Issued: 7 September 2020
Section 5AE allows the Crown, "[a]t any time prior to the completion of" summary proceedings in the Supreme Court, District Court or LEC to require the judge to "submit any question of law arising at or in reference to the proceedings to the" CCA.
There is an emerging practice in work health and safety and LEC prosecutions where the Crown:
That practice was followed in
Orr; a prosecution in the District Court for an alleged breach of the
Work Health and Safety Act 2011. The defendant argued that this created a de facto right of appeal against an acquittal and exposed it to double jeopardy.
The Court of Criminal Appeal
The threshold question of law in
Orr was whether the District Court had the power under s. 5AE to state a question of law after delivery of reasons for judgment, but before making final orders. The CCA unanimously held that it did. However, this question was the
only permissible question of law for the purposes of s. 5AE. The remaining six questions were not.
The key points of the judgment are as follows:
Implications for prosecutors
While prosecutors should carefully consider the timing of requiring questions of law to be submitted to the CCA under s. 5AE, it is still permissible to wait until after judgment has been delivered, but prior to the making of final orders.
However, this is only available where the question to be posed is a pure question of law and does not require the CCA to traverse factual findings. An example might be if the
prosecutor considers, from the reasons for judgment, that the primary Court would
benefit from CCA guidance in interpreting an applicable provision.
Sarah-jane Morris, Director
Sarah-jane.Morris@cso.nsw.gov.au 02 9497 9390
Sarah Ienna, Senior Solicitor
Sarah.Ienna@cso.nsw.gov.au 02 9497 9220
Nicholas Geason, Law Graduate
Nicholas.Geason@cso.nsw.gov.au 02 9497 9924
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