Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Purcell v The Director of Public Prosecutions [2021] NSWCA 269 Hearing dates: 11 October 2021 Date of orders: 8 November 2021 Decision date: 08 November 2021 Before: Macfarlan JA at [1] Beech-Jones JA at [2] Simpson AJA at [28] Decision: (1) Pursuant to Uniform Civil Procedure Rule r 59.10(2), extend the time for the applicant to file the summons in this proceeding up to and including 11 June 2021; (2) Pursuant to s 69 of the Supreme Court Act 1970, the judgment and orders of the District Court in the matter of Isaac Fred Purcell v R (2017/256380) be set aside; (3) The District Court determine the application for leave to appeal by Isaac Fred Purcell in matter 2017/256380 according to law; and (4) There be no order as to costs. Catchwords: JUDICIAL REVIEW – District Court – conviction appeal from Local Court dismissed as outside three month time limit – erroneous as calculation should have excluded day of lodgement – whether error jurisdictional – whether necessary to show error was "material" – Held – relief granted Legislation Cited: Child Protection (Offenders Registration) Act 2000 Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999 Crimes Act 1900 Director of Public Prosecutions Act 1986 District Court Act 1973 Interpretation Act 1987 Landlord and Tenant (Amendment) Act 1932 Summary Offences Act 1988 Supreme Court Act 1970 Uniform Civil Procedure Rule 59.10 Cases Cited: CN17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 94 ALJR 140 Craig v State of South Australia (1994) 184 CLR 163 Ex parte Toohey's Ltd; Re Butler & Ors (1934) SR 277 Forrest v Director of Public Prosecutions (NSW) (2020) 286 A Crim R 191; [2020] NSWCA 162 Herron v Attorney-General (1987) 8 NSWLR 601 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Kirk v Industrial Court of New South Wales (2009) 239 CLR 531; [2010] HCA 1 Lazarus v Independent Commission Against Corruption [2019] NSWCA 100 Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17 Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369 Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52 Category: Principal judgment Parties: Isaac Purcell (Applicant) Director of Public Prosecutions (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: N Broadbent (Applicant) E Balodis (First Respondent) Submitting Appearance (Second Respondent) Solicitors: Legal Aid NSW (Applicant) Office of the Director of Public Prosecutions (First Respondent) Crown Solicitor's Office (Second Respondent) File Number(s): 2021/168479 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 10 March 2021 Before: Ellis DCJ File Number(s): 2017/256380 [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 to be read as part of the judgment] The applicant pleaded guilty to two charges under the Summary Offences Act 1988. On 3 September 2020 he was convicted in the Local Court and made subject to Community Corrections Orders. At around 3.45pm on 3 December 2020 he filed an application for leave to appeal against his conviction and sentence. The cover to the court file noted that the application was filed on 4 December 2020. His application was listed before a District Court judge on 10 March 2021 who dismissed the application on the basis that it was not made "within 3 months after the relevant conviction or sentence" as provided for in s 13(2) of the Crimes (Appeal and Review) Act 2001 (the "CAR Act"). The applicant brought proceedings in the Court of Appeal seeking relief against the District Court under s 69 of the Supreme Court Act 1970 on the basis that the District Court mistakenly refused to exercise its jurisdiction under the CAR Act. The application was brought one day out of time. The issues that arose on the application were: (i) Whether an extension of time should be granted in which to make the application to the Court of Appeal"; (ii) Whether the primary judge erred in determining that the application was not "made within 3 months after the relevant conviction or sentence"; (iii) If the primary judge did err, was that error jurisdictional? (iv) Whether there was a further threshold of materiality that the applicant had to satisfy before it could be concluded that he made out a case of jurisdictional error? The Court held per Beech-Jones JA (Macfarlan JA and Simpson AJA agreeing): (i) Given the strength of the substantive application, and the explanation proffered by the applicant's solicitor, an extension of time should be granted (at [9]); (ii) As the application to the District Court was filed on 3 December 2020 and as the date of the conviction and sentence, namely 3 September 2020, was excluded from the calculation, the application was made "within three months after the relevant conviction or sentence" (at [14]); Interpretation Act 1987, s 36(1) and Ex parte Toohey's Ltd; Re Butler & Ors (1934) 34 SR (NSW) 277 applied; (iii) The effect of the primary judge's decision was to wrongly deny the District Court's jurisdiction and subject to any question of materiality, this error was jurisdictional (at [19]); Craig v State of South Australia (1994) 184 CLR 163; Ex parte Toohey's Ltd; Re Butler & Ors (1934) SR 277 applied; Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369 considered; (iv) It was not necessary to determine whether the materiality doctrine applies to the circumstance where an inferior court has wrongly denied the existence of its jurisdiction. Assuming, without deciding, that it was applicable, the applicant met the threshold (at [26]); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34; Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3; and MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17 considered. Judgment 1. MACFARLAN JA: I agree with Beech-Jones JA. 2. BEECH-JONES JA: By an amended summons filed on 12 July 2021, the applicant, Isaac Purcell, seeks relief under s 69 of the Supreme Court Act 1970 in respect of a decision of his Honour Judge Ellis SC of the District Court on 10 March 2021. By that decision, his Honour dismissed Mr Purcell's application under the Crimes (Appeal and Review) Act 2001 for leave to appeal against his conviction and sentence in the Local Court on two charges under s 4(1) of the Summary Offences Act 1988. The applicant also seeks an order under Uniform Civil Procedure Rule ("UCPR") 59.10 extending time for commencement of these proceedings. 3. For the reasons that follow, I consider that the applicant has established that the District Court's decision was affected by jurisdictional error in that his Honour mistakenly concluded that the Court had no jurisdiction to consider the application for leave to appeal. I propose that the extension of time be granted, that Judge Ellis SC's judgment be set aside and an order be made requiring the District Court redetermine the application for leave to appeal according to law. Background 1. On or about 26 July 2017, four future Court Attendance Notices were generated. Those notices alleged that, on 9 May 2017, the applicant committed two offences of behaving in an offensive manner contrary to s 4(1) of the Summary Offences Act 1988 and two offences of committing an act of indecency on a person aged 16 years or over contrary to s 61N(2) of the Crimes Act 1900 (NSW). A warrant was issued for his arrest. It was not executed until 18 May 2020. 2. On 3 September 2020, the applicant appeared before the Local Court sitting in Newcastle. He pleaded guilty to the two charges under s 4(1) of the Summary Offences Act. The other two charges were withdrawn. For one of the offences the applicant was sentenced to be subject to a Community Correction Order ("CCO") under s 8 of the Crimes (Sentencing Procedure) Act 1999 for a period of 18 months. For the other offence, he was sentenced to a fine of $500 and to be subject to a CCO for a period of two years. 3. At around 3.45pm on 3 December 2020, the District Court Registry received an application for leave to appeal from the applicant against both his conviction and sentence. A record on Justice Link and the cover of the District Court file recorded that the application was filed on 4 December 2015, that being the date on which the registry staff processed the application. In his application for leave, the applicant stated that the grounds for the application for leave to appeal so far as an extension of time was sought were that, amongst other matters, he was not aware of the time limits for appeals and only received advice about his appeal rights in November 2020. He also stated that he was "not guilty of the offences and wish to be heard through my lawyer on the merits of my traversal application". 4. His application for leave to appeal was listed before his Honour on 10 March 2021. On that day, the applicant swore an affidavit expanding on why the application was not filed earlier which included reference to his "acquired brain injury". He also stated that he entered his plea in the Local Court following advice from his lawyer that it was "better" for him to plead guilty because, if he did not, he "could go to gaol for three to eighteen months". He stated that it was not explained to him that the "offence of offensive behaviour cannot be made out by use of words alone". Presumably, this is a reference to ss 4(2) of the Summary Offences Act which provides that "a person does not conduct himself or herself in an offensive manner as referred to in subsection 4(1) merely by using offensive language." Judge Ellis' Decision 1. The transcript of the hearing of the leave application reveals that, at the outset, his Honour raised whether the application was "outside the three months", being the period specified in s 13(2) of the CAR Act set out below. The applicant's solicitor referred to the affidavit from the applicant noted above. However the affidavit was not read as his Honour stated that, if the application was lodged outside the three month time period, there was "no jurisdiction" to exercise. His Honour stated that the appeal was filed three months and one day after conviction. His Honour then gave an ex tempore judgment which noted that, in so far as the applicant sought to traverse his plea, he might "fac[e] an uphill battle" but which then stated that the applicant had lodged his application one day outside the relevant time period. His Honour concluded that "this Court has no jurisdiction to entertain the appeal and the application is dismissed for want of prosecution". Extension of Time 1. The proceedings in this Court were commenced on 11 June 2021 being (ironically) just outside the three month time period for the commencement of judicial review proceedings provided for in UCPR 59.10(2). As noted, an extension of time is sought. In her affidavit, the applicant's solicitor explained that this delay was not the applicant's fault. In those circumstances, given the strength of the application and the absence of prejudice to the first respondent, I consider that the extension should be granted. Jurisdictional Error 1. Sub-sections 11(1) of the CAR confers a right of appeal to the District Court on a person who has been convicted or sentenced by the Local Court except that by subsection 11(1A) there is no such right of appeal against a conviction entered in their absence or following the entry of a plea of guilty. Leaving aside convictions the subject of an annulment application to the Local Court, the appeal must be made within 28 days after sentence is imposed (s 11(2)). For persons who are convicted following their entry of a plea of guilty, s 12(1) of the CAR enables them to apply for leave to appeal against their conviction but again they must do so within 28 days of sentence being imposed (s 12(3)(a)). 2. Sections 13 and 16 of the CAR Act provide: 13 Late applications for leave to appeal (1) An appeal to the District Court may be made-- (a) by any person by whom an appeal could be made under section 11, but for section 11 (2), and (a1) by any defendant by whom an appeal could be made under section 11A, but for section 11A (2), and (b) by any person by whom an application for leave to appeal could be made under section 12, but for section 12 (3), but only by leave of the District Court. (2) An application for leave to appeal must be made within 3 months after the relevant conviction or sentence is made or imposed, or the relevant application under section 4 is refused, as the case may require. 16 Determination of applications for leave to appeal (1) The District Court may determine an application for leave to appeal by dismissing the application or by granting leave to appeal. (2) Leave to appeal must not be granted in relation to an application under section 13 unless the District Court is satisfied that it is in the interests of justice that leave be granted. (3) If the District Court dismisses an application for leave to appeal, it may make such order as to the costs to be paid by the appellant as it thinks just. (4) If the District Court grants leave to appeal, it may proceed to hear the appeal immediately or it may adjourn the appeal proceedings. 1. As at 10 March 2021, the applicant's application for leave to appeal against his sentence fell within s 11(1) of the CAR Act but was outside the 28-day time period provided for in s 11(2). Hence a grant of leave was required under s 13(1) (s 13(1)(a)). As he entered a plea of guilty, the applicant also required a grant of leave to appeal under s 12(1) to appeal against his conviction but he was outside the time period specified in s 12(3). Hence a grant of leave in respect of that application was also required under s 13(1) (s 13(1)(b)). The applications for leave under s 13 were governed by s 16(2), that is, they could not be granted unless the District Court was satisfied that it was in the "interests of justice" to do so. 2. However, as is clear from the above, the proceedings did not get to that point. Instead, his Honour concluded that that the application(s) were not made "within 3 months after the relevant conviction or sentence [was] made or imposed" (s 13(2)). 3. It was contended on behalf of the applicant that his Honour was in error in concluding that the application for leave to appeal was not made within the 3‑month time period specified in s 13(2). The first respondent to the application was named as the "Office of Director of Public Prosecutions" and was represented in this Court. As there is no such legal entity, I will treat that as a reference to the Director of Public Prosecutions (Director of Public Prosecutions Act 1986, s 4) (the "DPP"). (The second respondent was the District Court of NSW which filed a submitting appearance.) The DPP agreed with the applicant's contention. I also agree. As noted, even though the Court file recorded that the application was made on 4 December 2021 it was clearly "made" on 3 December 2020 when it was sent to and received by the District Court registry. Subsection 36(1) of the Interpretation Act 1987 provides that "[i]f in any Act or instrument a period of time, dating from a given day, act or event, is prescribed or allowed for any purpose, the time shall be reckoned exclusive of that day or of the day of that act or event". In this case, the relevant "day, act or event" was the date the relevant "conviction or sentence [was] imposed" being 3 September 2020. Hence, the period of three months in s 13(2) was to be reckoned excluding that day and commencing the following day namely 4 September 2020. Subsection 13(2) only operated to exclude an application that was not filed within three months of that day being a period that expired on 4 December 2020. An application that was filed on 3 December 2020 was within that period. 4. This outcome is consistent with Ex parte Toohey's Ltd; Re Butler & Ors (1934) 34 SR (NSW) 277 ("Butler") which applied the then s 35(2) of the Interpretation Act which was in identical terms (at 286). In Butler, an application for determination of the annual rent of a lease to which Part III of the Landlord and Tenant (Amendment) Act 1932 applied had to be made to the Licences Reduction Board within three months of the Act coming into force. It came into force on 31 December 1932 and the relevant application was filed on 31 March 1933. The date the Act came into force was excluded from the period of three months and the application was held to be filed within time (at 286). 5. Two further matters must be addressed. 6. First, merely because an error was made by the District Court does not mean that relief under s 69 will be granted. Section 176 of the District Court Act 1973 operates to limit the grant of such relief to cases involving jurisdictional error (Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162 at [47]). An inferior court will fall into jurisdictional error if it mistakenly asserts or "denies the existence of jurisdiction" (Craig v State of South Australia (1995) 184 CLR 163 at 177; [1995] HCA 58; Kirk v Industrial Court of New South Wales (2009) 239 CLR 531; [2010] HCA 1 at [72]). 7. Not every time bar or time limit has a jurisdictional quality. Thus, an error in construing a time limit for the laying of an information was held not to be a jurisdictional error committed by a court of summary jurisdiction in Parisienne Basket Shoes Pty Ltd v Whyte (1937) 59 CLR 369 (esp at 392 per Dixon J). However, s 13(2) of the CAR Act operates as a command to the District Court about the circumstances in which it may grant leave to appeal. In considering a similar command in Butler, Jordan CJ observed (at 283): "The present case is not one in which a subordinate tribunal from which there is no appeal has given a decision as to certain facts, and there is a question whether these are collateral or part of the issue. It is, I think, one in which the right of a tribunal of limited jurisdiction to exercise that jurisdiction depends upon a certain proceeding which has been made an essential preliminary to the inquiry, viz the making of an application for a determination within a specified time. When it is provided that an application must be made within a specified time, it is, I think, a condition precedent to the exercise of jurisdiction that proceeding should be begun within the time; and a preliminary determination of whether the application is in time, for the purposes of embarking upon the matter, is not a determination of the matter arising under the part …." 1. Subject to the next point, in circumstances where his Honour overlooked the effect of s 36(2) of the Interpretation Act and concluded the Court had no jurisdiction to entertain the application, there was a mistaken denial of the existence of jurisdiction (Craig supra). 2. Second, while the DPP's submissions conceded that the error in relation to the invocation of s 13(2) was "jurisdictional", they queried whether the applicant had discharged his onus of proving the "materiality" of his Honour's error (citing Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34; "Hossain"; and Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3; "SZMTA"). The balance of the DPP's submissions on this issue reviewed the available factual material concerning the application for leave to appeal including such material as there is concerning whether the applicant would be allowed to withdraw his plea of guilty. The DPP noted that this Court "may therefore not be able to conclude that the error committed by [His Honour] was not material". Insofar as the application concerned the sentence imposed on the application, the DPP's submissions noted that the applicant had not addressed any material as to why, in the absence of his Honour's decision, his appeal against sentence could have been successful. 3. The applicant's submissions in reply accepted that s 13(2) of the CAR incorporated "a threshold of materiality" but contended that the relevant standard is that posited by s 16(2) namely whether it is in the interests of justice that leave to appeal be granted and not whether the application would be ultimately successful on the appeal. They contend that, given the width of that phrase (see for example Herron v Attorney-General (1987) 8 NSWLR 601 at 613), the outcome of the application for leave to appeal "could realistically have been different" had the primary judge not refused to entertain the application. 4. In Hossain at [29] Kiefel CJ, Gageler and Keane JJ held that "ordinarily" a statute which impliedly requires that a condition be observed in the course of a decision-making process is not to be interpreted as denying legal force and effect to every decision made in breach of the condition. Instead, "the statute is ordinarily to be interpreted as incorporating a threshold of materiality in the event of non-compliance", namely that "compliance with the condition could have resulted in the making of a different decision" (Hossain at [29] and [31]). In MZAPC v Minister for Immigration and Border Protection & Anor [2021] HCA 17 ("MZAPC") at [31] Kiefel CJ, Gageler, Keane and Gleeson JJ expressed this principle as being applicable to conditions which the "statute expressly" as well as impliedly requires to be observed in the course of the decision making process. Their Honours also noted that there are some conditions that are routinely implied into conferrals of statutory decision-making authority by common law principles of interpretation which, of their nature, incorporate an element of materiality" such that non-compliance will result in invalidity "without any additional threshold needing to be met" (MZAPC at [33]). Two examples cited were the necessity for the decision to be free from actual or apprehended bias and to be within the bounds of reasonableness (MZAPC at [33]). 5. In requiring that it be shown that compliance with the relevant condition that was said to have been breached "could have resulted in the making of a different decision", the materiality principle as formulated in Hossain posits a "counter factual analysis" that takes as its starting point the decision that was in fact made (CN17 v Minister for Immigration and Border Protection [2019] HCA 50; (2019) 94 ALJR 140 at [47] per Kiefel CJ and Gageler J; "CN17"; MZAPC at [38]). From that starting point, a factual inquiry is then undertaken as to whether compliance with the condition could have resulted in the making of a different decision, the burden of proof of which is on the party alleging invalidity (MZAPC at [35] and [39]). 6. The articulation and analysis of the principle of materiality in Hossain, SZMTA and MZAPC took place in the context of an allegation of jurisdictional error by an administrative tribunal being a breach of a condition required to be observed in the decision making process. This case is a very different context namely the wrongful denial of jurisdiction by an inferior court. The discussion of the circumstances in which an inferior court commits jurisdictional error in Craig at 177 and Kirk at [72] did not expressly identify any requirement for any breach of a limit on their powers to be "material". That said, this Court has referred to the need to demonstrate the materiality of an alleged error made by the District Court in determining whether the error was jurisdictional (Voicu v The Owners-Strata Plan No 1624 [2020] NSWCA 52 at [32]; Lazarus v Independent Commission Against Corruption [2019] NSWCA 100 at [60]). 7. Nevertheless, the automatic transposition of the materiality principle as identified in Hossain to inferior courts in the manner suggested by the DPP is not straightforward where, as in this case, the relevant form of jurisdictional error contended for is either a mistaken assertion, or a wrongful denial, of jurisdiction (Craig at 177). In the former case, the outcome in the court below but for the error would have been no decision at all and, in the latter case, there is no "decision" upon which one can undertake a "counter factual analysis" to see if a different result might have ensued (CN17 supra). Thus it may be that such errors are taken to necessarily "incorporate an element of materiality" (MZAPC at [33]). 8. Assuming, without deciding, that there is an applicable threshold of materiality beyond demonstrating that his Honour erred in concluding that the application for leave to appeal was precluded by s 13(2) of the CAR Act, then it was ultimately accepted by the parties that the applicant had to demonstrate that, had that determination not been made, his application for leave to appeal could realistically have been granted. Having regard to the width of the phrase "interests of justice" in s 16(2) of the CAR Act, the applicant satisfied that test. His affidavit includes an apparently plausible explanation for his delay, the result of the conviction and sentence have consequences for him under the Child Protection (Offenders Registration) Act 2000 and, even if he is not permitted to withdraw his plea of guilty, he could still pursue an appeal against sentence. In those circumstances it would be open to the District Court to grant leave to appeal under s 13(1) of the CAR Act. Relief 1. The Amended Summons seeks relief to the effect that the decision of the District Court be set aside and there be no order for costs. Accordingly, I propose the following orders: (1) Pursuant to Uniform Civil Procedure Rule r 59.10(2), extend the time for the applicant to file the summons in this proceeding up to and including 11 June 2021; (2) Pursuant to s 69 of the Supreme Court Act 1970, the judgment and orders of the District Court in the matter of Isaac Fred Purcell v R (2017/256380) be set aside; (3) The District Court determine the application for leave to appeal by Isaac Fred Purcell in matter 2017/256380 according to law; and (4) There be no order as to costs. 1. SIMPSON AJA: I agree with Beech-Jones JA. ********** 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: 08 November 2021