Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v Mahamed [2022] NSWSC 147 Hearing dates: 9 December 2021 Date of orders: 23 February 2022 Decision date: 23 February 2022 Jurisdiction: Common Law Before: Dhanji J Decision: (1) The plaintiff's appeal brought pursuant to s 56(1) of the Crimes (Appeal and Review) Act 2001 (NSW) is dismissed. (2) The plaintiff's application pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) for an extension of time in which to bring proceedings for judicial review is refused. (3) The plaintiff is to pay the defendant's costs of the proceedings in this Court. Catchwords: APPEAL – Appeal from Local Court pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) – Error of law – Where telephone intercept material was ruled inadmissible as evidentiary certificate under s 18(3) and s 18(4) of the Telecommunications (Interception and Access) Act 1979 (Cth) was found to have no application to the proceedings – Where charge dismissed as no prima facie case without the telephone intercept material – Whether appeal lies against the order dismissing the charge where alleged error occurred in an antecedent determination that resulted in the order dismissing the charge – Whether appeal pursuant to s 56 is available if appeal under s 57 was available but not brought – Whether appeal involves a question of law alone – Whether the court should address question of law that is not particularised in notice of appeal – Appeal dismissed ADMINISTRATIVE LAW – Judicial Review – Whether reviewable error of law – Error of law on the face of the record – Whether reasons for determining admissibility of evidence constitutes part of the record – No error on the face of the record ADMINISTRATIVE LAW – Judicial Review – Whether reviewable error of law – Jurisdictional error – Difference between jurisdictional error and mere error in the exercise of jurisdiction – Asserted error is not jurisdictional Legislation Cited: Crimes Act 1900 (NSW) Crimes (Appeal and Review) Act 2001 (NSW) Criminal Appeal Act 1912 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Justices Act 1902 (NSW) (repealed) Telecommunications (Interception and Access) Act 1979 (Cth) Cases Cited: Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166 ASIC v Farley (2001) NSWLR 494; [2001] NSWSC 326 Attorney-General's Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW): Re Robert Burton (a pseudonym) (2021) 289 A Crim R 131; [2021] NSWCCA 87 Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47 Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58 CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 Dickinson v Perrignon [1973] 1 NSWLR 72 Director of Public Prosecutions (NSW) v Banks [2019] NSWSC 363 Director of Public Prosecutions v Langford [2012] NSWSC 310 Director of Public Prosecutions (NSW) v Shaba (2018) 273 A Crim R 15; [2018] NSWSC 811 Director of Public Prosecutions v Yerbury [2020] NSWSC 905 Elias v The Director of Public Prosecutions (NSW) (2012) 222 A Crim R 286; [2012] NSWCA 302 Evans v Powell [2012] NSWSC 1384 Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1987) 7 NSWLR 503 Hockey v Yelland (1984) 157 CLR 124; [1984] HCA 72 Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Kopuz v District Court of New South Wales (1992) 28 NSWLR 232 DPP v Kamal Nakhla [2006] NSWSC 781 Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92 Michael Wilson and Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48 NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales [2001] NSWSC 494; (2001) 53 NSWLR 559 Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220 R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272 R v Lisoff [1999] NSWCCA 364 R v Northumberland Compensation Appeal Tribunal [Ex parte Shaw] [1952] 1 KB 338 R v O'Neill (2001) 122 A Crim R 510; [2001] NSWCCA 193 R v PL (2009) 261 ALR 365; [2009] NSWCCA 256 R v SH (2014) 88 NSWLR 1; [2014] NSWCCA 218 R v Steffan (1993) 30 NSWLR 633 Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Ritson v Leighton [2015] NSWCA 62 Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337 Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253 Wany v Director of Public Prosecutions (NSW) (2020) 103 NSWLR 620; [2020] NSWCA 318 Williams v The Queen (1986) 161 CLR 278; [1986] HCA 88 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Plaintiff) Abdelrahman Mahamed (Defendant) Representation: Counsel: D Kell SC with E Jones (Plaintiff) G Bashir SC (Defendant) Solicitors: Solicitor for Public Prosecutions (NSW) (Plaintiff) Birchgrove Legal (Defendant) File Number(s): 2021/191959 Publication restriction: Nil Decision under appeal Court or tribunal: Bankstown Local Court Jurisdiction: Criminal Date of Decision: 15 March 2021 Before: Magistrate Bugden File Number(s): 2019/217030 Judgment Introduction 1. By an amended summons filed on 16 September 2021, the Director of Public Prosecutions (NSW) ("the plaintiff") appeals, pursuant to s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) ("CAR Act"), against the decision of Magistrate Bugden sitting in the Local Court at Bankstown, dismissing a criminal charge against Abdelrahman Mahamed ("the defendant"). The Local Court of New South Wales was named as the second defendant and entered a submitting appearance. The plaintiff seeks in the alternative, an order in the nature of certiorari, quashing the decision of the Local Court Magistrate, and, "to the extent necessary", an order remitting the matter to the Local Court to be determined in accordance with law. 2. The defendant faced three charges in the Local Court, identified as sequences 1, 2 and 3. Sequence 1 was a charge against s 192G(b) of the Crimes Act 1900 (NSW) of dishonestly making a statement that was false in a material particular with the intention of obtaining a financial advantage. For reasons not presently relevant, this charge was heard first, separately from sequences 2 and 3. The dismissal of sequence 1 is the subject of these proceedings. Sequences 2 and 3 were, at the time this appeal was heard, yet to be heard by the Local Court. 3. The dismissal of sequence 1 was the result of the prosecutor offering no evidence in support of the charge. This occurred after the magistrate determined that telephone intercept material sought to be relied on by the prosecutor was not admissible. This was on the basis that the evidentiary certificate under s 18(3) and s 18(4) of the Telecommunications (Interception and Access) Act 1979 (Cth) ("TIA Act"), relied on by the prosecutor to establish the admissibility of the intercepted material, had no application to the proceedings. The decision on the admissibility of the telephone intercept material, and in turn, the effect of the evidentiary certificate in the below proceedings are at the heart of the plaintiff's complaint on this appeal and application for review. 4. The original summons was filed on 5 July 2021. That summons was limited to an appeal under the CAR Act. It was only on the filing of the amended summons that the plaintiff also sought judicial review as alternative relief. 5. The orders sought with respect to the appeal pursuant to the CAR Act were as follows: "1. An order allowing the appeal. 2. An order pursuant to section 59(2) of the Crimes (Appeal and Review) Act 2001 that the order of Magistrate Bugden made on 15 March 2021 at Bankstown Local Court dismissing the charge of "publish etc false or misleading statement with intent to obtain a financial advantage" under s 192G(b) of the Crimes Act 1900 (H71460113/1) be set aside. 3. An order that the matter be remitted to the Local Court to be dealt with according to law. 4. An order that the defendant pay the plaintiff's costs of these proceedings. 5. Such further or other orders as to the Court seems fit." 1. The grounds of appeal were expressed in the following terms: "On the hearing of the appeal pursuant to s 56 of the Crimes (Appeal and Review) Act, it will be contended that Magistrate Bugden erred in law by: (i) Failing to consider and apply s 18(5) of the Telecommunications (Interception and Access) Act 1979 (Cth) (the Act to the admissibility of the certificate signed by the Director-General of Security and dated 1 September 2016 tendered in evidence in the proceedings, and in particular failing to consider and make findings as to whether that document purported to be a certificate under s 18(3) and (4) of the Act, and; (ii) As a consequence of the alleged error in ground (1) above, failing to conclude that the document came within the terms of s 18(5) of the Act and failing to admit the certificate into evidence in the proceedings." 1. With respect to the application for judicial review, the orders sought were: "1. An order under r 59.10 of the Uniform Civil Procedure Rules 2005 (NSW) extending time for the commencement of proceedings for judicial review. 2. An order in the nature of certiorari quashing the decision of Magistrate Bugden made on 15 March 2021 at Bankstown Local Court dismissing the charge of "Publish etc false or misleading statement with intent to obtain a financial advantage" under s 192G(b) of the Crimes Act 1900 (H71460113/1). 3. To the extent necessary, an order remitting the matter to the Local Court to be determined in accordance with law. 4. Costs." 1. The bases for the application were expressed in these terms: "On the hearing of the application for judicial review, it will be contended that: (i) Magistrate Bugden erred in law in his construction of s 18(5) of the Act; and (ii) Magistrate Bugden wrongfully excluded the certificate signed by the Director­General of Security and dated 1 September 2016 tendered in evidence in the proceedings; and (iii) Consequently, Magistrate Bugden wrongfully excluded lawfully intercepted information from the proceedings." 1. The matter was heard on 9 December 2021. The evidence before this Court was tendered by agreement in a Court Book. This included, primarily, the Local Court record of proceedings, the transcript of Local Court proceedings, some of the exhibits before the Local Court and written submissions provided to the Local Court. The only other evidence was an email dated 20 August 2021 from the informant police officer enclosing a new evidentiary certificate intended to be relied on in relation to sequences 2 and 3 (circumventing the issue that arose in the hearing of sequence 1). This is potentially relevant to the exercise of any relevant discretion on the basis that the outstanding charges will not be affected by the determination of these proceedings. Background 1. The factual and procedural background was conveniently set out by the plaintiff in her written submissions as follows: "3. The respondent was charged with an offence of making or publishing a statement that is false or misleading in a material particular with the intention of obtaining a financial advantage, contrary to s 192G(b) of the Crimes Act. This charge was referred to in the Local Court as Sequence 1. It alleged that the respondent made a false or misleading claim for workers injury compensation in the amount of $163,976.52. The respondent was charged with two further offences which are not presently relevant. 4. On 22 January 2021, the proceedings were listed before Magistrate Bugden at Bankstown Local Court. His Honour heard argument about the admissibility of the intercepted telecommunications material which the prosecutor sought to adduce in support of Sequence 1. By way of summary, it is useful to set out part of the prosecutor's opening: "Sequence 1 relates to a worker's compensation claim made in 2011 relating to an injury alleged to have occurred to the accused on 20 July 2011. Following that, the accused submitted a worker's compensation claim after alleging he tripped over a paver in the workplace during break which he was taken to hospital for and at a subsequent time in 2012 received surgery for slipped discs. It's the prosecution case that it's a pre-existing injury that the accused made the workers compensation claim for and evidence from the telephone intercept material is relied upon in terms of showing the pre-existing injury to his back. In relation to the overall workers compensation paid out including payments and medical expenses, $163,976.52. In essence as I indicated before, the [telephone intercept] material relied upon is completely relied upon in terms of identifying that pre-existing injury based on conversations that the accused has had with his brother. At that particular time his brother was subject to a telephone intercept warrant". 5. The prosecutor described the content of the intercepted material in the following way: "The conversation captured goes to the accused and Mr Farag [the brother] discussing an existing back injury that the accused has in May 2011 which is essentially two months before the alleged workplace incident on 20 July 2011 and the conversation goes to the accused being in Egypt and stating that he visits an orthopaedic surgeon because he's in extreme pain, has an MRI and is diagnosed with having two slipped discs. In addition, the telephone intercept information on the day of the injury, 20 July 2011, there's conversation between the accused and Mr Farag in relation to the accused at his workplace saying looking around for an area that had no cameras, making sure no one else was around for the purpose of staging the alleged trip and subsequent injury that he claims". 6. It was submitted on behalf of the respondent that the admission of the intercepted telecommunications material was prohibited by the TIA Act." 1. The argument, ultimately, centred on the admissibility of a document relied on by the prosecutor as an evidentiary certificate under s 18(5) of the TIA Act. 2. The operation of the TIA Act to the intercepted communications in question was not controversial, other than with respect to the critical question in relation to s 18(5) of that Act and its application to the particular document relied on by the prosecutor. In these circumstances it is convenient to adopt the plaintiff's summary of the way in which the applicable provisions work together which is as follows: "10. Under the TIA Act, communications passing over a telecommunications system cannot be intercepted, other than, relevantly, under a warrant: s 7(1), (2)(b). Section 9A provides that the Attorney-General for the Commonwealth may issue a "named person warrant" [Defined in s 5(1) to include, relevantly, a warrant issued under s 9A] where satisfied that: (a) the person is engaged in, reasonably suspected of being engaged or likely to engage in activities prejudicial to security; (b) the interception of their communications will or is likely to assist ASIO in obtaining intelligence relating to security; and (c) relying on a "telecommunications service warrant" [Defined in s 5(1) to include, relevantly, a warrant issued under s 9] to obtain the intelligence would be ineffective. Such a warrant was issued here, by the Attorney-General on 24 March 2011, in respect of Mr Farag, the respondent's brother. Communications intercepted under a named person warrant would be lawfully intercepted information: s 6E(1). 11. Section 63(1)(b) of the TIA Act prohibits giving evidence about lawfully intercepted information in a proceeding, subject, relevantly, to Part 2-6. Section 74(1) in Part 2-6 provides that (subject to exceptions which are not presently relevant) evidence of lawfully intercepted information may be given in "exempt proceedings". 12. Section 58(1)(a) of the TIA Act defines exempt proceedings to include a proceeding by way of prosecution for a prescribed offence. A prescribed offence is defined in s 5(1) to mean any offence punishable by imprisonment for a maximum period of at least 3 years. The maximum penalty specified for an offence against s 192G of the Crimes Act is imprisonment for 5 years. A proceeding is defined in s 5(1) to mean, inter alia, "a proceeding or proposed proceeding ... in a court of a State or Territory". Accordingly, a proceeding or proposed proceeding by way of prosecution for an offence against s 192G of the Crimes Act is an exempt proceeding." 1. As noted above, critical to the issue before the magistrate was s 18(5) of the Act. Section 18 of the TIA Act is headed "Evidentiary certificates". Section 18(3)-(5) provide: (3) The Director General of Security or the Deputy Director General of Security may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to acts or things done: (a) in order to enable, or in connection with enabling, a warrant issued under this Part to be executed; or (b) in connection with the execution of a warrant issued under this Part. (4) The Director General of Security or the Deputy Director General of Security may issue a written certificate signed by him or her setting out such facts as he or she considers relevant with respect to anything done by an ASIO employee or an ASIO affiliate: (a) in connection with the execution of a warrant issued under this Part; or (b) in connection with: (i) the communication by a person to another person of; or (ii) the making use of; or (iii) the making of a record of; or (iv) the custody of a record of; or (v) the giving in evidence of; information obtained by the execution of such a warrant. (5) A document purporting to be a certificate issued under subsection (3) or (4) by the Director General of Security or the Deputy Director General of Security and to be signed by him or her is to be received in evidence in an exempt proceeding without further proof and is, in an exempt proceeding, prima facie evidence of the matters stated in the document. 1. It is necessary to set out the first page of the certificate the prosecutor sought to rely on pursuant to s 18(5) in order to properly understand the magistrate's reasons, discussed below. It was in the following terms: "TELECOMMUNICATIONS (INTERCEPTION AND ACCESS) ACT 1979 ABDELRAHMAN MAHAMED: EXEMPT PROCEEDING EVIDENTIARY CERTIFICATE UNDER SUBSECTIONS 18(3) and 18(4) Named person warrant (section 9A) I, Duncan Lewis, Director-General of Security, hereby certify the facts set out in the attached schedule. I consider these facts relevant to this proceeding with respect to acts or things done: (a) in order to enable, or in connection with enabling, a warrant issued under section 9A of the Telecommunications (Interception and Access) Act 1979 (the Act) to be executed; or (b) in connection with the execution of a warrant issued under section 9A of the Act. I further certify these facts and consider them relevant to this proceeding with respect to anything done by an Australian Security Intelligence Organisation (ASIO) employee or an ASIO affiliate: (a) in connection with the execution of a warrant issued under section 9A of the Act; and (b) in connection with: (i) the communication by a person to another person of; or (ii) the making use of; or (iii) the making of a record of; or (iv) the custody of a record of; or (v) the giving in evidence of; information obtained by the execution of such a warrant. Dated: 1 September 2016 Director-General of Security" 1. The Schedule recorded that the Attorney-General for the Commonwealth had issued a warrant under s 9A of the TIA Act in respect of Mr Farag authorising the interception of his telecommunications service for a period of six months from 24 March 2011. That warrant was also before the Local Court. The Schedule to the Evidentiary Certificate further recorded a number of steps taken in execution of the warrant, including that the intercepted communications contained in the files described in Annexure B were intercepted pursuant to the warrant and copied by Australian Security Intelligence Organisation ("ASIO") employees or affiliates authorised to do so under s 12 of the TIA Act. In relation to the material obtained under the warrant, there were also evidentiary certificates under s 18(1) of the TIA Act from Vodafone and from Telstra. 2. The magistrate's reasons for rejecting the certificate span approximately five pages of transcript and culminated in the following numbered conclusions: "(1) On 1 September [2016], the director general of ASIO signed an evidentiary certificate concerning this proceeding. That certificate did not refer to any proposed proceedings. (3) [as said - there was no (2)] While the proceeding under the [A]ct may include a proposed proceeding in a Court, the director general referred to, no such proposed proceedings in a Court. (4) When the director general used the words 'This proceeding on 1 September', he was not referring to exempt proceedings as the heading on the ASIO certificate sets out. (5) An exempt proceeding is defined in s 5B of the TIA Act as a proceeding by way of the prosecution for a prescribed offence. (6) There was no such prosecution in 2016 in this matter, as the prosecution did not commence until the defendant was charged with the offences and the matter first came before the Court on 12 July 2019. (7) That in these circumstances, the evidentiary certificate could not be relevant to these proceedings by way of prosecution for a prescribed offence then on foot. All that was, on foot, was an investigation. (8) The Vodafone and Telstra certificates do not make the contents of the intercepted material admissible. (9) There is no current ASIO certificate relevant to the proceedings by way of the prosecution. (10) The ASIO certificate refers to exempt proceedings as at 01/09/16, s 74 is only applicable once there is shown to be unlawfully [sic] intercepted information, which depends on there being a current relevant and admissible ASIO certificate and in any case applies to exempt proceedings. (11) The ASIO certificate in these proceedings does not apply to these proceedings. (12) Accordingly when I take all of those matters into account, I am left with one decision only and that is, I UPHOLD THE OBJECTION TO THE ADMISSIBILITY OF THE ASIO CERTIFICATE AND THE EVIDENCE RELEVANT TO THOSE PROCEEDINGS." The CAR Act appeal 1. As a result of the manner in which the appeal proceeded the following series of questions arise, each of which is potentially determinative: 1. does an appeal lie pursuant to s 56(1)(c) of the CAR Act against the order dismissing the charge in circumstances where any error did not occur in that determination itself, but rather in a determination excluding evidence anterior to, but effectively resulting in, the order dismissing the charge? 2. if so, is the appeal on a ground (or grounds) that involve(s) a question of law alone and is it appropriate to answer that question (or those questions)? 3. if so, what is the answer to the question or questions of law and how, in the light of that answer is the ground to be resolved? 4. if the ground is established, does the court have a discretion to nonetheless dismiss the appeal, and on whom does the onus lie? 5. how should any such discretion be exercised? 1. For the reasons set out below the appeal fails at the second step. It is therefore unnecessary to consider the subsequent questions. Does an appeal lie pursuant to s 56(1)(c) of the CAR Act against the order dismissing the charge in circumstances where any error did not occur in that determination itself, but rather in a determination excluding evidence anterior to, but effectively resulting in, the order dismissing the charge? 1. As noted in the background set out above, the matter came on for hearing on 22 January 2021. On that date a voir dire was conducted with respect to the admissibility of the telephone intercept material and the parties addressed on the issue. On that date the magistrate reserved his decision with respect to the admissibility of the evidence. Leave was given to the prosecutor to provide written submissions, which was done by a submission dated 3 February 2021. On 19 February 2021, the magistrate upheld the objection to the evidence and gave reasons for this determination. According to the notation on the court record the matter was adjourned to 1 March 2021 for "possible withdrawal of all charges". On 1 March 2021 the Crown case on sequence 1 was closed and an adjournment was sought by the prosecution. The record that day indicates sequence 1 was adjourned to 15 March and sequences 2 and 3 were set down for hearing at a later date. When the matter returned to Court on 15 March the prosecutor referred to the ruling upholding the objection and said "given that finding … we concede that the Court wouldn't find a prima facie case in relation to that sequence". There was some discussion as to the other charges after which the magistrate said "I will simply mark sequence one dismissed". That was the entirety of the learned magistrate's reasons dismissing the charge. I do not intend any criticism in this regard. Rather, those reasons reflected the position of the prosecution. 2. The appeal is brought pursuant to s 56(1)(c) of the CAR Act which (relevantly) provides: 56 Appeals as of right (1) The prosecutor may appeal to the Supreme Court against— … (c) an order made by the Local Court dismissing a matter the subject of any summary proceedings, or … … but only on a ground that involves a question of law alone. 1. As can be seen from the above, the right of appeal is against the "order … dismissing" the charge against the defendant. In the present case that was the order made on 15 March 2021. It has not been suggested there was any error in his Honour's ruling on that day. Rather, it is submitted that an appeal lies against that order on the basis of an error made in the earlier ruling on the admissibility of evidence because the "inevitable result" or the "consequence" of that ruling was the dismissal of the charge. 2. In support of the above contention, the plaintiff, in her written reply referred to Toth v Director of Public Prosecutions (NSW) [2018] NSWCA 253 where Macfarlan JA, with whom Payne JA and Sackville AJA relevantly agreed, said, at [28]: "As a general principle, if proceedings advance to a final determination and an interlocutory order affects the final result, that order may be challenged on an appeal against the final judgment (Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, [2002] HCA 22 at [4]-[8]; Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427; [2011] HCA 48 at [78]). That principle is inapplicable to the present case, at least at this stage, because Mr Toth's appeal to the District Court has not been heard and determined, as was also the case in Ghaderi v Director of Public Prosecutions (NSW) [2018] NSWCA 119. The position was otherwise in Landsman v Director of Public Prosecutions [2013] NSWCA 369, where an order by way of judicial review was made quashing a preliminary determination of a District Court judge not to submit a question for determination by the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912. As in that case the District Court judge had determined the appeal before him and the preliminary ruling impacted on that outcome, the ruling, as an ingredient of the final decision, acquired the necessary character of finality." 1. The above observation requires attention to whether the general principle applies in this case. Neither Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22 nor, Michael Wilson and Partners v Nicholls (2011) 244 CLR 427; [2011] HCA 48, which, at [78], referred to Gerlach, offer any guidance as to when the "general rule" does not apply. Ultimately it is a question of statutory construction with respect to the particular provision. In considering the ambit of s 56 of the CAR Act, it might first be noted, far from the type of provision under consideration in cases like Gerlach, it narrowly confines the nature of an appeal to this Court. The present matter also arises in a context significantly different to the context of the provisions in Gerlach, Michael Wilson and Partners and Toth v Director of Public Prosecutions (NSW). That context is a Crown appeal against an acquittal (or the dismissal of the charge to adopt the nomenclature of the Local Court). It should be acknowledged, however, that this does not have the same significance as it might in a case of an acquittal on indictment, a matter reflected in the historical availability of a stated case under the Justices Act 1902 (NSW) (repealed). 2. It is relevant to note that s 56 appears in Division 2 of Part 5 of the CAR Act. Also contained in that division is s 57 which, relevantly, provides for appeals against "an interlocutory order that has been made by the Local Court in relation to a person in summary proceedings", with the same qualification that appears in s 56 - "only on a ground that involves a question of law alone" - but with the additional requirement that such an appeal is only available by leave of the court. At the time this appeal was brought the earlier ruling on evidence, given the determination of the charge, was no longer amenable to challenge pursuant to s 57. 3. Whether s 57 would have been available, prior to the dismissal of the charge, to challenge the determination to exclude the evidence depends on whether that determination was an "interlocutory order" within the meaning of the section. The meaning of the expression "interlocutory order" was considered in R v Steffan (1993) 30 NSWLR 633, a case decided in the context of s 5F of the Criminal Appeal Act 1912 (NSW). The reasoning is, however, equally applicable here with respect to the meaning of "interlocutory order": see Director of Public Prosecutions v Yerbury [2020] NSWSC 905 at [41]. In Steffan, the Court of Criminal Appeal said, at 636: "It is not immediately self-evident as a matter of ordinary usage how a ruling on the admissibility of evidence could be entered in the records of the court as a judgment, or how it commands that anything be done (or not done) in the sense of an order of the court. It is true that such a ruling may be accompanied (as it was here) by elaborate reasons which have been expressed in a document called a judgment, but that is an altogether different usage of the word "judgment" and denotes the reasons which have been expressed rather than the formal act of the court." 1. The position in Steffan has been qualified in the subsequent decisions of R v Bozatsis and Spanakakis (1997) 97 A Crim R 296, R v Lisoff [1999] NSWCCA 364, and R v O'Neill (2001) 122 A Crim R 510; [2001] NSWCCA 193 in circumstances where the ruling on evidence amounts to a rejection of the Crown case. In the latter case, Mason P (with whom Sully and Dowd JJ agreed) said the following at [18]: "Returning to s 5F, there are circumstances where a ruling given by way of formal reasons which in substance reject the Crown case will be treated as "an interlocutory judgment or order" albeit that no formal or immediately dispositive order is made. The principles are discussed in R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 and R v Lissof [1999] NSWCCA 364. Each case involved a ruling excluding evidence on a particular topic. However, the effect of each ruling was the rejection of a Crown case dependent on that evidence. The ruling in the present case is to similar effect. The respondent does not contend otherwise." 1. In the present matter, as noted above, the prosecutor conceded in the absence of the telephone intercept evidence, there was no prima facie case. Whether this was correct was not explored on this appeal (and it is not known to this Court what other evidence the prosecution had available to it). If it was correct, it was likely that the ruling was an interlocutory order within the expanded meaning given to the expression in the cases referred to above. Given the consequent availability of a challenge to this decision pursuant to s 57 of the CAR Act, it is questionable whether the plaintiff was entitled to choose to sit on her hands and until the charge was dismissed, and then appeal as of right, rather than risk being refused leave to appeal. 2. While a refusal of leave will not ordinarily shut out a subsequent appeal, if, as appears to be the case having regard to the above, the decision was an "interlocutory order" for the purposes of s 57, it could not also be the subject of an appeal pursuant to s 56 of the CAR Act. That is because it could not be both "interlocutory" within s 57 and final, that is, "an order … dismissing a matter", within s 56. 3. Subsequent to the decisions in Steffan, Bozatsis and Spanakakis, Lissof and O'Neill, s 5F was amended to include s 5F(3A) which expands the scope of s 5F to allow for appeals against certain evidentiary rulings. That change does not impact the reasoning in those cases, nor its application to the construction of s 57 of the CAR Act. 4. On the basis of the above, in the absence of authority, I would tend to the view that no appeal lies pursuant to s 56 of the CAR Act. That does not, however, appear to be consistent with the approach taken to s 56 taken to date. The plaintiff pointed to the following as cases where appeals against final orders were brought where the error complained of was in an antecedent ruling: Director of Public Prosecutions (NSW) v Banks [2019] NSWSC 363 (see [32]); Director of Public Prosecutions (NSW) v Shaba (2018) 273 A Crim R 15; [2018] NSWSC 811 (see [4]); Director of Public Prosecutions v Langford [2012] NSWSC 310 (see [3]-[4]); Linnett (see [3]-[4]); Director of Public Prosecutions v Kamal Nakhla [2006] NSWSC 781 (see [20]); Director of Public Prosecutions v Pinn [2015] NSWSC 1684 (see at [3]). In none of these cases, however, was the issue considered. A case is not binding authority for something it assumes rather than decides: see CSR Ltd v Eddy (2005) 226 CLR 1; [2005] HCA 64 at [13]; Markisic v Commonwealth of Australia (2007) 69 NSWLR 737; [2007] NSWCA 92 at [56] and cases there cited. 5. The plaintiff also pointed to the decision of Evans v Powell [2012] NSWSC 1384 which is in a different category. There, the magistrate, as here, excluded evidence which led to the respondent's acquittal. There was no issue in that case that the magistrate erred in the course of this ruling. It was, however, argued that an appeal was not available pursuant to s 56 of the CAR Act. (It appears to have been assumed that an appeal by leave was available pursuant to s 57 despite the dismissal of the charges but nothing turns on this.) Schmidt J said (at [7]-[10]): "7 Section 56(1)(c) of the Crimes (Appeal and Review) Act 2001 gives a prosecutor the right to appeal an order made by the Local Court dismissing a matter the subject of any summary proceedings. Mr Powell's various concessions as to his Honour's errors of law, provide a proper basis upon which this appeal should be upheld. 8 It was, however, submitted for Mr Powell that the complaint advanced in relation to the exclusion of evidence under [s] 137 of the Evidence Act, was an aspect of the appeal in respect of which the Department [of Family and Community Services] required leave, under s 57(1)(c) of the Act, because it was an aspect of the appeal relating to an interlocutory order. 9 I do not accept this submission. This aspect of the appeal certainly concerns an evidentiary ruling. If the appeal is upheld, a separate order setting aside the ruling is unnecessary. Had there been an appeal brought from the ruling during the course of the trial, leave would plainly then have been required under s 57. It would have been unusual so to fragment a summary criminal trial such as this, but had there then been an appeal, leave may have been given, in the circumstances which had arisen at the trial. 10 Now an appeal has been brought against the dismissal of the five court attendance notices, in circumstances where, on any view, the appeal must be upheld. The ruling as to the admission of the excluded evidence is an appropriate matter to raise on this appeal, which does not now require separate leave. Even if this view were wrong, in the circumstances, were leave necessary, it would be given." 1. Her Honour in the above passage considered, and determined, that an appeal lay as of right pursuant to s 56(1)(c) of the Criminal Appeal Act. While, having regard to the above discussion the issue is not free from doubt, I am not of the view that Evans v Powell is "plainly wrong": Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76; see also Hofer v The Queen (2021) 95 ALJR 937; [2021] HCA 36 at [95]-[96]. Given this I should follow Evans v Powell. 2. It follows that the appeal against the final order, while based on a complaint with respect to an earlier ruling, is competent. Is the appeal on a ground (or grounds) that involve(s) a question of law alone and is it appropriate to answer that question (or those questions)? 1. In Orr v Cobar Management Pty Limited (2020) 103 NSWLR 36; [2020] NSWCCA 220, Bathurst CJ and Bell P, in the context of s 107 of the CAR Act, observed (at [40]): "… the expression "question(s) of law" and cognate expressions are not deployed uniformly in the statute books and, as shall also be seen, there is no universal meaning or understanding of what is a question of law. Like any statutory expression, its meaning is ultimately to be derived from its statutory context and by reference to the purpose of the provision and statute in which it appears." 1. An almost identical formulation to that used in s 56 of the CAR Act - "but only on a ground that involves a question of law alone", is used in s 107 of the Act - "on any ground that involves a question of law alone". Moreover, it is engaged in a similar context, that is, the dismissal of a criminal charge, s 107 being an analogue of s 56 in the context of matters tried on indictment. The same words in different parts of the same Act, and, particularly in an analogous context, are generally understood, and should in this case be understood as carrying the same meaning: see Orr v Cobar at [63] and the authorities there cited. The decisions of the Court of Criminal Appeal in relation to the meaning of the expression "but only on a ground that involves a question of law alone" in s 107 of the CAR Act are therefore equally applicable to the present matter. ­­The argument as to a question of law alone in the summons and submissions in chief 1. The ground of appeal in the summons is set out above (at [6]). The ground asserts that the learned magistrate "erred in law" by failing to do certain things. Even if it is correct that the magistrate "erred in law" this does not equate to a question of law alone: Orr v Cobar at [52], and also at [61]. 2. The error of law alone said to be involved was not articulated in the grounds of appeal in the summons. No explanation was given as to why that was so, other than an assertion that this approach is not required, and that it is not uncommon for the question to be articulated in the written submissions or even in oral submissions. I find this surprising. The nature of the appeal in s 56 is such that the issue on which the parties are joined is the "question of law alone". It is important that this be identified in the initiating process. It may be there is refinement of the question or questions in the course of the process. However, this can be dealt with in the ordinary course through applications for amendment which can then be dealt with in a proper fashion, including hearing from both parties. Such applications can then be determined having regard to all relevant considerations, including the merits of the case and any prejudice to the defendant. I will say more as to this below. 3. In the present case, the plaintiff first attempted to identify a question of law alone said to be involved, in her written submissions at [20] as follows: "A question of law involved in the grounds advanced by this appeal is whether a document purporting to be a certificate issued under s 18(3) or (4) may be relied upon, under s 18(5), in proceedings which were not commenced at the time the certificate was issued." 1. The defendant, in his written submissions, pointed out that the amended summons "does not disclose a question of law alone". Reference was made to Attorney-General's Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW): Re Robert Burton (a pseudonym) (2021) 289 A Crim R 131; [2021] NSWCCA 87 and to the observation (in the context of s 108 of the CAR Act) that it is the task of the appellate court to construe the question as framed. It was submitted that in contrast to the questions that were set out by the plaintiff in that case "[t]here is no such question here framed for the Court". 2. Although the defendant relied on the plaintiff's failure to articulate an appropriate question in the summons, the defendant nonetheless addressed the question set out in the plaintiff's written submissions.. The defendant submitted that this question was a mixed question of fact and law, and that, even if it could be considered a question of law "it is not one that arises from Magistrate Bugden's reasons". 3. I am of the view that the question in the plaintiff's submissions is one of law alone. It raises a question of the construction of the relevant provision. To say, in my paraphrase of the question posed by the plaintiff, that a certificate under s 18(3) or s 18(4) of the TIA Act can be admitted, and have the effect provided by s 18(5) of the TIA Act even though it was issued prior to the proceedings in which it is sought to be relied on, states a legal proposition which is "a distinct and separate step in the reasoning process"; it is a legal proposition that "is logically anterior to its application to the facts of a particular case": R v PL (2009) 261 ALR 365; [2009] NSWCCA 256 at [27]. 4. However, the magistrate's reasons do not, in my view, raise this question. The magistrate did not find, as a general proposition, that a certificate issued under s 18(3) and s 18(4) of the TIA Act could not be relied upon under s 18(5) in proceedings that have not been commenced at the time the certificate was issued. His Honour explicitly accepted at point (3) of his conclusions that "the proceeding under the Act may include a proposed proceeding in a Court". His Honour, in my view, for reasons discussed further, below, regarded the words in the certificate "I consider these facts relevant to this proceeding" as limiting the particular certificate to a particular proceeding. If this is correct, then his Honour was undoubtedly correct to find that proceeding was not the one before him given the proceeding had not commenced at the time the certificate was issued. It followed the certificate did not apply to the proceedings. 5. Given my conclusion that his Honour did not find that a certificate under s 18(3) or s 18(4) could not relate to a proceeding which had not been commenced, the question of law posed at paragraph [20] of the plaintiff's submissions does not arise. The argument as to a question of law alone raised in the written submissions in reply 1. Despite the defendant's criticism of the failure of the plaintiff to articulate a question of law alone in the summons, no attempt was made to amend the summons. Rather, reply submissions were filed which made further reference to "a question of law alone". The reply submissions of the plaintiff addressed the defendant's arguments as to the construction of s 18 of the TIA Act and said (at [7], footnotes omitted): "The question of construction analysed above - ie, whether s 18(5) requires that it be shown that the "document purporting to be a certificate issued under" s 18(3) or s 18(4) applies to the exempt proceedings in which it is to be received in evidence - is a question of law alone. It involves "a legal proposition which is a distinct and separate step in the reasoning process" and which is "logically anterior to its application to the facts" of the case. The Magistrate "proceed[ed] from a misdirection of law": cf DS [43]. The Magistrate reasoned that the Evidentiary Certificate "[did] not apply to these proceedings" because the proceedings were not on foot or in contemplation at the time the Evidentiary Certificate was drafted, and there was no other evidentiary certificate applicable to the proceedings. The Magistrate applied a legally erroneous test by seeking to identify the proceedings to which the Evidentiary Certificate applied. For the reasons given above, there is no requirement in s 18(5) of the TIA Act that an evidentiary certificate apply or be used in particular identified proceedings." 1. Again, I accept that this raises a question of law alone. Again, I do not accept it is a question of law that arises from the magistrate's reasons. For the reasons which follow, the learned magistrate did not find that s 18(5) of the TIA Act "requires that it be shown" that the certificate under s 18(3) and s 18(4) applies to the particular proceeding. The magistrate's reasons were not that a certificate had to be shown to apply, but, rather, that the terms of the particular certificate in this case were such that it did not apply. In other words, the magistrate did not find that a certificate could not be drafted so as to be of general application. Rather, on my reading, his Honour found that this particular certificate was not of general application but drafted such that it did not apply to the proceedings before him. 2. The magistrate's conclusions set out above came at the end of his judgment in which he referred to the submissions made. His Honour, prior to stating his conclusions, said: "Ms Bashir submits that in these proceedings, which were laid by CANs, court attendance notices filed in 2019 that Abdelrahman Mahed (as said), exempt proceedings evidentiary certificates under s 18(3) and 18(4), marked for official use only and dated 1 September 2016, makes it clear on its face that this document was never intended for these proceedings and further to that, that these proceedings did not commence until 2019. This document is dated 1 September 2016. It is submitted by Ms Bashir that there were no proceedings on foot against this defendant, when this certificate was issued. Further, Ms Bashir submits that the document does not say "Proposed proceedings", it specifically says "This proceeding."" 1. It may be accepted that the reasoning in his Honour's numbered propositions leading to his conclusion (set out at [16], above) is not altogether clear. However, when those numbered propositions are read in proper context, including, in particular, the above, I do not think his Honour was suggesting there was a positive burden to demonstrate the certificate related to the particular proceeding. In referring to a "current, relevant and admissible" certificate, I do not think his Honour intended to mean there was a burden to "show" that the certificate applied to the proceedings. A certificate might be general, but still current, although I accept, "current" appears to add nothing to the words "relevant and admissible". His Honour's reasoning appears to be that the certificate in referring to "this proceeding" was, on its face limited to a particular proceeding. That proceeding could not have been the proceeding before his Honour and thus the particular certificate, due to terms in which it was expressed, was not relevant and not admissible. 2. Ultimately, in the course of oral argument, it was suggested by me that "the question that this case [gives] rise to, … is whether those words ["this proceeding"] limited the certificate". In response the plaintiff submitted (without reducing the question to writing) that a question of law alone involved in the ground of appeal was similar to that in the first written submissions, but could be modified to read as follows: "whether section 18(5) requires that a document purporting to be a certificate under section 18(3) or (4) not be limited so as to apply only to effectively (sic) other identified proceedings (T23.33)" 1. In my view this question comes closer to capturing the issue in this case. 2. The Director-General's power to issue a certificate is provided by s 18(3) and s 18(4). That power is, in each case, a power to issue a certificate "setting out such facts as he or she considers relevant with respect to" either, "acts or things done" within s 18(3)(a) or s 18(3)(b), or with respect to "anything done by an ASIO employee or an ASIO affiliate … in connection with" the matters in s 18(4)(a) or s 18(4)(b). The relevant parts of the certificate have been set out above (at [14]). The first part of the certificate certified the facts set out in the schedule and stated that the Director-General considered these facts "relevant to this proceeding with respect to acts or things done" within s 18(3)(a) and s 18(3)(b). The second part of the certificate "further [certified] these facts" and indicated the Director-General considered them "relevant to this proceeding with respect to anything done by an ASIO employee or an ASIO affiliate" in connection with the matters in s 18(4)(a) and s 18(4)(b). 1. It can thus be seen that the Director-General certified facts but, in doing so indicated he considered them relevant to "this proceeding". As noted above, the magistrate took the view that the reference to "this proceeding" was a reference to a particular proceeding, as opposed to a general, forward looking, reference to any proceeding that the certificate might be used in. This was a determination of fact. The magistrate also found that, insofar as it was a reference to a particular proceeding, it could not, having regard to the timing, have been the proceeding before him. Thus, the magistrate found as a fact that the certificate was prepared for some other proceeding. It followed that the statement "I consider these facts relevant to this proceeding" was a statement that the Director-General considered the facts to be relevant to some other proceeding, and could not be construed as a statement that the Director-General considered the facts in the schedule to be relevant to the present proceedings. This appears to be what the magistrate was referring to at points (7) and (9) of his reasons (given that there was no issue the facts in the schedule were otherwise relevant). 2. This raises the question: 1. If: 1. the Director-General in a certificate under s 18(3) or s 18(4) states that he considers the facts set out in the document to be relevant to a particular proceeding, 2. and the other requirements of s 18(3) and s 18(4), are established, is the document admissible pursuant to s 18(5) in some other proceeding and prima facie proof of the matters stated in it? 1. This is essentially the same question as: 1. If the Director-General limits his opinion of the relevance of the facts in a certificate made pursuant to s 18(3) and s 18(4) to a particular proceeding, is that certificate nonetheless admissible and prima facie proof of those facts in some other proceeding, pursuant to s 18(5) of the TIA Act? 1. This is essentially the question articulated orally by the plaintiff in submissions (set out at [48], above). The magistrate was of the view that such a certificate was not admissible pursuant to s 18(5). The plaintiff contends his Honour was wrong in this regard and the question is therefore raised by the case. 2. This question is, in my view, a question of law. It is concerned with the construction of the relevant provision. It "can be stated and considered separately from the facts [of the case] with which it may be connected": Williams v The Queen (1986) 161 CLR 278 at 287; [1986] HCA 88. It was a distinct step to the next question which was whether the particular certificate sought to be tendered was admissible - a mixed question of fact and law (see R v JS (2007) 175 A Crim R 108; [2007] NSWCCA 272 at [82]-[83]; R v PL at [27], [72]; R v SH (2014) 88 NSWLR 1; [2014] NSWCCA 218 at [28]). 3. As is clear from the above, the question is not expressed as part of any ground in the Notice of Appeal. Despite the defendant having raised this issue, the plaintiff, in oral submissions in reply, expressly disavowed any intention to seek leave to amend the Notice of Appeal to include the above question of law. In this context, it becomes necessary to consider whether the question should be answered. Should the question be answered? 1. A similar issue to that which arises here was considered in R v JS. The Notice of Appeal in that case, relevantly stated the appeal was "on the ground that her Honour erred in a question of law" (see at [52]). It was contended the Notice was defective in that it failed to identify in any way the question of law said to be involved in a "ground" and that, as such it did not invest the appellate court with jurisdiction (see at [51]-[55]). The Court of Criminal Appeal rejected the argument, finding the Notice in that case was sufficient to invest the Court with jurisdiction (at [64]-[68]). Given the form of the present Notice of Appeal, the same result must follow in this case. 2. The existence of jurisdiction is not the end of the matter. While Spigelman CJ accepted that it was not necessary that the Notice of Appeal identify a question of law alone with "some precision" in order to invest the Court with jurisdiction, such identification in the Notice is required "at some stage, to serve the other functions of a Notice of Appeal. In this regard, his Honour observed (at [57]-[60]): "57 A Notice of Appeal serves three functions. 1 It invests the appellate court with jurisdiction; 2 It identifies and, subject to permitted amendment, confines the issues which the appellate court must determine; and 3 It provides notice to the Respondent of the case he, she or it must meet. 58 The formulation in the original Notice of Appeal was "appeal … against directed acquittals by her Honour Justice Fullerton" which, as I have explained above, properly understood invoked the formulation in s 107(2), save for its failure to identify a "ground that involves a question of law alone". 59 Plainly, the second and third functions of a Notice, which I have identified above, were not performed by the original Notice. That subsequently happened when a particularised form of Notice was filed, with respect to which leave to amend is sought, as discussed below. 60 In my opinion, there was no denial of procedural fairness. Indeed, save with respect to the uncertainty as to whether or not the appeal applied to both counts on the original indictment, the Respondent could have been in no doubt as to the question of law in issue. There was only one question of law decided by her Honour and the Respondent could have been in no doubt as to the issue which the Appellant sought to raise by way of appeal. 61 Nor, in view of the detailed Notice subsequently filed, and the extensive written submissions, was this Court unaware of the issue of interpretation sought to be raised on the appeal in adequate time for the hearing." 1. In R v JS, Spigelman CJ further observed (at [74]-[75]): "74 Plainly, the formulation "a question of law alone" is more restrictive than the formulation "a question of law". Furthermore, the terminology "question of law" is not equivalent to "error of law". Nevertheless, at least by way of particularisation, it is necessary for a Notice of Appeal to identify the "question of law alone" said to be involved in specific grounds for appeal. Such questions of particularisation do not involve a rigid requirement. In the present case it was at all times tolerably clear what, at least with respect to the first count on the indictment, the relevant question of law must be." 75 Nevertheless, it is a requirement of a Notice of Appeal in this context that the specific "question of law alone" said to arise should be identified with reasonable precision." 1. In R v SH, the appellant sought leave to amend the Notice of Appeal in order to identify a question of law alone. In the course of giving reasons refusing leave, Macfarlan JA referred (at [18] – [37]) to, inter alia, the need for precision, the particular context of a Crown appeal against acquittal and the particular circumstances of that case. At [32] his Honour said: "Seventhly, the importance which the law attaches to the statement of charge against an accused person is relevant. There is an analogy between a statement of charge and the notice of appeal in this case. The respondent had been acquitted and the notice of appeal (as supplemented by the subsequently notified ground of appeal) constituted the Crown's identification of the reason or reasons why the respondent should be put on trial again. The respondent was in those circumstances entitled to have the ground or grounds of appeal identified with some precision and in a timely fashion (compare Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531, particularly at [24]-[28])." 1. Having refused leave, his Honour went on, at [38], to determine the existing ground of appeal. 2. In the present matter, no further, properly particularised Notice has been filed or sought to be filed or any amendment sought to the Notice which has been filed. Nor can it be said that the defendant "could have been in no doubt as to the question of law in issue" or that the defendant "could have been in no doubt as to the issue which the Appellant sought to raise by way of appeal". 3. The plaintiff submitted that I should nonetheless address the question of law alone raised for the first time in oral submissions (in response to an exchange with the bench), never the subject of an application to amend the Notice of Appeal or even reduced to writing. That submission should be rejected. I am required to determine the ground in the Notice of Appeal. Determination of the ground in the Notice of Appeal 1. The sole ground in the notice of appeal is set out above. That ground does not involve an error of law alone. Whether the magistrate erred by "failing to consider and apply" s 18(5) of the TIA Act calls for a construction of the reasons and is, at best, a mixed question of fact and law. The ground particularises the alleged failure as a failure "to consider and make findings as to whether" the particular document purported to be a certificate under s 18(3) and s 18(4) of the TIA Act. This again is a question of mixed fact and law. The asserted error in failing "to conclude the document came within s 18(5) of the Act and failing to admit the certificate" is predicated on the earlier question and therefore necessarily imports a question of mixed fact and law. The ground is a "composite of various legal and factual elements": Elias v The Director of Public Prosecutions (NSW) (2012) 222 A Crim R 286; [2012] NSWCA 302 at [18]. 2. In any event the magistrate's failure is particularised as a failure "to consider and make findings as to whether [the certificate] purported to be a certificate under s 18(3) and (4) of the Act". It is then in (ii) asserted that, as a consequence of this error, the magistrate erred in failing to conclude the document came within s 18(5) of the Act. The difficulty with the grounds as pleaded is that the magistrate did not find the certificate was not a certificate under s 18(3) and s 18(4) of the Act (and even less that it did not "purport" to be such). Read fairly, and in the context of the submissions made, the reasons proceed on the basis that the document was such a certificate. What the magistrate in fact determined was that the certificate, having regard to its particular terms, was not "current, relevant and admissible", such that it was not admissible pursuant to s 18(5) in the particular proceedings before him. The ground would, therefore, irrespective of its failure to involve a question of law alone, fail. Conclusion with respect to the appeal under s 56 of the CAR Act 1. For the reasons given above, pursuant to s 59(1)(c) of the CAR Act, the appeal must be dismissed. The application for judicial review 1. As noted above, the amended summons was filed on 16 September 2021 and included for the first time the application made in the alternative, for judicial review. Among the orders sought (set out at [7], above), the plaintiff in particular sought an order in the nature of certiorari quashing the decision of Magistrate Bugden dismissing sequence 1. 2. The application for an order "in the nature of certiorari" is to be understood as an application under s 69 of the Supreme Court Act 1970 (NSW). That provision provides continuing jurisdiction to grant relief, inter alia, in the nature of certiorari, but simplified the process involved in the issue of prerogative writs that existed under the old law: Dickinson v Perrignon [1973] 1 NSWLR 72 at 82. 3. As set out at [8] above, the summons included the following under the heading "Grounds of Appeal": "On the hearing of the application for judicial review, it will be contended that: (i) Magistrate Bugden erred in law in his construction of s 18(5) of the Act; and (ii) Magistrate Bugden wrongfully excluded the certificate signed by the Director­General of Security and dated 1 September 2016 tendered in evidence in the proceedings; and (iii) Consequently, Magistrate Bugden wrongfully excluded lawfully intercepted information from the proceedings." 1. It can be seen that the complaints in the summons under this avenue for relief contain no more precision (and indeed less) than those notified in relation to the statutory right of appeal. Rule 59.4 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provides that a summons seeking judicial review must state "with specificity, the grounds on which the relief is sought". What is required in terms of "specificity" is not capable of prescription. Here, the ground (in its three parts) essentially asserts that, based on an erroneous construction of s 18(5) of the TIA Act, the magistrate erred in rejecting the telephone intercept evidence. Any specificity goes no further than identifying that there is an issue with respect to the construction of s 18(5) of the TIA Act. What that asserted error is, is not elucidated. Nor is it clear whether error is claimed to be jurisdictional, or to be an error on the face of the record. The connection between the asserted error and consequent relief, certiorari quashing the conviction, is not spelt out. 2. The plaintiff's written submissions in support of the application did not expand on, or in any way address the deficiencies referred to above. The totality of the written submissions with respect to the application for judicial review was as follows (at [21]): "In the alternative to her appeal pursuant to s 56(1)(c) of CARA, the Director seeks judicial review of the Magistrate's decision to dismiss Sequence 1. In that respect, it is contended that the Magistrate proceeded on an erroneous construction of s 18(5) of the TIA Act and that such error caused the Magistrate to wrongfully exclude the Evidentiary Certificate and, in turn, also to wrongfully exclude the intercepted telecommunications material on which the prosecutor relied, despite that material being lawfully intercepted information." 1. As can be seen this is simply a restatement of the grounds. The issues were only expanded upon in response to matters raised by the defendant. 2. There is a strong argument that a defendant to an application for judicial review should be entitled to at least the same procedural rights as are prescribed for the purposes of an applicable statutory right of appeal. The availability of judicial review is not considered without regard to other potential remedies. Indeed, relief in the nature of prerogative relief will generally not be granted if there is another equally effective and convenient remedy: Ritson v Leighton [2015] NSWCA 62 at [77]; NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales (2001) 53 NSWLR 559; [2001] NSWSC 494 at [16]; Barr (a pseudonym) v Director of Public Prosecutions (NSW) (2018) 97 NSWLR 246; [2018] NSWCA 47 at [66]-[67], [72], [127]. 3. Here, it is also relevant that it is necessary to consider the relief is sought in the alternative only because the plaintiff failed to properly bring an appeal under the CAR Act. It is, however, convenient to consider the application. 4. The nature of certiorari was explained in Craig v The State of South Australia (1995) 184 CLR 163; [1995] HCA 58, as follows (at 175-176): "... certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'." 1. The present case raises no issue as to fraud or procedural fairness. The availability of certiorari is dependant therefore on establishing error of law on the face of the record or jurisdictional error. At one point the defendant submitted that only jurisdictional error would suffice. However, in the absence of any privative clause restricting review in this manner (cf the former s 146 of the Justices Act; s 176 of the District Court Act 1973 (NSW), and see Kopuz v District Court of New South Wales (1992) 28 NSWLR 232 at 242-3), I do not think that is right. 2. As to error of law on the face of the record and jurisdictional error, it is convenient to note what was said by the plurality in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [56]: "References to "error of law on the face of the record" and "jurisdictional error" suggest a degree of certainty about what is the relevant "record" and what is meant by "jurisdictional error" that examination of the decided cases reveals to be unwarranted. The decided cases reveal a degree of uncertainty about both what is the "record" on the face of which error must appear, and what is meant by "jurisdictional error". Moreover, allowing the one remedy on two different bases may suggest the existence of some singular unifying principle underpinning both grounds. But no principle can readily be identified that would unify or explain both grounds." 1. Even if relief in the nature of certiorari is found to lie, the Court has a discretion to refuse relief. 2. Having regard to the above, the present application for judicial review raises the following questions: 1. Whether an extension of time in which to bring the application should be granted; 2. Whether any asserted error of law was "on the face of the record"; 3. Whether any asserted error of law was jurisdictional; 4. Whether any asserted error of law, if on the face of the record, or jurisdictional, is established; and 5. Whether, in the event that error of law on the face of the record or jurisdictional error is established, the court should intervene. The extension of time issue 1. UCPR, r 59.10(1) provides a time limit of 3 months in which to bring proceedings for judicial review under s 65 and (as is the case here) s 69 of the Supreme Court Act. The decision appealed against (dismissing the charge) was made on 15 March 2021, although the decision really complained of, (excluding the evidence) was made on 19 February 2021. The application for judicial review was included in the amended summons filed on 16 September 2021. This is some 6 months after the decision dismissing the charge. UCPR, r 59.10(3) provides: 59.10 Time for commencing proceedings … (3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following— (a) any particular interest of the plaintiff in challenging the decision, (b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings, (c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision, (d) any relevant public interest. 1. The considerations are, as stated, inclusive – see also Toth v Director of Public Prosecutions (NSW) [2014] NSWCA 133 at [9]. Given the various circumstances that might impact on the discretion to extend time, it is convenient to return to this matter after a consideration of the other issues in the case. Was any asserted error of law on the face of the record? 1. Certiorari will lie with respect to errors of law on the face of the record: s 69(3) of the Supreme Court Act; see also ASIC v Farley (2001) NSWLR 494; [2001] NSWSC 326. 2. In Ritson v Leighton at [70] Ward JA noted that at common law, the reasons do not form part of the record for the purposes of certiorari: R v Northumberland Compensation Appeal Tribunal [Ex parte Shaw] [1952] 1 KB 338 at 352. In Craig, the High Court (at 182) approved the statement of Wilson J in Hockey v Yelland (1984) 157 CLR 124 at 143; [1984] HCA 72 where his Honour said "[o]rdinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication." (See also Ahern v Aon Risk Services Australia Ltd [2021] NSWCA 166 per Meagher JA at [23], White JA at [99]). 3. The position is different under s 69 of the Supreme Court Act. Section 69(3), set out with the relevant heading, provides: 69 Proceedings in lieu of writs … (3) The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes, if the Court is satisfied that the ultimate determination of a court or tribunal in any proceedings has been made on the basis of an error of law that appears on the face of the record of the proceedings— (a) jurisdiction to quash the ultimate determination of the court or tribunal, and (b) if the Court determines that, as a matter of law, only one particular determination should have been made by the court or tribunal, jurisdiction to make such judgment or orders as are required for the purpose of finally determining the proceedings. 1. The nature of the "record" is extended by s 69(4) which provides: (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. 1. In the present circumstances it is noteworthy that the power to grant certiorari in s 69(3) is on the basis that "the ultimate determination" was "made on the basis of an error that appears on the face of the record". Insofar as s 69(4) extends the "record" to the reasons for a decision, it is restricted to the reasons for the court's "ultimate determination". 2. In the present case the ultimate determination (and the decision the subject of challenge) was the dismissal of the charge. The entirety of the reasons with respect to this decision were "I will simply mark sequence 1 dismissed", in response to the prosecutor's concession that there was no prima facie case. 3. The notation on the court attendance notice (constituting, at least part of the record) reflects this. There is no suggestion of any error in this determination. Error of law is, however, asserted with respect to the reasons for exclusion of the telephone intercept evidence, which then led to the ultimate determination. 4. On one view, no error was made in the reasons given for the ultimate determination and therefore, no relief is available pursuant to s 69(3). This was the view taken in Yerbury at [46]. Yerbury, however, concerned an appeal, and application for judicial review, brought against a decision on the admissibility of evidence before the magistrate determined the charge. There was no "ultimate determination". Here there remains a question of whether "the reasons expressed by the court … for its ultimate determination" includes the reasons given for excluding the evidence. This is dependent on whether those reasons were "incorporated" into the record - see Ahern v Aon Risk Services Australia Ltd per Meagher JA at [27]; or, possibly, whether those reasons form "an integral part of the record when viewed from the perspective of the reviewing court" - Ahern v Aon Risk Services Australia Ltd per White JA at [113]. 5. Where orders are made by entry onto the record, it is possible, as a result of reference to other documents in the orders, for those other documents to become part of (or be "incorporated into") the record for the purposes of certiorari. There is no suggestion in the present case that the reasons for excluding the evidence were incorporated into the narrower conception of the "record", unextended by s 69(4). The issue is, then, whether those reasons were incorporated into the record as extended by s 69(4). 6. In Ahern v Aon Risk Services Australia Ltd, Meagher JA (at [27]) noted that the leading authorities on incorporation are "largely concerned with the incorporation of reasons, transcript or other documents into the common law record through references in formal orders" and that conversely there was little authority with respect to "the incorporation of documents into the reasons as part of the statutorily extended record". His Honour expressed the view (at [30]) that the preferable approach is that principles which "govern incorporation into the common law record by reference in formal orders are to apply equally to reasons as part of the statutorily extended record". In this context, his Honour (at [31]) by reference to the decision of the High Court in Craig, found that incorporation of any document, including reasons, requires "a reference which makes the document, or the relevant part thereof, an 'integral part' of the formal order".. 7. Meagher JA went on to consider the difficulties of distinguishing between references that are introductory or incidental, or conversely references which are intended to incorporate the particular subject matter, however that issue does not arise here. In the present case, the brief reasons given for dismissing the charge do not make any reference to the reasons for excluding the telephone intercept evidence. On the approach of Meagher JA those reasons were not incorporated into, and do not form part of, the record. 8. White JA in Ahern v Aon Risk Services Australia Ltd took a different, and more expansive, view of the record than that taken by Meagher JA. His Honour reviewed the position that pertained in New South Wales prior to the High Court's decision in Craig and said (at [113]): "The starting point to the construction of s 69(4) is not what the High Court said in Craig v South Australia as to what is required before reasons are to be taken as incorporated by reference into the actual decision (being, in that case, the orders of an inferior court). Because of the enactment of s 69(4) the reasons of the District Court form part of the record. Where the reasons refer to other documents to which it is necessary to have regard in order to understand and assess the reasons, the documents so referred to form an integral part of the record when viewed from the perspective of the reviewing court. It is true that this was not the perspective for identification of the record adopted by the High Court in Craig v South Australia. But it was the perspective adopted by this Court prior to Craig v South Australia. The enactment of s 69(3) and (4) was intended to restore the Supreme Court's jurisdiction to what it was before Craig v South Australia. This was done by making it clear that the reasons for the ultimate determination of a court or tribunal form part of the record. As Meagher JA observes (at [36]) it would indeed be curious if regard could not be had to documents necessary to understand the reasons for decision in order to determine whether the reasons evidenced an error of law." 1. The third member of the Court, Brereton JA also considered the issue. His Honour's review of the authorities was, however, primarily concerned with the incorporation of the reasons of an inferior decision making body where judicial review is sought to review a decision of a court on an appeal from that inferior body. His Honour ultimately found it unnecessary to reach a concluded view on the issue (at [158]). Similarly, Simpson JA in Spencer v Coshott [2011] NSWCA 235 found it unnecessary to choose between the alternative views (see at [61]-[62]). 2. Returning to the present case, even on the more expansive view of the record expressed by White JA in Ahern v Aon Risk Services Australia Ltd, the reasons of the magistrate excluding the telephone intercept evidence were not incorporated into the reasons for dismissing the charge. 3. It can be accepted (without necessarily deciding) that it is necessary to have regard to the document relied on as a s 18(5) certificate to understand the magistrate's reasons for excluding the evidence. It is not, however, necessary to have regard to the reasons for excluding the evidence to understand the reasons for dismissing the charge. 4. There were, in effect no reasons given for dismissing the charge, simply an order indicating it was dismissed. There was, understandably, no complaint about this. The brevity of the magistrate's reasons is to be understood in their surrounding context. When read in this context, they are the equivalent of stating, "The case is dismissed because there is no prima facie case", or that "The charge is dismissed because, given my ruling excluding evidence, the prosecutor has not sought to put further evidence before the court and there is, as conceded by the prosecutor, no prima facie case". If the reasons for judgment are so understood, it is not necessary to have regard to the reasons for the exclusion of evidence to understand them. The order made (and the determination within s 69(3) of the Supreme Court Act) was to dismiss the charge. That was a determination in exercise of the magistrate's primary function to determine the charge brought against the defendant on the evidence admitted at the hearing. To understand the reasons for this dismissal, it is enough to understand that the magistrate's view was that the admissible evidence failed to establish a prima facie case. 5. Ordinarily it will be expected that the reasons for dismissing a charge will involve an examination of the elements of the offence, the evidence relating to the elements or at least the deficiency in the evidence with respect to a particular element, leading to the conclusion that there is no prima facie case, or that the charge is not proved beyond reasonable doubt. The reasons for excluding evidence leading to such a determination are not necessary to understand such a reasoning process. That is not altered by the fact that the approach of the prosecutor was such that elucidation of the elements and the evidence in support of those elements was not required. 6. I accept my conclusion is based on a somewhat literal reading of what White JA said in Ahern v Aon Risk Services Australia Ltd at [113] with respect to the reasons necessary to understand the magistrate's judgment dismissing the charge, in circumstances where White JA was not concerned with circumstances of the kind that arise here. Given the apparent importance of the telephone intercept evidence there it might be said to be a case of "formalism triumphant": GJ Coles & Co Ltd v Retail Trade Industrial Tribunal (1987) 7 NSWLR 503 referred to by White JA at [109]. However, the context remained a determination of a criminal charge. The determination of the evidence admissible to prove that charge was clearly an important matter, but the reasons for that determination were nonetheless somewhat removed from the reasons for the Court's ultimate determination, which were essentially based on the prosecutor's decision to close its case and the concession that there was no prima facie case. 7. To take an example, in the present case, had the prosecutor had other evidence to rely on, the hearing would have proceeded. The magistrate may then have rejected all of that evidence as unreliable and dismissed the charge. The effect will have been similar to what occurred here – that is, the exclusion of the telephone intercept evidence will have been determinative. Yet, the magistrate's reasons for dismissing the charge would only be expected to deal with the elements of the offence and the evidence admitted in proof of those elements. 8. The above example also serves to highlight a difference between this present case and the facts in Ahern v Aon Risk Services Australia Ltd. In that case, the role of the District Court was to determine an appeal on a question of law from the decision of a review panel in relation to the assessment of legal costs. The review panel was required to issue a certificate with respect to its determination. The certificate of the review panel was part of the record as a document which gave the District Court its jurisdiction: see Ahern v Aon Risk Services Australia Ltd at [24]. The relevant statute required that the certificate be accompanied by reasons. Given the appeal to the District Court was from the assessment, and that it was on an error of law, the certificate and the reasons for it, were at the core of the jurisdiction being exercised. The reasons for the exclusion of the evidence in the present case was, in contrast, somewhat ancillary to the core jurisdiction being exercised by the magistrate. 9. In light of the above, the reasons given for excluding the evidence do not, in my view form part of the record to the purposes of s 69(3) of the Supreme Court Act. The plaintiff's claim of error on the face of the record must fail. Jurisdictional error 1. As noted above, the precise bounds of when an error is jurisdictional and when it is not, cannot be stated with certainty. Or as Bell P observed in Stanley v Director of Public Prosecutions (NSW) [2021] NSWCA 337 at [37], "[t]he continuing vitality of the concept of jurisdictional error in Australian law as confirmed in Craig has not been matched by clarity in its definition or elucidation". To similar effect is Leeming JA's observation in Quinn v Commonwealth Director of Public Prosecutions [2021] NSWCA 294 (at [4]), that "determining what amounts to 'jurisdictional error' has proven somewhat elusive". 2. In the present matter the magistrate's jurisdiction was founded and the proceedings commenced by the filing of the court attendance notice in the Local Court – see Criminal Procedure Act 1986 (NSW), ss 47, 53, 172, 178. That jurisdiction was (in the context of the plea of not guilty) to determine the charge. In Kirk, the plurality (at [66]) set out the following passage from Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82; [2000] HCA 57: "The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not." 1. In the context of an inferior court (as opposed to an administrative tribunal), the plurality in Kirk said (at [67]): "By contrast, demonstrable error on the part of an inferior court "entrusted with authority to identify, formulate and determine" relevant issues, relevant questions, and what is and what is not relevant evidence was held [102], in Craig, not ordinarily to constitute jurisdictional error. The Court held [103] that: "a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error"." 1. Their Honours went on to observe (at [72]), by reference to what was said in Craig: "First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist" (emphasis added). Secondly, the Court pointed out that jurisdictional error "is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers" (emphasis added). (The reference to "theoretical limits" should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples: (a) the absence of a jurisdictional fact; (b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and (c) misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case. The Court said of this last example that "the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern" and gave as examples of such difficulties R v Dunphy; Ex parte Maynes, R v Gray; Ex parte Marsh [112] and Public Service Association (SA) v Federated Clerks' Union." (footnotes omitted) 1. In Quinn, Leeming JA said (at [5]-[6]): "The focus at all times is jurisdictional. Jurisdiction in this sense is best understood as the body's authority to decide. Jurisdictional error turns on the limits of the authority that has been conferred on the body. In Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [24], Kiefel CJ, Gageler and Keane JJ gave this description: "Jurisdictional error, in the most generic sense in which it has come to be used to describe an error in a statutory decision-making process, correspondingly refers to a failure to comply with one or more statutory preconditions or conditions to an extent which results in a decision which has been made in fact lacking characteristics necessary for it to be given force and effect by the statute pursuant to which the decision-maker purported to make it. To describe a decision as "involving jurisdictional error" is to describe that decision as having been made outside jurisdiction." Useful guidance may also be found in the joint judgment of Basten, Ward and McCallum JJA in Bangura v Director of Public Prosecutions (NSW) [2020] NSWCA 138 at [13]: "Jurisdictional error arises where the decision-maker has misunderstood the limits of his or her legal authority or has otherwise acted outside the scope of that authority, or failed to exercise the powers conferred by that authority. A failure to accord a party procedural fairness in a material respect will constitute jurisdictional error, because procedural fairness is an essential characteristic of the exercise of judicial power, being the power exercised by the District Court judge in the present case."" 1. His Honour continued (at [8]): "It is important to bear steadily in mind that a court may be, and very commonly is, authorised to decide questions of law wrongly, while bodies which are not courts are ordinarily not authorised to decide questions of law wrongly. This distinction has a sharp impact on the identification of jurisdictional error. A body which is not a court will ordinarily commit jurisdictional error if it misapprehends a statute in a way which is material to its decision. On the other hand, a court which decides a question of law wrongly will ordinarily not thereby fall into jurisdictional error." 1. More recently in Stanley v Director of Public Prosecutions (NSW), the Court of Appeal sat with five judges as a result of the conflict between the decision in Quinn and the earlier decision of Wany v Director of Public Prosecutions (NSW) (2020) 103 NSWLR 620; [2020] NSWCA 318 as to whether a failure to conduct the assessment required by s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) amounts to jurisdictional error. By majority (Bell P, Basten, Leeming JJA and Beech-Jones CJ at CL, McCallum JA dissenting) the Court found that Quinn should be followed. Leeming JA's reasoning in Quinn was referred to with approval by Bell JA at [22], Leeming JA at [148] and Beech-Jones CJ at CL at [193]. 2. Bell P observed (at [40]) that there is arguably a further level of complexity raised by the concept of "materiality". As in Stanley v Director of Public Prosecutions (NSW), no question of materiality arose in this case. Bell P in Stanley v Director of Public Prosecutions (NSW) (at [41]) set out a passage from Judicial Review of Administrative Action and Government Liability (6th ed, 2017, Lawbook Co) where the authors listed 10 categories of jurisdictional error, although his Honour immediately noted the "scope for 'terminological entanglement'" (referring to Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [17]). 3. His Honour went on to say (at [48]): "The understanding of concepts such as jurisdictional error, whose varied nature and manifestations may make definition difficult, can sometimes usefully be illuminated by a statement of what the concept is not, that is to say, by negative definition. In this context, in an important passage in Kirk, the majority held, citing Craig at 179-180, that demonstrate error on the part of an inferior court "'entrusted with authority to identify, formulate and determine' relevant issues, relevant questions, and what is and what is not relevant evidence" would "not ordinarily … constitute jurisdictional error": at [67]" 1. Bell P noted (at [44]) that the question of statutory construction is critical to the question of whether an error falls inside or outside jurisdiction. His Honour's approach to the question posed in that case reflects this centrality, as does that of Basten JA (see at [83]-[126]; Leeming JA at [151]-[157] and Beech-Jones CJ at CL at [193]-[194]). McCallum JA, in dissenting in the result, accepted the task was one of statutory construction, but cautioned against a conclusion drawn based solely on the statutory command without regard to the gravity of the error (see at [168]). 2. I return to consider the present matter. Here, the magistrate was exercising jurisdiction under the Criminal Procedure Act to determine a criminal charge brought against s 192G(b) of the Crimes Act. There is no complaint he mistook the elements of the offence or misapprehended his task in determining the charge on the basis of the admissible evidence. The complaint is that he erred in determining what that admissible evidence was. While s 18 of the TIA Act (and its use of the phrase "is to be received in evidence") required him to admit the document if certain conditions were satisfied, that language alone cannot make a failure to properly apply the section a jurisdictional error. The TIA Act, which was not the source of the magistrate's jurisdiction, gives no indication that a failure to comply with the requirement should invalidate the process conducted by the judicial officer. Any error that the magistrate may have made can be categorised as an error in incorrectly deciding something which his Honour was authorised to decide: see Stanley v Director of Public Prosecutions (NSW) at [71] per Basten JA; Quinn at [118]. 3. Put differently, the matter did not involve (assuming the correctness of the complaint) the misconstruction of a statute "which would cause the court to cease to be authorised to decide the matter": see Quinn at [15]. This was not a case in which there was said to be an absence of a jurisdictional fact; there was no disregard of a matter that was required to be taken into account "as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored)"; or the "misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case": Craig at 177-178 (footnote omitted), set out in Kirk at [72]. 4. There is, of course, no "rigid taxonomy of jurisdictional error": Kirk at [73]. Thus, to say that the case does not fit within particular previously recognised categories of jurisdictional error does not establish that the claimed error is not jurisdictional. Further, it must also be accepted that "the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern": Craig at 178, referred to in Kirk at [72], and set out above at [106]. Ultimately, it is significant in the present case that the asserted error relates to the admissibility of evidence, a question which was, as previously noted, ancillary to the determination of the charge. While in the present case, this question effectively determined the charge, precisely the same question of construction might have arisen with respect to evidence that could have had a minor or even no impact on the determination of the central question, that being whether the offence was established. It would be odd if a magistrate's authority to decide the issue varied according to the significance of the evidence in the case, a matter which, in a given case, he or she may not be aware of at the time of the decision. 5. I am of the view that any asserted error is not jurisdictional in nature. The claim for judicial review must therefore fail. 6. Given my view as to the merits of the matter, the application for an extension of time should be refused. 7. While it is unnecessary to resolve the question, I note there is a real question in my mind as to whether the Court's discretion to grant relief should be exercised if certiorari was found to lie. As set out above, there is a statutorily available appeal which has failed. Further, the history of the matter is relevant. The hearing in the Local Court leading to the exclusion of the certificate was the third time the matter had been listed for hearing. The defendant was charged with the offence on 12 July 2019 and the court attendance notice was first returnable before the Local Court on 7 August 2019. The matter was first listed for hearing in February 2020 but did not proceed. According to what the magistrate was told on 22 January 2021 (the defendant attended court ready for hearing but the matter was not able to proceed due to the illness of the prosecutor. It was next listed for hearing in June 2020 and again was not able to proceed due to, I infer, restrictions arising out of the COVID-19 pandemic. The matter was heard on 22 January 2021 and ultimately dismissed on 15 March 2021. While the challenge to the dismissal was brought promptly, the application for judicial review was late, and the basis on which it was claimed to be available was not clearly articulated. Further, as a result of the three charges against the defendant being separated, the prosecution has had the opportunity to obtain a further certificate for use in the proceedings for the two outstanding charges. 8. The above matters collectively, are powerful considerations in favour of this Court declining to intervene. While it is not necessary to determine the matter, I am inclined to the view that these matters outweigh the undoubted interest in the proper determination of serious criminal charges. Conclusion 1. For the reasons given above, the appeal is dismissed pursuant to s 59(2)(b) of the CAR Act. With respect to the application for judicial review, the application for an extension of time in which to bring the application should be refused. Orders 1. I make the following orders: 1. The plaintiff's appeal brought pursuant to s 56(1) of the Crimes (Appeal and Review) Act 2001 (NSW) is dismissed. 2. The plaintiff's application pursuant to r 59.10(2) of the Uniform Civil Procedure Rules 2005 (NSW) for an extension of time in which to bring proceedings for judicial review is refused. 3. The plaintiff is to pay the defendant's costs of the proceedings in this Court. ********** 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: 23 February 2022