Franklin v Director of Public Prosecutions (NSW)

1. [1]

   BASTEN JA: The applicant, Craig Andrew Franklin, stands convicted on one charge of assault, the victim being his former wife. He was convicted in the Local Court and appealed to the District Court. The District Court rejected the appeal. Mr Franklin sought to have the District Court judge submit a question of law to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). Judge Bourke, who had heard the appeal, declined to do so. That decision was set aside by this Court on an earlier occasion and the matter remitted to Judge Bourke. [1] The judge took careful account of the reasoning of this Court, but again refused to state a case. The applicant now seeks to set aside the judge’s second decision.

2. [2]

   I agree with Macfarlan JA that the summons must be dismissed. As the Court is divided, I add the following further observations.

3. [3]

   There is no statutory appeal from a judgment of the District Court in a criminal matter on appeal from the Local Court. However, s 5B of the Criminal Appeal Act permits a judge to “submit any question of law arising on any appeal … to the Court of Criminal Appeal”: s 5B(1). A party to the appeal may “request” the judge to submit a question of law: s 5B(2).

4. [4]

   The language of s 5B is self-evidently inapt to confer a right on a party to the appeal. Its effect is to provide an opportunity for a party to have questions of law determined by the Court of Criminal Appeal, but to do so the applicant must demonstrate to the judge who heard the appeal in the District Court that there is a relevant “question of law”, and it is a question of law “arising on” the appeal. The District Court thus performs a gate-way control function.

5. [5]

   In the recent decision of Gibson v Director of Public Prosecutions (NSW) (No 2) [2] Bell P, quoting a passage from Forrest v Director of Public Prosecutions (NSW), [3] stated:

6. [6]

   There is one criterion of engagement expressed in this passage, namely that “the judge has mistaken his or her function”. It must have a consequence, namely exceeding or failing to exercise the Court’s jurisdiction. However, it is an error to read that passage as stating three separate and independent criteria of engagement, namely mistaking a function, exceeding jurisdiction, or failing to exercise jurisdiction. The reasons given by the District Court judge in the present case reveal no basis for concluding that he mistook the function he was required to consider under s 5B of the Criminal Appeal Act.

7. [7]

   There is a further, more nuanced, issue which can arise in these cases. Where a statutory power of the kind provided in s 5B is conferred on the judge who conducts an appeal, there is good reason, as a matter of statutory construction, not to imply constraints on the exercise of the power by the judge. Particularly is that so where statute immunises the exercise of the gateway function by the appellate judge from review for error of law on the face of the record.

8. [8]

   It is true that a grant of jurisdiction to a court ordinarily carries with it a duty to exercise it; it is less common to find that a judicial duty is required to be exercised in only one way. The exercise of a judicial function usually involves determining both the facts which will engage the power and the applicable law, and then applying the law to the facts as found.

9. [9]

   It is necessary to identify the criterion of engagement of the statutory power before deciding whether, and in what circumstances, a judge can decline to submit a question to the Court of Criminal Appeal. That will turn upon the nature of the function and the statutory language of conferral.

10. [10]

    Importantly, there are two ways of approaching a statutory power. One, as noted above, is to focus on the conditions of engagement of the power. The alternative, and more common approach, is to identify the factors or considerations which condition the exercise of the power. These can be characterised as prohibited considerations, mandatory considerations and, often the broadest category, permissible considerations. The first two factors condition the validity of the exercise of the power. Depending upon the statute and the context, the law will generally impose other requirements, including an obligation to accord procedural fairness, and an obligation to act within the bounds of reasonableness.

11. [11]

    The difference between these two approaches may be important. When criteria are stated to constitute conditions of engagement, failure to comply will constitute jurisdictional error. Accordingly, the supervising court will be entitled (and obliged) to review the judge’s assessment of a particular criterion against the correctness standard. On the other hand, if a particular criterion is identified as a permissible consideration going to the exercise of the power, the reviewing court will be limited to identifying error in the judge’s formation of the relevant state of satisfaction, such as acting for an improper purpose, or reaching a decision which the court determines exceeds the boundaries of legal reasonableness. If a particular criterion permits only a binary choice, with no scope for evaluation or assessment, the two forms of analysis may be similar. However, that will not often occur; generally the respective exercises are fundamentally different. Which approach should be adopted turns on statutory interpretation.

12. [12]

    There are several reasons in this case for not defining all issues as conditions of engagement depending on a determination by a supervising court. First, there is the fact that s 5B confers a power on a court of record. [4] “It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words.” [5]

13. [13]

    Secondly, as explained by Dixon J in Parisienne Basket Shoes Pty Ltd v Whyte: [6]

14. [14]

    Thirdly, although in principle whether a particular question is or is not a question of law is an objective circumstance which might equally be dealt with by a court on review as by the judge hearing the matter, the same cannot be said of the criterion identified in s 5B(1), namely a “question of law arising on any appeal”. There are two aspects of that language which are important. One is that the connection between the appeal and the question of law is a matter likely to involve an evaluative judgment. One of the most common questions asked of counsel seeking to tender evidence or make a submission is, “how does that arise on your case?” The second aspect is that the power to refer a question of law is conferred on the judge before whom the appeal comes. That judge will be the person best placed to determine whether a proposed question of law truly arises on the appeal.

15. [15]

    Fourthly, and perhaps as a corollary of the last point, a question of law will not arise on an appeal unless it is material to its outcome. The present case involved a common assault: it might have been possible to formulate a question of law, based on findings of fact as to what occurred between the applicant and his former wife, as to whether the findings satisfied the legal concept of an assault. Whether that question arose on the appeal might have depended upon whether there was in truth an issue as to the legal characterisation of the conduct, and whether there was any doubt as to the relevant legal principles.

16. [16]

    It may be doubted that the admissibility of evidence necessarily raises a question of law, as opposed to a mixed question of fact and law. More importantly, there will often be a fine line between a determination of relevance and the weight which might be given to the evidence if admitted. Evidence capable of supporting or undermining a particular finding of fact may for that reason be admissible. On the other hand, in the circumstances of the case it may carry little or no weight. If, in the view of the appeal judge, evidence which had been rejected would not have affected the outcome, it must be open to the judge to conclude that any question of law as to its admissibility was immaterial.

17. [17]

    Because the statute confers on the appeal judge the determination of materiality, it is not a matter for the reviewing court. The contrary view would result in (i) a question being submitted to the Court of Criminal Appeal, (ii) a hearing before the Court of Criminal Appeal, (iii) which, if it resulted in a finding that the evidence was admissible, would require a further hearing of the appeal in the District Court, with no change in the result. It is a view which, in the words of Dixon J, “produces so inconvenient a result that no enactment dealing with proceedings in [the District Court] should receive such an interpretation unless the intention is clearly expressed.” No such intention appears from s 5B. Read with s 176 of the District Court Act (which denies a power of review where the District Court makes an error of law which appears on the face of the record), the intention imputed to the legislature must be to the contrary. The context is that the proceeding was first heard in the Local Court; the policy of limiting relatively minor matters to two hearings on the merits, with a third level of judicial consideration only where a judge is satisfied that a real doubt arises as to a material question of law is self-evident.

18. [18]

    In Gibson, this Court referred to the judge forming a state of satisfaction as to “whether the question arose on the appeal, in the sense that the answer to the question was capable of affecting the outcome”. [7] For the reasons explained above, the term “capable” was not intended to refer to an abstract capacity to affect the outcome, but a practical capacity to affect the outcome in the circumstances of the case. That is clear from the fact that what was being described was the state of satisfaction of the judge who was hearing the appeal.

19. [19]

    Applying these principles to the present case, there is no basis to conclude that the District Court judge misconceived the function he was exercising. He stated that he had formed the view, after considering the complainant’s evidence and what he described as “the entirety of the evidence and the very lengthy cross-examination of the complainant by the applicant”, that she was “both an honest and accurate witness as to the essential aspects of the alleged assault.” [8] The judge noted that the magistrate had come to a similar view. He continued:

20. [20]

    There is no legal basis upon which to reject that finding. It is not for this Court to make its own finding in that respect. No jurisdictional error has been established on the part of the District Court judge.

21. [21]

    The summons must be dismissed with costs.

22. [22]

    MACFARLAN JA: By summons filed on 11 August 2021 the applicant, Mr Craig Franklin, seeks orders pursuant to s 69 of the Supreme Court Act 1970 (NSW) by way of judicial review of a decision dated 12 July 2021 of Judge Bourke of the District Court. By the decision his Honour declined for a second time to state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). His Honour had earlier heard and dismissed an appeal by Mr Franklin from his conviction in the Local Court of common assault of his former wife.

23. [23]

    On his appeal to the District Court Mr Franklin had sought leave pursuant to s 18(2) of the Crimes (Appeal and Review) Act 2001 (NSW) to tender evidence not before the Local Court, including a case note report prepared by an officer of the Department of Corrective Services, Ms Deborah Buckley. The report referred inter alia to a telephone call Mr Franklin made to Ms Buckley concerning the incident the subject of the assault charge. Judge Bourke refused leave to tender the report and subsequently delivered a judgment dismissing the appeal. Mr Franklin thereafter requested the judge to state a case to the Court of Criminal Appeal in relation to 10 questions, one of which concerned the report. His Honour refused the application on the basis that the questions were not questions of law, as s 5B of the Criminal Appeal Act required them to be. Mr Franklin then sought judicial review of that decision in this Court (“Franklin No 1”).

24. [24]

    In Franklin No 1, delivered on 19 May 2020 ([2021] NSWCA 83), this Court found, contrary to Judge Bourke’s decision, that one (although only one) of the 10 questions was a question of law, namely:

25. [25]

    The Court concluded that the decision of Judge Bourke should be quashed insofar as it related to question (d) and ordered that the matter be remitted to the District Court. Its formal order was for the matter to be remitted “to the District Court to be dealt with according to law”. The Court’s reasoning (per Hamill J, with whom Brereton JA and McCallum JA agreed) was relevantly as follows:

26. [26]

    Following that decision, Mr Franklin requested the District Court to relist his appeal before Judge Bourke. After receiving submissions his Honour delivered judgment on 12 July 2021 again refusing Mr Franklin’s application for his Honour to state a case to the Court of Criminal Appeal. His Honour accepted that, based on the Court of Appeal’s judgment, question (d) constituted a question of law. He noted however that the Court of Appeal’s orders did not require him to state a case but instead required him to determine Mr Franklin’s application for a case to be stated “according to law”. In considering the nature of the task left for him to perform, the primary judge applied the following observations of Basten JA (with whom Leeming JA and McCallum JA relevantly agreed) in Forrest v DPP (NSW) [2020] NSWCA 162 at [48]; (2020) 286 A Crim R 191:

27. [27]

    Judge Bourke then turned to consider whether the admission of the report into evidence would have resulted in a different outcome to the appeal. His Honour said that for the purpose of considering that issue he revisited the evidence before him on the appeal, the arguments put to him and his reasons for dismissing the appeal. He assumed in Mr Franklin’s favour that the conversations as recorded by Ms Buckley occurred and did so in the terms that she recorded.

28. [28]

    His Honour considered that the note provided “some support” for Mr Franklin’s case but said that he remained “satisfied beyond reasonable doubt of the essence of the complainant’s version of events about the assault”, and that the offence occurred ([26] and [31]). In these circumstances his Honour concluded that Mr Franklin’s application for statement of a case should be rejected because the admission of Ms Buckley’s note into evidence would have made no difference to the outcome of the appeal against Mr Franklin’s conviction ([32]).

Mr Franklin’s bias claims

1. [29]

   In support of his application to this Court under s 69 of the Supreme Court Act Mr Franklin first contended that Judge Bourke fell into jurisdictional error by denying him procedural fairness as a result of the judge being biased when determining Mr Franklin’s application for a stated case or alternatively in determining it in circumstances where a fair-minded lay observer might have had a reasonable apprehension of bias. It is not entirely clear whether Mr Franklin did in fact allege actual bias on the part of Judge Bourke but, to the extent that he impliedly did so, the contention should be rejected as there is no evidence to support it.

2. [30]

   The principles applicable to allegations of apprehended bias were recently summarised by the High Court in Charisteas v Charisteas [2021] HCA 29 at [11]; (2021) 95 ALJR 824, and are as follows:

3. [31]

   The first basis on which Mr Franklin submitted that these principles were satisfied was that a fair-minded lay observer might reasonably have apprehended that, as Judge Bourke had previously refused to state a case in respect of question (d), his Honour had prejudged the issue that he was required by the Court of Appeal decision in Franklin No 1 to re-decide (that is, to determine whether to state a case in respect of question (d)).

4. [32]

   I reject that submission. The Judge had relevantly only determined previously the issue of whether question (d) was a question of law. He had not determined the issues he decided on 12 July 2021 of whether, as a matter of discretion, he should order a case to be stated and whether the admission into evidence of Ms Buckley’s report would have made any difference to the outcome of the appeal. Assuming, as is appropriate, that the fair-minded observer would have been apprised of what had occurred in the courts, that person would in my view not have had any reasonable apprehension that Judge Bourke might have prejudged the relevant issues. That is to say, the fair-minded lay observer would not have had any reasonable apprehension that, because Judge Bourke had previously dismissed the stated case application, he would not reconsider that application on its merits, as directed by the Court of Appeal. There is therefore simply no basis on which it could be concluded that a fair-minded observer might have apprehended that Judge Bourke would, or might, fail in this way to perform his judicial duties.

5. [33]

   Turning to the second basis for the apprehended bias claim, a fair-minded lay observer would in my view similarly not have had any reasonable basis for thinking that, as Mr Franklin asserts, Judge Bourke refused the stated case application on 12 July 2021 “for the purpose of avoiding the Court of Criminal Appeal having the opportunity to determine whether he had erred in law on the principle of admissibility of business records”.

6. [34]

   Moreover, Mr Franklin’s submission in respect of this second basis conflicts with the decision of the High Court in Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 305; [2011] HCA 48 in which it was held that the reasons for judgment delivered in determining issues are not relevant to an assessment of whether a fair-minded lay observer might reasonably have apprehended before delivery of the judgment that the judge might not bring an impartial and unprejudiced mind to the resolution of the issues (see [67]–[68]).

7. [35]

   For these reasons, Judge Bourke did not deny Mr Franklin procedural fairness.

Whether jurisdictional error on any other basis

1. [36]

   Mr Franklin submitted that the effect of this Court’s decision in Franklin No 1 was that, on remission to him, Judge Bourke was required automatically to state a case to the Court of Criminal Appeal in respect of question (d), which this Court had found was a question of law. Thus, Mr Franklin submitted that at that point Judge Bourke had no discretion to decline to state a case.

2. [37]

   This Court did not however say or infer in Franklin No 1 that this is what should occur on remission to the District Court. Its order (and the preceding statement in [91] of its reasons) indicated that on remission to the District Court the stated case application was “to be dealt with according to law”. If the Court had considered that statement of a case should follow automatically from its decision, it could have, and no doubt would have, exercised the jurisdiction conferred on it by s 69(3) of the Supreme Court Act which permits the Court to make the order that should have been made in the primary court where the Court considers “that, as a matter of law, only one particular determination should have been made by the court or tribunal”.

3. [38]

   There was therefore no indication that the Court intended to contradict the approach identified in Forrest (see [6] above) that Judge Bourke followed. The correctness of that approach was later confirmed in Gibson v Director Public Prosecutions (NSW) (No 2) [2021] NSWCA 218 where Basten JA said (with the concurrence of Meagher JA):

4. [39]

   This was consistent with Bell P’s approach at [31] where his Honour said that if the proper interpretation of what the Judge below in that case did was that:

5. [40]

   These authorities thus recognise that exercise of the power to state a case under s 5B of the Criminal Appeal Act involves the relevant judge of the District Court exercising a discretion, as reflected by the words “may submit” in s 5B(1).

6. [41]

   As recorded in [26] above, Basten JA said in Forrest at [48], “[t]here is no good reason to limit the factors which the District Court judge may properly take into account in considering whether to accede to a request to state a question of law”. One factor instanced by his Honour was “whether the answer to the question, favourably to the applicant, might have been dispositive of the appeal”. This was the issue Judge Bourke determined and which led to his second refusal of the stated case application. It was relevant at least because it implicitly focused on whether it would be futile and therefore a waste of judicial resources for his Honour to state a case. That is, his Honour adverted to what would likely happen if the Court of Criminal Appeal answered the question favourably to Mr Franklin and the matter was remitted to his Honour for redetermination of the conviction appeal.

7. [42]

   I add that Judge Bourke’s reasoning was not in my view inconsistent with the observations of this Court in Franklin No 1 which considered the materiality of Ms Buckley’s report (see [83] and [84] quoted in [25] above). Judge Bourke accepted that the report provided “some support” for Mr Franklin’s case (and was therefore relevant) but his Honour went beyond the issue of materiality or relevance to determine that admission of the report into evidence would not have affected the outcome of the appeal (see [26] and [32]). Even if this Court had expressed a view on that particular issue, that would not have been binding on Judge Bourke unless it was part of the Court’s reasoning on the issue it determined.

8. [43]

   Even if the factor Judge Bourke took into account was not relevant, it would have remained for this Court to consider whether his Honour’s assumed error of law in that regard was a jurisdictional error, the privative provision in s 176 of the District Court Act 1973 (NSW) being a limitation on this Court’s power to intervene except in relation to jurisdictional errors (see Kirk v The Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [90] and [97] and Downey v Acting District Court Judge Boulton (No 5) (2010) 78 NSWLR 499; [2010] NSWCA 240 at [133]–[134]).

9. [44]

   The essence of jurisdictional error was described by the plurality (Kiefel CJ, Gageler and Keane JJ) in Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [24] as follows:

10. [45]

    Not every error of law is a jurisdictional error (Kirk v The Industrial Court of New South Wales (2010) 239 CLR 531 at 571; [2010] HCA 1 at [66] citing Craig v South Australia (1995) 184 CLR 163 at 177–80; [1995] HCA 58; Quinn v Commonwealth Director of Prosecutions [2021] NSWCA 294 at [4]–[24] (Leeming JA); [2022] ALMD 65 and Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337 at [35]–[36] (Bell P)). This is particularly so where, as here, the postulated error was made by a court of law, as opposed to an administrative tribunal, because “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” (Kirk v The Industrial Court of New South Wales (2010) 239 CLR 531 at 572–3; [2010] HCA 1 at [68] citing Craig v South Australia (1995) 184 CLR 163 at 179–80; [1995] HCA 58). Thus, an inferior court’s errors of law will not ordinarily constitute jurisdictional error (Craig v South Australia (1995) 184 CLR 163 at 180; [1995] HCA 58). While it is “neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error” (Kirk v The Industrial Court of New South Wales (2010) 239 CLR 531 at 573; [2010] HCA 1 at [71]), it is clear that in order for an error to be a jurisdictional error, there must be some further factor present, such as a legislative instrument requiring an inferior court to take into account or to disregard some matter, as an “essential condition of the existence of [its] jurisdiction with respect to a particular matter” (Craig v South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58; see also Quinn v Commonwealth Director of Prosecutions [2021] NSWCA 294 at [12]–[13] (Leeming JA)).

11. [46]

    An error of the presently postulated character is in my view clearly not a jurisdictional error, there being no indication in the legislation that the legislature intended to treat an error of that type as jurisdictional. The discretion which the legislature conferred on the District Court by s 5B of the Criminal Appeal Act, as evinced by the words “may submit”, was clearly intended to be exercised as part of the court’s jurisdiction. As a result, if Judge Bourke is assumed to have made an error, he had jurisdiction to do so and judicial review of his decision is not available.

Order

1. [47]

   For the reasons given above, Mr Franklin did not establish that Judge Bourke made any jurisdictional error. As a result, his summons for relief under s 69 of the Supreme Court Act should be dismissed with costs.

2. [48]

   BRERETON JA: In the Local Court at Katoomba, on 5 December 2019, the applicant Craig Andrew Franklin was found guilty, convicted, and sentenced (to a Community Corrections Order for a period of 2 years, subject to supervision) in respect of an offence of common assault (contrary to s 61 of the Crimes Act 1900 (NSW)), in that he assaulted his then wife during an argument about money in the early hours of the morning on 2 September 2016. The prosecution case was that Mr Franklin pushed and shoved his wife repeatedly as she tried to access the couple’s safe, causing her to fall backwards; that each time she tried to stand up, he pushed her back down; that she ultimately ceased to try to access the safe, but endeavoured to gather some papers from the floor; that at this point the applicant grabbed her shoulders and shoved her to the floor, and then dragged her out of their bedroom by one arm. The complainant did not sustain any injuries. Mr Franklin did not give evidence in his defence, but his case, as appears from his cross-examination of the complainant, was that it was she who was the aggressor; that she was ‘out of control’ and assaulted him, and threatened to (falsely) accuse him of assault.

3. [49]

   Before the Magistrate, Mr Franklin tendered a “Case Note Report” dated 2 September 2016 from the records of the Department of Corrective Services, prepared by Ms Buckley, an officer of Lithgow Community Corrections, under whose supervision Mr Franklin then was in respect of a prior matter, which recorded a “Phone call from offender”, as follows:

4. [50]

   The document contains two further notes on the same page. The first refers to Ms Buckley contacting the Katoomba police. The second records a call made by Ms Buckley to the applicant’s mother, in the following terms:

5. [51]

   The Magistrate rejected the tender, on the basis that the document was self-serving hearsay and not within any exception to the hearsay rule. In the course of argument, the Magistrate said to the applicant that the tender was: [9]

6. [52]

   The Magistrate also said: [10]

7. [53]

   Mr Franklin appealed from his conviction to the District Court. In the course of the appeal, he again sought to tender Ms Buckley’s “Case Record Note”. He submitted to the District Court judge: [11]

8. [54]

   Bourke DCJ rejected the tender, on the same grounds as the Magistrate had done so: [12]

9. [55]

   Neither the Magistrate nor the District Court judge had regard to the admissibility of the document as a business record under Evidence Act 1995 (NSW), s 69, regardless of its contents being hearsay and regardless of whether Mr Franklin was called.

10. [56]

    After Judge Bourke had dismissed Mr Franklin’s appeal and confirmed the conviction, Mr Franklin requested that his Honour refer a number of supposed questions of law to the Court of Criminal Appeal, pursuant to Criminal Appeal Act 1912 (NSW), s 5B. One of those questions was “(d): Was a business record of NSW Community Correction officer Ms Deborah Buckley admissible?”. His Honour declined to refer any question to the Court of Criminal Appeal for reasons which, in respect of question (d), were as follows: [13]

11. [57]

    It formed no part of Bourke DCJ’s reasons for rejecting the tender, or for then declining to state a case, that the contents of the file note would or could have made no difference to the outcome of the proceedings.

12. [58]

    Mr Franklin applied for judicial review of his Honour’s refusal to state a case, and, in respect of question (d) only, this Court upheld the application (“Franklin No 1”). [14] Hamill J, with whom McCallum JA and I agreed, said (emphasis added):

13. [59]

    His Honour concluded:

14. [60]

    The orders of the Court were, relevantly:

15. [61]

    When the matter returned on remitter to Bourke DCJ, his Honour observed, in the course of argument on 7 July 2021, that “I think l I have some residual discretion to refuse to refer a stated case”, and: [15]

16. [62]

    His Honour made a direction that Mr Franklin provide by 9 July a document setting out what facts he suggests should accompany any stated case, to which the Crown could reply, and stood the matter over to 12 July for a decision as to whether he would state a case.

17. [63]

    On 12 July 2021, before delivering judgment, his Honour asked: [16]

18. [64]

    Nor did the Crown wish to add anything. The argument which had taken place on 7 July was chiefly concerned with the scope of the material to be included in any stated case. No party addressed any argument to whether, if admitted, the file note would have made any difference, nor (beyond the passages set out above) did his Honour at any stage seek assistance or submissions on that point. Beyond what has been set out above, his Honour did not foreshadow that he proposed to reconsider the evidence to see whether he would remain satisfied beyond reasonable doubt of Mr Franklin’s guilt.

19. [65]

    His Honour then delivered judgment, which included the following: [17]

20. [66]

    His Honour proceeded to conclude that while he did not have a discretion in the ordinary sense to refuse to state a case, and there was a “qualified obligation” to do so, he was entitled in deciding whether or not to do so to take into account the factors identified by Basten JA in the following passage in Forrest v Director of Public Prosecutions (NSW) (“Forrest”): [18]

21. [67]

    After dealing with the other factors mentioned, the District Court judge turned to “whether the answer to the question, favourably to the applicant, might have been dispositive of the appeal”, and proceeded:

22. [68]

    His Honour therefore again declined to state a case, on grounds other than those which had been relied upon on the first occasion. Mr Franklin again applies for prerogative relief quashing that decision and commanding the District Court to state a case.

The remit to the District Court judge

1. [69]

   Insofar as the applicant submits that the District Court judge was effectively required by the orders of this Court in Franklin No 1 to state a case, and was not entitled to decline to do so on grounds which had not hitherto been relied upon, I do not agree. The order of this Court did not in terms require the District Court Judge to state a case. It quashed the prior decision not to do so, and required that the power be exercised afresh. The order did not otherwise confine the re-exercise of the power, save that it be “according to law”. To the extent that that there was any ground upon which the judge might properly decline to do so – other than that the question was not one of law, that having been resolved – that course remained open.

2. [70]

   That, however, directs attention to the nature of the function of a District Court Judge who is requested to state a case under s 5B, and the grounds if any upon which a judge so requested may decline to do so.

The function of the District Court judge under s 5B

1. [71]

   In this State, there is no general right of appeal from an adjudication of the District Court on an appeal from the Local Court. Nor is there any right of judicial review, except for jurisdictional error: District Court Act 1973 (NSW), s 176, provides:

2. [72]

   However, s 5B of the Criminal Appeal Act 1912 (NSW) provides a limited avenue of review, confined to a question of law, by way of stated case, in its current form as follows:

3. [73]

   For the following review of s 5B and its history I am considerably indebted to the judgment of Basten JA in Forrest, [19] notwithstanding that I am unable to share some of his Honour’s conclusions.

4. [74]

   Section 5B was introduced into the Criminal Appeal Act in 1924. [20] Its original form contained only subs (1). Although it provided no express power to quash any order made by Quarter Sessions (to which, rather than the District Court, it then applied), it provided that the question submitted was to be dealt with “as if it were an appeal under this Act.” In 1929, an amendment added the words “and the Court of Criminal Appeal may make any such order or give any such direction to the Court of Quarter Sessions as it thinks fit.” [21] A further amendment in 1939 gave the power to a Chairman of Quarter Sessions rather than to the Court. [22]

5. [75]

   In that form it was, as appears below, set out and considered by Jordan CJ in Ex parte McGavin; Re Berne (“McGavin”), which founded what became, at least until very recent years, a well-established line of authority to the effect that, once requested to do so by a party, a judge is obliged to refer a question of law to the Court of Criminal Appeal under s 5B, so long as the question is one of law arising in the District Court appeal, unless its submission would be an abuse of process. His Honour said: [23]

6. [76]

   In 1951, the deeming provision (“as if it were an appeal under this Act”) was omitted. [24]

7. [77]

   In Forrest, Basten JA observed that, ten years after McGavin, the High Court in Ward v Williams [25] (in the context of a power conferred by the Public Health Act 1902 (NSW) on a magistrate to order abatement, if defective conditions of residential premises were found to constitute a nuisance) adopted a more nuanced approach to the nature of such a power conferred on a judicial officer. [26] His Honour said: [27]

8. [78]

   Subsequently, in Finance Facilities Pty Ltd v Federal Commissioner of Taxation, [28] Windeyer J, with whom Barwick CJ agreed (in the context of a power conferred by the Income Tax Assessment Act 1936 (Cth) on the Commissioner to allow a private company a further rebate if satisfied, inter alia, that the shareholder has not paid a dividend to another private company) said – quoting from the judgment of Jervis CJ in Macdougall v Paterson, [29] on which Jordan CJ had relied in McGavin:

9. [79]

   Owen J reached the same conclusion, [30] relying on authorities which included Ward v Williams and Julius v Bishop of Oxford. [31]

10. [80]

    The implications of these decisions of the High Court in the context of s 5B were considered by this Court – after the omission of the deeming provision – in McDonald v Cogill, [32] where Samuels JA (with whom Moffitt P agreed), after referring to McGavin (and observing that the other members of the Court had not expressed agreement with Jordan CJ’s dictum, and that it had subsequently been inconclusively questioned by another Full Court in Neyland v Neyland [33] ), and discussing the judgments in Finance Facilities, nonetheless said:

11. [81]

    His Honour proceeded to state that a question would arise only if it was necessary for the decision of the case, and that a question does not “arise” within the meaning of s 5B unless it poses a challenge to a ruling necessary to the conclusive determination of the proceedings.

12. [82]

    Again in this Court, in Director of Public Prosecutions v Cassell (“Cassell”) it was said, of s 5B: [34]

13. [83]

    After setting out the relevant passage from McGavin, Kirby P observed:

14. [84]

    His Honour proceeded to state that “The foregoing authority has been applied many times in this State”. Cassell confirmed that a question could not be stated after the District Court had made a final order disposing of the appeal. [35] As the District Court judge had not finally disposed of the appeal, he was bound to state a case when asked to do so:

15. [85]

    In the context in which it appears, I do not detect, in his Honour’s description of the obligation of a Chairman of Quarter Sessions as one “to conform, when reasonably asked to do so, with the requirements of s 5B of the Criminal Appeal Act,” any departure from the approach in McGavin which confines the circumstances where there is no obligation to state a case to those in which doing so would involve an abuse of process; to the contrary, Kirby P was confirming that approach. [36]

16. [86]

    Moreover, in Cassell the error was held to be jurisdictional, so that relief was available notwithstanding (then) s 146 of the Justices Act 1902 (NSW), a “no certiorari” provision which was in the same terms as the current District Court Act, s 176: [37]

17. [87]

    In Nitiva v Director of Public Prosecutions, [38] this Court followed McGavin and Cassell. In West v Commonwealth Director of Public Prosecutions, it was held that, where a District Court judge had declined to state a case under s 5B because he considered the question of law unarguable and the application for a stated case therefore frivolous, he had effectively refused to exercise his jurisdiction. Priestley JA, with whom Meagher and Beazley JJA agreed, considered that the question of law was arguable, and said: [39]

18. [88]

    West confirmed the McGavin approach, and also that the failure to identify an arguable question of law was an error of jurisdiction so that prerogative relief remained available.

19. [89]

    With effect from 1 March 1999, s 5B was amended by the introduction of sub-s (2). This was a response to the position, explained in Cassell, that once an appeal had been finally disposed of there was no facility to state a case. [40] The Minister’s Second Reading Speech on the amending bill observed: [41]

20. [90]

    The amendment as originally formulated appears to have included no time limit. This omission was apparently drawn to the attention of the Attorney-General by the Bar Association, by a letter of 23 March 1998 which observed that the proposed amendment to s 5B did not contain any time restriction for an appeal by way of stated case after the appeal proceedings have been disposed of; that it may be that it was intended that any time be fixed by the Criminal Appeal Rules; but, the Association submitted, that if that was not the case, some time limit, perhaps 28 days after conviction (which might be extended by leave of the Court of Criminal Appeal) should apply to convicted persons. [42] It is perhaps noteworthy that in Committee, the Attorney-General spoke in terms which appear to proceed on the basis that s 5B effectively gave a right of appeal on a question of law (emphasis added): [43]

21. [91]

    It is not without significance that s 5B was seen as giving the parties in effect a right of appeal on a question of law, rather than being a facility to be involved by the judge if desirous of obtaining the opinion of the Court of Criminal Appeal. Subsection (3) was inserted with effect from 15 December 2006, clarifying that the Court of Criminal Appeal was empowered, on a question referred under sub-s (2), to set aside a decision of the District Court. [44] This had the effect of confirming the view to which the Court of Criminal Appeal had come in Siroric. [45] As will be elaborated below, I do not detect in these amendments, or in the extraneous material relating to them, any suggestion that they were intended to have any effect on the nature of the function of the judge, but only that they were intended to extend the facility of having a question referred to be available after as well as before the final disposition of the appeal. Manifestly, the mischief to be remedied was that it was considered unsatisfactory that any request for a stated case had to be made before final judgment in the appeal.

22. [92]

    After sub-s (2) had been inserted, this Court again considered s 5B, in Charara v Director of Public Prosecutions, in which it was said: [46]

23. [93]

    After setting out the relevant passage from McGavin, Giles JA continued:

24. [94]

    In later cases, including in the judgment of Bourke DCJ below, significance has been given to Giles JA’s reference to a “qualified obligation”. [47] About that, it should be noted, first, that the sole qualification identified was that the questions of law were so obviously frivolous and baseless that their submission would be an abuse of process; and, secondly, that a qualified obligation is not a general discretion. This does no more than confirm the McGavin approach.

25. [95]

    As to whether the error in declining to state a case was jurisdictional error, Giles JA said that it was: [48]

26. [96]

    After the insertion of sub-s (3) in 2006, the McGavin approach was referred to without any hint of doubt or disapproval in Sasterawan (emphasis added): [49]

27. [97]

    Next, in Elias v DPP (NSW), [50] Blanch J, with whom Beazley JA agreed, set out the relevant statement of Jordan CJ in McGavin and observed, without qualification, that it had been applied consistently, referring to Cassell and Charara. Basten JA, with whose additional comments Beazley JA also expressed agreement, added: [51]

28. [98]

    Those observations, it seems to me, are entirely consistent with McGavin, in confirming that a District Court judge may decline to state a case, if the occasion to do so has not arisen, or where to do so would involve an abuse of process. They do not affect the proposition that once the occasion for exercise of the power has arisen by identification of a question of law arising in the appeal, there is a duty to state a case unless an abuse of process is involved. Nor do they support any wider discretion to decline to state a case.

29. [99]

    Then, in Landsman v Director of Public Prosecutions, Macfarlan JA, with whom Simpson JA agreed, said, of s 5B: [52]

30. [100]

    His Honour held that declining to do so involved jurisdictional error: [53]

31. [101]

    Leeming JA, who agreed “very substantially”, added:

32. [102]

    Finally, in Jankovic v Director of Public Prosecutions (“Jankovic”), this Court again applied the McGavin and Cassell approach, also confirming that a refusal to state a case on the basis of an incorrect conclusion that a question is not one of law (or, if it is, an incorrect conclusion that it is frivolous or vexatious) is jurisdictional error. [54] Barrett AJA, with whom Macfarlan JA agreed, said:

33. [103]

    White JA said: [55]

34. [104]

    Accordingly, in my view it can fairly be said that by 2020 it was well-established by a series of decisions of this Court, both before and after the insertion of sub-s (2) and (3), that a District Court judge asked to refer a question under s 5B had a duty to do so if the conditions which enlivened the power were satisfied – namely that the question was one of law and it arose in the appeal – unless doing so would involve an abuse of process; and that failure to do so was jurisdictional error.

35. [105]

    Since 2020, however, there have been several decisions to the contrary effect. First, in Mack Fleet Pty Ltd v Transport for NSW, Basten JA (with whom Ward and Leeming JJA agreed) questioned whether the observations of Jordan CJ in McGavin should govern the application of s 5B in its current form: [56]

36. [106]

    His Honour then referred to his earlier observations in Elias v DPP, set out above, and concluded: [57]

37. [107]

    Next, in Forrest, Basten JA observed that the relevant comments of Jordan CJ in McGavin were “technically obiter”, though acknowledging that they had been “frequently applied”. [58] In the course of reviewing the legislative history of s 5B, his Honour observed: [59]

38. [108]

    His Honour said: [60]

39. [109]

    Having again acknowledged that “the principle stated in Re Berne has been applied on numerous occasions”, [61] his Honour referred to the observations of Giles JA in Charara that s 5B creates “a qualified obligation to state a case”, and to his own observations in Elias, as indicating that there were limits on the obligation of a District Court judge to state a case, and proceeded: [62]

40. [110]

    His Honour then stated, in the terms which have been set out above, that there was no good reason to limit the factors to which the District Court judge could have regard in considering whether to accede to a request to refer a question of law, [63] while reiterating his observation in Mack Fleet that the power to state a case (or to decline to do so) “must be exercised judicially”. [64]

41. [111]

    As to whether declining to state a case may involve jurisdictional error, his Honour said:

42. [112]

    Leeming JA agreed with Basten JA, adding: [65]

43. [113]

    McCallum JA (as her Honour then was) also substantially agreed, though confining the basis for not following Jankovic to its non-consideration of the impact of the legislative amendments.

44. [114]

    Most recently, in Gibson v Director Public Prosecutions (NSW) (No 2), [66] Bell P (as his Honour then was, with whom Basten JA and Meagher JA agreed) said:

45. [115]

    Basten JA, with whom Meagher JA also agreed, summarised the function of a District Court judge asked to state a case as follows: [67]

46. [116]

    Thus it appears now to have been held that a decision as to whether or not to submit a question of law is discretionary, and that an error by a District Court judge as to whether or not a proposed question sought to be referred was a question of law is not a jurisdictional error. Although this is at odds with the numerous authorities up to Jankovic in 2000 to which I have earlier referred and, as it seems to me, would require overruling no less than ten previous decisions of this Court, with the exception of the disapproval in Forrest of the reasoning in Jankovic relating to jurisdictional error, and the doubt expressed in Gibson as the conclusion in Franklin No 1 on the same question, this has occurred, if at all, sub silentio.

47. [117]

    The result reached in the recent authorities appears to me to be derived from a number of propositions, which I now address.

48. [118]

    First, there is the suggestion that it may be inferred, from the enactment of s 5B in 1924, in the form in which it was including the word “may” rather than the earlier 1881 [68] and 1849 [69] models which used the word “shall”, that – the Court of Quarter Sessions being a court presided over by a judge, as distinct from a lay justice – there was no intention to confer on an aggrieved party a right of appeal on a question of law and no intention to impose on the judge an obligation to state a question whenever so requested. [70] I acknowledge that if the law were in this respect tabula rasa, there would be some force in that reasoning – although it is countered by the equally available inference that Parliament chose to use a formula the mandatory effect of which had been established in 1851 by Macdougall v Paterson and had been confirmed as recently as 1923 by the High Court in Cook v Cook. [71] However, the more powerful indicator is that Parliament’s amendments in 1999 and 2006 were made against the background of the by then well-established McGavin approach, and appear to have proceeded on the basis of that approach, without any apparent intention to alter it. This may be taken as some Parliamentary confirmation of the then existing approach.

49. [119]

    Secondly, there is the suggestion that the 1999 and 2006 amendments inserting sub-s (2) and (3) have significantly changed the nature of the power conferred by s 5B. [72] However, I am unable to discern anything in these amendments, their context, or the extraneous material relating to them, to suggest that there was any intention other than to expand the existing power to refer a question of law so as to permit a request to be made after, as well as before, final disposition of the District Court appeal. Moreover, the amendments, and the Parliamentary debates, appear to proceed on the basis of s 5B as it had to that point been interpreted by the Courts. In particular, I am unable to discern from the (belated) insertion into s 5B(2) of a time limit for stating a case after disposal of an appeal – analogous to a time for appeal after conviction – any basis for concluding that the legislature intended to depart from the approach settled since McGavin, and confirmed in the very case (Cassell) which appears to have provoked the amendment to insert sub-s (2). If it were intended to reverse McGavin and Cassell by the 1999 amendments, a much more direct approach than the introduction of a time limit would have been adopted. The purpose of the amendment was to extend the procedure to enable it to be invoked after final judgment, not to reduce it to a mere discretion. Nor did this Court, in the judgments delivered between 2000 and 2020, discern any such change.

50. [120]

    Thirdly, I agree that, as has been accepted in the past, there are limits to the obligation to state a case. [73] However, these limits are not general discretionary considerations. As has been noted, in the case in which the terminology of “qualified obligation” was first employed, the sole qualification identified was that the questions of law were so obviously frivolous and baseless that their submission would be an abuse of process, [74] which is no more than a restatement of the McGavin approach.

51. [121]

    I agree that the District Court judge may determine whether the occasion to submit a question of law – namely that such a question has arisen on the appeal – has occurred. [75] Indeed I entirely accept that a District Court judge not only may, but must, decline to state a case, if (1) no question of law (2) arising on the appeal is identified. However, that is not because those are relevant discretionary considerations, but because they are conditions for the exercise of the power to refer a question: the power is not enlivened if they are not satisfied. I respectfully agree that there is no obligation to submit a question which is not a question of law; indeed there is no jurisdiction to do so. But that is because the existence of a question of law is a condition for the exercise of the power, not because it is a relevant discretionary consideration. Further, I do not disagree that materiality is relevant, in the sense that it is a condition for the exercise of the power that the question is one “arising on any appeal”. That requires that the question be one necessary to the ultimate disposition of the appeal, as distinct from an advisory opinion on a question which may or may not arise. However, the import of McGavin is that the power is not a discretionary one attended by a range of potentially relevant considerations, but that once the conditions for its exercise are established, it must be performed.

52. [122]

    Fourthly, it is said that an error by a District Court judge as to whether or not a proposed question sought to be referred was a question of law is not a jurisdictional error, and thus that judicial review is excluded by the privative clause in District Court Act, s 176. In Gibson, Bell P quoted the statement of Basten JA in Forrest (emphasis added):

53. [123]

    Although s 176 does not confer power but simply removes a right of review, I agree that its effect is that determinations of questions of law by the District Court judge are unreviewable – unless the judge has mistaken his or her function, exceeded, or failed to exercise, the jurisdiction of the court. The qualification arises because s 176 cannot deprive this Court, as part of the constitutional structure, of its inherent jurisdiction to control the jurisdiction of inferior courts by granting relief on account of jurisdictional error. [76]

54. [124]

    However, this does not mean that an error of law which goes to jurisdiction is unreviewable. While the judge has jurisdiction to decide whether the conditions are satisfied, that does not mean that an error in deciding those questions is not jurisdictional in character. The circumstance that an inferior court may err in law without committing jurisdictional error does not mean that every error of law by such a court is not jurisdictional. Every court has jurisdiction to decide whether it has jurisdiction, but if it errs in doing so, the error is nonetheless jurisdictional. Another way of putting it may be to say that while an inferior court has jurisdiction to err in law within jurisdiction, it does not have jurisdiction to err as to its jurisdiction.

55. [125]

    If the jurisdiction of the court is engaged, but the judge declines to exercise it (when there is a duty to do so) on the basis that it has not been engaged, that is jurisdictional error. It has always been jurisdictional error to fail to understand that jurisdiction has been engaged. In R v Shoreditch Assessment Committee, Farwell LJ said (emphasis added): [77]

56. [126]

    In Craig v South Australia, [78] the High Court stated that an inferior court falls into jurisdictional error if (emphasis added) "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 Abebe v Commonwealth, [79] Gaudron J said (emphasis added):

57. [127]

    For the purpose of jurisdiction under s 5B, the touchstone of the jurisdiction is the existence of a question of law arising on the appeal. In the context of s 5B, whether a question is a question of law is definitive of the jurisdiction to state a case. An incorrect answer to that question means that a judge wrongly assumes, or refuses to exercise, jurisdiction. That is not a mere error of law, but one which goes to jurisdiction. If the judge wrongly holds that there is no such question, that amounts to an incorrect decision that there is no jurisdiction to state a case. That is an error as to jurisdiction. As appears from the above discussion, so much has, at least until recently, been consistently accepted in this Court. I do not think that this analysis can be said to be novel; [80] it reflects that adopted by this Court in Cassell, West, Charara, Landsman, Jankovic and Franklin No 1. Indeed, in stating that a court 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, [81] Barrett AJA cited the judgment of the High Court in Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia, [82] concerning s 206 of the Fair Work Act 1994 (SA), which provided that a determination of the Commission was final and may only be challenged, appealed against or reviewed as provided by the Act, but that a determination of the Commission may be challenged before the Full Supreme Court “on the ground of an excess or want of jurisdiction”. Jurisdiction was engaged by the existence of an industrial dispute. French CJ said: [83]

58. [128]

    Gummow, Hayne, Crennan and Bell JJ said: [84]

59. [129]

    In my respectful view, that reasoning is equally applicable where a District Court judge decides erroneously not to state a case on the footing that the proposed question is not a question of law arising on the appeal.

60. [130]

    Finally, as a matter of policy, it is not clear why the Court should be astute to impose further constraints on the already very limited rights of an aggrieved party to a District Court appeal from a magistrate. As has been said more than once, [85] s 5B is important, because there is no other form of appeal available, and s 176 precludes judicial review, other than for jurisdictional error, which in an appeal from a magistrate’s decision rarely arises.

61. [131]

    Accordingly, in my judgment, there is no good reason to depart from the position which was until recently long and well established, namely that if the conditions are satisfied, it is the duty of a District Court judge asked to do so to state a question of law for the Court of Criminal Appeal, unless to do so would amount to an abuse of process. The conditions are that the question be one of law, and that it arises, in the sense that it is necessary to the decision in the proceedings. If the District Court judge declines to refer a question on the basis that no question of law arising on the appeal has been identified, that is a holding that there is no jurisdiction to refer a question, and if incorrect is jurisdictional error amenable to review notwithstanding District Court Act, s 176. It also follows that in my respectful opinion, despite the doubts expressed in Gibson, the conclusion in Franklin No 1, that it was jurisdictional error for the judge to decline to refer question (d) on the incorrect basis that it was not a question of law, was correct.

Was there jurisdictional error here?

1. [132]

   As has been seen, Judge Bourke disposed of the application on the basis of the second factor referred to by Basten JA in Forrest, namely whether the question arose on the appeal, in the sense that the answer to the question was capable of affecting the outcome. Insofar as his Honour treated that as a discretionary consideration, that approach was inapt. If his Honour believed that he was exercising a discretion, he misconceived his function and erred as to his jurisdiction.

2. [133]

   However, the second factor referred to by Basten JA in Forrest may properly be seen not as a discretionary consideration, but as referable to whether the second condition of the power was satisfied – namely whether the question ‘arose’. A question will not arise if it is hypothetical and unnecessary to the resolution of the appeal. A judge is not only justified in not referring such a question, but because it does not “arise” in the relevant sense, may not do so.

3. [134]

   Thus, if the judge, having rejected the tender of the Case Note Report, had nonetheless allowed Mr Franklin’s appeal and quashed the conviction, the question would not arise in the relevant sense, because if admitted the document could only have supported the decision which was in any event reached. Likewise, a question concerning the admissibility of evidence tendered by the prosecution but rejected would not arise if the appeal were dismissed and the conviction confirmed. In either case, it would, to use the term employed by Leeming JA in Landsman, [86] be “futile” to state a case. However, I do not accept that where, as here, the question of law is one as to the admissibility of relevant evidence which points in the opposite direction from the ultimate outcome of the appeal, the tender of which has been rejected, it is open to hold that the question does not arise. If the question were referred, the Court of Criminal Appeal would, if satisfied that the evidence had been wrongly excluded, quash the conviction and remit the appeal for rehearing, and by a different judge. The applicant would be entitled to be judged on all the properly admissible evidence, by a tribunal which had not already made up its mind, albeit only on some of that evidence. This is analogous to the position in a criminal appeal, where evidence tendered for the accused is found to have been wrongly excluded: there would at the least be a new trial, before a differently constituted tribunal of fact, unless the proviso were engaged, which would be so only if it could be said that the wrongly excluded evidence could have made no difference, so that even if it had been admitted the jury, acting reasonably on the evidence properly before them and applying the correct onus and standard of proof, would inevitably have convicted the accused; otherwise, the conviction must be set aside. [87] In that context, the question is not whether the wrongly excluded evidence would not have resulted in a different outcome, but whether it could not have done so.

4. [135]

   In my judgment, therefore, the question of the admissibility of the Case Note Report arose in the relevant sense: it was a question as to whether relevant evidence had been excluded which could have raised a reasonable doubt, even if for his Honour reviewing the matter retrospectively it did not do so. Reasons why it could have raised a reasonable doubt were articulated by his Honour: [88]

5. [136]

   It was not for his Honour to determine, after already having expressed himself to be satisfied beyond reasonable doubt of the applicant’s guilt, that upon reviewing the whole of the evidence, including that which he had hypothetically wrongly excluded, he would still have been of that opinion.

6. [137]

   A further reason for adopting this approach is that in principle apprehended bias would disqualify a District Court judge from reconsidering, on an application to state a case, whether he or she would still have been satisfied beyond reasonable doubt of the appellant’s guilt, if the evidence which had arguably been wrongly excluded were to be admitted. Such an apprehension reasonably arises from the same judge’s prior determination of the appellant’s guilt.

7. [138]

   The applicable test for apprehended bias is provided by the so-called “double might” test stated in Ebner v Official Trustee in Bankruptcy: [89]

8. [139]

   The burden inevitably borne by a party which has to dissuade a tribunal from an opinion already formed is well understood. As Kirby P said in Australian National Industries Ltd v Spedley Securities Ltd (emphasis added): [90]

9. [140]

   The problem was also described by Barrett AJ (as he had by then become) in Kirby v Dental Council of New South Wales (emphasis added): [91]

10. [141]

    In my view, a reasonably minded lay observer might well apprehend that, having already decided that an appellant was guilty beyond reasonable doubt, the same judge might not be able to bring an impartial mind to the question whether he or she was still so satisfied having regard to an additional piece of evidence pointing in the opposite direction. Both prejudgment and interest (in the sense of the natural human inclination to wish to see one's previous position vindicated) are in play. This is not an apprehension that arises from the refusal to state a case, but one which arises from the earlier judgment dismissing the conviction appeal.

11. [142]

    That is not to say that it is not usually permissible for the District Court judge who disposes of an appeal to deal with the application for a stated case; to the contrary, that is the usual and appropriate course, due to that judge’s familiarity with the case. Generally, that the judge has determined a question of law adversely to the applicant would not give rise to an apprehension that he or she might not bring an impartial mind to determining the questions ordinarily relevant to whether a case should be stated. But if the question were whether, if additional evidence were before the court, the judge would depart from a previously expressed satisfaction that the appellant was guilty beyond reasonable doubt, the position is otherwise.

12. [143]

    Given the conclusion which I have reached above with respect to jurisdictional error, it is unnecessary to decide whether any objection on grounds of apprehended bias was waived in this case, although, while it is true that Mr Franklin did not raise any such objection prior to the judgment of 12 July 2021, I do not think that it sufficiently appeared that the judge might embark on the exercise he did as to regard any such objection as having been waived. The passing reference to the possibility on 7 July 2021, coupled with an invitation to make submissions (only) as to whether he retained a discretion and the scope of any case to be stated, was not such as to alert even diligent counsel to the prospect that the judge was going to embark on a reconsideration of the question of Mr Franklin’s guilt on the assumption that the Case Note Report was in evidence.

Conclusion

1. [144]

   My conclusions may be summarised as follows:

2. [145]

   The earlier remitter from this Court did not command the District Court Judge to state a case, but required the power to do so to be exercised afresh, “according to law”. Insofar as there was any ground upon which the judge might properly decline to do so – other than that the question was not one of law, that having been resolved – it remained open.

3. [146]

   Exercising the power according to law, the judge was obliged to state a case if the conditions which enlivened it were satisfied, unless to do so would amount to an abuse of process. Those conditions are that the question be one of law, and that it arises in the proceedings, in the sense that it is necessary to the decision. If the District Court judge declines to state a case on the basis that no question of law arising on the appeal has been identified, that is a holding that there is no jurisdiction to refer the question, and if incorrect is jurisdictional error amenable to review notwithstanding District Court Act, s 176.

4. [147]

   Franklin No 1 resolved that question (d) was one of law. If his Honour regarded the “materiality” of the question as a relevant discretionary consideration, his Honour mistook the function to be performed, which was not discretionary. If the judge’s refusal to state a case is to be understood as determining that the second condition was not satisfied, in that the question did not arise in the relevant sense, his Honour was in error. Whether relevant evidence which might have raised a reasonable doubt as to the appellant’s guilt was wrongly excluded as hearsay is a question which arose in the proceedings.

5. [148]

   His Honour therefore declined to state a case, either on the incorrect basis that no question of law arising on the appeal had been identified, thus wrongly holding that there was no jurisdiction to refer the question; or wrongly supposing that his function was a discretionary one, when it was his duty to refer the question. In either case, that was jurisdictional error, and is amenable to review.

6. [149]

   In my judgment, therefore, the District Court judge’s second refusal to state a case on question (d) should be quashed, and the matter remitted to the District Court to state a case.