District Court New South Wales Medium Neutral Citation: R v Jankovic [2019] NSWDC 186 Hearing dates: 1 May 2019 Date of orders: 06 May 2019 Decision date: 06 May 2019 Jurisdiction: Criminal Before: P Conlon SC ADCJ Decision: Application refused Catchwords: CRIMINAL LAW – Application for stated case – notice of motion – question of law – conviction appeal – breach of AVO – unlawful arrest Legislation Cited: Criminal Appeal Act s 5B(2) Law Enforcement (Powers and Responsibilities) Act s 99 Supreme Court Act s 69 Cases Cited: Elias v DPP 2012 NSW CA 302 Grajewski v DPP NSW (2017) NSW CCA Texts Cited: Nil Category: Principal judgment Parties: Rodna Jankovic (Applicant) The Director of Public Prosecutions (Respondent) Representation: Counsel: T Molomby SC (Applicant) B Baker (Crown Prosecutor ODPP) Solicitors: O'Brien Criminal and Civic Solicitors (Applicant) File Number(s): 2016/00093524 Judgment 1. On 1 May 2019 an application was before the Court by way of notice of motion requesting that a case be stated in the Court of Criminal Appeal, pursuant to s 5B(2) of the Criminal Appeal Act. The application was in respect of conviction appeal proceedings concluded in the Downing Centre District Court on 4 October 2017. 2. The appeal in the District Court was in respect of convictions for one charge of resisting officer in the execution of duty and two charges of intimidating a police officer. Those convictions were recorded in the Local Court (Downing Centre) on 15 February 2017. 3. The background to those charges was that an apprehended violence order was made against the applicant in favour of the person named ME. On the 25 March 2016 that person made a statement to the police alleging that the applicant had breached that order. It was not in dispute that a breach had occurred. 4. On 28 March 2016 a police officer attended the applicant's home at Lane Cove North. Following a conversation with the applicant in which the applicant made admissions to the breach, the police officer informed her that she was under arrest for a breach of the AVO, followed by a caution and an indication she would be taken back to the Chatswood Police Station. Shortly thereafter there was conduct by the applicant that led to her being charged with the abovementioned offences. 5. The case was then argued on the basis of what I have termed was a single issue, namely that she should be found not guilty owing to the arrest being unlawful, as it was asserted the terms of s 99 of the Law Enforcement (Powers and Responsibilities) Act had not been complied with. 6. As earlier indicated, that conviction appeal was dismissed on 4 October 2017. 7. The Notice of Motion seeking the stated case framed the suggested question of law as follows: "Was the evidence capable of establishing beyond reasonable doubt that leading Senior Constable Drylie was satisfied that the arrest of the applicant was reasonably necessary for one or more of the reasons set out in s 99(1)( b) of the Law Enforcement (Powers and Responsibilities) Act 2002." 1. Mr Molomby of Senior Counsel appeared for the applicant on the Notice of Motion and Ms Baker, Crown Prosecutor appeared on behalf of the Director of Public Prosecutions. 2. Section 5B(1) provides that a Judge of the District Court may submit any question of law arising on any appeal to the District Court in its criminal and special jurisdiction coming before the Judge to the Court of Criminal Appeal for determination and the Court of Criminal Appeal may make any such order or give any such directions to the District Court as it thinks fit. 3. Subsection (2) provides: "At the request of a person who was a party to appeal proceedings referred to in subs (1) a question of law may be submitted under the subsection to the Court of Criminal Appeal even though the appeal proceedings during which the question arose had been disposed of. The question of law must be submitted not later than 28 days after the end of the appeal proceedings or within such longer period as the Court of Criminal Appeal may allow". 1. In Elias v DPP 2012 NSW CA 302 Basten JA at paragraph 9 stated inter alia: "Thus at least in the first instance the District Court Judge must be satisfied that a relevant question of law has been identified before there can be a duty to submit the question to the Court of Criminal Appeal". 1. I accept the proposition advanced by Mr Molomby that a question whether facts found are capable supporting a conviction can constitute a question of law. See Grajewski v DPP NSW (2017) NSW CCA 251. 2. Whilst not specifically advanced by either party, I can accept that a finding of fact will amount to an error of law if the decision maker could not reasonably have reached the decision on the evidence before him or her. 3. Concerning the present application in respect of the suggested question of law, Mr Molomby was able to refine his submission this way. He took no issue that s 99(1)(a) had been satisfied, that is, that a police officer may, without a warrant arrest a person if (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence. However he contended that in respect of s 99(1)(b) the evidence was insufficient in respect of the police officer being satisfied that the arrest was reasonably necessary for any one or more of the reasons set out in (i) to (ix) within the subsection. 4. Mr Molomby submitted that there was no evidence forthcoming from the officer that he was satisfied that the arrest was "reasonably necessary". 5. A reading of the transcript of the conviction appeal judgment makes it clear I was of a different view. The officer gave evidence, which I accepted, that prior to attending the applicant's premises that he read the event number containing details of the alleged breach of the apprehended violence order. In the course of his initial conversation with the applicant he said "we're here in relation to a breach of an AVO with a M". 6. After ascertaining that the applicant had indeed sent the complained of text messages, he proceeded to advise the applicant he was arresting her for the breach of the AVO and he then cautioned her. 7. On p 5 of the appeal judgment transcript the following questions and answers of the officer's evidence were noted: "Q. What do you say was the purpose of the arrest? A. I believe it was in order to protect the victim. Q. On what information were you basing that? A. The fact that she had breached an apprehended violence order that was in place to protect the victim. Q. So it was solely because there had been a breach? A. I believe that there was a reason why that apprehended violence order was in place by the Court and therefore I believe her breach, it did pose a risk to the victim." 1. Mr Molomby submitted that such evidence only went to the "purpose of the arrest" and did not deal with whether the officer was satisfied the arrest was reasonably necessary for any one or more of the reasons set out in the section. 2. A court is able to draw inferences from the evidence as a whole. The overwhelming inference from the evidence of the officer is that he considered the arrest was reasonably necessary to "protect the safety and welfare of the victim", seeing that there was an admitted breach of the AVO. 3. In Elias v DPP reference was made to observations of Jordan CJ in ex parte McGavin; re Berne and others (1946) 46 SR 58 in respect of the duty of the District Court Judge, (then Chairman of Quarter Sessions) to state a case. 4. Jordan CJ stated inter alia: "In my opinion it is the duty of a Chairman of Quarter Sessions to submit to the Court of Criminal Appeal any question of law which either party to the appeal may raise and ask to be submitted, unless in his opinion the question is so obviously frivolous and baseless that its submission would be an abuse of process." 1. That is the position that I have come to in respect of the present application and it will be refused. 2. However I also wish to comment in respect of the very considerable delay from the completion of the conviction appeal on 4 October 2017 and the making of the present application. 3. On 1 April 2019 the District Court criminal registry forwarded me an email from a Ms Meri Ayala clerk at O'Brien Criminal and Civil Solicitor Pty Limited, attaching a letter from Mr Stuart O'Connell (same firm) requesting that a case be stated. On 3 April 2017 the criminal registry, following my request forwarded to me my appeal judgment that was delivered on 4 October 2017. On 5 April 2019 I directed the criminal registry to advise O'Brien lawyers that the matter should be placed back before me by way of Notice of Motion to hear submissions in respect of the application to state a case. The parties indicated they would be available on 1 May 2019 and the matter was then set down for hearing. 4. Section 5B(2) states in part that: "The question of law must be submitted not later than 28 days after the end of the appeal proceedings or within such longer period as the Court of Criminal Appeal may allow." 1. So clearly any extension is a matter for the Court of Criminal Appeal. In the course of the present application Mr Molomby tendered an affidavit of Stuart O'Connell, solicitor dated 29 January 2019. That affidavit has been marked as exhibit 1. It was apparently prepared in respect of seeking a judicial review pursuant to s 69 of the Supreme Court Act. I believe that matter is still pending in the Court of Appeal and thus must involve a question of jurisdictional error. 2. A similar situation confronted the Court in Elias v DPP. There the Court held that the primary route for challenge to a judgment in the criminal jurisdiction of the District Court, should be to the Court of Criminal Appeal. It went on to state that while there may be a potential abuse of process in pursuing relief in two jurisdictions at once, it will usually be the proceeding by way of judicial review, which should be discontinued. 3. However with reference to Mr O'Connell's affidavit concerning delay, it refers to legal aid funding being granted for "merit advice" on 15 March 2018. I note that is some six months after the conclusion of the appeal proceedings. The affidavit then states that the "merit advice" was unable to be finalised until 27 September 2018 due to transcript of my decision not being available until 2 September 2018 (when there was a request for a revision of my judgment, I attended to it from my memory within about seven days of receiving that application). 4. In Elias v DPP, Basten JA at para 15 made reference to the availability or unavailability of written versions of judgments he said: "That factor which will arise in almost all cases in which extempore judgments are delivered, whether in this court or in a District court is of quite limited weight. At least in circumstances where the offender is represented. It is the duty of the lawyer who is present at the hearing to take an adequate note of extempore reasons." 1. In the conviction appeal proceedings it was in fact the author of the affidavit Mr O'Connell that appeared for the applicant on the appeal. 2. The affidavit goes on to refer to an application being made to legal aid for funding to make the s 69 application and that approval for that funding was notified on 8 January 2019. There is simply no mention of when it was decided to make a request under s 5B of the Criminal Appeal Act and nothing advanced to justify a delay of over 18 months. 3. In Elias v DPP the appeal decision in the District Court occurred on 18 May 2011. On 17 November 2011 a draft stated case was forwarded to the DPP. There was a hearing in the District Court on 17 February 2012 in respect of the application to state a case. After dealing with the chronology Basten JA stated at para 12: "Such a lackadaisical approach on the part of the applicant and the manner in which it was dealt with in the District Court were inconsistent with the terms of s 5B of the Criminal Appeal Act." 1. At para 17 Basten JA stated: "It is not the job of the trial Judge to pre-empt the power of the Court of Criminal Appeal to extend time but where there is no arguable basis for extending time the trial Judge may refuse to state a case being satisfied that the application would be hopeless." 1. As earlier indicated this application is refused. ********** 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: 17 May 2019