New South Wales Court of Appeal CITATION: W O v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) [2009] NSWCA 370 HEARING DATE(S): 20 October 2009 JUDGMENT DATE: 16 November 2009 JUDGMENT OF: Basten JA at 1; Fullerton AJA at 1; MCCallum AJA at 1 (1) Grant the applicant leave to rely upon the proposed amended summons as filed and dispense with further requirements of the rules in relation thereto. DECISION: (2) Dismiss the Summons. (3) No order as to the costs of the parties in this Court. CATCHWORDS: ADMINISTRATIVE LAW – prohibition – application in relation to pending criminal proceeding – jurisdictional error – rulings on points of law – concurrent appeal under s 5F of the Criminal Appeal Act 1912 (NSW) – no interlocutory judgment or order engaging jurisdiction under s 5F – whether relief in the nature of prohibition available – whether jurisdictional error - WORDS AND PHRASES – "interlocutory judgment or order" – "jurisdictional error" Criminal Appeal Act 1912 (NSW), s 5F Criminal Procedure Act 1986 (NSW), ss 46, 130 LEGISLATION CITED: District Court Act 1973 (NSW), ss 9, 11, 166 Industrial Relations Act 1996 (NSW), s 179 Supreme Court Act 1970 (NSW), ss 17, 69 CATEGORY: Principal judgment Adler v District Court of New South Wales (1990) 19 NSWLR 317 Barton v Walker [1979] NSWLR 740 Cesan v Director of Public Prosecutions (Cth) [2007] NSWCCA 273; 174 A Crim R 385 Chief Executive Officer of Customs v Jiang [2001] FCA 145; 111 FCR 395 CASES CITED: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Craig v South Australia [1995] HCA 58; 184 CLR 163 Fish v Solution 6 Holdings Ltd [2006] HCA 22; 225 CLR 180 Lee v Cha [2008] NSWCA 13 R v Powch (1988) 14 NSWLR 136 Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) [2004] NSWCA 200; 60 NSWLR 558 TEXTS CITED: Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009, Lawbook Co), pp 820-825 PARTIES: W O – Appellant Director of Public Prosecutions (NSW) – Respondent FILE NUMBER(S): CA 40381/09 COUNSEL: T Game SC (Appellant) D M L Woodburne SC (Respondent) SOLICITORS: Legal Aid Commission of New South Wales (Appellant) S Kavanagh, Solicitor for Public Prosecutions (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 2008/14151 LOWER COURT JUDICIAL OFFICER: English DCJ LOWER COURT DATE OF DECISION: 4 August 2009 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40381/09 DC 2008/14151 BASTEN JA FULLERTON AJA McCALLUM AJA 16 November 2009 W O v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) Headnote The applicant was the subject of an indictment presented by the Director of Public Prosecutions (NSW) in the District Court. Before the jury was empanelled, the prosecutor sought to "ventilate" a preliminary issue before the trial judge, following which her Honour delivered a "judgment" in which her Honour made rulings with respect to certain questions of law debated before her. Those rulings were challenged in the Court of Criminal Appeal, by way of an appeal brought pursuant to s 5F of the Criminal Appeal Act 1912 (NSW). The applicant also filed a summons in this Court seeking judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). The issues for determination were whether the Court had jurisdiction to grant the relief sought in the summons and, if so, whether the trial judge in the criminal proceedings had erred in making rulings in point of law. The Court held, dismissing the summons: (per Basten JA, Fullerton and McCallum AJJA agreeing) 1. Where no interlocutory judgment or order can be identified in the proceedings below, the jurisdiction of this Court is not affected by the operation of s 17 of the Supreme Court Act 1970 (NSW). Conversely, where the jurisdiction of the Court of Criminal Appeal is engaged, the legislative intention to transfer such jurisdiction from this Court should be respected: [6] Adler v District Court of New South Wales (1990) 19 NSWLR 317; R v Powch (1988) 14 NSWLR 136, referred to. 2. Prior to an order being made that is determinative of rights, the appropriate relief to be granted by a Court in the exercise of its supervisory jurisdiction is prohibition, rather than certiorari or mandamus: [10]–[11]. Fish v Solution 6 Holdings Ltd [2006] HCA 22; 225 CLR 180; Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) [2004] NSWCA 200; 60 NSWLR 558, referred to. 3. An erroneous application of the criminal law in the course of criminal proceedings will not generally demonstrate jurisdictional error. The District Court had power to determine a question rightly or wrongly, even if the determination involved legal error. The invocation of the supervisory jurisdiction of this Court was misconceived: [14]–[18]. Craig v South Australia [1995] HCA 58; 184 CLR 163; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593; Cesan v Director of Public Prosecutions (Cth) [2007] NSWCCA 273; 174 A Crim R 385, referred to. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40381/09 DC 2008/14151 BASTEN JA FULLERTON AJA McCALLUM AJA 16 November 2009 W O v DIRECTOR OF PUBLIC PROSECUTIONS (NSW) Judgment 1 JUDGMENT of THE COURT delivered by BASTEN JA: The applicant, whose name has been anonymized because he is still awaiting trial on criminal charges, was the subject of an indictment presented by the Director of Public Prosecutions (NSW) in the District Court. Before the jury was empanelled, the prosecutor sought to "ventilate" a preliminary issue before the trial judge. The discussion in the Court resulted in her Honour delivering a "judgment" dated 4 August 2009. At the conclusion of that judgment, her Honour made rulings with respect to certain questions of law which had been debated before her. Those rulings were challenged in an appeal in the Court of Criminal Appeal, brought pursuant to s 5F of the Criminal Appeal Act 1912 (NSW). 2 In submissions filed in the Court of Criminal Appeal, the applicant conceded that there was doubt as to whether that Court had jurisdiction under s 5F. Whilst contending that it did have jurisdiction, the applicant also sought to invoke the jurisdiction of this Court by filing a summons seeking judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW). The primary relief sought in the summons was an order quashing "the judgment and order made by Judge English in the District Court on 4 August 2009". 3 In order to ensure that all claims for relief could be disposed of by the same bench, authority was conferred on those members of the Court sitting in the Court of Criminal Appeal to consider and determine the summons in the civil proceedings and the matters were heard together. Jurisdiction 4 Section 5F of the Criminal Appeal Act was intended to provide a facility for appeals to the Court of Criminal Appeal against an "interlocutory judgment or order" in proceedings which included, relevantly for present purposes, prosecutions on indictment in the District Court: s 5F(1)(a), the provision being introduced by the Criminal Appeal (Amendment) Act 1987 (NSW). The introduction of that facility in the Court of Criminal Appeal was accompanied by an exclusion of jurisdiction in this Court to deal with the same subject matter. Thus, s 17(1) of the Supreme Court Act provides that "no claim for relief lies to the Court against an interlocutory judgment or order given or made in proceedings referred to in paragraph (a1) or (a2) of [the Third] Schedule". Paragraph (a1), which is relevant for present purposes, is in the following terms: "(a1) proceedings … for the prosecution of offenders on indictment … in the District Court, …" 5 Despite these provisions, counsel for the applicant contended that the Court had jurisdiction to grant relief of the kind sought. It was not contended that such relief should be available in this Court because the relief available in the Court of Criminal Appeal was inadequate, but rather that if there were no interlocutory judgment or order which would engage s 5F, the claim for relief in this Court was not excluded by s 17 of the Supreme Court Act. Although it did not appear to be necessary, counsel further submitted that if the judgment or order were invalid because of jurisdictional error, the supervisory jurisdiction of this Court would not be excluded by s 17, which should be understood to refer to a valid judgment or order and not a purported judgment or order. 6 If relief is available only in this Court, because there is no interlocutory judgment or order in the proceedings below, no question will arise as to the effectiveness of the legislative regime to reallocate the business of this Court under s 69, in relation to criminal proceedings to which s 5F applies, to the Court of Criminal Appeal, or as to the limitations which were perceived in Adler v District Court of New South Wales (1990) 19 NSWLR 317; cf R v Powch (1988) 14 NSWLR 136 (NSWCCA, Yeldham, Carruthers and Wood JJ). Nor was the scope of s 17 pursued in argument, the matter being treated primarily as one involving an interlocutory judgment or order which engaged the jurisdiction of the Court of Criminal Appeal. Generally speaking, if the jurisdiction of that Court were engaged, the legislative intention to transfer such jurisdiction from this Court to the Court of Criminal Appeal should be respected. 7 The decision contemporaneously delivered in the criminal appeal concludes that there was no interlocutory judgment or order to engage the jurisdiction of that Court. Accordingly, it is necessary to consider the applicant's submission that there is nevertheless jurisdiction and power in this Court which is engaged by the "judgment" delivered by the trial judge in the criminal proceedings on 4 August 2009. Prematurity 8 There is a close analogy, in relation to judicial proceedings, between the concept of a judgment or order, which affects the rights of a party, and the limits of the power of review which would engage relief in the nature of certiorari. The limits of certiorari in this respect are themselves unclear, but the cases broadly defined fall within three categories: (a) administrative determinations which are final in the sense that there is nothing left for the administrator to do, but which do not directly affect legal rights or interests of an individual; (b) administrative determinations which constitute a pre-condition to action affecting a legal right or interest, and (c) a judicial ruling which affects legal rights or interests. 9 The cases in relation to the first two categories are helpfully discussed by Aronson, Dyer and Groves in Judicial Review of Administrative Action (4th ed, 2009, Lawbook Co) at pp 820-825. 10 Where courts have been asked to intervene in the exercise of a supervisory jurisdiction, before a trial court or tribunal has made an order determinative of rights, the usual course will be to seek prohibition, rather than certiorari, on the basis that there will be nothing at that stage capable of being set aside or quashed. Thus, when the decisions of the Industrial Relations Commission were protected by an expansive privative clause, as set out in an earlier version of s 179 of the Industrial Relations Act 1996 (NSW), this Court accepted the availability of prohibition to prevent the Industrial Relations Commission purporting to exercise a jurisdiction which it did not have, prior to its making any decision or purported decision, which might be immune from review: Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) [2004] NSWCA 200; 60 NSWLR 558. The availability and propriety of relief in the nature of prohibition, in circumstances where the defect in jurisdiction was patent and not dependent on evidence either to establish it or cure it was affirmed by the High Court in Fish v Solution 6 Holdings Ltd [2006] HCA 22; 225 CLR 180 at [44] (Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ). Nevertheless, it is undoubtedly true that, at least in relation to superior courts of record, it will usually be appropriate to refuse relief until the court in question has addressed for itself the issue of its jurisdiction: see authorities referred to by Kirby J and Heydon J in Fish at [139] and [162] respectively. That approach follows from the fact that a superior court will have power to determine the extent of its own jurisdiction and there will be no excess of power in carrying out that function. An order in the nature of prohibition will only lie where jurisdictional error is demonstrated or at least threatened. Prohibition 11 In the present case, the applicant did not seek prohibition in his summons, but did seek an order in the nature of mandamus directing the District Court to proceed according to the judgment and reasons of this Court. However, at the hearing counsel foreshadowed an application for relief in the nature of prohibition and, the amendment not being opposed, the applicant was given leave to file a proposed amended summons. The additional relief sought orders in the nature of prohibition restraining both the Director and the District Court from acting or relying on "the judgment and order" of 4 August 2009. The applicant should have leave to rely on the amended document as filed. 12 That step having been taken, it is necessary also to consider the availability of that relief as a matter of principle. Because the claim should be rejected it is not necessary to consider the propriety of such relief in relation to the District Court. 13 The duty of the District Court was to exercise the jurisdiction conferred upon it by ss 9, 11 and 166 of the District Court Act 1973 (NSW) and s 46 of the Criminal Procedure Act 1986 (NSW): see Cesan v Director of Public Prosecutions (Cth) [2007] NSWCCA 273; 174 A Crim R 385 at [73]-[77]. In respect of the period between the presentation of the indictment and the empanelling of the jury, jurisdiction was conferred by s 130 of the Criminal Procedure Act. However, there was no suggestion that the Court had or would either exceed its jurisdiction or refuse to exercise it. The complaint was that it might well direct the jury, or otherwise make rulings with respect to evidence, on an erroneous view of the law. 14 This invocation of the supervisory jurisdiction of the Court was misconceived. An erroneous application of the criminal law in the course of criminal proceedings will not generally demonstrate jurisdictional error. Certainly the kind of error relied upon in the present case, which is more fully discussed in the companion judgment to this, did not fall within any category of jurisdictional error. As explained by the High Court in Craig v South Australia [1995] HCA 58; 184 CLR 163 at 177, with respect to the District Court of South Australia: "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. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction." 15 So far as error of law is concerned, their Honours further noted at 177-178: "Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues [the statute or other instrument conferring jurisdiction upon it] and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern." 16 Finally, the applicant referred to the decision in this Court in Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 as providing a basis for relief in circumstances where no interlocutory judgment or order had been made. In considering the application of s 17 of the Supreme Court Act, and the Third Schedule to the Act, Kirby P accepted that a refusal by a trial judge to disqualify himself was not appellable, following Barton v Walker [1979] NSWLR 740: Chow at 609C-E. However, his Honour also appears to have accepted that a finding with respect to the admission of evidence was an interlocutory order of a kind which would warrant interference on the basis of apprehended bias. Sheller JA was content to grant relief absent any order which would fall within s 17 of the Supreme Court Act: at 618E. (Cripps JA was of the view that no basis for intervention had been made good and hence, assuming the availability of relief, it should not be provided.) 17 This was not a case in which there was any error in relation to the statutory provisions establishing the District Court or conferring criminal jurisdiction. The District Court had power to determine a question rightly or wrongly, even if the determination involved legal error. As the joint judgment continued in Craig at 179, after reference to the circumstances of an administrative tribunal: "In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine." Error on the face of the record 18 It is clear that the supervisory jurisdiction of this Court for actual or threatened jurisdictional error is not engaged. The final matter for consideration is whether the applicant can demonstrate error of law on the face of the record of the District Court sufficient to engage the expanded jurisdiction, going beyond jurisdictional error, which would warrant the grant of relief in the nature of certiorari. This approach, however, provides no assistance to the applicant. The difficulty he faces is the absence of any order which could be set aside, on any ground. Conclusions 19 It is true that in cases of a demonstrated threat of jurisdictional error, such as bias, this Court can intervene absent an order: see, eg, Lee v Cha [2008] NSWCA 13 at [35]. It is also true that, as a matter of discretion, the Court will exercise restraint and resist interfering in criminal proceedings at an interlocutory stage in the absence of the clearest reason to do so: Chief Executive Officer of Customs v Jiang [2001] FCA 145; 111 FCR 395 at [7]-[[12] (O'Loughlin, North and Weinberg JJ); see also Lee at [36] and the cases there referred to; and Chow at 599F (Kirby P). A mere expression of opinion as to a concededly relevant legal principle will not provide a basis for such intervention at an interlocutory stage. 20 Accordingly, the relief should be refused and the summons dismissed. 21 Although the summons was an inappropriate procedure in the circumstances, it was a step taken to ensure that, if the issue should properly have been raised in the supervisory jurisdiction of this Court, rather than in the Court of Criminal Appeal, the applicant's case would not fail on procedural grounds. No great additional time or expense resulted from the adoption of the dual procedure. Accordingly, there should be no order as to the costs of the proceedings in this Court. 22 The Court makes the following orders: (1) Grant the applicant leave to rely upon the proposed amended summons as filed and dispense with further requirements of the rules in relation thereto. (2) Dismiss the Summons. (3) No order as to the costs of the parties 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.