Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162 Hearing dates: 26 May 2020 Decision date: 03 August 2020 Before: Basten JA at [1]; Leeming JA at [70]; McCallum JA at [71] Decision: 1. Dismiss the summons. 2. Order that the applicant pay the respondent's costs in this Court. Catchwords: CRIMINAL LAW – appeal and review – stated case – history of stated case procedure – effect of legislative amendments – nature of power conferred on District Court judge to state a case to the Court of Criminal Appeal on request of a party – whether discretion to refuse request – Criminal Appeal Act 1912 (NSW), s 5B CRIMINAL LAW – appeal and review – procedure – appeal from Local Court to District Court – appeal dismissed – request to judge to submit question of law to Court of Criminal Appeal declined – request made hours before statutory timeframe expired – Criminal Appeal Act 1912 (NSW), s 5B JUDICIAL REVIEW – jurisdictional error – refusal of District Court judge to submit a question of law to Court of Criminal Appeal – nature of power – whether coupled with duty to exercise power on request – failure to identify question of law – appeal concerned with inferences drawn from facts – whether condition of engagement of power a jurisdictional fact PRACTICE AND PROCEDURE – criminal – power of District Court to submit question of law to Court of Criminal Appeal – time limit – request to state a case did not allow sufficient time for judge to state a case – effect of timing of application on duty to state a case STATUTORY INTERPRETATION – whether power coupled with duty to exercise – authority of precedent – effect of amendments to section after construction adopted – effect of High Court authority on principle of interpretation applied – use of legislative history WORDS AND PHRASES – "may" – Interpretation Act 1987 (NSW), s 9 Legislation Cited: Acts Shortening Act of 1858, 22 Vic 12, s 8 Child Welfare Act 1939 (NSW), s 176 Crimes (Amendment) Act 1924 (NSW), s 33 Crimes (Amendment) Act 1929 (NSW), s 17 Crimes (Amendment) Act 1951 (NSW), s 7 Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW), Sch 2.2 Crimes Act 1900 (NSW), s 193C Criminal Appeal Act 1912 (NSW), s 5B District Court Act 1973 (NSW), ss 8, 176 District Courts Act of 1858 22 Vic No 18, ss 25, 27 General and Quarter Sessions Act of 1829, 10 Geo IV, No 7 Interpretation Act 1987 (NSW), s 9 Justices Act 1901 (NSW), s 131A Justices Act 1902 (NSW), ss 18, 122 Justices Acts Amendment Act, s 9 Justices Appeal Act of 1881, 45 Vic No 4, ss 1, 3 Supreme Court Act 1970 (NSW), s 69 Workmen's Compensation Act 1926 (NSW), s 37 Uniform Civil Procedure Rules 2005 (NSW), r 59.10 Cases Cited: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353; [1949] HCA 26 Charara v Director of Public Prosecutions [2001] NSWCA 140; 120 A Crim R 225 Conway v The Queen (2002) 209 CLR 203; [2009] HCA 2 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Elias v The Director of Public Prosecutions (NSW) [2012] NSWCA 302; 222 A Crim R 286 Ex parte McGavin; Re Berne (1945) 46 SR(NSW) 58 Jankovic v Director of Public Prosecutions [2020] NSWCA 31 Julius v Bishop of Oxford (1880) LR 5AC 214 Landsman v Director of Public Prosecutions [2013] NSWCA 369 Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61 Macdougall v Paterson (1851) 11 CB 755 Re Gleeson (1907) VLR 368 Reg v Garnet-Thomas [1974] 1 NSWLR 702 Roberts v Jones (1928) 28 SR (NSW) 543 Robinson v Woolworths Ltd (t/as Woolworths Plus Petrol Werrington) (2005) 64 NSWLR 612; [2005] NSWCCA 426 Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 Ward v Williams (1955) 92 CLR 496; [1955] HCA 4 Texts Cited: Alex C Castles, An Australian Legal History, (LawBook Co, 1982) p 202 C Stebbings, Legal Foundations of Tribunals in Nineteenth Century England (2006, Cambridge University Press) Ch 6 Judicial Supervision, pp 237-247 Cornish et al, The Oxford History of the Laws of England (2010, Oxford University Press) pp 128-130 in Part 1 Criminal Law, K Smith G D Woods, A History of Criminal Law in New South Wales: The Colonial Period 1788-1900 (The Federation Press, 2002) G D Woods, A History of Criminal Law in New South Wales – Vol 2 (The Federation Press, 2018) NSW Legislative Council, Parliamentary Debates (Hansard), 17 September 1998, p 7594 Stephen, A History of the Criminal Law of England, (1883), vol 1 Category: Principal judgment Parties: Mark Forrest (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: Mr P Lange (Applicant) Ms J Davidson (First Respondent) Solicitors: One Group Legal (Applicant) Solicitor for Public Prosecutions (First Respondent) Crown Solicitor's Office (Second Respondent) File Number(s): 2019/363801