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Court of Criminal Appeal 16 December 2010

Talay v R

[2010] NSWCCA 308

Theft & property
CRIMINAL LAW APPLICATION FOR EXTENSION OF TIME DELAY LARGELY UNEXPLAINED APPLICATION REFUSED CRIMINAL LAW APPEAL BY STATED CASE

Citation: Talay v R [2010] NSWCCA 308
Court: New South Wales Court of Criminal Appeal
Date: 16 December 2010
Judge(s): Simpson J (at [1]); Schmidt J (at [59]); Howie AJ (at [60])

Background

The applicant had been convicted in the Local Court of breaking and entering a shop and stealing property on 31 January 2009. He appealed to the District Court, where Nield ADCJ heard the appeal on 25 March 2010 and dismissed it on 1 April 2010, confirming both conviction and sentence.

Following that dismissal, the applicant's legal representatives approached Nield ADCJ to submit a question of law to the Court of Criminal Appeal under the stated case procedure provided by s 5B(2) of the Criminal Appeal Act 1912. Critically, no notice of this approach was given to the Director of Public Prosecutions or any representative of the prosecution. The stated case was ultimately submitted on 25 June 2010, some 90 days outside the 28-day statutory time limit.

The applicant therefore required both an extension of time and a favourable ruling on the stated case itself. The Court of Criminal Appeal examined the procedural validity of the stated case as well as the merits of the underlying application.

  • Whether an extension of time should be granted, given the application was filed approximately 90 days late with only partial explanation for the delay
  • Whether the failure to notify the prosecution of the request to submit a stated case was a fundamental procedural flaw
  • Whether the stated case, as formulated, was defective in its content and form
  • Whether the stated case procedure had been otherwise properly followed

Decision

The Court refused the extension of time. The applicant's solicitor explained part of the delay by reference to awaiting a transcript, which was expected by 30 April 2010. However, the period from approximately 30 April to 25 June remained wholly unexplained. Simpson J considered the serious procedural defects in the stated case itself and the merits of the applicant's argument, and concluded that an extension ought to be refused.

The Court identified the failure to notify the prosecution as a fundamental flaw in the entire process. Although a judge is generally obliged to state a case when requested (provided the question is not frivolous), the settling of a stated case, including the statement of facts and the formulation of questions, is a matter in which the opposing party has a legitimate interest and an entitlement to contribute. Here, the prosecuting authority was given no notice of the approach to Nield ADCJ and no opportunity to be heard on the form of the stated case.

The stated case itself was found to be defective in multiple respects. The formulation of the questions of law was inadequate, and the stated case failed to include all the ultimate facts found by the judge, a requirement the Court described as absolutely essential to the procedure. An attempt by senior counsel for the applicant at the hearing to have the Court amend the stated case was met with expressed doubt that such a power existed, and the matter was never returned to the District Court judge for correction.

Howie AJ added that the procedure is well-established and extensively documented in authority, and that the applicant had failed on multiple fronts: ignoring the prosecution's procedural role, failing to comply with the technical requirements of a properly drawn stated case, and substantially disregarding the statutory time limit. His Honour also observed that the bulk of submissions placed before the Court was not grounded in evidence or contentions raised before the District Court below.

Orders Made

  • The application for extension of time was refused.

Key Takeaways

  • Under s 5B(2) of the Criminal Appeal Act 1912, a party seeking to submit a question of law by stated case must do so within 28 days of the conclusion of the appeal proceedings, unless the Court of Criminal Appeal grants a longer period; an unexplained gap in the delay will weigh against any extension.
  • The Court of Criminal Appeal confirmed that the stated case procedure requires the involvement of both parties at the drafting and preparation stage, and that approaching a judge to state a case without notifying the prosecution constitutes a fundamental breach of procedural fairness.
  • A valid stated case must contain, at minimum, a statement of all ultimate facts found by the judge; annexing a judge's reasons does not satisfy this requirement.
  • In dismissing the application, the Court noted that the stated case procedure is technical and formalistic, and that defects cannot simply be remedied by an application to amend before the Court of Criminal Appeal if no power to do so exists.
  • No error of law was identified in the District Court's dismissal of the applicant's appeal against his conviction and sentence for break, enter and steal.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5B(1), 5B(2)
- Evidence Act 1995 (NSW)

Cases
- City of Hawthorn v Victorian Welfare Association [1970] VR 205
- Collins v State Rail Authority of NSW (1986) 5 NSWLR 209
- DPP v Cassell (1995) 80 A Crim R 160
- Ex parte McGavin; Re Byrne (1945) 46 SR (NSW) 58
- Industrial Equity Ltd v Commissioner for Corporate Affairs [1990] VR 780
- Melwood Units Pty Ltd v Commissioner of Main Roads [1979] AC 426
- R v GK [2001] NSWCCA 413; 53 NSWLR 317
- R v Madden (1996) 85 A Crim R 367
- R v Milat (1996) 87 A Crim R 446
- R v Rigby [1956] HCA 38; 100 CLR 146
- Re Van der Lubbe (1949) 49 SR 309
- Thomas v The King [1937] HCA 83; 59 CLR 279
- Zukerman v Law Society of New South Wales (1986) 5 NSWLR 292