SafeWork NSW v BOC Limited

1. [1]

   BASTEN JA: The applicant in these proceedings is known as “SafeWork NSW”, a term used to describe the Secretary of the Department of Finance, Services and Innovation, who is identified as the “regulator” for the purposes of the Work Health and Safety Act 2011 (NSW) (“Work Safety Act”). [1] The regulator is empowered to bring proceedings for offences under the Work Safety Act. [2]

2. [2]

   On 27 August 2018 SafeWork NSW issued a summons directed to the respondent, BOC Limited, alleging a breach of a “health and safety duty” under s 19(2) of the Work Safety Act. [3] Failure to comply with a health and safety duty constitutes a Category 2 offence. [4] Category 1 offences are dealt with on indictment; other offences are dealt with summarily before the Local Court or the District Court in its summary jurisdiction. [5] The summons in the present matter was dealt with summarily and not by way of indictment.

3. [3]

   The hearing proceeded over 10 days in February and April 2020 in the District Court before Strathdee DCJ. On 30 April 2020 the judge delivered reasons, but no orders were then made. [6] The applicant was offered an opportunity to request that any question of law arising at or in reference to the proceedings be submitted to the Court of Criminal Appeal for determination, pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). The applicant declined to make such a request; further, it took no step to invite the trial judge to address any issue said not to have been addressed. Orders were then made on 1 June 2020; the respondent was acquitted.

4. [4]

   On 25 June 2020, SafeWork NSW filed a summons invoking the supervisory jurisdiction of this Court seeking to quash the final orders of the District Court. The first question is whether this Court has the jurisdiction and power to review an acquittal resulting from the determination of summary criminal proceedings in the District Court, and, if so, in what circumstances. However, before turning to that question it is necessary to explain how the issue arose.

Background to present application

1. [5]

   In mid-July 2015 the respondent undertook work at Bankstown-Lidcombe Hospital installing oxygen and nitrous oxide piping to operating theatre 8. As a result of incorrect connection and labelling of the gas lines, the outlet labelled “oxygen” in fact delivered nitrous oxide. The error was not discovered until 21 July 2016. Over that year, 658 caesarean deliveries were undertaken at the hospital; 418 were emergency deliveries. Each new-born was potentially at risk if operating theatre 8 had been used. Of those deliveries, 36 were in fact undertaken in operating theatre 8. Two babies, delivered on 20 June 2016 and 13 July 2016 respectively, required oxygen. As a result of the crossed lines, each was inadvertently administered nitrous oxide. One survived, with serious brain damage, but the other died. The cross-connection error was identified on 21 July 2016, when the gas outlets were tested.

2. [6]

   A summons filed in the District Court on 12 July 2018 alleged that the respondent had breached the obligation imposed by s 19(2) of the Work Health and Safety Act to ensure, so far as reasonably practicable, that the health and safety of persons was not put at risk from work carried out in the course of its business. The risk identified was the risk to other persons, and specifically babies, suffering serious injury or death as a result of the administration of nitrous oxide instead of oxygen in the course of undergoing a resuscitation procedure. Eight particulars of breach were identified. Of central importance was particular (b) requiring the adoption of a “safe work procedure” which required:

3. [7]

   The prosecutor alleged that cross-connection occurred because (i) the employees responsible for undertaking the work in fact worked on both lines at once, (ii) the completed work was not in fact tested, and (iii) test certificates were signed by one of the respondent’s staff, and counter-signed by an employee of NSW Health as having witnessed the testing, although no testing had in fact taken place.

4. [8]

   The dispositive reasoning of the trial judge was as follows:

5. [9]

   The applicant challenged the reasoning of the trial judge that because the testing process was supposedly “fool proof”, the earlier failures to comply with safe work practices in carrying out the installation work were immaterial. Earlier in her reasons, the judge had correctly identified the question of causation as asking “whether the act or omission of the defendant was a significant or substantial cause of the exposure to the risk of injury”, referring to the judgment of the Court of Criminal Appeal in Bulga Underground Operations Pty Ltd v Nash. [7] The applicant submitted that there were self-evidently two separate and independent failures to comply with safe work practices. Rejection of the materiality of the prosecution case with respect to the cutting-in process was said to be an error. Such an error in the application of the law might have been corrected on an appeal by way of rehearing. The applicant submitted it was more than that, being sufficiently egregious to warrant characterisation as a jurisdictional error. Resisting that characterisation, the respondent submitted that the judge was under no misunderstanding as to the nature of the task to be undertaken and had neither exceeded, nor failed to engage with, her proper function.

6. [10]

   Secondly, the applicant contended that dismissing the egregious behaviour of the employee (Mr Turner) as something for which the company could not be responsible was also an egregious error, and thus a jurisdictional error. It submitted that the inference that the employee had not been properly trained as to the nature of, and the importance of compliance with, safe work practices in respect of laying and connecting the pipes and testing the work done, was readily available in the circumstances. Training and supervision were functions of the employer. The employee was not on a frolic of his own, but carrying out the work required, albeit in a negligent and slipshod manner. Again, it was submitted, the error in failing to find that the respondent was responsible for breaches of duty which led to the employee’s non-compliance with directions was equally egregious and hence constituted jurisdictional error. It may be accepted that such an error was one which could have been corrected on an appeal by way of rehearing, but, the respondent contended, it was not an error of the kind which demonstrated any departure by the judge from the exercise of the judicial function with respect to the elements of the prosecution case, nor in failing to address submissions made on the evidence.

7. [11]

   What has been outlined above is sufficient to identify the high points of the applicant’s case. It is not necessary or appropriate to go further unless it is established that this Court can exercise its supervisory jurisdiction with respect to the ultimate outcome, namely the acquittal of the respondent.

(a) identifying the issue

1. [12]

   The fundamental general law value is that a person should not be placed in jeopardy of conviction more than once for a particular offence arising out of the one course of conduct.

2. [13]

   Double jeopardy can occur serially or concurrently. A clear statement of the principle is found in Pearce v The Queen [8] which was concerned with concurrent overlapping charges. While the Court noted the important proposition that prosecutors “should not multiply charges unnecessarily”, [9] and that multiple charges could involve an abuse of process, it concluded that where offences contained different elements and two charges are necessary to reflect the whole of the accused’s criminality, [10] the principle against double jeopardy is not engaged.

3. [14]

   Further, the joint reasons of McHugh, Hayne and Callinan JJ identified the rationale of the principle, in terms directly applicable to the serial prosecution of the same charge:

4. [15]

   Before exploring the operation of the principle in the application of the Court’s supervisory jurisdiction, it is convenient to note the history of statutory appeals in criminal cases. That is because a significant body of case law has considered whether generic provisions conferring rights of appeal extend to appeals from acquittals. Those provisions have been universally construed by application of the clear statement principle, or principle of legality. Allowing an appeal against an acquittal would create double jeopardy because the accused would be put on trial for a second time with respect to the one offence. At least that will be so where there has been a contested trial: the position may be different where a charge is dismissed without a trial. If, as is inherent in the applicant’s case, there has always been relief available in the supervisory jurisdiction to quash or set aside an acquittal, any principle precluding double jeopardy must be seen as subject to an important qualification. No case construing appeal provisions so as not to apply to acquittals has identified any such general qualification.

(b) appeals from acquittals

1. [16]

   As noted above, there is an appeal provision relevant to the present case, namely s 5AE of the Criminal Appeal Act:

2. [17]

   The history and operation of this provision has recently been comprehensively addressed by Bathurst CJ and Bell P in Orr v Cobar Management Pty Ltd. [12] Importantly for present purposes, the joint reasons noted the issue raised in the following terms:

3. [18]

   Otherwise, the rights of appeal available to a prosecutor where a person has been acquitted of an offence, are limited. Part 8 of the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”), inserted in 2006, [15] makes provision for the ordering of retrials where a person has been acquitted of “a life sentence offence” (s 100) or a “15 years or more sentence offence” (s 101). In such cases, the Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an acquittal “on any ground that involves a question of law alone”, [16] and that Court may order a new trial. However, relevantly for present purposes, the section applies only to acquittals by the District Court in criminal proceedings for an indictable offence tried by a judge without a jury. [17] The present matter did not involve an indictable offence.

4. [19]

   Secondly, Pt 8, Div 3 deals with an appeal from an acquittal either in respect of “any proceedings tried on indictment” or “any proceedings tried by the Supreme Court or the Land and Environment Court in summary jurisdiction”. Neither of these categories apply in the present case, being the exercise by the District Court of its summary criminal jurisdiction. Accordingly, as is conceded by the applicant, there is no right of appeal from the acquittal.

5. [20]

   Part 8 had a predecessor in s 5A(2) of the Criminal Appeal Act: [18]

6. [21]

   The joint reasons in Orr observed:

7. [22]

   For completeness it may be noted that prior to 1 January 2012, s 197A of the Industrial Relations Act 1996 (NSW) provided a right of appeal to the Full Bench of the Industrial Commission against an acquittal in proceedings heard by the Commission or the Local Court. [19] Its repeal in 2011 was explained by the Minister for Finance and Services in the Legislative Council: [20]

8. [23]

   Since the transfer of the jurisdiction of the Commission to the District Court, there is no right of appeal from an acquittal except, as noted above, in relation to indictable offences. The carefully crafted effect of these statutory rights of appeal casts doubt on the possibility that there is, lurking in the unexplored interstices of this Court’s supervisory jurisdiction, some general right to review verdicts or judgments of acquittal.

(c) appeal from acquittal – first level appeal

1. [24]

   The cases further reveal a lively dispute as to whether a decision by an intermediate court of appeal overturning a conviction and substituting an acquittal can itself be overturned by a further appeal which would then, if upheld, deprive the person charged of the benefit of the acquittal in the intermediate court.

2. [25]

   In 1890, prior to the introduction of general rights of appeal in criminal cases, the Highway Act, 1835 (UK) [21] imposed a penalty for wilfully obstructing a highway. Section 105 conferred a right of appeal to quarter sessions from “any order, conviction, judgment, or determination” under the Act. An attempt by an unsuccessful informant to appeal failed; an application for mandamus to compel the justices to hear an appeal also failed: The Queen v The Keepers of the Peace and Justices of the County of London (“London Justices”). [22] Lord Coleridge CJ observed: [23]

3. [26]

   The Full Court of the Federal Court held in Thompson v Mastertouch TV Service Pty Ltd [No 3], [25] that the general provision in s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth), conferring jurisdiction to hear and determine “appeals from judgments of the court constituted by a single judge exercising the original jurisdiction of the court”, did not extend to jurisdiction to hear an appeal from an acquittal in criminal proceedings.

(d) appeal from acquittal on appeal

1. [27]

   The cases dealing with an acquittal by an intermediate appeal court setting aside a conviction at trial show a willingness to construe the statute as permitting the reinstatement of the initial conviction.

2. [28]

   Harry Messel was convicted of offences under the Fisheries Act 1965 (NT). The Supreme Court of the Northern Territory allowed the appeal and quashed the convictions. The prosecutor then brought a further appeal to the Full Court of the Federal Court which rejected the further appeal on the basis that no appeal lay from the judgment of acquittal in the Supreme Court. The prosecutor’s right to seek special leave to appeal to the High Court was itself controversial, but was held to fall within the constitutional jurisdiction of the High Court under s 73 of the Commonwealth Constitution. In Davern v Messel, [26] the High Court (Murphy and Deane JJ dissenting) set aside the decision of the Full Court of the Federal Court, holding that the latter had power to hear and determine the appeal by the prosecutor from the quashing of the conviction.

3. [29]

   In dissent, Deane J (the author of the principal judgment in Mastertouch) explained: [27]

4. [30]

   Murphy J (also in dissent) stated: [28]

5. [31]

   The adoption of the clear statement rule in construing appeal provisions is relevant, not because the case involves the construction of an appeal provision, but because the cases reveal the strength of the presumption that a statute would not allow a challenge to an acquittal, absent a clear statement of that intention, because it would be liable to place the defendant in a position of double jeopardy.

(e) quashing acquittals in the supervisory jurisdiction

1. [32]

   In 1881, nine years before London Justices, an order nisi for certiorari was discharged by a Divisional Court presided over by Lord Coleridge CJ (Field and Bowen JJ agreeing) in Reg v Duncan. [29] The grounds relied upon were (i) the improper reception of evidence, (ii) misdirection, and (iii) that the verdict was against the weight of evidence. The Chief Justice stated: [30]

2. [33]

   Although it is not fashionable to distinguish forms of “jurisdictional error”, that phrase encompasses (i) an incorrectly constituted tribunal, (ii) the irregular conduct of a hearing, and (iii) an irregular outcome. The grounds relied on in Reg v Duncan fell within (ii) and (iii): there remained a question (not raised by the present case) as to whether certiorari would lie in respect of (i).

3. [34]

   In 1913, in R v Simpson, [32] two coalminers were charged with failing to observe directions, in contravention of s 74 of the Coal Mines Act 1911 (UK). Proceedings for an offence under the Act could be taken in a court of summary jurisdiction, but not before a justice who was employed in a mine. After the defendants were acquitted, the prosecutor discovered that one of the justices was employed in a colliery. The justice being disqualified, the decision was sought to be quashed on the basis that the Court of Petty Sessions as constituted had no power to hear and determine the information. There were differences in the reasoning of the three members of the Divisional Court, Ridley J, Scrutton J and Bailhache J. Scrutton J stated that “there never has been a case in which an acquittal by a court of summary jurisdiction has been quashed by certiorari,” but was content to leave the question to be determined if the defendants were charged again and pleaded autrefois acquit. However, Bailhache J stated: [33]

4. [35]

   The reasoning of Bailhache J was applied by the Full Court of this Court in 1953 in Ex parte Schofield; Re Austin; Ex parte Green; Re Austin. [36] Schofield involved a challenge to a decision of a magistrate discharging a police officer on a charge of assault. The magistrate had earlier heard charges brought by the officer against the applicants and had convicted them, making clear his view that they lacked credibility. When the same magistrate considered the charges brought by the applicants against the officer, there was, as the court accepted, a reasonable apprehension of bias, which should have led the magistrate not to sit. The officer was acquitted. Street CJ, adopted the passage from the judgment of Bailhache J in Simpson set out above and continued: [37]

5. [36]

   In Schofield, the Full Court was invited to follow the Queensland case of R v Tchorzewski. [38] In the latter case Griffith CJ identified the issue as: [39]

6. [37]

   The Chief Justice (Cooper J agreeing) stated: [40]

7. [38]

   The most recent English decisions preceding Davern v Messel included the following observations of Robert Goff LJ in Reg v Dorking Justices; ex parte Harrington: [41]

8. [39]

   That case has been accepted as a statement applicable to trials, not decisions of quarter sessions on appeal from a conviction. In the latter case the House of Lords held in R v Bournemouth Crown Court, ex parte Weight: [42]

9. [40]

   The distinction between patent or manifest lack of jurisdiction and other forms of jurisdictional error may not sit easily with current jurisprudence in this country; nor is the distinction between a decision flawed by error of law, and a “nullity” attractive. However, the distinction between quashing an acquittal at trial and reviewing the overturning of a conviction at a first level appeal was accepted in Davern v Messel. [43]

10. [41]

    The result of the English caselaw was explained by Mason and Brennan JJ in Davern v Messel in the following terms: [44]

11. [42]

    Where the result is to reinstate the conviction at trial, there may be a need to demonstrate that the intermediate appeal was the result of fraud or perjured testimony. In discussing “fraud” in a public law context sufficient to set aside a tribunal determination, the High Court in SZFDE v Minister for Immigration and Citizenship [46] referred to the acceptance of Crofts in Davern v Messel:

12. [43]

    The proposition that the supervisory jurisdiction of the Court extends to review an acquittal, following a summary trial by a competent tribunal, and absent fraud, cannot be maintained. That is because such a possibility runs counter to the general principle of law that a person who is prosecuted for a breach of the law, if acquitted, “is not to be a second time vexed.” [50] The operation of that general principle is selected in the absence of cases involving the quashing of an acquittal by way of certiorari, and from the many cases relying on the proposition as the foundation of the requirement that any statute conferring a right of appeal in a criminal matter should not be construed as permitting an appeal by the prosecutor from an acquittal, unless such an intention is clearly and unambiguously expressed.

Applicant’s supplementary written submissions

1. [44]

   The applicants sought to resist this conclusion on three grounds. They may be characterised as (i) voidness, (ii) constructive failure to exercise jurisdiction, and (iii) judicial authority.

(a) voidness

1. [45]

   Characterising a decision as a “nullity” or as “null and void” is to identify an imprecise conclusion.

2. [46]

   As noted by Aronson, Groves and Weeks, “nullity” is a conclusory term with a meaning that depends on its context. [51] The relevant context in the present case is an application to review an acquittal. If the judgment were truly a nullity, SafeWork could simply seek to have the charge relisted for hearing in the District Court; no doubt that would provoke a plea of autrefois acquit on the part of the respondent, the substance of which would then be debated before a District Court judge. It is unsurprising that the prosecutor has not taken that course. The mere fact that there would need to be a court hearing to determine whether a plea of autrefois acquit should be accepted demonstrates that the judgment of the District Court was not without practical and legal consequences.

3. [47]

   The present question is whether one of those consequences was that the respondent has been at risk of conviction once already. Clearly it has been. The charge before the court was not itself insufficient to invoke the jurisdiction of the court and to provide a basis for a trial. Throughout the trial, the respondent was at risk of being convicted. In that sense, it was inaccurate to describe the trial as a nullity or as null and void.

(b) constructive failure to exercise jurisdiction

1. [48]

   The phrase “constructive failure to exercise jurisdiction” is, like nullity and jurisdictional error, a conclusory label. It encompasses, potentially, a range of errors. Use of the term “constructive” concedes that there has been no express refusal to exercise a jurisdiction which the tribunal in fact possessed, nor the usurpation of a jurisdiction it did not possess. Prosecutions for unsafe work practices used to take place in the Industrial Commission; if the present charges had been brought in the Commission, and the Commission had purported to determine them, there would have been a usurpation of jurisdiction. There is, however, no doubt that the District Court had jurisdiction to hear the charges, and did so. In its final judgment, the Court ruled on various matters in ways with which the prosecutor takes issue, as noted above. Suffice it to say that none of them involves an erroneous refusal by the District Court to exercise the jurisdiction to deal with the charges, nor were the proceedings brought by the prosecutor in the wrong tribunal. Further, nothing in the nature of fraud on the part of the respondent was alleged. For the reasons set out above, even errors which might in some circumstances be described as “jurisdictional” will not suffice to allow an appeal from, or review of, an acquittal of criminal charges. Adopting the label of constructive failure to exercise jurisdiction takes the matter no further.

2. [49]

   It should not be assumed that all forms of jurisdictional error have the same consequences in all circumstances. At its core, the applicant’s case was that any form of jurisdictional error was sufficient to render the trial a nullity. Authority for that proposition was sought in the description of “jurisdictional error” identified by the joint reasons of Kiefel CJ, Gageler and Keane JJ in Hossain v Minister for Immigration and Border Protection, [52] in the following terms:

3. [50]

   Three aspects of this passage should be noted. First, it related to administrative decision-making. The previous passage in the judgment commenced as follows:

4. [51]

   The present case did not involve an administrative decision, but a criminal trial in a court of record. [53] That is not to say that serious errors might not result in a summary conviction being set aside: the principles articulated in Kirk v Industrial Court of New South Wales [54] identify when that may occur. However, to treat principles stated in relation to administrative decisions as operating without qualification in relation to criminal trials would be to ignore the important distinction drawn in Craig v South Australia. [55]

5. [52]

   Secondly, as the joint reasons made explicit in both passages, the description was of a concept used “in the most generic sense”. That language was consistent with recognition that the consequences of errors going to jurisdiction might well vary depending upon the context in which the question of jurisdiction was raised.

6. [53]

   Thirdly, as noted in the passage immediately following those set out above, at [25], “jurisdictional error is an expression not simply of the existence of an error but of the gravity of that error.”

7. [54]

   Bearing these considerations in mind, it does not follow that an error of the kind which would warrant setting aside a conviction and requiring a retrial will warrant the setting aside of an acquittal and the ordering of a retrial. To equate those situations would be to ignore the principles based on double jeopardy.

(c) judicial authority

1. [55]

   As noted above, an acquittal was set aside in 1897 in Tchorzewski on the ground that a member of the tribunal had been disqualified. The status of that decision following Schofield need not be determined, as this case does not involve an incompetent tribunal.

2. [56]

   The applicant relied upon two cases in which judgments of acquittal had been set aside by single judges in this Court. The first was Hanna v O’Shane. [56] Mr Hanna had brought 62 criminal charges for various offences against five defendants. Upon his failure to appear when the matters were called in the Local Court, the magistrate dismissed all the charges. Mr Hanna sought orders in the nature of certiorari to quash those decisions on the grounds of breach of procedural fairness. Shaw J accepted that breach was established, but expressed “some concern” that granting the remedy would expose the defendants to the prospect of double jeopardy. [57] The judge referred to Davern v Messel, concluding that Mason and Brennan JJ had held that “double jeopardy extended to prosecution appeals against acquittal or discharge”. The judge continued: [58]

3. [57]

   The somewhat tentative expression of opinion as to the effect of the principle against double jeopardy in the circumstances of an acquittal may not have adequately reflected the position established on the authorities. However, because there had been no hearing on the merits, the case is readily distinguished from the present case and provides no authority in relation to the present circumstance.

4. [58]

   The second case relied upon by the applicant was the decision of Rothman J in Director of Public Prosecutions v Ozakca. [59] The circumstances of Ozakca were again far removed from those in the present case, but similar to Hanna. Summary criminal proceedings were listed before a magistrate for hearing. The prosecutor sought an adjournment, based on the absence of the principal prosecution witness, which was not opposed. The adjournment was nevertheless refused and, although there was a hearing, it was brief, given the absence of the victim and the charges were dismissed on the basis that there was no prima facie case. [60] The Director sought judicial review on the basis of procedural unfairness in refusing the adjournment.

5. [59]

   Rothman J was alert to the issue of potential double jeopardy. However, the only authority to which the Court was taken was the decision of the High Court in Pearce v The Queen. [61] There were two issues in Pearce: first, was an indictment oppressive because it included charges for two separate offences with overlapping, but not identical, elements, and, secondly, whether conviction and punishment for both offences constituted double punishment. The High Court dismissed the challenge on the first basis; the second is not presently relevant. Whilst acknowledging the force of the principle that a person should not be put on trial twice in respect of the same offence, Rothman J in effect held that the preliminary refusal of an adjournment, the refusal being unjustified in the circumstances, meant that there had never been a proper trial. His conclusions were expressed in the following terms:

6. [60]

   Again, it is not necessary to determine whether the conclusion reached in that matter is consistent with authority. The present case is not one where a trial was aborted by a preliminary ruling, such as refusing an adjournment, the ruling being found to involve procedural unfairness to the prosecutor.

Conclusions – scope of supervisory jurisdiction

1. [61]

   The justification for the principle depends upon essentially practical considerations affecting the circumstances of the person charged, namely, continuing or renewed embarrassment, expense and ordeal, and living in a continuing state of anxiety and insecurity. At least in relation to an individual, those factors do not depend upon a legal analysis of whether the defendant was truly “at risk” because of some legal failing in the trial, where a trial has in fact taken place. Particularly is that so where the error is not identified until judgment is delivered and the reasons of the judge are examined, as in the present case. In those circumstances, it should be concluded that judicial review is not available to quash the judgment and orders of the District Court acquitting the defendant of the charge.

2. [62]

   It may be noted that the defendant is a corporation and not an individual; accordingly, the justification underlying the principle of double jeopardy does not have equal force. However, it was not contended that the principle should have differential application with respect to individuals and corporations. That possibility does not require further consideration.

Orders

1. [63]

   On the basis that the Court has no power to review an order acquitting the respondent, made after a trial and judgment, the Court should make the following orders:

   1. (1)

      Dismiss the summons filed on 25 June 2020.

   2. (2)

      Order the applicant to pay the first respondent’s costs.

2. [64]

   MACFARLAN JA: I agree with Basten JA.

3. [65]

   LEEMING JA: I agree with Basten JA, for the reasons he gives, that this Court’s supervisory jurisdiction does not extend to the review of an acquittal, following a summary trial by a competent tribunal in the absence of fraud, and for that reason the summons must be dismissed. I also agree that it is unnecessary and inappropriate to go further and assess the case sought to be advanced in this Court by the applicant. But I would add that, in my opinion, there were powerful discretionary reasons telling against the grant of relief to the applicant.

4. [66]

   A large component of the applicant’s complaint in this Court was that the primary judge had failed to address a substantial aspect of its case. Yet the primary judge gave ample opportunity – more than four weeks after reasons were given on 30 April 2020 – for a case to be stated pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW). During that time (no orders having been made) it would also have been open to the applicant to apply for a determination of part of the case that had not been determined. Neither of those avenues was availed of. Instead, its summons having eventually been dismissed on 1 June 2020, the applicant sought to invoke this Court’s supervisory jurisdiction on 25 June 2020.

5. [67]

   Where there is, as here, a remedy by way of appeal which is available and effective, that remedy ought be pursued first and the failure to do so will generally provide a reason for the refusal of any relief by way of judicial review: Quach v Health Care Complaints Commission [2015] NSWCA 187 at [21]. That applies a fortiori where there is an appeal and an ability to apply to the District Court. This is a case where the applicant must be taken to have made a deliberate decision not to exercise such rights as it had to apply to the District Court, or to the Court of Criminal Appeal. In those circumstances, there would be, to say the least, a powerful case for withholding relief as a matter of discretion. As was raised during the hearing:

6. [68]

   No satisfactory answer was given to that question. I do not think a satisfactory answer could have been given.

7. [69]

   For those further reasons, I agree with the orders proposed by Basten JA.