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Court of Criminal Appeal 21 June 2007

Abreu v DPP

[2007] NSWCCA 183

Traffic & driving
CASE STATED LIMITED NATURE OF PROCEDURE AFFIRMED AFFIRMATIVE ANSWER

Citation: Abreu v DPP [2007] NSWCCA 183
Court: NSW Court of Criminal Appeal
Date: 21 June 2007
Judge(s): Beazley JA, Grove J, Simpson J

Background

The appellant was stopped while driving in Belfield in the early hours of 17 February 2006. A police officer had checked the vehicle registration and learned the owner's licence had been suspended by the RTA three days earlier. When stopped, the appellant acknowledged he was the owner and stated he believed his suspension had not yet begun, having received notification from the RTA.

The matter was prosecuted in the Local Court and then appealed to the District Court. In the District Court, Bennett DCJ found that the police officer was not required to administer a formal caution until the appellant acknowledged receiving notification of the suspension, at which point sufficient evidence of the offence existed. His Honour excluded the portion of the conversation occurring after that acknowledgment, but ultimately dismissed the appeal, finding the honest and reasonable mistake defence was not made out.

The appellant then sought to challenge aspects of that ruling through a Case Stated to the Court of Criminal Appeal under s 5B of the Criminal Appeal Act 1912. A Case Stated is a formal procedure by which a judge poses specific questions of law to a higher court; it is not an appeal against the outcome of the case.

  • Whether Bennett DCJ erred in law by finding it was reasonable for the police officer not to administer a caution until the appellant acknowledged receiving RTA notification of his licence suspension (Question 1, relating to ss 138 and 139 of the Evidence Act 1995)
  • Whether, having determined that s 139(5)(a) of the Evidence Act did not apply to part of the conversation, his Honour erred by failing to consider whether the same evidence should have been excluded under ss 139(5)(b) and (c) of the Evidence Act (Question 2)

Decision

On Question 1, the Court of Criminal Appeal declined to answer. Grove J identified the question as defective on its face: it asked broadly about the belief of "a police officer" rather than about the specific finding made by his Honour. More fundamentally, his Honour's conclusion that the officer was "perfectly reasonable" in his belief was a finding of fact, not a question of law. Because a Case Stated is not an appeal against judgment, factual findings cannot be challenged simply by prefacing a question with the words "did I err in law."

On Question 2, the Court answered in the affirmative. The Crown Prosecutor conceded before the Court of Criminal Appeal that submissions concerning ss 139(5)(b) and (c) had in fact been made in the District Court. Yet the Case Stated contained no finding by his Honour on those provisions, and no finding that the provisions were immaterial or that no relevant evidence existed. In those circumstances, the Court held that his Honour should have considered those issues and that an omission to rule on a material issue raised in argument constituted a presumptive error of law.

The Court was careful to note that it was not itself resolving what the answer to that consideration should have been. The Case Stated procedure confined the Court to answering the questions put, and the substance of the admissibility issues under ss 139(5)(b) and (c) remained for the District Court to determine on remittal.

Orders Made

  • Question 1: Declined to answer
  • Question 2: Answered in the affirmative (yes, the issues under ss 139(5)(b) and (c) should have been considered)
  • The Case Stated remitted to the District Court to be dealt with accordingly
  • The respondent to pay the appellant's costs of the Case Stated
  • Extension of time for lodging of the Case Stated granted

Key Takeaways

  • A Case Stated under s 5B of the Criminal Appeal Act 1912 is strictly limited to answering the specific questions of law posed; it is not an avenue to challenge findings of fact or the ultimate outcome of the proceedings.
  • Questions posed in a Case Stated must be genuine questions of law. Framing a challenge to a factual finding as a legal error does not convert it into an answerable question of law.
  • Where submissions on a particular statutory provision are made during a hearing, the failure to make any ruling on those submissions, and the absence of any finding that the issue was immaterial, may constitute a presumptive error of law.
  • Under the approach affirmed by reference to R v Madden, if a party wishes to rely on a finding, express or implied, or on the omission of a finding, that matter should be clearly set out in the body of the Case Stated itself.
  • Remitting the matter to the District Court was the appropriate course; the Court of Criminal Appeal confirmed it was not the forum to resolve the outstanding admissibility questions under ss 139(5)(b) and (c) of the Evidence Act 1995.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5B
- Evidence Act 1995 (NSW), ss 138, 139, 139(1)(c), 139(5)(a), 139(5)(b), 139(5)(c)

Cases:
- Thomas v The King (1937) 59 CLR 279
- R v Madden (1995) 85 A Crim R 367
- Robinson v Woolworths [2005] 158 A Crim R 546
- Proust v Blake (1989) 17 NSWLR 267