Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Franklin v Director of Public Prosecutions (NSW) [2021] NSWCA 83 Hearing dates: 2 March 2021 Date of orders: 19 May 2021 Decision date: 19 May 2021 Before: Brereton JA at [1] McCallum JA at [5] Hamill J at [6] Decision: (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) Remit the matter to the District Court to be dealt with according to law. (3) Otherwise, refuse the relief sought by the plaintiff in relation to the remaining nine (9) questions. (4) No order as to costs, to the intent that each party bears its own costs. Catchwords: CIVIL LAW – judicial review – jurisdictional error – whether District Court erred in failing to state a case to the Court of Criminal Appeal – power of Judge to decline to state a question of law – tension in authorities – unnecessary to resolve conflict in authorities – where nine of ten questions raised were not relevant questions of law – whether questions frivolous or baseless – where remaining question raised a material question of law concerning admissibility of probative evidence – jurisdictional error established CRIMINAL LAW – evidence – exculpatory statement by accused to community corrections officer immediately after alleged assault – where statement recorded in Departmental record – whether hearsay – whether business record – where Magistrate excluded evidence as "self-serving" – where District Court refused leave to introduce evidence on appeal – whether admissibility of record raised a question of law alone Legislation Cited: Crimes Act 1900 (NSW), s 61 Crimes (Appeal and Review) Act 2001 (NSW), ss 18 and 53 Criminal Appeal Act 1912 (NSW), s 5B Supreme Court Act 1970 (NSW), s 69 District Court Act 1973 (NSW), s 176 Evidence Act 1995 (NSW), ss 60, 62, 66, 65, 69 and 137 Cases Cited: Charara v The Director of Public Prosecutions & Ors [2001] NSWCA 140; (2001) 120 A Crim R 225 Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 Duarte v Director of Public Prosecutions (NSW) [2020] NSWCCA 351 Elias v The DPP (NSW) [2012] NSWCA 302 Ex parte McGavin; Re Berne and Others (1946) 46 SR 58 Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162 Franklin v Commissioner of Police [2018] NSWCA 206 Franklin v Commissioner of Police and Anor [2018] NSWSC 310 Franklin v Commissioner of Police and Anor [2018] NSWSC 310 Franklin v Commissioner of Police, NSW Police Force & Anor [2018] HCASL 398 Jankovic v Director of Public Prosecutions [2020] NSWCA 31 Landsman v R [2014] NSWCCA 328 Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61 Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149 R v Madden (1995) 85 A Crim R 367 at 370 Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 Spanos v Lazaris [2008] NSWCA 74 Templeton (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 335 Category: Principal judgment Parties: Craig Andrew Franklin (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of NSW (Second Respondent) Representation: Counsel: E Balodis (First Respondent)