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8
Court of Criminal Appeal 28 August 2020

Orr v Cobar Management Pty Limited

[2020] NSWCCA 220

Also reported as (2020) 103 NSWLR 36
Other
CRIMINAL PROCEDURE WHETHER DE FACTO APPEAL MEANING OF QUESTIONS OF LAW.

Citation: Orr v Cobar Management Pty Limited [2020] NSWCCA 220
Court: Court of Criminal Appeal
Date: 28 August 2020
Judges: Bathurst CJ and Bell P (joint judgment); Johnson J; Garling J; Lonergan J (all agreeing)

Background

Cobar Management Pty Limited was prosecuted under s 32 of the Work Health and Safety Act 2011 (NSW) following the death of an employee, Mr James Hern, who drowned on 11 June 2014 while attempting to unblock a drain hole in a flooded sump at one of Cobar's mines. Cobar pleaded not guilty. After a lengthy trial, the District Court primary judge delivered reasons on 27 May 2019 finding that the prosecution had not proven all elements of the offence beyond reasonable doubt.

Rather than making final orders, the primary judge adjourned the matter to allow the prosecutor to consider whether to seek a referral under s 5AE of the Criminal Appeal Act 1912 (NSW). The prosecutor subsequently proposed 26 questions for referral. The primary judge reformulated these into seven questions and submitted them to the Court of Criminal Appeal.

Cobar challenged the referral on several grounds, arguing that the proceedings had effectively concluded with the delivery of the reasons, that the questions were not true questions of law, and that the process amounted to a de facto appeal that exposed Cobar to double jeopardy.

  • Whether the primary judge retained power under s 5AE of the Criminal Appeal Act 1912 to submit questions of law after delivering reasons finding the prosecution had failed to establish two elements of the offence, but before making formal orders.
  • Whether the referral amounted to a de facto appeal or exposed Cobar to double jeopardy.
  • Whether the earlier decisions in EPA v Land and Environment Court (NSW) [2004] NSWCA 50 (the EPA Case) and EPA v Grafil Pty Ltd [2019] NSWCCA 174 were plainly wrong and should be overruled.
  • Whether the questions stated by the primary judge were "questions of law" within the meaning of s 5AE.
  • Whether the Court of Criminal Appeal had a discretion to decline to answer questions even if properly submitted.

Decision

On jurisdiction: The Court held unanimously that the primary judge did have power to submit questions under s 5AE. Because no formal orders had been made, the proceedings had not been "completed" within the meaning of s 5AE(1). The delivery of reasons alone, without final orders, does not mark the completion of proceedings for this purpose.

On double jeopardy and precedent: The Court rejected Cobar's submission that the referral constituted a de facto appeal or exposed it to double jeopardy. The two earlier decisions, the EPA Case and Grafil, were applied rather than overruled, the Court finding no basis to treat them as plainly wrong.

On the character of the questions: The Court held that none of questions 2 to 7 (the substantive questions) were "questions of law" within the meaning of s 5AE. The section is confined to pure questions of law that have not yet been determined by the primary judge, that do not involve questions of fact, and whose character as a question of law is apparent on the face of the question. Questions framed by reference to whether a finding was "open on the facts as found" are mixed questions of fact and law, or are simply disguised challenges to factual conclusions, and fall outside the section's scope.

On discretion: The Court also held that, even where properly framed questions of law are submitted, the Court of Criminal Appeal retains a discretion to decline to answer them where doing so would be inappropriate, such as where the questions are misconceived, lack utility, or would work procedural unfairness on a defendant. However, given the Court's conclusion that the questions here were not questions of law at all, it was unnecessary to resolve whether the discretion should be exercised in this case.

Orders Made

No orders were made in this decision.

Key Takeaways

  • Under s 5AE of the Criminal Appeal Act 1912, the "completion of proceedings" is marked by the making of formal orders, not by the delivery of reasons. A primary judge retains power to submit questions of law in the period after reasons are published but before final orders are entered.
  • Referring questions under s 5AE after reasons adverse to the prosecution have been delivered does not, of itself, constitute a de facto appeal or expose a defendant to double jeopardy, provided no final order has been made.
  • Only "pure questions of law," undetermined by the primary judge, not intertwined with facts, and identifiable as questions of law on their face, are capable of being referred under s 5AE. Questions asking whether a finding was "open on the facts as found" do not satisfy this threshold.
  • The Court of Criminal Appeal confirmed it holds a discretion to decline to answer questions submitted under s 5AE where answering them would lack utility, proceed on a false basis, or cause procedural unfairness to a defendant.
  • Johnson J added observations, drawing on Law Reform Commission recommendations, that the stated case procedure is narrow in purpose and that s 5AE is intended only to provide authoritative assistance on genuine questions of law to a trial judge while proceedings remain on foot, not to replicate appellate review of factual conclusions.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5A, 5AE, 5B, 5BA, 5BB
- Work Health and Safety Act 2011 (NSW), ss 18, 19(1), 32
- Crimes (Appeal and Review) Act 2001 (NSW), ss 107, 108, Pt 5
- District Court Act 1973 (NSW)
- Supreme Court Act 1970 (NSW), s 101A

Cases:
- Environment Protection Authority v Land and Environment Court (NSW) (2004) 144 A Crim R 198; [2004] NSWCA 50
- Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (2019) 101 NSWLR 245; [2019] NSWCCA 174
- Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289; [2004] NSWCA 439
- Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199
- Application of Attorney General (NSW) (2014) 246 A Crim R 150; [2014] NSWCCA 251
- Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
- Collector of Customs v AGFA-Gevaert Limited (1996) 186 CLR 389; [1996] HCA 36
- Bass v Permanent Trustee Company Limited (1999) 198 CLR 334; [1999] HCA 9