Forrest v Director of Public Prosecutions (NSW)

1. [1]

   BASTEN JA: On 21 December 2018 the applicant was convicted in the Local Court of one offence of dealing with proceeds of crime, contrary to s 193C(1) of the Crimes Act 1900 (NSW). The property the subject of the offending was a sum of $165,000 found in cash in a bag on the floor of a vehicle the applicant was driving. He was sentenced to an intensive correction order for a period of 12 months with an obligation to undertake 250 hours of community service.

2. [2]

   On 27 December 2018 the applicant lodged an appeal to the District Court against the conviction. The appeal was heard and dismissed on 1 August 2019 by O’Rourke SC DCJ. At 3.49pm on Thursday, 29 August 2019, the solicitor for the applicant emailed a letter to the judge’s associate, requesting her to state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). The judge’s associate replied by email the following day advising that the judge had declined to state a case.

3. [3]

   On 19 November 2019 (that is, 10 days short of the three month period for seeking judicial review [1] ) the applicant filed a summons in the Common Law Division seeking judicial review of the refusal to state a case. There is no appeal from the determination by the District Court of an appeal from a conviction in the Local Court; the only jurisdiction to review a decision of the District Court lies with this Court. The application was transferred to this Court.

4. [4]

   The basis of the application rests on the following propositions:

   1. (1)

      upon receiving a request from a party to state a case with respect to a question of law, the judge was obliged to do so, unless the request was obviously frivolous or baseless;

   2. (2)

      the request identified three questions of law and thus engaged the duty to state a case;

   3. (3)

      the judge erred in refusing to fulfil her duty to state a case;

   4. (4)

      the judge erred in failing to give reasons for refusing to state a case; and

   5. (5)

      in these circumstances, the applicant was entitled to have the refusal set aside and the judge directed to exercise her function according to law.

5. [5]

   The outcome turned on the correctness of propositions (1) and (2). If both are made good, there will be consequential issues concerning the nature and appropriateness of the relief sought.

6. [6]

   In written submissions, counsel for the Director conceded that the first question in the request, if reformulated, could be seen to identify a question of law which was material to the decision of the District Court. Subject to consideration of the appropriate form of relief, the Director therefore conceded that the matter should be remitted to the District Court for the application to state a case to be determined according to law.

7. [7]

   Before accepting that concession, it is necessary to identify a number of unstated assumptions which underlie it. For reasons explained below, the assumptions, once identified, may be seen to be unwarranted. It follows that the concession should not be accepted; the application for judicial review must be dismissed.

(a) current legislation

1. [8]

   The assumption that an applicant is entitled as of right to have a case stated on a question of law if the question is not frivolous or baseless is derived from judicial rulings with respect to a predecessor to the current provision. However, before turning to the legislative history, it is convenient to note how s 5B in its current form reads:

2. [9]

   The first assumption made by the parties derived from an apparent misreading of the terms of s 5B. Subsection 5B(1) confers a power on a judge of the District Court to submit a question of law to the Court of Criminal Appeal. Subsection (2) identifies when the question of law may be or must be “submitted”. That is, it identifies a period within which the judge, not a party, is required to act. The second assumption was that if a “request” were made by a party within 28 days, the obligation of the judge to submit a question would be engaged. Thirdly, it was assumed that that was so whether or not the request provided a draft “stated case”, and whether or not it identified with clarity and precision an appropriate question of law. It followed, based on those assumptions, that the duty of the judge was engaged in circumstances where (i) the request was made on the afternoon of the 28th day; (ii) no draft stated case was provided with the request; and (iii) a clear and precise question of law was not identified.

3. [10]

   That the legislature would impose an unqualified obligation on a court of record [2] to act in such circumstances is, to say the least, a surprising proposition. It is of course true that no sanction can apply to the court for breach of the obligation, other than an order in the nature of mandamus. Any detriment suffered by the failure of the court to act will be borne by the applicant. Yet that can hardly be a matter of concern where it is the inaction of the applicant which has led to the breach of the supposed obligation.

(b) judicial ruling

1. [11]

   In dealing with s 5B in its original form Jordan CJ stated in Ex parte McGavin; Re Berne: [3]

2. [12]

   These observations, though technically obiter, have been frequently applied. However, the assumption of a strict duty to act must now be viewed in the light of changes to the legislative scheme, and later analysis by the High Court of the principle derived from Macdougall v Paterson. It is convenient to start with the legislative history, which is not entirely straightforward.

(c) legislative history

1. [13]

   The history of provisions for stating a case, or referral of a question of law, for determination by a superior court, mirrors the somewhat tortuous history of statutory appeal provisions generally. There was reluctance throughout the nineteenth century and into the first decades of the twentieth century (both in the UK and in Australia) to permit judicial supervision of fact-finding by inferior courts and tribunals, and especially juries: [5] five mechanisms were adopted to allow strictly delimited review of the decisions of lower criminal courts. The first was the common law supervisory jurisdiction of the superior court of record in the jurisdiction. This was inherently limited to errors of jurisdiction and errors of law on the face of the record of the inferior court; the “record” was of limited scope and the procedure was restrictive. Secondly, where an appeal was provided, a distinction was drawn between questions of fact and questions of law; appeals were limited to the latter. [6] Thirdly, appeals could be controlled by imposing a leave requirement. Generally (though not always) the power to grant leave was vested in the appeal court. However, subject to any leave requirement, each of these mechanisms conferred a right on an aggrieved party to invoke the jurisdiction of the higher court and identify the relevant issue or issues for its determination.

2. [14]

   A fourth mechanism was to confer on the court from which the appeal was taken a power (and duty) to submit a question of law for determination by the superior court. The duty was enforceable by a power in the superior court to order that a case be stated. Fifthly, a power could be conferred on a court to submit a question of law for determination by the superior court, with no explicit obligation to do so. As will be seen the fourth mechanism was adopted where the court was comprised of lay justices; the latter where the presiding member was a judge. Viewed as a control mechanism, it would be surprising if the last option imposed on the trial court an unqualified obligation to exercise the power on request.

3. [15]

   Courts of General and Quarter Sessions were established in New South Wales in 1829. [7] The courts were constituted by lay justices, but the justices in a particular district were empowered to elect a chairman, to be appointed by the Governor. The Preamble to s 5 noted that it was “expedient that a person possessing competent knowledge of the law should be appointed to act as Chairman”.

4. [16]

   The system of appointing the Chairman of Courts of Sessions was not long lived. In 1858 the District Courts Act, [8] repealed the 1829 Act and provided for the creation of District Courts, and the appointment of judges for such courts. The judge was to be legally qualified (s 27) and was to be the Chairman of Courts of General or Quarter Sessions held within the district (s 25). Further, the judge was to be “the sole Judge at the trial of all criminal issues in such Courts”. [9]

5. [17]

   The origin of the procedure for stating a case or submitting a question of law to higher authority was found in English practice. [10] It was described by Professor Castles in the following terms: [11]

6. [18]

   The English history of stated cases in criminal jurisdiction was referred to by the High Court in Conway v The Queen: [13]

7. [19]

   The Reserved Criminal Cases Act of 1849 (NSW) stated:

8. [20]

   As appears from s 1, the application was required to be made “during the trial”, but it was understood that the trial might proceed to a conclusion (and conviction) before the question was determined. Pursuant to s 2, the Supreme Court was given power to “reverse, affirm or amend the judgment which shall have been given on the indictment or information on the trial whereof such question or questions shall have arisen”.

9. [21]

   In 1881, provision was made for a party dissatisfied with a determination of a justice “as being erroneous in point of law” to apply in writing within eight days for the justice to state and sign a case (which was to be done in accordance with a form set out in the schedule to the Act) “setting forth the facts and the grounds of such determination for the opinion thereon of the Supreme Court of New South Wales”. [18] Section 3 provided a limited power to refuse to state a case:

10. [22]

    The Justices Acts Amendment Act of 1900 (NSW) provided for a general right of appeal from a conviction or order of a justice to the Court of Quarter Sessions for the district where the conviction or order was made. [19] Shortly thereafter, that right of appeal was repeated in s 122 of the Justices Act 1902 (NSW). There was, at that stage, no right of appeal from the determination of the appeal to Quarter Sessions, and, pursuant to s 18, there was a prohibition on removal by way of certiorari into the Supreme Court. (That provision is now found in s 176 of the District Court Act.)

11. [23]

    Section 5B was introduced into the Criminal Appeal Act in 1924. [20] In its original form, it contained only subs (1). It had a marginal note: “Case stated from Court of Quarter Sessions”, although it did not use the term “case stated” in the text. It provided no power to quash any order made by quarter sessions, but rather provided that the question submitted be dealt with “as if it were an appeal under this Act.”

12. [24]

    The provision was amended in 1929 to insert at the end of the section 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] Curiously, the next amendment was to be found in the Child Welfare Act 1939 (NSW), which changed the conferral of power from a power conferred on the court to one conferred on a chairman of quarter sessions. [22]

13. [25]

    In 1951, s 5B was amended to omit the deeming provision (“as if it were an appeal under this Act”). [23] Also that year, by an amendment introducing a new s 131A into the Justices Act 1902 (NSW), a power was conferred on quarter sessions to submit a question of law “arising on any appeal to quarter sessions” to the Supreme Court for determination.

14. [26]

    These were common procedures at that time, when general rights of appeal from inferior courts and tribunals were uncommon, and even rights of appeal limited to points of law were less common than they are today. The form of a stated case, though considered awkward and anomalous today, no doubt had a practical value when proceedings were not mechanically recorded, and most judgments were delivered orally with brief reasons to an audience who had just heard all the evidence and the parties’ submissions.

15. [27]

    When the Parliament came to legislate in 1924 for a statutory mechanism to review decisions of Quarter Sessions on appeal from justices in Petty Sessions, it had available to it examples of all five means of review set out above. It cannot have been inadvertence which led to the adoption, not of a right of appeal to the Court of Criminal Appeal, but the conferral of a power on the Chairman of Quarter Sessions to submit a question of law. Nor was the form of the Justices Appeal Act of 1881, limiting the discretion of the justices requested to refuse to state a case, adopted. That too appears not to have been inadvertent. There is a material difference between empowering a lay justice or justices to submit a question of law to a court and empowering a Chairman of Quarter Sessions, being a legally qualified judge with security of tenure, to state a question of law. The judge is expected to understand the law and be able to judge whether there is in truth a dispute as to the law in the terms asserted by a party. Counsel will frequently challenge propositions of law stated by an opponent; they may even contest whether a question of law arises. The ability of lay justices to resolve such disputes may have been doubted; appointing a legally qualified judge alleviated such doubts. The different provisions for review surely reflected the differing institutional arrangements. The available inference is that, in the latter case (a court presided over by a judge), 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. The 1881 model was eschewed.

16. [28]

    Ten years after Re Berne, a more nuanced approach to the nature of a power conferred on a judicial officer was adopted in Ward v Williams. [24] The case concerned defective conditions of residential premises which, once found to constitute a nuisance, were subject to a power in the magistrate under the Public Health Act 1902 (NSW) to order abatement. As the High Court noted: [25]

17. [29]

    In considering whether the conferral of a power on the magistrate required its exercise, the High Court started with the proposition expounded by Cussen J in Re Gleeson: [26]

18. [30]

    Further, the Court noted that pursuant to the Acts Shortening Act of 1858 (22 Vic 12, s 8) where an enactment conferred a power using the word “‘may’ … the power may be exercised or not at discretion but where the word ‘shall’ is applied to the exercise of any such power the construction shall be that the power conferred must be exercised.” A similar provision was to be found in the Interpretation Act 1897 (NSW), and is now found in s 9 of the Interpretation Act 1987 (NSW).

19. [31]

    The question of law to be submitted must be one “arising” in the appeal from a magistrate, but the power was spent once the court had determined the question itself. So much was held in Roberts v Jones [28] with respect to a power to state a case under the Workmen’s Compensation Act 1926 (NSW), s 37(4). That section stated:

20. [32]

    Although Ferguson J expressed some doubt as to the outcome, the doubt was as to whether the Chairman had exercised a power of the Commission to reconsider the matter, a power which he alone did not possess. Had the hearing been reopened, the matter would not yet have been decided and the power to state a case would have remained available.

21. [33]

    That understanding of the temporal element was affirmed by the High Court in Ward v Williams, dealing with s 131A of the Justices Act:

22. [34]

    The situation as to timing, as it existed in 1974, was expressed in unequivocal terms by Jacobs P in Reg v Garnet-Thomas: [30]

23. [35]

    In 1995 in Director of Public Prosecutions v Cassell, [32] Kirby P, referring to Re Berne, described the obligation of a Chairman of Quarter Sessions “to conform, when reasonably asked to do so, with the requirements of s 5B of the Criminal Appeal Act.” The indication that the request must be reasonable reflected an approach to the observations in Re Berne which did not treat them as equivalent to a statutory formula, governing the nature of the power.

24. [36]

    On 1 March 1999, s 5B was amended to introduce sub-s (2). The change was explained in Sasterawan v Morris: [33]

25. [37]

    That situation was understood by the legislature in amending s 5B to add subs (2); the Minister’s Second Reading Speech noted: [35]

26. [38]

    There was a further technical problem which was not resolved until the insertion of subs (3), with effect from 15 December 2006. [36] Prior to that time, there was no express power for the Court of Criminal Appeal to set aside a decision of the District Court, as if on an appeal, following removal of the words deeming the case stated to be an appeal. Of course, such a power was not required when a case could only be stated prior to the order disposing of the appeal. There was then a built-in temporal constraint on formulating and settling the stated case: it had to occur before the final determination of the appeal.

27. [39]

    There is a tendency in subsequent cases to extract selectively aspects of the reasoning in Ward v Williams as to the nature of the power conferred on the magistrate under the Public Health Act which support the conclusion reached in Re Berne. One commonly cited passage is as follows: [37]

28. [40]

    However, the following discussion, noting that “[t]he magistrate is interposed between [the authority giving the notice] and the owner … and almost certainly he is interposed for the protection of the latter”, concluded by finding that the magistrate possessed a discretion. [38] The Court continued:

29. [41]

    In Re Berne, Jordan CJ was dealing with an issue as to the jurisdiction of Quarter Sessions. He had determined, immediately before the discussion as to the effect of s 5B, to uphold the challenge to jurisdiction. It is by no means clear that he had in mind setting out a comprehensive statement of the circumstances in which the duty did not arise, or might not be exercised. He did, however, identify a qualification if the Chairman of Quarter Sessions was of the opinion that the question was “so obviously frivolous and baseless that its submission would be an abuse of process.”

30. [42]

    The recent amendments have changed significantly the nature of the power conferred by s 5B. Yet there has been no attempt in any case since 1 March 1999 to reconfigure any implied duty to exercise the power under the new regime.

31. [43]

    Section 5B is still not in form the conferral on a dissatisfied litigant of a right of appeal on a question of law. Prior to determining a matter, the judge has a power to submit a question of law absent a request from a party. (Sometimes a conditional request would be made, in the form “If your Honour is against me on that point, as a matter of law, I would ask your Honour to state a case.”) Thereafter the power turns on the existence of a request. When a request is made at a time which renders it impossible for the judge to comply with the temporal limitation (that is after the 28 day period has elapsed), the existence of the power to state a case will be contingent upon an exercise of discretion by the Court of Criminal Appeal to extend time, as to which the judge can only speculate.

32. [44]

    On one view, once the period of 28 days from the date on which judgment was given had expired, there was no duty on the trial judge to consider, let alone grant, a request to state a case to the Court of Criminal Appeal. Further, if the request were made at a time when it was impracticable to comply with it prior to the expiration of 28 days, there would also be no implied duty to grant the request. (Whether there would be an obligation to consider it need not be determined.) Arguably the power to submit a question of law might remain, but would not be engaged in circumstances where the request did not state with clarity and precision a question of law which could be seen to have arisen, in the sense of being material to the outcome, in the concluded proceedings.

33. [45]

    A similar issue might have arisen in recent decisions, including Landsman v Director of Public Prosecutions [39] and Jankovic v Director of Public Prosecutions, [40] referred to below. However, the issue was not raised and the reasoning in those cases did not address the issue.

34. [46]

    It is true, as counsel for the applicant submitted, that the principle stated in Re Berne has been applied on numerous occasions. [41] However, it is also true that the scope and limits of the obligation have not been identified or addressed. Further, a number of cases have recognised that limits exist, including Charara v Director of Public Prosecutions, [42] where Giles JA referred to there being “a qualified obligation to state a case”. [43] In Elias v Director of Public Prosecutions (NSW) [44] constraints were recognised in the following terms:

35. [47]

    It has not been submitted that the existence of an occasion to submit a question of law, namely that it has arisen on the appeal, is not a matter to be determined by the District Court judge. Nor is it sufficient to identify an error of law on the face of the record of the District Court. The effect of the privative clause in s 176 of the District Court Act is to confer power to determine all questions of law on the District Court judge, such determinations being unreviewable unless the judge has mistaken his or her function, and in doing so has exceeded, or failed to exercise, the jurisdiction of the court.

36. [48]

    There 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. Those factors may include (i) whether the question formulated by the applicant states clearly and precisely a question of law; (ii) whether the answer to the question, favourably to the applicant, might have been dispositive of the appeal; (iii) any delay in making the request and the absence or strength of any explanation given for the delay, and (iv) whether the judge has any significant doubt as to the correct answer to the question of law.

37. [49]

    In functional terms, there is good reason to adopt such an approach in relation to a challenge to a refusal to submit a question of law to the Court of Criminal Appeal. First, it prevents the limited power conferred by s 5B being transformed into a general right of appeal on a question of law, which it patently is not. In Lavorato v The Queen, [45] I explained, in a passage cited with approval in Landsman v R: [46]

38. [50]

    Secondly, if there were a jurisdictional error in the judgment dismissing the appeal, that would be reviewable by this Court pursuant to s 69 of the Supreme Court Act 1970 (NSW). Thirdly, although there is merit in allowing such issues to be determined by the Court of Criminal Appeal, rather than this Court, that consideration is of limited importance in circumstances where the challenge to a refusal to submit a question of law under s 5B comes to this Court.

39. [51]

    Although the Court in Charara held that the judge below had committed a jurisdictional error, the Court refused relief on the basis that there was no real prospect of a different outcome. [47] It is surprising, in those circumstances, that jurisdictional error was identified on the part of the District Court judge in failing to identify a question of law for submission.

40. [52]

    The applicant noted that in Jankovic v Director of Public Prosecutions [48] this Court had recently applied the test in Re Berne in reaching a conclusion that the District Court judge had committed a jurisdictional error in refusing to state a case. The reasoning by which the Court concluded there had been a jurisdictional error in the original judgment on appeal and, perhaps consequentially, a jurisdictional error in refusing to state a case is, in some respects, novel. However, the critical passage for present purposes is the finding, based on Charara, that:

41. [53]

    This treats the issue of whether the condition of engagement of the power conferred by s 5B (has a question of law been proposed by the requesting party) has been satisfied as a jurisdictional fact to be determined by the reviewing court. If, contrary to the analysis set out above, that approach is correct, it is not a proposition which was addressed by Re Berne. Nor is there any subsequent authority which explicitly addresses that issue. Further, as with the other authorities relied on by the applicant, no question was raised in Jankovic as to the effect of the restructuring of s 5B from 1 March 1999, nor the effect of the subsequent amendment in December 2006.

42. [54]

    This aspect of the reasoning in Jankovic may have followed from the conclusion that, in determining an appeal from the Local Court under the Appeal and Review Act, the District Court “had no authority to identify the body of evidence that it was to take into account” and therefore “did not have the whole of the hallmark authority referred to by the High Court [in Craig v South Australia].” [49] This characterisation of the District Court’s function is untenable; as it appears to have infected the reasoning with respect to jurisdictional error, Jankovic is not an authority which provides assistance in this regard.

43. [55]

    As concluded in Mack Fleet Pty Ltd v Transport for NSW: [50]

Application of principles

1. [56]

   As the brief chronology noted above discloses, on 31 July 2019 the District Court judge heard the applicant’s appeal from his conviction in the Local Court. The defendant did not give evidence in the Local Court, nor in the District Court. Indeed, he appears not to have attended the hearing in the District Court. He did not attend for the delivery of judgment either.

2. [57]

   The request to state a case incorrectly asserted that “any application for a stated case is required to be made within 28 days of judgment or such further time as the Court of Criminal Appeal may allow.” Rather, s 5B required that the questions of law were to be submitted to the Court of Criminal Appeal within 28 days of the judgment, or such further time as the Court of Criminal Appeal may allow. There is an implied requirement that any request be made, with a draft stated case and containing the relevant questions, in sufficient time to allow the judge, if so minded, to submit the questions within the prescribed period: the timing of the request did not comply with that requirement.

3. [58]

   The questions of law set out in the request were as follows:

4. [59]

   It would have been open to the judge to decline to submit questions in that form. As the courts have observed on more than one occasion, the formula “Did I err in determining” or “Did I err in law in holding that” is generally inapt to identify a question of law. [51] The applicant sought to reformulate the questions in this Court. Neither reformulation clearly identified a question of law, but the exercise was in any event futile; the repository of the power to submit a question of law was the District Court, not this Court. The judge did not commit a jurisdictional error in failing to submit a question not before her. No doubt she had power to identify a question of her own motion, but no obligation to do so. (That power may have been spent once final orders were made.)

5. [60]

   On the facts, the case was one in which the appellant was apprehended by police in possession of $165,000 in cash, near an apartment suspected of being the location of drug dealing, and in circumstances where pieces of paper had been found identifying drugs and prices, including references to 1kg of cocaine costing $165,000. There was also evidence as to the response of the appellant when stopped by police, including his admission that it was all his money, that he had “just recently picked it up” that it was “about $100 plus”, and, inconsistently, that he had “had it for a very long time”. Although the appellant was leaving the location of suspected drug dealing with the money, the appellant’s argument on the appeal was that the money might have been in the appellant’s possession for the purpose of purchasing drugs, and was therefore not shown to be “the proceeds of crime”.

6. [61]

   The offence pursuant to s 193C(1) of the Crimes Act required only that there be “reasonable grounds to suspect” that the money was the proceeds of crime. There was a defence provided by s 193C(4), “if the defendant satisfies the court that the defendant had no reasonable grounds for suspecting that the property was substantially derived or realised, directly or indirectly, from [unlawful activity].” The appellant did not give evidence, and it was open to the judge to reject the evidence given by his mother as providing a basis upon which the defence could have been made out. There was undoubtedly evidence upon which it was open to the judge to draw the necessary inferences as to reasonable suspicion as to the money being derived from criminal activity. The issues in dispute were entirely factual. It was therefore open to the judge to decline to submit the questions to the Court of Criminal Appeal on the basis that they did not identify any error of law arising on the appeal.

7. [62]

   The summons seeking judicial review in this Court’s supervisory jurisdiction identified a single ground, namely the judge’s failure “to provide reasons in refusing to exercise the Court’s jurisdiction to state a case to the Court of Criminal Appeal”.

8. [63]

   It is true that the judge provided no reasons; it is also true that she was not requested to do so. The day following the emailed request to submit a question of law, the judge’s associate replied stating that “her Honour has considered your application however she is not prepared to state a case.” The appellant’s solicitor took the matter no further until, almost three months later, the present proceedings were commenced.

9. [64]

   The ground identified in the summons was dealt with only in the final substantive paragraph of the appellant’s written submissions. The failure to provide reasons was relied upon as support for the primary submission, that the judge had no good reason to refuse the request.

10. [65]

    The bulk of the submissions for the applicant comprised a challenge to the factual findings in the judgment dismissing the appeal, in support of the proposition that there was “no good reason not to state a case”.

11. [66]

    On the basis that to engage s 5B the judge was to be satisfied that the request identified a question of law arising on the appeal, it is not possible to infer that she misapprehended her function in refusing the request. In the absence of reasons, the decision was not unexaminable in the supervisory jurisdiction. However, it remained necessary for the applicant to establish jurisdictional error on the part of the judge. It would not, for example, be jurisdictional error for the judge to misapprehend the precise question sought to be raised by the syntactically obscure and imprecise questions in the request. In effect, the applicant’s case must depend on the principles outlined by Dixon J in Avon Downs Pty Ltd v Federal Commissioner of Taxation: [52]

12. [67]

    No such inference is available in the present case, in circumstances where (i) the request identified no clear question of law; and (ii) the appeal was almost entirely concerned with inferences drawn from facts. Further, the judge would have been entitled to take into account the delay and the apparent lack of justification for any delay. The need to obtain a written transcript of the judgment was no justification in circumstances where judgment was given in the presence of the applicant’s legal representatives, who were therefore able to note the reasons given. It was not immaterial that the issues agitated on the present application, by senior counsel for the applicant, were agitated by him at the hearing of the appeal in the District Court. No application was made in the course of the hearing for submission of any question of law to the Court of Criminal Appeal. Junior counsel who had appeared at the hearing appeared to take the judgment. She did not make any application at the conclusion of the proceeding on that day, either before or after orders were made, for the submission of a question.

13. [68]

    In these circumstances, this Court cannot be satisfied that any jurisdictional error was made by the District Court judge in refusing to submit a question of law to the Court of Criminal Appeal.

Conclusion

1. [69]

   There being no jurisdictional error on the part of the District Court judge, the application for judicial review must be refused. The applicant must pay the respondent’s costs in this Court.

2. [70]

   LEEMING JA: I agree with Basten JA. Insofar as my reasons in Landsman v Director of Public Prosecutions [2013] NSWCA 369 as to the effect of s 5B are to the contrary, they were reached without the benefit of the historical analysis of s 5B contained in Basten JA's reasons for judgment, and I respectfully think that they cannot survive that analysis.

3. [71]

   McCALLUM JA: I agree with Basten JA. As to his Honour’s analysis of the reasoning in Jankovic, I would confine my own reasoning to the consideration that no question was raised in that case as to the effect of the restructuring and subsequent amendment of s 5B. I otherwise agree with his Honour’s reasons and would add only one observation.

4. [72]

   In Landsman, Macfarlan JA (with whom Leeming JA and Simpson J agreed at [32] and [39]) remarked at [16]:

5. [73]

   The circumstances to which his Honour referred were the fact that no further appeal lies from such an appeal to the District Court and the privative clause (s 176 of the District Court Act). The force of his Honour’s remarks is not undermined by our different conclusion as to the scope of the power to decline to submit a question of law under s 5B of the Criminal Appeal Act. On the contrary, as Basten JA’s discussion of the legislative history reveals, the designation of the District Court judge as the repository of the power (in effect) to determine the finality of his or her own decision emphasises the importance of that power and the recognised requirement that it be exercised judicially and on grounds that accord with the scope and object of the Criminal Appeal Act.