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District Court 6 May 2019

R v Jankovic

[2019] NSWDC 186

Public order & justice offences
CRIMINAL LAW APPLICATION FOR STATED CASE NOTICE OF MOTION QUESTION OF LAW CONVICTION APPEAL BREACH OF AVO

Citation: R v Jankovic [2019] NSWDC 186
Court: District Court of New South Wales
Date: 6 May 2019
Judge: P Conlon SC ADCJ

Background

The applicant had been convicted in the Local Court of resisting an officer in the execution of duty and two counts of intimidating a police officer. Those charges arose after a police officer attended her home to investigate an admitted breach of an apprehended violence order (AVO) and placed her under arrest. The conduct leading to the charges occurred shortly after the arrest.

The applicant appealed her convictions to the District Court, arguing that the arrest was unlawful because the arresting officer had not complied with section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA). That appeal was dismissed on 4 October 2017.

More than 18 months later, the applicant filed a notice of motion seeking to have a question of law stated to the Court of Criminal Appeal under section 5B(2) of the Criminal Appeal Act. The application was heard on 1 May 2019.

  • Whether the evidence was capable of establishing beyond reasonable doubt that the arresting officer was satisfied the arrest was "reasonably necessary" for one or more of the reasons set out in section 99(1)(b) of LEPRA, as required to make the arrest lawful.
  • Whether that question constituted a proper question of law suitable for referral to the Court of Criminal Appeal under section 5B of the Criminal Appeal Act.
  • Whether, given the substantial delay since the conclusion of the appeal, the application was so hopeless that it should be refused at the District Court level.

Decision

The applicant conceded that section 99(1)(a) of LEPRA was satisfied: the officer had reasonable grounds to suspect a breach of the AVO had occurred. The contested issue was section 99(1)(b), which requires the officer to be satisfied that arrest is reasonably necessary for one or more specified purposes, including protecting the safety and welfare of a victim.

Senior Counsel for the applicant argued that the officer's evidence addressed only the "purpose" of the arrest and did not directly speak to whether he was satisfied it was "reasonably necessary." The judge rejected that distinction. Drawing on the officer's evidence that he believed the breach posed a risk to the victim and that the AVO existed for a reason, the court concluded the overwhelming inference was that the officer did consider the arrest reasonably necessary to protect the victim's safety and welfare.

The judge accepted the principle from Grajewski v DPP NSW that whether found facts are capable of supporting a conviction can constitute a question of law, and that a finding of fact may amount to a legal error if no reasonable decision-maker could have reached it on the evidence. However, on the facts here, the judge found the proposed question was so obviously without foundation that its submission to the Court of Criminal Appeal would amount to an abuse of process.

The judge also noted the significant delay of over 18 months between the conclusion of the conviction appeal and the present application. Referring to Elias v DPP and the observations of Basten JA in that case, the judge observed that the explanation for the delay (centred on legal aid funding timelines and the unavailability of a written judgment) was inadequate. Nothing in the material explained when or why the section 5B route was chosen, and the delay provided an independent basis for concern about the application's prospects before the Court of Criminal Appeal.

Orders Made

The application to state a case to the Court of Criminal Appeal was refused.

Key Takeaways

  • Under section 5B(2) of the Criminal Appeal Act, any extension of the 28-day time limit for submitting a stated case is a matter for the Court of Criminal Appeal, not the District Court. However, a District Court judge may refuse to state a case where there is no arguable basis for extending time and the application would be hopeless.
  • A question of whether facts found are capable of supporting a conviction can constitute a question of law for the purposes of section 5B, following Grajewski v DPP NSW.
  • Where an arresting officer's evidence establishes that a breach of an AVO posed a risk to the victim and that was the reason for the arrest, a court may draw the inference that the officer was satisfied arrest was reasonably necessary to protect the victim's safety and welfare under section 99(1)(b) of LEPRA, without the officer having used those precise words.
  • Relying on the unavailability of a written extempore judgment to explain delay carries limited weight, particularly where the applicant's solicitor was present at the hearing and had a duty to take an adequate note of the reasons.
  • An application to state a case may be refused as an abuse of process where the proposed question is so obviously frivolous and baseless that referral to the Court of Criminal Appeal is not warranted, applying the test in Elias v DPP.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act, s 5B(2)
- Law Enforcement (Powers and Responsibilities) Act 2002, s 99
- Supreme Court Act, s 69

Cases
- Elias v DPP [2012] NSWCA 302
- Grajewski v DPP NSW [2017] NSWCCA 251
- Ex parte McGavin; re Berne and others (1946) 46 SR 58