Franklin v Director of Public Prosecutions (NSW)

1. [1]

   BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Hamill J.

2. [2]

   In the context of this case, it is neither necessary nor, in the absence of full argument on the question, appropriate, to do more than act on the long-accepted rule that, on an application to state a case under (NSW) Criminal Appeal Act 1912, s 5B, the District Court Judge may decline to do so unless satisfied that the proposed case concerns only a “question of law”, or if “…the question is so obviously frivolous and baseless that its submission would be an abuse of process”. [1]

3. [3]

   Other than question (d), none of the questions propounded by the applicant is a “question of law” within the meaning of s 5B. However, question (d) is such a “question of law”. It is not obviously frivolous and baseless, and the judge ought to have stated it for the Court of Criminal Appeal. In not doing so, his Honour failed to exercise his duly engaged jurisdiction.

4. [4]

   I agree with the orders proposed by Hamill J, and with his Honour’s reasons.

5. [5]

   McCALLUM JA: I agree with Hamill J. I acknowledge the tension in the authorities to which his Honour has referred. However, as both his Honour and Brereton JA have observed, it is neither necessary nor appropriate to revisit that issue in the present case.

6. [6]

   HAMILL J: Craig Andrew Franklin seeks judicial review of a decision of his Honour Judge Bourke SC on 4 September 2020 by which his Honour declined to state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW).

7. [7]

   The application to state a case arose at the conclusion of Mr Franklin’s District Court appeal against his conviction in the Local Court for an offence of assault. Judge Bourke dismissed the conviction appeal. No appeal lies for such a decision, and the scope for review is limited. [2] Mr Franklin relies on the Court’s jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). He submits that Judge Bourke fell into jurisdictional error and that his Honour made an error of law on the face of the record. The Court was supplied with a volume of material with which to assess the submissions on each side and to determine whether the primary Judge fell into the kind of error asserted.

8. [8]

   The proceedings in this Court were commenced by summons filed on 17 September 2020 and amended on 28 October 2020. The relief claimed in the amended summons is as follows:

9. [9]

   The applicant appeared for himself. He was a practising lawyer in earlier times but no longer practices for reasons of no present significance. [3] The first respondent (NSW Director of Public Prosecutions) was represented by Mr Balodis of counsel. The second respondent (District Court of New South Wales) submitted to the orders of the Court.

Procedural history of the applicant’s case

1. [10]

   The case has a rich history and, because of its relevance to some of the questions of law, it is appropriate to set out that history in summary form.

2. [11]

   The case commenced in the Local Court at Katoomba after the applicant was arrested and charged with common assault contrary to s 61 of the Crimes Act 1900 (NSW) on 21 November 2016. The allegation was that the applicant assaulted his then wife during an argument about money in the early hours of the morning on 2 September 2016. It was alleged that Mr Franklin pushed and shoved his wife repeatedly as she tried to access the couple’s safe, causing her to fall backwards. Each time she tried to stand up he pushed her back down. She eventually gave up on accessing the safe but tried to gather some papers from the floor. At this point the applicant grabbed her shoulders, shoved her to the floor and then dragged her out of their bedroom by one arm. The victim did not sustain any injuries as a result of the assault.

3. [12]

   The applicant pleaded not guilty in the Local Court and the matter was listed for hearing before Magistrate Toose on 5 April 2017. On that date, and on 18 and 19 July 2017, the Magistrate dealt with issues arising out of a number of subpoenas served by the applicant.

4. [13]

   One of the documents caught by the subpoenas was a report made to Crime Stoppers. This was the subject of a public interest immunity claim made by the NSW Police Force. Part of the argument concerning the claim for immunity was made in the absence of the applicant. The Magistrate upheld the claim and said:

5. [14]

   The applicant sought to appeal against the Magistrate’s interlocutory decision in respect of this report (and other material) to the Supreme Court on a question of law pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW). Part of the argument, resolved against the applicant, concerned the procedure adopted by the Magistrate in hearing the argument about public interest immunity. [5] Johnson J held there was no error of law disclosed in the Magistrate’s reasoning and refused leave to appeal. [6]

6. [15]

   The applicant then appealed to this Court. The summons seeking leave to appeal was dismissed with costs on 19 September 2018. [7]

7. [16]

   Mr Franklin sought special leave to appeal to the High Court. Special leave was refused (Bell and Gageler JJ) on 14 December 2018. [8]

8. [17]

   The matter went back to the Local Court. Magistrate Toose held she was disqualified from hearing the substantive proceedings for the assault charge when she realised she had a close working relationship with one of the witnesses.

9. [18]

   The hearing commenced on 15 May 2018 before Magistrate Corry in the Local Court at Katoomba. It continued on 9 October 2018 and 22 January, 20 August, 4 and 5 December 2019. On 5 December 2019, the applicant was found guilty, convicted, and sentenced to a Community Corrections Order for a period of 2 years, subject to supervision.

10. [19]

    Mr Franklin appealed against his conviction to the District Court and sought leave to adduce four categories of new or fresh evidence on the appeal under s 18 of the Crimes (Appeal and Review) Act 2001 (NSW). Some of the evidence sought to be adduced had been excluded pursuant to evidentiary rulings during the Local Court hearing.

11. [20]

    The matter came before Judge Bourke on 31 July 2020. His Honour granted leave to adduce evidence in documentary form relating to the side effects of the drug Valium, but otherwise refused to allow the remaining three categories of evidence.

12. [21]

    Of particular significance to the present proceedings is that the applicant sought the admission of a case note report from the Department of Corrective Services. The note referred to a telephone call Mr Franklin made to an officer of Lithgow Community Corrections, Ms Buckley, on 2 September 2016. The call related to the incident the subject of the assault charge and was made almost immediately after the incident happened.

13. [22]

    The applicant also sought the admission of the record of the Crime Stoppers call that was subject to the successful claim for public interest immunity that had made its way to the High Court.

14. [23]

    Judge Bourke refused leave to allow the admission of the case note report and the Crime Stoppers call.

15. [24]

    On 13 August 2020, Judge Bourke dismissed the appeal against conviction and confirmed the orders of the Local Court. This decision was based on a “rehearing” of the evidence given in the Local Court and his Honour’s satisfaction that the case against the applicant was established beyond reasonable doubt.

16. [25]

    Mr Franklin wrote to Judge Bourke on 21 August 2020 and requested that his Honour state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act. The applicant submitted there were:

17. [26]

    The applicant listed 10 matters, all of which he submitted were questions of law:

18. [27]

    While the letter said the questions of law were “not limited to” the 10 matters (a) - (j) listed, those are the only questions advanced by the applicant in his written and oral submissions both before Judge Bourke and before this Court.

19. [28]

    Judge Bourke listed the matter on 4 September 2020 and delivered a judgment that same day. His Honour refused the application, predominately on the basis that none of the questions posed were questions of law. The summons before this Court, in essence, seeks review of the decision of Judge Bourke declining to state a case to the Court of Criminal Appeal. However, the nature of that review is confined.

Section 5B of the Criminal Appeal Act and the controversy in the case law

1. [29]

   Section 5B of the Criminal Appeal Act is in the following terms:

2. [30]

   Section 5B creates an exception to the general proposition that there is no avenue of appeal from decisions of the District Court determining conviction and sentence appeals from the Local Court. The “stated case” procedure empowers the Court of Criminal Appeal to address questions of law only. It cannot be drawn into questions of fact, or mixed questions of law and fact. In Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185, Basten JA (Grove and Hidden JJ agreeing) said (at [10]):

3. [31]

   Subject to the orders that may be made under sub-s (3), “the procedure is not intended to provide a means of challenging the ultimate determination made (or to be made)” by the District Court: R v Madden (1995) 85 A Crim R 367 at 370. Section 5B provides a limited avenue of review, not a general right of appeal. The statutory regime in NSW does not provide for a general appeal from the District Court of a determination of an appeal from the Local Court.

4. [32]

   As the respondent submitted in writing, a question of law for the purpose of s 5B “is concerned with an issue involving a principle which is capable of general application, as opposed to a ruling which is dependent upon an assessment of particular facts, and which is therefore not readily capable of wider application to other situations”: Duarte v Director of Public Prosecutions (NSW) [2020] NSWCCA 351 at [29] (Bellew J, Hoeben CJ at CL and Harrison J agreeing).

5. [33]

   The applicant submitted that, once requested to do so by a party, a judge is under a duty to state a case to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act on a question of law: see, for example, Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 at 164-165 per Kirby P (Priestly and Powell JJA agreeing); Charara v The Director of Public Prosecutions & Ors [2001] NSWCA 140; (2001) 120 A Crim R 225 at [33] (Giles JA, Powell JA and Ipp AJA agreeing); Sasterawan v Morris at [5] (per Basten JA, Grove and Hidden JJ agreeing); Elias v The DPP (NSW) [2012] NSWCA 302; 222 A Crim R 286 at [35]-[36] (Blanch J). This approach has its roots in the judgment of Jordan CJ in Ex parte McGavin; Re Berne and Others (1946) 46 SR 58 at 61 where his Honour said:

6. [34]

   This passage has been applied in many subsequent decisions relating to s 5B. However, in Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149 Basten JA (with Ward and Leeming JJA agreeing) questioned at [14]-[19] whether the observations of the Chief Justice in Ex parte McGavin; Re Berne & Ors should be applied in an unqualified way. For example, Basten JA said (at [14] – [17]):

7. [35]

   His Honour then referred to his earlier observations in Elias v The DPP at [8]-[9]:

8. [36]

   However, his Honour concluded in Mack Fleet v Transport for NSW at [20]:

9. [37]

   In Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162 Basten JA (at [8]-[48]) traced in more detail the legislative history of s 5B and the precedential value of the judgment of Jordan CJ in Ex parte McGavin; Re Berne. His Honour noted at [12] that Jordan CJ’s comments were “technically obiter” but acknowledged they had been “frequently applied”. Basten JA said at [42]:

10. [38]

    Basten JA relied on the observations of Giles JA in Charara v The Director of Public Prosecutions & Ors that s 5B creates “a qualified obligation to state a case”. [9] Basten JA decided at [47]:

11. [39]

    Section 176 of the District Court Act 1973 (NSW) provides:

12. [40]

    His Honour continued at [48]:

13. [41]

    Basten JA at [55] reiterated his observation in Mack Fleet (set out above at [36]) emphasising that the power to state a case (or to decline to do so) “must be exercised judicially”.

14. [42]

    Leeming JA agreed with Basten JA (at [70]). McCallum JA (at [71]-[73]) also agreed although her Honour “confined” her agreement and made an additional brief observation.

15. [43]

    Finally, reference should be made to the decision in Jankovic v Director of Public Prosecutions [2020] NSWCA 31 where this Court applied the “test” articulated by Jordan CJ in Ex parte McGavin; Re Berne without the reservations and caveats expressed by Basten JA (White JA at [24]; Barrett AJA at [91]-[93] (Macfarlan JA agreeing)). In Forrest v DPP, Basten JA referred to the decision in Jankovic at [52]-[54]. However, his Honour determined at [54] that “Jankovic is not an authority which provides assistance” for the reasons given in the preceding sentences in [52]-[54].

16. [44]

    It is difficult to reconcile the decisions and reasoning of the Court in these various cases. However, for reasons that will be apparent from what follows, there is no need to address further the tension in the authorities.

17. [45]

    What is clear is that the District Court Judge must be satisfied that the case stated concerns only a “question of law” and may decline to state a case if “…the question is so obviously frivolous and baseless that its submission would be an abuse of process”: Ex parte McGavin; Re Berne & Ors at 61 (Jordan CJ).

18. [46]

    When the application came before Judge Bourke, it was for his Honour to determine whether any or each of the questions posed by the applicant was a question of law, whether they were material to the issues to be determined, and whether they were, in reality, an attempt to challenge the ultimate determination (that Mr Franklin was guilty and that his appeal from the Magistrate’s decision should be dismissed). His Honour was also permitted or required to determine whether the questions were “frivolous or baseless” to which descriptors should be added “vexatious”. If his Honour’s determinations of those questions were so erroneous that they constituted an actual or constructive failure to exercise his jurisdiction under s 5B of the Criminal Appeal Act, this Court is required to intervene.

19. [47]

    I now turn to the 10 questions posed by the applicant, noting that Mr Franklin withdrew his reliance on question (f) on the hearing of the appeal.

The applicant’s proposed questions of law

1. [48]

   With one exception, each of the purported questions of law posed by the applicant is readily disposed of, and Judge Bourke was correct in declining to submit those questions as part of a stated case to the Court of Criminal Appeal. I will deal with those questions first, before turning to the question that raises more difficult considerations.

2. [49]

   Judge Bourke’s conclusion that this question did “not identify a relevant question of law arising on the appeal heard by me” was correct for the following reasons given by his Honour:

   1. (1)

      The Crime Stoppers document was not before the District Court because a claim for public interest immunity had been upheld in the Local Court, a decision which was not disturbed by the Supreme Court, the Court of Appeal or the High Court of Australia.

   2. (2)

      Its admissibility was unknowable because its contents were not before the Court. Had it been, determining the admissibility of the Crime Stoppers call may have required an assessment of a number of issues including its capacity rationally to affect the assessment of a fact in issue.

   3. (3)

      The question involved an attempt to use the stated case procedure as a form of general appeal.

3. [50]

   On that last point, it was, in fact, an attempt to re-agitate an appeal that had been dealt with comprehensively by Johnson J and this Court in 2017 and 2018. The High Court decided it did “not raise any question of principle that would warrant the attention of this Court”. [10] The procedure provided by s 5B ought not to be used in that way and the suggestion is, or borders on, the frivolous and vexatious.

4. [51]

   The applicant submitted that this question required Judge Bourke to consider “whether the trial before Magistrate Corry had miscarried because Magistrate Corry did not personally know relevant secret evidence at the core of the public interest immunity application”. [11]

5. [52]

   Magistrate Toose held that she was disqualified from hearing the case when she discovered she had had a close working relationship with one of the defence witnesses. Question (b) suggests that Magistrate Corry’s lack of knowledge of the contents of the Crime Stoppers report may have resulted in unfairness to the applicant and, perhaps implicitly, that Magistrate Toose’s knowledge of that material would have assisted the applicant in some way. Because of the decisions as to immunity, the evidence could not be admitted. Knowledge of that inadmissible material could not assist the Local Court in deciding the case. Any knowledge of the material acquired as a result of the interlocutory claim of immunity had to be put out of the Court’s mind in deciding the issues.

6. [53]

   Judge Bourke was correct in deciding that question (b) was, at best, a question of mixed law and fact and would require the Court of Criminal Appeal to consider the entirety of the evidence in the Local Court. His Honour was also correct in deciding it was not an appropriate question for submission to the Court of Criminal Appeal under s 5B.

7. [54]

   This question relates to a statutory declaration made by the complainant on 13 October 2016. In that statutory declaration, the complainant sought to retract her allegation of assault. The declaration was before the Local Court and before Judge Bourke. The prosecution relied on the complainant’s evidence in court in which she maintained that she had been assaulted and explained the reason she made the retraction declaration. Such retractions are not uncommon in cases of domestic violence. Both the Magistrate and Judge Bourke were required to consider the retraction as part of the evidence relevant to whether the complainant’s account given in Court established the offence beyond reasonable doubt.

8. [55]

   Categorising the declaration as a “prior inconsistent statement” (which it clearly was) or a “declaration of Mr Franklin’s innocence” (which is, perhaps, not an unfair description) did not change the nature of the inquiry to be undertaken by the tribunal of fact. Nor does the nomenclature adopted convert what was a question of fact into a question of law. As the respondent accepted, the evidence became evidence of the truth of its contents through s 60 of the Evidence Act 1995 (NSW). There is nothing to suggest that the evidence was not considered by Judge Bourke in an appropriate way. His Honour referred to the evidence in the course of his reasons along with a number of other pieces of evidence that bore upon the complainant’s credibility.

9. [56]

   Judge Bourke was correct to conclude that the question was, in reality, “a submission about what factual conclusions ought to be drawn from one of the exhibits considered on the appeal”. It was not a question of law for the purposes of s 5B.

10. [57]

    This question is, on its face, a question of fact. His Honour was correct to conclude that it was not an appropriate question for submission as a stated case under s 5B because, as his Honour put it, it was “a question of fact or at least mixed fact and law”.

11. [58]

    In the applicant’s written request to Judge Bourke to state a case, he did not identify the evidence that was “not properly excluded” for the purposes of this question. At the hearing before this Court, the applicant clarified that he thought evidence of his criminal history given by the complainant should have been excluded pursuant to s 137 of the Evidence Act.

12. [59]

    On the applicant’s appeal to the District Court the following exchange took place:

13. [60]

    It is difficult to conclude that the evidence to which the applicant refers was “before the court and not properly excluded”. Judge Bourke said he would disregard the material and there is nothing in the record to suggest he did not do so. This is not a question of law, but rather an inquiry that would involve mixed questions of law and fact. Further, the question lacked precision and would not have been amenable to an answer that would have fulfilled the purpose and requirements of s 5B.

14. [61]

    Judge Bourke was correct to decline to state this question to the Court of Criminal Appeal.

15. [62]

    This is a question of fact. There may have been legitimate arguments as to intention, accident, self-defence and whether the prosecution had established a hostile act. However, each of those arguments involved the resolution of evidentiary conflicts and factual findings.

16. [63]

    The question also invited the Court of Criminal Appeal to review the ultimate question for determination by the Local Court at first instance, and Judge Bourke on appeal.

17. [64]

    Judge Bourke did not fall into error in refusing to state this question to the Court of Criminal Appeal. His Honour said, correctly (at p 5):

18. [65]

    This question raises a question of fact and nothing more. It was not an appropriate question to be stated to the Court of Criminal Appeal under s 5B.

19. [66]

    Again, this is self-evidently a question of fact and Judge Bourke was correct to refuse to state the question to the Court of Criminal Appeal as part of a stated case under s 5B.

Question (d): Was a business record of NSW Community Correction officer Ms Deborah Buckley admissible?

1. [67]

   This brings me to the exception of which I wrote in [48] above. It concerns the question of whether question (d) amounted to a question of law that should have been stated to the Court of Criminal Appeal and whether Judge Bourke’s failure to state a case based on that question is amenable to judicial review on the grounds of jurisdictional error. Question (d) was in the following terms:

2. [68]

   Judge Bourke gave the following reasons for declining to state this question to the Court of Criminal Appeal:

3. [69]

   The respondent made the following submission in writing to this Court (at [35]-[37]):

4. [70]

   In oral submissions, the respondent sought to emphasise the purpose for which the applicant attempted to tender the note. It was submitted that the purpose was to explain why the police attended the premises and the time and date of the first “complaint”, and by whom it was made. The respondent took the Court to various parts of the transcripts in an attempt to demonstrate this.

5. [71]

   While part of the purpose for the tender may have been to identify the time of the ‘phone call and to explain the reason for the police attendance at the property, the transcript discloses that Mr Franklin also sought to rely on Ms Buckley’s record of the call to provide support for his version of events. For example, Mr Franklin submitted to the Magistrate:

6. [72]

   The Magistrate told the applicant that the evidence was:

7. [73]

   The Magistrate also said:

8. [74]

   The Magistrate rejected the tender of the document.

9. [75]

   These parts of the transcript reveal that the basis of the ruling to reject the tender was that the evidence was “hearsay” and “self-serving”. By contrast, the Prosecutor tendered, and the Magistrate allowed, evidence of things the complainant said about the incident to a number of people. This was admitted as evidence of “complaint” - that is, the Magistrate held that the evidence was admissible hearsay going both to support the credibility of the complainant and as truth of the representations that she made out of court. It is difficult to perceive any difference in principle between the matters bearing on the admissibility of representations made by the complainant outside of the courtroom and the things said by the applicant in his conversation with Ms Buckley.

10. [76]

    The obvious evidentiary distinction was that the prosecution called the witnesses to whom the complainant spoke. That meant that the representations were first-hand hearsay and subject to the exceptions to the hearsay rule in Part 3.2 of the Evidence Act: see ss 62, 66. There was controversy over whether the prosecution was obliged to call Ms Buckley, [17] but, in any event, it seemed neither party decided to call her to give evidence. Ms Buckley’s note, a record of what she said Mr Franklin told her, was second-hand hearsay. That meant it was not covered by Part 3.2 or the exceptions in ss 65 and 66 of the Evidence Act. However, that was not determinative of whether the document was admissible. Mr Franklin submitted that the document was admissible as a business record pursuant to s 69 of the Evidence Act. The exception in that section is not limited to first-hand hearsay. The question was not addressed by the Magistrate.

11. [77]

    The applicant sought to re-ventilate the issue of the admissibility of this case note at the appeal hearing before Judge Bourke. He submitted:

12. [78]

    Judge Bourke rejected the tender and gave the following reasons:

13. [79]

    The document bore the title “CASE NOTE REPORT” and was a document maintained by the Department of Corrective Services. It was dated 2 September 2016, and the “sub-item” was described as a “Phone call from offender”. It was, on its face, prepared by Ms Buckley. It provided the following narrative:

14. [80]

    There are two further notes on the same page of the record. The first referred to Ms Buckley contacting the Katoomba police. The second described contact made by Ms Buckley with the applicant’s mother. That note was in the following terms:

15. [81]

    The evidence of Mr Franklin’s representations to Ms Buckley was relevant to the issues before the Local Court. It was generally consistent with the case the applicant ran in defence of the charge. Like the “complaint” evidence adduced by the Prosecutor, it was capable of impacting an assessment of Mr Franklin’s credibility. It was potentially important evidence and, if admitted, it had the capacity to impact on the tribunal of fact’s determination of whether the case was established beyond reasonable doubt.

16. [82]

    The question of whether the note was admissible was a question of law. The respondent put an argument to the effect that the issue did not raise a “pure question of law” but was a question of “mixed fact and law” because it involved an examination or consideration of the evidence itself. The logical extension of that submission is that no issue of admissibility would fall into the category of question encompassed by s 5B of the Criminal Appeal Act. I am unable to accept that submission. As was put by the presiding Judge at the hearing of the application in this Court:

17. [83]

    The respondent also made a somewhat diffident submission to the effect that, perhaps, Judge Bourke determined that the note would not have impacted on his determination of guilt and, therefore, was an inappropriate use of the procedure to state a case. However, there is nothing in his Honour’s judgments to suggest this was the basis upon which he rejected the tender or declined to state the case. Rather, the judgment relating to the attempt to tender new evidence held that the note was inadmissible for the reasons provided by the Magistrate: see above at [78]. The judgment rejecting the stated case categorised the question as one of mixed fact and law and asserted that it constituted an attempt to convert the stated case procedure into a general right of appeal: see above at [68].

18. [84]

    There was no other basis, referred to by Judge Bourke or recognised by the authorities referred to in [30]-[45] above, upon which to decline to state the question to the Court of Criminal Appeal. The case note was material to the central issues in the case and it could not reasonably be held that the application to state a case in this respect was baseless or frivolous. The failure to recognise that question (d) was a question of law alone, and the fact that it was amenable to the procedure provided for in s 5B of the Criminal Appeal Act, resulted in his Honour failing to exercise the jurisdiction conferred on him by s 5B.

19. [85]

    As I said at [44] it is unnecessary to reconcile the tension that exists between some of the authorities. That issue was not addressed in any detailed way in the arguments before the Court as presently constituted although the respondent made reference to the decisions in Mack Fleet and Forrest v DPP. Neither party referred to the decision in Jankovic v Director of Public Prosecutions or the bases upon which Basten JA determined that it was not an authority that “provided assistance”: see above at [43] and Forrest v DPP at [52]-[54]. Judge Bourke did not purport to exercise any wider power, of the kind expressed in the judgments of Basten JA in Mack Fleet v Transport for NSW and Forrest v DPP, to refuse to state question (d) to the Court of Criminal Appeal. His Honour, quite understandably given that the issue was not addressed in argument at all, did not refer to those decisions or to the test expressed in Ex parte McGavin; Re Berne & Ors and applied in numerous cases including Jankovic v Director of Public Prosecutions.

20. [86]

    Judge Bourke’s reasons for declining to exercise the jurisdiction to state a case pursuant to 5B were that (i) the question raised an issue of mixed law and fact and (ii) Mr Franklin was seeking to exercise “a general right of appeal from my decision”. Neither of those propositions can be sustained and there is no occasion to determine whether the current state of the law would permit the Judge to decline to state a case under 5B. On the material and the arguments before this Court, the question of law ought to have been stated to the Court of Criminal Appeal. The failure to do so amounted to jurisdictional error.

21. [87]

    The decision refusing to state the case in this respect must be quashed.

Other arguments advanced by the applicant should be rejected

1. [88]

   The applicant made a number of other submissions which had little or no merit. It is unnecessary to go into detail but appropriate to deal with some of those submissions in summary form.

2. [89]

   At one stage in argument, the applicant described the police conduct in relation to the complainant’s withdrawal of her complaint as “sleazy”. This was an inappropriate submission. When pressed by McCallum JA to explain the import of the submission, Mr Franklin was unable to justify the assertion. The submission should not have been made.

3. [90]

   The applicant seemed to suggest that it was incumbent on Judge Bourke to reformulate his questions so that they satisfied the requirements of s 5B of the Criminal Appeal Act. While there are cases where the parties and primary judge will work together to formulate a stated case, there is no obligation on the Judge to re-formulate questions that are otherwise inappropriate for submission to the Court of Criminal Appeal as part of a stated case.

Disposition and orders

1. [91]

   The decision of Judge Bourke must be quashed and the case remitted to his Honour to be dealt with according to law.

2. [92]

   As to the question of costs, while the applicant has enjoyed success in relation to one of the 10 questions the subject of these proceedings, the other nine questions were devoid of merit for the reasons set out above. The applicant is self-represented. I would leave each party to bear its own costs.

3. [93]

   I would make the following orders:

   1. (1)

      Quash the order of the District Court refusing to state a case to the Court of Criminal Appeal pursuant to s 5B of the Criminal Appeal Act 1912 (NSW) in relation to the question identified as (d) in the plaintiff’s application dated 21 August 2020.

   2. (2)

      Remit the matter to the District Court to be dealt with according to law.

   3. (3)

      Otherwise, refuse the relief sought by the plaintiff in relation to the remaining nine (9) questions.

   4. (4)

      No order as to costs, to the intent that each party bears its own costs.