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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
Judge(s): Bathurst CJ and Bell P (joint judgment); Johnson J; Garling J; Lonergan J (all agreeing)

Background

A mine operator was prosecuted before the District Court in its summary jurisdiction for an alleged breach of the Work Health and Safety Act 2011 (NSW) following the drowning of a worker in a flooded sump. After a hearing spanning 36 days across 15 months, the primary judge delivered reasons concluding, in unqualified terms, that the prosecution had failed to establish two elements of the offence beyond reasonable doubt. No formal orders were made at that point.

Instead of proceeding to make orders of acquittal, the primary judge granted an adjournment to allow the prosecutor to consider the reasons and decide whether to seek submission of questions of law to the Court of Criminal Appeal under section 5AE of the Criminal Appeal Act 1912 (NSW). The prosecution subsequently proposed 26 questions. The primary judge reformulated and reduced these to six questions and stated them to the Court of Criminal Appeal.

The defendant contended the stated case was impermissible: either the proceedings were already complete (precluding any reference), or the questions were not genuine questions of law. Because the case raised the correctness of earlier Court of Appeal and Court of Criminal Appeal decisions, a bench of five judges was convened.

Legal Issues

  • Whether the District Court had power under section 5AE to submit questions of law after delivering reasons indicating acquittal but before making formal orders
  • Whether the prior decisions of the Court of Appeal (the EPA Case) and the Court of Criminal Appeal (Grafil) were correct and should be followed
  • Whether the six questions submitted were properly characterised as "questions of law" within the meaning of section 5AE
  • Whether, even if the questions were questions of law, the Court of Criminal Appeal had a discretion to decline to answer them
  • Whether the prosecutor's use of section 5AE amounted to a de facto Crown right of appeal against acquittal

Decision

Issue 1: Whether proceedings were complete before formal orders were made

The Court held that proceedings under section 5AE are not completed until final orders are formally made, even where reasons have been delivered that inevitably point to acquittal (at [89]-[101]). The prior decisions in the EPA Case and Grafil, which reached the same conclusion, were correctly decided and not "plainly wrong" as the defendant submitted (at [94]). This is consistent with the well-established jurisprudence under the cognate section 5B, where it has long been understood that a judge retains the power to submit questions until the final order is pronounced (at [90]). The court also noted that a court's judgment is represented by its orders, not its reasons (at [92]).

Issue 2: Whether the stated questions were questions of law

The Court held that questions of law within section 5AE must be "pure questions of law" whose character as such is apparent on the face of the question, without requiring analysis of the facts to determine whether an error exists (at [109]). Questions framed as "Did I err in..." or "Was it open to me to find..." are not questions of law for the purposes of section 5AE (at [110]). None of questions 2 to 7 as submitted met this standard, and the Court had no power to answer them (at [111]).

Issue 3: The Court's discretion to decline to answer

The Court held that section 5AE carries an implied discretion to decline to answer questions even where they are properly characterised as questions of law, including where questions are misconceived, proceed on a false basis, would lack utility, or where late-stage referral would work procedural unfairness on a defendant (at [115]). However, given the conclusion that questions 2 to 7 were not questions of law at all, it was unnecessary to resolve whether that discretion should have been exercised here (at [124]).

Issue 4: The de facto appeal concern

The Court acknowledged the practice of prosecutors seeking adjournments after unfavourable reasons to consider requesting a case stated as raising the concern of a de facto Crown right of appeal against acquittal (at [5]-[7]). However, the Court found the double jeopardy and de facto appeal arguments to be "question begging": their force depended on proceedings being complete before formal orders, which was itself the very question of construction to be resolved (at [98]). The narrow scope of what counts as a question of law under section 5AE provides a significant structural constraint on the use of the provision as a surrogate avenue of appeal.

Orders Made

  • Question 1 answered: the primary judge did not have power to state questions 2 to 7 under section 5AE because those questions were not questions of law for the purposes of that section.
  • Questions 2 to 7: as these were not questions of law within section 5AE, it is inappropriate to answer them.
  • The prosecutor ordered to pay the defendant's costs in the Court of Criminal Appeal.
  • The matter remitted to the primary judge for the making of final orders.

Key Takeaways

  • Proceedings in the District Court's summary jurisdiction are not "completed" for the purposes of section 5AE of the Criminal Appeal Act 1912 until formal orders are made, even where reasons for judgment have been delivered that expressly conclude the prosecution has not proved all elements of the offence (at [89]-[101]).

  • Under section 5AE, only "pure questions of law" may be submitted to the Court of Criminal Appeal: questions whose character as questions of law is apparent on their face, without recourse to analysis of findings of fact. Questions framed as "Did I err in..." or "Was it open to me to find..." do not qualify (at [109]-[110]).

  • The Court of Criminal Appeal possesses an implied discretion to decline to answer submitted questions even where jurisdiction exists, including in cases where the questions are misconceived, proceed on a false basis, would lack utility, or risk procedural unfairness to the defendant (at [115]).

  • Existing Court of Appeal and Court of Criminal Appeal authority on section 5AE (the EPA Case and Grafil) was confirmed as correctly decided and was not overruled (at [94]).

  • Johnson J observed that the New South Wales Law Reform Commission recommended abolition of the stated case procedure under sections 5A, 5AE, 5B, 5BA and 5BB of the Criminal Appeal Act in 2014, and that any expansion of appeal rights against acquittal in summary proceedings is a matter for the legislature, not the courts (at [133]-[134]).

Legislation and Cases Referenced

Legislation
- Administrative Decisions ( Judicial Review) Act 1977 (Cth) s 5(1)(f)
- Casino Control Act 1992 (NSW) s 155
- Charitable Trusts Act 1993 (NSW) s 14(1)
- Children and Young Persons (Care and Protection) Act 1998 (NSW)
- Civil and Administrative Tribunal Act 2013 (NSW) ss 57( 4), 83
- Commercial Arbitration Act 2010 (NSW) s 34A(1)
- Commonwealth Constitution s 73 ( iii)
- Crimes Act 1900 (NSW) s 327(4)
- Crimes ( Administration of Sentences) Act 1999 (NSW) Sch 1 cl 22A
- Crimes ( Appeal and Review) Act 2001 (NSW) ss 32, 43, 52, 53, 57, 107, 108 , Pt 5
- Crimes ( Appeal and Review) Amendment ( Double Jeopardy) Act 2006 (NSW)
- Crimes ( High Risk Offenders) Act 2006 (NSW) s 22
- Crimes Legislation Amendment Act 1998 (NSW)
- Criminal Appeal Act 1912 ( NSW) ss 5A, 5AE, 5B, 5BA( 2), 5BB, 14 , Pt 3
- Criminal Code (Qld) s 669A
- District Court Act 1973 (NSW) s s 77, 142N
- Federal Court Rules (Cth) O 53 r 3 ( 2)
- Justices Act 1902 (NSW) s 101
- Justices Legislation Amendment (Appeals) Act 1998 (NSW)
- Industrial Relations Act 1996 (NSW) s 197A
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) s 135(2)
- Mental Health ( Forensic Provisions) Act 1990 ( NSW)
- National Electricity (NSW) Law s 71(1)
- s 77A(14)
- Suitors’ Fund Act 1951 (NSW) s 6
- Supreme Court Act 1970 (NSW) ss 69(3) , 101A, 107(c)
- Taxation Administration Act 1996 (NSW) s 106
- Valuation of Land Act 1916 (NSW) s 42
- Work Health and Safety Act 2011 (NSW) ss 19 (1), 32, 229B( 1), 245, 246, 247, 248
- Work Health and Safety ( Mines and Petroleum Sites) Act 2013 (NSW)
- Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 351

Cases
- Application of Attorney General (NSW) (2014) 246 A Crim R 150; [2014] NSWCCA 251
- Attorney-General for the State of New South Wales v X (2000) 49 NSWLR 653; [2000] NSWCA 199
- Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33
- Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290; [2003] FCAFC 244
- Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515; [1990] FCA 689
- Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
- Bass v Permanent Trustee Company Limited (1999) 198 CLR 334; [1999] HCA 9
- Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55; [2003] FCAFC 232
- Bropho v State of Western Australia (1990) 171 CLR 1; [1990] HCA 24
- Budget Nursery Pty Limited v Commissioner of Taxation (1989) 42 A Crim R 81
- Clyne v Deputy Commissioner of Taxation (1981) 150 CLR 1; [1981] HCA 40
- Coco v R (1994) 179 CLR 427; [1994] HCA 15
- Collector of Customs v AGFA-Gevaert Limited (1996) 186 CLR 389; [1996] HCA 36
- Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
- Commissioner of Taxation of the Commonwealth of Australia v Australian Building Systems Pty Ltd (In Liquidation) (2015) 257 CLR 544; [2015] HCA 48
- Corporate Affairs Commission of New South Wales v Yuill (1991) 172 CLR 319; [1991] HCA 28
- Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33
- CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338
- Da Costa v R (1968) 118 CLR 186; [1968] HCA 51
- Davern v Messel (1984) 155 CLR 21; [1984] HCA 34
- Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160
- Edwards (Inspector of Taxes) v Bairstow [1956] AC 14
- Electrolux Home Products Pty Limited v The Australian Workers’ Union (2004) 221 CLR 309; [2004] HCA 40
- Elias v Director of Public Prosecutions (NSW) (2012) 222 A Crim R 286; [2012] NSWCA 302
- Environment Protection Authority of NSW v Goulburn
- Wool Scour Pty Ltd (2004) 137 LGERA 289; [2004] NSWCCA 439
- Environment Protection Authority v Grafil Pty Ltd; Environment Protection Authority v Mackenzie (2019) 101 NSWLR 245; [2019] NSWCCA 174
- Environment Protection Authority v Land and Environment Court (NSW) (2004) 144 A Crim R 198; [2004] NSWCA 50
- Environment Protection Authority v Terrace Earthmoving Pty Ltd (2013) 84 NSWLR 679; [2013] NSWCCA 180
- Ex parte McGavin; Re Berne (1945) 46 SR (NSW) 58
- Firebird Global Master Fund II Ltd v Republic of Nauru (2015) 258 CLR 31; [2015] HCA 43
- Flaherty v Girgis (1987) 162 CLR 574; [1987] HCA 17
- Forrest v Director of Public Prosecutions (NSW) [2020] NSWCA 162
- Fortress Credit Corporation (Australia) II Pty Ltd v Fletcher (2015) 254 CLR 489; [2015] HCA 10
- Garrett v Freeman (2006) 68 NSWLR 729; [2006] NSWCCA 278
- Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76
- Griffiths (Inspector of Taxes) v JP Harrison (Watford) Ltd [1963] AC 1
- Hope v The Council of the City of Bathurst (1980) 144 CLR 1; [1980] HCA 16
- Iannella v French (1968) 119 CLR 84; [1968] HCA 14
- IL v R (2017) 262 CLR 268; [2017] HCA 27
- Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309; (1908) 14 ALR 701
- Kopuz v District Court of New South Wales (1992) 28 NSWLR 232; (1992) 62 A Crim R 337
- Lavorato v R (2012) 82 NSWLR 568; [2012] NSWCCA 61
- Mack Fleet Pty Ltd v Transport for NSW [2020] NSWCA 149
- Medical Council of New South Wales v Lee [2017] NSWCA 282
- Mellifont v Attorney General for the State of Queensland (1991) 173 CLR 289; [1991] HCA 53
- Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; [1995] HCA 20
- Morrison v Peacock (2000) 110 A Crim R 454; [2000] NSWLEC 32
- Nash v Glennies Creek Coal Management Pty Ltd (No 3) [2013] NSWIRComm 72
- NSW Associated Blue-Metal Quarries Limited v Federal Commissioner of Taxation (1956) 94 CLR 509; [1956] HCA 80
- O'Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33
- Orr v Cobar Management Pty Ltd [2019] NSWDC 796
- Orr v Hunter Quarries Pty Limited (No 2) [2020] NSWDC 307
- Ove Arup Pty Ltd v Industrial Court of NSW (2006) 149 IR 193; [2006] NSWCA 28
- Polites v Commonwealth (1945) 70 CLR 60; [1945] HCA 3
- Potter v Minahan (1908) 7 CLR 277; [1908] HCA 63
- R v Cheng (1999) 48 NSWLR 616; [1999] NSWCCA 373
- R v Garnet-Thomas [1974] 1 NSWLR 702
- R v IL [2016] NSWCCA 51
- R v J (1987) 9 NSWLR 615; (1987) 30 A Crim R 173
- R v JS (2007) 230 FLR 276; [2007] NSWCCA 272
- R v Lazarus (2017) 270 A Crim R 378; [2017] NSWCCA 279
- R v Lewis; ex parte Attorney General [1991] 2 Qd R 294
- R v LK (2010) 241 CLR 177; [2010] HCA 17
- R v Madden (1995) 85 A Crim R 367
- R v Reynhoudt (1962) 107 CLR 381; [1962] HCA 23
- R v RK (2008) 73 NSWLR 80; [2008] NSWCCA 338
- Re Alcan Australia Ltd; Ex parte Federation of Industrial, Manufacturing and Engineering Employees (1994) 181 CLR 96; [1994] HCA 34
- Registrar, Court of Appeal v Craven (No 2) (1995) 120 FLR 464; (1995) 80 A Crim R 272
- Robinson v Woolworths Ltd (t/as Woolworths Plus Petrol Werrington) (2005) 64 NSWLR 612; [2005] NSWCCA 426
- Safe Work NSW v Wollongong Glass P/L [2016] NSWDC 58
- SafeWork NSW v BOC Limited [2020] NSWDC 156
- Salvation Army (Victoria) Property Trust v Shire of Fern Tree Gully (1952) 85 CLR 159; [1952] HCA 4
- Sasterawan v Morris (2007) 69 NSWLR 547; [2007] NSWCCA 185
- Suttor v Gundowda Proprietary Limited (1950) 81 CLR 418; [1950] HCA 35
- The Australian Gas Light Company v The Valuer-General (1940) 40 SR (NSW) 126
- The Owners of the Ship “Shin Kobe” Maru v Empire Shipping Company Inc (1994) 181 CLR 404; [1994] HCA 54
- Thomas v R (1937) 59 CLR 279; [1937] HCA 83
- University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481; [1985] HCA 28
- Vetter v Lake Macquarie City Council (2001) 202 CLR 439; [2001] HCA 12
- Violi v Commonwealth Bank of Australia [2015] NSWCA 152
- Voth v Manildra Flour Mills Proprietary Limited (1990) 171 CLR 538; [1990] HCA 55
- Williams v R (1986) 161 CLR 278; [1986] HCA 88
- Wilson v Chan & Naylor Parramatta Pty Ltd atf Chan & Naylor Parramatta Trust [2020] NSWCA 62