aspects of the evidence:

   1. (1)

      The applicant was, at all material times, subject to the apprehended domestic violence order made on 20 October 2015 on the application of the complainant. The text message sent by the applicant to the complainant on 25 March 2016 concerned children and was in these terms:

   2. (2)

      After receiving the text message, the complainant made a statement to police at Maroubra who, in turn, informed police at Chatswood of the apprehended violence order and that the applicant had sent the text message. The communication received at Chatswood included a copy of the text message and contained a request that the applicant be arrested.

   3. (3)

      After receipt of that communication, Leading Senior Constable Drylie and Constable Holden visited the applicant’s home. Before they did so, however, Leading Senior Constable Drylie looked into the applicant’s “previous criminal history” and found a conviction for breach of an apprehended violence order (it was put to him that this had occurred in 2008 but he could not recall the year). He did not know whether the earlier breach related to the particular order about which the message had been received from Maroubra. He had not read in full the statement made by the complainant to police at Maroubra.

   4. (4)

      Leading Senior Constable Drylie was asked in cross-examination whether “the purpose of going there [ie, to the applicant’s home] was to arrest her”. He answered, “Effectively, yes”.

   5. (5)

      When the officers arrived at the applicant’s home, they pressed the buzzer at the front door, identified themselves as police officers and were invited to enter. A brief conversation then took place inside the premises. Leading Senior Constable Drylie’s account of the conversation was:

   6. (6)

      Leading Senior Constable Drylie testified that the applicant’s response to the last question was: “Okay”.

   7. (7)

      Constable Holden gave evidence about the conversation. He said that he did not recall Leading Senior Constable Drylie saying, “You’ve breached your AVO”. But he did recall the applicant saying, “Yes I’m sick of her getting people to harass me”.

   8. (8)

      At the time he made the arrest, Leading Senior Constable Drylie’s “primary concern” was said by him to be the complainant who was “protected pursuant to a court order”.

   9. (9)

      Leading Senior Constable Drylie’s evidence was that, while he had asked the applicant whether she had sent the text message, he did not “ask for any further explanation”. He also said that he was not aware of any violence between the applicant and the complainant.

   10. (10)

       Leading Senior Constable Drylie testified that he made the arrest without considering the alternative of a court attendance notice.

   11. (11)

       His evidence as to the purpose of the arrest was as follows:

Assessment of the primary judge’s decision on state of mind

1. [65]

   The primary judge decided that the question for determination by him was whether Leading Senior Constable Drylie “was satisfied that the arrest was reasonably necessary in order to stop any further commission of offences”. [19] In framing the question in that way, his Honour singled out one of the nine reasons in s 99(1)(b)(i) to (ix), namely, the reason in s 99(1)(b)(i). And in giving an affirmative answer to the question he had posed, the primary judge obviously had regard to the evidence referred to at [64] above.

2. [66]

   What the primary judge did not do was to engage in discussion and analysis of the evidence as a whole in order to discover whether Leading Senior Constable Drylie had made the comparison required by s 99(1)(b) and, by bringing evaluative judgment to bear, had reached the required state of satisfaction.

3. [67]

   The primary judge had before him evidence that Leading Senior Constable Drylie had decided before arrival at the applicant’s home that he would arrest her; that the sole reason for the arrest was the breach of the apprehended violence order (which caused him to be concerned for the complainant who, he thought, was thereby exposed to risk); and that he did not turn his mind to the alternative of issuing a court attendance notice. That evidence, coupled with the absence of evidence that the police officer had considered any other alternative course of action, showed that he did not engage at all in the process of comparison and evaluation called for by LEPRA, s 99(1)(b) and did not address in any way the question whether arrest (the course he had decided upon in advance) was a proportionate response to a risk that he perceived upon coming into contact with the applicant – or, indeed, that his contact with the applicant had given him cause to think that she presented any risk. In the short conversation that took place after the police officers’ arrival and before the arrest (see [64(5)] above), the applicant readily admitted that she had sent the text message and gave an explanation that did not indicate any intention of committing further wrongdoing. Her statement, “Yes, I’m sick of her getting people to harass me” explained why she had sent the offending text message. It did not indicate any possibility of future action. There was nothing to suggest that the police officer was aware of any violence between the applicant and the complainant. The offending text message (which he had read) did not threaten violence. It said that legal proceedings would be commenced in some months’ time.

4. [68]

   The primary judge’s positive finding that Leading Senior Constable Drylie “was satisfied that the arrest was reasonably necessary in order to stop any further commission of offences” had no foundation in the evidence at his Honour’s disposal. There was, at most, evidence that he had concern for the complainant, that he was, from a time before he came into contact with the applicant, determined to arrest her and that he never considered the alternative of issue of a court attendance notice or, for that matter, any other alternative. The evidence did not indicate that he considered any course of action (such as a warning or caution or the issue of a court attendance notice: see [62] above) other than that upon which he had made a decision in advance, that is, arrest. The evidence therefore disclosed nothing at all about the state of his satisfaction as to what, in the circumstances as he found them, was “reasonably necessary” for any of the LEPRA, s 99(1)(b)(i) to (ix) reasons.

5. [69]

   The primary judge’s finding as to the state of mind of Leading Senior Constable Drylie had no basis in the evidence.

The nature and effect of the error – the appeal decision

1. [70]

   A decision maker commits an error of law by making a finding for which there is no basis in the evidence. For a conclusion of such error to be reached, there must be no probative evidence at all, no matter how slight, to justify the decision. The stringency of the test is illustrated by the statement of Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-6 that several kinds of inadequate fact finding do not amount to error of law, these being:

2. [71]

   At issue in Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32 was the nature of error consisting of the making of a finding that certain notices had been served when there was no evidence of service. Hayne, Heydon, Crennan and Kiefel JJ said (at [91]):

3. [72]

   The following passage in the judgment of Dixon CJ in Gurnett v The Macquarie Stevedoring Co Pty Ltd (No 2) (1956) 95 CLR 106; [1956] HCA 29 at CLR 113 was then quoted:

4. [73]

   The joint judgment in Kostas continued (also at [91]);

5. [74]

   In the present case, the primary judge made such an error of law. It remains to consider whether the error amounts to jurisdictional error.

6. [75]

   As was recently pointed out in Navoto v Minister for Home Affairs [2019] FCAFC 135 at [63], there are two competing approaches to the question whether an error of law committed when a factual finding is made in the absence of evidence amounts to jurisdictional error. On one view, such a finding amounts to jurisdictional error only where the finding is a precondition to the exercise of jurisdiction. On the other view, a finding made with no evidence amounts to jurisdictional error where the finding is a critical step in the ultimate conclusion of the decision-maker.

7. [76]

   In Buchwald v Minister for Immigration and Border Protection (2016) 242 FCR 65; [2016] FCA 101, Bromberg J referred to High Court authority suggesting that the first of these approaches should be taken to the exclusion of the second. His Honour pointed out that, in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 78 ALJR 992, Gummow and Hayne JJ (with whom Gleeson CJ agreed) said at [39]:

8. [77]

   Bromberg J referred to apparent approval by Gummow A-CJ and Kiefel J in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; [2010] HCA 16 of the distinction drawn by Wilcox J in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511 between a "no evidence" ground respecting the existence of a jurisdictional fact and “the more debatable question . . . of defective fact finding as an independent ground of judicial review, or as indicative of an ‘error of law’".

9. [78]

   In Hands v Minister for Immigration and Border Protection (2018) 364 ALR 423, Allsop CJ (with whom Markovic and Steward JJ agreed) referred to findings of central importance to a particular administrative decision and said:

10. [79]

    As the High Court pointed out in Craig v South Australia and Kirk v Industrial Relations Commission, inferior courts do not necessarily stand on the same plane as administrative decision-makers when it comes to questions of jurisdictional error. The reason, it was said, is that inferior courts, unlike administrative decision-makers, are entrusted with authority to identify, formulate and determine relevant issues, relevant questions, and what is and is not relevant evidence. [21]

11. [80]

    The particular decision now under consideration is a decision of an inferior court. But the statutory regime under which that court operated in making the decision did not allow it to perform all the functions described by the High Court. Because, on the particular occasion, it had no authority to identify the body of evidence that it was to take into account, the court did not have the whole of the hallmark authority referred to by the High Court.

12. [81]

    In the particular case, the District Court’s function under s 18 of the Crimes (Appeal and Review) Act was to proceed “by way of rehearing on the basis of evidence given” in the Local Court. [22] The primary judge’s authority was defined and confined accordingly. The District Court did not determine what was and was not relevant evidence (one of the distinguishing characteristics referred to in the High Court cases). The only authority it had was authority to decide the appeal “on the basis of” a pre-existing body of evidence that had been assembled independently of it. That pre-existing body of evidence was the only source upon which the primary judge was permitted to draw in making the findings of fact required for the performance of the task assigned by s 18. It was no part of that task to make findings for which that evidence provided no foundation. The finding for which there was no “basis” in the evidence (unlike a finding that misconstrues the evidence or is against the weight of it) was not made in performance of the statutory function or in exercise of the statutory authority.

13. [82]

    It was said in Craig v South Australia [23] that “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”. In this case, the authority conferred on the District Court was delineated in terms that did not enable or permit it to make the finding as to Leading Senior Constable Drylie’s state of mind for which the body of evidence put at its disposal by the statute provided no “basis”. There was an error of law which, in the context in which it occurred (and as referred to by Allsop CJ in Hands v Minister for Immigration and Border Protection (above)), amounted to jurisdictional error.

14. [83]

    It follows that s 176 of the District Court Act does not stand in the way of exercise of the Supreme Court’s supervisory jurisdiction to correct the appeal decision of the District Court. The corrective jurisdiction should be exercised accordingly.

The nature and effect of the error – the decision on the s 5B application

1. [84]

   The position I have reached in relation to the decision on the conviction appeal is sufficient to dispose of these proceedings. I nevertheless proceed to consider the question whether, if that result had not emerged, relief would have been available in relation to the primary judge’s decision under s 5B of the Criminal Appeal Act. That section is in these terms:

2. [85]

   The question that the applicant sought to have submitted to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act (set out at [46] above) was whether enumerated facts having a clear basis in the evidence were “capable of establishing beyond reasonable doubt that” Leading Senior Constable Drylie was satisfied that the arrest of the applicant was reasonably necessary for one or more of the reasons set out in LEPRA, s 99(1)(b). [24]

3. [86]

   In his judgment on that application, the primary judge noted the aspects of the evidence to which reference has already been made. The essence of his decision was then stated (at [20]-[23]):

4. [87]

   His Honour went on to refer to the fact that the request for submission had been made long after the expiration of the period of 28 days referred to in s 5B(2). In the penultimate paragraph of his reasons, he set out the following passage in the judgment of Basten JA in Elias v Director of Public Prosecutions (2012) 222 A Crim R 28; [2012] NSWCA 302 at [17]:

5. [88]

   Then followed the final paragraph of the reasons:

6. [89]

   The primary judge’s decision on the LEPRA, s 99(1)(b) issue was affected by the error of law identified at [69] above. In relation to the primary judge’s decision on the s 5B application, that error of law led his Honour to the conclusion that the question he was asked to submit was “so obviously frivolous and baseless that its submission would be an abuse of process”. The applicant submitted that that conclusion, reached in consequence of what I have found to be an error of law, caused the decision on the s 5B application to be affected by jurisdictional error. The submission was based on the decision of this Court in Charara v Director of Public Prosecutions (2001) 120 A Crim R 225; [2001] NSWCA 140 in which Giles JA (with whom Powell JA and Ipp AJA concurred) said (at [48]-[50]) of a decision beyond jurisdiction as distinct from a decision within jurisdiction.

7. [90]

   Of particular relevance for present purposes is the reference in this passage to West v Commonwealth Director of Public Prosecutions [1999] NSWCA 398 and the conclusion that a District Court judge who had refused to submit a question of law under s 5B because he considered the question unarguable had “effectively refused to exercise his jurisdiction”. Because, on a correct assessment of it, the question of law was arguable, the judge had declined to exercise jurisdiction in circumstances where it should have been exercised. That, it was held, was jurisdictional error.

8. [91]

   A court or tribunal errs in the determination of its jurisdiction if it erroneously decides that the question before it is not of a description that it has power to determine. [25] In the present case, as in West v Commonwealth Director of Public Prosecutions, the primary judge decided that the question he was asked to submit to the Court of Criminal Appeal was a question submission of which would be an abuse of process. He made that clear by quoting the following passage in the judgment of Jordan CJ in Ex parte McGavin; Re Berne (above) concerning a predecessor to s 5B and saying that it reflected the decision he had reached on the application before him:

9. [92]

   As there explained, s 5B imposes a duty to submit a question of law to the Court of Criminal Appeal unless the judge is relieved of that duty because the question is so frivolous or baseless that submission would be an abuse of process. The primary judge’s decision to refuse the application under s 5B on that ground, being a decision produced by the error of law already identified, was a decision on a question of law going to jurisdiction. For the reasons I have stated, the question that the primary judge declined to submit to the Court of Criminal Appeal was neither frivolous nor baseless. By concluding that submission of the question would be an abuse of process and accordingly beyond the duty to which Jordan CJ referred, the primary judge declined to exercise jurisdiction in circumstances where jurisdiction should have been exercised. His decision was therefore affected by error of law amounting to jurisdictional error.

10. [93]

    In the second part of his reasons on the s 5B application, the primary judge referred to the fact that the application was grossly out of time and that, under s 5B(2), the Court of Criminal Appeal had power to extend time. It has been said that it is “procedurally awkward” [26] that the issue of extension of time comes, in the first instance, before the District Court judge who is asked to submit a question. If satisfied that there is no prospect of an extension being granted, that judge might properly conclude that the application is an abuse of process on the basis already noticed. That is the import of the statement in Elias v Director of Public Prosecutions quoted by the primary judge and set out at [86] above.

11. [94]

    The primary judge did not, in explicit terms, base his decision on the proposition that there was no prospect of the grant of an extension of time by the Court of Criminal Appeal. Having stated his opinion that submission of the question whether Leading Senior Constable Drylie was “satisfied” in terms of LEPRA, s 99(1)(b) would be an abuse of process because the question was obviously frivolous and baseless, he merely quoted what had been said in Elias v Director of Public Prosecutions on the matter of extension of time. He did so in the context of a brief discussion of evidence going to the reasons why the s 5B application had not been progressed more expeditiously.

12. [95]

    In this case, it is possible that submission of the question to the Court of Criminal Appeal would produce an ultimate result different from that which emerged in the District Court. The appropriate course is therefore to leave to one side speculation about the attitude that that court might take to the question of extension of time. Only in circumstances of absence of any semblance of argument (including as to any necessary extension of time) should a judge asked to settle what are, in substance, grounds of appeal from his or her own decision refuse to do so. The matter was put thus in Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 (at [5]):

Conclusion and orders

1. [96]

   Jurisdictional error is established in relation to both the decision on the appeal from the Local Court and the decision on the application to have a question submitted for determination by the Court of Criminal Appeal. Each decision is amenable to correction by the Supreme Court pursuant to s 69 of the Supreme Court Act. As I have said, the conclusion I have reached that the decision on the conviction appeal is affected by jurisdictional error is sufficient to dispose of these proceedings. Relief should be granted in respect of the appeal decision by quashing the District Court’s determination and remitting the matter for determination according to law. [27]

2. [97]

   The orders I propose are:

   1. (1)

      Order that the appellate determination of the District Court on 4 October 2017 upholding convictions of Rodna Jankovic on one charge of resisting a police officer while in execution of duty contrary to s 58 of the Crimes Act 1900 (NSW) and two charges of intimidating a police officer while in execution of duty contrary to s 60(1) of the Crimes Act 1900 (NSW), which convictions were recorded at the Local Court at the Downing Centre on 15 February 2017, be quashed.

   2. (2)

      Order that the appellate proceeding be remitted to the District Court for determination according to law.

   3. (3)

      Order that the Director of Public Prosecutions pay the costs of Rodna Jankovic of the proceedings in this Court.