Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Clancy v Director of Public Prosecutions [2018] NSWCA 102 Hearing dates: 14 May 2018 Date of orders: 14 May 2018 Decision date: 14 May 2018 Before: Basten JA at [1]; Macfarlan JA at [14]; Meagher JA at [16] Decision: 1. Refuse the application to extend the time for commencing the proceedings. 2. Dismiss the amended summons for judicial review. 3. Order the applicant to pay the Director's costs in this Court. Catchwords: CIVIL PROCEDURE – judicial review – extension of time to commence proceedings – 10 months out of time – whether proposed proceeding had reasonable prospects of success – whether adequate explanation for delay – Uniform Civil Procedure Rules 2005 (NSW), r 59.10 CRIMINAL PROCEDURE – appeal from Local Court to District Court – application to state case to Court of Criminal Appeal – application refused because no question of law – case to be stated within 28 days – application made 15 months after District Court judgment – no extension of time sought from Court of Criminal Appeal – whether application particularised question of law – Criminal Appeal Act 1912 (NSW), s 5B Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13 Criminal Appeal Act 1912 (NSW), s 5B Uniform Civil Procedure Rules 2005 (NSW), r 59.10 Cases Cited: Elias v Director of Public Prosecutions [2012] NSWCA 302; 222 A Crim R 286 Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 Category: Principal judgment Parties: James Martin Clancy (Applicant) Director of Public Prosecutions (NSW) (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: Mr M R Davis (Applicant) Mr D Kell SC/Mr M Pulsford (First Respondent) Submitting appearance (Second Respondent) Solicitors: Lion Legal (Applicant) Office of Director of Public Prosecutions (NSW) (First Respondent) Crown Solicitor's Office (Second Respondent) File Number(s): 2017/302312 Decision under appeal Court or tribunal: District Court Jurisdiction: Criminal Date of Decision: 6 May 2015 Before: G D Woods QC DCJ File Number(s): 2014/16691 [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.] Judgment 1. BASTEN JA: On 17 January 2014 the applicant was charged with an offence under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The offence involved intimidating a 14 year old girl with the intention of causing her to fear physical or mental harm. He appeared before Magistrate Mijovich on 15 October 2014 and was convicted. Given the likely effect of his conviction, no penalty was imposed. He lodged an appeal to the District Court. On 6 May 2015 Judge G D Woods QC was satisfied that the offence was proven beyond a reasonable doubt and dismissed the appeal. 2. On 22 May 2015 the applicant purported to lodge a notice of intention to appeal to the Court of Criminal Appeal, but the notice was correctly rejected as incompetent, there being no appeal to that Court from a decision of the District Court in its criminal jurisdiction on appeal from the Local Court. (The applicant has had legal representation at all stages.) 3. Nothing then happened for a period of 15 months, until, on 12 December 2016, the applicant's solicitor wrote to the associate to the judge requesting that he state a case to the Court of Criminal Appeal, pursuant to s 5B of the Criminal Appeal Act 1912 (NSW). 4. On 13 December 2016 the associate responded to the applicant's solicitor stating that the judge was of the view that the matter did not fall within s 5B of the Criminal Appeal Act, since the matter was one of fact, and that he had declined to state a case. 5. Almost 10 months later, on 6 October 2017, the applicant (with continuing legal representation) filed a summons seeking judicial review of the judgment of Woods DCJ, without reference to his refusal to state a case. An amended summons, filed on 31 October, for the first time challenged the refusal. 6. In December 2016, Judge Woods had no power to state a case to the Court of Criminal Appeal. Section 5B of the Criminal Appeal Act requires that any question of law which is submitted to the Court of Criminal Appeal for determination must be submitted no later than 28 days after the determination of the appeal proceedings in the District Court, unless the Court of Criminal Appeal allows a longer period. [1] No request was made to Judge Woods until some 19 months after the conviction had been confirmed in the District Court. At no stage has the Court of Criminal Appeal extended time; indeed, at no stage has the Court of Criminal Appeal been asked to extend time. The District Court has no power to extend time under s 5B(2). 7. The applicant's failures to act in a timely fashion did not end there. Pursuant to the Uniform Civil Procedure Rules 2005 (NSW), r 59.10, proceedings for judicial review must be commenced within three months of the date of the decision. The proceedings in this Court were not commenced within that period. Although there is power to extend time, this Court will not extend time unless there is both a sufficient explanation for the delay and it is in the interest of justice to grant an extension. In respect of the latter element, the applicant needed to demonstrate that he had reasonable prospects of setting aside the refusal of the District Court judge to state a case. 8. The judge refused to state a case on 13 December 2016 on the basis that the proposed questions of law were in truth questions of fact. As counsel for the Director submitted and counsel for the applicant accepted, of the 10 questions, nine were undoubtedly not questions of law. The other (second) question, was in the following terms: "Are the stated facts, limited to the prosecution case as particularised, capable of proving beyond reasonable doubt that the appellant intended to cause B to fear physical or mental harm, in support of a finding of guilt under s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW)?" 1. Whether or not particular findings of fact are capable of supporting a conviction may involve a question of law. However, to identify a question of law for the purposes of this form of appeal on a question of law it is necessary to identify the element of the offence which was in issue on the appeal and identify the findings of fact which were relied upon to support that element. As formulated, the question did not identify any specific element of the offence, nor did it refer to the findings of fact made by the judge. 2. What may have been intended was that the conduct of the applicant was not capable of constituting intimidation for the purposes of the offence. If such a question had been raised, it would have been necessary to identify the respect in which the judge was said to have erred. That was not done in the draft stated case. 3. Before this Court the applicant submitted that the judge's finding of intimidation was not directed to the conduct particularised by the prosecutor. The conduct particularised was said to involve three elements, namely the applicant getting on to the bus, making intimidatory gestures toward the victim and speaking intimidatory words. However, the stated case itself referred to the three elements of the prosecution case both conjunctively and disjunctively. There is no substance in the submission that the judge would have erred in law in convicting on the basis that fewer than all three particulars were made good. 4. There was also a suggestion in the course of oral submissions that the evidence taken as a whole was not capable of supporting a finding of intimidation in the respect found by Woods DCJ. Although not clearly covered by any question in the proposed stated case, there was in any event no substance in the submission. 5. In these circumstances, the proposition that the judge erred in refusing to state a case is not reasonably arguable. It is not necessary to consider whether the explanations for the delays would warrant an extension of time, had there been any substance in the proposed ground. [2] The extension of time within which to pursue such a claim should be refused. The applicant must pay the Director's costs in this Court. 6. MACFARLAN JA: I agree with Basten JA. 7. I add that although the applicant's draft stated case purported to describe the judge's factual findings which were said to reveal the error alleged, the description was neither complete nor satisfactory. 8. MEAGHER JA: I agree with Basten JA and with the additional observation of Macfarlan JA. ********** Endnotes 1. That is not to say the judge may not settle a draft case provided by a party, but it cannot be submitted to the Court of Criminal Appeal until the latter has granted leave: Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185 at [5]; Elias v Director of Public Prosecutions [2012] NSWCA 302; 222 A Crim R 286 at [13]-[14]. 2. See, however, Elias at [10]-[16]. 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: 14 May 2018