Citation: Cmunt, Jiri v New South Wales Commissioner of Police; Cmunt, Marie v New South Wales Commissioner of Police [2019] NSWCCA 177
Court: Court of Criminal Appeal
Date: 2 August 2019
Judges: Simpson AJA; Walton J; Adamson J
Background
Mr and Mrs Cmunt were convicted and sentenced in the Local Court at Queanbeyan for separate counts of failing to comply with a noise abatement order under the Protection of the Environment Operations Act 1997 (NSW). Mr Cmunt was fined $3,000 and Mrs Cmunt $2,500. Wishing to appeal, they sought guidance from Local Court registry staff on the correct avenue.
Registry staff incorrectly directed them to appeal to the District Court and provided them with the relevant forms. The appeals were filed in the District Court in June and August 2017. By November 2017, the District Court struck out those appeals for want of jurisdiction, correctly identifying that appeals against convictions under the relevant provision could only be heard by the Land and Environment Court.
By the time the District Court dismissed the appeals, both the 28-day period for filing an appeal to the Land and Environment Court and the three-month window for seeking leave to appeal out of time had expired. Mr and Mrs Cmunt nonetheless filed summonses in the Land and Environment Court in December 2017. When those summonses came before the primary judge, he expressed discomfort at the outcome but concluded he had no choice but to strike them out. Before doing so, he stated a question of law to the Court of Criminal Appeal under s 5BA(1) of the Criminal Appeal Act 1912 (NSW).
Legal Issues
- Whether the primary judge erred in concluding that the District Court's orders striking out the appeals for want of jurisdiction required him to strike out the summonses filed in the Land and Environment Court out of time.
- Whether the stated case procedure was properly invoked and whether the question submitted to the Court of Criminal Appeal was a valid question of law.
Decision
The Court of Criminal Appeal identified a threshold problem with the stated case before addressing the substantive question. The question as framed asked "Did I err in concluding that...?", which the Court characterised as a question of mixed fact and law, not a pure question of law. A properly formulated stated case must pose a question of law, not ask whether the primary judge erred in a particular conclusion. The Court also noted that the stated case did not set out the underlying facts as required, though in this instance the facts were not in dispute and could be identified from the record.
Despite those procedural deficiencies, the Court was able to identify the relevant facts and address the substance of the matter. On those facts, the primary judge's decision was described as "inevitable and plainly correct." The Land and Environment Court had no jurisdiction to entertain the appeals because they were filed after both the appeal period and the leave period had expired. The District Court had correctly struck out the earlier appeals. There was no error of law in the primary judge's decision.
The Court answered the stated question "No" but was candid about the outcome. Mr and Mrs Cmunt had been deprived of a right of appeal through no fault of their own, solely because of incorrect advice from Local Court registry staff. The Court noted that assertions made in their written submissions might, if tested, have supported an acquittal, but no court retained jurisdiction to evaluate those claims. The Court noted the possibility of Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW) as a potential avenue, without expressing any view on its applicability.
Orders Made
• The question submitted should be answered "No"
Key Takeaways
- Under s 31 of the Crimes (Appeal and Review) Act 2001 (NSW), the Land and Environment Court is the only court with jurisdiction to hear appeals against Local Court convictions for environmental offences. The District Court has no such jurisdiction.
- A stated case submitted under s 5BA(1) of the Criminal Appeal Act 1912 (NSW) must contain all relevant facts underpinning the primary judge's decision and must pose a pure question of law. A question asking whether the judge "erred in concluding" something is a question of mixed fact and law and does not satisfy that requirement.
- The 28-day appeal period and three-month leave period under ss 31 and 33 of the Crimes (Appeal and Review) Act are strictly applied. Filing an appeal in the wrong court does not suspend or extend those time limits.
- Incorrect procedural advice given by court registry staff, while producing a plainly unjust outcome, did not give the courts any jurisdiction to reopen the matter once all statutory time limits had expired.
- No error was established in the primary judge's decision to strike out the out-of-time summonses in the Land and Environment Court. The question stated was answered in the negative by the full bench.
Legislation and Cases Referenced
Legislation
- Crimes (Appeal and Review) Act 2001 (NSW), ss 31, 33
- Criminal Appeal Act 1912 (NSW), s 5BA(1)
- Protection of the Environment Operations Act 1997 (NSW), s 277(1)(b)
Cases
- Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
- Ladbrokes Digital Australia Pty Ltd v Liquor & Gaming NSW [2019] NSWCCA 26
- Lavorato v R (2012) 82 NSWLR 568; [2012] NSWCCA 61
- Talay v R [2010] NSWCCA 308