Citation: Duarte v Director of Public Prosecutions (NSW) [2020] NSWCCA 351
Court: Court of Criminal Appeal of New South Wales
Date: 18 December 2020
Judge(s): Hoeben CJ at CL, Harrison J, Bellew J
Background
The applicant was convicted in the Local Court of three offences arising from a break-in at a metal recycling yard at Unanderra: entering inclosed premises without lawful excuse, stealing an LPG cylinder, and intentionally or recklessly destroying a site office by fire (value exceeding $15,000). He was sentenced to a total of two years' imprisonment for the property and stealing charges, plus a $500 fine.
The applicant appealed to the District Court against all three convictions and sentences. He later withdrew the conviction appeals for the inclosed lands and stealing charges but maintained his appeal against the conviction for the property (arson) charge. The District Court dismissed that conviction appeal on 23 April 2020, finding the evidence against him was "fairly overwhelming." On 18 June 2020, the District Court judge also dealt with the sentence appeals and imposed an aggregate sentence of one year and ten months' imprisonment with a non-parole period of eleven months.
Following those proceedings, the applicant requested the District Court judge to state a case to the Court of Criminal Appeal under section 5B(2) of the Criminal Appeal Act 1912 (NSW), submitting three questions of law for determination. The applicant also required an extension of time, which the Court granted given the fully explained delay and the absence of any prejudice to the respondent.
Legal Issues
- Whether the three questions of law posed in the stated case were properly framed as questions of principle of general application, as required by the stated case procedure.
- Whether the stated case procedure was being used, in substance, as a disguised general appeal against the District Court's factual findings and ultimate determination on the property charge conviction.
- Whether the Court of Criminal Appeal should exercise its discretion to decline to answer questions that lack sufficient clarity or that do not engage genuine matters of legal principle.
Decision
Bellew J, with whom Hoeben CJ at CL and Harrison J agreed, provided a detailed account of the District Court's reasoning before turning to the questions posed. The primary judge had drawn on CCTV footage placing the applicant at the scene, the recovery of the stolen LPG cylinder in his vehicle, the location of the fire's seat just inside the shed entrance, the absence of any ignition source or accelerant, and the absence of any evidence pointing to an electrical fault or spontaneous combustion. Applying the principles in Barca, Hillier, and Plomp, the primary judge concluded that guilt was the only rational inference open on all the evidence.
The Court of Criminal Appeal observed that the stated case procedure under section 5B(2) is not a general right of appeal. Its purpose is confined to questions of law that raise matters of principle of general application. Questions that are, in substance, challenges to the factual findings or ultimate determination of the court below fall outside that purpose.
The Court found that each of the three questions submitted by the applicant lacked the necessary clarity and, in substance, sought to challenge the primary judge's factual conclusions rather than raise genuine questions of legal principle. Bellew J explained that the discretion to decline to answer questions exists precisely to preserve the stated case procedure for its intended function, and that this was an appropriate case in which to exercise that discretion.
Accordingly, the Court declined to answer all three questions.
Orders Made
- Question 1: The Court declines to answer.
- Question 2: The Court declines to answer.
- Question 3: The Court declines to answer.
Key Takeaways
- The stated case procedure under section 5B(2) of the Criminal Appeal Act 1912 (NSW) does not confer a general right of appeal; it is reserved for questions of law that raise matters of principle of general application.
- A question posed in a stated case that is, in substance, a challenge to the factual findings or ultimate determination of the court below is not a proper use of the procedure.
- Lack of clarity in a question submitted for determination is itself a basis on which the Court of Criminal Appeal may exercise its discretion to decline to answer.
- The Court of Criminal Appeal confirmed that the discretion to refuse to answer questions in a stated case exists specifically to protect the integrity and intended scope of that procedure.
- In a circumstantial evidence case involving arson, the District Court applied the established principles from Barca, Hillier, and Plomp, requiring that guilt be the only rational inference open from the whole of the proved circumstances before a conviction is recorded.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5B(2)
- Crimes Act 1900 (NSW), ss 117, 195(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A
- Inclosed Lands Protection Act 1901 (NSW), s 4(1)
Cases
- Azzopardi v The Queen (2001) 205 CLR 50; [2001] HCA 25
- Barca v The Queen (1975) 133 CLR 82; [1975] HCA 42
- CB v Director of Public Prosecutions (NSW) (2014) 240 A Crim R 451; [2014] NSWCA 134
- Lavorato v R (2012) 82 NSWLR 568; [2012] NSWCCA 61
- Mack Fleet Pty Limited v Transport for NSW (2020) 93 MVR 242; [2020] NSWCA 149
- Orr v Cobar Management Pty Limited (2020) 383 ALR 352; [2020] NSWCCA 220
- Plomp v The Queen (1963) 110 CLR 234; [1963] HCA 44
- R v Lewis; ex parte Attorney General [1991] 2 Qd R 294
- R v Madden (1996) 85 A Crim R 367
- R v Porter (2004) 141 A Crim R 593; [2004] NSWCCA 32
- Re Van der Lubbe (1949) 66 WN (NSW) 140
- RPS v The Queen (2000) 199 CLR 620; [2000] HCA 3
- Talay v R [2010] NSWCCA 308
- The Queen v Baden-Clay (2016) 256 CLR 132; [2016] HCA 35
- The Queen v Hillier (2007) 228 CLR 618; [2007] HCA 13
- Tritton v Clarke [2018] NSWCCA 31
- Weissensteiner v The Queen (1993) 178 CLR 217; [1993] HCA 65