Regulatory & Environment Insights

Jurisdictional error in prosecutions: A pathway to the High Court

(Stanley v Director of Public Prosecutions (NSW) & Anor [2023] HCA 3)

Key points

• Prosecutors should be aware that the ability of parties to invoke a jurisdictional error may lead to Local Court prosecutions coming before the Court of Appeal or the High Court, even without an express right of appeal.
• Determining whether there has been a jurisdictional error is not always an easy task. The decision in Stanley may signal the potential broadening of the willingness of appellate courts to entertain judicial review in relation to a discretionary decision by a lower court, including in the prosecution context.

Pathway from the Local Court to the High Court

Our previous issue on Stanely in Regulatory & Environment Insights - Community safety: considerations when imposing an ICO, sets out the background to the case and the implications when a court is considering an intensive correction order (ICO). This article considers what the case means for the application of jurisdictional error in Local Court prosecutions.

Decisions of the Local Court are ordinarily reviewed by the District Court pursuant to the provisions in the Crimes (Appeal and Review) Act 2001. The matter of Stanley initially proceeded in this manner:

The Local Court sentenced Ms Stanley to a term of imprisonment to be served by way of full-time custody for multiple offences against the Firearms Act 1996 (NSW). Ms Stanley appealed the severity of this sentence to the District Court. On the appeal, Ms Stanley sought an ICO under s. 7(1) of the Crimes (Sentencing Procedure) Act 1999 in lieu of full-time custody. The District Court dismissed the appeal and confirmed the Local Court’s sentence.

Appeals from the District Court for matters that commence in the Local Court are restricted by a privative clause, which prevents questions of law from being put to the Court of Criminal Appeal. However, it is still possible for a defendant to assert that a decision of the District Court was affected by jurisdictional error, and to seek judicial review of that decision by the Supreme Court. Judicial review of a decision of a Judge of the District Court is assigned to the Court of Appeal (Supreme Court Act 1970, s. 48). Such a challenge is not heard by the Court of Criminal Appeal, even if the underlying case is criminal.

For this reason, Ms Stanley sought judicial review of the decision of the District Court in the Court of Appeal. The Court of Appeal accepted that the District Court Judge did not make the assessment required in s. 66(2) of the Crimes (Sentencing Procedure) Act 1999, when considering community safety, and whether making an ICO or serving the sentence by way of full-time custody would be more likely to address Ms Stanley’s risk of re-offending. At issue was whether the failure to make this assessment was a jurisdictional error. The Court of Appeal rejected the application, however Ms Stanley was granted special leave to appeal to the High Court. A majority of the High Court found in Ms Stanley’s favour. 

What is jurisdictional error?[1]

Jurisdictional error occurs when a purported exercise of government power goes beyond the power that was conferred.

The question of whether there has been a jurisdictional error will often be a matter of statutory interpretation.[2] Unlike an appeal based on an error of law,[3] which overturns an existing decision, the result of a finding of jurisdictional error is that the purported decision is invalid.[4]

The most readily identifiable form of jurisdictional error will arise where a decision maker seeks to exercise a power which they do not have. Stanley illustrates another kind of jurisdictional error where a court or tribunal does have the power that it seeks to exercise, but exercises it in a way that substantially misconstrues the character or extent of that power. The error of law in Stanley is also an example of jurisdictional error by way of disregarding a matter that the relevant statute requires to be taken into account as a condition of the decision-making authority conferred on the court.

The High Court’s decision in Stanley

A description of the facts and reasoning in the High Court’s decision in Stanley is contained in Regulatory & Environment Insights - Community safety: considerations when imposing an ICO.

A narrow majority of the High Court (Gordon, Edelman, Steward and Gleeson JJ) held that undertaking the assessment required in s. 66(2) was a condition or limit of the power to decide whether to make or refuse to make an ICO under s. 7(1). By failing to make that assessment, the District Court Judge fell into jurisdictional error. Accordingly, the District Court’s discretion to decide whether or not to make an ICO was invalid, and therefore had not been exercised.

The majority observed that this result differs from the ordinary case (at [88]):

While a failure by an inferior court to consider a matter which it is required by law to take into account in determining a question within jurisdiction will not ordinarily involve jurisdictional error, a failure to consider the paramount consideration [community safety] in s. 66(1) by reference to the assessment in s. 66(2) goes beyond that ordinary case. It demonstrates a misconception of the function being performed under s. 7 by failing to ask the right question within jurisdiction.

Implications for prosecutors

The path of Ms Stanley’s case, from the Local Court to the High Court, is a timely reminder that even Local Court proceedings may end up before the High Court.

The decision in Stanley is significant not only for its relevance to ICOs. It may also signal a possible broadening of the willingness of courts to entertain judicial review in relation to discretionary decisions and, consequently, to herald the potential for an increase in Local Court prosecutions coming before the Court of Appeal or the High Court, even without an express right of appeal.

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[1] In addition to prosecutorial expertise, the Crown Solicitor’s Office has a specialist Administrative Law team of solicitors with expertise in judicial review proceedings.

[2] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-389 [91]

[3] Which is not characterised as a jurisdictional error.

[4] Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at 133 [24]

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Contact

Claudia Pendlebury, Director

Email: claudia.pendlebury@cso.nsw.gov.au
Ph: 02 9474 9406

Katrina Frearson, Senior Solicitor 

Email: katrina.frearson@cso.nsw.gov.au
Ph: 02 9474 9558 

Lisa Le Van, Solicitor 

Email: lisa.levan@cso.nsw.gov.au
Ph: 02 9474 9716

The CSO's Regulatory & Environment practice group specialises in advising and representing agencies in relation to regulatory compliance and prosecutions, statutory interpretation advice in the environment and natural resources context, as well as criminal law, evidence and procedure.