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) Solicitors: Office of Director of Public Prosecutions (First Respondent) File Number(s): 2020/270560 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Common Law Date of Decision: 4 September 2020 Before: Bourke SC DCJ File Number(s): 2016/348410 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] HEADNOTE [This headnote is not part of the judgment] On 5 December 2019, the applicant was found guilty in the Local Court of an offence of common assault contrary to s 61 of the Crimes Act 1900 (NSW). The offence arose in the context of an argument about money between the applicant and his wife in their matrimonial home. The applicant unsuccessfully appealed against that conviction to the District Court, from which there is no further avenue of appeal. The applicant then applied to the District Court judge for the primary Judge to state a case to Court of Criminal Appeal pursuant to s 5B(2) of the Criminal Appeal Act 1912 (NSW). That section says that a party to a District Court appeal may request the judge to submit any question of law arising on that appeal to the Court of Criminal Appeal. The applicant referred to a list of 10 matters, all of which he submitted were questions of law. The District Court judge declined to state the case, predominantly because the questions posed were not questions of law or because they attempted to exercise a general right of appeal. The applicant sought judicial review of that decision in this Court. The principle issue was whether the primary judge erred in refusing to submit a question of law to the Court of Criminal Appeal in accordance with s 5B of the Criminal Appeal Act. The Court (Hamill J, Brereton and McCallum JJA agreeing) granted judicial review and held: 1. The District Court judge erred in his decision to decline to state a case to the Court of Criminal Appeal in relation to question (d) concerning the admissibility of a business record created by a NSW Community Corrections officer in the applicant's case. This was a question of law (not a question of mixed fact and law) and did not seek to convert the stated case procedure into a general right of appeal: [82]-[83]. 2. The failure of the District Court judge to recognise that question (d) was a question of law alone, and 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: [84]. Ex parte McGavin; Re Berne and Others (1946) 46 SR 58; Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160; Charara v The Director of Public Prosecutions & Ors [2001] NSWCA 140; (2001) 120 A Crim R 225; Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185; Elias v The DPP (NSW) [2012] NSWCA 302; 222 A Crim R 286, referred to. 3. The District Court judge was correct in declining to submit the remaining 9 questions posed by the applicant to the Court of Criminal Appeal. These matters were not appropriate matters to be stated to the Court of Criminal Appeal because they were either i) questions of fact; ii) questions of mixed law and fact; or iii) constituted attempts to exercise a more general right of appeal (or re-agitate previous appeals): [47], [49], [53], [56], [57], [61], [64], [65], [66]. Judgment 1. BRERETON JA: I have had the benefit of reading in draft the judgment to be delivered by Hamill J. 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. 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. I agree with the orders proposed by Hamill J, and with his Honour's reasons. 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. 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. 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. 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: "1. The decision of Bourke J in the matter 2016/00348410 in the District Court of New South Wales at Penrith on 04 September 2020 be vacated under s 69 of the Supreme Court Act 1970 (NSW). 2. Bourke J ordered to state a case according to law under s 5B of the Criminal Appeal Act 1912 (NSW), as requested by the Plaintiff in letter dated 21 August 2020. 3. Transfer matter 2016/00348410 to the Court of Criminal Appeal for determination. 4. Such further orders as the Court sees fit." 1. 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. 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. 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. 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. 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: "The concern is that the function of Crime Stoppers is that it's … there to protect information that is passed on by the community. It goes to the very heart of that open flow of information and the concern would be that if access were granted to information that was provided to them, this would therefore essentially cause a dry up of the flow of information which would not be generally in the public interests. I have read the document that is the subject of the public interest immunity claim. It is not one that would be admissible in Court, in any event. It is not one that would ably assist the defence or the prosecution in the proceedings. It is a document therefore that is of no value whatsoever in the proceedings that are before the court concerning Mr Franklin. And the charge of common assault that's alleged to have occurred. Accordingly when balancing the public interests considering it does involve an institution of the State by way of the Police Service, it's quite clear that the disclosure of it would do more to interfere with the processes given the nature of the Crime Stoppers Programme then(sic.) it would assist anyone involved in the case and in the absence of that obvious usefulness to use the words in the Criminal Court of Appeal in R v Francis, in the absence of any obvious usefulness of the material to the applicant in his defence, it would seem that the injury that could be done to the processes that are sought to be protected would outweigh any use or benefit of which there is zero." [4] 1. 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] 2. The applicant then appealed to this Court. The summons seeking leave to appeal was dismissed with costs on 19 September 2018. [7] 3. Mr Franklin sought special leave to appeal to the High Court. Special leave was refused (Bell and Gageler JJ) on 14 December 2018. [8] 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. Judge Bourke refused leave to allow the admission of the case note report and the Crime Stoppers call. 11. 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. 12. 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: "…serious questions of law that remain unanswered in my case. I believe it is in the interest[s] of justice that those questions are determined by a panel of judges at the highest level in this State". 1. The applicant listed 10 matters, all of which he submitted were questions of law: "Those questions include but are not limited to: a. Was the Crime Stoppers call admissible? b. Did recusal of Magistrate Toose prevent a fair trial process according to law with respect to the Crime Stoppers call? c. Was the Statutory Declaration merely a prior inconsistent statement, or a declaration of Mr Franklin's innocence that must first be negatived according to law before a positive case of assault could be made out? d. Was a business record of NSW Community Correction officer Ms Deborah Buckley admissible? e. Was mens rea of the offence incorrectly inferred? f. Was the prosecution case below the criminal standard of proof? g. Was material inadmissible under s 137 of the Evidence Act NSW before the Court and not properly excluded? h. Did the complainant's allegation constitute an admission of assault on Mr Franklin? i. Could the complainant be characterised as a credible witness at law? j. Could witnesses Corkeron and Revesi be characterised as disinterested and credible witnesses at law?" 1. 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. 2. 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. Section 5B of the Criminal Appeal Act is in the following terms: 5B CASE STATED FROM THE DISTRICT COURT (1) A Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination, and the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit. (2) At the request of a person who was a party to appeal proceedings referred to in subsection (1), a question of law may be submitted under that subsection to the Court of Criminal Appeal for determination even though the appeal proceedings during which the question arose have been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings, or within such longer period as the Court of Criminal Appeal may allow. (3) The Court of Criminal Appeal may, in connection with the determination of a question of law in the circumstances referred to in subsection (2), quash any acquittal, conviction or sentence of the District Court on the appeal to the District Court. 1. 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]): "The primary basis upon which the prosecutor sought to resist the extension of time was that the case stated had inadequate prospects of success. Before dealing with the substance of the case stated, however, it is necessary to note the constraints under which this Court operates in considering such a statutory appeal. Section 5B provides that a judge of the District Court may submit a 'question of law' to this Court 'for determination' and empowers this Court to make appropriate orders or give appropriate directions. What it does not do is authorise this Court to determine any questions of fact or to draw factual inferences. This Court is constrained to act on the facts as stated by the District Court: see Mack v Commissioner of Stamp Duties (NSW) [1920] HCA 76; (1920) 28 CLR 373 at 381 (Isaacs J); The Queen v Rigby [1956] HCA 38; (1956) 100 CLR 146 at 150- 151 (Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ) and Brisbane City Council v Valuer-General (Qld) [1978] HCA 40; (1978) 140 CLR 41 at 58 (Gibbs J, Stephen, Mason, Murphy and Aickin JJ agreeing)." 1. 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. 2. 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). 3. 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: "The word 'may' is prima facie facultative only; but it was pointed out in Macdougall v Paterson (1851) 11 CB 755 at 773, that 'when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application': Cook v Cook (1923) 33 CLR 369 at 377; R v Mitchell [1913] 1 KB 561. Section 23 of the Interpretation Act of 1897 does not prevent the application of this rule, where it is necessary to give effect to the evident intention of the statute: Smith v Watson (1906) 4 CLR 802 at 811, 819, 827. In my opinion, it is the duty of a Chairman of Quarter Sessions to submit to the Court of Criminal Appeal any question of law which either party to the appeal may raise and ask to be so submitted...." 1. 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]): "14. The statutory context demonstrates a different subject-matter and purpose. The subject-matter is a criminal case which has been heard by a magistrate and is subject to only one right of appeal: there is no right of appeal from the decision of the District Court. Identification of the statutory purpose requires reference to some legislative history. Historically, there are three main control mechanisms imposed by legislation conferring a limited right to seek redress in a higher court. One mechanism is to limit an appeal to a question of law. (That common provision complements the general supervisory jurisdiction of the Supreme Court.) A second mechanism is to confer a right of appeal subject to a requirement to obtain leave from the court to which the appeal is to be taken. A third mechanism confers no right on an aggrieved party to institute an appeal, but rather confers a power on the lower court to refer or submit a question of law to, or state a case for determination of a question of law by, a superior court. By declining to grant any unilateral and uncontrolled right of appeal to a party, the statute vests control of any further proceeding in the court in which the case was heard. 15. Section 5B of the Criminal Appeal Act is an example of the third mechanism. Adoption of that mechanism renders it most unlikely that Parliament intended that the court submitting or referring the question had a duty to take that step whenever requested to do so by a party, even if the request were made in a timely fashion. Such a reading would convert the third mechanism into the first, namely a right of appeal on a question of law, absent even a leave requirement. 16. There have been numerous cases in this jurisdiction in which it has been accepted or assumed that a virtually unqualified obligation is imposed on the District Court by s 5B. The origin of that approach is to be found in the judgment of Jordan CJ in Ex parte McGavin; Re Berne. The Chief Justice stated that it was 'the duty of a chairman of quarter sessions to submit to the Court of Criminal Appeal any question of law which either party to the appeal may raise and ask to be so submitted, unless, in his opinion, the question is so obviously frivolous and baseless that its submission would be an abuse of process.' 17. There are a number of reasons not to see that brief statement as determinative of the current effect of s 5B. First, s 5B was not in the same form in 1945 as it is today. It then had a deeming provision which required the question of law to be dealt with as if it were an appeal to the Court of Criminal Appeal. That provision at least blurred the distinction between the conferral on a party of a right of appeal and the conferral on the court of a power to submit a question of law. Secondly, at that time the question could not be submitted after the proceeding in the District Court had been finally determined. Thirdly, the briefly stated reason for adopting such a construction does not sit comfortably with the more nuanced approach to the principle of statutory construction, not expressly identified in Re Berne, but expounded a decade later in Ward v Williams." 1. His Honour then referred to his earlier observations in Elias v The DPP at [8]-[9]: "8. The applicant placed reliance upon the observations of Jordan CJ in Ex parte McGavin; Re Berne (1946) 46 SR(NSW) 58; 63 WN(NSW) 45, to the effect that a District Court judge (then a Chairman of Quarter Sessions) is obliged to exercise the power to submit a question of law unless 'the question is so obviously frivolous and baseless that its submission would be an abuse of process'. Those observations, and their subsequent history, were referred to in Sasterawan (2007) at [5]. It is, however, important to understand the premise underlying the duty identified by Jordan CJ, namely that the occasion to exercise the power has in fact arisen. There is no power unless the question raised for submission is a question of law, an assessment which Jordan CJ had already made before observing that a duty arose. Thus, at least in the first instance, the District Court judge must be satisfied that a relevant question of law has been identified before there can be a duty to submit the question to the Court of Criminal Appeal. 9. Furthermore, there may be other bases for identifying an abuse of process which were not relevant in the circumstances of McGavin. For example, and subject to the comments already made in this regard, the prior commencement of an alternative procedure, or unjustifiable delay, may be factors relevant to the scope of the power and thus the duty. The primary judge, not having been satisfied that the issue sought to be submitted for consideration by the Court of Criminal Appeal was indeed a question of law, was under no duty to submit the proposed question. If, in not being so satisfied, the primary judge committed jurisdictional error, that error would be reviewable by this Court and a mandatory order might follow. For the reasons given below, the primary judge did not err in that respect." 1. However, his Honour concluded in Mack Fleet v Transport for NSW at [20]: "No doubt the power to submit a question of law under s 5B, or to decline to do so, must be exercised judicially and on the basis of proper considerations which reflect the context and statutory purpose of the power. However, it is within the jurisdiction of the judge who has determined a case to consider whether, in his or her opinion, the question sought to be submitted is indeed a question of law, and was (or would be) material in determining the issues requiring resolution. If not so satisfied, the proper course would be to decline to exercise the power. In considering those matters, the precise terms in which the question was formulated, if not formulated by the judge, would be a matter of some importance. Where the judge has no wish to seek the determination of any question of law, but is requested to submit a question in a form which does not, in the judge's view, satisfy the requirements of the section, there can be no obligation either to submit the question or to enter into negotiations with the requesting party as to the form of the question." 1. 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]: "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." 1. 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]: "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." 1. Section 176 of the District Court Act 1973 (NSW) provides: "No adjudication on appeal of the District Court is to be removed by any order into the Supreme Court." 1. His Honour continued at [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." 1. 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". 2. 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. 3. 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]. 4. 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. 5. 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). 6. 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. 7. 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. 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. (a) Was the Crime Stoppers call admissible? 1. 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. 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. 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. The question involved an attempt to use the stated case procedure as a form of general appeal. 1. 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. (b) Did recusal of Magistrate Toose prevent a fair trial process according to law with respect to the Crime Stoppers call? 1. 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] 2. 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. 3. 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. (c) Was the Statutory Declaration merely a prior inconsistent statement, or a declaration of Mr Franklin's innocence that must first be negative[d] according to the law before a positive case for assault could be made? 1. 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. 2. 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. 3. 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. (e) Was mens rea of the offence incorrectly inferred? 1. 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". (g) Was material inadmissible under s 137 of the Evidence Act before the Court and not properly excluded? 1. 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. 2. On the applicant's appeal to the District Court the following exchange took place: "APPELLANT: …It's also important that it's placed on the record that there was a substantial amount of highly prejudicial that should have been excluded under s 137 of the Evidence Act before the Court below and it would be a submission before this Court that your Honour, if you come across that, just reject that evidence as being matters that would clearly come under s 137 and they're not relevant to these proceedings. HIS HONOUR: You mean things that the complainant said? APPELLANT: Well there was mention made of it in the Local Court but the witness, and especially the complainant, had great - took great delight in constantly referring to irrelevant historical matters. HIS HONOUR: All right, I'll disregard anything of that sort." [12] 1. 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. 2. Judge Bourke was correct to decline to state this question to the Court of Criminal Appeal. (h) Did the complainant's allegation constitute an admission of assault on Mr Franklin? 1. 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. 2. 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. 3. 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): "Again I am not satisfied that this involves any relevant question of law for the purpose of s 5B, rather it represents a rehashing of a factual argument that the applicant put to me in submissions which after considering the evidence and the magistrate's reasons, I did not accept." (i) Could the complainant be characterised as a credible witness at law? 1. 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. (j) Could witnesses Corkeron and Revesi be characterised as disinterested and credible witnesses at law? 1. 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. 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: "Was a business record of NSW Community Corrections officer Ms Deborah Buckley admissible?" 1. Judge Bourke gave the following reasons for declining to state this question to the Court of Criminal Appeal: "In my opinion this question seeks, like others, to use the stated case procedure as a general right of appeal from my decision, which is not the purpose of s 5B. The question of whether the document in question was a business record would require the Court of Criminal Appeal to examine and interpret the document and the question of its admissibility would further require that Court to form an opinion based on the issues raised in the proceedings as to whether it could rationally affect the assessment of the probability of a fact in issue. This involves mixed questions of fact and law and does not in my view involve a question appropriate for referral as a stated case." [13] 1. The respondent made the following submission in writing to this Court (at [35]-[37]): "[35] Ms Buckley was the witness known to Magistrate Toose and the reason her Honour declined to continue to preside over the hearing. The applicant telephoned Ms Buckley on 2 September 2016. Ms Buckley wrote a file note of the conversation. Although it seems that it was intended that she be called by the applicant, a statement had been taken from her by police and she was to be called in the prosecution case. The prosecutor however perceived that he could not call her without disclosing material relating to the applicant being on parole that would prejudice the applicant and declined to call Ms Buckley. [36] The applicant sought to tender Ms Buckley's file note. Magistrate Corry rejected the tender because the file note was hearsay, although the applicant's submission appears to have been that he intended to use it for a non-hearsay purpose to explain why the police initially attended his property on 2 September 2016, following which the complainant made her first official complaint of the subject offence. [37] The applicant sought to adduce the file note as fresh evidence in the conviction appeal. The applicant explained that the purpose of the tender was to explain why the police attended the applicant's property on 2 September 2016. The primary Judge questioned the relevance of the telephone call. The primary Judge refused to allow it as fresh evidence." (Footnotes omitted.) 1. 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. 2. 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: "ACCUSED" There is an issue in relation to a file note that did record a conversation, which is extremely relevant to the events. It's on all fours with the allegation and it was the first in time, so I think it's highly relevant. HIS HONOUR: Do you have the notes, sergeant? PROSECUTOR: I do. […] ACCUSED: Well, - I mean, there's one part that goes directly to the events of that night which I think are most relevant. It's really one page. I can show-- HIS HONOUR: If you show the Sergeant the page you are seeking to tender-- PROSECUTOR: Just the page number will be-- ACCUSED: It's page 1 of 6 for the period 2 September, and it explains pretty much he events that unfolded, especially with the police attendance as well." [14] 1. The Magistrate told the applicant that the evidence was: "really trying to pull yourself up by your bootstraps, because it's what you say that you told the counsellor. That's a matter that you can give first-hand evidence of." [15] 1. The Magistrate also said: "It only becomes relevant if there was a challenge to what you had to say, but the document itself, it's a hearsay document, and I accept what the Sergeant has said. It's self-serving. It really comes entirely from you." [16] 1. The Magistrate rejected the tender of the document. 2. 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. 3. 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. 4. The applicant sought to re-ventilate the issue of the admissibility of this case note at the appeal hearing before Judge Bourke. He submitted: "And that is in relation to His Honour Magistrate Corry's refusal to admit a business record of Corrective Services and their Community Corrections officer Ms Deborah Buckley and that goes really to the core of the factual matters that it exists with respect to September 2016, very late in the –" [18] 1. Judge Bourke rejected the tender and gave the following reasons: "The next document that was the subject of an application is a case note report from the Department of Corrective Services which refers to a telephone call apparently made by the appellant to an officer of Lithgow Community Corrections on 2 September 2016 relating to an incident that is the subject of the charge and also that contains some other references to other information. The primary relevance of the document as I understand it is the first entry on the top of the page which relates to the appellant's telephone call to that case officer. That document was sought to be tendered in the proceedings below but it was rejected by the magistrate on the basis that it was hearsay in that form and therefore not admissible and not subject to any of the exceptions to hearsay. The magistrate effectively ruled that such a document might become admissible or might have become admissible in the Local Court proceedings if for example the appellant had given evidence there, and certain other examples possibly might have arisen. I am in agreement with the learned magistrate that the document is not admissible and I therefore am not satisfied that it is in the interests of justice to admit it and I do not admit that document." [19] 1. 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: "Craig phoned sounded stress[ed] and crying on phone…Stated Emma having been displaying negative behaviour and they have been arguing after finances - stating she wanted a divorce. [T]hrew off her rings and threw them at him... Craig contacted parents…and has asked for help. Directed Craig to leave the premises… He spoke with his father and he followed his advice and left and avoided him she chased him to bathroom and threatened him. The previous night Emma accused Craig of having an affair with on line(sic) student. Emma was moving around cupboards with her clothes in them. Out of control kicking and screaming. She was sleeping in the spare room at the rear of the house. Emma encouraged Craig to punch her, she commenced punching him she kicked him in the genitals and them(sic) commenced rummaging through the desk looking for money… Made threats to Craig saying she was going to call the Police and make an allegation that Craig had assaulted. Fearful of leaving his daughter. Emma went to work then came home – had told their daughter she was moving to her new home." 1. 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: "P/c to Desley Franklin (mother) ['phone number redacted] landline ['phone number redacted]. Desley advised that she is well aware of Emma's behaviour as she has witnessed it personally and heard her on the phone to Craig. I advised Desley I have directed Craig [to] leave the family home and return to live with her and his dad until things cool down and the relationship is assessed. She agrees and will support Craig to achieve…She will collect him and will contact me on Monday. [BUCKLEY, DEBORAH appended the case note on 02/09/2016 16:55:37]: Directed him to stay with his parents until relationship is assessed he agreed. Will contact me on Monday." 1. 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. 2. 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: "If a decision to reject a business record is made solely on the basis that it contravenes the hearsay rule, there's no factual element is there? It's just an error of law." [20] 1. 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]. 2. 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. 3. 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. 4. 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. 5. The decision refusing to state the case in this respect must be quashed. Other arguments advanced by the applicant should be rejected 1. 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. 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. 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. The decision of Judge Bourke must be quashed and the case remitted to his Honour to be dealt with according to law. 2. 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. I would make the following orders: 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. ********** Endnotes 1. Ex parte McGavin; Re Berne & Ors (1946) 46 SR 58 at 61 (Jordan CJ). 2. District Court Act 1973 (NSW), s 176; and see, for example, Spanos v Lazaris [2008] NSWCA 74 at [15] (Basten JA, Beazley JA and Bell JA (as her Honour then was) agreeing), Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61 at [5] (Basten JA), Landsman v R [2014] NSWCCA 328 at [27]-[28] (Beazley P, Hidden and Fullerton JJ agreeing) and Templeton (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 335 at [3] (Basten JA, Meagher JA agreeing) and [15] (Macfarlan JA). 3. Franklin v Commissioner of Police [2018] NSWCA 206 at [7]. 4. Tcpt, 19 July 2017, p 10. 5. Franklin v Commissioner of Police and Anor [2018] NSWSC 310 at [65]-[69]. 6. Franklin v Commissioner of Police and Anor [2018] NSWSC 310 at [83]. 7. Franklin v Commissioner of Police [2018] NSWCA 206. 8. Franklin v Commissioner of Police, NSW Police Force & Anor [2018] HCASL 398. 9. Chahara v The Director of Public Prosecutions & Ors [2001] NSWCA 140; (2001) 120 A Crim R 225 at [35]. 10. [2018] HCASL 398. 11. Tcpt, 2 March 2021, p 6. 12. Tcpt, 31 July 2021, p 27. 13. Judgment Tcpt, 4 September 2020, pp 3-4. 14. Tcpt, 4 September 2019, pp 54-55. 15. Tcpt, 4 September 2019, p 55. 16. Tcpt, 4 September 2019, p 56. 17. Tcpt, 9 October 2018, pp 38-40. 18. Tcpt, 31 July 2020, p 21. 19. Judgment Tcpt, 31 July 2020, p 2. 20. Tcpt, 2 March 2021, p 37(4). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 May 2021