Court of Appeal Supreme Court New South Wales Medium Neutral Citation: AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122 Hearing dates: 27 March 2014 Decision date: 14 April 2014 Before: Basten JA at [1]; Sackville AJA at [35]; Adamson J at [74] Decision: 1. The application is dismissed. 2. The applicant pay the costs of the respondent. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: ADMINISTRATIVE LAW - judicial review - trial judge refuses application for costs certificate under Costs in Criminal Cases Act 1967 (NSW) - whether decision affected by error of law on the face of the record - whether decision affected by jurisdictional error Legislation Cited: Children (Criminal Proceedings) Act 1987 (NSW), s 15A Costs in Criminal Cases Act 1967 (NSW), ss 2, 3, 3A, 4 Criminal Appeal Act 1912 (NSW), s 6 Criminal Procedure Act 1986 (NSW) Crimes Act 1900 (NSW), s 66C(3) Supreme Court Act 1970 (NSW), s 69 Cases Cited: Amaba Pty Ltd v Booth [2010] NSWCA 344; [2011] Aust Torts Rep 82-079 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Chahal v Director of Public Prosecutions (NSW) [2008] NSWCA 152; 185 A Crim R 580 Craig v The State of South Australia [1995] HCA 58; 184 CLR 163 Damjanovic & Sons Pty Ltd v Commonwealth [1968] HCA 42; 117 CLR 390 Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 Fraser v The Queen (No 2) (1985) 1 NSWLR 680 Goodwin v Commissioner of Police [2010] NSWCA 239 Kavanagh v The Commonwealth [1960] HCA 25; 103 CLR 547 The King v Connell; Ex parte the Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; 239 CLR 531 Klein v Domus Pty Ltd [1963] HCA 54; 109 CLR 467 Meagher v Stephenson (1993) 30 NSWLR 736 Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 Minister for Immigration and Citizenship v Li [2013] HCA 18; 87 ALJR 618 Mordaunt v Director of Public Prosecutions (NSW) [2007] NSWCA 121; 171 A Crim R 510 R v Manley [2000] NSWCCA 196; 49 NSWLR 203 Ramskogler v Director of Public Prosecutions (1995) 82 A Crim R 128 Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115 Solomons v District Court of New South Wales [2002] HCA 47; 211 CLR 119 "V V" v District Court of New South Wales [2013] NSWCA 469 Category: Principal judgment Parties: AB (Applicant) Director of Public Prosecutions (Respondent) Representation: D Dalton SC / S Kluss (Applicant) I Bourke (Respondent) The Law Company (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2013/157871 Decision under appeal Date of Decision: 2012-04-05 00:00:00 Before: Colefax SC DCJ File Number(s): 2011/42050 Judgment 1BASTEN JA: The applicant was prosecuted in the District Court on an indictment containing nine counts of alleged sexual offences against a young woman. He pleaded not guilty and was, in due course, acquitted by a jury on all counts. He then applied to the trial judge, Colefax DCJ, for a certificate under the Costs in Criminal Cases Act 1967 (NSW). The judge declined to grant the certificate. 2The present application seeks an order quashing the decision of the trial judge and an order requiring that he redetermine the application according to law. The present application should be dismissed. Statutory scheme 3The power to grant a certificate is contained in s 2 of the Costs in Criminal Cases Act, which relevantly provides: 2 Certificate may be granted (1) The Court or Judge or Magistrate in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, ... grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. 4It was not in dispute that the preconditions to the exercise of the discretionary power to award a certificate are to be found in s 3(1), which serves the dual function of stating what should be specified in the certificate and, impliedly, the necessary preconditions to the exercise of the power. Thus, s 3 provides: 3 Form of certificate (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge or Magistrate granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. 5The judgment under challenge does not reveal that, in opposing the application, the prosecutor sought to rely on any conduct of the defendant, of a kind falling within par (b) of s 3(1). Nor was the contrary suggested in this court. Accordingly that provision can be ignored. The case before the trial judge therefore turned entirely upon the applicant satisfying him as to the matter set out in par (a). 6In practical terms, the test set out in paragraph (a) involves two elements. One involves the formation of an opinion, the other the substratum of material on which the opinion is based. It is convenient to start with the latter. 7The basis of the opinion must be "evidence of all the relevant facts". In the present case, that was, quite simply, the evidence presented at trial. There was nothing else relied upon. It included the evidence-in-chief and cross-examination of the complainant. 8The second element in par (a) is the standard to be applied by the court in formulating its opinion. The standard itself has two elements. First, it looks to the position of an hypothetical fully-informed prosecutor deciding whether or not to institute proceedings. Secondly, it requires the court to be affirmatively satisfied of a negative proposition, namely that it would "not have been reasonable to institute the proceedings". Applicable principles 9The terminology of the Costs in Criminal Cases Act has given rise to questions of construction. Some of the terms have been described as "very curious": Fraser v The Queen (No 2) (1985) 1 NSWLR 680 at 689E (McHugh JA). To the extent that such provisions have been construed by earlier courts, there may be relevant "legal principles" to be derived from the case law. For example, such principles can arise with respect to the boundaries of the power conferred, and permissible (and impermissible) considerations to be addressed (or not) in exercising the discretion. No such issues arise in the present case. 10The relevant test is whether a decision to prosecute would have been unreasonable in the circumstances hypothesised: there is no occasion to impose some gloss upon the words of the section. Further, if such a step were taken by an earlier court, that should not distract a judge from the application of the statutory language: Damjanovic & Sons Pty Ltd v Commonwealth [1968] HCA 42; 117 CLR 390 at 408-409 (Windeyer J), noting that "[t]o prefer the gloss to the text is an old and besetting temptation for lawyers", referring to Kavanagh v The Commonwealth [1960] HCA 25; 103 CLR 547 at 578. Windeyer J continued in Damjanovic, noting that "[t]he text becomes submerged in the illustrations." The temptations are no doubt reinforced by judicial decisions which purport to extract "principles" from authorities dealing with similar applications. 11The submissions of both parties before the trial judge and for the applicant in this Court set out extracts from the judgment of this Court in Mordaunt v Director of Public Prosecutions (NSW) [2007] NSWCA 121; 171 A Crim R 510, particularly at [36]. Such statements should be treated with caution. First, many of the statements did not purport to state "principles", but merely summarised circumstances in which certificates had been granted or not granted. Secondly, most were irrelevant to the decision itself and hence, even if reflecting principles of law, are not binding. Thirdly, the illustrations are collected without reference to statutory changes over time, particularly in the scheme for pre-trial disclosure under the Criminal Procedure Act 1986 (NSW), which may affect the exercise of the discretion as to costs' certificates. Scope of this Court's jurisdiction 12On 22 May 2013 the applicant filed a notice of appeal from the judgment in the District Court. There is no right of appeal. By consent, the notice of appeal was dismissed as incompetent, with no order as to costs: CA Tcpt, 27/03/14, p 1(40). 13The second amended summons filed by the applicant sought a declaration that the decision of the District Court was "void" and an order setting it aside, presumably relying on the supervisory jurisdiction of this Court under s 69 of the Supreme Court Act 1970 (NSW). The grounds alleged the application of "incorrect principles", a failure to apply "correct principles" and "taking into account irrelevant considerations". There was debate as to what material the applicant was entitled to rely upon in support of these grounds. To the extent that the grounds appeared to assert error of law on the face of the record, the primary basis for the assertion appeared to be an analysis of the reasons of the trial judge, which were admissible as part of the record of the court below, pursuant to s 69(4) of the Supreme Court Act. The record of the court for that purpose would also include the application seeking a costs' certificate. 14The applicant sought to tender the transcript of the criminal trial. The basis relied on was that it constituted part of the record of the District Court. That basis was misconceived. According to the principles established by Craig v South Australia [1995] HCA 58; 184 CLR 163, prior to the enactment of s 69(4), the record of the court was restricted to the application and the order and did not include the reasons for judgment, unless expressly incorporated into the order. The suggestion that the transcript of evidence is part of the record for judicial review purposes is to disregard this history: see Chahal v Director of Public Prosecutions (NSW) [2008] NSWCA 152; 185 A Crim R 580 at [55]-[56]. 15The applicant then sought to argue that because the trial judge had referred in his reasons to passages from the evidence, the whole of the transcript was thereby incorporated. That proposition cannot be accepted either. Section 3(1) required that the trial judge make his assessment of the application by reference to the evidence of all relevant facts. Inevitably he referred to that material. However, in doing so he did not incorporate the transcript, beyond the extracts set out in the reasons, into the record of the court. The position contended for by the applicant would go a long way to obliterating the distinction between judicial review for error of law on the face of the record and an appeal limited to errors of law, a distinction maintained and reinforced in Craig v South Australia and not abandoned by s 69(4) including the reasons for the decision in the record of the court. 16The third manner in which the applicant sought to rely upon the transcript was to establish jurisdictional error. This approach was also misconceived. It is clear from the terms of s 3(1) that the power to grant a certificate is engaged only where the judge hearing the application is satisfied as to the statutory conditions. Except in the rather artificial sense that the formation of the opinion is a "jurisdictional fact", this was not a case involving jurisdictional facts. No ground in the amended summons sought to assert jurisdictional error of a kind which could be demonstrated by reference to the transcript. In his written submissions, the applicant alleged that a conclusion that the statutory test was not satisfied "was not available in all the circumstances which of itself demonstrates error." 17It may be accepted that there are cases where judicial review will be available with respect to the opinion of the decision-maker but, beyond demonstration of legal error, it must be shown that the opinion was "arbitrary, capricious, irrational or not bona fide": see The King v Connell; Ex parte the Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 432 (Latham CJ); Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; 197 CLR 611 at [124]-[130] (Gummow J). There were, however, three difficulties in establishing any such proposition in the present case. First, the substance of the submissions never rose above the proposition that a different conclusion might have been reached. There was nothing to demonstrate the kind of serious unreasonableness which might warrant judicial review: Minister for Immigration and Citizenship v Li [2013] HCA 18; 87 ALJR 618 at [109] (Gageler J) quoting Klein v Domus Pty Ltd [1963] HCA 54; 109 CLR 467 at 473. 18Secondly, absent a demonstration of legal error, bias or procedural unfairness, no challenge could properly be made by the party bearing the onus of proof that a trial judge committed jurisdictional error in failing to be satisfied of the statutory precondition to the exercise of a power: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156E (Glass JA, Samuels JA agreeing). Nothing in the present case demonstrated the kind of error which might avoid that limitation, as discussed in Goodwin v Commissioner of Police [2010] NSWCA 239 at [12] and [40] and Amaba Pty Ltd v Booth [2010] NSWCA 344; [2011] Aust Torts Rep 82-079; 9 DDLR 488, at [21]-[24]. 19Had the Court been invited to read the transcript (which it was not) a question would have arisen as to how it might have been expected to form a view as to the credibility of the complainant, so as to demonstrate the manifest unreasonableness of the views formed by the trial judge who heard and saw her give evidence. Even when considering whether there has been a substantial miscarriage of justice for the purposes of s 6(1) of the Criminal Appeal Act 1912 (NSW), the appeal court may simply conclude that the evidence was such that the jury was entitled to act upon its view of the witnesses. 20The tender of the transcript was accepted, subject to the applicant establishing its relevance. Having failed to establish relevance to any tenable ground of review, the tender should be rejected. 21The applicant also sought to rely upon the submissions of the parties before the trial judge. Sometimes submissions can be relevant and material in judicial review proceedings. For example, a court or tribunal is only required to determine issues raised before it. Reference to submissions may demonstrate that the point sought to be agitated on judicial review was not raised in the tribunal below. On the other hand, the submissions may demonstrate that a material issue, not addressed by the tribunal in its reasons or decision, and depending on undisputed or established facts, was indeed raised for determination. In such a case, the failure of the tribunal to address the matter may well constitute a constructive failure to exercise its jurisdiction: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088 at [24] and [25] (Gummow and Callinan JJ). No such question arose in the present case. The submissions did, however, demonstrate the unhelpful reliance by both parties on the statements of "principle" in Mordaunt. The submissions were admitted, although in strict terms, they probably should have been excluded, because nothing turned on their contents. 22There are some more specific concerns as to statements concerning the court's supervisory jurisdiction in Mordaunt. Thus it is said at [40] that the applicant "must demonstrate error of law on the face of the record and persuade the Court that the error is such as would warrant the grant of relief, bearing in mind that certiorari is a discretionary remedy". Authority for the latter proposition was found in Ramskogler v Director of Public Prosecutions (1995) 82 A Crim R 128. 23These propositions must be qualified in certain respects. First, it is not necessary to demonstrate error of law on the face of the record: it is open to the applicant to establish jurisdictional error for which, as is commonly required with respect to a claim of apprehended bias or procedural unfairness, the applicant may rely upon material which does not form part of the record. Secondly, although it is true that there can be a live discretion attending the grant of a quashing order in some circumstances, usually it will not be necessary for the applicant to affirmatively demonstrate circumstances warranting the grant of relief, once a relevant and material error has been established. 24In Ramskogler, reliance was placed on the decision of this Court in Meagher v Stephenson (1993) 30 NSWLR 736 with respect to refusal of relief on a discretionary basis. In Meagher, an application in the supervisory jurisdiction of the Court was seen to involve an attempt to sidestep the need for leave to appeal, where the scope of the relief available in the appellate and supervisory jurisdictions was the same. No broader proposition should be derived from Meagher. Further, Meagher was decided at a time when the scope of the record was understood to be so broad as to equate the supervisory jurisdiction with an appellate jurisdiction limited to questions of law. Meagher and Ramskogler were decided (two years and two months respectively) before the High Court handed down judgment in Craig v South Australia, which belied the premise by restricting the nature of the record. (The amendments to s 69 following Craig have not had the effect of reinstating the premise underlying Meagher.) Alleged legal errors 25The applicant identified two potential errors of law in the reasons of the primary judge. The first was that he applied the test of whether "a jury could have convicted" upon the complainant's evidence, rather than considering whether, in possession of the evidence of all relevant facts, it would not have been reasonable for the prosecution to have instituted the proceedings. 26This complaint was without substance. The trial judge focused squarely on the issue which underpinned the prosecution, namely the evidence of the complainant and her credibility. He noted that her credibility had been under attack but said it was "by no means inevitable that that attack would be successful": at [15]. He further expressed the view that, having observed the complainant, she was not a witness demonstrated to be "very substantially lacking in credit": at [16]. It was therefore a matter for the jury to decide whether it was satisfied of the applicant's guilt beyond reasonable doubt: at [17], expressing the view that "a jury could have convicted", notwithstanding the attack upon her credit: at [18]. Putting those issues together, the judge concluded that the applicant had not discharged the onus of showing that it was "not reasonable to institute the proceedings having regard to an objective analysis of the whole of the relevant evidence": at [19]. 27This reasoning demonstrated no error: it is clear that the trial judge identified and applied the correct legal test. Taking one phrase out of context did not demonstrate otherwise. 28The second possible legal error was said to derive from reference in the judgment to a passage from Mordaunt at [36], sub-par (m), which started with the proposition that it would usually be quite reasonable for the prosecution to allow a case depending "upon word against word" to go to the jury and continuing that "it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit": trial judge at [12]. 29The applicant contended that the quotation of this passage demonstrated that the trial judge, erroneously, thought that this was a case which depended upon "word against word". Not only was the trial judge fully aware of the fact that it was not such a case, but in the very next sentence he referred to the fact that the prosecution case "was dependent upon the evidence of the complainant": at [13]. Further, the reason for the reference was clearly the possibility that the complainant had been shown to be a person who "was very substantially lacking in credit". That was a relevant matter which he expressly addressed (rejecting it), at [16]. The reason for extracting the preceding example as well as the part which was relevant, was probably because the relevant part commenced with "it would be different where the word upon which the Crown case depended ...", thus inviting a point of comparison. Without the preceding clause, this language would have been obscure. 30The proposition that the trial judge in some way misconceived the nature of the proceedings before him is patently untenable. Conclusions 31The application must be refused. The respondent submitted that costs should follow the event in the usual way. The applicant submitted that the case raised "matters of importance to the criminal justice system and to the community as a whole", justifying that no order should be made as to costs if the applicant were unsuccessful. 32It is necessary to consider whether any matter of importance or public interest was raised by the case. The short answer is that the grounds were so lacking in substance that that view could not be formed. It is therefore not necessary to consider whether it would justify a departure from the usual rule as to costs. The applicant must pay the respondent's costs in this Court. 33There is one further matter which should be addressed, namely the anonymisation of the parties. There is a statutory prohibition on broadcasting any material which would identify the complainant: Children (Criminal Proceedings) Act 1987 (NSW), s 15A. The complainant has not been named in the judgments in this Court. 34The further issue raised by counsel was that the statutory prohibition extends to "any information ... or other material that identifies the person or is likely to lead to the identification of the person": s 15A(5). The Court was advised that identification of the accused (the applicant in this Court) might constitute such information. Accordingly, his name has been omitted to avoid the inadvertent promotion of a breach of the statute. 35SACKVILLE AJA: The applicant seeks orders setting aside a decision of a Judge of the District Court (Colefax SC DCJ) and remitting the matter for consideration according to law. The primary Judge refused an application made on behalf of the applicant pursuant to s 2 of the Costs in Criminal Cases Act 1967 (NSW) (the Act), that the Court issue a certificate for the applicant's costs in a criminal trial in which he was acquitted by a jury: file no. 2011/42050, 5 April 2012. (Names in this judgment have been anonymised in conformity with the requirements of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).) 36The applicant was prosecuted in the District Court at Armidale on an indictment containing nine counts of sexual assault under s 66C(3) of the Crimes Act 1900 (NSW) (sexual intercourse with a child between 14 and 16 years). The applicant pleaded not guilty and, after a trial lasting four days (from 20 to 23 February 2012), was acquitted on all counts. 37The applicant duly filed a notice of motion in the District Court seeking a certificate for costs pursuant to the Act. The applicant and the Crown each filed written submissions. By agreement between the parties, the primary Judge dealt with the application on the papers in Chambers. Neither party adduced any evidence on the application beyond that which had been given at the trial. 38The present application is brought in the original jurisdiction of the Court and seeks orders in the nature of prerogative relief. The applicant contends that the primary Judge committed an error of law on the face of the record and also committed jurisdictional errors, thus justifying the intervention of this Court. Background 39A brief account of the background to the application is necessary. The applicant was charged with offences alleged to have been committed during the period from 1 September 2009 until 26 January 2010 (the latter date being the date of the last alleged offence). During this period the complainant was living with the applicant and his wife on a rural property near Tamworth. The complainant was not related to the applicant or his wife, but had moved in with them after some disagreements at her home with her father. 40The complainant gave evidence that she and the applicant regularly had consensual sexual relations and other sexual encounters during the period of nearly five months covered by the indictment. The complainant's account was strongly challenged in cross-examination and it was put to her that the alleged sexual relations and encounters never took place. 41At the conclusion of the Crown case, the jury returned a directed verdict of not guilty on one of the nine counts. 42The applicant did not give evidence. Nor did he make any statement to the police concerning the allegations against him, invoking his right to silence. The only witness called for the defence was the applicant's wife. 43After a short retirement, the jury returned a verdict of not guilty on the remaining eight counts. The Legislation Costs in Criminal Cases Act 44The relevant provisions of the Act are as follows: "2 Certificate may be granted (1) The Court or Judge ... in any proceedings relating to any offence, whether punishable summarily or upon indictment, may: (a) where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, ... (b) ... grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings. 3 Form of certificate (1) A certificate granted under this Act shall specify that, in the opinion of the Court or Judge... granting the certificate: (a) if the prosecution had, before the proceedings were instituted, been in possession of evidence of all the relevant facts, it would not have been reasonable to institute the proceedings, and (b) that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances. 3A Evidence of further relevant facts may be adduced (1) For the purpose of determining whether or not to grant a certificate under section 2 in relation to any proceedings, the reference in section 3(1)(a) to all the relevant facts is a reference to: (a) the relevant facts established in the proceedings, and (b) any relevant facts that the defendant has, on the application for the certificate, established to the satisfaction of the Court or Judge..., and (c) any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the Court or Judge ... that: (i) relate to evidence that was in the possession of the prosecutor at the time that the decision to institute proceedings was made, and (ii) were not adduced in the proceedings." 45Section 4(1) of the Act provides that a person to whom a certificate has been granted under the Act may apply to the Director-General for payment from the Consolidated Fund of the costs to which the certificate relates. If satisfied that the making of a payment is justified, the Director-General may determine the amount of costs that should be paid to the applicant, subject to a statutory maximum: s 4(2), (3). Supreme Court Act 46Section 69 of the Supreme Court Act 1970 (NSW) provides as follows: "(1) Where formerly: (a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or (b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act: (c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ, and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules. ... (3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. (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. (5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision." The Primary Judgment 47The primary Judge referred (at [10]) to the principles informing the exercise of discretion under s 2 of the Act stated by the Court of Appeal in Mordaunt v Director of Public Prosecutions (NSW) [2007] NSWCA 121; 171 A Crim R 510 at [36] (McColl JA, with whom Beazley and Hodgson JJA agreed). Although a number of those principles were relevant, the primary Judge considered that [36(m)] of Mordaunt was particularly relevant. His Honour reproduced (at [12]) a portion of that sub-paragraph as follows: "... [It] is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in [a] majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit [citation omitted]." 48The primary judgment continued as follows: "13 In the present case, the Crown case was dependent upon the evidence of the complainant who, at the time of the alleged offences, was a 15 year old girl residing at the home of [the applicant] and his wife and young children. 14 The events about which she complained were not witnessed by anyone else and, therefore, her evidence was the subject of a Murray direction. She did however make two contemporaneous complaints. There was no real challenge about the fact of those complaints. 15 The complainant's evidence was the subject of a credit attack, amongst other things. But it was by no means inevitable that that attack would be successful. 16 Having closely observed the complainant, she was not in my opinion a witness who was demonstrated to be very substantially lacking in credit. 17 It was, in my view, entirely appropriate for the jury to decide whether her evidence was such that they could be satisfied of [the applicant's] guilty [sic] beyond reasonable doubt. 18 In my opinion, a jury could have convicted [the applicant] on the evidence of the complaint and notwithstanding the criticisms made of her by counsel for [the applicant] in her address to the jury and repeated in the submissions on the present application. 19 The applicant has therefore not discharged the onus he bears of showing it was not reasonable to institute the proceedings having regard to an objective analysis of the whole of the relevant evidence." Submissions 49The applicant's submissions were something of a moveable feast. The applicant's written submissions appeared to identify two errors of law said to have been committed by the primary Judge: (1)failing to apply the test mandated by s 3(1)(a) of the Act and incorrectly substituting a different test; and (2)making a determination that was not available on the evidence, thereby demonstrating an error of law. 50The written submissions did not distinguish between an error of law on the face of the record and a jurisdictional error. The former can be corrected on an application for orders in the nature of prerogative relief under s 69 of the Supreme Court Act, but it is necessary for the error of law to appear on the face of the record. The Supreme Court, in the exercise of its constitutionally entrenched supervisory jurisdiction, also has power to set aside decisions of inferior courts or tribunals on the ground of jurisdictional error: Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; 239 CLR 531. Not every error of law is a jurisdictional error, but a jurisdictional error is not necessarily confined to an error of law appearing on the face of the record. 51The distinction became significant when Mr Dalton SC, who appeared with Ms Kluss for the applicant, sought to tender in this Court the transcript of the criminal trial and the written submissions on costs made to the primary Judge. Mr Dalton initially justified the tender on the basis that the transcript could be considered to be part of the record of the costs application in the District Court. He said that this followed from s 69(4) of the Supreme Court Act, which incorporates the reasons for judgment of the primary Judge in the record of the District Court proceedings. Since the reasons for judgment referred, albeit in general terms, to the transcript of the trial and to counsel's written submissions on the application for costs certificate, both the transcript and the written submissions became part of the record of the application. This was said to follow from the reasoning of the High Court in Craig v The State of South Australia [1995] HCA 58; 184 CLR 163 at 181-182 (per curiam). 52In the course of oral argument, members of the Court expressed some doubt as to whether Craig v South Australia supported the tender of the transcript and the written submissions. This led Mr Dalton to elevate the errors identified in the applicant's written submissions into jurisdictional errors. On this basis, so he argued, the applicant's claim for relief did not depend solely on establishing that the decision of the primary Judge was affected by an error of law on the face of the record, and since the applicant was relying on jurisdictional errors, this Court was not limited to errors appearing on the face of the record. The transcript and written submissions could be admitted into evidence as the material was relevant to the applicant's claim that the decision of the primary Judge was affected by jurisdictional error. 53Mr Dalton maintained the contention that the primary Judge had applied an incorrect test for determining whether he should be satisfied of the matter specified in s 3(1)(a) of the Act. However, Mr Dalton now said that this was not merely an error on the face of the record, but a jurisdictional error that vitiated the primary Judge's decision. 54Mr Dalton recognised that it was not sufficient to establish an error of law, much less a jurisdictional error, to show that the primary Judge had made errors of fact, even egregious errors. He submitted that on the evidence before the primary Judge, the only rational conclusion that his Honour could reach was to be satisfied that, if the prosecution had been in possession of evidence of all the relevant facts before the proceedings were instituted, it would not have been reasonable to institute the proceedings. On this basis, the refusal of the primary Judge to be so satisfied amounted to an error of law and a jurisdictional error. Evidence 55When it became apparent during oral argument that Mr Dalton was asserting that the primary Judge's decision was affected by jurisdictional error, Mr Bourke, who appeared for the respondent (DPP), did not object to the tender of the transcript and of the written submissions to the primary Judge. But, Mr Bourke made it clear that he did not concede that any of this material was relevant to the arguments advanced by the applicant. The material was admitted subject to it being shown to be relevant to the asserted jurisdictional errors. The written submissions have some marginal relevance to the contention that the primary Judge applied the wrong test, but only because they explain his Honour's approach. I would admit those submissions but reject the tender of the transcript. Reasoning Operation of the Costs in Criminal Cases Act 56Sections 2 and 3 of the Act confer both jurisdiction and power on the Court to grant a certificate to a person acquitted in proceedings relating to an offence: Mordaunt at [35]. The granting of a costs certificate does not confer a right upon the grantee to receive payment from the Consolidated Fund. The making of a payment requires the Director-General to form the opinion referred to in s 4(2) of the Act, namely that in the circumstances of the case, the making of a payment to the applicant is justified: Solomons v District Court of New South Wales [2002] HCA 47; 211 CLR 119 at [12] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ). 57Before granting a costs certificate, the Court must consider the matters identified in s 3(1)(a) of the Act. Thus the Court cannot grant a certificate unless satisfied that, if the prosecution had been in possession of "all the relevant facts" before the proceedings were instituted, it would not have been reasonable to institute the proceedings. It the Court is so satisfied, it must decide whether to exercise the discretion under s 2 of the Act to grant the certificate: Mordaunt at [36(f)]. 58Because of the wide variety of cases that call for consideration, there can be no exhaustive definition of the circumstances in which a court would be satisfied that it would not have been reasonable to institute proceedings: R v Manley [2000] NSWCCA 196; 49 NSWLR 203 at [12]-[14] (Wood CJ at CL); Mordaunt at [36(g)]. It is for this reason that the courts have rejected attempts to substitute other tests for the statutory language. 59The applicant for a costs certificate bears the burden of satisfying the Court that it would not have been reasonable for the prosecution, had it been in possession of all the relevant evidence, to institute the proceedings: Manley at [15]; Mordaunt at [36(d)]. The judicial officer determining the application must make an evaluative judgment after undertaking an objective analysis of the whole of the evidence: Manley at [14]. For this reason, while the judicial officer dealing with the application for a costs certificate need not be the trial judge (Solomons v District Court (NSW) at [8] (Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ), [47] and footnote 80 (McHugh J)), it is preferable for the application to be made to the trial judge since he or she will almost always be in the best position to determine the application: Manley at [4] (Woods CJ at CL), [59], [66] (Simpson J); Mordaunt at [36(b)]. Did the Primary Judge Fail to Apply the Correct Test? 60The applicant's submission that the primary Judge misstated or misapplied the statutory test relied heavily on his Honour's quotation of part of sub-paragraph [36(m)] of Mordaunt. The full sub-paragraph is as follows (citations omitted): "Section 3 calls for an objective analysis of the whole of the relevant evidence, and particularly the extent to which there is any contradiction of expert evidence concerning central facts necessary to establish guilt, or inherent weakness in the prosecution case; matters of judgment concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be Judge or Jury; it is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit." 61Mr Dalton submitted that by quoting only the last part of sub-paragraph [36(m)] of Mordaunt the primary Judge mistakenly classified the prosecution of the applicant as a "word against word" case. This classification was incorrect, so Mr Dalton contended, because the applicant did not give evidence at the trial. Nonetheless his Honour simply applied the principle that in a word against word case it is usually reasonable for the prosecution (hypothetically considered in the light of all the relevant evidence) to allow the matters in contest to be determined by the jury. This interpretation of the judgment was said to be supported by his Honour's finding (at [17]) that it was appropriate for the jury to be asked to decide whether the complainant's evidence was such to establish the applicant's guilt. 62These submissions misinterpret both the observations made in Mordaunt and the reasoning of the primary Judge. The observations in Mordaunt were not intended to lay down binding principles governing the making of the evaluative judgment required by ss 2 and 3 of the Act. McColl JA was at pains to say that there can be no exhaustive test of unreasonableness and that a great range of matters may be relevant to the determination required on an application for a costs certificate (at [36(g)]). The latter part of sub-paragraph [36(m)] of her Honour's judgment merely makes the point that ordinarily it would not be considered unreasonable for a prosecution to be instituted if the outcome depends upon the jury resolving a conflict between the evidence of the complainant and the accused. Sub-paragraph [36(m)] makes the further point that the position would be different if the Crown case depended on the evidence of a witness who had been demonstrated to be very substantially lacking in credit. Perhaps it may have been clearer if sub-paragraph [36(m)] had used the word "might" instead of "would". However, I do not understand the Court to have intended to lay down an inflexible rule to be applied whenever a key witness is shown to have been substantially lacking in credit. 63The primary Judge's reasons have to be understood in context. His Honour not only quoted the language in s 3(1)(a) of the Act at (at [8]), but stated his conclusion (at [19]) in a manner that correctly reflected both the statutory language and the onus that the applicant bore on the application. It is clear that his Honour appreciated the test that he had to apply and that he assessed the material before him by reference to that test. 64The primary Judge quoted the latter part of sub-paragraph [36(m)] of Mordaunt because the applicant's submissions stated that the primary issue was whether it was unreasonable to institute the prosecution, "given the weakness of the evidence of the Crown's main witness" and the further material in the Crown's possession that "raised significant issues as to [her] credibility." The primary Judge was entitled to regard this submission as invoking the latter part of sub-paragraph [36(m)] of Mordaunt. In other words, the applicant's case, regardless of whether this was a word against word prosecution, was that the primary Judge should have been satisfied that the institution of a prosecution was unreasonable in the relevant sense because the Crown's case had been demonstrated to depend upon the evidence of a complainant who had been shown to be very substantially lacking in credit. 65The primary Judge was obviously perfectly well aware that the applicant had not given evidence. He correctly said (at [13]) that the Crown case was dependent upon the complainant's evidence. His Honour rejected the applicant's argument because, having heard all the evidence at trial and being aware that no further evidence had been adduced on the application for a costs certificate, he considered that the complainant had not been shown to be very substantially lacking in credit (at [16]). When his Honour said (at [17]) that it was entirely appropriate for the jury to be asked to decide whether her evidence was such that they could be satisfied of the applicant's guilt, he was saying no more than that the applicant had not made out the factual basis of his submissions on the application for a costs certificate. 66The applicant has not made good the contention that the primary Judge failed to apply the correct statutory test. Thus, so far as this contention is concerned, the primary Judge's decision was not affected either by an error of law on the face of the record or a jurisdictional error. Did the Finding of Fact Reveal an Error of Law? 67The applicant's submission that the primary Judge erred in law by not being satisfied on the evidence before him that it would have been unreasonable to institute a prosecution against the applicant, encounters a threshold difficulty. In Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156, Glass JA (with whom Samuels JA agreed) accepted that a finding may reveal an error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made. However, Glass JA also held that if a party bearing the onus of proof complains that the tribunal of fact declined to make a finding in that party's favour, the refusal to make such a finding does not give rise to a question of law. The reason is (at 156) that: "[t]he party saddled with the onus ... cannot assume in his favour that the evidence is or ought to be accepted since this trenches upon the liberty of the tribunal of fact to accept or reject any evidence." [Emphasis in original.] 68Glass JA specifically rejected the proposition that a factual finding can give rise to a question of law if it is perverse, illogical or contrary to the overwhelming weight of evidence (at 155-157). Even an egregious error of this kind remains a factual error. Thus it cannot be corrected where an appeal lies only on a question of law or where the decision is challenged in judicial review proceedings on the ground of an error of law. 69Kirby P (as he then was) dissented in Azzopardi. Twenty years later, in Roncevich v Repatriation Commission [2005] HCA 40; 222 CLR 115, while not changing his mind, Kirby J accepted (at [67]-[68]) that Azzopardi has enjoyed judicial support. The decision continues to be applied in New South Wales and remains good law in this State unless and until overturned: see, for example, "V V" v District Court of New South Wales [2013] NSWCA 469 at [125] (Barrett JA, with whom Ward and Leeming JJA agreed). Mr Dalton made no submission that Azzopardi should not be followed in this Court. 70In Azzopardi itself, the finding that was said to be perverse was that a worker had failed to establish that he had suffered a particular injury as the result of an accident. The present case is even more difficult for the applicant. The applicant bore the onus of satisfying the primary Judge that it would not have been reasonable for the prosecution to institute the proceedings. The primary Judge's finding was not that the evidence failed to establish that a specific factual allegation had been made. Rather, his Honour was not satisfied on the evidence that he should make the evaluative judgment the applicant asked him to make. 71Even if the evidence before the primary Judge overwhelmingly supported the applicant's case that the institution of a prosecution against him would have been unreasonable (assuming the evidence to be admissible in this Court), his Honour's conclusion that he was not satisfied that the applicant made out the case would not have been affected by an error of law. Nor would it have constituted a jurisdictional error. Thus, the challenge to the decision in judicial review proceedings, whether on the basis of an error of law on the face of the record or a jurisdictional error, cannot succeed. 72I should add this comment. In some circumstances, a tribunal of fact that makes a perverse or illogical finding of fact might be shown to have committed an error of law. For example, the perverse or illogical finding may have come about because of a denial of procedural fairness, or a failure to undertake the inquiry mandated by the relevant statute. But, except for the argument I have already rejected, nothing of the kind has been alleged by the applicant in the present case. Orders 73The application must be dismissed. The applicant must pay the DPP's costs of the application. 74ADAMSON J: I agree with Sackville A-JA. I have also had the benefit of reading a draft of the reasons of Basten JA. I agree with his Honour's reasons for rejecting the applicant's submissions as to the alleged errors of law at [25]-[30]. I also agree with his Honour's additional reasons as to why costs ought follow the event at [31]-[32]. ********** 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: 15 April 2014