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Court of Criminal Appeal 7 March 2018

Tritton v Clarke

[2018] NSWCCA 31

Other
CRIMINAL LAW CRIMINAL APPEAL ACT S 5B STATED CASE S 35(2) FISHERIES MANAGEMENT ACT 1994 CONSIDERATION OF STATED CASE PROCEDURE LAW REFORM

Citation: Tritton v Clarke [2018] NSWCCA 31
Court: Court of Criminal Appeal, New South Wales
Date: 7 March 2018
Judges: Hoeben CJ at CL; White JA; Fullerton J

Background

A respondent was convicted in the Local Court of possessing fish illegally taken under s 35(1) of the Fisheries Management Act 1994 (NSW). The fish in question were 98.6 kilograms of undersized pipis, representing approximately 40% of a delivery the respondent had received and then transported to a fishermen's co-operative. The Magistrate imposed a $500 fine and ordered payment of $10,000 in professional costs.

On appeal to the District Court, the respondent successfully invoked the statutory defence under s 35(2) of the Act, which provides that it is a defence if the person charged satisfies the court they could not reasonably have known the fish had been illegally taken. The District Court found the defence was made out, allowed the appeal, and set aside the conviction and associated orders.

The applicant, the Director of Fisheries Compliance, then sought to have two questions submitted to the Court of Criminal Appeal by way of stated case under s 5B of the Criminal Appeal Act 1912 (NSW). The stated case was submitted and filed outside the 28-day statutory timeframe, requiring an application for an extension of time.

  • Whether the two questions submitted by the District Court judge were in fact questions of law (as required by s 5B), or were questions of fact or mixed questions of fact and law
  • Whether the first question, concerning the proper construction of the s 35(2) defence, actually arose on the appeal to the District Court
  • Whether the second question, concerning whether the District Court applied the correct test, was a question of law amenable to the stated case procedure
  • Whether an extension of time should be granted for the submission of the stated case
  • The scope and limitations of the s 5B stated case procedure more generally

Decision

The first question: White JA held that the first question submitted, whether the s 35(2) defence requires consideration of surrounding circumstances, admitted only one answer: yes. The surrounding circumstances of an individual case must necessarily be considered when assessing what a person could reasonably have known. However, the critical point was that this question did not actually arise on the District Court appeal. The stated findings of fact showed the District Court had in fact considered the surrounding circumstances; no error of law in the application of the defence was apparent from the stated case itself.

The second question: White JA held the second question, whether the District Court applied the correct test, was not a question of law at all. It was, in substance, a challenge to factual findings. The stated case procedure does not permit an appellate court to revisit or challenge findings of fact. The court noted that without the District Court's reasons being appended to the stated case, there was an additional barrier to examining the alleged error, and findings of fact contained in the stated case could not be impugned through this procedure.

The stated case procedure: White JA took the opportunity to clarify the significant limitations of the s 5B procedure. The Court cannot refer to material outside the stated case, cannot draw inferences about additional facts not expressly stated, and cannot treat the mechanism as a substitute avenue of appeal on factual grounds. White JA noted, without deciding, that there may be an argument that s 5B does not strictly require the stated case form, given the section's heading is not part of the Act. That question was left open as it was not raised by the parties.

Extension of time: Because neither question was appropriate for determination, the application for an extension of time to submit the stated case was refused. Granting the extension would have served no purpose.

Orders Made

  • The applicant's application for an extension of time to submit the questions contained in the case stated was refused.
  • No order as to costs was made.

Key Takeaways

  • Under s 35(2) of the Fisheries Management Act 1994, the defence of not reasonably knowing fish were illegally taken necessarily requires consideration of the surrounding circumstances of the individual case; that is the only tenable construction of the provision.
  • The stated case procedure under s 5B of the Criminal Appeal Act 1912 is not an avenue of appeal on questions of fact; findings of fact recorded in the stated case are not open to challenge through this mechanism.
  • A question submitted under s 5B must genuinely be a question of law, and it must have actually arisen in the District Court appeal; a question that admits only one obvious answer, or that does not reflect any genuine dispute in the proceedings below, will not be answered.
  • Where a judge's reasons for judgment are not appended to the stated case, the Court of Criminal Appeal is confined entirely to the material within the four corners of the stated case itself.
  • White JA noted, without resolving, that a textual argument may exist that s 5B does not strictly prescribe the stated case form as the required procedure, given the section heading is not part of the Act; that question remains open for future consideration.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5B
- Fisheries Management Act 1994 (NSW), s 35(1), s 35(2)
- Interpretation Act 1987 (NSW), s 35(2), (3)

Cases:
- Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
- Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41
- Castlebar Holding v Riley [2005] NSWCCA 105
- Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389
- Grajewski v Director of Public Prosecutions (NSW) [2017] NSWCCA 251
- Hammond v The Queen (2013) 85 NSWLR 313; [2013] NSWCCA 93
- Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47
- Lavorato v The Queen (2012) 82 NSWLR 568; [2012] NSWCCA 61
- R v Bates [2007] NSWCCA 297
- R v Chan (1992) 28 NSWLR 421
- R v Madden (1995) 85 A Crim R 367
- R v Rigby (1956) 100 CLR 146
- Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185
- Thomas v The King (1937) 59 CLR 279