Interlocutory criminal appeals in Australia 9780455234694, 0455234698

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Interlocutory Criminal Appeals in Australia

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Interlocutory Criminal Appeals in Australia

GREG TAYLOR Doktor der Rechte (Marburg), LLM (Marburg), LLB (Hons) (Adel), BA (Hons) (Adel)

Professor (Hon), Marburg University, Germany Associate Professor, Graduate School of Business and Law RMIT University Barrister and Solicitor of the Supreme Court of South Australia

LAWBOOK CO. 2016

Published in Sydney by Thomson Reuters (Professional) Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW National Library of Austrlaia Catalogue-in-Publication entry Title: Interlocutory criminal appeals in Australia / Professor Gregory Dening Taylor ISBN: 9780 455 234 694 (paperback) Notes: Include index Subjects: Criminal law – Australia. Appelate procedure – Australia. Interlocutory decisions – Australia. Criminal procedure – Australia. Dewey Number: 345.9405

© 2016 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. Product Developer: Catherine Fitzgerald Editor: Merilyn Shields Indexed by Puddingburn Publishing Services Printed by Ligare Pty Ltd, Riverwood, NSW Currency date: February 2016 This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: http:// www.pefc.org

Foreword Hon Justice MS Weinberg BA, LLB (Hons) (Monash) BCL (Oxon) A decade or so ago this book would not have been written. It would have been of little or no interest to Victorian practitioners. Although New South Wales had enacted legislation providing for interlocutory criminal appeals as far back as the mid-1980s, their scope was confined and they were not all that frequently brought. Moreover, there were special circumstances, largely unique to that State, explaining why there was a need for such appeals at that time. The enactment of the Criminal Procedure Act 2009 in Victoria led to many radical changes to our criminal justice system. One of the most remarkable was the licence granted to both the prosecution and the defence to engage in what in the past would have been described as “fragmentation” of the criminal process by appealing to the Court of Appeal from what the Act terms an “interlocutory decision”. That expression is defined in the widest possible terms. It encompasses any decision made by a judge in a proceeding, whether before or during the trial, including a decision to grant or refuse a permanent stay. In New South Wales, more sensibly, s 5F of the Criminal Appeal Act 1912 limits interlocutory appeals in criminal matters to appeals against “interlocutory judgments or orders”. That expression is obviously far narrower than the Victorian term, “interlocutory decision”. Save for the Attorney-General or the Director of Public Prosecutions, who may appeal to the Court of Criminal Appeal against a ruling on the admissibility of evidence, there is no avenue available to challenge such a ruling at an interlocutory stage. The position in Victoria is quite different. One might have expected, given the scope of the Victorian provisions, that the Court of Appeal in that State would have been inundated with interlocutory appeals in criminal matters. While it is fair to say that that expectation has not been met, the figures show that, on average, there are about 22 or so such appeals each year. For the five full financial years from 2010-11 onwards there were 112 interlocutory appeals in criminal matters filed, out of a total of 1567 criminal appeals across the board. That comes to just over 7% of all criminal filings. Recent figures indicate a small increase in the percentage of interlocutory appeals in criminal matters in Victoria. In the financial year 2014-15, there were 22 interlocutory appeals out of 282 criminal initiations, a figure just under 8%. There is now a substantial body of authority regarding both the principles governing interlocutory appeals in criminal matters in both States, and the procedures that are to be followed in such cases. In a number of instances, the

Foreword

system has worked well. Errors have been detected at an early stage, and miscarriages of justice thereby avoided without the need for possibly lengthy trials. As Professor Taylor correctly notes, however, there is another side to the coin. In his words, interlocutory criminal appeals have been a “mixed blessing”. A good deal of scarce judicial time has been wasted in dealing with hopeless matters, sometimes borne out of desperation, and sometimes, it seems, brought for tactical, and quite unworthy, reasons. In Victoria, interlocutory appeals are usually brought against rulings on the admissibility of evidence. The vast majority of these are brought by accused persons. Most often, they are brought against rulings involving the admissibility of tendency or coincidence evidence. In fact, one third of all interlocutory appeals in criminal matters in Victoria since 2010 have involved just such questions. The law regarding the admissibility of such evidence is complex, and often requires the most minute consideration of the facts. These cases can take an enormous amount of time to read and digest. Yet, sometimes they have to be determined on the basis of material that is speculative, and far from clear. There is an important policy debate to be had regarding the utility of such appeals, given their potential to fragment the criminal process. In the 1980s and beyond, it became almost de rigueur for those accused with means, or at least generous access to legal aid, to bring proceedings by way of judicial review, seeking administrative law remedies, in relation to decisions taken as part of the criminal justice process. Thus, in major cases, in particular, there would routinely be challenges brought, by way of judicial review, to both the exercise of investigative powers and, subsequently, prosecutorial decisions. The law reports are replete with decisions of that period dealing, for example, with the validity of search warrants, or challenges to their manner of execution. If proceedings of that kind did not derail the entire prosecution process, there could always be a challenge to the decision of the relevant prosecuting authority to institute charges. Should the matter ever get to committal (and sometimes, after years of proceedings through the civil courts, it did not), there could still be a challenge to the decision to commit for trial. In federal matters, that challenge would invariably take place in the Federal Court of Australia, sometimes before a judge with little or no experience in dealing with hard-fought crime. The results were seldom pretty. It could sometimes take years to resolve issues of this kind. In relation to State matters the same game was played in State courts, but using a different set of administrative law procedures. From time to time the courts would set their face against this form of war by attrition. In Yates v Wilson (1989) 168 CLR 338 (certainly one of the shortest judgments ever reported in the Commonwealth Law Reports), Mason CJ, plainly intending to send a very blunt message to the Federal Court, said: It would require an exceptional case to warrant the grant of special leave to appeal in relation to a review by the Federal Court of a magistrate’s decision to commit a person for trial. The undesirability of fragmenting the criminal process is so powerful a consideration that it requires no elaboration by us. It is a factor which vi

Foreword

should inhibit the Federal Court from exercising jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and as well inhibit this Court from granting special leave to appeal.

When I joined the Victorian Court of Appeal in 2008, after serving on the Federal Court of Australia for some ten years, I was well aware of the dangers posed by allowing civil courts too readily to engage in judicial review in relation to criminal proceedings. I had myself, when at the Bar, participated in many such administrative challenges, both seeking such review on behalf of usually well-resourced defendants, and resisting it on behalf of the prosecution. I soon learned that, largely in response to one particular case, R v Thomas (2006) 14 VR 475, the Court of Appeal for Victoria had itself suggested that there should be legislation introduced to provide for interlocutory criminal appeals. Although, by way of contrast with judicial review, these had the distinct merit of being heard by judges who, for the most part, were well-acquainted with the criminal process, I was distinctly unenthusiastic about that proposal. Nonetheless, such appeals came to pass and the rest is history. It is appropriate therefore, as well as timely, that Professor Taylor’s thorough, and scholarly, monograph on this subject is published. His is no mere exposition of black-letter law, even though that would, of itself, have been a worthwhile contribution. His work delves deeply into broader questions of principle that need to be considered, as we endeavour to work within the legislative framework that has been bequeathed to us. As should be clear from this foreword, I am not, and probably never will be, a proponent of interlocutory criminal appeals. I think, on balance, they do significantly more harm than good. Nonetheless, it is comforting to know that there is available to practitioners, as well as judges, a work of clear and authoritative exposition such as that which Professor Taylor has produced. Every criminal lawyer, worth his or her salt, should turn to this book for guidance through the unruly thicket of legislation and case law that now governs appeals of this nature.

vii

Preface It is curious that, until now, there has been no scholarly consideration – not even an academic article in the humblest law journal – of interlocutory criminal appeals, despite the vast floods of literature on many other legal topics. There are, it is true, a number of more or less obvious reasons why interlocutory criminal appeals have not spawned a vast literature, but the complete absence of any discussion is hard to explain. For interlocutory criminal appeals are a major innovation in criminal procedure and also something of a rebalancing of the scales between accused and state – perhaps the most far-reaching adjustment to that balance since the introduction of the modern criminal appeals system in the early part of the 20th century. Interlocutory criminal appeals have now existed in our largest jurisdiction, New South Wales, for more than a quarter of a century. A general system of interlocutory appeals spread from there to Victoria in 2010, and such a thing exists also in a rather different form in the Australian Capital Territory and the Federal Court of Australia’s very limited criminal jurisdiction. In the remaining Australian jurisdictions – the “defined issues” jurisdictions, as I have called them in the text: Queensland, Western Australia, South Australia, Tasmania and the Northern Territory – there is no general system of interlocutory criminal appeals, although certain closely defined issues can be taken on interlocutory appeal pursuant to a special statutory authorisation. It is therefore on New South Wales and Victoria that this book concentrates, as they are the largest jurisdictions and have the most sophisticated statutes and practices on my topic. Nevertheless, Chapters 1 and 2 deal also with the other Australian jurisdictions. This book closes the gap I have identified in a manner which, I trust, is both scholarly and of use to the legal profession. It should also be of use to those who may have the task of considering whether to introduce interlocutory criminal appeals into the five “defined issues” jurisdictions in which there is currently no such general system. At the time of writing, the intention was to bring out a second edition of this book when circumstances call for one. Therefore, I should be very grateful for any advice from its users about topics on which more – or even less – needs to be said. Nevertheless, I should explain here that the book cannot, of course, be a textbook of criminal law or procedure generally. There are many topics in relation to which I can deal sensibly only with the appeals aspect – stays, for example. It would require another book to write about the substantive law applicable to stays as distinct from where they fit in the systems of interlocutory criminal appeal in which they can be the subject of appeals. In writing this book, I had the great pleasure of reactivating my inner criminal procedure nerd whose apogee occurred when I was an Associate at the Supreme Court of South Australia. Justice Brian Cox and Acting (formerly Chief) Justice Len King AC were two very different men, but were alike in being two outstanding tutors. It is impossible for me, in writing this book, not to recall

Preface

their memories and give thanks for their contributions to my development as a legal scholar – not to say their contributions to jurisprudence throughout their most distinguished careers. Thanks are due also to the living, in first place Declan Boontun, and to Mark, Mye and Srima, who helped me choose the cover, closely followed by the Hon Justice Mark Weinberg, who has done me the great service of reading the manuscript, and the even greater honour of contributing a foreword. It highlights the questions of legal policy which are a focus of this book alongside more workaday matters. Why do we have interlocutory criminal appeals at all, should the system be refined in a way that increases its usefulness and reduces its potential for disruption or even deliberate misuse, and how could that be done? My suggestions, to be found in the final chapter, are not precisely the same as his Honour’s, but our broad general goal is very similar. Above all, it is right to promote debate on this important – and so far neglected – innovation. Special thanks must also go to Maxwell P, Priest JA, Mark Pedley JR, Patrick Tehan QC, Paul Holdenson QC, Gavin Silbert QC and Chris Boyce SC, who kindly gave up their valuable time to share with me their own personal insights into my topic. I owe an even greater debt of gratitude to Stephen Odgers SC, who provided detailed comments on the manuscript which improved it considerably. For their assistance in answering detailed queries, I warmly thank also Julia Agar of the Office of Chief Parliamentary Counsel of New Zealand, Mr Damian Bugg AM, QC, the Tasmanian Parliamentary Library and Professor Kate Warner AM (as her Excellency then was). Luke Denham found for me the cases that had been missed in my own research, a job he did very well and thoroughly. Last but not least, Thomson Reuters, and Catherine Fitzgerald in particular, deserve thanks for taking on this project. All views expressed in this book are, however, my own, as are any errors. None of the persons or organisations named above bears any responsibility for them. I should be very grateful if any errors or omissions discovered by others were communicated to me. After this preface was written, cases published until the end of February 2016 have been incorporated into the text. Greg Taylor Melbourne 8 June 2015 (being also the Queen’s Official Birthday)

x

Table of Contents Foreword ................................................................................................................... v Preface ...................................................................................................................... ix Table of Cases ........................................................................................................ xiii Table of Statutes ................................................................................................... xxix 1 Background, History and Comparative Law ................................................... 1 2 The Legislation ................................................................................................... 23 3 Decisions Amenable to Appeal ......................................................................... 47 4 Factors to be Considered in Determining Applications .............................. 109 5 Procedural Aspects of Appeals ....................................................................... 137 6 Decision on Appeal, Precedential Status of Decision and Costs ................ 149 7 Future Options and Conclusion ..................................................................... 167 Index ...................................................................................................................... 173

Table of Cases A AJP v The Queen [2010] VSCA 224 ..................................................................... 3.110 AL v The Queen [2014] VSCA 81 .......................................................................... 4.70 Abibadra v The Queen [2011] HCATrans 171 ............................................ 2.120, 3.90 Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales (2002) 119 IR 319 ................................................................................ 3.180 Adler v District Court of New South Wales (1990) 19 NSWLR 317 ......... 1.120, 2.100 Agius v The Queen (2011) 80 NSWLR 486 ...... 3.160, 4.60, 4.130, 4.200, 5.10, 6.100 Agius v The Queen [2011] HCATrans 171 ............................................... 4.200, 6.100 Agoston v The Queen [2008] NSWCCA 116 ................................................ 1.10, 3.90 Anson v Director of Public Prosecutions (NSW) (2002) 129 A Crim R 328 ............................................................................................... 3.40, 3.60, 3.160 Aon Risk Services Australia v Australian National University (2010) 244 FLR 440 ........................................................................................................... 2.40 Application for Reservation of Questions of Law No 1 of 2009 [2009] SASC 12 ............................................................................................................ 1.10 Application for Reservation of Questions of Law No 2 of 1999 (1999) 106 A Crim R 423 ............................................................................................ 1.10 Atlas v Director of Public Prosecutions (2001) 124 A Crim R 180 .............. 1.10, 2.100 Attorney-General v Kaddour [2001] NSWCCA 456 ............................................ 3.170 Attorney-General (Cth) v Oates (1999) 198 CLR 162 .............................. 1.120, 2.120 Attorney-General (NSW) v Built NSW Pty Ltd (2013) 239 IR 102 ............... 3.70, 5.60 Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 ....... 1.30, 2.100, 3.170 Attorney-General (NSW) v Milat (1995) 37 NSWLR 370 ..................................... 3.90 Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 ..... 2.100, 3.40, 3.170, 6.10 Aubrey v The Queen [2013] HCATrans 110 .................................... 3.90, 3.160, 6.120 Austin v The Queen [2011] ACTCA 3 ................................................................... 2.40 Australian Crime Commission v Marrapodi (2012) 42 WAR 351 ....................... 2.100 Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 .......................................................... 3.170 Aydin v The Queen (2010) 28 VR 588 ........................................................ 3.90, 4.220

B BC v The Queen [2015] NSWCCA 327 .................................................... 3.250, 3.270 BJS v The Queen [2011] NSWCCA 239 ............................... 3.100, 3.200, 3.250, 6.50 BSJ v The Queen (2012) 35 VR 475 ...................................................................... 6.90 BUSB v Director-General of Security [2011] NSWCA 49 ....................................... 1.30 BUSB v The Queen (2011) 80 NSWLR 170 ........................ 3.150, 3.180, 4.130, 4.170 Badans v The Queen [2012] NSWCCA 97 ........................................................... 3.190 Bagshaw v The Queen [2009] NSWCCA 32 ......................... 3.20, 3.130, 3.180, 3.190 Bangaru v The Queen (2012) 297 ALR 108 ......................................................... 3.250 Barakat v Goritsas (No 2) [2012] NSWCA 36 ..................................................... 3.130 Barton v Walker [1979] 2 NSWLR 740 ............................................................... 3.130 Batiste v The Queen [1995] HCATrans 182 ........................................................... 3.90 Bauer v The Queen [2015] VSCA 55 ..................................................................... 6.90 Beckett v The Queen (2014) 315 ALR 295 .................. 3.70, 3.90, 3.260, 3.280, 4.170 Beljajev v Director of Public Prosecutions (1991) 173 CLR 28 ............................ 2.120 Blackman v Blackman [2003] NSWSC 1200 ....................................................... 6.120 Boehm v Director of Public Prosecutions [1990] VR 475 ....................................... 1.30 xiii

Table of Cases

Boehm v Director of Public Prosecutions [1990] VR 494 ....................................... 1.40 Bray v The Queen [2014] VSCA 276 ........................................................ 3.240, 3.270 Brereton v Sinclair (2000) 2 VR 424 ........................................................... 3.30, 4.200 Brown v Loveday [2012] VSCA 57 ........................................................................ 3.20 Buckman v The Queen (2013) 280 FLR 219 ....................................................... 3.150

C C, MG v Police [2010] SASC 268 ........................................................................ 1.120 CEG v The Queen [2012] VSCA 55 ..................................................................... 3.250 CGL v Director of Public Prosecutions (No 2) (2010) 24 VR 482 ...... 2.80, 2.110, 4.40 CGL v Director of Public Prosecutions (2010) 24 VR 486 ........................ 2.110, 3.250 CJD v The Queen [2012] VSCA 329 .................................................... 2.80, 2.90, 4.40 CV v Director of Public Prosecutions [2014] VSCA 58 ........................................ 3.250 CW v The Queen [2010] VSCA 288 .................................................................... 2.110 Calleija v The Queen (2012) 223 A Crim R 391 ........................................... 3.90, 5.50 Cargnello v The Queen [2009] NSWCCA 192 ................................. 3.110, 6.50, 6.100 Carroll v United States 354 US 394 (1957) .......................................................... 1.110 Carter v The Queen (1994) 12 WAR 310 .............................................................. 1.10 Chapman v The Queen (2013) 232 A Crim R 500 ................................................. 3.70 Cheiko v The Queen (2008) 75 NSWLR 323 ......................... 3.10, 3.150, 4.210, 5.40 Chevalley v Morrison (2012) 219 IR 193 ................................................... 1.10, 3.130 Chief Commissioner of Police (Vic), Re Application by the (2005) 79 ALJR 881 .............................................................................................. 2.120, 3.30 Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593 ............ 1.120, 3.130 Chung v The Queen (2007) 175 A Crim R 579 .................................................... 3.160 Cittadini v The Queen [2010] NSWCCA 291 ........................................... 3.250, 6.120 Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3 ..................................................................................... 2.100 Commonwealth v Mullane (1961) 106 CLR 166 ................................................... 3.40 Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (2000) 99 IR 16 ............................................................................ 3.70 Connell v The Queen (1993) 10 WAR 424 ............................................................ 1.10 Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 89 ALJR 622 ..................................................................... 3.20 Conway v The Queen (2002) 209 CLR 203 .......................................................... 1.10 Cornwell v The Queen (2006) 160 A Crim R 243 ....................................... 3.20, 3.170 Cornwell v The Queen (2007) 231 CLR 260 ................................... 3.20, 3.170, 6.100 Country Energy v Malone (2005) 138 IR 221 ..................................................... 1.120 Craig v South Australia (1995) 184 CLR 163 ...................................................... 1.120

D DAO v The Queen (2011) 81 NSWLR 568 ....... 2.70, 2.80, 2.110, 3.10, 3.100, 3.250, 4.130, 4.170, 6.90, 6.100 DAO v The Queen [2011] HCATrans 298 ................................................ 2.110, 2.120 DJF v The Queen [2011] NSWCCA 228 .............................................................. 3.110 DSJ v The Queen (2012) 84 NSWLR 758 ........................................ 3.250, 4.170, 6.60 DSJ v The Queen (2014) 100 ACSR 70 .................................................... 3.250, 4.180 Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 .............. 2.110 Dagenais v Canadian Broadcasting Corporation (1994) 120 DLR (4th) 12; [1994] 3 SCR 835 ....................................................................................... 1.90 Dale v The Queen (2012) 229 A Crim R 480 ............. 3.160, 4.120, 4.160, 4.230, 5.80 Darwiche v The Queen [2011] NSWCCA 62 ....................................................... 6.100 Derbas v The Queen (2012) 221 A Crim R 13 ............................................ 3.170, 5.50 Dertilis v The Queen [2010] VSCA 360 .................................. 2.80, 3.100, 3.120, 5.30 Dietrich v The Queen (1992) 177 CLR 292 ......................................... 1.50, 2.20, 3.90 xiv

Table of Cases

Dillon v The Queen [2014] VSCA 164 ............................................... 2.80, 3.20, 3.130 Director of Public Prosecutions (Cth) v FM (2013) 233 A Crim R 83 ........ 1.10, 2.120, 3.160 Director of Public Prosecutions (Cth) v Galloway [2014] VSCA 272 ........ 1.120, 3.210 Director of Public Prosecutions (Cth) v Hunter (2003) 7 VR 119 ........................ 6.140 Director of Public Prosecutions (Cth) v JM (2012) 37 VR 1 ................................ 1.120 Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135 ............... 1.10, 4.110 Director of Public Prosecutions (Cth) v Karabegovic (2013) 282 FLR 383 .................................................................................... 3.160, 4.70, 4.90, 6.100 Director of Public Prosecutions (Cth) v Karabegovic [2014] HCATrans 179 ................................................................ 1.10, 2.120, 3.160, 4.70, 4.90, 6.100 Director of Public Prosecutions (Cth) v Stewart (No 2) [2014] VCC 1416 ................................................................................................................. 2.80 Director of Public Prosecutions (NSW) v Allan [1996] NSWSC 4 ................. 3.90, 6.30 Director of Public Prosecutions (NSW) v JG (2010) 220 A Crim R 19 ...... 2.110, 3.270 Director of Public Prosecutions (NSW) v Moradian [2010] NSWCCA 27 ........................................................................................................ 3.180, 6.120 Director of Public Prosecutions (NSW) v PM (2006) 67 NSWLR 46 ..................... 3.40 Director of Public Prosecutions (Vic) v BB (2010) 29 VR 110 ..................... 2.80, 3.270 Director of Public Prosecutions (Vic) v BCR [2010] VSCA 229 ..... 3.250, 4.120, 4.170 Director of Public Prosecutions (Vic) v BDX (No 2) (2010) 27 VR 536 .............. 3.160, 4.220, 4.230 Director of Public Prosecutions (Vic) v Bracken [2014] VSC 94 .................. 4.20, 4.402 Director of Public Prosecutions (Vic) v Brownlie [2015] VSCA 147 ............ 3.90, 4.120 Director of Public Prosecutions (Vic) v Brownlie (No 2) [2015] VSCA 267 ................................................................ 3.90, 3.190, 4.120, 4.180, 5.10, 6.60 Director of Public Prosecutions (Vic) v County Court of Victoria (2010) 267 ALR 786 .................................................................................................. 1.120 Director of Public Prosecutions (Vic) v DJC (2012) 36 VR 33 ......... 3.270, 4.190, 5.10 Director of Public Prosecutions (Vic) v Hayden (No 2) [2006] VSCA 155 ................................................................................................................. 6.130 Director of Public Prosecutions (Vic) v Judge Lewis of County Court of Victoria [1997] 1 VR 391 ...................................................................... 1.120, 3.90 Director of Public Prosecutions (Vic) v MD (2010) 29 VR 434 ......... 2.80, 3.10, 3.280, 4.40 Director of Public Prosecutions (Vic) v Marijancevic (2011) 33 VR 440 .............. 3.280 Director of Public Prosecutions (Vic) v Newman [2015] VSCA 25 ............. 2.70, 3.210, 3.290, 4.190, 5.10 Director of Public Prosecutions (Vic) v Pace [2015] VSCA 18 ....... 3.200, 3.290, 4.110, 4.120, 4.160, 4.220, 7.30 Director of Public Prosecutions (Vic) v Singh (2012) 34 VR 364 ................ 1.120, 3.60 Director of Public Prosecutions (Vic) v Woolf [2013] VCC 1119 ........................... 2.80 Director of Public Prosecutions (Vic) v Zheng [2013] VSCA 304 ...... 2.80, 2.90, 3.120, 3.160, 3.290, 4.130, 4.200, 4.250, 5.70 Draoui v District Court of South Australia [2011] SASCFC 15 ............................ 3.130 Duke v The Queen [1999] WASCA 215 ................................................................. 1.10 Dunn v The Queen [2001] HCATrans 31 .............................................................. 3.80

E EK v The Queen (2009) 75 NSWLR 302 ............................................................. 3.180 ER v Khan [2015] NSWCCA 230 ............................................................... 2.100, 6.60 Eastman v The Queen (2000) 203 CLR 1 ............................................................ 2.110 Edwards v The Queen (1993) 178 CLR 193 .......................................................... 2.30 Edwards Madigan Torzillo Briggs Pty Ltd v Mansell (2004) 139 IR 362 ............... 3.70 Einfeld v The Queen (2008) 71 NSWLR 31 ..................................... 4.160, 4.200, 5.70 El-Zayet v The Queen [2014] NSWCCA 298 .................................... 1.30, 1.120, 3.20 Em v The Queen (2007) 232 CLR 67 .............................................. 3.260, 3.280, 6.60 xv

Table of Cases

Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125 .................................................... 1.30, 2.30, 2.70, 2.100, 3.70, 6.110 Epacris Pty Ltd v Director-General, Department of Natural Resources (2007) 69 NSWLR 507 .......................................................................... 3.10, 3.110 Epacris Pty Ltd v Director-General, Department of Natural Resources [2007] HCATrans 400 ...................................................................................... 3.10

F FMJ v The Queen [2011] VSCA 308 ......................................................... 3.180, 3.260 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 ..................... 3.10 Ferguson v The Queen [2009] HCATrans 16 ......................................................... 2.20 Finn v The Queen [2011] VSCA 120 .................................................. 2.80, 3.90, 3.110 Finn v The Queen [2011] VSCA 68 .................................................. 1.60, 3.240, 4.120 Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 ..................................................................................... 1.60, 1.120, 4.160 Flanagan v United States 465 US 259 (1984) ....................................................... 1.110 Fuller v Director of Public Prosecutions (Cth) (1994) 68 ALJR 611 ..................... 2.120

G GA v The Queen [2012] VSCA 44 ....................................................................... 3.160 GBF v The Queen [2010] VSCA 135 ........................................................ 3.250, 3.270 GEM v The Queen [2010] VSCA 168 .................................................................. 3.130 GP v The Queen (2010) 27 VR 632 ..................................................................... 3.130 Garcia-Godos v The Queen [2015] NSWCCA 144 .............................................. 3.140 Gaudie v Local Court of New South Wales (2013) 235 A Crim R 98 .................. 3.130 Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 ........................................................................... 1.120, 2.120 Gedeon v The Queen [2009] NSWCCA 278 ...................................... 3.90, 3.280, 5.70 Gentry v Director of Public Prosecutions (Vic) [2014] VSCA 211 ............... 6.60, 6.100 Gilham v The Queen [2008] HCATrans 85 ................................................ 2.120, 3.90 Gilham v The Queen (2012) 224 A Crim R 22 ...................................................... 3.90 Goldsmith v The Queen (1993) 67 ALJR 513 ...................................................... 2.120 Grassby v The Queen (1989) 168 CLR 1 ............................................................. 3.130 Gurung v The Queen [2012] NSWCCA 201 ........................................................ 3.130

H HDC v The Queen [2012] VSCA 136 .................................................................. 3.100 Haddad v The Queen [2001] HCATrans 272 ........................................................ 3.40 Hall v Nominal Defendant (1966) 117 CLR 423 ................................................... 3.30 Hall v The Queen [2015] NSWCCA 298 ............................................................... 3.10 Hamed v The Queen [2011] 3 NZLR 725; [2012] 2 NZLR 305 ..... 4.90, 4.120, 4.230 Hamed v The Queen [2012] 2 NZLR 305 ............................................................. 4.90 Hargrave v Slater (2000) 113 A Crim R 371 ........................................................ 3.190 Harris v The Queen [2015] VSCA 112 ................................................................. 3.250 Hart v The Queen [1997] NSWSC 191 ....................................................... 3.140, 5.50 Herald and Weekly Times Pty Ltd v A (2005) 160 A Crim R 299 ........................ 3.190 Herald and Weekly Times Pty Ltd v County Court of Victoria [2004] VSC 512 ......................................................................................................... 3.190 Hermanus v The Queen [2015] VSCA 2 ................................................................ 3.90 Higgins v Parker (1984) 35 SASR 229 ................................................................. 3.180 Hinton v The Queen [2015] VSCA 40 ...................................................... 4.170, 6.100 Ho v Director of Public Prosecutions (unreported, NSW Court of Criminal Appeal, 18 July 1994) ...................................................................... 3.110 Holloway v The Queen [2015] NSWCCA 207 ...................................................... 3.70 House v The King (1936) 55 CLR 499 ..................................................... 2.110, 3.100 xvi

Table of Cases

I Iqbal v The Queen [2012] NSWCCA 72 ................................................................ 3.90 Island Maritime Ltd v Filipowski [2004] NSWCCA 453 ..................... 3.10, 3.80, 3.90

J JD v The Queen [2013] NSWCCA 198 .................................................................. 3.90 JG v The Queen [2011] NSWCCA 198 .................................................................. 3.90 JLS v The Queen (2010) 28 VR 328 ......................................................... 2.110, 3.250 JLT v The Queen [2010] VSCA 358 ..................................................................... 6.130 JSM v The Queen [2010] NSWCCA 255 ............................................................... 4.70 JW v District Court of New South Wales [2016] NSWCA 22 .............................. 1.120 JW v The Queen [2016] NSWCCA 26 ................................................................... 5.10 Jamieson v The Queen (1993) 177 CLR 574 ....................................................... 2.120 Jamieson & Brugmans v The Queen (1993) 177 CLR 574 .................................... 3.70 Jenkins v Director of Public Prosecutions (NSW) [2013] NSWCA 406 ................ 3.140 Joffe v The Queen (2012) 82 NSWLR 510 ...................................... 3.70, 3.160, 4.210 Joffe v The Queen [2013] HCATrans 109 ................................................. 3.160, 4.210 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 .................. 2.30, 3.70 Joosse v Australian Securities and Investment Commission (1998) 73 ALJR 232 ........................................................................................................ 2.120 Joud v The Queen (2011) 32 VR 400 ......................................... 1.10, 3.80, 3.90, 6.60

K KJM v The Queen (No 2) (2011) 33 VR 11 ........................ 2.110, 3.250, 4.120, 4.140 KRI v The Queen (2011) 207 A Crim R 552 ............................................... 2.80, 3.250 KS v Veitch (2012) 300 ALR 181 ................................................................ 2.70, 2.100 KS v Veitch (No 2) (2012) 84 NSWLR 172 ..................................... 2.70, 2.100, 3.150 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 ................... 3.150 Kalani v Western Australia [2013] WASCA 132 ..................................................... 2.30 Kentwell v The Queen (2014) 252 CLR 601 .......................................................... 5.40 Kocer v The Queen [2006] NSWCCA 328 ........................................... 2.60, 2.70, 3.30 Kola v The Queen [2006] ACTCA 23 ................................................ 2.40, 4.90, 4.110 Kola v The Queen (2007) 1 ACTLR 164; 176 A Crim R 102 ....................... 2.40, 4.90 Kumar v The Queen [2013] VSCA 297 ....................................................... 2.80, 3.140 Kumar v The Queen [2014] VSCA 102 .................................................................. 6.90

L Lacey v Attorney-General (Qld) (2011) 242 CLR 573 ......................................... 2.110 Lee v Cha [2008] NSWCA 13 .............................................................................. 3.130 Leonard v The Queen [2007] NSWCCA 197 ............................................ 3.150, 4.140 Licul v Corney (1976) 180 CLR 213 ..................................................................... 3.30 Lin v Tasmania [2012] TASCCA 9 ......................................................................... 1.10 Lin v The Queen [2015] NSWCCA 204 .................................................... 3.110, 3.160 Lin v The Queen [2015] NSWCCA 264 ............................................................... 3.110 Linfox Resources v The Queen (2010) 30 VR 507 ................................................. 3.70 Lipton v The Queen [2010] NSWCCA 175 .......................... 3.90, 3.170, 3.290, 6.100 Little v The Queen [2015] VSCA 62 ........................................................... 3.90, 3.160 Lodhi v The Queen [2006] NSWCCA 101 ........................................................... 3.190 Long (No 1), Re [2002] 1 Qd R 662 ...................................................................... 1.10 Luland v The Queen [2007] NSWCCA 64 ........................................................... 6.100 Luna v The Queen [2016] VSCA 10 .................................................................... 6.100 xvii

Table of Cases

M MA v The Queen (2011) 31 VR 203 ........ 2.60, 2.80, 4.70, 4.120, 4.140, 4.160, 4.190 MAC v The Queen (2012) 34 VR 193 ................................................................. 3.180 MK v Victoria Legal Aid (2013) 40 VR 378 .......................................................... 3.90 ML v The Queen [2011] VSCA 193 ................ 3.210, 3.220, 3.230, 3.260, 4.190, 5.10 MR v The Queen [2011] VSCA 39 ...................................................................... 3.250 Madden v The Queen [2014] NSWCCA 291 ....................................................... 3.160 Madden, Re (1977) 35 CCC (2nd) 385 ............................................................... 1.120 Maxwell v The Queen (1996) 184 CLR 501 ........................................................ 3.140 McCartney v The Queen (2012) 38 VR 1 ........................................ 3.250, 3.270, 6.90 McDonald v Director of Public Prosecutions (2010) 26 VR 242 .......... 2.30, 2.80, 3.70 McKellar v The Queen [2014] NSWCCA 35 ............................................ 3.100, 6.100 McNamara v The Queen (1978) 20 ALR 98 ........................... 1.10, 2.40, 3.100, 6.100 Meissner v The Queen [1995] HCATrans 263 ..................................................... 3.170 Meissner v The Queen (No 2) [1997] NSWSC 476 .............................................. 3.180 Mellifont v Attorney-General (Qld) (1991) 173 CLR 289 .................................... 2.120 Michael v The Queen [2012] NSWCCA 164 ......................................................... 2.60 Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427 ......................... 3.130 Milat v Attorney-General (NSW) [1995] HCATrans 397 ....................................... 3.90 Miles v The Queen [2013] ACTCA 52 ................................................................... 2.40 Miller v Director of Public Prosecutions (NSW) [2012] NSWCCA 278 ................. 3.40 Miller v The Queen [2011] NSWCCA 195 .......................................................... 3.180 Mills v The Queen [1986] 1 SCR 863 .................................................................... 1.90 Mokbel v The Queen [2010] VSCA 354 .............................................................. 3.270 Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4 .......... 1.10, 2.30, 3.70, 3.150 Moran v Police [2005] SASC 375 ........................................................................ 3.140 Morrison v Joy Manufacturing Co Pty Ltd (2004) 137 IR 8 .............. 2.30, 3.90, 3.110 Moti v The Queen (2011) 245 CLR 456 .............................................. 2.20, 2.30, 5.60 Moy v Warringah Council (2004) 142 A Crim R 577 ................................... 3.10, 3.90 Muir v The Queen [2006] WASCA 85 ................................................................... 2.20

N NAR v PPC1 (2013) 224 A Crim R 535 ............................. 3.150, 3.170, 4.130, 4.190 Nagi v Director of Public Prosecutions (NSW) [2009] NSWCCA 197 ....... 2.110, 3.30, 3.40, 3.190, 3.290 Nagi v The Queen [2010] HCATrans 146 ........................................ 2.110, 3.30, 3.290 National Crime Authority v Black (unreported, NSW Court of Criminal Appeal, 3 December 1991) ..................................................................... 2.100, 3.40 Newman v The Queen (2007) 173 A Crim R 1 ......................... 3.40, 3.60, 3.120, 5.40 Nguyen v The Queen (2007) 173 A Crim R 557 .................................................. 3.190 Nona v The Queen [2012] ACTCA 55 ................................................................... 2.40 Nona v The Queen (2013) 8 ACTLR 168 ................................................... 2.40, 4.230 Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 ................................................................................................................. 2.110

O O’Grady v The Queen (2014) 252 CLR 621 ......................................................... 5.40 O’Meara v The Queen [2006] NSWCCA 127 ....................................................... 1.10 O’Meara v The Queen [2006] NSWCCA 131 ........................ 3.20, 4.190, 6.90, 6.100 Osborne v The Queen (2014) 283 FLR 97 ......................................... 2.70, 3.170, 6.10 Osman v The Queen [2006] NSWCCA 196 ......................................................... 3.100 Ove Arup Pty Ltd v Industrial Court of New South Wales (2006) 149 IR 193 ................................................................................................................... 2.30 Ove Arup Pty Ltd v WorkCover Authority (NSW) (2005) 141 IR 78 ..................... 6.90 xviii

Table of Cases

P PA v The Queen [2012] VSCA 294 ........................................................................ 2.80 Page v The Queen [2015] VSCA 327 ................................................................... 3.250 PG v The Queen [2010] VSCA 289 ........................................................................ 3.90 PJ v The Queen (2012) 36 VR 402 ............................................................. 1.10, 3.160 PM v The Queen (2007) 232 CLR 370 .................................................................. 3.40 PNJ v Director of Public Prosecutions (Vic) (2010) 27 VR 146 ........ 3.10, 3.100, 3.190 PPC v Williams (2013) 238 A Crim R 25 ............................................................. 2.100 Pace v The Queen [2014] VSCA 317 .............................................. 3.240, 4.110, 4.120 Pellegrino v Director of Public Prosecutions (Cth) (2008) 71 NSWLR 96 .... 1.10, 2.70, 3.90, 3.160 People v Mendiola 8 NE (3rd) 6 (2014) ............................................................... 1.110 Peterson v The Queen [2014] VSCA 111 ....................................... 3.240, 3.270, 4.200 Petroulias v The Queen [2006] NSWCCA 415 .................................................... 4.180 Petroulias v The Queen (2007) 73 NSWLR 134 ................................ 1.30, 3.120, 6.70 Pham v The Queen [2006] NSWCCA 3 ............................................................... 3.100 Piras v The Queen (2006) 167 A Crim R 260 ......................... 2.90, 3.130, 3.140, 5.40 Poliakov v George (2009) 212 A Crim R 461 ...................................................... 3.180 Polyukhovich v Commonwealth (1991) 172 CLR 501 ............................. 1.120, 2.120 Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35 ..................................................................................................................... 3.90 Potier v The Queen [2006] NSWCCA 300 ............................................................. 5.50 Powch v The Queen [2006] NSWCCA 147 ......................................................... 6.100

Q Queanbeyan City Council v Environment Protection Authority (NSW) [2011] NSWCCA 108 ....................................................................................... 3.90 Question of Law Reserved by Trial Judge (No 1 of 2008) (2008) 102 SASR 398 ....................................................................................................... 1.120

R R v AI [2013] ACTCA 16 ...................................................................................... 2.40 R v Abbruzzese [2006] NSWCCA 207 ................................................................. 3.140 R v Abdul-Razzak [2006] NSWCCA 195 ................................................... 1.30, 3.120 R v Abdullah [1999] NSWCCA 188 ................................................ 2.100, 3.170, 6.10 R v Adamson [2005] NSWCCA 7 ............................................................... 3.40, 3.160 R v Adler (2000) 52 NSWLR 451 ........................................................................ 3.240 R v Agius (2011) 80 NSWLR 486 .......................................................................... 3.90 R v Ahmad (2012) 31 NTLR 38 ............................................................................ 2.20 R v Alexandroaia (1995) 81 A Crim R 286 ................................................. 2.70, 3.110 R v Anderson (unreported, NSW Court of Criminal Appeal, 12 October 1989) ................................................................................................... 3.170, 4.200 R v Andrews [2012] SASC 78 ................................................................................ 6.90 R v Arvidson (2008) 185 A Crim R 428 ............................................ 3.270, 4.20, 5.50 R v Aubrey (2012) 82 NSWLR 748 ................................................. 3.90, 3.160, 6.120 R v B (2008) 76 NSWLR 533 ................................................................................ 3.70 R v B [2008] EWCA Crim 1997 ............................................................................ 3.90 R v BK (2000) 110 A Crim R 298 ................................................................. 2.70, 6.60 R v BWM (1997) 91 A Crim R 260 ...................................... 2.70, 2.110, 3.140, 4.200 R v Bailey (1988) 36 A Crim R 30 ....................................................................... 6.100 R v Baker [2006] QCA 472 ................................................................................... 1.10 R v Baker (unreported, NSW Court of Criminal Appeal, 5 April 1993) ............... 3.110 R v Balic (1994) 75 A Crim R 509 ....................................................................... 3.110 R v Barbaro [1998] NSWSC 322 ......................................................................... 3.110 R v Barrie (2012) 218 A Crim R 448 ..................................................................... 2.20 xix

Table of Cases

R v Basha (1989) 39 A Crim R 337 ..................................................................... 3.180 R v Batiste (1994) 35 NSWLR 437 ........................................................................ 3.90 R v Batiste [1995] NSWSC 40 ............................................................................... 3.90 R v Beckett [2015] HCA 38 ................... 2.120, 3.70, 3.90, 3.160, 3.260, 3.280, 4.170 R v Beeby (1999) 104 A Crim R 142 ............................................... 3.90, 3.140, 6.120 R v Belghar (2012) 217 A Crim R 1 ............................................................ 3.20, 3.120 R v Bell [1998] NSWSC 570 .............................................................. 2.70, 3.90, 3.100 R v Benbrika [2011] VSC 471 ............................................................................... 2.80 R v Benischke [2005] NSWCCA 169 ..................................................................... 3.90 R v Beydoun (1990) 22 NSWLR 256 .................................................................... 3.70 R v Bikic (2000) 112 A Crim R 300 ..................................................................... 3.100 R v Billings [2012] NSWCCA 33; [2012] NSWSC 1020 ...................................... 3.100 R v Birdsall [1997] NSWSC 66 ............................................................................ 6.100 R v Birlut (1995) 39 NSWLR 1 ........................................................................... 3.290 R v Boag (1994) 73 A Crim R 35 ....................................................... 2.70, 3.140, 5.50 R v Bowman [2002] NSWCCA 449 ....................................................................... 3.90 R v Bozatsis (1997) 97 A Crim R 296 ....................................... 3.40, 3.90, 4.240, 6.60 R v Brewer [2000] NSWCCA 488 ....................................................................... 3.110 R v Bright [2014] VSCA 341 ............................................................. 2.80, 3.250, 6.60 R v Bruce (unreported, District Court of New South Wales, 25 January 2006) ................................................................................................................ 3.90 R v Buckley (2004) 10 VR 215 ............................................................................ 2.110 R v Bucksath (2000) 114 A Crim R 1 .................................................................... 3.90 R v Burton (2013) 237 A Crim R 238; [2013] NSWCCA 335 ...... 3.210, 3.220, 3.260, 4.40, 7.10 R v CB [2011] NSWCCA 264 ..................................................................... 2.100, 3.90 R v CE [2005] NSWCCA 326 ........................................................... 3.100, 5.70, 6.10 R v Camilleri (2007) 68 NSWLR 720 ......................................................... 3.280, 6.10 R v Carroll (2002) 213 CLR 635 .................................................................. 3.80, 3.90 R v Carver [1999] NSWCCA 135 ................................................................. 3.90, 5.40 R v Ceissman [2010] NSWCCA 50 ...................................................................... 3.250 R v Chami (2002) 128 A Crim R 428 .................................................................. 3.100 R v Chanthovixay [2004] NSWCCA 285 ........................................ 3.200, 3.270, 6.10 R v Chaouk (2013) 40 VR 356 ............................................... 3.90, 4.220, 4.230, 5.80 R v Chapman (2001) 214 LSJS 319 ....................................................................... 2.20 R v Cheikho (2008) 75 NSWLR 323 ..................................................................... 1.10 R v Chekeri (2001) 122 A Crim R 422 .................................................................. 3.90 R v Cheng (1999) 48 NSWLR 616 ........................................................................ 3.60 R v Cittadini (2008) 189 A Crim R 492 ............................................. 2.70, 3.250, 6.10 R v Cittadini [2009] NSWCCA 81 ....................................................................... 3.270 R v Clarke [2008] 1 Cr App R 403 ...................................................................... 3.110 R v Clarkson [1987] VR 962 ................................................................................. 1.40 R v Colby (1995) 84 A Crim R 125 ............................................... 1.120, 3.110, 3.180 R v Cooney [2013] NSWCCA 312 ............................................................. 3.280, 6.60 R v Cox [1999] NSWCCA 229 ...................................................... 2.110, 4.180, 4.200 R v DF (2014) 19 DCLR (NSW) 30 .................................................................... 6.100 R v DG (2010) 28 VR 127 ........ 1.60, 2.70, 2.80, 2.90, 3.10, 3.190, 3.270, 4.30, 4.40, 4.110, 4.160, 4.180, 4.240 R v Daher [2004] NSWCCA 458 .................................................................. 2.70, 3.40 R v Darmody (2010) 25 VR 209 ......................................................................... 3.240 R v Davis [1964] NZLR 417 ...................................................................... 1.80, 3.110 R v Davis (1995) 57 FCR 512 ............................................................. 2.40, 3.90, 5.70 R v Diamond [2013] NSWCCA 337 .................................................................... 3.280 R v Dibble; Ex parte Attorney-General (Qld) (2014) 238 A Crim R 511 ................ 2.20 R v Dinh (2000) 120 A Crim R 42 ................................................... 3.100, 4.60, 4.200 R v Do [1999] NSWCCA 328 .............................................................................. 3.110 R v Dodd (1991) 56 A Crim R 451 ............................................................... 3.80, 6.60 R v Dunn [2000] NSWCCA 171 ........................................................................... 3.80 R v Dyers [1997] NSWSC 508 .......................................................... 3.20, 3.90, 4.190 xx

Table of Cases

R v EK (2009) 75 NSWLR 302 ............................................................................. 2.70 R v ELD [2004] NSWCCA 219 ......................................................... 3.20, 4.130, 6.60 R v Eade (2000) 118 A Crim R 449 ................................................. 1.120, 3.40, 3.280 R v Edelsten (1989) 18 NSWLR 213 ............................................... 1.30, 3.100, 4.130 R v Einfeld (2008) 71 NSWLR 31 ......................................................................... 3.70 R v El-Azzi [2004] NSWCCA 455 ....................................................................... 6.100 R v El-Zeyat [2012] NSWSC 340 .......................................................................... 6.90 R v El Azzi (2001) 125 A Crim R 113 ......................................................... 3.90, 3.160 R v El Hassan (2001) 126 A Crim R 477 ....................................... 3.160, 4.110, 6.100 R v El Moustafa [2010] VSCA 40 ........................................................................ 2.110 R v Elazzi (2001) 125 A Crim R 113 .................................................................... 2.110 R v Elliott (1996) 185 CLR 250 ............................................. 1.10, 1.60, 2.120, 4.210 R v Em [2003] NSWCCA 374 ......................................................... 3.260, 3.280, 6.60 R v F (2002) 129 A Crim R 126 ............................................... 3.10, 3.40, 3.100, 4.80 R v F; Ex parte Attorney-General (Qld) (2003) 140 A Crim R 447 ........................ 2.20 R v FJL [2014] VSCA 57 ................................................................... 3.90, 4.90, 6.100 R v Fandakis [2002] NSWCCA 5 ...................................................... 3.170, 5.30, 6.10 R v Farhat [1999] NSWCCA 174 ............................................................... 3.90, 3.110 R v Fearnside (2009) 3 ACTLR 25 ............................................................. 2.40, 4.230 R v Filimoehala (2003) 138 A Crim R 299 ................................................. 3.140, 5.50 R v Filitis [2004] NSWCCA 68 ............................................................................ 4.240 R v Fisher (2003) 56 NSWLR 625 ................................................................ 3.90, 6.30 R v Folli [2000] NSWCCA 460 ....................................................... 3.100, 4.130, 6.90 R v Forbes [2004] NSWCCA 55 ........................................... 3.110, 3.120, 4.70, 4.190 R v Ford (2009) 201 A Crim R 451 ........ 2.110, 3.40, 3.200, 3.250, 4.240, 5.70, 6.10, 6.50, 6.100 R v Francis (2004) 145 A Crim R 233 ................................................................. 3.170 R v Frangulis [2006] NSWCCA 363 ........................................................... 3.260, 6.10 R v Frawley (2005) 190 FLR 158 ............................................................. 3.150, 3.160 R v Fuller (1997) 69 SASR 251 .................................................................... 2.20, 2.30 R v Fuller (1997) 92 A Crim R 245 ....................................................................... 2.20 R v G [2005] NSWCCA 291 .................................................. 3.260, 3.280, 4.40, 6.60 R v GAC (2007) 178 A Crim R 408 ..................... 2.90, 3.20, 4.20, 4.30, 4.130, 4.190 R v GLC [2000] NSWCCA 99 ............................................................................... 6.80 R v GP (2010) 27 VR 632 ..................................................................................... 2.70 R v Gale (2012) 217 A Crim R 487 ............................................................ 3.250, 6.50 R v Gallagher [2015] NSWCCA 228 ............................................. 3.280, 4.220, 4.240 R v Garrett (1988) 49 SASR 435 ........................................................................... 1.10 R v Garth (2008) 191 A Crim R 256 .......................................................... 1.40, 1.120 R v Gee (2003) 212 CLR 230 ................................................................................ 1.10 R v Geoghegan [1999] NSWCCA 20 ..................................................................... 3.90 R v Georgiou [1999] NSWCCA 125 ......................................................... 3.100, 6.100 R v Gergis [2000] NSWCCA 508 ........................................................................ 3.170 R v Gilfillan (2003) 139 A Crim R 460 .......................................... 3.110, 4.190, 6.120 R v Gilham (2007) 73 NSWLR 308 ....................................................................... 3.90 R v Giovannone (2001) 119 A Crim R 519 ................................................. 2.110, 5.50 R v Glossop [2001] NSWCCA 165 ................................ 2.70, 2.110, 3.40, 3.90, 3.270 R v Goldburg (unreported, NSW Court of Criminal Appeal, 23 February 1993) ................................................................................................. 6.50 R v Groves (unreported, NSW Court of Criminal Appeal, 2 April 1990) .... 3.90, 4.220 R v Guariglia (2012) 35 VR 445 ............................................................................ 3.70 R v H (2002) 132 A Crim R 551 ........................................................................... 3.90 R v Haddad (2000) 116 A Crim R 312 .................................................................. 3.40 R v Halmi [1999] NSWCCA 354 ........................................................................... 3.90 R v Halmi [2005] NSWCCA 263 ........................................................................... 3.90 R v Han [2011] NSWCCA 120 .............................................................................. 6.80 R v Harker [2004] NSWCCA 427 ............ 2.70, 3.230, 3.250, 4.150, 5.30, 6.10, 6.60, 6.110 R v Hatchard (1996) 188 LSJS 98 ....................................................................... 1.120 xxi

Table of Cases

R v Hatfield [1999] NSWCCA 340 ........................................................................ 3.90 R v Heatley [2003] NSWCCA 163 ........................................................................ 6.80 R v Henman [2000] NSWCCA 58 ......................................................................... 3.90 R v His Honour Judge Hewitt; Ex parte Attorney-General (Vic) [1973] VR 484 ........................................................................................................... 1.120 R v Ho (unreported, NSW Court of Criminal Appeal, 18 July 1994) ..................... 2.70 R v Hofschuster (No 2) (1993) 116 FLR 222; (1994) 4 NTLR 179 ....................... 1.50 R v Houlton [1999] NSWCCA 100 ....................................................................... 3.90 R v Hull (1989) 16 NSWLR 385 .................................................................. 2.30, 3.70 R v Huynh (2006) 165 A Crim R 586 .................................................................. 2.110 R v Impiombato (1995) 35 NSWLR 627 ............................................................. 3.140 R v Iorlano (1983) 151 CLR 678 ........................................................................ 2.120 R v Isaac (1996) 87 A Crim R 513 ......................................................................... 3.70 R v JS (2007) 230 FLR 276 .......................................................................... 1.10, 3.60 R v Jackson [2001] NSWCCA 387 ........................................................................ 6.80 R v Jamal (2008) 72 NSWLR 258 ....................................................................... 3.120 R v Jarrett [2012] NSWCCA 81 ............................................................................ 6.60 R v Jasper (2003) 139 A Crim R 329 ............................................................ 3.70, 3.90 R v Jeans [2005] NSWCCA 73 ............................................................................ 3.160 R v Jennings [2010] NSWCCA 193 ..................................................................... 3.250 R v Jewitt [1985] 2 SCR 128 ................................................................................. 1.90 R v Johnson (2001) 125 A Crim R 564 .................................................................. 3.90 R v Joyce (2003) 38 MVR 432; [2003] NSWCCA 84 ........................ 3.90, 3.170, 5.50 R v Joyce [2003] NSWCCA 280 ........................................................ 3.90, 3.170, 5.50 R v Joyce (2004) 1 DCLR (NSW) 290 ........................................................ 3.160, 5.30 R v K [2008] QB 827 .......................................................................................... 4.230 R v Kanaan [2003] NSWCCA 190 ...................................................................... 3.190 R v Kanaan [2003] NSWCCA 396 ......................................... 1.120, 3.40, 3.60, 3.160 R v Kanaan (2005) 64 NSWLR 527; [2007] HCATrans 402 ............................... 1.120 R v Karabegovic (2013) 282 FLR 383; [2013] VSC 566 .................. 1.10, 1.120, 2.120 R v Karabegovic (No 2) [2013] VSC 576 ........................................... 2.80, 4.70, 4.110 R v Karabegovic (No 4) [2015] VSC 661 ............................................................... 4.40 R v Kazzi (2003) 140 A Crim R 545 .................................................................... 3.240 R v Kean [1985] VR 255 ....................................................................................... 1.40 R v Keeling (unreported, NSW Court of Criminal Appeal, 5 September 1996) .............................................................................................................. 3.170 R v Kennedy (1997) 94 A Crim R 341 ...................................... 3.90, 5.50, 6.50, 6.100 R v Kennedy [1998] NSWSC 671 ........................................................................ 6.100 R v Kenny [1998] NSWSC 774 .................................................................. 3.90, 3.100 R v Kenny [2000] NSWCCA 364 .......................................................................... 3.90 R v King (2003) 59 NSWLR 472 .............................................. 1.30, 3.60, 3.90, 6.120 R v King [2013] ACTCA 23 ................................................................................. 4.110 R v Kurungaiyi (2005) 15 NTLR 70 ............................................................. 2.20, 2.30 R v Kwok (2005) 64 NSWLR 335 ....................................................................... 3.190 R v LB (2011) 246 FLR 466 .................................................................................. 2.20 R v LK (2010) 241 CLR 177 ............................................................. 1.10, 1.120, 5.60 R v LRG (2006) 16 VR 89 ................................................................................... 2.110 R v Laba [1994] 3 SCR 965 .................................................................................. 1.90 R v Ladocki [2002] NSWCCA 442 ...................................................................... 3.280 R v Lam [2000] NSWCCA 252 ........................................................................... 3.110 R v Lameri [2004] NSWCCA 217 ................................. 2.70, 3.200, 4.20, 4.40, 4.150 R v Lane (2011) 221 A Crim R 309 .......................................................... 3.230, 3.290 R v Lang [2008] NSWCCA 41 ............................................................................... 3.90 R v Lavender (2002) 37 MVR 491 .................................................... 2.70, 3.40, 3.200 R v Lee (2000) 50 NSWLR 289 ........................................................................... 3.170 R v Leece (1996) 65 FCR 544 ................................................................................ 3.90 R v Leonard [2008] 2 NZLR 218 ....................... 1.60, 1.80, 4.50, 4.180, 4.210, 4.250 R v Lethlean (1995) 83 A Crim R 197 ................................................. 2.70, 3.40, 3.60 R v Li [2002] NSWCCA 215 ................................................................................. 3.90 xxii

Table of Cases

R v Lilley [1998] NSWSC 161 ............................................................................. 3.170 R v Lin (No 3) [2014] NSWSC 1733 ................................................................... 1.120 R v Lipton (2011) 82 NSWLR 123; (2012) 224 A Crim R 177 ....... 3.90, 3.170, 3.290, 6.60, 6.100 R v Lisoff [1999] NSWCCA 364 ............................................ 3.40, 3.190, 4.250, 6.60 R v Littler (2001) 120 A Crim R 512 ................................................... 3.90, 5.50, 6.50 R v Long (No 1) [2002] 1 Qd R 662 .......................................................... 1.10, 3.110 R v Lowe [2003] NSWCCA 303 .......................................................................... 3.110 R v Lowrie [1998] 2 Qd R 579 .............................................................................. 1.10 R v Luland [2007] NSWCCA 64 ......................................................................... 3.120 R v MG (2007) 69 NSWLR 20 .......................................................... 3.90, 3.130, 6.20 R v MK (2012) 223 A Crim R 572 ...................................................................... 3.270 R v MM [2004] NSWCCA 364 ............................................ 3.200, 3.250, 3.280, 6.60 R v MM [2014] NSWCCA 144 ........................................................................... 3.250 R v MR [2013] NSWCCA 236 .......................................................... 3.250, 4.20, 4.30 R v Mailes [1999] NSWCCA 127 ............................................................. 3.160, 4.190 R v Manley (2000) 49 NSWLR 203 .................................................................... 6.120 R v Many [1997] NSWSC 358 .............................................................................. 3.90 R v Marchando (2000) 110 A Crim R 337 .......................................................... 3.180 R v Marchione (2002) 128 A Crim R 574 ......................................... 3.60, 3.90, 4.220 R v Matovski (1989) 15 NSWLR 720 ........................................................ 2.70, 4.140 R v McConalogue [2010] NSWCCA 56 ................................. 3.40, 3.230, 3.280, 4.40 R v McConnell (1985) 2 NSWLR 269 ................................................................... 1.30 R v McDonald (unreported, NSW Court of Criminal Appeal, 10 August 1994) ....................................................................................................... 5.50, 5.60 R v McGee (2008) 102 SASR 318; [2009] HCATrans 81 ...................................... 2.20 R v McKeough [2003] NSWCCA 385 ................................................................. 3.280 R v Meissner (1994) 76 A Crim R 81 ................................................................... 3.170 R v Meissner [1999] NSWCCA 91 ............................................................. 3.90, 6.100 R v Meltzer [1989] 1 SCR 1764 ............................................................................ 1.90 R v Mifsud (unreported, NSW Court of Criminal Appeal, 8 November 1995) .............................................................................................................. 3.120 R v Milakovic [2004] NSWCCA 199 ................................................ 3.20, 3.190, 4.20 R v Milenkovic [2005] NSWCCA 382; (2005) 158 A Crim R 4 .................. 5.30, 6.120 R v Miller (2001) 127 A Crim R 344 ............................................... 2.70, 3.140, 3.160 R v Mokbel [2010] VSC 349 .................................................. 2.80, 4.70, 4.120, 4.200 R v Moore [2015] NSWCCA 316 ........................................................ 3.90, 4.20, 6.50 R v Morton (2008) 191 A Crim R 333 ................................................................ 3.240 R v Mosely (1992) 28 NSWLR 735 ..................................................... 3.90, 5.40, 6.30 R v Moti (2010) 240 FLR 218 ...................................................................... 2.20, 5.60 R v Muller (2013) 7 ACTLR 296 ................................................................ 2.40, 3.180 R v Mundine (2008) 182 A Crim R 302 .............................................................. 3.240 R v Munro (unreported, NSW Court of Criminal Appeal, 30 June 1994) ............. 1.30, 3.120 R v N [1998] NSWSC 281 .................................................................................. 3.170 R v NKS [2004] NSWCCA 144 .......................... 2.70, 3.200, 4.40, 4.160, 5.30, 6.120 R v Naidu [2010] VSCA 265 ............................................................................... 4.220 R v Nanai [2000] NSWCCA 204 ........................................................................... 3.20 R v Nassif [2004] NSWCCA 433 .............................................................. 3.250, 4.130 R v Natoli [2005] NSWCCA 292 ...................................................... 3.40, 3.60, 4.160 R v Negline (unreported, NSW Court of Criminal Appeal, 25 February 1997) ................................................................................................................ 3.20 R v Ngatikaura (2006) 161 A Crim R 329 ................................ 3.20, 3.250, 4.40, 6.50 R v Nguyen [2010] NSWCCA 97 .................................................... 3.200, 3.230, 4.40 R v Nicholson (1998) 102 A Crim R 459 ............................................................... 3.90 R v Nona [2014] HCATrans 44 .................................................................. 2.40, 4.230 R v Norris [2014] NSWCCA 76 ................................................................. 3.200, 6.10 R v OC [2015] NSWCCA 212 ...................................................................... 1.10, 3.90 R v O’Connor [2000] NSWCCA 124 ........................................................... 3.90, 6.10 xxiii

Table of Cases

R v O’Halloran (2000) 182 ALR 431 ......................................................... 1.10, 3.150 R v OM (2011) 212 A Crim R 293 ............................................................. 1.120, 3.40 R v O’Meara (2001) 163 FLR 366; [2001] NSWCCA 340 .................................... 1.10 R v O’Meara [2001] NSWCCA 195 .................................................................... 3.110 R v O’Meara [2003] NSWCCA 206 ....................................... 3.20, 4.190, 6.90, 6.100 R v O’Neill (2001) 122 A Crim R 510 ................................................................... 3.40 R v PJE [1995] NSWSC 117 ................................................................................ 3.210 R v PNJ (2010) 27 VR 146 .................................................................................... 2.30 R v PWD (2010) 205 A Crim R 75 ...................................................................... 3.250 R v Pavia (1993) 67 A Crim R 364 ............................................................... 3.20, 3.90 R v Payara (2012) 36 VR 326 .............................................................................. 6.110 R v Peart [2015] NSWCCA 321 ................................................................ 1.10, 3.160, R v Pera [1999] NSWCCA 348 .............................................................................. 5.30 R v Pera [2000] NSWCCA 109 ............................................................................ 3.240 R v Petroulias (2005) 62 NSWLR 663 .......................................................... 3.90, 5.60 R v Petroulias (No 1) (2006) 217 FLR 242 .......................................................... 6.100 R v Phan [2003] NSWCCA 205 ........................................................ 2.90, 3.280, 6.10 R v Piper [2005] NSWCCA 134 ................................................................. 3.40, 3.160 R v Pirrottina (1996) 88 A Crim R 220 ....................................................... 3.110, 5.40 R v Plummer (unreported, NSW Court of Criminal Appeal, 12 July 1989) .............................................................................................................. 4.180 R v Potier [2001] NSWCCA 404 ........................................................................... 3.90 R v Powch (1988) 14 NSWLR 136 ............................................................. 1.30, 3.180 R v Prasad (1979) 23 SASR 161 ............................................................................ 3.60 R v RAG [2006] NSWCCA 343 .......................................................................... 3.180 R v RGC [2012] NSWCCA 271 .......................................................... 5.70, 6.70, 6.80 R v RM (2012) 221 A Crim R 465 ........................................................................ 3.90 R v RWO [2002] NSWCCA 133 ........................................................................... 3.90 R v Reid (2004) 148 A Crim R 425 ..................................................................... 3.130 R v Renton [2001] QCA 403 ................................................................................. 1.10 R v Rima (2003) 145 A Crim R 27 ........................................................... 3.270, 6.120 R v Rogerson (1990) 45 A Crim R 253 ............................................ 3.110, 3.130, 5.40 R v Ronen (2004) 62 NSWLR 707; [2004] NSWCCA 67 ........................ 3.150, 3.170 R v Ronen [2004] NSWCCA 189 ...................................................... 3.90, 3.120, 5.30 R v Ronen (2004) 211 FLR 320 ...................................................... 3.120, 3.150, 5.30 R v Ronen (2006) 161 A Crim R 300 .................................................................... 5.30 R v Ryan [2000] NSWCCA 184 ............................................................................ 3.90 R v Ryan [2013] NSWCCA 316 ............................................................................ 4.30 R v SA [2011] NSWCCA 60 ................................................................................ 3.280 R v SJRC [2007] NSWCCA 142 ............................................... 3.270, 4.20, 4.40, 6.60 R v SK [2011] NSWCCA 292 ..................................................................... 3.250, 4.80 R v Salami [2013] NSWCCA 96 ............................................................................ 6.10 R v Sarlija (2006) 167 A Crim R 101 ................................................. 2.40, 4.160, 6.10 R v Saunders (1994) 72 A Crim R 347 ............................................ 1.30, 3.100, 6.100 R v Scott (unreported, NSW Court of Criminal Appeal, 8 December 1998) ................................................................................................................ 5.60 R v Seebag (unreported, NSW Court of Criminal Appeal, 16 February 1993) ................................................................................................................ 3.90 R v Selim [2007] NSWSC 362 ............................................................................. 6.100 R v Seller (2013) 232 A Crim R 249 ......................................... 1.10, 1.30, 4.210, 6.10 R v Seller [2015] NSWCCA 76 ............................................... 1.10, 3.90, 3.170, 3.180 R v Sepulveda [2003] NSWCCA 131 ................................................................... 3.180 R v Sewell [2001] NSWCCA 299 ................................................................ 3.140, 5.40 R v Sexton (2000) 76 SASR 534 ................................................................. 1.120, 2.20 R v Shamouil (2006) 66 NSWLR 228 ............................. 2.70, 3.240, 4.20, 4.30, 4.40 R v Sheehan [2005] NSWCCA 250 ...................................................................... 3.110 R v Sibraa [2012] NSWCCA 19 ............................................................................. 6.60 R v Sinanovic [1999] NSWCCA 216 ................................................................... 1.120 R v Sinanovic [2001] NSWCCA 217 ................................................................... 3.190 xxiv

Table of Cases

R v Skase [1995] 2 Qd R 297 ..................................................................... 1.10, 4.140 R v Slattery (unreported, NSW Court of Criminal Appeal, 9 December 1988) ................................................................................................................ 3.90 R v Sloane (1990) 49 A Crim R 270 ...................................................................... 3.90 R v Smith (1985) 159 CLR 532 ........................................................................... 3.190 R v Smith (1996) 86 A Crim R 308 ................................................. 2.100, 3.190, 6.50 R v Smith (2008) 190 A Crim R 8 .......................................................................... 6.60 R v Snow (1915) 20 CLR 315 ...................................................................... 1.10, 3.40 R v Sood [2007] NSWCCA 214 ............................................................................ 4.30 R v Stanley [2013] NSWCCA 124 .............................................................. 3.120, 6.50 R v Steffan (1993) 30 NSWLR 633 ............ 2.60, 2.70, 3.40, 3.70, 3.90, 3.110, 3.130, 4.200, 4.220, 4.240 R v Stevens (2010) 107 SASR 456 ......................................................................... 2.20 R v Stig (unreported, NSW Court of Criminal Appeal, 17 October 1996) .......................................................................................... 2.70, 2.100, 3.170 R v Stolpe (unreported, NSW Court of Criminal Appeal, 30 October 1996) ....................................................................................................... 5.30, 5.40 R v Stone (2005) 64 NSWLR 413 ......................................................................... 3.80 R v Subramaniam [2000] NSWCCA 441 ...................................................... 3.90, 5.50 R v T (unreported, NSW Court of Criminal Appeal, 19 October 1988) ............... 3.100 R v Taipavalu (2002) 130 A Crim R 513 ............................................................... 2.90 R v Tang (2007) 16 VR 454 .................................................................................. 1.40 R v Tang (2008) 237 CLR 1 .................................................................................. 1.40 R v Tang (2009) 23 VR 332 .................................................................................. 1.40 R v Taylor (2007) 169 A Crim R 543 .................................................................. 3.170 R v Tedge [1979] WAR 12 ..................................................................................... 1.10 R v Thomas (2006) 14 VR 475 ............................................................ 1.40, 1.60, 2.60 R v Tragear (2003) 9 VR 107 .............................................................................. 2.110 R v VPH (unreported, NSW Court of Criminal Appeal, 4 March 1994) ................ 3.90 R v Veitch (2012) 15 DCLR (NSW) 152 ..................................................... 2.70, 2.100 R v Verrall [2013] 1 Qd R 587 ................................................................... 1.10, 3.140 R v Vincent [2002] NSWCCA 110 ......................................................................... 3.80 R v Vjestica (2008) 182 A Crim R 350 .................................................................. 6.90 R v Vorhauer [2002] NSWCCA 483 ......................................................... 3.200, 4.200 R v Vos (2011) 223 A Crim R 316 ......................................................................... 3.90 R v WRC (2003) 59 NSWLR 273 .............................................................. 3.90, 3.120 R v Waterhouse (1992) 62 A Crim R 59 ............................................ 3.10, 4.70, 4.130 R v Watson [1999] 3 NZLR 257 ........................................................................... 1.80 R v Webb (2012) 225 A Crim R 550 ...................................................................... 3.90 R v Westley [2004] NSWCCA 192 ...................................................... 3.90, 5.50, 6.10 R v Wilkie (2005) 64 NSWLR 125 ........................................................... 3.150, 3.180 R v Wood [2006] 3 NZLR 743 .............................................................................. 1.80 R v XY (2010) 79 NSWLR 629 ................................................................ 3.240, 4.210 R v XY (2013) 84 NSWLR 363 ............................................ 3.260, 3.270, 4.30, 4.170 R v Xin Gong [2002] NSWCCA 43 ....................................................................... 3.20 R v Young (1999) 46 NSWLR 681 ...................................................................... 2.100 R v Yuill (1993) 69 A Crim R 450 .................................................. 3.110, 3.250, 4.240 R v Zheng [1997] NSWSC 387 ............................................................................. 4.70 R v Zheng [2013] VSC 559 ............................................................. 2.90, 3.290, 4.250 RA v The Queen (2007) 175 A Crim R 221 ................................................ 2.70, 3.180 REE v The Queen (2010) 203 A Crim R 11 ................................................ 3.110, 4.90 RHB v The Queen [2011] VSCA 295 ................................................................... 3.100 RM v The Queen (2012) 221 A Crim R 465 ...................................... 4.120, 5.30, 6.60 Ratcliff v The Queen [2013] NSWCCA 259 ........................................................ 3.150 Redman v The Queen [2015] NSWCCA 110 .............................................. 3.120, 6.50 Reeves v The Queen (2013) 236 A Crim R 448 ..................................................... 6.90 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (2000) 100 IR 156 ................................................................................ 4.220 Robinson v Zhang (2005) 158 A Crim R 575 ...................................................... 6.120 xxv

Table of Cases

Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7 ....................................................................................... 2.30, 5.40 Rogers v The Queen (1994) 181 CLR 251 ......................................... 1.80, 2.120, 3.90 Rohde v Director of Public Prosecutions (Cth) (1986) 161 CLR 119 ..................... 1.10 Rotner v The Queen [2011] NSWCCA 207 ......................................................... 3.140 Rozenes v Beljajev [1995] 1 VR 533 .................................................................... 1.120 Rozenes v Judge Kelly [1996] 1 VR 320 .............................................................. 1.120 Rozenes, Re; Ex parte Burd (1994) 120 ALR 193 ................................................ 2.120 Russell v Western Australia (2011) 214 A Crim R 326 ........................................... 2.30

S SAJ v The Queen (2012) 36 VR 435 .................................................................... 3.160 SC v The Queen [2010] VSCA 271 ...................................................................... 4.170 SD v The Queen [2011] VSCA 76 ........................................................................ 3.120 SLS v The Queen [2014] VSCA 31 ........ 2.90, 3.90, 3.170, 3.180, 3.190, 3.250, 4.120, 4.140, 5.50, 6.10, 6.60 SPA v The Queen [2011] VSCA 306 ..................................................................... 3.250 Salter v Director of Public Prosecutions (NSW) (2009) 75 NSWLR 392 ................ 2.60 Sanders v The Queen [2016] VSCA 6 .............................................. 2.80, 3.260, 6.100 Sankey v Whitlam (1978) 142 CLR 1 .................................................................. 2.120 Santos v Western Australia [2011] WASCA 216 ..................................................... 2.20 Santos v Western Australia [No 2] [2013] WASCA 39 ........................................... 2.20 Sasterawan v Morris (2010) 201 A Crim R 302 ............ 1.10, 2.110, 3.10, 3.40, 3.110, 3.180, 4.220, 6.110 Selim v The Queen [2006] NSWCCA 378 ......................................... 2.30, 3.70, 3.160 Seller v The Queen [2013] HCATrans 204 ................................ 1.10, 1.30, 4.210, 6.10 Serfass v United States 420 US 377 (1975) ........................................................... 1.110 Sewell v The Queen [2001] HCATrans 529 ................................................ 3.140, 5.30 Singh v The Queen (2011) 33 VR 1 ........................... 3.240, 3.270, 4.20, 4.120, 4.160 Slotboom v The Queen [2013] NSWCCA 18 ....................................................... 3.110 Smith v The Queen (1994) 181 CLR 338 ..................................................... 1.40, 3.90 Smith v The Queen (2007) 35 WAR 201 ............................................................... 2.30 Solomons v District Court (NSW) (2002) 211 CLR 119 ........................... 6.120, 6.140 Sood v The Queen [2006] NSWCCA 252 ............................................................ 3.170 Sood v The Queen [2007] NSWCCA 214 ............................................................ 3.270 Southern Adelaide Health Service Inc v C; Case Stated on Acquittal (No 1 of 2006) (2007) 97 SASR 556 ...................................................................... 2.100 Stamp Duties (NSW), Commissioner of v Owens (No 2) (1953) 88 CLR 168 ................................................................................................................. 6.140 Standen v Director of Public Prosecutions (Cth) (2011) 254 FLR 467 ................... 3.90 Stanizzo v Complainant [2013] NSWCCA 295 ........................................... 5.40, 6.110 Stannard v Director of Public Prosecutions (Vic) (2010) 28 VR 84 ............ 2.80, 3.140, 3.160, 4.120 Subramaniam v The Queen (2004) 211 ALR 1 ............................................. 3.90, 5.50

T THD v The Queen (2010) 200 A Crim R 106 ...................................................... 3.270 TS v The Queen [2014] NSWCCA 174 ..................................... 2.80, 2.110, 3.90, 6.50 Tampion v Anderson (1973) 3 ALR 414 ................................................................ 3.30 Tasmania v Johnston (2009) 18 Tas SR 195 .......................................................... 1.50 Thornberry v The Queen (1995) 69 ALJR 777 .................................................... 3.110 Tonari v The Queen (2013) 237 A Crim R 490 .................................................... 3.290 Tuite v The Queen [2015] VSCA 148 ................................... 3.190, 4.240, 6.90, 6.100 Tuite v The Queen (No 2) [2015] VSCA 180 .............. 1.40, 1.120, 2.80, 3.190, 3.210, 4.140, 6.90 xxvi

Table of Cases

U UR v The Queen [2011] VSCA 152 ..................................................................... 3.140 Uelese v Minister for Immigration and Border Protection (Cth) (2015) 89 ALJR 498 ................................................................................................... 3.220 Ul-Haque v The Queen [2006] NSWCCA 241 .......................................... 3.110, 3.150 Ul-Haque v The Queen [2007] HCATrans 61 ........................................... 3.110, 3.150 United States v Boyd 566 F (2nd) 929 (1978) ...................................................... 1.110 United States v Martinez 763 F (2nd) 1297 (1985) .............................................. 1.110

V Vasiliou v The Queen [2014] VSCA 22 ................................................ 2.80, 2.90, 3.90 Velkoski v The Queen [2014] VSCA 121 .................................................. 3.100, 3.250 Victoria v Brazel (2008) 19 VR 553 ..................................................................... 3.170 Victorian Legal Aid v Lewis (1998) 98 A Crim R 551 ............................................ 1.40 Vjestica v The Queen (2008) 182 A Crim R 350 .................................................. 3.110

W WC v The Queen [2012] NSWCCA 231 .............................................................. 3.120 WEA v The Queen [2013] VSCA 386 ......................................................... 3.250, 6.90 WK v The Queen (2011) 33 VR 516 .......................... 3.260, 3.270, 3.280, 4.230, 5.10 WO v Director of Public Prosecutions (NSW) [2009] NSWCA 370 .......... 1.120, 3.160 WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 ........ 1.120, 2.70, 3.40, 3.110, 3.160 Walker Corporation v Sydney Harbour Foreshore Authority (2008) 233 CLR 259 ........................................................................................................... 3.10 Walsh v Tattersall (1996) 188 CLR 77 ................................................................... 2.30 Warren v Coombes (1979) 142 CLR 531 ............................................................. 2.110 Watkins v Commissioner of the Australian Federal Police [2015] VSCA 321 ........................................................................................................ 2.100, 5.80 Watkins v Director of Public Prosecutions (Vic) [2015] VSCA 363 ........... 2.100, 3.280 Watson v Attorney-General (NSW) (1987) 8 NSWLR 685 .................................... 1.30 Wells v The Queen [2010] VSCA 100 ........................................................... 2.80, 3.90 Wells v The Queen (No 2) [2010] VSCA 294 ....... 2.70, 2.80, 3.190, 4.20, 4.40, 4.120, 4.200, 4.230 Western Australia v Burke (2011) 42 WAR 124 ..................................................... 3.60 Western Australia v Burke [No 2] [2012] WASCA 129 ........................................ 6.140 Western Australia v Rayney (2013) 46 WAR 1 ........................................... 4.240, 5.60 Western Australia v Russell [2009] WASCA 154 .................................................... 2.30 Wilkie v The Queen [2005] HCATrans 849 ......................................................... 3.180 Witness v Marsden (2000) 49 NSWLR 429; [2000] NSWCA 52 ......................... 2.100 Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129 ................... 3.140 WorkCover Authority of New South Wales v TMG International Pty Ltd (2002) 116 IR 128 ........................................................................... 3.90, 3.110

xxvii

Table of Cases

X X v Director of Public Prosecutions (Vic) [1995] 2 VR 622 ................................. 3.180 X v The Queen [2011] NSWCCA 202 .......................................................... 2.80, 3.70 X7 v The Queen (2014) 292 FLR 57 .......................................................... 3.90, 4.170

Y Yates v Wilson (1989) 168 CLR 338 ................................................................... 2.120

Z ZL v The Queen (2010) 208 A Crim R 325 ........ 2.80, 3.240, 4.40, 6.10, 6.100, 6.130

xxviii

Table of Statutes Commonwealth

New South Wales

Constitution: 3.150, 5.30 s 73(ii): 1.10, 2.120 s 80: 3.150, 3.180 Federal Court of Australia Act 1976 s 4: 1.10, 2.50 s 24(1)(b): 2.40 s 25(2): 2.50 s 30AA(4): 1.10 s 30AA(4)(b): 1.10, 2.50 s 30AB(2): 2.50 s 30AC(1)(b): 2.100 s 30AE(3)(a): 2.50 s 30AJ(4): 4.60 Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008: 1.10, 2.50, 6.60 Federal Proceedings (Costs) Act 1981: 6.140 s 6(1): 6.140 s 8(2): 6.140 s 10(3): 6.140 Judiciary Act 1903 s 35: 2.120 s 39B: 1.120 ss 39B(1B) to (1F): 1.120 s 39B(3): 1.120 s 68(1)(d): 1.10 s 68(2): 1.10 s 78B: 3.150 Seat of Government Acceptance Act 1909 s 6(1): 2.40 Seat of Government Supreme Court Act 1933 s 52: 2.40

Bail Act 2013 s 67(1)(e): 3.20 Costs in Criminal Cases Act 1967: 3.20 s 2(1)(a): 6.120 s 2(3): 6.120 s 3: 6.120 Crimes Act 1900 s 61HA: 3.160 s 61HA(1): 3.160 s 61HA(3)(e): 3.160 s 73: 3.160 s 93G(1)(b): 1.120 s 428: 1.120 ss 428A to 428I: 3.160, 7.20 Crimes (Amendment) Act 1924 s 32: 1.120 s 33: 1.30 Crimes (Appeal and Review) Act 2001 s 53(3)(a): 1.120 s 107: 1.120, 3.160, 3.180, 5.60 s 107(1)(a): 3.60, 4.250 s 107(2): 6.100 Crimes Legislation Further Amendment Act 2003 s 3: 2.60 s 3(2): 1.30 s 3(3A): 1.30 Sch 3, item 8: 1.30, 2.60 Crimes (Local Courts Appeal and Review) Act 2001 s 56(1)(c): 6.120 Criminal Appeal Act 1912: 2.40 s 2(1): 1.10 s 3(1): 5.10 s 5A: 1.120 s 5C: 1.30, 2.30, 2.60, 3.40, 3.70, 3.160, 6.40 s 5F: 1.30, 2.30, 3.10, 3.20, 3.40, 3.60, 3.70, 3.110, 3.120, 3.130, 3.150, 3.160, 3.170, 3.180, 3.190, 3.210 s 5F(3A): 2.60, 3.40, 3.160, 3.180, 3.190, 3.200, 3.210, 3.250, 4.40, 5.30 s 5F(3AA): 2.60, 2.100, 3.170, 7.30 s 5F(3AB): 2.60, 2.100, 3.170, 7.30 s 5F(1)(a): 3.20, 3.180 s 5F(1)(b): 3.10, 3.140

Australian Capital Territory Human Rights Act 2004 s 22(2)(c): 2.40 s 22(4): 1.10 Supreme Court Act 1933 s 37E(2): 2.100 s 37E(2)(a): 2.40 s 37E(4): 2.40 s 37J(1)(a): 2.40

xxix

Table of Statutes Criminal Appeal Act 1912 — cont

s 293: 3.210 s 306I: 3.180 ss 306M to 306ZP: 3.180 Pt 3, Div 2: 3.20 Director of Public Prosecutions Act 1986 s 4: 1.30 Evidence Act 1995: 3.240, 3.250 s 4: 3.190 s 26: 3.180 s 55(1): 3.200, 3.210 s 66: 4.210 s 75: 5.50 s 79: 3.190 s 83(2): 3.260 s 84: 3.260, 3.270 s 84(1)(a): 4.240 s 85: 3.260, 3.270 s 85(1): 3.260 s 85(2): 3.260 s 90: 3.260, 3.270 s 97: 3.250, 6.10 s 98: 3.250 s 100: 3.250 s 101: 3.250, 6.10 ss 113 to 115: 3.240 s 128(7): 3.20 s 135: 3.270 ss 135 to 137: 3.270 s 136: 3.270 s 137: 3.240, 3.260, 3.270, 4.30 s 138: 3.250, 3.280 s 139: 3.280 s 177(7): 3.190 s 192: 3.180 Evidence (Audio and Audio Visual Links) Act 1998 s 5B: 3.180 Interpretation Act 1987 s 8(b): 4.40 s 36(2)(b): 5.40 Jury Act 1977 s 22: 3.120 Jury Amendment Act 2008 s 4: 1.30 Sch 2: 1.30 Justices Act 1902 s 51A: 3.140 Law Enforcement (Controlled Operations) Act 1997 s 16: 3.280 Legal Aid Commission Act 1979 s 57: 3.110 Mental Health (Criminal Procedure) Amendment Act 2005 s 3: 3.120 Sch 1, item 4: 3.120 Mental Health (Forensic Procedures) Act 1990: 3.60

s 5F(1)(c): 3.10 s 5F(2): 1.30, 2.60, 3.40, 3.180, 3.190, 3.250 s 5F(3): 2.60, 3.40, 3.80, 3.90, 3.170, 3.180, 3.190, 3.210, 6.110 s 5F(4): 5.50 s 5F(5): 3.90 s 5F(5)(a): 6.10, 6.50, 6.60, 6.70 s 5F(5)(b): 6.10, 6.50, 6.60, 6.70 s 5F(6): 6.90, 7.30 s 5G: 1.30, 2.60, 3.40, 3.120, 5.30, 6.70, 6.110 s 5G(2): 3.120 s 5G(3): 6.70 s 5AE: 1.120 s 6: 3.250 s 6(1): 5.50 s 12(1): 6.20 s 12(2): 6.50 s 17(1): 6.110, 6.120 s 22(1)(a): 5.10 s 22(1)(c): 5.40 s 22(1)(i): 5.40 s 22(2): 5.10, 5.40 s 23(2): 1.120 Criminal Appeal (Amendment) Act 1986 s 3: 1.30 Sch 1, item 2: 1.30 Criminal Appeal (Amendment) Act 1987: 1.30 s 5C: 1.30 s 5F: 2.50 s 5G: 2.50 Criminal Appeal Rules r 4: 4.220, 5.20 r 5B: 5.20, 5.40 r 11A: 2.70, 5.20 r 23B: 5.20 r 23E: 5.20 r 24(1)(e): 5.20 r 24(2): 5.20 r 24A: 5.20 r 24B: 5.20 r 27: 5.40 r 28: 5.40 Criminal Procedure Act 1986 s 17(1): 3.70 s 21(1): 3.110 s 21(2): 3.100 s 30: 3.110 s 32: 3.80 ss 99 to 108: 3.140 s 104: 3.140 s 130A: 3.20, 3.250, 4.130 s 130A(1): 3.280 s 132: 3.120 s 281: 3.260 ss 290 to 294D: 3.180 xxx

Table of Statutes

Mental Health (Forensic Provisions) Act 1990 s 10(4): 3.60 s 11A: 3.120 Suitors’ Fund Act 1951: 6.120 s 6(2)(b): 6.120 s 6(5): 6.120 s 6A(1)(c): 6.120 s 6C: 6.120 Supreme Court Act 1970 s 3(a1): 1.120 s 17(1)(a1): 2.100 s 3(a2): 1.120 s 17(1)(a2): 2.100 s 17(1): 1.30, 1.120 s 69(4): 2.100 s 101(2)(e): 7.20 Sch 3: 1.30, 2.100

Northern Territory Criminal Code s 414(1)(e): 2.20 Pt X: 1.10

Queensland Criminal Code s 669A(1A): 2.20 Criminal Code 1899 s 590AA(4): 1.10 District Court of Queensland Act 1967 s 118(1)(a): 1.10

South Australia Criminal Law Consolidation Act 1935 s 269Y(3): 2.20 s 269Y(4): 2.20 s 281(1): 2.30 s 348: 1.10, 2.20 s 350: 1.120 s 352(1)(b): 1.10, 2.20 s 352(1)(c): 1.10, 2.20 s 352(1)(c)(i): 2.20 Magistrates Court Act 1991 s 42(1a): 2.20

Tasmania Criminal Code: 1.10, 1.50, 1.90 s 21: 1.50 s 339(1)(a): 1.50 s 339(1)(b): 1.50 s 401(2)(b): 1.10, 1.50 s 401(2)(d): 1.10, 1.50, 2.20

s 401(2)(ba): 1.10, 2.20 s 414(1)(a): 1.10, 1.50 s 414(1)(b): 1.10 s 414(1)(e): 1.10 Criminal Code Act 1975 s 12(b): 1.50 Criminal Code Amendment Act (No 4) 1994 s 3(c): 1.50 Justice and Related Legislation (Further Miscellaneous Amendments) Act 2009 s 9(b): 1.50

Victoria Administrative Law Act 1978 s 10: 2.100 Appeal Costs Act 1998 s 15: 6.130 s 15A: 6.130 s 15B: 6.130 s 16: 6.130 Charter of Human Rights and Responsibilities: 4.230 s 24(3): 5.70 Charter of Human Rights and Responsibilities Act 2006 s 25(4): 1.10 Crimes Act 1958 s 464A (2): 3.260 s 464H: 3.260 Crimes (Amendment) Act 1998 s 6: 1.40 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s 14A: 1.10 Criminal Procedure Act 2009: 1.40, 2.70, 4.110, 4.170 s 3: 2.70, 3.90 s 5F(3AA): 2.100 s 5F(3): 2.100 s 5F(6): 6.90 s 159(3)(c): 3.100 s 194: 3.250 s 197(2): 3.90 s 197(3): 3.90, 7.30 s 197(7): 1.40 s 199: 2.70 ss 203 to 205: 3.20 s 209(4): 3.140 s 210(1): 2.90, 5.40 s 241(3): 1.120 s 276(1)(b): 3.250 s 276(1)(c): 3.250 s 277(1)(a): 6.130 s 277(1)(d): 6.130 s 293: 3.100 xxxi

Table of Statutes Criminal Procedure Act 2009 — cont

s 295: 6.130 s 295(1): 3.20, 3.180, 3.190, 4.20 s 295(2): 2.70, 2.100, 3.80, 3.220 s 295(3): 2.80, 4.10 s 295(3)(a): 2.70, 2.80, 2.110, 3.100, 3.190, 3.200, 3.220, 4.40 s 295(3)(b): 2.80, 3.100, 3.190, 4.90 s 295(3)(c): 2.90, 4.190 s 295(4): 5.40 s 296: 2.80, 2.90, 4.20, 4.40, 4.50 s 296(2): 5.40 s 296(4)(a): 2.80, 4.20 s 297(1): 2.80, 2.90, 7.20 ss 297(1)(a) to (c): 4.60 ss 297(1)(b)(i) to (iv): 4.110 s 297(1)(b)(iv): 4.200 s 297(1)(c): 4.170 s 297(2): 1.60, 2.90, 3.60, 4.190 s 297(3): 3.120, 6.90, 7.30 s 298(1): 5.40 s 299: 5.30 s 300(1): 5.50 s 300(2): 6.130 s 300(2)(a): 6.10, 6.50, 6.60 s 300(2)(b)(i): 6.10, 6.50 s 300(2)(b)(ii): 6.60 s 300(3): 6.60 s 301: 6.90 s 302(2): 1.120 s 308: 1.60 s 313: 5.40 s 313(1)(b): 4.40 s 313(2): 4.40 s 314: 5.40 s 315(1)(a): 5.10 s 315(1)(b): 2.80, 5.10 s 315(2): 5.10 ss 359 to 369: 3.180 s 409(a): 6.110 Pt 4.11: 3.180 Pt 5.2: 3.20 Pt 5.5, Div 4: 3.250, 4.130 Pt 8.2, Div 2: 3.210 Sch 1, cl 5(1): 3.100 Criminal Procedure Bill 2008 cl 370: 6.130 Evidence Act 2008: 3.180, 3.190, 3.240, 3.250, 3.260, 3.270, 3.280, 4.30, 4.240, 5.50 s 55(1): 3.200 s 65: 3.240 s 65(2)(b): 6.10 s 66: 3.240 ss 94 to 101: 3.250 Interpretation of Legislation Act 1984 s 44(3): 5.40 s 44(4): 5.40

Open Courts Act 2013: 3.190 s 16: 5.70 Supreme Court Act 1986 s 11(1): 5.10 s 11(1A): 5.10 s 11(1B): 5.10 s 17(2): 3.190 s 17A(2): 3.190 s 17A(3): 3.190 Supreme Court (Criminal Procedure) Rules 2008 r 1.09: 5.40 r 2.03(1): 5.10 r 2.23: 5.40 r 2.40: 5.40 r 2.41: 5.40 r 3.03(2): 5.20 r 3.05(1): 5.20 r 3.05(3): 5.20 r 3.06(1): 2.90 O 3: 5.20

Western Australia Criminal Appeals Act 2004 s 24(2)(c): 1.10, 2.20 s 24(2)(d): 1.10, 2.20 s 24(2)(e)(i): 3.60 s 24(2)(f): 1.10, 1.60, 2.20 s 24(2)(g): 1.10, 2.20 s 24(2)(da): 1.60 s 26: 1.10, 1.50, 2.20 s 26(5): 2.20 s 26(6): 2.20 s 26(7): 2.30 s 27: 2.20 s 40: 2.30 Criminal Code s 668A: 1.10 s 669A(1A): 1.10 Criminal Code Amendment Act 1911 s 10: 1.50 Criminal Law Amendment Act 1994 s 11: 1.50 Criminal Law Amendment Act 1997 s 119: 1.10 Criminal Law Amendment (Sexual Assault and Other Matters) Act 2006 s 6: 1.50 Criminal Procedure Act 2004 s 132: 2.30 s 133(7): 2.20

xxxii

Table of Statutes

Canada Charter of Rights: 1.120 Criminal Code s 676(1)(b): 1.90 s 676(1)(c): 1.90 s 696: 1.90

Interpretation Act 1999 s 5(3): 1.80

Switzerland Code of Criminal Procedure: 1.100 s 393(2)(a): 1.100

Germany Code of Criminal Procedure: 1.100 s 305: 1.100

New Zealand Crimes Amendment Act 1966 s 8: 1.80 Criminal Procedure Act 2011 s 218(2)(b): 3.110 s 223(2): 3.110 Pt 6, subpt 2: 1.80

United Kingdom Criminal Appeal Act 1907: 1.10 Criminal Justice Act 1987 s 9(11): 1.70 s 9(14): 1.70 Criminal Justice Act 2003 s 58(7)(a): 3.60 Pt 9: 1.70 Criminal Procedure and Investigations Act 1996 s 35: 1.70 Crown Cases Act 1848: 1.10, 1.120

xxxiii

1

Background, History and Comparative Law [1.10] Interlocutory criminal appeals and the traditional criminal appeals system.................................................................................................................. 1 [1.20] Modern Australian history of this field........................................................ 5 [1.30] New South Wales.................................................................................5 [1.40] Victoria................................................................................................. 9 [1.50] Remaining States and Territories.......................................................11 [1.60] Rationale of the legislation......................................................................... 13 [1.70] Other countries............................................................................................ 16 [1.70] England and Wales............................................................................ 16 [1.80] New Zealand...................................................................................... 17 [1.90] Canada................................................................................................18 [1.100] Germany and Switzerland............................................................... 18 [1.110] United States.................................................................................... 18 [1.120] Other procedures....................................................................................... 20

Interlocutory criminal appeals and the traditional criminal appeals system [1.10] As is well known, appeals are a creature of statute. This applies not least to criminal appeals, which were not introduced in Australia until the Criminal Appeal Act 1907 (UK), passed as a result of a series of real or apparent miscarriages of justice in England, was copied more or less faithfully in each Australian State.1 That legislation did not, however, provide for any form of interlocutory appeal, but made appeals available only to persons who had been convicted on indictments or informations2 – just as the Crown Cases Act 1848 1

2

N Cowdery, “Prosecution Appeals in New South Wales: New Rights, Roles and Challenges for the Court of Criminal Appeal and the DPP” (2008) 26 Law in Context 75; P Handler, “The Court for Crown Cases Reserved, 1848 – 1908” (2011) 29 Law and History Review 259 at 261-71; P McClellan and C Beshara, A Matter of Fact: The Origins and History of the NSW Court of Criminal Appeal (Judicial Commission of New South Wales, Sydney, 2013) pp 1-12; R Pattenden, English Criminal Appeals 1844 – 1994 (Clarendon, Oxford, 1996) Ch 1; K Whiteway, “The Origins of the English Court of Criminal Appeal” (2008) 33 Canadian Law Library Review 309. On the procedures applicable before the modern system was created, see, eg, Conway v The Queen (2002) 209 CLR 203 at 209-16. It is theoretically possible, but seems very unlikely, that an avenue of appeal was opened up even before the creation of the modern system of criminal appeals by s 73(ii) of the federal Constitution on 1 January 1901. This point was left open in R v Elliott (1996) 185 CLR 250 at 258; see also the various views expressed in R v Snow (1915) 20 CLR 315. No effort is made here to distinguish indictments, informations or presentments either historically or in current practice – in line with the equally insouciant definition of “indictment” in the Criminal Appeal Act 1912 (NSW) s 2(1). Appeals in summary proceedings are not generally to be the subject of analysis in this book. On the position in

2

1: Background, History and Comparative Law

[1.10]

(UK) had also permitted questions of law to be reserved only after the conclusion of the trial. The restriction in the 1907 legislation to appeals after conviction only was in accordance with the desire to minimise the interference with the primacy of the jury and the concern not to allow verdicts of acquittal to be upset that had marked the long debate preceding the introduction of the modern system of criminal appeal. This debate had concentrated on prominent cases of unjust guilty verdicts. The distinction between appeals against conviction and sentence on the one hand and, on the other, all other criminal appeals has not lost its importance even today, as is shown by the two Australian human rights charters that mention only rights to appeal against conviction and sentence – even though interlocutory criminal appeals are also made available by statute in both jurisdictions.3 In line with the statutory origin of all appeals, including criminal appeals, interlocutory criminal appeals are not permitted in any jurisdiction unless specific provision has been made for them since the creation of the modern appeal system, and it is necessary in every case to point to a specific statutory authorisation for any proposed interlocutory criminal appeal. Even in New South Wales and Victoria, which of all Australian jurisdictions have legislated to the fullest extent for interlocutory criminal appeals, they are permissible only to the extent allowed by the legislation and no further. In Queensland, where the Court of Appeal has repeatedly emphasised that there is no provision for interlocutory criminal appeals in indictable cases, the “classical” position based on the legislation of 1907 continues to apply4 – except that interlocutory appeals have actually been available since 1997 in one case, namely appeals by the Attorney-General against a stay of proceedings, or further proceedings, on an indictment.5 Aside from this possibility, the occasional inventive suggestion, such as the use of the declaration of right to determine the question in issue, has been recognised for what it is – an illegitimate attempt to circumvent the general rule.6 New South Wales at the time of writing, with a suggestion for reform, see New South Wales Law Reform Commission, Report No 140, Criminal Appeals (2014) pp 213f. For a case that crosses the boundary, however, see Sasterawan v Morris (2010) 201 A Crim R 302. The author also does not consider appeals in questions relating to fitness to stand trial established under statutes such as the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 14A. 3 4

5

6

Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(4); Human Rights Act 2004 (ACT) s 22(4). Criminal Code 1899 (Qld) s 590AA(4); R v Skase [1995] 2 Qd R 297 at 298f (and the question left open in that case now seems resolved by s 118(1)(a) of the District Court of Queensland Act 1967 (Qld)); R v Lowrie [1998] 2 Qd R 579 (special leave to appeal refused by the High Court of Australia without calling upon the respondent: [1999] 1 Leg Rep C3); R v Renton [2001] QCA 403; R v Long (No 1) [2002] 1 Qd R 662 at 674, 678f; R v Baker [2006] QCA 472; R v Verrall [2013] 1 Qd R 587 at 592f (special leave to appeal refused: [2013] HCASL 62). Criminal Code (Qld) s 669A(1A), inserted by the Criminal Law Amendment Act 1997 (Qld) s 119. This exception was recognised in Re Long (No 1) [2002] 1 Qd R 662 at 676. On the other hand, the procedure permitted by s 668A of the Criminal Code (Qld) is not a full appeal, as it applies only to points of law. Re Long (No 1) [2002] 1 Qd R 662 at 678f. For a Victorian case from the period before interlocutory criminal appeals were permitted there, see Atlas v Director of Public Prosecutions (Vic) (2001) 124 A Crim R 180 at 183-6; in relation to New South Wales, see Chevalley v Morrison (2012) 219 IR 193 at 205. See further below, fn 91.

[1.10] Interlocutory criminal appeals and the traditional criminal appeals system

In Western Australia,7 South Australia,8 Tasmania9 and the Northern Territory,10 in which there are also only limited provisions for interlocutory criminal appeals on specific matters, it remains the case that there is not, “as a matter of routine, a process for reviewing decisions by trial Judges made in the ordinary course of trying a case”11 outside the specific, narrowly defined areas in which interlocutory appeals are statutorily endorsed. Other matters therefore cannot be the subject of interlocutory appeal, and other procedures, such as the reservation of a question of law for the appeals court, are interpreted in a correspondingly restrictive sense so that there is no backdoor method to achieving a result that amounts to an appeal.12 Two jurisdictions which never inherited the common-form criminal appeal statutes, and to which the foregoing remarks do not necessarily apply, deserve special mention. The first is the Australian Capital Territory, which is so peculiar that it needs to be dealt with by itself in the following chapter. The second is the federal jurisdiction. Under s 68(1)(d), (2) of the Judiciary Act 1903 (Cth), offences against federal law have traditionally been dealt with in State courts under their procedures, and the availability of appeals, including interlocutory appeals, has accordingly been governed by the law of the State in which the trial occurred.13 However, since 2009 cartel-related offences have 7

8 9

10

11 12

13

Criminal Appeals Act 2004 (WA) ss 24(2)(c), (d), (f), (g), 26; Connell v The Queen (1993) 10 WAR 424; Carter v The Queen (1994) 12 WAR 310 at 313-8; Duke v The Queen [1999] WASCA 215. Criminal Law Consolidation Act 1935 (SA) ss 348, 352(1)(b), (c); R v Garrett (1988) 49 SASR 435. Criminal Code (Tas) s 401(2)(ba), (d); Lin v Tasmania [2012] TASCCA 9 at [77]. Tasmania is an exception to some extent, as the Criminal Code has allowed an appeal against acquittal on a point of law since its enactment in 1924: s 401(2)(b). Other things being equal, this removes some pressure to allow Crown appeals before acquittal. It was once the case that the Northern Territory did not possess the usual common-form statute regulating criminal appeals, and therefore interlocutory criminal appeals could probably be brought under the same provision as applied to civil appeals. Nevertheless, the appeal court, while holding, by majority, that the jurisdiction probably did in fact exist, were reluctant to hear such appeals for discretionary reasons: McNamara v The Queen (1978) 20 ALR 98. Since then the Northern Territory has adopted a version of the common-form appeal provisions in Pt X of the Criminal Code (NT). It contains some provisions allowing for Crown appeals otherwise than after conviction (s 414(1)(a), (b), (e)), but the view taken here is that only s 414(1)(e) can be said to be a form of interlocutory appeal. Application for Reservation of Questions of Law No 2 of 1999 (1999) 106 A Crim R 423 at 429. R v Tedge [1979] WAR 12 at 15; Application for Reservation of Questions of Law No 2 of 1999 (1999) 106 A Crim R 423 at 429f; Application for Reservation of Questions of Law No 1 of 2009 [2009] SASC 12 at [13]f. A state of affairs upheld most recently and authoritatively in R v LK (2010) 241 CLR 177 at 187-9, 215f. See also Rohde v Director of Public Prosecutions (Cth) (1986) 161 CLR 119; R v O’Halloran (2000) 182 ALR 431; O’Meara v The Queen [2006] NSWCCA 127 at [24]; Pellegrino v Director of Public Prosecutions (Cth) (2008) 71 NSWLR 96 at 99; R v Cheikho (2008) 75 NSWLR 323; Joud v The Queen (2011) 32 VR 400; PJ v The Queen (2012) 36 VR 402; Monis v The Queen (2013) 249 CLR 92; Director of Public Prosecutions (Cth) v FM (2013) 233 A Crim R 83; R v Karabegovic (2013) 282 FLR 383; [2013] VSC 566; special leave to appeal refused: Director of Public Prosecutions v Karabegovic [2014] HCATrans 179; R v Peart [2015] NSWCCA 321. Although committal proceedings are not within the scope of this work, this legislation does not, however, apply in federal committal proceedings: R v O’Meara (2001) 163 FLR 366; O’Meara v The Queen [2006] NSWCCA 127 at [10] – [17]. A further exception related to costs is noted below, [6.140]; on mental health issues, see Agoston v The Queen [2008] NSWCCA 116. See also the query raised by the Court of Criminal Appeal for New South Wales, on the point of statutory interpretation rather than constitutionality, in R v Seller (2013) 232 A Crim R 249 at 253 (special leave to

3

4

1: Background, History and Comparative Law

[1.10]

been triable in the Federal Court of Australia, thus conferring on it for the first time jurisdiction in indictable offences.14 Section 30AA(4)(b) of the Federal Court of Australia Act 1976 (Cth) permits interlocutory appeals against a judgment, decree, order or decision,15 “(however described)”, made before acquittal or conviction, as long as the challenge is not to an order to discharge a juror or a jury. Although the note to s 30AA(4) somewhat misleadingly refers only to orders remanding the accused in custody, the explanatory memorandum confirms that it also embraces “an interim judgment or decision made by a single Judge in the course of indictable primary proceedings”.16 Although the availability of interlocutory criminal appeals thus varies across the country, the reasons for not introducing interlocutory criminal appeals with the modern system of criminal appeals back in 1907 have not wholly lost their validity, and such appeals in particular need to be kept under firm control. Some of these were expressed by Brennan J, as his Honour then was, in the Federal Court of Australia in 1977: First, in the event of conviction, relief by way of appeal is available, when it can be shown that the possibility [of improper prejudice to the accused in a joint trial] has become a reality in the course of the trial; and second, the securing of a fair trial is a duty which a trial Judge performs by the making of orders which are, in a sense, reciprocal, and which oftentimes cannot be considered in isolation.17

A somewhat more authoritarian statement from the Supreme Court of Western Australia at about the same time may also be mentioned: Because of the adversary system itself … it is essential that the trial Judge be the master of the judicial proceeding over which he is presiding and essential that the parties accept and act upon such directions as to practice and procedure as he might think fit to give them. In this case, his Honour gave his rulings and the trial should have proceeded in accordance with those rulings which, during the trial and whether right or wrong, it is the responsibility of the trial Judge to make and not of this Court. It is a grave responsibility which is not discharged lightly nor wantonly but with regard to the law and to proper procedure as the Judge sees it and with regard to the judicial oath. This is the law. As to the argument of convenience, any other view is likely to result in unnecessary interruptions of trials, and refusals by one side or the other to accept the decisions of the presiding Judge, which practice in the long run would erode the whole system of trial by Judge and jury.18

Clearly, even in jurisdictions where statute has since opened the way to a wide variety of interlocutory criminal appeals and they are now accepted as making,

14 15 16 17 18

appeal refused: Seller v The Queen [2013] HCATrans 204), which does not appear to have been pursued since: cf R v Seller [2015] NSWCCA 76 at [78]; R v OC [2015] NSWCCA 212. It would certainly be strange (cf R v Gee (2003) 212 CLR 230; R v JS (2007) 230 FLR 276 at 299) and inconsistent with accepted practice in two States if all other appeals except this species were available to the federal authorities, so I do not pursue this matter either. For brief references to the constitutionality of this or related procedures, see R v Gee (2003) 212 CLR 230 at 241, 249, 276f, 296; Director of Public Prosecutions (Cth) v FM (2013) 233 A Crim R 83 at 94; Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135 at 154. On this development, see M Gordon, “Criminalisation of Cartel Conduct” (2010) 34 Aust Bar Rev 177. This incorporates the extra words in the definition of “judgment” in s 4. Explanatory Memorandum to the Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 (Cth) at [325]. McNamara v The Queen (1978) 20 ALR 98 at 99. R v Tedge [1979] WAR 12 at 15f.

[1.30]

Modern Australian history of this field

overall, a positive contribution to the system of criminal justice, none of these points has wholly lost its force. Fortunately, in both New South Wales and Victoria the number of appeals has been, perhaps, below expectations and thus these principles have not been excessively compromised. In New South Wales the numbers of appeals (including unsuccessful applications for leave) have been in the teens or low twenties in most years, although there were only four appeals in 2009,19 while in Victoria the yearly number of appeals lodged has fluctuated between nine and 37, with an overall average of 21.2.20

Modern Australian history of this field [1.20] Why, then, were interlocutory criminal appeals introduced in many parts of Australia? Like many reforms, they came about, if not entirely by accident, then certainly not wholly by design.

New South Wales [1.30] The genesis of full-scale interlocutory criminal appeals lies in the discovery in the mid-1980s, at a point when delays in criminal prosecutions had become intolerable, of the inherent power of a court to stay a prosecution on the ground of delay, along with the exercise of that right by courts in New South Wales. This right existed not merely at trial, but also could be exercised, if the trial occurred in the District Court of New South Wales, by the Court of Appeal for New South Wales in its supervisory jurisdiction on the civil side over the inferior court.21 As a result, the courts of New South Wales were “flooded with applications of a similar kind”.22 The initial legislative reaction to this creation of a very fact-based right in the accused was the conferral of a right of appeal on the Crown only by way of an amendment to s 5C of the Criminal Appeal Act 1912 (NSW).23 This step occurred in a rush at the end of the 19

20

21

22

23

New South Wales Law Reform Commission, Report No 140, Criminal Appeals (2014) p 210. The methodology for compiling those statistics, nevertheless, may have caused something of an underestimation of the numbers. Supreme Court of Victoria, Annual Report 2012 – 2013 (Melbourne 2013) p 49. Later statistics were kindly provided to me by the Registry of the Court of Appeal for Victoria, and the most recent financial year is referred to in the Foreword to this book. R v McConnell (1985) 2 NSWLR 269; Watson v Attorney-General (NSW) (1987) 8 NSWLR 685. In the latter case the High Court of Australia refused special leave to appeal in terms which indicated its approval of the principle: [1987] 20 Leg Rep SL 1 (also reproduced in Boehm v Director of Public Prosecutions (Vic) [1990] VR 475 at 485). For further contemporary references, see J Phillips, “Delay and Abuse of Process” (1989) 63 ALJ 698; (1990) 64 ALJ 138. P Byrne, “Criminal Law and Justice” (1988) 62 ALJ 160; see also N Cowdery, “Prosecution Appeals in New South Wales: New Rights, Roles and Challenges for the Court of Criminal Appeal and the DPP” (2008) 26 Law in Context 75 at 78. Criminal Appeal (Amendment) Act 1986 (NSW) s 3 and Sch 1 item 2. The right was and remains vested in both the Attorney-General and the Director of Public Prosecutions, the latter post having been created by the Director of Public Prosecutions Act 1986 (NSW) s 4. It being no part of this book to outline the division of functions between the two in any or all jurisdictions, “the Crown” is used to cover both. See, however, Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 at 541-6; Environment Protection Authority (New South Wales) v Truegain (2013) 85 NSWLR 125, where the prosecutor was not the Crown but a government authority; R v Seller (2013) 232 A Crim R 249 at 253 (special leave to appeal refused: Seller v The Queen [2013] HCATrans 204) and above, fn 13; Corns, Public Prosecutions in Australia: Law, Policy and Practice (Thomson Reuters, Sydney, 2014) Ch 16.

5

6

1: Background, History and Comparative Law

[1.30]

legislative session of 1986, and as part of a package of unrelated amendments to other Bills dealing with criminal justice, as a result of which the debate on the change was perfunctory.24 That disposed of the problem as far as stays granted against the Crown were concerned; henceforth, it was able to appeal (and to the Court of Criminal Appeal rather than on the civil side). However, it was anomalous to vest a full right of appeal in one side of the litigation only – and that the side whose liberty was not at stake – although the accused could, as before, still make applications for the exercise of the supervisory jurisdiction from the District Court of New South Wales if the decision had been made there. Nevertheless, removing this one-sidedness was not the main motive behind the enactment of the Criminal Appeal (Amendment) Act 1987 (NSW) almost exactly a year later, which inserted the original version of s 5F of the Criminal Appeal Act 1912 and thus created the interlocutory criminal appeal in more or less its present form. In the words of Sheahan A-G in moving the Second Reading for the Bill, which became the Act of 1987: Three or four applications for a stay of proceedings are being made in the District Court each week. The majority of them are unsuccessful but the decision in Watson’s case[25] has encouraged applications to be made to the Court of Appeal against the refusal by the trial Judge to grant a stay. The proliferation of these interlocutory applications to the Court of Appeal has resulted in significant disruption to the criminal justice system and the tying up of already overburdened resources. There have been many instances of abuse of this procedure in that applications that clearly have no merit have been brought on the first day of a trial with the apparent intention of appealing to the Court of Appeal, thereby causing the trial to abort. In extreme cases this can be a means of avoiding trial by a particular Judge. It has meant that trial dates have had to be vacated on extremely short notice with consequential disruption of trial lists, particularly in country areas, and juries which have already been empanelled for the trial have had to be discharged.26

Accordingly, the Act closed off the possibility of the exercise by the Court of Appeal for New South Wales of its supervisory jurisdiction over decisions of the District Court of New South Wales,27 and in return created the possibility of an appeal, available to both sides, on interlocutory points. A further anomaly was removed: the new right of appeal also included cases in which the trial was being held in the Supreme Court of New South Wales and there had previously been no possibility of review on the part of the accused given that that court does not supervise itself. However, the right was not to be limited solely to that class of interlocutory proceedings. Sheahan AG explained: Interlocutory applications to the Court of Appeal have not been limited to stay of proceedings matters. They have also involved applications requiring a District Court Judge to reconsider his refusal to allow an accused to withdraw a plea of 24

25 26 27

For a flavour of the debate, see New South Wales Parliament, Legislative Assembly, Debates (1 December 1986) p 7345. The innovation was barely mentioned in the succeeding debate on the package. See above, fn 21. New South Wales Parliament, Legislative Assembly, Debates (1 November 1987) p 16087. See Supreme Court Act 1970 (NSW) s 17(1) and Sch 3 in their current form and their history as traced in El-Zayet v The Queen [2014] NSWCCA 298 at [34] – [44], and also BUSB v Director-General of Security [2011] NSWCA 49 at [2].

[1.30]

Modern Australian history of this field

guilty, to change the listed trial date and to seek declarations as to the elements of the offences charged in the District Court. With around four thousand cases awaiting trial in the District Court, the potential for continued disruption through this avenue is enormous. The present intercession by the Court of Appeal in District Court criminal proceedings creates a number of anomalies in criminal proceedings in this State which cannot be allowed to continue.28

Thus, it was said of the original version of s 5F that: The substantial purpose of s 5F was to remove from the Court of Appeal to the Court of Criminal Appeal appeals from “interlocutory judgments or orders”, and one can be confident that there was no intention at all in the legislature in enacting s 5F to create appeals where there had been none before.29

That last statement, however, goes too far and is an error. It should be read subject to the salutary warning not to allow the occasion for the enactment of s 5F to distort its interpretation that was issued by Gleeson CJ and Smart J in R v Saunders.30 It would be more than somewhat tedious to analyse in detail all the amendments that have been made to s 5F since, and which also partially invalidate the statement just quoted; however, one that does stand out is the addition of subs (3A) by s 3 and Sch 3 item 8 of the Crimes Legislation Further Amendment Act 2003 (NSW). The new subs (3A) enabled the Crown to appeal not merely, as had been the case since 1987, against an “interlocutory judgment or order” (subs (2)), but now also against a mere “decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case”. Until the enactment of subs (3A), it was the law that an evidentiary ruling that in effect eliminated the Crown’s case was deemed to amount in effect to an interlocutory order dismissing the whole case, and could be appealed against under subs (2) as such an order, but this did not apply to rulings that merely weakened the Crown’s case31 – hence the need for the change in 2003. This further innovation will be analysed in detail later in this book. The explanation given in the Second Reading Speech provides the publicly available explanation for the conferral of the right upon the Crown only in 2003 and also states, in its concluding sentence, the reason for omitting a requirement for leave. The minister in charge of the Bill stated that it: gives effect to a Government election commitment to provide the Crown with new powers to appeal during the course of a trial when evidence is excluded by the trial Judge that has the effect of “substantially weakening”, but not necessarily “destroying” the Crown case. Under s 5F(2) of the Criminal Appeal Act 1912, the Director of Public Prosecutions or the Attorney General may currently appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in 28

29

30 31

New South Wales Parliament, Legislative Assembly, Debates (1 November 1987) p 16087. The Opposition largely supported these changes: New South Wales Parliament, Legislative Assembly, Debates (19 November 1987) pp 16608f; New South Wales Parliament, Legislative Council, Debates (24 November 1987) p 17111. The use of “intercession” to mean “interposition, intervention” is considered obsolete by the Oxford English Dictionary. R v Edelsten (1989) 18 NSWLR 213 at 219 (emphasis in original); see also R v King (2003) 59 NSWLR 472 at 477. Perhaps owing to the identity of the judge, less reference nowadays is made to R v Powch (1988) 14 NSWLR 136 at 138f. (1994) 72 A Crim R 347 at 348, 353. See further below, Ch 3 fn 114. See below, Ch 3 fn 46.

7

8

1: Background, History and Comparative Law

[1.30]

proceedings to which s 5F applies. The Court of Criminal Appeal has held that an evidentiary ruling by a trial Judge that effectively excludes the entire Crown case is a judgment or order for the purposes of s 5F(2) of the Act because the ruling effectively stays the Crown case. However, a ruling excluding Crown evidence which weakens but does not destroy the Crown case has been held not to be a judgment or order, and is therefore not appellable under the existing s 5F(2). This amendment amends the Criminal Appeal Act to allow the Crown to appeal against an evidentiary ruling which substantially weakens the Crown case. If an acquittal results from an erroneous evidentiary ruling, the Crown has no avenue of appeal against the acquittal. The Crown should therefore be able to test the correctness of such a ruling made during the trial, so that an accused may not derive the benefit of an acquittal secured as a result of an erroneous evidentiary ruling. It is not desirable that criminal trials be unnecessarily disrupted for the purpose of appealing evidentiary rulings. It is therefore anticipated that the Crown would exercise this new appeal power only sparingly.32

This important change in the balance of power between the state and the accused citizen came about with little debate. Perhaps this is just as well, for one who should know tells us that the real background was that: the government had become extremely concerned at that time at the conduct of a small number of Judges, especially in the District Court of New South Wales, who seemed to make rulings regularly, usually on discretionary grounds, that had the effect of “gutting” Crown cases and making acquittals more likely. Those Judges often stopped short of completely destroying the Crown case (having experienced the force of s 5F(2) and having learned how far they could go without being appealed). The Government wished to give the Crown an effective way of dealing with the problem. It also provided a useful way of getting the media off its back, complaining all the time about weak Judges and unpunished criminals. It was an attractive “law and order” option.33

A short account should also be given of the remaining provisions for interlocutory criminal appeal in New South Wales. It is a surprise to find that s 5C of the Criminal Appeal (Amendment) Act 1987 (NSW) goes back all the way to the Crimes (Amendment) Act 1924 (NSW) s 33, and thus that interlocutory criminal appeals by the Crown have been permitted against the quashing of indictments for over 90 years. The Minister in charge of the Bill in the Legislative Council in 1924, F S Boyce KC (late Mr Justice Boyce), justified this marked departure from the English model as follows: That proposed section [5C] gives the Crown the right to appeal where it had not had that right before. Under the law the accused always had the right of appeal to the Court of Criminal Appeal on matters of law but this section is to make it quite clear that the Crown has that right also34 –

almost as if the point had previously been subject to doubt.35 Section 5G is of more recent vintage, having been inserted by the Jury Amendment Act 2008, s 4 and Sch 2. The background is that, while a recent 32 33 34 35

New South Wales Parliament, Legislative Council, Debates (20 November 2003) pp 5427f (emphasis in original). N Cowdery, “Prosecution Appeals in New South Wales: New Rights, Roles and Challenges for the Court of Criminal Appeal and the DPP” (2008) 26 Law in Context 75 at 85f. New South Wales Parliament, Legislative Council, Debates (9 September 1924) p 1849. See further, Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 at 542.

[1.40]

Modern Australian history of this field

case had shown that an appeal could be brought against the discharge of only one juror, that being classed as an interlocutory decision amenable to appeal under s 5F,36 there was a perceived gap in the law: it was not thought possible to appeal against the discharge of the whole jury, which would be classified, it was considered, as a final order. Given the costs, both financial and otherwise, that are involved in the premature ending of a trial in this way, it was thought advisable to create a specific right to appeal, to be used sparingly and mostly in relation to long trials.37 The view that the discharge of the jury is a final order and thus did not fall under s 5F was, however, wrong. It is clearly inconsistent both with first principles on what counts as interlocutory (to be dealt with in Chapter 3) and with the earlier case of R v Munro,38 in which it is pointed out that the discharge of a jury does not conclude the criminal litigation and “is properly described as an interlocutory order”. However, it is notable that the court refused to grant leave to appeal against the discharge of the jury in Munro, although holding it to be an error, because it would have been futile to do so as the jury had dispersed. The true rationale of s 5G has more to do with R v Abdul-Razzak,39 where the judge had refrained from actually ordering the discharge of the jury so that an appeal could be brought. The accused therefore argued that there was no order against which the Crown could appeal under s 5F(2). Thus, the purpose of s 5G is perhaps more accurately expressed as overcoming that difficulty by using the word “decision” as the trigger for appeal rights, thereby avoiding the possible Catch 22 situation that an appeal could not be brought until the situation was beyond repair, given that the jury would have dispersed pursuant to a formal order, and also emphasising the urgency of an appeal against the discharge of a jury.

Victoria [1.40] The introduction of interlocutory criminal appeals in Victoria is much more recent, dating from 1 January 2010.40 Unlike in New South Wales, this did not occur as a result of any sudden need, but as a deliberate step in reforming criminal procedure. Cases comparable to those which brought about the reform in New South Wales did, however, exist. For instance, while the Full Court of the Supreme Court of Victoria decided in the mid-1980s that appeals against stay orders were permissible given that it had the function of supervising criminal proceedings in courts throughout the hierarchy,41 a

36 37

38 39 40 41

Petroulias v The Queen (2007) 73 NSWLR 134. New South Wales Parliament, Legislative Assembly, Debates (5 June 2008) pp 8293f; New South Wales Law Reform Commission, Report No 117, Jury Selection (September 2007) pp 207-9. (Unreported, NSW Court of Criminal Appeal, 30 June 1994). [2006] NSWCCA 195. This was the date of proclamation of the operative provisions of the Criminal Procedure Act 2009 (Vic): Government Gazette (Vic) (10 December 2009) p 3215. R v Clarkson [1987] VR 962 at 972. Appeals to the Full Court were restricted to the Crown by R v Kean [1985] VR 255; Boehm v Director of Public Prosecutions (Vic) [1990] VR 494 on the ground that the accused would have such an appeal if convicted, and if acquitted the question would be moot.

9

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[1.40]

decision of the High Court of Australia put a stop to such appeals against the issuing of stay orders, at least if the trial was also in the Supreme Court of Victoria.42 It was not, however, any one case or field of law which led to the conclusion that a general statute for interlocutory criminal appeals should be passed in Victoria, but rather a considered view, based in part, of course, on the experience of New South Wales, that such appeals would enhance the administration of justice. The topic was brought to the attention of the Court of Appeal for Victoria by the Hon James Wood AO, former Chief Judge of the Common Law Division of the Supreme Court of New South Wales, who presented a paper at the Appellate Judges’ Conference in Adelaide in 2006. The court proposed the change to the Attorney-General, Rob Hulls, for consideration as part of the reforms to criminal procedure legislation that were then already in an advanced stage of planning. Thus, the ground was already being prepared for reform on the part of the executive branch as well. As Maxwell P explained in a speech shortly before the new system came into force, which it is hardly necessary to supplement by further explanation: The most dramatic change to criminal appeal procedure under the new Act [the Criminal Procedure Act 2009 (Vic)] will be the introduction of interlocutory appeals. This potentially very significant law reform was initiated by the Court of Appeal itself, in circumstances to which I will refer later. The object of the new procedure is to enable critical questions of law to be considered by the Court of Appeal before the trial starts or, in exceptional cases, after the trial has commenced. Traditionally, of course, the Court of Appeal does not become involved until the trial is over. If error is found at that stage, then (subject to the applicability of the proviso) the conviction must be quashed and a re-trial had – unless, of course, a verdict of acquittal is directed. Let me give two recent examples to illustrate what we have in mind. In Thomas,43 the prosecution for the terrorism offence depended almost entirely on an interview with Mr Thomas, conducted by the Australian Federal Police, while he was in custody in Pakistan. Prior to the trial commencing, the Judge ruled that the admissions in the interview had been made voluntarily and that the record of interview was admissible in the trial. Thomas was subsequently convicted. On the appeal, the Court of Appeal unanimously concluded that the confession was not voluntary and that the record of interview was inadmissible. The conviction was quashed. Had it not been for the remarkable circumstance that Mr Thomas had in the meantime given an interview to the ABC, in which he had said apparently incriminating things, there would inevitably have been a verdict of acquittal. The moral of the story is clear. It should have been possible for the defence to come to the Court of Appeal before the trial started, to challenge the Judge’s ruling that the interview was admissible. Had that occurred, the interlocutory appeal would have been upheld and there would have been no trial. And the Court of Appeal would have been required to consider only a single point, instead of having to deal with a full set of conviction appeal grounds. 42

43

Smith v The Queen (1994) 181 CLR 338. See also Victorian Legal Aid v Lewis (1998) 98 A Crim R 551, reversed by Crimes (Amendment) Act 1998 (Vic) s 6; see now Criminal Procedure Act 2009 (Vic) s 197(7); R v Garth (2008) 191 A Crim R 256 at 258f. R v Thomas (2006) 14 VR 475 at 512.

[1.50]

Modern Australian history of this field

My second example is the sex slavery case of Wei Tang.44 In that case, it was not until there had been two lengthy trials that the Court of Appeal was asked for the first time to rule on fundamental threshold questions regarding the slavery provisions in the Commonwealth Criminal Code, that is, whether the provisions were constitutionally valid and, if so, how they were to be interpreted. (Had the answer to the first question been no, then there should never have been a trial at all.) Those same questions were, in turn, ruled on by a seven-member Bench of the High Court. As Eames JA noted in his judgment, the task facing the trial Judge and trial counsel was one of considerable difficulty, there being no guiding case law on the elements of the offences, or on the meaning to be attributed to the statutory language.45 It ought to have been possible for those issues to be ruled on, including at appellate level, before the first trial started. … [T]he clear view of the Court – which the government has endorsed by enacting this legislation – was that to deal with “knock-out” points at the start rather than at the end of a trial is likely, in due course, to pay a handsome dividend, by reducing the number of conviction appeals which have to be heard.46

Remaining States and Territories [1.50] The unusual appeal provisions in the Australian Capital Territory will be considered in the following chapter. The historical background of the very recent federal provisions consequent upon the conferral of a criminal jurisdiction on the Federal Court of Australia for cartel-related cases was mentioned earlier. Queensland and South Australia enacted provisions allowing for appeals against stays of proceedings as a reaction to the increased prominence of the procedure in the 1990s, both in the context considered above in New South Wales (undue delay) but also, perhaps more importantly, stays on the ground of inadequate provision of legal assistance to indigent accused: Dietrich v The Queen.47 The South Australian Attorney-General’s Second Reading Speech refers expressly to that decision,48 whereas in Queensland this must be a matter of inference, although we are told that a working group connected to the profession assisted in the package of amendments of which this formed a part.49 In Tasmania, on the other hand, the catalyst for allowing appeals against stays was the permanent stay order in a prosecution of a former police 44 45 46

47 48 49

R v Tang (2008) 237 CLR 1; see also R v Tang (2009) 23 VR 332 at 333. R v Tang (2007) 16 VR 454 at 468. P Maxwell, “A New Approach to Criminal Appeals” [2009] VicJSchol 13 at 1-3 (footnotes not as in original). See also Tuite v The Queen (No 2) [2015] VSCA 180 at [1] and the speech delivered by Redlich JA to mark the 20th anniversary of the Court of Appeal for Victoria (20 August 2015) p 8: http://www.assets.justice.vic.gov.au//supreme/resources/353b8711-2ee24e67-842b-7e1144a23d89/coa+20th+anniversary+speech.pdf (accessed 9 November 2015). There is a surprising dearth of discussion on the public record in Victoria about this major change: see, however, R Hulls, “Modernising Victoria’s Criminal Laws” (2009) 83(6) Law Inst J 34 at 36; P Priest and B Gardner, “An Appealing Procedure” (2009) 83(12) Law Inst J 32. (1992) 177 CLR 292. See above, fn 8; South Australian Parliament, Legislative Council, Debates (28 September 1995) p 69. See above, fn 5; Queensland Parliament, Legislative Assembly, Debates (4 December 1996) pp 4870, 4875.

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[1.50]

commissioner in 2009, which was granted on the ground that the Crown case was doomed to fail on certain essential elements of the offence.50 The right in the Crown to appeal against an order quashing an indictment in s 401(2)(d) of the Criminal Code (Tas) had been added much earlier – by the Criminal Code Act 1975 (Tas) s 12(b). There were no verbatim reports of parliamentary debates in Tasmania in 1975, but the Second Reading Speech for the Bill, retrieved with the assistance and from the archives of the Parliamentary Library,51 said on this point simply that: Sometimes a Judge will uphold a submission of law by an accused as to the nature of the indictment. The Crown at present has no right of appeal and the point cannot be finally determined. This amendment will permit the Crown to appeal, if the Judge or the Court of Criminal Appeal considers the point involved to be one which ought to be decided by the Court of Criminal Appeal.

It was also mentioned that these proposals had been discussed with the judges and the legal profession. Parliamentary papers reveal that there was an ad hoc committee behind these changes,52 and one of the members53 recalls that the right of appeal against quashing indictments was considered a natural counterpart to the Crown appeal against acquittals on points of law only for which the Tasmanian Criminal Code54 has always provided. In the Northern Territory matters took a slightly different course as a result of the idiosyncrasies of its Criminal Code, enacted in 1983. As originally enacted, the Code provided, in s 414(1)(a), for an appeal against the staying of proceedings on the grounds that they were “vexatious or harassing”55 under s 21, but not for any other reason – in particular, not under the inherent powers of the court or under the similar provision in s 339(1)(b). Nor was there an appeal against a decision to quash an indictment under s 339(1)(a). This, naturally enough, led to difficulties when the source of the power to stay was unclear, or when the accused was eligible to apply both for a stay and for the indictment to be quashed.56 This anomaly was clearly revealed in R v Hofschuster57 and corrected by the introduction of a right to appeal on all grounds by the Criminal Code Amendment Act (No 4) 1994 (Tas) s 3(c). No doubt developments in other jurisdictions and the increasing use of the order to stay proceedings made the correction of this anomaly in favour of the right to appeal even more desirable. In Western Australia matters have also taken a unique course. It is again surprising to find that the English model of criminal appeals, which allowed for 50

51 52 53 54 55

56 57

The case was Tasmania v Johnston (2009) 18 Tas SR 195. For the legislation, see above, fn 9; it was inserted by the Justice and Related Legislation (Further Miscellaneous Amendments) Act 2009 (Tas) s 9(b); for the Second Reading Speech on the point, see Tasmanian Parliament, House of Assembly, Debates (4 November 2009) p 74. Also available in the Tasmanian State Archives, File No AF403/1/2010. Tasmanian Parliamentary Papers, No 41/1974, p 6; No 35/1975, p 4. Mr Damian Bugg AM, QC – as he now is. Section 401(2)(b). The source of this test is quite unclear, but one possible candidate may be found in C Corns, “Judicial Termination of Defective Criminal Prosecutions: Stay Applications” (1997) 16 U Tas LR 75 at 85. If this phrase was borrowed from the civil law it occasions less surprise that a right of appeal was thought suitable in respect of it. Northern Territory Parliament, Debates (11 May 1994) pp 11803f; Debates (26 June 1994) pp 204f. (1993) 116 FLR 222; (1994) 4 NTLR 179.

[1.60]

Rationale of the legislation

no appeal by the Crown at all, was diverged from ab initio: s 10 of the Criminal Code Amendment Act 1911 (WA) allowed for an appeal against the quashing of an indictment. A Minister in charge of the Bill acknowledged this divergence and stated that the Crown as well as the accused should have an appeal only on points of law (the obvious contrast being with factual questions on which the jury’s verdict in favour of the accused remained sacrosanct).58 Eighty-three years later, in 1994, the Criminal Law Amendment Act 1994 (WA) s 11 added a right in the Crown to appeal also against an adjournment or stay. The reasoning behind this amendment parallels to some extent that in New South Wales. The Attorney-General explained on introducing the Bill: Under current law an accused may apply for a stay of proceedings where he or she seeks to argue that the indictment amounts to an abuse of process or that for some reason the trial would be unfair. Examples might be where there has been excessive publicity which is adverse and prejudicial to the accused; an excessive delay in the accused being brought to trial to the prejudice of his or her defence; or the accused being denied legal representation for serious charges because of poverty. If such an application is refused, the accused may, following conviction, appeal to the Court of Criminal Appeal. There is, however, no appeal currently available to the Crown if a trial Judge wrongly grants a stay of proceedings to an accused, and although in the District Court it has been possible to effectively appeal from a decision to stay by use of the District Court Act s 84 – R v Healy (1990) 2 WAR 297 – the continued use of that section to achieve the result may now be in doubt in view of later developments – Re Gunning; ex parte Connell (White J; 22 September 1993) and Connell v Gunning and Director of Public Prosecutions (Rowland J; 1 October 1993 [(1993) 10 WAR 402]). However it is now plain that no such provisions apply to the Supreme Court (Connell v [The Queen (1993) 10 WAR 424]).59

The third and final instalment in the introduction of interlocutory criminal appeals in Western Australia was what is now s 26 of the Criminal Appeals Act 2004, permitting appeals on applications for severance (multiple counts, one accused) and separate trials (multiple accused) by both Crown and defence. This was originally introduced by the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2006, s 6 following a recommendation to that effect by the West Australian Law Reform Commission.60

Rationale of the legislation [1.60] In introducing the Bill, which provided for interlocutory criminal appeals in Victoria, the Attorney-General, Rob Hulls, said: Because interlocutory appeals deal with issues early in the proceedings that might otherwise result in a successful post-conviction appeal, they can:

• prevent guilty people being acquitted; • prevent innocent people from being wrongly convicted; and • prevent re-trials because there was an error at the accused’s trial. 58 59 60

Western Australian Parliament, Legislative Council, Debates (23 November 1911) p 393 (Hon JM Drew). Western Australian Parliament, Legislative Assembly, Debates (27 October 1994) p 6289. West Australian Law Reform Commission, Project No 92, Review of the Criminal and Civil Justice System in Western Australia (1999) p 221.

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[1.60]

As a result, interlocutory appeals can be of benefit in reducing the stress and trauma of Court proceedings for victims, witnesses and the accused.61

The first item on this list is the most important one. Interlocutory appeals will, to some extent, take the place of the “missing” Crown appeal against a jury’s verdict of acquittal. As a general rule,62 under the modern system of criminal appeals the Crown cannot appeal against a jury’s verdict of acquittal even on a point of law affecting, for example, the evidence held admissible, procedural rulings during the trial or the interpretation of the statute – only “academic” appeals are allowed, and they can put the law right but cannot affect the acquittal;63 but the accused has a full appeal on both fact and law, so far as our inability to demand reasons from a jury permits their factual assessments to be questioned at all. The provision of such a one-sided full appeal was, of course, no accident, but rather the point of the modern criminal appeals legislation introduced from 1907. Nevertheless, the absence of a post-conviction appeal in favour of the Crown may result in the acquittal of a guilty person, the perpetuation of a trial court’s incorrect view of the law or even, in extreme cases, a diminution in the confidence which the public needs to have in the criminal law.64 Just as the provisions for post-conviction appeals are slanted towards the accused, so the provisions for interlocutory criminal appeals are, on their face in many cases, but if not, by dint of the structure of the system, therefore slanted towards the Crown. Interlocutory criminal appeals represent, depending upon the beholder, a re- or unbalancing of the “classic” system of criminal appeals in favour of the Crown. That is not to say that interlocutory criminal appeals are without benefit to the accused. The most obvious benefit is that they permit the accused to challenge rulings in favour of the Crown before conviction. The challenge may in turn, if successful, result in an acquittal, which cannot then be challenged. Maxwell P gave a vivid illustration of such a case, R v Thomas,65 in the long extract quoted above at [1.40]. Success will often also result in a saving of time and expense either to the accused’s own purse or that of the legal aid fund. This also benefits the public interest: the longer and more complicated a trial is, and the more stress it causes to the accused and witnesses, the greater is the utility of ensuring that it is not discovered, after conviction, to have been a nullity owing to some mistaken ruling in favour of the Crown during the trial.66 An American commentator points out most astutely that: 61

62

63 64

65 66

Victorian Parliament, Legislative Assembly, Debates (4 December 2008) p 4987. For further background to the enactment of the legislation, see Department of Justice (Victoria), Criminal Procedure Act 2009 – Legislative Guide (The Department, Melbourne, 2010) pp 270-84. Exceptions exist in those jurisdictions in which, and to the extent that, some limited form of Crown appeal against an acquittal is allowed: eg Criminal Appeals Act 2004 (WA) s 24(2)(da), (f); see also above, fn 9. For example, Criminal Procedure Act 2009 (Vic) s 308. R Pattenden, “Prosecution Appeals against Judges’ Rulings” [2000] Crim LR 971 at 982, referring to high-profile cases and applications for permanent stays owing to media publicity; see also R Auld, Review of the Criminal Courts of England and Wales (Stationery Office, London, 2001) pp 634ff; Law Commission (England and Wales), Double Jeopardy and Prosecution Appeals (Cm 5048, March 2001) p 93. (2006) 14 VR 475. This, or its mirror image, is a point that comes out with particular clarity in Finn v The Queen [2011] VSCA 68.

[1.60]

Rationale of the legislation

the advantage of interlocutory review from [the] defendant’s perspective goes beyond avoiding the costs of going through a trial that must be repeated (which costs include not only the burdens of the trial, but also the disclosure of defence evidence and strategy during the trial)[67] or the costs of going through a trial that never should occur in the first instance (where a contrary pre-trial ruling would effectively preclude trying the defendant). Interlocutory review requires the appellate Court to focus on the legal issue alone, while review after a conviction adds the element of the totality of the evidence establishing guilt; that additional element may lead the appellate Court to conclude that an erroneous ruling which would have been overturned on interlocutory review should not now require reversal of a conviction because it was likely to have been harmless in its impact upon the outcome of a case. In light of this advantage of interlocutory review, along with others (eg, an overturned pre-trial ruling may strengthen [the] defendant’s plea-bargaining position, and at least where the defendant has been released on bail, the delay necessitated by interlocutory appellate review may be valuable even if the ruling is not overturned), and the obvious benefits of avoiding the costs of an unnecessary or wasted trial, it is not surprising that defence counsel often respond to potentially erroneous pre-trial rulings by seeking to obtain immediate appellate review and reversal.68

Nevertheless, it is clear that interlocutory criminal appeals are not an unmixed blessing. Aside from the objections of principle and historical reasons outlined in the last section, the main practical reason why they were not on the radar for so long after the creation of the modern criminal appeals system – with the exception of the isolated cases referred to earlier in this chapter – is the potential they have for fragmentation of criminal trials and – especially if the appeal is dismissed and the whole interruption was thus for naught – for still further delay with all the disadvantages that that brings.69 Such delay is usually in the interests of the accused, but this possibility can also make it more difficult to estimate the cost of defence when dealing with clients who are privately funded. These dangers may be further exacerbated by the tendency of some criminal practitioners – an understandable tendency given the uncertainties with which they are faced before or during a trial – to magnify issues arising for consideration during it beyond their real importance and to catastrophise about the manner in which juries may possibly reason. The most obvious feature designed to combat these problems is the requirement for leave to be obtained and/or a certificate to be granted by the trial judge before the appeal is permitted to proceed. Rights of appeal available to the accused, as distinct from those available to the Crown, are sometimes expressly restricted, or even reduced to vanishing point on the ground that the 67 68

69

See also R v Leonard [2008] 2 NZLR 218 at 220. Y Kamisar, W LaFave, J Israel, N King, O Kerr and E Primus, Modern Criminal Procedure: Cases, Comments and Questions (12th ed, Thomson/West Academic Publishing, St Paul, 2008) pp 1542f. The advantages of the interlocutory criminal appeal for the accused are also mentioned briefly in Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Issue Estoppel, Double Jeopardy and Prosecution Appeals against Acquittals (The Committee, 2003) p 81. This quotation is a salutary corrective to the idea that only in a post-conviction appeal can the courts gauge the significance of any error: see below, Ch 4 fn 50. There are unending statements to this effect in the sources: see, eg, R v Elliott (1996) 185 CLR 250 at 257; R v Leonard [2008] 2 NZLR 218 at 219f; M Kirby, “Maximising Special Leave Performance in the High Court of Australia” (2007) 30 UNSWLJ 731 at 749. For an extended and helpful consideration of this point and possible exceptions to it from pre-interlocutory-appeal days, with further references, see Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 at 186-8, 213.

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[1.60]

accused will have their appeal after conviction, if that occurs.70 A less far-reaching step is limiting the grant of leave after the actual commencement of the trial to the clearest cases.71 But the dangers of interlocutory criminal appeals are not imaginary, and it is not possible wholly to remove them. They must be faced up to and a decision taken to accept what is unavoidable in the interests of overall improvement.72 It would be glib to say merely that there is no right answer in this field, merely competing considerations – for the verdict of experience, in those jurisdictions which have introduced interlocutory criminal appeals, will be decisive. Hardly anyone nowadays would advocate a return to the pre-1907 days of non-existent criminal appeals, although there were arguments against introducing that system which stalled that innovation for decades. There comes a point at which a system has proved its utility and going back would be unthinkable. In a recent review, the New South Wales Law Reform Commission indicated that both the Commission and those who operate the system are generally satisfied with the working of the interlocutory criminal appeal system.73 It is unlikely that those jurisdictions in Australia that have introduced interlocutory criminal appeals will abandon them, while it is likely that the others will, in the short- or long-term, eventually come to accept this innovation as an improvement.

Other countries England and Wales [1.70] The prohibition on interlocutory criminal appeals was first breached in England and Wales by the Criminal Justice Act 1987 (UK) s 9(11) and (14), which permitted appeals from preliminary hearings in serious or complex fraud cases. This was extended to all complex, serious or long trials for which such preliminary hearings were conducted by the Criminal Procedure and Investigations Act 1996 (UK) s 35.74 A system applicable to all indictable offences was then introduced by the Criminal Justice Act 2003 (UK) Pt 9.75 It contains, first, a general right of appeal for the Crown against interlocutory rulings, which is conditioned, interestingly, on the automatic acquittal of the accused if the prosecution’s appeal fails. There is also an appeal for the Crown in cases in which any ruling on evidence would substantially weaken the Crown’s case, but unfortunately this aspect of the scheme had not yet been brought into force at the time of writing and thus there is no case law to offer assistance in interpreting comparable Australian statutes. 70 71 72 73 74 75

For example, Law Commission (England and Wales), Double Jeopardy and Prosecution Appeals (Cm 5048, March 2001), p 101. For example, Criminal Procedure Act 2009 (Vic) s 297(2). Compare R v DG (2010) 28 VR 127 at 132. New South Wales Law Reform Commission, Report No 140, Criminal Appeals (2014) Ch 11. On these sections, see J Richardson (ed), Archbold: Criminal Pleading, Evidence and Practice (Sweet & Maxwell, London, 2015) (subscription service) pp 411-9, 1281-5. See generally, R Auld, Review of the Criminal Courts of England and Wales (Stationery Office, London, 2001) Ch 12; Law Commission (England and Wales), Double Jeopardy and Prosecution Appeals (Cm 5048, March 2001) Pt VII; R Pattenden, “Prosecution Appeals against Judges’ Rulings” [2000] Crim LR 971; J Richardson (ed), Archbold: Criminal Pleading, Evidence and Practice (Sweet & Maxwell, London, 2015) (subscription service) pp 1258-66.

[1.80]

Other countries

New Zealand [1.80] It comes as a surprise76 to find that New Zealand has a system of interlocutory criminal appeals extending back to the Crimes Amendment Act 1966 (NZ) s 8. The catalyst for their introduction was the intellectual contortions that the Full Court of the Supreme Court of New Zealand had been driven to in order to allow a clearly well-founded application for a change in venue that had been refused by the trial judge in a very prominent murder trial of the day, R v Davis.77 It was thought best to make permanent provision for interlocutory appeals to provide a proper mechanism for future cases in which such an appeal was justified.78 From the beginning the statute covered a variety of other decisions besides applications for changes of venue. Parliamentary debates on the Bill do not suggest that a great deal of attention was paid to this innovation by the public or politicians.79 The system is now to be found in Pt 6, Subpt 2 of the Criminal Procedure Act 2011 (NZ), which provides for appeals both by Crown and prosecution and is, in one respect, a model of clarity which others would do well to consider. Rather than using an open-ended, vague phrase, as the legislation in New South Wales does, it provides for a closed list of topics on which leave may be sought to appeal. The topics concerned comprise a moderately broad but not complete list of interlocutory issues, including evidence that has been the subject of a pre-trial determination of its admissibility in the trial court, separate trials and, of course, changes of venue. However, the legislation in New Zealand contemplates interlocutory criminal appeals prior to, as opposed to during, the trial,80 and that decision restricts the breadth of topics to some extent, which results in reduced coverage compared to Australia. Nevertheless, one of the topics on which appeals are permitted, the extent to which the crossexamination of complainants in sexual cases on their sexual experience is to be allowed – is listed in addition to the general provision for pre-trial rulings on the admissibility of evidence and must surely sometimes arise during the trial.81 76

77 78

79 80

81

Not merely to the present author: cf N Cowdery, “Prosecution Appeals in New South Wales: New Rights, Roles and Challenges for the Court of Criminal Appeal and the DPP” (2008) 26 Law in Context 75 at 79. Nevertheless, the two systems are compared in Rogers v The Queen (1994) 181 CLR 251 at 266. [1964] NZLR 417. Archives New Zealand, item R20970585 (extracts from which, given that the file is closed to public access until 2056, were kindly provided to me courtesy of David Noble, Chief Parliamentary Counsel of New Zealand, and Julia Agar in his office). New Zealand Parliament, House of Representatives, Debates (15 June 1966) p 491; (12 October 1966) p 3295. R v Watson [1999] 3 NZLR 257; Harmonisation of Criminal Procedure Working Group of the Standing Committee of Attorneys-General, Harmonisation of Criminal Appeals Legislation (2010) p 153. On the system in New Zealand, see generally, R v Leonard [2008] 2 NZLR 218; J Finn, D Mathias and R Mansfield, Criminal Procedure in New Zealand (Revised 1st ed, Brookers, Wellington, 2013) pp 170ff, 180-3. I could not find any case considering in detail the point raised in the text about appeals during trial under the rape shield law, but R v Wood [2006] 3 NZLR 743 at 744f seems to imply that appeals in that field could be taken against rulings made during trial. It is of relevance to note that the headings to both the Subpart and section in question refer to “pre-trial” decisions, and this heading is admissible in interpreting the provision under the Interpretation Act 1999 (NZ) s 5(3).

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[1.90]

Canada [1.90] Other than the Crown appeal against the quashing of an indictment or a stay order for which the Canadian Criminal Code expressly provides,82 there is no appeal against interlocutory criminal orders in Canada.83

Germany and Switzerland [1.100] That is also largely the case in Germany, where s 305 of the Code of Criminal Procedure prohibits complaints before the judgment except in a small number of obvious cases, such as against temporary measures like arrests and cancellation of drivers’ licences, but also “against all decisions by which third parties are affected”, an interesting and sensible provision. Juries do not exist in Germany. Thus, one source of multiple pressures on interlocutory appeals is eliminated since there can be no urgency to reconvene a non-existent jury nor talk of its primacy in factual decisions. Section 305, by generally ruling out interlocutory appeals subject to narrow exceptions, is intended to serve the purposes of efficiency by allowing the first-instance court to discharge its function of rendering a verdict without interference from above.84 The new Code of Criminal Procedure for Switzerland does, on the other hand, permit appeals before judgment, including against discretionary decisions: s 393(2)(a). However, the differences between common-law systems and those of Germany and Switzerland, together with the lack of accessibility of their case law to most Australian lawyers, render these facts perhaps interesting only to the academic comparative lawyer and less so to the practitioner.

United States [1.110] The position among the numerous jurisdictions in the United States is rather diverse. This is so much the case that a leading textbook on the law of criminal procedure in that country has to content itself with the observation that, with some exceptions based largely on American constitutional law, “in the federal system and most States” the accused is restricted to appeals after conviction – for the usual reasons involving avoidance of delay and respect for the trial judge’s authority85 – although “a substantial number of States permit the defence to seek interlocutory review of a pre-trial order, with such review granted only at the discretion of the appellate Court (or in some cases, on certification of the trial Judge that there is need for immediate review)”. Even in those States, however, a high hurdle is generally set up in respect of leave to

82 83

84 85

Criminal Code (CAN) (RSC 1985, c C-46) ss 676(1)(b), (c), 696. See further, R v Jewitt [1985] 2 SCR 128. Mills v The Queen [1986] 1 SCR 863 at 899-905 (dissent), 958-64, 978; R v Meltzer [1989] 1 SCR 1764 at 1774f. There appears to be an exception for constitutional (including rights) issues outside the Criminal Code: Dagenais v Canadian Broadcasting Corporation [1994] 3 SCR 835; R v Laba [1994] 3 SCR 965. A Zabeck, R Hannich et al (eds), Karlsruher Kommentar zur Strafprozessordnung (7th ed, CH Beck, Munich, 2013) pp 1855f. Flanagan v United States 465 US 259 (1984) at 263-5.

[1.110]

Other countries

conduct interlocutory appeals, making it clear that they are to be “the exception rather than the general rule”.86 Further, in the United States, prosecution appeals after acquittal are generally not permitted. This has, in turn, led to the introduction of various systems of interlocutory criminal appeals in favour of the prosecution federally and in all the States in order to ensure that mistaken rulings at trial are not rendered unappealable in case of an acquittal.87 As with Australia, such appeals (like all other appeals) are creatures of statute only, and a specific statutory authorisation must be shown for the appeal proposed; the statutes are interpreted strictly in cases of ambiguity.88 In the federal jurisdiction, 18 USC §3731(US) permits prosecution appeals against the dismissal of an indictment or information, and against: a decision or order of a district Court suppressing or excluding evidence or requiring the return of seized property in a criminal proceeding, not made after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information, if the United States attorney certifies to the district Court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding.

The defendant is “put in jeopardy” when the jury is sworn in,89 so the effect of this is to require appeals to be taken before, rather than during, trial, as is generally also the case in New Zealand. Section 18 USC §3731(US) goes on to provide: The appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted. The provisions of this section shall be liberally construed to effectuate its purposes.

An interesting justification for the prosecution’s interlocutory appeal, which the author has not seen elsewhere, is that, without it, the police might conclude on the basis of the holding of a trial court that a policy or practice of theirs is illegal or might lead to the exclusion of evidence. Only with the prosecution appeal can the police obtain the necessary guidance from an appellate court on the point and avoid being faced with the options either of accepting the ruling and acquiescing in a possibly unnecessary restriction of their powers or, alternatively, of defying the ruling in the hope that another trial court in a later case will disagree with the earlier court’s ruling, and the accused will use his right to appeal after conviction to obtain an appellate review of the point.90 It may be that the greater prevalence of plea bargaining in the United States, at least in terms of perception and long-standing acceptance, is also behind some of this. 86

87 88

89 90

For all quotations in this paragraph, see Y Kamisar et al, Modern Criminal Procedure: Cases, Comments and Questions (12th ed, Thomson/West Academic Publishing, St Paul, 2008) p 1542. Y Kamisar et al, Modern Criminal Procedure: Cases, Comments and Questions (12th ed, Thomson/West Academic Publishing, St Paul, 2008) pp 1550f. Carroll v United States 354 US 394 (1957); United States v Martinez 763 F (2nd) 1297 (1985) at 1308f. The former case also contains an interesting history of the development of federal criminal appeals in the United States, which of course started from the same point as Australia – ie at common law there was no appeal against a jury’s verdict. Serfass v United States 420 US 377 (1975) at 388; United States v Boyd 566 F (2nd) 929 (1978) at 932; People v Mendiola 8 NE (3rd) 6 (2014) at 10 and the cases there cited. Y Kamisar et al, Modern Criminal Procedure: Cases, Comments and Questions (12th ed, Thomson/West Academic Publishing, St Paul, 2008) p 1551.

19

20

1: Background, History and Comparative Law

[1.120]

Other procedures [1.120] Although the subject cannot be dealt with comprehensively here – the legislation for interlocutory criminal appeals, not other procedures or remedies, is the subject of this book – a brief note should be made of three other possible ways in which a trial court’s actions can be brought before the appeal courts prior to the conclusion of the trial otherwise than in the manner contemplated by the criminal appeals legislation. First, it is worth noting that declarations in the middle of criminal trials sought as, in effect, an appeal against rulings of trial judges, have occasionally been issued. However, speaking generally, there has been extraordinary public interest involved in making such declarations which goes beyond the facts of the individual case.91 Second, as is well known, a stop was put to the use of certiorari as a means of providing for interlocutory criminal appeals in the usual run of cases in Craig v South Australia.92 There may be some States in which there are still remnants of the general supervisory jurisdiction of the Supreme Court that can be exercised in addition to interlocutory appeals but, again, this book does not deal with the former topic (nor with the question of appeals against, or reviews of decisions on, committals, whether by way of prerogative writ or any statutory procedure).93 Third, some jurisdictions – but not New South Wales94 – have removed the limitation copied from the Crown Cases Act 1848 (UK), thereby permitting 91

92

93

94

See above, fn 6. For successful cases, see: Rozenes v Beljajev [1995] 1 VR 533 at 572; Rozenes v Judge Kelly [1996] 1 VR 320 at 335; Director of Public Prosecutions (Vic) v His Honour Judge Lewis [1997] 1 VR 391 at 402 (“in effect a test case”); Country Energy v Malone (2005) 138 IR 221 at 238-40 (and note also that this case involved a question partly of corporate and public law); Gedeon v Commissioner of the New South Wales Crime Commission (2008) 236 CLR 120 at 133f; see also below, Ch 3 fn 193. The bar may seem to be set somewhat lower by R v Kanaan [2003] NSWCCA 396 at [12] (“clear question of law”) but note “may” in the same paragraph and the fact that some of the authorities just referred to had not been decided at the time. A constitutional issue about the validity of criminal legislation may also be raised by seeking a declaration of its (in)validity as, for example, in Polyukhovich v Commonwealth (1991) 172 CLR 501. However, that takes us outside the criminal law as such. On the general topic of declarations in criminal matters, see R Meagher, D Heydon, M Leeming, Meagher, Gummow and Lehane’s Equity: Doctrines and Remedies (4th ed, Butterworths LexisNexis, Sydney, 2002) pp 628-30. (1995) 184 CLR 163. See also Supreme Court Act 1970 (NSW) s 17(1) and Sch 3(a1) and (a2); WO v Director of Public Prosecutions (NSW) [2009] NSWCA 370; El-Zayet v The Queen [2014] NSWCCA 298 at [60]; Groves, “Should the Administrative Law Act 1978 (Vic) be Repealed?” (2010) 34 MULR 452 at 455; and on this Act, see below, Ch 2 fn 105. For a comparable Canadian authority from the period before their Charter of Rights, see Re Madden (1977) 35 CCC (2nd) 385. For other cases in this field, mostly of historical interest only, see Adler v District Court (New South Wales) (1990) 19 NSWLR 317; Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593; R v Kanaan [2003] NSWCCA 396 at [12]; R v Garth (2008) 191 A Crim R 256; Director of Public Prosecutions (Vic) v County Court of Victoria (2010) 267 ALR 786. As this book went to press, a way around some of these restrictions in cases of jurisdictional error was however pointed out by JW v District Court of New South Wales [2016] NSWCA 22, [26] – [33]. An example of a statutory procedure is the Crimes (Appeal and Review) Act 2001 (NSW) s 53(3)(a). Flanagan v Commissioner, Australian Federal Police (1996) 60 FCR 149 at 213 and Attorney-General (Cth) v Oates (1999) 198 CLR 162 involved the attempted use of administrative law remedies on the validity of an interception warrant and the preliminary question of consent to prosecute respectively. Since Flanagan and Oates, subss (1B) – (1F) and (3) have been added to s 39B of the Judiciary Act 1903 (Cth), and in neither was the decision in Craig v South Australia (1995) 184 CLR 163 (see above, fn 92) considered for reasons peculiar to each case. It is not thus in the summary jurisdiction, as s 5AE of the Criminal Appeal Act 1912 (NSW)

[1.120]

Other procedures

cases to be stated or questions of law to be reserved before conviction (or at the conclusion of the trial).95 Nevertheless, this procedure, even where it is permissible before conviction, will remain of limited utility both in Victoria, as the only jurisdiction which has extensive rights of interlocutory appeal alongside the case stated before conviction,96 and also in other jurisdictions, in which an attempt to state such a case may well be seen as an impermissible attempt to circumvent the lack of availability of interlocutory appeal.97 The appeal procedure, where available, is more flexible than the case stated and does not invite unprofitable argument about what is a question of law only, or can be determined without reference to possible factual permutations. Indeed, even before the modern appeals system of 1907 existed there were but few cases dealt with according to this procedure,98 and the creation of interlocutory criminal appeals is not calculated to increase their number. One last informal method of circumventing restrictions on appeals deserves special mention.99 It has occasionally occurred that an interlocutory criminal appeal has not been available, but the court has nevertheless found it possible to make known its view on the issue in question. In R v Kanaan,100 for example, the charge against the accused was firing a gun in a public place under a

95

96

97

98 99

100

shows, but in the indictable realm. Prior to the introduction of the modern system of criminal appeal, the procedure provided for by the Crimes Act 1900 (NSW) s 428 seems to have allowed cases to be stated during trials. Unlike in England, the procedure was wholly abolished when the criminal appeal was introduced: Criminal Appeal Act 1912 (NSW) s 23(2). When reintroduced as s 5A of the latter Act by the Crimes (Amendment) Act 1924 (NSW) s 32, the procedure was restricted, as stated in the text, despite what is said by the Attorney-General, (Sir) Thomas Bavin: see New South Wales Parliament, Legislative Assembly, Debates (13 August 1924) p 1110. See further below, p 83. For example, Criminal Procedure Act 2009 (Vic) s 302(2); Criminal Law Consolidation Act 1935 (SA) s 350: see South Australian Parliament, Legislative Council, Debates (14 November 1995) p 398. Note, however, that the latter statute has a broad definition of “question of law”, which may make it somewhat more useful than its Victorian sister. It is also worth noting that only the latter, and not the former, it would seem, cures the problem revealed in R v His Honour Judge Hewitt; Ex parte Attorney-General (Vic) [1973] VR 484 at 487f. Director of Public Prosecutions (Cth) v JM (2012) 37 VR 1 at 66-8 (appeal allowed on other grounds: (2013) 250 CLR 135); R v Karabegovic [2013] VSC 566 at [7] – [18]. Nevertheless, a circumstance in which the case stated was found useful arose in Director of Public Prosecutions (Cth) v Galloway [2014] VSCA 272. The restriction on interlocutory appeals noted below, p 95, is the background. See above, fn 11; R v Hatchard (1996) 188 LSJS 98 at 119f; R v Sexton (2000) 76 SASR 534 at 537 (although in Sexton the case was stated as there were good reasons for doing so). The point was, it seems, waived in Question of Law Reserved No 1 of 2008 (2008) 102 SASR 398 because an appeal was clearly permissible on other grounds. P Handler, “The Court for Crown Cases Reserved, 1848-1908” (2011) 29 Law & Hist Rev 259 at 271f. In addition to the case of R v Kanaan [2003] NSWCCA 396, cited in fn 100 below, see also R v Sinanovic [1999] NSWCCA 216; WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275; C, MG v Police [2010] SASC 268 (Magistrates appeal); R v OM (2011) 212 A Crim R 293 at 308. R v Colby (1995) 84 A Crim R 125 is along similar lines: both judgments (at 129, 130f) express the hope that the Crown will take a certain course of action even though the appeal had to be dismissed as incompetent. In R v Eade (2000) 118 A Crim R 449 an appeal was even allowed despite lack of jurisdiction to entertain it in the circumstances indicated below, p 105. The author was present during argument in Tuite v The Queen (No 2) [2015] VSCA 180 and (as the judgment at [39] suggests) hearing of the appeal, although incompetent on the view taken in this book (see below, Ch 2 fn 74), did serve to clarify what each side could do at trial. Indeed, one of the judges commented during argument that the hearing seemed more like a mediation! [2003] NSWCCA 396.

21

22

1: Background, History and Comparative Law

[1.120]

statute101 which penalised firing a gun “in or near” a public place. The District Court judge considered on the basis of authority that the car in which the accused had been sitting was not a public place, although it was on a public road, but adjourned the case in order to allow an appeal to be taken by the Crown. The Court of Criminal Appeal held that there was no order which could be the subject of an interlocutory criminal appeal. However, in dismissing the appeal as incompetent, the court made it clear that the judge had erred, at least in not concluding that it would be open to a jury to determine that the accused had committed the offence by firing his gun near a public place when he was in his car. No doubt, if the case had resumed below, effect would have been given to this expression of opinion; but this does not appear to have occurred, as the accused had already stumbled upon several further and even more effective ways of occupying the time of the criminal courts.102 Finally, it goes almost without saying that a directed verdict of acquittal cannot be appealed against as an interlocutory order, and thus this variation is not dealt with in this work. Statute may expressly authorise such appeals, however. This is not the case in Victoria,103 but in New South Wales, for example, such an appeal may be taken on a question of law alone.104

101 102 103 104

Crimes Act 1900 (NSW) s 93G(1)(b). R v Kanaan (2005) 64 NSWLR 527; [2007] HCATrans 402 at 403. Criminal Procedure Act 2009 (Vic) s 241(3); Director of Public Prosecutions (Vic) v Singh (2012) 34 VR 364. Crimes (Appeal and Review) Act 2001 (NSW) s 107; R v LK (2010) 241 CLR 177; and, for an interesting factual permutation, see R v Lin (No 3) [2014] NSWSC 1733.

2

The Legislation [2.10] Typology...................................................................................................... 23 [2.20] The “defined issues” jurisdictions...............................................................24 [2.40] The comprehensive jurisdictions.................................................................28 [2.40] Australian Capital Territory...............................................................28 [2.50] Federal Court of Australia................................................................. 30 [2.60] New South Wales and Victoria......................................................... 30 [2.100] Third-party appeals....................................................................................39 [2.110] Nature of appeal........................................................................................ 41 [2.120] Appeals to the High Court of Australia................................................... 43

Typology [2.10] All States and Territories permit interlocutory appeals in criminal trials on indictment to some extent, but their legislation falls into two distinct classes. Four States – Queensland, Western Australia, South Australia and Tasmania – as well as the Northern Territory do not give general permission for interlocutory criminal appeals. They adopt the mechanism of designating only certain narrow classes of decisions as those from which such appeals are to be permitted. The strictly formal criteria – that is, the type of order made – on which such legislation operates makes it much less subject to debate about the boundaries of lawfully available appeal rights and may reduce (although it certainly does not eliminate) the need to take into account discretionary factors in determining the utility of an appeal before trial, as distinct from afterwards. New South Wales, Victoria, the Australian Capital Territory and the federal system, which applies only to cartel-related prosecutions in the Federal Court of Australia, permit interlocutory appeals on a comprehensive basis. Their legislation provides for a general capacity to appeal in most, if not all, pre-trial proceedings and does not (with slight exceptions) enumerate specific interlocutory questions on which appeals may or may not be taken. The interlocutory criminal appeal is, accordingly, not confined to specific defined classes of decisions. The gateway of leave to appeal rather than formal restrictions on appeal rights is the principal mechanism for filtering cases which should be the subject of an appeal from those that should not. As has been seen, the legislation of the two States is related – the Victorian legislation was designed on the model of New South Wales, although there are very important differences. The legislation applying in the Federal Court of Australia was also drafted with the same model before it but has a number of specific features that are unique. The Australian Capital Territory, on the other hand, is a special case within this class as its legislation is not designed specifically for criminal trials, but rather allows for interlocutory appeals on the same basis as in the civil law. As they are unrestricted except for the leave requirement, the Australian Capital Territory therefore has perhaps, on paper, the most promiscuous attitude to interlocutory criminal appeals.

24

[2.20]

2: The Legislation

The “defined issues” jurisdictions [2.20] The “defined issues” systems of the four smaller States and the Northern Territory can be outlined much more briefly than those of the three jurisdictions with comprehensive systems. The following table summarises the provisions for interlocutory criminal appeals in trials on indictments1 in the five jurisdictions concerned.

Queensland

Western Australia

1 2

3 4 5 6

Issue(s) on which appeal may be brought2 • Stay

By whom3

Statutory authorisation

Leave necessary?

Crown

Criminal Code (Qld) s 669A(1A)

No

• Stay • Adjournment • Separate trials of multiple accused • Severance of multiple counts

Crown only on stay/ adjournment;5 Crown and accused on separate trials and severance

Notes

No specific power to dispose of appeal: see R v Moti (2010) 240 FLR 218 at 229-31, 235.4 For separate Criminal Yes, of the Court of trial/severance Appeals Act Appeal: appeals, note 2004 (WA) Criminal timing ss 24(2)(c), requirements in Appeals Act (d), (f), (g), 26 2004 (WA) s 27 Criminal Appeals Act 2004 (WA) s 26(5) and (6). The crucial date is when the trial is listed to start:6 see also Criminal Procedure Act 2004 (WA) s 133(7).

Thus, not including provisions such as s 42(1a) of the Magistrates Court Act 1991 (SA). Excluded from this table and the scope of this book are provisions for interlocutory appeals in specialist types of cases such as those involving pleas of insanity – as under s 269Y(3) and (4) of the Criminal Law Consolidation Act 1935 (SA), for example: see R v Stevens (2010) 107 SASR 456. On the use of the term “Crown”, see above, Ch 1 fn 23. Appeal allowed on other grounds: Moti v The Queen (2011) 245 CLR 456. (The case also raised a point about the notice of contention, which will be dealt with below at [5.60].) See also Ferguson v The Queen [2009] HCATrans 16. Muir v The Queen [2006] WASCA 85. See further, Western Australian Parliament, Legislative Assembly, Debates (2 November 2006) pp 8185, 8215f; Santos v Western Australia [2011] WASCA 216; Santos v Western Australia [No 2] [2013] WASCA 39 at [73].

[2.20]

25

The “defined issues” jurisdictions

South Australia

Issue(s) on which appeal may be brought2 • Stay on ground of abuse of process

By whom3

Statutory authorisation

Leave necessary?

Notes

Crown and accused

Criminal Law Consolidation Act 1935 (SA) ss 348, 352(1)(b), (c)

Accused must also show special reasons why it is in the interests of justice to appeal before end of trial: s 352(1)(c)(i).9

Criminal Code (Tas) s 401(2)(ba), (d) Criminal Code (NT) s 414(1)(e)

Crown does not require leave for a question of law only;7 otherwise leave from Full Court necessary. Accused always requires leave from trial court.8 Yes: trial judge or Full Court

Tasmania

• Stay • Quashing of indictment

Crown

Northern Territory

• Stay • Quashing of indictment

Crown

No

Some common elements emerge. One is the bias towards the Crown – explicable by the fact that it cannot usually appeal against an acquittal.10 It will also be seen that all jurisdictions permit an interlocutory appeal on the issue of a stay. In South Australia the appeal is permissible only if it is granted on the ground of abuse of process,11 a somewhat protean category which admits of no precise definition12 and therefore no attempt is made here to define its boundaries. As we saw above,13 the topic of abuse of process recalls the Dietrich decision,14 but the abuse of process may be alleged on any ground for an appeal to be permissible under this heading, such as adverse media publicity or the claim that the prosecution is an abuse of process because it is bound to fail.15 Aside from that common element, the picture is rather mixed as far as the topics on which appeals may be brought are concerned. Of course, in all cases the accused, if convicted, will be able to appeal after the trial on issues on which an interlocutory appeal is not allowed in his State on the topic in question – 7 8 9 10 11 12 13 14 15

As in R v Chapman (2001) 214 LSJS 319. See especially, R v Sexton (2000) 76 SASR 534 at 545. For cases on this point, see R v Fuller (1997) 92 A Crim R 245 at 249f; R v Barrie (2012) 218 A Crim R 448 at 451, 453, 466. But see above, Ch 1 fn 62. R v Sexton (2000) 76 SASR 534 at 536, 544f. Moti v The Queen (2011) 245 CLR 456 at 463f. See above, Ch 1 fn 48. Dietrich v The Queen (1992) 177 CLR 292. South Australian cases include R v Fuller (1997) 92 A Crim R 245 at 245-9 (following Dietrich – appeal allowed: R v Fuller (1997) 69 SASR 251); R v McGee (2008) 102 SASR 318; [2009] HCATrans 81 (unsuccessful – several grounds including delay and media publicity); R v Barrie (2012) 218 A Crim R 448 at 449-51, 453 (unsuccessful argument that the prosecution was an abuse of process because it was bound to fail). A case from Queensland raising the interpretation of the provision creating the offence is R v F; Ex parte Attorney-General (Qld) (2003) 140 A Crim R 447; a recent case from there is R v Dibble; Ex parte Attorney-General (Qld) (2014) 238 A Crim R 511. For cases from the Northern Territory, see R v Kurungaiyi (2005) 15 NTLR 70; R v LB (2011) 246 FLR 466; R v Ahmad (2012) 31 NTLR 38.

26

2: The Legislation

[2.20]

different States have therefore taken different views about the balance between allowing appeals before and after trial. Similarly, in some circumstances the accused is denied an interlocutory appeal that is available to the Crown on the ground that the accused can appeal, if convicted, after the trial ends, while the Crown’s rights are more restricted.16 As we have seen, these are issues involving value judgments and so, accordingly, there is no one right answer. [2.30] In Western Australia alone, there is an appeal available to both Crown and accused against separate trial or severance rulings. This unique provision among the “defined issues” jurisdictions may cause something of a difficulty in practice, because it will usually require the court to make its best estimation on other points, such as the admissibility of evidence against various accused or across the counts, which affect the question on which the appeal is taken – but there is no appeal on such vital although, from the point of view of the issue under appeal, background points. While no appeal can, under the statute, occur during, as distinct from before, the trial, mostly such background questions will already have been dealt with in the court below and it will be possible to accept that ruling for the purposes of the appeal. However, it will occasionally happen that this is not so – a point may arise during the appeal; the ruling below may be obviously defective or not yet have been made; the evidence may be insufficient; or the trial strategy of the various accused might not be known and be crucial in deciding whether they can fairly and efficiently be tried together. Thus, in Smith v The Queen,17 the court was faced with the realisation that, under the principle developed in Edwards v The Queen,18 lies told by the accused might be admissible on some counts as evidence of guilt, but not on others. After noting that the court should not rule on that topic, given that there was no appeal available on it, Miller JA said: If the evidence of alleged lies on the part of the appellants is limited to counts 38 to 48 and is inadmissible in relation to the Crown case on counts 1 to 34, I can see severe prejudice to the appellants which, in my view, would be incapable of being guarded against by a direction to the jury. That prejudice is obvious. Lies allegedly told in relation to one set of charges are likely to influence a consideration of the other charges. In my opinion, this will be so despite any direction from the learned trial Judge to [the] contrary. In the event that the appellants give evidence, and are cross-examined as to the alleged lies told in the course of ASIC investigations, it will heighten the problem. If they admit to lying, the trial Judge will have great difficulty in directing the jury that such answers in cross-examination are relevant only to counts 38 to 48 on the indictment and not otherwise. No jury could be expected to compartmentalise the evidence in that way.19

In circumstances such as these it will be a matter of judgment whether the dangers of such prejudice are large enough to warrant considering the merits of the appeal on the basis that it will occur – this was held to be the case on the facts in Smith. Clearly, a mere theoretical possibility or an assertion without factual foundation will not suffice20 and, as the decision under appeal is a 16 17

18 19 20

Muir v The Queen [2006] WASCA 85 at [8]; R v Moti (2010) 240 FLR 218 at 237 (appeal allowed on other grounds: Moti v The Queen (2011) 245 CLR 456). (2007) 35 WAR 201. For a comparable point from Victoria, where the same difficulty does not arise on the system for interlocutory criminal appeals, see R v PNJ (2010) 27 VR 146 at 153. Edwards v The Queen (1993) 178 CLR 193. Edwards v The Queen (1993) 178 CLR 193 at 253. Western Australia v Russell [2009] WASCA 154; see, however, Russell v Western Australia (2011) 214 A Crim R 326 at 410.

[2.30]

The “defined issues” jurisdictions

discretionary one, the usual appellate restraint on appeals against the exercise of discretions will apply.21 The power to admit new evidence on appeal22 will usually not be a way out of such a dilemma, both because it causes delay and because the accused might be required to reveal their defence(s) before the trial. It may also, in many cases, be a sensible course merely to set aside the decision below under Criminal Appeals Act 2004 (WA) s 26(7) and return the case to the trial court, which could take evidence as necessary and be guided by the Court of Appeal’s reasons in re-exercising its discretion. Given the protean nature of abuse of process, it is conceivable, but perhaps less likely, that some factual issues may cause similar problems on that ground in any of the “defined issues” jurisdictions.23 It is also the case that trial tactics, and particularly those of the accused which may remain unknown until the trial begins, are far less likely to be of relevance in such cases. Quashing an indictment is an available topic of appeal in Tasmania and the Northern Territory. An indictment may be quashed if it is defective in form – for example, because it charges an offence which is not known to the law24 or is bad for duplicity,25 or if, for example, it is presented out of time.26 In New South Wales, s 5C of the Criminal Appeal Act 1912 also provides for appeals against quashing on top of the general appeals provision in s 5F. The High Court of Australia has held that the reference in s 5C to quashing an information or indictment includes a decision “dismissing an information on the ground that the information placed before the relevant Court was insufficient properly to invoke the jurisdiction of the Court in a case where proceedings are required to be commenced by information”.27 In other jurisdictions in which quashing an indictment/information is not an available ground of appeal, it may be that more modern statutes place more emphasis on the possibility of amendments to the indictment/information or elections by the prosecution to occur as long as the accused’s case is not prejudiced (as does, for example, s 132 of the Criminal Procedure Act 2004 (WA)). A further possibility is that the Crown may be able to recommence the prosecution in the proper form, although that may obviously involve some delay. 21 22 23

24 25

26 27

Kalani v Western Australia [2013] WASCA 132. Criminal Appeals Act 2004 (WA) s 40. An example is Moti v The Queen (2011) 245 CLR 456, but there the facts were sufficiently established by the proceedings below. Whether the accused can afford legal representation at the proposed trial, having regard to its nature and length etc, is also a matter on which evidence will be required, but again it is very likely that it will be established by the decision below and that a reasonable estimate of the length of the trial can be made without evidence – as in R v Fuller (1997) 69 SASR 251. An example is Monis v The Queen (2013) 249 CLR 92; [2013] HCA 4, where it was alleged that the offence was unconstitutional and therefore non-existent. For example, Criminal Law Consolidation Act 1935 (SA) s 281(1); Walsh v Tattersall (1996) 188 CLR 77 at 104f; Selim v The Queen [2006] NSWCCA 378. This applies also to individual counts, as in, for example, R v Kurungaiyi (2005) 15 NTLR 70. An alternative is to require the prosecution to elect, as in Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125. R v Hull (1989) 16 NSWLR 385 at 396. John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 516; see also Morrison v Joy Manufacturing Co Pty Ltd (2004) 137 IR 8 at 32; Ove Arup Pty Ltd v Industrial Court of New South Wales (2006) 149 IR 193 at 202, 204; Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales (2007) 165 IR 7 at 11f, 23-5; McDonald v Director of Public Prosecutions (Vic) (2010) 26 VR 242 at 243.

27

28

2: The Legislation

[2.40]

The comprehensive jurisdictions Australian Capital Territory [2.40] The Australian Capital Territory stands in an unusual position. It missed out by a matter of months on inheriting New South Wales’ version of the first edition of the modern system of criminal appeals (without interlocutory appeal procedures), which was enacted in 1912, the year after the Territory was created in 1911.28 However, on the creation of the Territory’s Supreme Court in 1933, the Seat of Government Supreme Court Act 1933 (Cth) s 52 created a rudimentary system of appeals to the High Court of Australia based upon the modern system of criminal appeals that by then applied in all States. It also made provision for appeals against conviction only. Curiously, however, when the appellate jurisdiction was transferred from the High Court of Australia to the Federal Court of Australia in 1976, s 24(1)(b) of the Federal Court of Australia Act 1976 (Cth), for no apparent reason, made no provision for any distinction between criminal and civil appeals, or even between interlocutory and final orders, but merely gave to that court jurisdiction over “appeals from judgments of the Supreme Court of a Territory”. In McNamara v The Queen,29 the Full Court of the Federal Court of Australia, clearly surprised by this, held, by majority (Brennan and Toohey JJ), and not without some clear doubts, that the Act appeared to mean what it said and all types of appeals, including interlocutory criminal appeals, were permissible, but that there would be great caution exercised in this “novel”30 field because of the undesirability of fragmenting criminal proceedings. Deane J referred even more strongly to his “serious doubts” about whether, on its “proper construction”, the Act meant what it said, but did not expand on this view beyond offering the archconservative view that such a jurisdiction would contradict “established principles”.31 With the creation of the Court of Appeal for the Australian Capital Territory in 2001, the current system was introduced. While some elements of the traditional system were adopted for conviction appeals, the only change with respect to interlocutory appeals was that leave is now required for all interlocutory appeals, both civil and criminal. Apart from that there remains no restriction at all on the types of orders or rulings that may be the subject of an interlocutory appeal.32 At first sight the restriction in s 37E(2)(a) that appeals are available only against “orders” might appear, especially to one familiar with the legislation in New South Wales, to require some degree of formality to inhere in the decision appealed against, but this is not so: the Dictionary of the 28

Had it been enacted 16 months earlier, the Criminal Appeal Act 1912 (NSW) would have become the law of the Territory under the Seat of Government Acceptance Act 1909 (Cth) s 6(1).

29

(1978) 20 ALR 98. This was an appeal from the Supreme Court of the Northern Territory, but there is no material difference. McNamara v The Queen (1978) 20 ALR 98 at 99. McNamara v The Queen (1978) 20 ALR 98 at 101. For a case from the period between this decision and 2001, see R v Davis (1995) 57 FCR 512. Supreme Court Act 1933 (ACT) s 37E(4); note also that leave might be given by a single judge under s 37J(1)(a).

30 31 32

[2.40]

The comprehensive jurisdictions

Act defines “order” to include “judgment, decree, direction or decision”33 – thus eschewing, as the Victorian legislation also does, a division between formal judgments and orders, on the one hand, and mere lesser, unappealable decisions on the other. This interesting experiment could probably work only in a small, low-crime jurisdiction (it is perhaps no coincidence that it has not been tried in the comparably populous Northern Territory, for example). On paper, this makes the Australian Capital Territory the most liberal of all jurisdictions in Australia on interlocutory criminal appeals – indeed, greater liberality could not be achieved except by abolishing the requirement for leave. In reality, the courts have developed criteria for the grant of leave, which were summarised in 2013 as follows: (a) Whether the decision complained of is attended with sufficient doubt to warrant its reconsideration by a Court of Appeal. (b) Whether a substantial injustice would result if leave were refused, on the assumption that the decision is wrong. (c) Whether a grant of leave would inappropriately fragment the criminal trial process. (d) Whether there are any exceptional circumstances that would justify a grant of leave despite any fragmentation of the trial process.34

To these may be added: (e) the question whether there is a substantial public interest, going beyond the individual case, in the determination of the point of law concerned.

This may be because a challenge is made to a commonly-used form of search warrant,35 because a serious question relating to the right to be tried without unreasonable delay under s 22(2)(c) of the Human Rights Act 2004 (ACT) is involved36 or because the statute-based practice regulating the retention of fingerprint evidence on a database is called into question and many other persons may be affected.37 All of these considerations, including the last-mentioned, are only guidelines, of course, and not a list of criteria which must all be fulfilled. This is well illustrated by R v AI,38 in which a Crown application to appeal against the grant of separate trials to three accused was allowed and the appeal itself upheld, although the case had no significance beyond that to those involved and there was nothing exceptional about the circumstances. On the facts it could clearly be seen that the exercise of the discretion had miscarried and, for the 33

34

35 36

37 38

A point that was missed in Aon Risk Services Australia v Australian National University (2010) 244 FLR 440, but not in R v Fearnside (2009) 3 ACTLR 25 at 38, although the precise extent of the words was not finally decided. Miles v The Queen [2013] ACTCA 52 at [11]; on the question of fragmentation, see also Austin v The Queen [2011] ACTCA 3 at [12]. The author suggests, however, that the requirement of “exceptional circumstances” proposed in that latter case is not borne out by all the other authorities, most obviously R v AI [2013] ACTCA 16: see below, Ch 2 fn 38. Exceptional circumstances form a valid criterion, but not the sole deciding factor. Kola v The Queen [2006] ACTCA 23 (appeal dismissed: Kola v The Queen (2007) 1 ACTLR 164; 176 A Crim R 102). Nona v The Queen [2012] ACTCA 55 (appeal dismissed: Nona v The Queen (2013) 8 ACTLR 168 at 179, 183, 214-29; application for special leave to appeal dismissed owing to “insufficient prospects of success”: R v Nona [2014] HCATrans 44). R v Sarlija (2006) 167 A Crim R 101 at 105. [2013] ACTCA 16. Another case which also raised no particular issue of general importance is R v Muller (2013) 7 ACTLR 296.

29

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[2.40]

usual reasons (sparing expense and witnesses and avoiding the possibility of inconsistent verdicts), no order for separate trials should have been made.

Federal Court of Australia [2.50] In theory, the system of interlocutory appeals applicable to indictable criminal trials in the Federal Court of Australia is equally as open-ended as that in the Australian Capital Territory, but the extremely narrow compass of that court’s criminal jurisdiction would make such a comparison more than usually odious. However, it is the very fact that the Federal Court’s indictable criminal jurisdiction is restricted to cartel cases – which may well be long and complicated – that specially justifies a provision for interlocutory criminal appeals: otherwise, long trials could be found, on appeal, to have been nullities because of a mistake about complicated law and facts that might have been corrected by a timely appeal. In the Federal Court, appeals may be brought against judgments, decrees, orders and decisions “(however described)”39 of the trial judge – a phrase obviously designed to be more comprehensive than the rule in New South Wales, in particular, which will be considered shortly. In addition, the exception – that there is no appeal against the discharge of a juror or jury – also indicates that appeal rights were designed with the recent experience in New South Wales in mind and were intended to be broader for, as we saw in Chapter 1, s 5G of the Criminal Appeal (Amendment) Act 1987 in New South Wales40 ensures that discharges of juries constitute a topic on which appeals are allowed even though they were thought not to fall within s 5F. In the federal system, they are already within the broader words used to describe the type of appeals that may be brought, but are excluded by express provision. That the Act contains “no power for the Court to hear an appeal against an order to discharge a jury or a juror”41 is, as far as the author is aware, nowhere explained, but it may be speculated that it was thought that time would not suffice for such indulgences. The Court of Criminal Appeal for New South Wales sits every week, except in court vacation, but it can safely be surmised that appeals to the Full Court of the Federal Court of Australia in criminal matters will require less constant sittings, and thus some time may elapse before a Bench can be constituted. Even so, the exclusion is an odd one, as it might mean that some trials cannot be saved. Sections 30AB(2) and 30AE(3)(a) of the Federal Court of Australia Act 1976 require the leave of – unusually – only the trial judge for interlocutory appeals made before acquittal or conviction, as long as the challenge is not to an order to discharge a juror or a jury. Under s 25(2) of that Act, the single judge could nevertheless direct that the application for leave be referred to the Full Court. As yet there has been no case law under this scheme.

New South Wales and Victoria [2.60] The remaining jurisdictions are the two on which the rest of this book will focus, namely New South Wales and Victoria. These two jurisdictions have much in common, but there are also some important differences. 39 40 41

Federal Court of Australia Act 1976 (Cth) s 30AA(4)(b); see also s 4 (“judgment”). See above, Ch 1 fn 36. Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 (Cth), Explanatory Memorandum at [325].

[2.60]

The comprehensive jurisdictions

The original version of the New South Wales scheme contained only the category of “judgment or order” against which appeals could be brought.42 The second, the evidentiary category, was added by the Crimes Legislation Further Amendment Act 2003 (NSW) s 3 and Sch 3 Item 8 (before the Victorian system was created).43 Before the change, there was frequently a need to debate what constituted a “judgment or order” and what did not. The canonical statement was that of Hunt CJ at CL, Grove and Sharpe JJ in R v Steffan:44 A judgment is the decision of a Court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the Court. An order is a command by a Court that something be done (or not done). It is unnecessary in the present case to discuss the highly technical distinction between interlocutory and final judgments or orders. If the ruling on evidence in this case was either a judgment or order, it was clearly interlocutory in nature. It is not immediately self-evident as a matter of ordinary usage how a ruling on the admissibility of evidence could be entered in the records of the Court as a judgment, or how it commands that anything be done (or not done) in the sense of an order of the Court. It is true that such a ruling may be accompanied (as it was here) by elaborate reasons which have been expressed in a document called a “judgment”, but that is an altogether different usage of the word “judgment” and denotes the reasons which have been expressed rather than the formal act of the Court.

The question whether something is a “judgment or order” certainly does still come up, although the amendment of 2003 has reduced the need for mental gymnastics and pointless technicalities on this score. To the extent that the question, nevertheless, does still arise, the answer will be given in the next chapter in relation to each type of decision. As we saw in Chapter 1, the Victorian system was drafted on the model of New South Wales. However, very important differences were intended (alongside minor differences and mere variations in wording, which will not be mentioned here).45 Perhaps the most important difference is that the appeal against an evidentiary decision that “eliminates or substantially weakens”46 the Crown case can be brought only by the Crown itself in New South Wales,47 but in Victoria the accused can bring such an appeal against the admission of Crown evidence based on an assessment of the position that would exist if, hypothetically, the evidence had been excluded – which raises the question whether that would have eliminated or substantially weakened the Crown’s case.48 This may indicate that the system in New South Wales has a greater focus on avoiding unjust acquittals obtained through erroneous exclusion of evidence, while in Victoria it is also a principal concern not to allow trial time to 42

46

Criminal Appeal Act 1912 (NSW) s 5F(2), (3). In addition, there was also the specially added classification of quashing an indictment (s 5C); later came discharging the whole jury (s 5G), to which reference has already been made, and the third-party appeal permitted by s 5F(3AA), (3AB). See further above, p 7. (1993) 30 NSWLR 633 at 636. For a recent case on a comparable point and with useful references to earlier authority, see Salter v Director of Public Prosecutions (NSW) (2009) 75 NSWLR 392; see also Michael v The Queen [2012] NSWCCA 164. However, for one trap in the Victorian legislation resulting from such a minor change, see below, Ch 3 fn 290. Criminal Appeal Act 1912 (NSW) s 5F(3A).

47 48

See further, Kocer v The Queen [2006] NSWCCA 328 at [15]. MA v The Queen (2011) 31 VR 203.

43 44

45

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[2.60]

be wasted by confining the accused’s appeal on an evidentiary point to the time after conviction. The Department of Justice, in an obvious reference to the Thomas case49 referred to by Maxwell P in an extract quoted earlier,50 states on this that: if a confessional record of interview is admitted (and it is central to the prosecution case) then the accused can also seek leave to appeal against that decision. The reason for this approach is that if the accused is successful, there may be no need for a trial at all.51

This difference also demonstrates why it is still sometimes important in New South Wales to determine whether a ruling amounts to a “judgment or order”, for if it is not, the accused cannot appeal. [2.70] A further important difference between New South Wales and Victoria lies in the fact that, in Victoria, the word used to delineate the types of decisions amenable to appeal is “decision”52 rather than “judgment or order”. This change was made in order to “avoid[s] technical arguments about the nature or description of the decision in question, for example, whether the decision was a ‘judgment’ or ‘order’”.53 Other provisions of the Criminal Procedure Act 2009 (Vic) adopt the word “decision” in order to harmonise with this.54 The decision must nevertheless be an “interlocutory decision”, which is stated in s 3, probably redundantly,55 to include decisions to grant or to refuse a permanent stay of prosecution, but otherwise remains undefined by the legislation. (“Decision” itself is not defined.) Thus, in Victoria the point of permitting appeals against evidentiary decisions that “would eliminate or substantially weaken the prosecution case”56 is not that, as in New South Wales, such a description is jurisdictional57 and expands the categories of decisions against which leave to appeal may be sought at all. In Victoria, the question whether an evidentiary ruling “would eliminate or substantially weaken the prosecution case” is a criterion for whether leave to appeal should be granted against a decision that is already, as a decision, subject to the appeals jurisdiction. Reflecting on these differences, Weinberg JA has said: In my view, the New South Wales approach is greatly to be preferred because it accords due weight to the need to prevent fragmentation of the criminal trial process. Moreover, the narrower formulation provides a significantly greater hurdle for those who might be minded to seek forensic advantage merely through delay. To allow those accused of indictable offences (as distinct from the Crown, which has no other recourse) to bring interlocutory appeals against evidentiary rulings of a kind which are routinely made every day provides a strong incentive to 49 50 51 52 53 54 55 56 57

R v Thomas (2006) 14 VR 475. P Maxwell, “A New Approach to Criminal Appeals” [2009] VicJSchol 13 at 1-3. For the quote, see Ch 1 at [1.40]. Department of Justice (Victoria), Criminal Procedure Act 2009 – Legislative Guide, p 276. Criminal Procedure Act 2009 (Vic) s 295(2); for the exception, see above, p 10. Victorian Parliament, Legislative Assembly, Debates (4 December 2008) p 4987 (R Hulls, Attorney-General); see also R v GP (2010) 27 VR 632 at 638f. Department of Justice (Victoria), Criminal Procedure Act 2009 – Legislative Guide, p 276, referring to s 199 as a “good example”. See below, p 60. Criminal Procedure Act 2009 (Vic) s 295(3)(a). R v Shamouil (2006) 66 NSWLR 228 at 233; R v Cittadini (2008) 189 A Crim R 492 at 493; see also R v DG (2010) 28 VR 127 at 131.

[2.70]

The comprehensive jurisdictions

systemic abuse, and is in no way beneficial to the public interest. While it is true that such appeals can only be brought with the leave of this Court, that filter may well be more illusory, in many cases, than real.58

The New South Wales Law Reform Commission agrees.59 The topic will be further considered in the conclusion to this book. In New South Wales, the Crown60 does not even need leave to bring an appeal, either on the “judgment or order” or on the evidentiary ground – only the accused needs either leave or the certificate of the trial judge. Parliament must have assumed that the Crown would not abuse the power nor bring appeals that would unduly interfere with the efficient disposal of its criminal litigation.61 (Special mention should be made at this point of the very commendable decision of the Victorian Director of Public Prosecutions to appeal against an obviously dubious ruling given in February 2015 even though it was in favour of the Crown.62 The need to take such a principled course might well arise one day in New South Wales, all the more because the Crown does not need leave there.) There is also no prescribed statutory test for the grant of leave to the accused in New South Wales – this is left to case law. In Victoria, on the other hand, both sides need leave and the statute is much more forthcoming about the criteria for granting it. It has been said that the requirement for leave “evidences a legislative intention to uphold the authority of the trial Judge”,63 but there are other obvious reasons behind the need not to allow every decision to be challenged as of right. The decision-maker on an application for leave to appeal differs somewhat in Victoria. In New South Wales the accused must have either the leave of the Court of Criminal Appeal or the trial judge’s certification64 – a very traditional approach to the question. The Court of Criminal Appeal for New South Wales has emphasised on a number of occasions that the decision whether an appeal to it ought to be permitted should be primarily for it and that trial judges should grant certificates only with caution and for special reasons – for example, if there is no opposition from the Crown or the trial judge considers that the 58 59 60

61

62

63 64

Wells v The Queen (No 2) [2010] VSCA 294 at [46]. New South Wales Law Reform Commission, Report No 140, Criminal Appeals (2014) pp 212ff. Note, however, the unusual situation that arose in Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125, where the prosecutor was a government authority and it required leave. Pellegrino v Director of Public Prosecutions (Cth) (2008) 71 NSWLR 96 at 100. The New South Wales Law Reform Commission has suggested that this should be changed and the Crown also should require leave: New South Wales Law Reform Commission, Report No 140, Criminal Appeals (2014) pp 214ff; see also R v NKS [2004] NSWCCA 144 at [17]f; R v Lameri [2004] NSWCCA 217 at [53]; R v Harker [2004] NSWCCA 427 at [62]. Director of Public Prosecutions (Vic) v Newman [2015] VSCA 25. It would, of course, be necessary to show that jurisdiction exists. On the facts of Newman itself, it is by no means clear that jurisdiction would exist in New South Wales as the “judgment or order” test would apply rather than the more liberal Victorian one. However, the more general point is that the Crown’s capacity to appeal without leave can be used to ensure the integrity of the trial, where jurisdiction exists. R v Steffan (1993) 30 NSWLR 633 at 642; R v BWM (1997) 91 A Crim R 260 at 267. On the form of the certification, see r 11A of the Criminal Appeal Rules (NSW); R v BK (2000) 110 A Crim R 298 at 299; R v Glossop [2001] NSWCCA 165 at [12]f. In R v Bell [1998] NSWSC 570 the court purported to refuse leave, although a certificate had been granted, and was required to correct its order to a dismissal of the appeal; in RA v The Queen (2007) 175 A Crim R 221 at 225 the court superfluously granted leave; in R v Miller (2001) 127 A Crim R 344 at 347 it supplied any need for leave due to disconformity between the certificate and the grounds of appeal by granting leave.

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[2.70]

Court of Criminal Appeal may not share his or her insight into the case.65 The trial judge should also have “substantial doubt”66 about the correctness of the ruling, or else an appeal would just be a waste of time, and also consider the general desirability of allowing appeals to occur after any conviction rather than interrupting criminal proceedings for them.67 There are good reasons for entirely abolishing the capacity of the trial judge to permit an appeal by certification in this way.68 Clearly, also, the trial judge’s certificate will be a nullity if it is granted on a point which is not an “interlocutory judgment or order”, for that is a jurisdictional point.69 Nevertheless, there is at least one case70 in which certification occurred and the trial judge was Sully J, a frequent habitué of the Court of Criminal Appeal. That court, on receipt of his certificate as trial judge, rightly made no adverse comment on its granting – so there may be the occasional opportunity for time-saving as a result of this power vested in the trial judge; whether that saving justifies retaining it may be debated. The attitude of judicial respect is a two-way street. Mahoney JA has said, with the agreement of Gleeson CJ and Dunford J, that: The procedure which has been set up to enable Courts, prior to the trial of an offence, to deal with interlocutory matters is a beneficial procedure and it is one which, in my opinion, should receive, if I may so describe it, the support of appellate Courts. I do not think that appellate Courts should readily interfere with what a Judge does at the interlocutory stage of the matter. As I understand the interlocutory procedures set up, it was not the intention of the legislature that orders made in the course of exercise of those interlocutory powers should ordinarily be the subject of appeals which would complicate trials or delay them. The purpose of the interlocutory procedure was, I think, to clear away any possible irregularities in advance and so to facilitate trials rather than to invite a sequence of appeals against interlocutory orders. No doubt it was for this purpose that s 5F provided that in a case such as this [an appeal by the accused against a refusal to vacate a trial date] there was to be no appeal against the interlocutory orders except by leave of this Court. I do not think that leave should readily be granted.71

Such discretionary considerations will be considered in detail in the following chapters. There is also a clear procedural distinction between appeals by leave and of right, and the court is able to dismiss applications for leave without going into the merits of the matter.72 65

66 67 68 69

70 71 72

Pellegrino v Director of Public Prosecutions (Cth) (2008) 71 NSWLR 96 at 99f, which was also cited in WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 at [23]; Osborne v The Queen (2014) 283 FLR 97 at 99; Kocer v The Queen [2006] NSWCCA 328 at [23]: “rarely”. For an example of a trial judge considering this issue, see R v Veitch (2012) 15 DCLR (NSW) 152 (further proceedings: KS v Veitch (2012) 300 ALR 181; KS v Veitch (No 2) (2012) 84 NSWLR 172); see also R v Lethlean (1995) 83 A Crim R 197 at 206. Kocer v The Queen [2006] NSWCCA 328 at [23]. WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 at [24]. New South Wales Law Reform Commission, Report No 140, Criminal Appeals (2014) p 217. Examples are R v Lavender (2002) 37 MVR 491; R v Daher [2004] NSWCCA 458; R v EK (2009) 75 NSWLR 302 at 306; WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275. R v Alexandroaia (1995) 81 A Crim R 286 at 287. R v Ho (unreported, NSW Court of Criminal Appeal, 18 July 1994). DAO v The Queen (2011) 81 NSWLR 568 at 607; R v Matovski (1989) 15 NSWLR 720 at 722; R v Steffan (1993) 30 NSWLR 633 at 634; R v Stig (unreported, NSW Court of

[2.80]

The comprehensive jurisdictions

[2.80] In New South Wales, it has nevertheless not been the usual practice to consider separately the questions of leave and merits.73 Victoria has attempted a somewhat more sophisticated division of labour on the granting of leave to appeal: the Crown or the accused must first ask the trial judge to certify that excluding the evidence would eliminate or substantially weaken the prosecution case, or that a non-evidentiary decision is of sufficient importance to justify the appeal. If the trial judge refuses to certify, the Court of Appeal may consider under s 296 of the Criminal Procedure Act 2009 (Vic) what is, in effect, an appeal against that refusal involving a reconsideration of the same questions as were before the trial judge.74 In deciding whether to grant such a certificate, the Victorian scheme clearly envisages that the trial judge will play an active role in the question and will exercise a lively judgment.75 Although the author has found no statement to this precise effect in the materials, a person who was involved in the process of introducing interlocutory criminal appeals in Victoria has informed me that the government proposed the idea of the trial judge’s certificate as a means of ensuring that direct access could not be immediately had to the Appeals Court – it should not be possible to just “run across the road” and seek leave without more. It is, therefore, the trial judge, also, who will be responsible for preventing the pointless or time-wasting appeals referred to by Weinberg JA in the extract just quoted. Unlike in New South Wales, such certificates will clearly not be granted only rarely in Victoria, although they are not granted lightly there either. There too, case law establishes that trial judges should, whether the application is made

73

74

75

Criminal Appeal, 17 October 1996) at conclusion of Barr J’s judgment; cf R v Boag (1994) 73 A Crim R 35 at 37, in which leave was granted part-way through the hearing when it became apparent that there was, indeed, a serious point. DAO v The Queen (2011) 81 NSWLR 568 at 607; X v The Queen [2011] NSWCCA 202 at [14]; TS v The Queen [2014] NSWCCA 174 at [47]; and the numerous cases in which leave has not in fact been dealt with separately. But there are exceptions: see Ch 2 fn 72. For examples, see Wells v The Queen (No 2) [2010] VSCA 294; Dertilis v The Queen [2010] VSCA 360; Finn v The Queen [2011] VSCA 120; PA v The Queen [2012] VSCA 294; CJD v The Queen [2012] VSCA 329; Kumar v The Queen [2013] VSCA 297; Vasiliou v The Queen [2014] VSCA 22; Dillon v The Queen [2014] VSCA 164; Sanders v The Queen [2016] VSCA 6. See also below, Ch 4 fn 8; County Court of Victoria, Practice Note No 2 of 2010 at [143], [148]. In Tuite v The Queen (No 2) [2015] VSCA 180 at [34], the Court of Appeal for Victoria, while expressing “at the very least considerable doubt” on the point, left open the question whether, as the accused would-be appellant had argued, “consider” in s 296(4)(a) of the Criminal Procedure Act 2009 (Vic) liberated the Court of Appeal for Victoria, on a review, from strict adherence to the limitations in s 295(3), but rather gave it a general power to override the usual limitations on interlocutory appeals in s 295(3) and allow an appeal to proceed if the interests of justice so required. This is an ingenious argument, which also illustrates the perils of loose language in statutes. However, it is clear for a number of reasons that “consider” is meant to mean more than “take into account” – rather, it means “give effect to” or “apply”. Otherwise, it would, first, be hard to explain why a single judge could exercise such a broad and exceptional power as s 315(1)(b) of the Criminal Procedure Act 2009 (Vic) allows. Second, the word “review” itself in s 296 would also be out of place as the court’s function would amount to much more than merely reviewing the decision below. Third, the Department of Justice (Victoria), Criminal Procedure Act 2009 – Legislative Guide, p 279, states that the power to review is a “fail-safe process to deal with situations in which a Judge wrongly refuses to certify”. In other words, it is not an overriding discretion to allow an appeal to proceed anyway, even if the non-certification was not wrong. Finally, had such an extraordinary power been intended, much more consideration would assuredly be found of this option in the extrinsic materials, whereas they in fact clearly suggest that it was not the intention. Director of Public Prosecutions (Vic) v BB (2010) 29 VR 110 at 121 (certification not to occur on basis of parties’ agreement).

35

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[2.80]

under s 295(3)(a) or (b) of the Criminal Procedure Act 2009 (Vic), consider the merits of the matter – that is, whether their decision is attended by real doubt.76 They should also be in a position to conclude that the factors in favour of granting leave, such as avoiding the prospect of a retrial, which might waste resources and cause unnecessary distress to witnesses, outweigh the undesirability of interrupting criminal proceedings.77 It has, in other words, proved unrealistic to implement the scheme as designed, under which certification was not supposed to “involve the judge making any assessment about the merits of their decision, nor how the judge considers the Court of Appeal might decide the issue”.78 Ashley JA has suggested that there is no discretion not to issue a certificate if the requirement for doing so set out in s 295(3)(b) – “that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal” – is satisfied.79 However, that seems wrong: it would not sit well with the other factors and the factors that have just been mentioned. No such requirement could, at any rate, be applied to a decision under paragraph (a) given that “[a]ny ruling which excludes Crown evidence must, logically, weaken the Crown case”80 and the accused also can seek to appeal against rulings which favour the Crown under this rubric. Later case law appears to have politely but firmly rejected the idea that there is no discretion in the trial judge under s 295(3)(b).81 That applies not merely to the trial judge, but also to the Court of Appeal in any review under s 296. The statute could nevertheless be drafted far more helpfully on the juristic nature of these decisions. Recently, in Dillon v The Queen,82 Priest JA stated that “[a]lthough the reasons that a Judge may give granting or refusing certification need not be elaborate, nonetheless they ought to reveal the process of reasoning leading the Judge to a particular conclusion”. This is essential to inform the appeals court and the parties of those reasons both if certification is granted as well as if it is refused and an appeal might be contemplated. This point also does not apply in 76

77

78 79

80

81 82

McDonald v Director of Public Prosecutions (Vic) (2010) 26 VR 242 at 245f; Stannard v Director of Public Prosecutions (Vic) (2010) 28 VR 84 at 90; Wells v The Queen (No 2) [2010] VSCA 294 at [7]; Dertilis v The Queen [2010] VSCA 360 at [14]; MA (2011) 31 VR 203 at 205; KRI v The Queen (2011) 207 A Crim R 552 at 565; Vasiliou v The Queen [2014] VSCA 22 at [11]. Stannard v Director of Public Prosecutions (Vic) (2010) 28 VR 84 at 90; KRI v The Queen (2011) 207 A Crim R 552 at 565. Trial judges considering these factors at length may be seen in action in R v Mokbel [2010] VSC 349; R v Karabegovic [2013] VSC 576. See also Director of Public Prosecutions (Vic) v Woolf [2013] VCC 1119; Director of Public Prosecutions (Cth) v Stewart (No 2) [2014] VCC 1416; County Court of Victoria, Practice Note No 2 of 2010 at [140], [146]. Department of Justice (Victoria), Criminal Procedure Act 2009 – Legislative Guide, p 275. McDonald v Director of Public Prosecutions (Vic) (2010) 26 VR 242 at 245. The other judges (Neave and Redlich JJA) neither agreed nor disagreed with this suggestion. In Wells v The Queen [2010] VSCA 100, Ashley JA repeated his comments at [17], but Redlich and (it would seem) Weinberg JJA agreed only with other points made by his Honour. See also R v Benbrika [2011] VSC 471 at [25]. Director of Public Prosecutions (Vic) v BB (2010) 29 VR 110 at 121. As we shall see, the hurdle created by the term “substantially” prior to “weaken” in s 295(3)(a) is not a high one. R v DG (2010) 28 VR 127 at 131. [2014] VSCA 164 at [41]. It barely needs to be said that a judge who does not give adequate reasons for the decision under appeal, especially upon being advised that an appeal is contemplated, is vulnerable to the sort of criticism expressed in R v Bright [2014] VSCA 341 [46] at [75].

[2.90]

The comprehensive jurisdictions

New South Wales, where certification by the trial judge is not essential to an appeal and trial judges would be justified in the usual run of cases merely referring to the fact that the usual avenue is to seek leave before the Court of Criminal Appeal for New South Wales. If certification is granted, or on an appeal against the non-granting of one, the Court of Appeal for Victoria must under s 297(1) consider a further list of factors before granting leave, namely whether it: is in the interests of justice to [grant leave], having regard to – (a) the extent of any disruption or delay to the trial process that may arise if leave is given; and (b) whether the determination of the appeal against the interlocutory decision may – (i) render the trial unnecessary; or (ii) substantially reduce the time required for the trial; or (iii) resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or (iv) reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and (c) any other matter that the Court considers relevant.83

This requires a substantial exercise of judgment by the court – the grant of leave does not follow automatically from the trial judge’s certification.84 Indeed, despite the lack of any mechanism for appealing against a trial judge’s decision to grant the certificate, “it will sometimes be appropriate to examine the basis of the decision to certify in considering whether or not there should be a grant of leave to appeal under s 297”.85 It is hard to see, given the existence of paragraph (c), and the broad terms of the other criteria, that much more could be added by the words “interests of justice” at the start of the extract quoted, but there is authority for considering the general prospects of success of the appeal both under this heading as well as under the specific subparagraphs.86 That is the sort of thing that the Court of Appeal for Victoria no doubt also had in mind when stating that it might on occasion assess the cogency of the trial judge’s reasons for certifying the appeal in considering whether to grant leave.

[2.90] The Victorian legislation adds a still further test in s 295(3)(c) for interlocutory appeals proposed after the trial commences,87 namely either that the issue must not have been reasonably identifiable before the trial or that the party seeking leave was not at fault in failing to identify it. This question, which 83 84 85

86

87

Criminal Procedure Act 2009 (Vic) s 297(1). MA v The Queen (2011) 31 VR 203 at 206. Director of Public Prosecutions (Vic) v MD (2010) 29 VR 434 at 436; see also CGL v Director of Public Prosecutions (Vic) (No 2) (2010) 24 VR 482 at 484 (although it will be shown later that the test actually applied in this case was far too restrictive); ZL v The Queen (2010) 208 A Crim R 325 at 327. McDonald v Director of Public Prosecutions (2010) 26 VR 242 at 245f; Director of Public Prosecutions (Vic) v Zheng [2013] VSCA 304 at [10] (decision “plainly” correct so both paras (iii) and (iv) negatived). This occurs “when the accused pleads not guilty on arraignment in the presence of the jury panel”: Criminal Procedure Act 2009 (Vic) s 210(1); SLS v The Queen [2014] VSCA 31 at [1] fn 1.

37

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2: The Legislation

[2.90]

is in addition to the other requirements and not to be substituted for them,88 is also a question for the trial judge; the Court of Appeal is then directed under s 297(2) to consider whether the reasons for granting leave “clearly outweigh any disruption to the trial”.89 This scheme shows an impressive degree of thought, but no-one familiar with the course of criminal trials or legal history could imagine that it would be possible to effect such an elaborate division of labour so perfectly, or to divide up issues arising from one set of facts so neatly.90 The Court of Appeal for Victoria has also pointed out difficulties with some of the wording chosen: The language of s 297(1)(b)(iii) presents some difficulties. The problem lies in the meaning to be accorded to the expression “necessary for the proper conduct of the trial”. The word “necessary” suggests a high degree of need, and is ordinarily synonymous with “essential”. It connotes something more than merely “useful”, or “important”. There are also problems with the expression, “the proper conduct of the trial”. In one sense, any ruling on a point of evidence that is even arguably erroneous could be said to justify the giving of leave to appeal on the basis that to allow the evidence to be led would be “be inconsistent with such proper conduct”. Plainly, however, the legislature could not have intended the phrase to be read so widely. Otherwise, s 297(1)(b)(iii) would not act as any sort of filter in determining whether leave to appeal should be given. Finally, turning to s 297(1)(b)(iv), it is obvious that, were this Court to allow the appeal against his Honour’s decision …, that would “reduce the likelihood of a successful appeal … in the event that the accused is convicted at trial”. However, that would be so in almost every case in which a challenge by an accused person to an adverse ruling on a point of evidence were to succeed. By allowing an interlocutory appeal in any such case, the Court would, of necessity, be reducing the scope for a subsequent successful appeal. After all, the ground upon which the interlocutory appeal had succeeded would thereafter be moot. The final matter to which the Court may have regard, when determining whether or not to give leave, is set out in s 297(1)(c). It provides, somewhat uninformatively, that the Court may have regard to “any other matter that the Court considers relevant”.91

Clearly, the words and expressions highlighted by the court must be read with less than their full meaning if the Act is not to commit multiple absurdities. On the other hand, one point that can be added to the quotation just reproduced is that in some cases there is a real danger that the evidence might change at trial, whereas in others the evidence may be less likely to change for a variety of reasons specific to the case, while in still others the questions might be non-evidentiary, of a purely legal nature and not susceptible of change. This means that interlocutory appeals will not necessarily have the same capacity to reduce the likelihood of a successful appeal across all cases and categories of issue. This question will be taken up again in Chapters 3 and 4. As in New South Wales, the application for leave to appeal made to the appeals court can easily turn into the hearing of the appeal itself, as can an appeal under s 296 against the trial judge’s refusal to certify – indeed, the 88 89 90 91

R v Zheng [2013] VSC 559 at [34], [42]. For examples, see Director of Public Prosecutions (Vic) v Zheng [2013] VSCA 304; Vasiliou v The Queen [2014] VSCA 22. The New South Wales Law Reform Commission has recommended against going down the same path: Report No 140, Criminal Appeals (2014) pp 215ff. R v DG (2010) 28 VR 127 at 130.

[2.100]

Third-party appeals

Supreme Court (Criminal Procedure) Rules 2008 (Vic) r 3.06(1) makes express provision for both of these possibilities.92 Nevertheless, the statutory list of criteria in s 297(1) is a useful reference for day-to-day purposes of the points which must be considered upon an application for leave. Despite all these differences between the two States, and the fact that the question is not a purely factual one in relation to which talk of an onus is more natural, it is no doubt true in Victoria also that, as has been said in the Court of Criminal Appeal for New South Wales, “it is the applicant who bears throughout the burden of establishing on the probabilities a case that is appropriate to attract a grant of leave to appeal”93 or that the jurisdictional requirements are otherwise met, and that “[i]t is not a mere formal burden, and it is not a trifling burden”.94 Paradoxically, if the claim is that the Crown’s case has been eliminated or substantially weakened, the Crown may attempt to show that this is so by arguing for the weakness of the rest of its case, and the accused for its strength,95 or the accused for a restrictive interpretation of what evidence is excluded by a ruling, and the Crown for a broad one!96

Third-party appeals [2.100] In s 5F(3AA) and (3AB) of the Criminal Appeal Act 1912 (NSW) special provision is made for one case: the sexual assault communications privilege.97 On other matters, it would seem that the third party has no right of appeal under the interlocutory criminal appeals scheme, given that all appeal rights are statutory and the statute does not provide for such appeals.98 However, if the decision reaches the statutory thresholds for an appeal (most obviously the existence of a “judgment or order” in New South Wales),99 the Attorney-General or Director of Public Prosecutions can appeal on behalf of the third party – which may, for example, be a police informer or government department; there is no requirement that those two office-holders should be appealing on their own behalf.100 The position in Victoria, in which no such third-party appeal is expressly provided for, is presumably that the accused can appeal against decisions, such 92 93 94 95

96 97

98 99

100

See SLS v The Queen [2014] VSCA 31 at [5] fn 4. Piras v The Queen (2006) 167 A Crim R 260 at 263; see also below, Ch 4 fn 15. R v Taipavalu (2002) 130 A Crim R 513 at 514. R v GAC (2007) 178 A Crim R 408 at 417 per Giles JA, who adds humorously: “The oddity may explain why neither side’s submissions went into detail”; but in Victoria, where the defence can also appeal, cf CJD v The Queen [2012] VSCA 329 at [14]. R v Phan [2003] NSWCCA 205 at [7]f. For recent cases, see PPC v Williams (2013) 238 A Crim R 25; ER v Khan [2015] NSWCCA 230. Another recent case under this provision, raising in part constitutional points, is Veitch: see R v Veitch (2012) 15 DCLR (NSW) 152; KS v Veitch (2012) 300 ALR 181; KS v Veitch (No 2) (2012) 84 NSWLR 172. A factor that was not adverted to in Witness v Marsden (2000) 49 NSWLR 429; [2000] NSWCA 52 at [103]f. National Crime Authority v Black (unreported, NSW Court of Criminal Appeal, 3 December 1991), referred to in Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 670 (no “judgment or order” yet); R v CB [2011] NSWCCA 264 at [24]: “may”. Note also the unusual possibility that neither party may be the Attorney-General or the Director, in which case neither can appeal except under s 5F(3): an example is Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125, where the prosecutor was a government authority. Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 673, 689; R v Smith (1996) 86 A Crim R 308 at 310f; Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536 at

39

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2: The Legislation

[2.100]

as the striking out of a subpoena directed to a third party,101 but the third party cannot in its own name appeal against the corresponding decision against it. This is because the wording used in s 295(2) of the Criminal Procedure Act 2009 (Vic) restricts appeals to “a party”.102 However, there is, again, no statutory requirement that a party should appeal qua party, on its own behalf. This seems a rather fine point, but analogy with New South Wales suggests allowing the prosecution to appeal on behalf of a third party. A third party in Victoria, unlike in New South Wales,103 can also attempt, however, to bring applications for prerogative relief if the trial court is amenable to it.104 Here the third party, if appealing from the County Court of Victoria, will have considerable assistance from s 10 of the Administrative Law Act 1978 (Vic), which converts the reasons of the decision-maker into part of the record and thus permits them to be examined for error.105 In the Australian Capital Territory the passive voice used in s 37E(2) of the Supreme Court Act 1933 is sufficient, by reasoning a fortiori from the cases in New South Wales, to permit a third party to bring an appeal. However, in the Federal Court of Australia this topic appears to have been completely overlooked when we might expect a serious consideration of it in relation to complicated, lengthy trials: s 30AC(1)(b) of the Federal Court of Australia Act 1976 (Cth) must, if it has any point at all, rule out appeals other than by the prosecutor or the accused. Thus, the accused would be able to appeal against an order unfavourable to him or her, but again the prosecutor would need to sponsor an application for leave to appeal by a third party who had been bested by the accused. In the “defined issues” jurisdictions, there has been divergence on whether third parties to criminal litigation, such as those required to produce documents, can appeal by bypassing such provisions as exist in these jurisdictions for interlocutory criminal appeals. When the question arose in 2007 in the Supreme Court of South Australia, a majority of the Full Court was able to dismiss the appeal as incompetent on other grounds, thus not needing to decide the point

101 102

103

104 105

543-6. The question seems to have been overlooked initially in R v Stig (unreported, NSW Court of Criminal Appeal, 17 October 1996), but there any difficulties were cured once the Attorney-General for New South Wales had joined in; it had been left open in R v Abdullah [1999] NSWCCA 188 at [33]. Compare R v Young (1999) 46 NSWLR 681 (before s 5F(3AA) existed). See Watkins v Commissioner of the Australian Federal Police [2015] VSCA 321 at [14], where the Commissioner applied to be joined as a respondent to accuseds’ appeals but this was rejected on the ground that the Commissioner was not a party to the criminal proceedings. The Commissioner also conceded (at [15]) that he could not institute a proceeding personally and the court endorsed that view. However, the Commissioner was permitted to intervene. For the outcome, see Watkins v Director of Public Prosecutions (Vic) [2015] VSCA 363. Such relief is not available at all in New South Wales owing to Sch 3 s 17(1)(a1) and (a2) of the Supreme Court Act 1970 (NSW); cf Adler v District Court (NSW) (1990) 19 NSWLR 317 at 333f, 340f. See however above, Ch 1 fn 92. As in Atlas v Director of Public Prosecutions (Vic) (2001) 124 A Crim R 180; Commissioner of the Australian Federal Police v Magistrates’ Court of Victoria [2011] VSC 3. See Atlas v Director of Public Prosecutions (2001) 124 A Crim R 180 at 198; M Groves, “Should the Administrative Law Act 1978 (Vic) Be Repealed?” (2010) 34 MULR 452 at 455. Supreme Court Act 1970 (NSW) s 69(4) is similar, but for the reason given in fn 203, such proceedings are not allowed for other reasons.

[2.110]

Nature of appeal

and leaving it open.106 In Western Australia, on the other hand, the Court of Appeal held, without citing the South Australian decision, that such appeals are competent.107 Of course, the legislation governing appeals was different in the two States, but not in such a striking way that an explanation for this divergence is easily found.

Nature of appeal [2.110] It is important not to confuse two issues108 – namely, whether the

principle of House v The King109 applies to the review of any particular decision, which depends to some extent upon the nature of the particular decision itself, and the question about the nature of the interlocutory criminal appeal as such, which is about the extent to which the court should conduct its own hearing or assessment of the evidence. The nature of an appeal as interlocutory, rather than one following conviction, may nevertheless affect the degree to which any one particular classification of decision can be reviewed – that is, whether the House or some more exacting standard applies.110 In KJM v The Queen,111 the Court of Appeal for Victoria said: The submission for the Crown was that this Court should follow the recent unanimous decision of a five-member bench of the NSW Court of Criminal Appeal in DAO v The Queen,112 to the effect that an interlocutory appeal from a decision under ss 97/101 [of the Evidence Act 2008 (Vic) – on tendency/ coincidence evidence] was governed by the principles in House v The King.113 The submission for the applicant, on the other hand, was that this Court could – and should – decide the question of admissibility for itself. Relying on what was said in Warren v Coombes,114 counsel submitted that this Court was in as good a position as the trial judge to decide the question. As in DAO, the membership of the Bench has been enlarged since the application was heard, because of the importance of this question to the regime of interlocutory appeals. With the concurrence of the parties, Buchanan and Redlich JJA have determined the matter on the basis of the appeal papers and the transcript of argument. In our view, the decision in DAO should be followed in Victoria. As the detailed reasons of Spigelman CJ and Allsop P show, there is room for debate about the proper characterisation of a decision under ss 97/101. It is sufficient for present purposes to express our agreement with the Court’s conclusion, that an interlocutory appeal from such a decision should be governed by the principles in House v The King. 106

107 108 109 110 111 112 113 114

Southern Adelaide Health Service v C; Case Stated on Acquittal (No 1 of 2006) (2007) 97 SASR 556 at 570, 587 (apparently agreeing with two contradictory views on this point), 590f. Australian Crime Commission v Marrapodi (2012) 42 WAR 351 at 355, 358f, 370-3. R v BWM (1997) 91 A Crim R 260 at 261; R v Ford (2009) 201 A Crim R 451 at 474; see also below, Ch 3 fn 203. (1936) 55 CLR 499. For a broader dictum of the Court of Appeal for Victoria, together with criticism, see below, Ch 3 fn 296. (2011) 33 VR 11 at 12f. (2011) 81 NSWLR 568. (1936) 55 CLR 499. (1979) 142 CLR 531 at 551.

41

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2: The Legislation

[2.110]

In our view, the case for appellate restraint at the interlocutory appeal stage is even stronger in this State than in New South Wales. In contrast to the system of interlocutory appeals operative there, the CPA allows a defendant to seek to challenge an evidentiary ruling by way of interlocutory appeal.115 The clear legislative intention, however, is that interlocutory appeals on evidence should be strictly confined.116 Like the NSW Court of Criminal Appeal in DAO,117 we should emphasise that this is a decision about the nature of an interlocutory appeal from a ruling under s 97. The nature of appellate review of such a ruling on a conviction appeal is a separate question, to which different considerations may apply.118

The case of DAO v The Queen involved, it should also be mentioned, an application for severance of counts based on a claim that the tendency evidence was not cross-admissible, and it is apparent that the effects of the decision to refuse severance or separate trials on the fairness of the trial can best be judged after it. It should also be mentioned that special leave to appeal to the High Court of Australia was refused in DAO on the ground that it was not a case “in which the normal practice of this Court of not granting special leave to appeal against interlocutory decisions should be departed from”.119 It is at any rate possible that a decision that can be reviewed fully after conviction may be reviewable only for obvious or discretionary errors at the interlocutory stage. The following chapter deals with the classifications of decisions that can be the subject of appeal and it is there that any such discrepancies that have been revealed by the case law will be noted. Turning to the nature of the interlocutory criminal appeal as such: authority in New South Wales makes it clear that all interlocutory criminal appeals are by way of rehearing, although the question has been left open in Victoria120 and does not appear to have been considered in the “defined issues” jurisdictions. In an appeal by way of rehearing, “the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error”.121 There has been some confusion on this point in New South Wales, apparently based on a misapprehension that “rehearing” implies that it is usual to take all the evidence again and start from the beginning; that of course is not so: that would be an appeal de novo.122 Rather, 115

Criminal Procedure Act 2009 (Vic) s 295(3)(a).

116 117 118

CGL v Director of Public Prosecutions (No 2) (2010) 24 VR 482 at [4]f. DAO v The Queen (2011) 81 NSWLR 568 at [53], [61]f, [213]. See, eg, R v Huynh (2006) 165 A Crim R 586 at [4]; R v LRG (2006) 16 VR 89 at [13]; R v Tragear (2003) 9 VR 107 at [32]; R v El Moustafa [2010] VSCA 40 at [16]f; cf R v Buckley (2004) 10 VR 215 at [25]. [2011] HCATrans 298. JLS v The Queen (2010) 28 VR 328 at 339. It may be, however, that his Honour has here confused the two issues mentioned at the start of this section. Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 597. R v BWM (1997) 91 A Crim R 260 at 261, 265f, 268f; R v Cox [1999] NSWCCA 229 at [10]; R v Giovannone (2001) 119 A Crim R 519 at 523f; R v Glossop [2001] NSWCCA 165 at [6] – [11]; R v Elazzi (2001) 125 A Crim R 113 at 115; Norvenska v Director of Public Prosecutions (Cth) [2007] NSWCCA 158 at [11] – [13]; Nagi v Director of Public Prosecutions (NSW) [2009] NSWCCA 197 at [35] (special leave to appeal refused: Nagi v The Queen [2010] HCATrans 146); R v Ford (2009) 201 A Crim R 451 at 473f, 489, 491; Sasterawan v Morris (2010) 201 A Crim R 302 at 311; DAO v The Queen (2011) 81 NSWLR 568 at 585f; Director of Public Prosecutions (NSW) v JG (2011) 220 A Crim R 19 at 25f; TS v The Queen [2014] NSWCCA 174 at [44].

119 120 121 122

[2.120]

Appeals to the High Court of Australia

a rehearing “means that the case is to be determined by the … Court, its members considering for themselves the issues the trial judge had to determine and the effect of the evidence he heard as appearing in the record of proceedings before him”.123 As we shall see in Chapter 5, new evidence under some statutes creating interlocutory criminal appeals may be admissible, but such occasions are likely to be rare. This is all familiar: in this respect, interlocutory criminal appeals do not differ from the standard appeal after conviction on any point of law or exercise of discretion, or other ruling that was made at trial. Thus, an interlocutory criminal appeal is neither an appeal de novo (essentially a rerun of the case) nor an appeal in the strict sense as are appeals to the High Court of Australia.124

Appeals to the High Court of Australia [2.120] In theory there is a right of appeal, pursuant to s 73(ii) of the Federal Constitution and the Judiciary Act 1903 (Cth) s 35, from any court, State or federal, that is exercising federal jurisdiction, and in other matters from the State Supreme Courts to the High Court of Australia. This state of the law is little more than a theory because special leave to appeal is required and the court has made it clear that it is most unlikely to be granted. One footnote should be added to the previous paragraph. Under s 73(ii) of the Constitution, the High Court of Australia’s appellate jurisdiction applies to “all judgments, decrees, orders and sentences”. At first sight this might seem to raise a problem given that the legislation in New South Wales applies to evidentiary decisions or rulings as well, not just to “judgments and orders”, while the Victorian legislation was deliberately drafted to avoid that phrase entirely. However, it must be remembered that, except for the entirely unlikely possibility of a direct appeal to the High Court of Australia from a court exercising federal jurisdiction other than a State Supreme Court, appeals will lie against decisions of State Courts of Appeal or Full Courts. They will certainly be judgments and/or orders and this apparent difficulty can be seen to be illusory.125 Even if the intermediate appeals court sets aside a ruling or decision (as distinct from a judgment or order) below and makes some other ruling or decision instead, that will be done by judgment and order against which a further appeal would theoretically lie. 123

124 125

Da Costa v Cockburn Salvage & Trading Pty Ltd (1970) 124 CLR 192 at 208f. The familiarity of counsel briefed in the trial with the evidence, as well as matters such as the tone of voice in which it was given, may well be why the Court of Appeal for Victoria said on more than one occasion that it was “of great assistance” for counsel briefed in the trial to conduct the (application for leave to) appeal (CW v The Queen [2010] VSCA 288 at [31]; see also CGL v Director of Public Prosecutions (Vic) (2010) 24 VR 486 at 487), even though this may mean, as a practitioner pointed out to the present author, that counsel with different skills and levels of experience are involved in interlocutory, as distinct from post-conviction, appeals. Eastman v The Queen (2000) 203 CLR 1. The contrary possibility, raised but not dealt with in Re Chief Commissioner of Police (Vic) (2005) 79 ALJR 881 at 886, clearly has reference to the peculiar features of that case, which was not an interlocutory criminal appeal conducted under the legislation considered in this work.

43

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2: The Legislation

[2.120]

It seems also unarguably correct, a fortiori from Mellifont v AttorneyGeneral (Qld),126 that the interlocutory appeal is an exercise of judicial power and not a mere advisory opinion. Of course, it may be that courts will on occasion go outside the strict confines of what they need to say in order to dispose of the dispute in front of them,127 but that is not unknown in all sorts of cases and the orders on interlocutory appeal remain judicial orders. So much for the formal law. The High Court of Australia has made it abundantly clear, on numerous occasions, that it will grant special leave for appeals in interlocutory criminal applications only in the rarest circumstances. This is the case in relation to both the “defined issues” and the comprehensive jurisdictions.128 Occasional exceptions do exist in which the “normal practice”129 of the court is waived, usually when the question to be ventilated is of some considerable public importance – such as the constitutional validity or correct interpretation of an Act. However, in these cases the substance as well as the form of the appeal is usually not the criminal law as such, but rather something along the lines of a suit for a declaration settling a question of constitutional law or statutory interpretation.130 On the other hand, success even on this front has clearly been mixed, and Hayne J commented recently during argument on an unsuccessful application for special leave to appeal that: the root of the difficulty about these interlocutory appeals [is] that the court ends up dealing with the matter on hypotheses, and the court does not grapple, and cannot grapple, with facts as they are established at trial, or allegedly established at trial. We end up uttering judicial glosses on statutory words where the glosses then themselves take on some canonical status and we depart from the legislation and the application of the legislation to the facts as they are established at a trial.131

While the decision was doubtless correct in the individual case, it is submitted, however, that any principle to the effect stated by his Honour would go too far. There is a legitimate role for considering the meaning of a statute in the abstract (and if judicial glosses on a particular statute cannot be avoided in the end, it 126 127 128

129 130

131

(1991) 173 CLR 289. See above, p 21; see also Director of Public Prosecutions v FM (2013) 233 A Crim R 83 at 94. Abibadra v The Queen [2011] HCATrans 171; Beljajev v Director of Public Prosecutions (1991) 173 CLR 28 at 32; R v Elliott (1996) 185 CLR 250 at 256-8; Fuller v Director of Public Prosecutions (Cth) (1994) 68 ALJR 611 at 614f; Gilham v The Queen [2008] HCATrans 85; Goldsmith v The Queen (1993) 67 ALJR 513 (committal); R v Iorlano (1983) 151 CLR 678 at 680; Joosse v Australian Securities and Investment Commission (1998) 73 ALJR 232; Re Rozenes; Ex parte Burd (1994) 120 ALR 193 at 195; Yates v Wilson (1989) 168 CLR 338 (committal). Still further references can be found in R v Karabegovic [2013] VSC 566 at [18]. DAO v The Queen [2011] HCATrans 298. Sankey v Whitlam (1978) 142 CLR 1; Polyukhovich v Commonwealth (1991) 172 CLR 501; Jamieson v The Queen (1993) 177 CLR 574; Attorney-General (Cth) v Oates (1999) 198 CLR 162; Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 at 134. A true exception in which there was no issue outside the criminal law is Rogers v The Queen (1994) 181 CLR 251; but the fragmentation objections do not seem to have been considered there. As the text of this book was being finalised, another exception emerged: R v Beckett [2015] HCA 38; it does not appear that much thought was devoted in that case, or the hearing of the special leave application, to the reasons for not allowing an interlocutory criminal appeal to proceed to the High Court of Australia, or to the matters mentioned by Hayne J in the text following. Director of Public Prosecutions v Karabegovic [2014] HCATrans 179.

[2.120]

Appeals to the High Court of Australia

will make little difference whether they are formulated on interlocutory appeal or an appeal against a particular conviction, which, it may be postulated, could even be determined while some other case, with different facts, is in progress). To take an extreme example: whether or not the commission of a statutory offence requires mens rea is a question that should be able to be determined on an interlocutory appeal. There may be good reasons for strictly limiting the number of interlocutory appeals carried all the way to the High Court of Australia, but not for wholly denying their utility when a statutory offence must be interpreted.

45

3

Decisions Amenable to Appeal [3.10] Introductory and general............................................................................. 47 [3.20] Proceedings on indictment.................................................................49 [3.30] Interlocutory....................................................................................... 51 [3.40] Judgment or order..............................................................................52 [3.50] No-case ruling, quashing indictment, autrefois.......................................... 55 [3.60] No-case ruling....................................................................................55 [3.70] Quashing indictment.......................................................................... 57 [3.80] Autrefois.............................................................................................59 [3.90] Stays.............................................................................................................60 [3.100] Severance and separate trials.................................................................... 64 [3.110] Adjournment, vacation of trial date, change of venue, amendment of indictment.......................................................................................................... 67 [3.120] Jury issues..................................................................................................71 [3.130] Disqualification for bias............................................................................ 74 [3.140] Issues related to guilty pleas.....................................................................77 [3.150] Constitutional points..................................................................................79 [3.160] Existence and meaning of offence............................................................ 80 [3.170] Privileges and subpoenas.......................................................................... 84 [3.180] Witness-related issues................................................................................86 [3.200] Admissibility: relevance, rape shield laws, hearsay and identification evidence.............................................................................................................93 [3.200] Relevance......................................................................................... 93 [3.210] Appeals against admission of defence evidence.............................93 [3.230] Meaning of inadmissible................................................................. 97 [3.240] Other points......................................................................................98 [3.250] Tendency/coincidence evidence................................................................ 98 [3.260] Admissions...............................................................................................101 [3.270] More prejudicial than probative..............................................................102 [3.280] Illegality and impropriety........................................................................104 [3.290] Issues arising after close of evidence..................................................... 106

Introductory and general [3.10] This chapter comments on the classifications of decisions that can be appealed against in New South Wales and Victoria, the two States whose interlocutory criminal appeal systems possess both size and comprehensiveness.1 Because the Victorian legislation was based in part on that 1

The other jurisdictions were dealt with in the previous chapter.

48

3: Decisions Amenable to Appeal

[3.10]

of New South Wales, the Court of Appeal for Victoria has held that cases from New South Wales may be of assistance there,2 and there is no reason why it cannot work the other way as well. This is not, however, uniform national legislation, not only because it does not exist in other States, but also because there are important differences between the New South Wales and Victorian statutes.3 Thus, it does not fall within the peremptory direction of the High Court of Australia in Farah Constructions v Say-Dee4 that intermediate appellate courts should not depart from each other’s interpretations of such legislation unless convinced that they are plainly wrong.5 On occasions the courts have felt called upon to remind themselves of the fact that the legislation providing for interlocutory appeals is beneficial legislation and should not be interpreted in an unnecessarily restrictive way,6 and that form should not prevail over substance.7 These statements are a useful corrective to equal and opposite pronouncements along the lines that “[i]t is generally inappropriate for this Court to seek to micromanage a long and complex criminal trial by intervening in the pre-trial process”8 and that the hurdle for being permitted to appeal on an interlocutory point is generally high.9 There are three jurisdictional requirements in New South Wales for the bringing of an appeal under the system set up by s 5F of the Criminal Appeal Act 1912: • there must be proceedings on indictment before the Supreme or District Court;10 • the decision must be interlocutory rather than final; • there must be a “judgment or order”; or alternatively, on a Crown appeal, “any decision or ruling on the admissibility of evidence” that “eliminates or substantially weakens the prosecution’s case”. In Victoria only the first two requirements exist, as far as the establishment of jurisdiction is concerned (and the reference to the District Court must be read as a reference to the County Court). Each of these three preconditions will now be considered in turn. 2 3 4 5 6 7

8 9 10

R v DG (2010) 28 VR 127 at 131. A point referred to in Director of Public Prosecutions (Vic) v MD (2010) 29 VR 434 at 437. (2007) 230 CLR 89 at 151f. See, rather, Walker Corporation v Sydney Harbour Foreshore Authority (2008) 233 CLR 259 at 270. R v Waterhouse (1992) 62 A Crim R 59 at 63. R v F (2002) 129 A Crim R 126 at 135f; Cheikho v The Queen (2008) 75 NSWLR 323 at 329; DAO v The Queen (2011) 81 NSWLR 568 at 573; PNJ v Director of Public Prosecutions (Vic) (2010) 27 VR 146 at 153; cf also Sasterawan v Morris (2010) 201 A Crim R 302 at 308. Cheikho v The Queen (2008) 75 NSWLR 323 at 351; in Victoria, see, eg, R v DG (2010) 28 VR 127 at 132. DAO v The Queen (2011) 81 NSWLR 568 at 580. In New South Wales there are also the two extra possibilities set out in the Criminal Appeal Act 1912 (NSW) s 5F(1)(b) and (c). On the former, see below, p 78; examples of the latter include Moy v Warringah Council (2004) 142 A Crim R 577; Island Maritime Ltd v Filipowski [2004] NSWCCA 453; Epacris Pty Ltd v Director-General, Department of Natural Resources (NSW) (2007) 69 NSWLR 507 (special leave to appeal refused: Epacris Pty Ltd v Director-General, Department of Natural Resources (NSW) [2007] HCATrans 400). As was noted in Chapter 1, this book is not concerned with appeals on committal, but see, for a recent case in which the possibility of an appeal under s 5F on that basis was raised and rejected, Hall v The Queen [2015] NSWCCA 298.

[3.20]

Introductory and general

Proceedings on indictment [3.20] There is unlikely to be much dispute about the time at which

proceedings commence in the higher Court: in both New South Wales11 and Victoria,12 this will usually occur after the accused is committed (assuming there is no ex officio indictment) and the indictment is filed in the Supreme or District/County Court. This is a different question from the much-debated question of when a trial begins13 and, once appellable rulings have been made in the Supreme/District/County Court, it is clear enough that proceedings must have begun there. It has, however, been held in New South Wales that applications for bail,14 and probably also for costs under the Costs in Criminal Cases Act 1967 (NSW),15 while connected to the proceedings against the accused for the indictable offence, are not actually part of those proceedings, with the consequence that there can be no appeal under s 5F. The same view might be taken in respect of bail applications in Victoria, although the point was left open in a recent decision of the Court of Appeal for Victoria in which the case law in New South Wales was not cited. However, Priest JA did point out that other avenues of appeal were available with the clear intention that they should be used.16 Although the court did not say so expressly, it would seem that the refusal of leave to appeal by the Court of Appeal for Victoria in Construction, Forestry, Mining and Energy Union v Grocon Constructions (Vic) Pty Ltd17 approves the argument of the would-be appellant that the system of interlocutory criminal appeals is not applicable in contempt cases. This follows from the requirement that the proceeding must not only be a criminal proceeding, but also on indictment to qualify for the interlocutory criminal appeals system.18 The judgment of the High Court of Australia, on further appeal, contained much that indicated that contempt proceedings did not even satisfy the first of those criteria. Nevertheless, there has been one case in which the Court of Appeal for New South Wales refused to entertain an interlocutory appeal, or at least doubted their jurisdiction, on the ground that no “proceedings” were in progress in the higher court because a trial had concluded before verdict and no new trial had 11 12

Criminal Procedure Act 1986 (NSW) Pt 3 Div 2. Criminal Procedure Act 2009 (Vic) Pt 5.2.

13

Note the reference in R v Belghar (2012) 217 A Crim R 1 at 3 to an apparently unreported decision of the District Court of New South Wales not to order trial by judge alone, which was affirmed on appeal because that court had no jurisdiction over the accused, given that he had not been arraigned. At first sight this may appear to be a decision about the jurisdiction of the Court of Criminal Appeal for New South Wales, but closer thought will show that it is a decision about the jurisdiction of the court below based on some such criterion as the commencement of the trial rather than the proceedings. R v Nanai [2000] NSWCCA 204; Bagshaw v The Queen [2009] NSWCCA 32 at [15]. See now Bail Act 2013 (NSW) s 67(1)(e).

14 15 16

17 18

El-Zayet v The Queen [2014] NSWCCA 298 at [70] – [73], [144] – [169] (dissent). This does not affect applications for costs of the appeal itself, which are dealt with in Chapter 6. Dillon v The Queen [2014] VSCA 164 at [34]. On appeals against the refusal of bail in Victoria, see R Fox, Victorian Criminal Procedure – State and Federal Law (Monash Law Book Co-operative, Clayton, 2010) pp 188-90. [2014] VSCA 261 (appeal dismissed: Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 89 ALJR 622). Criminal Appeal Act 1912 (NSW) s 5F(1)(a); Criminal Procedure Act 2009 (Vic) s 295(1).

49

50

3: Decisions Amenable to Appeal

[3.20]

commenced. In R v Milakovic,19 the jury had been discharged, thus terminating the trial then in progress and, on an appeal under s 5F, Grove J (with whom the rest of the court largely agreed) said: The jurisdiction of this Court does not extend to an advisory opinion concerning something which might happen at a future trial. That does not undermine the jurisdiction which may be exercised where a trial is in progress for the purpose of pre-trial rulings specific to lis pendens.20

To the extent that these words refer to the court’s alleged lack of jurisdiction because the trial was in the future, they clearly conflate the start of the trial (of no significance for the jurisdictional question) with the start of proceedings. That, however, is not to deny that there might have been other good non-jurisdictional reasons for refusing leave in the specific case for the reasons given by his Honour, which related to the unknown shape of the evidence at the future trial and whether a witness could be declared unfavourable.21 In other words, the point should correctly have been seen not as jurisdictional, but as discretionary – as was recognised in the later case of R v GAC22 in which the appeal was entertained as the court was able to assess the ruling on tendency evidence adequately, given that it did not depend on matters such as the precise course of the evidence at trial. Another authority to the same effect, predating Milakovic, is R v Pavia,23 which, as coincidence would have it, was a successful appeal from Grove J himself. It is also of relevance to note that s 130A of the Criminal Procedure Act 1986 (NSW) was not in existence when Milakovic was decided. Grove J’s dictum in that case was wrong to begin with to the extent that it referred to jurisdiction, and the discretionary reasons in favour of the course taken there have now been greatly weakened by s 130A (and the equivalent in Victoria, ss 203 – 205 of the Criminal Procedure Act 2009). There is also one case, Cornwell v The Queen,24 in which the Crown, bizarrely enough, proposed to run an appeal after conviction under s 5F – the background being that a certificate granting the accused immunity from having his evidence used against him under s 128(7) of the Evidence Act 1995 (NSW) was granted to the accused in relation to crimes other than those he stood charged with and, equally unusually, at the accused’s retrial the Crown sought to circumvent the accused’s decision not to give evidence by tendering the transcript of some of the evidence at the first trial. It was held that there was 19

20 21

22

23 24

[2004] NSWCCA 199. For a similar case, see R v Xin Gong [2002] NSWCCA 43, although here it is not clear how the judge below came to make a ruling at all in the supposed absence of “proceedings”. R v Milakovic [2004] NSWCCA 199 at [10]. See R v ELD [2004] NSWCCA 219 at [28]: “undesirable”; R v Ngatikaura (2006) 161 A Crim R 329 at 339. For a case that is equivocal on this point, see R v Negline (unreported, NSW Court of Criminal Appeal, 25 February 1997): in the paragraph commencing “That conclusion is however”, the court speaks first of “jurisdiction” and then of its capacity to make an “effective order” setting aside the discharge of a jury and the decision not to direct a verdict of acquittal, and in the following paragraph of the lack of “practical benefit” in considering the question. (2007) 178 A Crim R 408 at 418-22; see also R v Dyers [1997] NSWSC 508, in which the leading judgment was given by Grove J and there was no sign of any reservations along the lines later expressed by his Honour. (1993) 67 A Crim R 364 at 368. (2006) 160 A Crim R 243. On further appeal this question was not decided: Cornwell v The Queen (2007) 231 CLR 260 at 295-8.

[3.30]

Introductory and general

either no jurisdiction to grant relief under s 5F in these circumstances or “overwhelming discretionary reasons”25 not to do so.

Interlocutory [3.30] Only interlocutory decisions can be appealed against under the system for interlocutory criminal appeals. Just as the commencement of “proceedings” in the higher court marks the beginning of the availability of interlocutory criminal appeals, the transition from the interlocutory to the final stage marks its end. From the next section of this chapter,26 we shall consider in detail how various individual types of decisions have been assessed under this criterion. Here the general principles that govern the area will simply be provided. The basic question in deciding whether an order is interlocutory, in criminal as in civil litigation,27 is whether it finally concludes the rights of the parties on the subject matter in issue.28 This is judged on the legal rather than practical effect of the order for, as Barwick CJ explained in Licul v Corney:29 To be final for this purpose, the order, in my opinion, must of its own force put an end to the action or proceeding between the parties. It is not enough, in my opinion, that by reason of circumstances unconnected with and uncontrolled by the order itself, it may be or become impossible or impracticable to proceed with this action.30

Therefore: [i]t usually follows that, if the aggrieved party can make a fresh application of the kind that has been dismissed or rejected by the order, the order in question will be treated as interlocutory notwithstanding that the possibility of the further application succeeding is so remote as to be fanciful.31

Thus, for example, a permanent stay of proceedings on the ground of abuse of process is interlocutory, because in theory the prosecutor could file an identical indictment based on the same facts again – although it would also inevitably be stayed. In such a situation, it matters not that, as a practical matter, any trial that was underway is ended, for it is only one attempt at laying the factual controversy between the parties to rest, and there may in theory be a further such attempt, nor that the order will (without a successful interlocutory appeal) practically result in the cessation of all prosecution based on the alleged facts in question. It will therefore be seen that the most obvious way of proceeding past the interlocutory stage is for a verdict to be rendered and a judgment on it given which will support an autrefois plea and thus quell, legally as well as practically, any further litigation on the subject-matter in question. If an autrefois plea is not yet available, the decision is very likely to be interlocutory 25

26 27 28 29 30 31

Cornwell v The Queen (2006) 160 A Crim R 243 at 262; see also R v O’Meara [2003] NSWCCA 206; O’Meara v The Queen [2006] NSWCCA 131 at [9]; Brown v Loveday [2012] VSCA 57 at [19]f for further attempts to appeal made after termination of the trial. And in accordance with the advice of Lord Denning MR, as recorded and elaborated upon in Tampion v Anderson (1973) 3 ALR 414 at 416. Brereton v Sinclair (2000) 2 VR 424 at 429. Hall v Nominal Defendant (1966) 117 CLR 423 at 439f; Kocer v The Queen [2006] NSWCCA 328 at [13]. (1975) 180 CLR 213 at 219f. See further on this case, Re Chief Commissioner of Police (Vic) (2005) 79 ALJR 881 at 886, 898. Licul v Corney (1975) 180 CLR 213 at 219f. Brereton v Sinclair (2000) 2 VR 424 at 430.

51

52

3: Decisions Amenable to Appeal

[3.30]

because, in theory at least, a further prosecution raising the issue in question could be brought. Nevertheless, this is merely a good rule of thumb, and it is unnecessary, in determining what is interlocutory, to determine, if there is any doubt, the precise point at which an autrefois plea would be available. There is one case32 in which an interlocutory appeal was brought between conviction and sentence on the ground that a matter revealed during the sentencing proceedings should be suppressed, and the court rightly did not waste any time in determining whether an autrefois plea would be available. The decision was interlocutory because the accused could have applied for another suppression order, although without some change in the factual basis for it such an application would inevitably have failed.

Judgment or order [3.40] This topic also will be dealt with in relation to individual decisions in detail below, and it is necessary to mention only the principles here. And, as previously noted, this discussion applies only to appeals in New South Wales, and then only to those under s 5F(2) or (3) of the Criminal Appeal Act 1912 (NSW). In Victoria the legislation was drafted in order to avoid the need to have the discussion about what constitutes a “judgment or order”,33 and ss 5C, 5F(3A) and 5G34 of the New South Wales legislation do not use the term. The standard definition of “judgment or order” is taken from the previously mentioned case of R v Steffan:35 A judgment is the decision of a Court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the Court. An order is a command by a Court that something be done (or not done).36

This generally excludes rulings on the admissibility of evidence, which cannot be entered as a formal judgment on the records of the court; nor do they constitute a command. In R v Adamson,37 Spigelman CJ referred to the need for the “element of finality in terms of resolving an issue in the proceedings in a binding manner” as the hallmark of judgments and orders. The word “judgment” “is not being used in its broadest colloquial sense to encompass all that might be included in the reasons given by a Court for taking a particular course”.38 What constitutes a “judgment or order” is perhaps best explained, however, not by reference to an abstract definition but by reference to the case law on different types of decisions that have determined whether they constitute a “judgment or order”. It is clear that even a statement in a statute that a 32 33 34 35 36

37 38

Nagi v Director of Public Prosecutions (NSW) [2009] NSWCCA 197 at [23] (special leave to appeal refused: Nagi v The Queen [2010] HCATrans 146). See above, Ch 2 fn 53. For the reason, see above, p 9. (1993) 30 NSWLR 633. R v Steffan (1993) 30 NSWLR 633 at 636: see above, Ch 2 fn 44. To similar effect, see R v Snow (1915) 20 CLR 315 at 324, 361; R v Lethlean (1995) 83 A Crim R 197 at 201, 204f; R v F (2002) 129 A Crim R 126 at 134; R v Adamson [2005] NSWCCA 7; R v Piper [2005] NSWCCA 134; R v Natoli [2005] NSWCCA 292 at [5]; Newman v The Queen (2007) 173 A Crim R 1 at 9. It is not necessary for the decision to be capable of being entered on the record: Anson v Director of Public Prosecutions (NSW) (2002) 129 A Crim R 328 at 334. [2005] NSWCCA 7 at [7]. Sasterawan v Morris (2010) 201 A Crim R 302 at 309; see also R v Daher [2004] NSWCCA 458 at [12].

[3.40]

Introductory and general

particular direction, ruling or decision may be made by “judgment” or “order” is not determinative of the issue for the purpose of s 5F: its meaning and effect are not controlled by the wording of other statutes given that it may not have been present to the mind of the drafter of those other statutes. Nevertheless, if a statute imbues a particular direction, ruling or decision with a sufficient degree of finality, that will be relevant in determining whether it counts as a “judgment or order” within the meaning of s 5F.39 Unlike the question whether a decision is interlocutory, however, the question whether a judgment or order has been rendered is adjudged by considering practical realities as well as its formal status. This does not mean that a formless expression of opinion by a judge will suffice: a mere statement that, in the opinion of the trial judge, an allegation may not disclose an offence known to the law and a statement that the judge is “mindful to empanel a jury and to order an acquittal” does not constitute a judgment or order – there must be some formal decision.40 Perhaps the case that falls closest to the borderline is R v OM,41 in which the trial judge referred to his decision that the facts alleged by the Crown could not constitute the offence charged as a “ruling” and made no formal order, as a result of which it was held that an appeal under s 5C or 5F could not be brought. But once a certain degree of formality is arrived at and a decision can be identified, the real substance of what has been done can be considered.42 Even this point has on one occasion been waived in circumstances where unfairness to the accused would occur because the Crown had an appeal on foot against orders that had gone against it and, at the same time, the accused wished to appeal orders that had gone against them.43 This fact also enables us to solve a puzzle that might otherwise not merely detain us, but also lead to a marked imbalance in the system: it explains why it is that a refusal to make an order also constitutes an appellable decision. To use an example: a decision adjourning the trial is clearly an interlocutory order and appellable (subject to leave, if required), but what about a decision refusing to adjourn the trial following an application to do so?44 Looked at in one way, this decision might not be regarded as an order at all – unless a formal order is made refusing the application along the lines of the order “no order as to costs” – but rather as a refusal to make any order, as a nothing – and there could be no appeal against nothing. Parmenides advises a strict separation between what is 39

40

41 42 43 44

Anson v Director of Public Prosecutions (NSW) (2002) 129 A Crim R 328 at 335; WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275, esp at [50]; R v Ford (2009) 201 A Crim R 451 at 492; see also Miller v Director of Public Prosecutions (NSW) [2012] NSWCCA 278, where the point was not specifically dealt with in response to a list of complaints from an unrepresented accused. R v Kanaan [2003] NSWCCA 396 at [3], [6] – [10]; similar: National Crime Authority v Black (unreported, NSW Court of Criminal Appeal, 3 December 1991), referred to in Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 670; R v Eade (2000) 118 A Crim R 449 at 451-3; Sasterawan v Morris (2010) 201 A Crim R 302 at 308; R v McConalogue [2010] NSWCCA 56 at [6]f; cf Commonwealth v Mullane (1961) 106 CLR 166 at 169. The suggestion in R v Glossop [2001] NSWCCA 165 at [18](4) that an element of finality is required would seem to contradict the need for the decision to be interlocutory. (2011) 212 A Crim R 293. See also above, Ch 3 fn 7; below, Ch 3 fn 131. R v F (2002) 129 A Crim R 126 at 136. Another example may be found in Nagi v Director of Public Prosecutions (NSW) [2009] NSWCCA 197 at [27] (special leave to appeal refused: [2010] HCATrans 146).

53

54

3: Decisions Amenable to Appeal

[3.40]

and what is not:45

However, the courts have not followed this advice; looking at practical realities, they have conflated “is” and “is not”. Thus, if an application to adjourn is made and it is refused, this decision must be seen, for practical purposes, as in substance the making of an order about the application for adjournment, even if no formal order is made, just as it would be if the adjournment had been granted. Therefore, an appeal can be brought against such a decision and myriad other refusals of applications which would have constituted orders if the decision had gone the other way. The idea that substance is not to be wholly defeated by form in this field had its origins in the fact that s 5F, before the addition of subs (3A), allowed for Crown appeals on evidentiary questions that eliminated the Crown’s case or so substantially weakened it as effectively to eliminate it. It was regularly held before the enactment of subs (3A) that a mere evidentiary ruling could be examined as if it were a judgment or order dismissing the prosecution, as long as the ruling had the effect of destroying the Crown’s case and thus the effect of a formal order dismissing the prosecution.46 However, the invention has survived the necessity for it, which disappeared upon the enactment of subs (3A). A striking illustration is Director of Public Prosecutions (NSW) v PM,47 which involved an order by a District Court judge dismissing the jury on the ground that the trial should take place in the juvenile court. An appeal was brought against this order under s 5F, but it was held in the Court of Criminal Appeal for New South Wales that the appeal should be treated as an appeal under s 5C, because: 45

Poem, VII 1-4; a free translation (with acknowledgments to the very literal one in the entry for Parmenides in the online Stanford Encyclopaedia of Philosophy) adapted to the present context might run: Never conflate what is with what is not, but forbid such paths of reasoning to your understanding. Do not let experience and habit force you down the path of employing an unseeing eye and an echoing hearing and tongue.

46

47

For example, R v Bozatsis (1997) 97 A Crim R 296 at 304; R v Lisoff [1999] NSWCCA 364 at [38], [41]f; R v Haddad (2000) 116 A Crim R 312 at 314f (special leave to appeal refused: Haddad v The Queen [2001] HCATrans 272); R v O’Neill (2001) 122 A Crim R 510 at 513; R v F (2002) 129 A Crim R 126 at 133-6. (2006) 67 NSWLR 46. An appeal to the High Court of Australia on other grounds was dismissed: PM v The Queen (2007) 232 CLR 370 at 376; see also above, Ch 2 fn 27.

[3.60]

No-case ruling, quashing indictment, autrefois

the substantive or operative decision made by the trial Judge in the present case was that the indictment was invalid. Had an objection been taken … before the jury was sworn, the likely order would have been an order quashing the indictment.48

It is not, of course, the case that anything which is not an interlocutory ruling or order is necessarily a ruling on evidence: s 5F(2), (3) and (3A) do not embrace the universe of all possible interlocutory decisions that may be made in relation to a criminal trial. Nor can an evidentiary ruling be treated as equivalent to a judgment simply because the ruling could possibly have consequences for the continuation of the trial if some application to that effect should ever be made.49 However, such points are best dealt with in relation to individual instances of attempted appeals – to which we now turn.

No-case ruling, quashing indictment, autrefois [3.50] This section deals with three ways of disposing of an indictment without requiring a jury to deliberate: a no-case ruling, quashing the indictment and autrefois. Their treatment under the system for interlocutory criminal appeals, however, is different. This is largely because of the formal nature of what counts as “interlocutory”, as was discussed in the previous section. However, a principle rather than a technical definition – namely, our unwillingness to allow appeals against acquittals – also shares some of the responsibility for this state of affairs.

No-case ruling [3.60] A ruling that there is no case to answer cannot itself be the subject of an interlocutory appeal. This is either because (in New South Wales) it is not a “judgment or order”,50 or because it is merely preparatory to the directed acquittal which is final and not interlocutory and against which public policy does not permit an appeal.51 In Victoria, a judgment of the Court of Appeal has foreclosed the argument that the mere announcement of an intention to record a verdict of not guilty on the ground that there is no case to answer might, if the Crown can act before the verdict is actually recorded, be a “decision” subject to interlocutory appeal: the court held that this would amount to a right of appeal against acquittal and thus infringe a fundamental principle of the system of criminal law.52 Other orders, such as permanent stays, may in the end have the same effect as the upholding of a no-case submission – the prosecution ceases; but a no-case ruling, unlike those other orders, must necessarily be a decision on the facts in issue on the question of guilt and thus not amenable to appeal. 48 49

50 51

52

Director of Public Prosecutions (NSW) v PM (2006) 67 NSWLR 46 at 61; see also at 62, 72. R v Lavender (2002) 37 MVR 491 at 493: the issue was whether a question to a witness was admissible; if it had not been then that could have led to submissions about whether the case should be left to the jury. R v Kanaan [2003] NSWCCA 396 at [6] – [10]. R v Cheng (1999) 48 NSWLR 616 at 622; see further R v King (2003) 59 NSWLR 472 at 476; R v JS (2007) 230 FLR 276 at 287; see also above, Ch 1 fnn 103, 104. Note, however, that the Crown can now appeal against a directed acquittal on a pure point of law under the Crimes (Appeal and Review) Act 2001 (NSW) s 107(1)(a). Director of Public Prosecutions (Vic) v Singh (2012) 34 VR 364 at 366. This appears to conflict with the intentions of the authors of the scheme: Department of Justice (Victoria), Criminal Procedure Act 2009 – Legislative Guide, p 278f.

55

56

3: Decisions Amenable to Appeal

[3.60]

Can the accused appeal against the dismissal of a no-case application? In New South Wales the answer is no, for it is not a “judgment or order”.53 In Victoria there may be a theoretical possibility of such an appeal,54 but the circumstances will have to be unusual indeed for leave to be granted. In almost all conceivable circumstances it will be considerably more efficient to proceed to verdict and then allow an appeal to be conducted against conviction, if there is one; and s 297(2) of the Criminal Procedure Act 2009 (Vic) sets a high hurdle for appeals during trials. Only, perhaps, if there is likely to be a great deal of time taken up by the defence is it likely even to be arguable that an interlocutory appeal against the dismissal of a no-case submission should be considered for the grant of leave. It is worth noting that, while there are certainly good reasons for the choice not to make an appeal available on this point, there is no inherent contradiction in doing so. In Western Australia, for example, the Crown may appeal against a verdict of acquittal “entered after a decision by the Judge that the accused has no case to answer on the charge”.55 In England and Wales such an appeal is expressly provided for by s 58(7)(a) of the Criminal Justice Act 2003 (UK). When this system was being designed, it was originally proposed that there should be no Crown appeal on the upholding of a no-case submission as this might lead to a retrial at which the prosecution could be unfairly advantaged, or the defence might simply not fare as well. That in turn, it was thought, might discourage the making of no-case submissions on the part of the defence. Having considered public comments, however, the Law Commission reversed its view on this point. One factor which seems, surprisingly, to have been prominent is the need to ensure that trial judges did not have a perverse incentive to hold that there was no case to answer because such a holding would get rid of the case and not be subject to appeal.56 The decision to give or withhold a Prasad57 direction could be argued to be a “decision” within the meaning of the Victorian legislation, although as far as the author can find out no-one has ever made that argument. In New South Wales a decision to give or not to give a Prasad direction certainly cannot be the subject of an interlocutory appeal as such a direction is not a “judgment or order”.58 The better view is that it is probably not even a “decision” and thus not amenable to appeal under the Victorian legislation either.59 Rather, it should be categorised as merely an indication to the jury of the power they have at any time after the closure of the Crown case, whether they are informed of it or not, to stop the case and bring in a not-guilty verdict. 53

54 55 56 57 58 59

R v Lethlean (1995) 83 A Crim R 197 at 204, 206f; see also R v Marchione (2002) 128 A Crim R 574 at 576f; Anson v Director of Public Prosecutions (NSW) (2002) 129 A Crim R 328 at 334f. Department of Justice (Victoria), Criminal Procedure Act 2009 – Legislative Guide, p 278. Criminal Appeals Act 2004 (WA) s 24(2)(e)(i). An example of a successful appeal is Western Australia v Burke (2011) 42 WAR 124. Law Commission (England and Wales), Double Jeopardy and Prosecution Appeals (Cm 5048, March 2001) pp 104-8. R v Prasad (1979) 23 SASR 161. This is not, however, expressly stated in R v Natoli [2005] NSWCCA 292 at [6], although it seems that the appeal was not brought on that point. See further above, Ch 2 fn 54: while it could not be said that only something referred to in the Act as a “decision” can be the subject of an appeal, it is surely significant that Prasad does not fall under that umbrella.

[3.70]

No-case ruling, quashing indictment, autrefois

In New South Wales, there is a special statutory provision in the Mental Health (Forensic Procedures) Act 1990 authorising the court to dismiss a charge if “it is inappropriate, having regard to the trivial nature of the charge or offence, the nature of the person’s disability or any other matter which the Court thinks proper to consider, to inflict any punishment”: s 10(4). A decision to dismiss a charge under this section, or not to do so, is amenable to interlocutory appeal under s 5F of the Criminal Appeal Act 1912 (NSW).60 In New South Wales,61 but not Victoria,62 appeals against directed acquittals are available on points of law. They are available only by special statutory permission as an acquittal, whether directed or not, is final rather than interlocutory.

Quashing indictment [3.70] As we have already seen, in New South Wales s 5C of the Criminal Appeal Act 1912 provides specifically for an appeal by the Crown against the quashing of an indictment, as do two of the “defined issues” States. In Victoria the topic is, on the other hand, not mentioned by name. Nevertheless, it is clearly included in the system for interlocutory criminal appeals;63 its special mention in New South Wales is explicable largely64 because of the fact that s 5C predates the general system for interlocutory criminal appeals by some decades.65 There is at least one case on record66 in which the quashing order was preceded by an order for a stay and the court rightly did not allow itself to be detained by the question of what section, 5C or 5F, was the applicable one. In accordance with the principle that the substance and not the form of an order to be appealed against is decisive in determining the nature of the appeal, the High Court of Australia has held that, for these purposes, quashing an indictment includes “dismissing an information on the ground that the information placed before the relevant Court was insufficient properly to invoke the jurisdiction of the Court in a case where proceedings are required to be commenced by information”.67 Appeals by the accused against the refusal to quash an indictment cannot be brought under s 5C, because the section says so, but must be brought under s 5F. There are several instances in which this has occurred.68 In R v 60 61 62 63

64 65 66 67 68

Newman v The Queen (2007) 173 A Crim R 1. See above, Ch 1 fn 104. See above, Ch 1 fn 103. McDonald v Director of Public Prosecutions (Vic) (2010) 26 VR 242. For a case in which the Crown successfully appealed against a refusal to quash, see R v Guariglia (2012) 35 VR 445; and for an unusual case in which charges were dismissed because they had been brought on the basis of fault on the part of a legally non-existent entity as an employer, see Linfox Resources v The Queen (2010) 30 VR 507. But not wholly; however, the topics included in s 5C that would not be embraced by s 5F are largely outside the scope of this book. See above, Ch 1 fn 34. R v Jasper (2003) 139 A Crim R 329 at 332, 338f. John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 516; see also above, p 27, and above, Ch 3 fn 47. For further references, see R v Einfeld (2008) 71 NSWLR 31 at 37; see also Jamieson & Brugmans v The Queen (1993) 177 CLR 574; Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (2000) 99 IR 16; R v Steffan (1993) 30 NSWLR 633 at 637; R v B (2008) 76 NSWLR 533; X v The Queen [2011] NSWCCA 202; Joffe v

57

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[3.70]

Isaac,69 three accused were charged with conspiring in New South Wales to commit a robbery in the Australian Capital Territory, and it was held on appeal that that was not an offence known to the law of New South Wales. They had demurred to the indictment on that basis in the trial court, and the demurrer had been dismissed there. As a result of its being upheld on appeal, the indictment was quashed. The court had no hesitation in holding that the appeal had been properly brought under s 5F. A similar appeal under s 5F, resulting in the quashing of the indictment, was brought by the accused in R v Hull,70 in which the problem was that the indictment had been presented out of time. Unconstitutionality, meaning that the offence did not legally exist, was alleged – unsuccessfully – by the accused in Monis v The Queen.71 Mention should also be made of the requirement in s 17(1) of the Criminal Procedure Act 1986 (NSW) requiring formal objections to be taken before the jury is sworn.72 There has also been one case in which the Court of Criminal Appeal for New South Wales has assumed that a requirement for the prosecutor to elect in order to avoid duplicity is capable of being appealed against as a judgment or order.73 Although orders following the determination of appeals will be the subject of a later chapter, it is convenient to deal here with the question of orders “if the appeal is sustained” in the words of, and under s 5C. In R v Beydoun,74 it was held on a Crown appeal under s 5C that an indictment had been wrongly quashed below. Hunt J, for the court, said, in response to a submission by the accused that the court had a discretion to refuse to order the continuation of the trial: I would in any event reject the submission that s 5C gives to this Court a general discretion to prevent the prosecution proceeding to trial. In my opinion, if this Court sustains (that is, allows) the appeal, the order which it must make is one setting aside the Judge’s order quashing the indictment. The consequence of that order is that the indictment already presented by the Crown is valid, and the trial must continue in accordance with the usual procedures. No order is necessary for it to do so. Any order preventing the Crown from proceeding upon the indictment already so presented … should only be made after a formal application is made for such relief, based upon evidence to support that application. If an order is made setting aside the order quashing the indictment, s 5C permits this Court — rather than (or in addition to) the trial Court — to make “such order for the prosecution of the trial as may be necessary”. That power (the exercise of which is clearly enough discretionary) refers primarily to such matters as listing the trial once more for mention. It may include other matters as well, but it is unnecessary in this case to decide what they may be. It is sufficient to say that s 5C does not itself confer a power to prevent the prosecution proceeding to trial.

69 70 71 72 73 74

The Queen (2012) 82 NSWLR 510; Chapman v The Queen (2013) 232 A Crim R 500; Beckett v The Queen (2014) 315 ALR 295 (further appeal allowed: R v Beckett [2015] HCA 38); Holloway v The Queen [2015] NSWCCA 207 at [1]. (1996) 87 A Crim R 513. (1989) 16 NSWLR 385; see also Edwards Madigan Torzillo Briggs Pty Ltd v Mansell (2004) 139 IR 362 at 369. (2013) 249 CLR 92. This was applied in the context of an interlocutory criminal appeal in Selim v The Queen [2006] NSWCCA 378. Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125. (1990) 22 NSWLR 256; but see Jamieson & Brugmans v The Queen (1993) 177 CLR 574.

[3.80]

No-case ruling, quashing indictment, autrefois

In the present case, the criminal listing procedures in the District Court are adequate to ensure that the prosecution of this indictment does proceed to trial now that the indictment has been held to be valid, and in my view no order is necessary to enable it to do so.75

Autrefois76 [3.80] In relation to the autrefois pleas, the availability of an appeal will, unusually, depend upon whether the decision below was in favour of or against the accused, for on this will depend the decision whether the order is final or interlocutory (a topic on which form and technicality prevail). If the decision went against the accused, an appeal is, with leave, available under s 5F(3) of the Criminal Appeal Act 1912 (NSW) or s 295(2) of the Criminal Procedure Act 2009 (Vic). This is illustrated by R v Dodd,77 in which the accused had previously been found guilty of possessing a certain amount of heroin, and were then put on trial for supplying that same heroin – an aggravated form of the same offence as that of which they had been found guilty. The accused made application to the trial court to have the indictment quashed, or for a stay of proceedings. But in accordance with the principle that the “judgment or order” to be appealed against is assessed in accordance with its real substance, this was treated, on appeal, as the refusal of an application for autrefois convict. As the application had been refused, the controversy between the parties had not been quelled, and therefore it was an interlocutory decision. The interlocutory appeal was allowed and the matter was remitted to the court below to be dealt with in accordance with law – with the expectation that the Crown would simply fail to proceed further with the matter. Upholding an autrefois plea produces the opposite result and cannot be the subject of interlocutory appeal. This does not depend on the difference between the two autrefois pleas: [a]utrefois acquit is a species of estoppel by which the prosecution is precluded from re-asserting the guilt of an accused when the question has previously been determined against it, whereas autrefois convict is the application to criminal proceedings of the maxim transit in rem judicatam and is akin to merger.78

It is not whether one or the other plea is raised, but the decision of the court to either reject or accept it which determines whether an appeal is available. One reason for the non-availability of appeals against decisions upholding pleas in bar is that the rights of the parties on the facts in question are thereby disposed of. It is true that the upholding of a plea in bar would not preclude the Crown from re-presenting a fresh indictment founded upon the same facts for the same offence – however hopeless such an enterprise might be. Nevertheless, the upholding of the plea does “of its own force put an end to the action or proceeding between the parties”79 and is thus not interlocutory. 75 76 77 78 79

R v Beydoun (1990) 22 NSWLR 256 at 264. See further, Attorney-General (NSW) v Built NSW Pty Ltd (2013) 239 IR 102 at 125. These pleas have changed their name, but not much else, in Victoria: Criminal Procedure Act 2009 (Vic) s 220. (1991) 56 A Crim R 451; see also Island Maritime Ltd v Filipowski [2004] NSWCCA 453; Joud v The Queen (2011) 32 VR 400 at 417-25. R v Carroll (2002) 213 CLR 635 at 646. See above, Ch 3 fn 30.

59

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[3.80]

An alternative way of justifying this result was suggested by Hunt A-JA in R v Stone,80 where his Honour said, in dismissing a Crown appeal against an autrefois convict ruling in favour of the accused, despite the fact that the plea should not have succeeded, that “the effect of the ruling by the Judge that the plea in the nature of autrefois convict had been made out must be the same as that of a jury’s verdict on such a plea” under the old procedure whereby a jury passed upon the pleas in bar, and that accordingly “the verdict has the effect of discharging the accused, just as does a verdict of acquittal”.81 That the upholding of a plea of autrefois acquit produces the same result is shown by R v Vincent,82 in which the Crown was reduced to the argument that the trial judge’s discharging of the accused after the upholding of the plea constituted an interlocutory step; unsurprisingly, this did not succeed. The same result will be produced, for the same reasons, on a plea of pardon: if it is upheld, there is no interlocutory judgment to be appealed against, as the decision is final, but if it is not accepted there is an interlocutory judgment on the plea against which an appeal can be taken. In R v Dunn,83 however, the accused claimed not a formal pardon, but a statutory indemnity84 and sought a stay of prosecution on interlocutory appeal. In accordance with the principles involving stays, an appeal would have been available to the Crown even if the stay had been granted. An argument that does not involve pleas in bar but broader double-jeopardy principles, such as the principle of incontrovertibility and/or inconsistency between the present charge(s) and earlier findings, will also usually involve an application for a stay of prosecution on the ground of abuse of process, a topic to which we now turn.85

Stays [3.90] As we saw in Chapter 1, stays of prosecutions granted as a result of delay had the principal role in the creation of the system of appeals in interlocutory criminal trials. Appeals against both the granting and the refusal of stays are naturally included in the schemes in New South Wales and Victoria and, in the latter, s 3 of the Criminal Procedure Act 2009 even goes so far as to contain a definition of “interlocutory decision”, which expressly includes this type of decision among the appellable decisions. This was unnecessary to accomplish the purpose for which it was designed,86 namely the reversal of Smith v The Queen87 – for reversal of that case on that point is implicit in the creation of a right of interlocutory appeal. All this, however, reminds us of the view that a stay of proceedings in a civil case could in some circumstances be final rather than interlocutory (Port of Melbourne Authority v Anshun 80 81 82 83 84 85 86 87

(2005) 64 NSWLR 413. R v Stone (2005) 64 NSWLR 413 at 431; see also at 440 per Smart A-J. [2002] NSWCCA 110. [2000] NSWCCA 171 (special leave to appeal refused: Dunn v The Queen [2001] HCATrans 31). Under what is now s 32 of the Criminal Procedure Act 1986 (NSW). See below, Ch 3 fn 106. Department of Justice (Victoria), Criminal Procedure Act 2009 – Legislative Guide, p 275; Harmonisation of Criminal Procedure Working Group, Harmonisation, p 163. (1994) 181 CLR 338; see above, Ch 1 fn 42.

[3.90]

Stays

(No 1)),88 coupled with some doubts expressed on the point by the majority in the Full Court of the Federal Court of Australia, acting as the court of criminal appeal for the Australian Capital Territory, in R v Leece.89 For a variety of practical and other reasons which it is hardly necessary to go into here, it is not easy to see how an Anshun estoppel could sensibly be pleaded in a criminal case. It is suggested that the better view in Leece is that of Burchett J, who held that a stay on the basis that a charge was an abuse of process, being doomed to fail on the evidence, was an interlocutory order, given that it was conceivable that fresh evidence might come to light justifying a lifting of the stay, which therefore did not finally dispose of the issues in question.90 It has also been held in New South Wales that more than one stay application may be made, meaning that the dismissal, at least, of a stay application is not final.91 This is the case regardless of the ground(s) on which the stay is sought. At all events, in Victoria the statutory definition puts the question beyond doubt, while in New South Wales the history of the introduction of interlocutory criminal appeals strongly urges the same answer – as the Court of Criminal Appeal there has held.92 Indeed, there is even a case93 in which the High Court of Australia abandoned its usual reluctance to deal with interlocutory criminal appeals and heard and allowed an appeal from the refusal of a stay order based on an attempt by the Crown to re-tender confessions rejected as involuntary at an earlier trial. As we have seen (at p 25), stays can be sought on numerous grounds, some of which succeed only very rarely. There is also a very large number of cases on applications for stays, including numerous appeals mostly against refusals, and it would not be profitable or within the purpose of this book to attempt a review of individual cases, or even classes of cases, here. By way of example, it can be said that, while stays are available on the ground that a prosecution is doomed to fail, at the interlocutory stage the threshold for so holding is very high (as it is generally)94 and it would be an unusual case indeed in which an 88

89 90 91

92

93 94

(1980) 147 CLR 35; but see Director of Public Prosecutions (Vic) v Judge Lewis of County Court of Victoria [1997] 1 VR 391 at 403; WorkCover Authority of New South Wales v TMG International Pty Ltd (2002) 116 IR 128 at 141-6; Morrison v Joy Manufacturing Co Pty Ltd (2004) 137 IR 8 at 22f. (1996) 65 FCR 544 at 553f. R v Leece (1996) 65 FCR 544 at 571. See above, p 52; see also the discussion of R v Bruce (unreported, District Court of New South Wales, 25 January 2006) and R v VPH (unreported, NSW Court of Criminal Appeal, 4 March 1994) in the very useful article by R Sweet, “Applying for a Permanent Stay in Criminal Proceedings” (2006) 44(9) Law Soc J 60 at 64. R v Sloane (1990) 49 A Crim R 270; R v Bozatsis (1997) 97 A Crim R 296 at 302f; R v Marchione (2002) 128 A Crim R 574 at 577; R v King (2003) 59 NSWLR 472 at 476f; see also Attorney-General (NSW) v Milat (1995) 37 NSWLR 370 (special leave to appeal refused: Milat v Attorney-General (NSW) [1995] HCATrans 397); R v Agius (2011) 80 NSWLR 486 (special leave to appeal refused: Abibadra v The Queen [2011] HCATrans 171); Pellegrino v Director of Public Prosecutions (Cth) (2008) 71 NSWLR 96 at 100. Rogers v The Queen (1994) 181 CLR 251. “Extreme and exceptional cases”: Queanbeyan City Council v Environment Protection Authority (NSW) [2011] NSWCCA 108 at [29]; see also R v Dyers [1997] NSWSC 508; R v Geoghegan [1999] NSWCCA 20 at [4]; R v Houlton [1999] NSWCCA 100 at [4]; R v Carver [1999] NSWCCA 135 at [34]; R v Hatfield [1999] NSWCCA 340 at [16]; R v Halmi [1999] NSWCCA 354 at [16] – [20]; R v Henman [2000] NSWCCA 58 at [12]; R v Littler (2001) 120 A Crim R 512 (accused’s appeal successful); R v RWO [2002] NSWCCA 133 at [63]; R v WRC (2003) 59 NSWLR 273 at 282; R v Jasper (2003) 139 A Crim R 329 at 335f; Agoston v The Queen [2008] NSWCCA 116 at [74]; Aydin v The Queen (2010) 28 VR 588 at 590; Wells v The Queen [2010] VSCA 100 at [21]; Joud v The Queen (2011) 32 VR 400 at

61

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[3.90]

evidentiary point would justify such a conclusion.95 In New South Wales, where the accused has no appeal against evidentiary rulings, leave to appeal will be refused to an accused person who wishes to have an evidentiary ruling reviewed and makes an unarguable, or barely arguable, application for a stay solely in order to bring himself within the strict terms of s 5F(3) of the Criminal Appeal Act 1912 (NSW).96 Temporary as well as permanent stays are interlocutory orders for the purposes of criminal appeal. They are a fortiori cases compared to permanent stays, as clearly a temporary stay cannot dispose of the rights of the parties. In JD v The Queen,97 the accused had sought a temporary stay of proceedings until the alleged victim gave birth. Her pregnancy was unconnected with the issues in the case, but he argued that undue sympathy might be felt by the jury for her given her advanced pregnancy and difficulties could be caused in cross-examining her for the same reason. The appeal to the Court of Criminal Appeal for New South Wales was dismissed, but it was not, and could not sensibly have been argued, that the order for a temporary stay sought was not interlocutory. In R v MG,98 a temporary stay was granted on an interlocutory criminal appeal until the Crown Prosecutor was replaced. An appeal is also available if a temporary stay is granted in the trial court and the Crown wishes to appeal.99 Stays (or adjournments, especially in Victoria)100 under the principle in Dietrich v The Queen101 – that the accused’s trial threatens to be unfair because of lack of legal representation – or, conversely, the refusal to grant such a stay

95

96

97

98 99 100 101

425-44; Standen v Director of Public Prosecutions (Cth) (2011) 254 FLR 467 at 479; R v CB [2011] NSWCCA 264 at [119] – [122]; Calleija v The Queen (2012) 223 A Crim R 391 at 400, 404f; R v Webb (2012) 225 A Crim R 550 at 564; Beckett v The Queen (2014) 315 ALR 295 at 307, 313-20 (further appeal successful: R v Beckett [2015] HCA 38); R v FJL [2014] VSCA 57 at [17], [87]; X7 v The Queen (2014) 292 FLR 57 at 74, 79; Hermanus v The Queen [2015] VSCA 2 at [30], [39]f; Little v The Queen [2015] VSCA 62 at [60], [73]; Director of Public Prosecutions (Vic) v Brownlie [2015] VSCA 147 at [11]; Director of Public Prosecutions (Vic) v Brownlie (No 2) [2015] VSCA 267 at [67] (Crown appeals against stay successful); R v Moore [2015] NSWCCA 316 at [15], [20] (with references to two further Victorian cases). The point is also implicit in the judgments in R v Petroulias (2005) 62 NSWLR 663 (special leave to appeal refused: [2005] HCATrans 363) and R v Benischke [2005] NSWCCA 169. Other cases are mentioned below, Ch 3 fnn 166, 269, 312. R v Groves (unreported, NSW Court of Criminal Appeal, 2 April 1990); R v Glossop [2001] NSWCCA 165 at [23]f. For further examples, see below, Ch 3 fnn 112, 245. However, a point of law was in issue in R v Aubrey (2012) 82 NSWLR 748 (special leave to appeal refused: Aubrey v The Queen [2013] HCATrans 110), but there the Crown’s appeal was allowed as the stay should not have been granted. In R v Westley [2004] NSWCCA 192 the accused, unusually, succeeded on a statutory limitation period coupled with the insufficiency of the evidence to overcome that bar. R v Steffan (1993) 30 NSWLR 633 at 640f; R v Potier [2001] NSWCCA 404; Gedeon v The Queen [2009] NSWCCA 278 at [24]; JG v The Queen [2011] NSWCCA 198 at [30]; see also below, Ch 3 fnn 355, 370. [2013] NSWCCA 198. For another case involving an application for a stay while a constitutional issue was determined, see R v Ronen [2004] NSWCCA 189; see also below, Ch 3 fn 269. (2007) 69 NSWLR 20. For a vaguely comparable case on unusual facts, see R v Seller [2015] NSWCCA 76 at [146] – [154]. Lipton v The Queen [2010] NSWCCA 175; R v Lipton (2011) 82 NSWLR 123; (2012) 224 A Crim R 177; R v OC [2015] NSWCCA 212. Criminal Procedure Act 2009 (Vic) s 197(2), (3); but see R v Chaouk (2013) 40 VR 356 at 362; MK v Victoria Legal Aid (2013) 40 VR 378 at 386f. (1992) 177 CLR 292.

[3.90]

Stays

or adjournment, may also be appealed against under this heading.102 In R v O’Connor103 the Crown appealed against a permanent stay on the ground that the prosecution was bound to fail, on which point it succeeded. However, it lost its appeal against the Dietrich stay, as a result of which a permanent stay was converted into a temporary one. In addition, there are some cases on the books involving temporary stays or adjournments, granted to the accused either on condition that the Crown pays costs following some sort of misbehaviour or incompetence by it, or after non-compliance with costs orders made against the Crown. In one such case the Court of Criminal Appeal for New South Wales held a costs order against the Crown and thus the stay, as a procedure for enforcing it, invalid, and appeared to conclude that there was no need to vacate the order under s 5F(5). However, it modified the order below to give effect to its view that the accused should be compensated for costs thrown away owing to the Crown’s conduct before the trial was allowed to proceed. A stay was granted until the Crown paid the costs.104 In another case, the accused successfully appealed against a refusal by the trial judge to grant costs of a trial aborted owing to a basic error by the Crown.105 At all events, if such orders can be made, they are clearly interlocutory, and thus interlocutory appeals can be brought against them by both sides. It is somewhat hazardous to write about the standard of review to be applied in cases of appeals on stay applications, given that the grounds urged for a stay can be so various. In R v Carroll,106 however, Gaudron and Gummow JJ said: The power to stay is said to be discretionary. In this context, the word “discretionary” indicates that, although there are some clear categories, the circumstances in which proceedings will constitute an abuse of process cannot be exhaustively defined and, in some cases, minds may differ as to whether they do constitute an abuse. It does not indicate that there is a discretion to refuse a stay if 102

103 104

105 106

For examples, see above, Ch 3 fn 100; R v Batiste (1994) 35 NSWLR 437; Batiste v The Queen [1995] HCATrans 182; R v Batiste [1995] NSWSC 40; Attorney-General (NSW) v Milat (1995) 37 NSWLR 370 (special leave to appeal refused: Milat v Attorney-General (NSW) [1995] HCATrans 397); Director of Public Prosecutions (NSW) v Allan [1996] NSWSC 4; R v Kennedy (1997) 94 A Crim R 341; R v Meissner [1999] NSWCCA 91; R v Joyce [2003] NSWCCA 280 (previous proceedings: R v Joyce (2003) 38 MVR 432); Finn v The Queen [2011] VSCA 120; Vasiliou v The Queen [2014] VSCA 22; see also above, Ch 1 fn 42. [2000] NSWCCA 124. R v Mosely (1992) 28 NSWLR 735, as explained in R v Fisher (2003) 56 NSWLR 625 at 631. Other cases are referred to there, principally R v Seebag (unreported, NSW Court of Criminal Appeal, 16 February 1993); R v Beeby (1999) 104 A Crim R 142 at 147-9 and R v Bucksath (2000) 114 A Crim R 1; see also R v Pavia (1993) 67 A Crim R 364, where a costs order was vacated and remitted to the trial judge for the purpose of considering a valid means of compensating the accused, and R v Johnson (2001) 125 A Crim R 564 at 575. This topic is also mentioned in G Dal Pont, Law of Costs (3rd ed, LexisNexis Australia, Chatswood, 2013) pp 833-5. See also below, Ch 6 fn 17. R v Halmi [2005] NSWCCA 263. (2002) 213 CLR 635 at 657. For cases on a comparable point to that dealt with in Carroll, see R v Slattery (unreported, NSW Court of Criminal Appeal, 9 December 1988); R v Chekeri (2001) 122 A Crim R 422; see also Moy v Warringah Council (2004) 142 A Crim R 577; Subramaniam v The Queen (2004) 211 ALR 1 at 11 (appeal from R v Subramaniam [2000] NSWCCA 441 at [20]); Island Maritime Ltd v Filipowski [2004] NSWCCA 453; R v Gilham (2007) 73 NSWLR 308 (special leave to appeal refused: Gilham v The Queen [2008] HCATrans 85; but see same case, Gilham v The Queen (2012) 224 A Crim R 22); and, for an abuse of process case brought on different grounds, see Iqbal v The Queen [2012] NSWCCA 72.

63

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[3.90]

proceedings are an abuse of process or to grant one if they are not. However, as with discretionary decisions, properly so called, appellate review of its exercise looks to whether the primary judge acted upon a wrong principle, was guided or affected by extraneous or irrelevant matters, mistook the facts or failed to take into account some material consideration. If so, the appellate court may reach its own decision in substitution for that of the primary judge, where there are before it the materials for so doing.107

Thus, the usual principles of appellate restraint apply in considering interlocutory appeals under this heading. There is authority to this effect from the Court of Appeal for England and Wales108 as well as New South Wales109 and Victoria110 on interlocutory appeal from an abuse-of-process stay. As well as the usual reasons for not interfering lightly with discretionary decisions, there will be cases in which stays have been refused and the question at issue, such as whether there is sufficient evidence to support the charge or it is rather doomed to fail, cannot be properly judged until the end of the Crown case.111 However, it is sometimes possible that a point of law may be involved and that the stay will stand or fall on that; in such a case, the point of law may be susceptible of a yes/no answer. In R v Vos,112 for example, a stay was granted on the ground that an unqualified person had questioned the accused in the Police Integrity Commission; on appeal it was held that the hearing was not therefore a nullity, and with that the stay evaporated.

Severance and separate trials [3.100] An order for severance or separate trials, or for that matter the perhaps less frequent case of orders for joinder of charges113 or joint trials, is an interlocutory order. It is a surprise to find that this was doubted early on in 107 108 109

110 111 112

113

R v Carroll (2002) 213 CLR 635 at 657. R v B The Times (22 May 2008); see also R v Davis (1995) 57 FCR 512 at 518. R v Bell [1998] NSWSC 570; R v Kenny [1998] NSWSC 774 (a rare case in which the threshold was reached in a defence appeal owing to a denial of procedural fairness in considering the application; but see R v Kenny [2000] NSWCCA 364); R v Nicholson (1998) 102 A Crim R 459 (accused’s appeal again allowed); R v Meissner [1999] NSWCCA 91 at [17]; R v Henman [2000] NSWCCA 58 at [12]; R v O’Connor [2000] NSWCCA 124 at [14]; R v Ryan [2000] NSWCCA 184 at [21]; R v H (2002) 132 A Crim R 551 at 554, 556; R v Lipton (2011) 82 NSWLR 123 at 144; Calleija v The Queen (2012) 223 A Crim R 391 at 394; R v RM (2012) 221 A Crim R 465 at 487 (accused’s appeal allowed); R v Webb (2012) 225 A Crim R 550 at 569; TS v The Queen [2014] NSWCCA 174 at [55] – [59] (accused’s appeal again allowed). But in R v Bowman [2002] NSWCCA 449 at [23] it was possible to say that the decision below refusing the stay was “unimpeachably right”, as it was also in R v Many [1997] NSWSC 358; R v Geoghegan [1999] NSWCCA 20 at [4]; R v Farhat [1999] NSWCCA 174 at [8]; R v Hatfield [1999] NSWCCA 340 at [62] (although Hidden J may have disagreed: at [64]); Island Maritime Ltd v Filipowski [2004] NSWCCA 453 at [48]. R v Li [2002] NSWCCA 215 at [4]; PG v The Queen [2010] VSCA 289 at [25]; SLS v The Queen [2014] VSCA 31 at [71], [168]; Hermanus v The Queen [2015] VSCA 2 at [38]. R v El Azzi (2001) 125 A Crim R 113 at 124. (2011) 223 A Crim R 316; see also R v Lang [2008] NSWCCA 41 (clearly insupportable stay); R v Aubrey (2012) 82 NSWLR 748 at 750 (special leave to appeal refused: Aubrey v The Queen [2013] HCATrans 110), where another point of law was involved and there was no question of evidence or discretion. For example, R v F (2002) 129 A Crim R 126 at 134-6; also included are orders revoking orders for a separate trial, or else the Court of Criminal Appeal for New South Wales would not have granted leave, as it did in R v Dinh (2000) 120 A Crim R 42, despite an argument by the Crown that orders revoking orders were not included.

[3.100]

Severance and separate trials

New South Wales because of the historical fact that the interlocutory criminal appeals system had been set up in order to deal with applications for stays rather than with this topic. However, this was a clear confusion between the occasion for the creation of the system and its actual content as expressed in the legislation, and matters were set right in 1994 in R v Saunders.114 As we have already seen in relation to Western Australia,115 which has this as one of its defined issues,116 rulings on separate/joint trials and on joinder/ severance are, of course, very dependent upon the facts alleged and thus often also very dependent upon rulings about admissibility of evidence. The difficulty encountered in Western Australia – that there is no right of appeal at all on admissibility questions – will not usually occur in New South Wales or Victoria, even though in New South Wales the accused has no appeal on questions of admissibility of evidence alone. In theory, this could be interpreted to mean that a decision to hold a joint trial or to join the charges could not be appealed against if it was largely – in substance rather than form – based on admissibility questions decided adversely to the accused. However, the courts in both New South Wales117 and Victoria118 have solved this difficulty by decreeing – very sensibly, although it involves, in this instance, a triumph of form over substance – that the right to appeal is to be extended to the accused on the basis that an order has been made against them and, on the jurisdictional question, not by going behind that order by determining how much of that order is attributable to admissibility questions. In New South Wales this solves the jurisdictional question,119 while in Victoria this means that the test applicable before the trial judge in seeking certification for an appeal is not that provided for by s 295(3)(a) of the Criminal Procedure Act 2009 (Vic), but by paragraph (b) of that subsection, namely whether “the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal”. In both jurisdictions it will therefore not be necessary for the court to determine whether the Crown’s case has been substantially 114

115 116 117 118

119

(1994) 72 A Crim R 347 at 348, 353; see also DAO v The Queen (2011) 81 NSWLR 568 at 573. The reason for the doubt was the view expressed by Lee CJ at CL in R v Edelsten (1989) 18 NSWLR 213 at 218f; part of this statement is quoted above, Ch 1 fn 29. However, his Honour had himself considered an appeal on this topic without demur in R v T (unreported, NSW Court of Criminal Appeal, 19 October 1988). For cases from elsewhere, see additionally above, Ch 2 fn 38; McNamara v The Queen (1978) 20 ALR 98. See above, Ch 2 fn 17. DAO v The Queen (2011) 81 NSWLR 568 at 573f, 583f, 593. PNJ v Director of Public Prosecutions (Vic) (2010) 27 VR 146 at 153; Dertilis v The Queen [2010] VSCA 360 at [10]. Clearly, what was said by Nettle JA in RHB v The Queen [2011] VSCA 295 at [17] is not meant to cast doubt on this aspect of PNJ: cf Velkoski v The Queen [2014] VSCA 121 at [110]. It is conceivable that, in New South Wales, a ruling against the accused on an application for separate trials or severance might be based on a gross error about the admissibility of evidence on the part of the trial judge. In that case there would probably be no appeal by the accused or the Crown against the evidentiary ruling itself, although the separate trials/ severance order might be unimpeachable on that incorrect evidentiary foundation. Nevertheless, we have already seen that informal expressions of opinion for the guidance of the trial court have sometimes been given by courts even if jurisdiction is conspicuous by its absence. In such a case as has just been suggested, it would clearly be absurd for a court to sit on its hands and allow a trial to proceed which would inevitably be a nullity if it resulted in a conviction; rather, it should allow the appeal in order to require reconsideration of the question of separate trials/severance on the part of the trial judge while putting him right on the evidentiary point in obiter dicta. In a clear case, it might even order separate trials/severance, but that would not be essential.

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[3.100]

weakened by whatever evidentiary decisions lie behind the order or refusal to make an order that is actually under appeal. However, there is at least one case in New South Wales in which somewhat extended consideration was given to the question of leave in order to ensure that the underlying evidentiary point was sufficiently important to justify granting leave to appeal against the refusal to sever.120 At least if the basic requirement for joinder/joint trials is satisfied – in Victoria, for example, the offences in question must be “related”121 – ordering separate or joint trials, or joinder or severance of charges is also a discretionary matter, as the statutes which nowadays formally embody them recognise by using the word “may”.122 Therefore, appellate review is conducted under the well-known principles of restraint set out in House v The King.123 It is not necessarily the case that House applies with respect to any underlying evidentiary ruling, but it does apply to the decision on joint or separate trials/joinder/severance itself. It is also worth noting the dictum of Spigelman CJ that the apparent dichotomy between discretionary and rule-based decisions with “a single correct answer” involves “a spectrum rather than an on/off switch”.124 The position with regard to the underlying evidentiary basis for the decision in question “may change as the course of the trial unfolds”,125 and the evidence as actually tendered may require reconsideration of whether a fair trial – not a perfect trial, but a fair trial – can be assured. In some cases, the dismissal of an appeal against the refusal to order separate trials, or severance in advance of the trial, might be justified on the ground that the difficulties that may be encountered on this front were merely speculative126 – but they then eventuate. In that case, the fact that the initial order is interlocutory rather than final means that the trial judge can reconsider the question. The trial judge will no doubt pay careful attention to what was said in the court above, but is not, of course, bound to reach the same decision on the altered state of affairs. In R v Dinh,127 the Court of Criminal Appeal for New South Wales pointed out that “it would only complicate the trial for this Court to express opinions on the admissibility of particular parts of the evidence at this point which it might be suggested at the trial are binding on the trial judge”.128 While the underlying admissibility points must clearly be considered on an appeal under 120 121

122

123

124 125 126 127 128

BJS v The Queen [2011] NSWCCA 239 at [11] – [13]. Criminal Procedure Act 2009 (Vic) s 159(3)(c) and Sch 1 cl 5(1). The author has not found any interlocutory appeal raising this issue other than, in part, Osman v The Queen [2006] NSWCCA 196. Criminal Procedure Act 1986 (NSW) s 21(2); Criminal Procedure Act 2009 (Vic) s 293; see also R v Bell [1998] NSWSC 570; R v Chami (2002) 128 A Crim R 428 at 430; Pham v The Queen [2006] NSWCCA 3 at [13]. This point appears to have been overlooked by Basten JA, or obscured by the nature of the case in hand, in BJS v The Queen [2011] NSWCCA 239 at [29]. (1936) 55 CLR 499. See, eg, R v Kenny [1998] NSWSC 774; R v Bikic (2000) 112 A Crim R 300; HDC v The Queen [2012] VSCA 136 at [15], [21]; McKellar v The Queen [2014] NSWCCA 35 at [3]. However, in R v CE [2005] NSWCCA 326 at [16], there was only one possible right answer. DAO v The Queen (2011) 81 NSWLR 568 at 579. R v Georgiou [1999] NSWCCA 125 at [20]. R v Folli [2000] NSWCCA 460 at [10]. (2000) 120 A Crim R 42. R v Dinh (2000) 120 A Crim R 42 at 43 per Fitzgerald JA; similar thoughts are expressed by Simpson and Howie JJ at 52.

[3.110] Adjournment, vacation of trial date, change of venue, amend of indictment

this heading, there may well be a case for restraint on the part of the court in dealing with them, given that they do not necessarily have to be definitively decided – indeed, this may not be possible in any sensible way given that the evidence at trial may differ from what is proposed. In R v Billings,129 McLellan CJ at CL, with the concurrence of the rest of the court, made this suggestion while dismissing the accused’s appeal against a failure to sever: In relation to counts 5 and 6, as I have indicated, there is no evidence in those counts which is relevant to any of the other counts, unless, of course, [the trial judge] ultimately concludes that it may be used for tendency or co-incidence reasoning. If his Honour concludes that evidence in relation to counts 5 and 6 may not be used for that purpose, and accordingly is not admissible in relation to any other count, I have some doubt as to whether those counts should be joined in the indictment. The fact that the informer will give evidence in relation to those counts and the other counts may not justify counts 5 and 6 being tried with the other counts if there is any reasonable likelihood that there would be significant prejudice to the applicant. However, as his Honour has not finally considered the purpose for which that evidence will be used, it would be premature to conclude that his Honour erred in relation to those counts requiring the intervention of this Court. Nevertheless, I would urge that the prosecutor give further consideration to whether counts 5 and 6 should be retained on the indictment. If they were severed, the indictment would continue to contain 12 counts of varying degrees of seriousness. It may also be that after considering these reasons, it would be appropriate for that issue to be re-agitated before the trial judge before the jury is empanelled.130

In R v F131 no formal order was made by the court below on the accused’s application for severance or the Crown’s for joinder. Instead, the judge ruled merely on the underlying evidentiary points and, having ruled that the evidence on some charges was cross-admissible as tendency/coincidence evidence, agreed informally to a suggestion from counsel about what charges were to be the subject of joint or separate trials. It was held that, while “it would have been preferable for formal orders to have been made”,132 the lack of them did not foreclose an appeal by the accused (although the appeal failed on the merits) given that the Crown had also appealed on the issues it had lost on. This is somewhat startling but, in the end, it is in accordance with the previously identified maxim that it is the substance rather than the form of what is done that determines what counts as an order.

Adjournment, vacation of trial date, change of venue, amendment of indictment [3.110] Orders for adjourning the trial are of course interlocutory. As discretionary decisions in the usual case,133 they will be reviewed in accordance with the House principles, as a result of which “there is a strong presumption in favour of the correctness of the decision”.134 What the Court of Appeal for England and Wales 129 130 131 132 133

[2012] NSWCCA 33. R v Billings [2012] NSWCCA 33 at [25]. (2002) 129 A Crim R 126. R v F (2002) 129 A Crim R 126 at 134. Exceptions do exist, such as under the Legal Aid Commission Act 1979 (NSW) s 57.

134

R v Alexandroaia (1995) 81 A Crim R 286 at 290.

67

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[3.110]

pointed out in dismissing an appeal against the refusal of a Crown application for adjournment, made in an attempt to have still further time to find a crucial and deliberately elusive complainant, also applies in Australia: Time and time again in this Court emphasis has been laid on the simple proposition that case management decisions are made by trial Judges, not by this Court. Adjournments are sought and refused, or granted, on very many grounds; sometimes at the behest of the prosecution, sometimes the defence. Sometimes the decision is insignificant. At others, as here, it is critical to the outcome of the case. But the decision is a decision for what is usually described as the discretion of the Judge but it is in fact a decision which reflects his or her judgment on an overall balance of all the material, as it stands before him at the time when the decision has to be made.135

In dismissing both appeals against the refusal of a defence application for an adjournment also made in the hope of finding more evidence136 and a Crown appeal against the adjournment of the trial of one accused which meant that a joint trial with his co-accused was no longer possible,137 the Court of Criminal Appeal for New South Wales has made similar statements, as has the Court of Appeal for Victoria.138 In AJP v The Queen,139 the last-mentioned court said: A trial judge has a discretion whether to grant an adjournment of a trial. In exercising the discretion, it is incumbent on the judge to consider not only the interests of the accused but also the interests of the Crown and the witnesses. Depending on the circumstances of a case, the exercise of discretion may involve a careful weighing of the interests of the accused, Crown witnesses, jurors and, generally, the administration of justice. It is also necessary for the judge to keep in mind that justice delayed is justice denied and thus that, as a general rule, it is important that an accused be brought to trial expeditiously. It is inimical to the orderly disposition of the work of the courts that trials are adjourned unnecessarily. Ordinarily, therefore, the exercise of discretion is something with which an appellate Court is loath to interfere and, in a case like this, we ought not do so unless persuaded that the exercise of discretion has miscarried and that the judge’s refusal of the adjournment will prevent the applicant from presenting his case as fully as necessary within the limits of the law.

“It is for this reason”, as Kirby A-CJ once pointed out, “that applications for review of adjournment decisions by trial Judges rarely succeed. But sometimes

135

136 137 138 139

R v Clarke [2008] 1 Cr App R 403 at 408f. For other cases to the same general effect, see R v Pirrottina (1996) 88 A Crim R 220 at 223f; R v O’Meara [2001] NSWCCA 195 at [15]; R v Sheehan [2005] NSWCCA 250 at [13]; Sasterawan v Morris (2010) 201 A Crim R 302 at 319f (where the facts were somewhat out of the ordinary and the appeal was against the grant of adjournment of an appeal hearing to the Crown); Slotboom v The Queen [2013] NSWCCA 18 at [7], [37]. In Sasterawan (at 310), Basten JA denied the authority of Alexandroaia on this point, but it is now well established, including by later cases, and is in accordance with principle and the statutory scheme for interlocutory criminal appeals. R v Alexandroaia (1995) 81 A Crim R 286. R v Lam [2000] NSWCCA 252 at [18]. Finn v The Queen [2011] VSCA 120 at [17]. [2010] VSCA 224 at [15]f.

[3.110] Adjournment, vacation of trial date, change of venue, amend of indictment

they do.”140 For example, such an order might be “unreasonable and plainly unjust”,141 indicating that something must have gone wrong with the exercise of the discretion. An example of a case in which the failure to permit an adjournment of less than a day to allow crucial witnesses to attend caused an appeal (although not an interlocutory appeal) to the High Court of Australia to be allowed is Thornberry v The Queen.142 At intermediate appellate level, an interlocutory appeal against the refusal of an adjournment to obtain new representation was allowed in the middle of a trial in R v Gilfillan143 after the trial judge decided to continue with the trial having wrongly attributed the withdrawal of legal assistance during the trial to the accused’s personal decision, rather than to the conflict of interest which had largely actuated the lawyers to withdraw. Orders vacating trial dates are very similar to, and appellable in the same way as, adjournments.144 This is well established now, although Gleeson CJ doubted it in R v Rogerson.145 That case, however, was also infected by the erroneous reasoning that the occasion for the enactment of s 5F defined its scope, an error to which reference has already been made and which Gleeson CJ himself abjured a few years later.146 In R v Barbaro,147 the Crown appealed unsuccessfully against an order that the accused’s trial should not occur before that of one McKenzie. The Court of Criminal Appeal for New South Wales had “no doubt” that an interlocutory order was involved, implying that the accused could have appealed also had the decision below gone the other way. Orders for a change of venue may also be subject to interlocutory appeal in both New South Wales and Victoria. In Victoria such a decision necessarily satisfies the statutory requirement of a mere “decision”, but in New South Wales the decision must qualify as a “judgment or order”. That an order for change of venue satisfied this description was confirmed by an unreported decision of the Court of Criminal Appeal for New South Wales in 1993.148 This was in form an application for adjournment, but its real purpose was to procure a change in venue, and it was correctly to be assessed on that basis in accordance with the “substance over form” approach. Nevertheless, two years 140 141

142 143 144

145 146 147 148

R v Yuill (1993) 69 A Crim R 450 at 454; see also the emphasis on errors of principle in the three judgments (at 457-9). Lin v The Queen [2015] NSWCCA 264 at [28] (order vacating trial date set aside on accused’s appeal; as is about to be mentioned, these are subject to appeal in the same way as adjournments). (1995) 69 ALJR 777. (2003) 139 A Crim R 460. Indeed, in Sasterawan v Morris (2010) 201 A Crim R 302 some judges described what had happened as an adjournment (at 319) and others as an order vacating the hearing date (at 311). For other cases involving appeals against orders vacating trial dates, or refusing to do so, see R v Balic (1994) 75 A Crim R 509; Ho v Director of Public Prosecutions (unreported, NSW Court of Criminal Appeal, 18 July 1994); R v Do [1999] NSWCCA 328; R v Lowe [2003] NSWCCA 303 at [9]; Lin v The Queen [2015] NSWCCA 264 at [26]. For a dictum on an order fixing a trial date, see R v Farhat [1999] NSWCCA 174 at [13]. (1990) 45 A Crim R 253 at 255. See above, Ch 1 fn 30. [1998] NSWSC 322. R v Baker (unreported, NSW Court of Criminal Appeal, 5 April 1993), as cited in R v Steffan (1993) 30 NSWLR 633 at 637. It need hardly be demonstrated that such an order is interlocutory, but see R v Davis [1964] NZLR 417 at 420; R v Long (No 1) [2002] 1 Qd R 662 at 676f.

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[3.110]

later in R v Colby,149 Kirby P appears to have doubted this conclusion with reference to the early restricted case law on the meaning of the phrase “judgment or order”, which relied upon the occasion for the enactment of the scheme (the explosion in the number of appeals against stay applications) to restrict its plain meaning. That restrictive approach had, however, been made obsolete in the previous year, as has already been noted,150 and the decisions that took that approach were not cited by his Honour. In 2000, in R v Brewer,151 and in 2004, in R v Forbes,152 the court assumed without discussion that a decision changing the venue of a trial, or refusing such an application, is an order amenable to interlocutory appeal. This is clearly correct. The Court of Criminal Appeal for New South Wales has, moreover, referred in passing to “matters traditionally made by order, such as amendment of an indictment, change of venue or separate trials”.153 Change of venue is now regulated by the Criminal Procedure Act 1986 (NSW) s 30, which states that “the Court may change the venue, and direct the trial to be held in such other district, or at such other place, as the Court thinks fit, and may for that purpose make all such orders as justice appears to require”. This is at least consistent with the view that a change of venue is accomplished by “order” as that term is used in s 5F.154 It will be recalled that New Zealand also classifies changes of venue as decisions against which an interlocutory appeal by the defendant is allowed.155 An amendment of the indictment is also an interlocutory judgment or order, as is a decision to refuse to reverse an amendment previously permitted.156 Although the author is not aware of any case dealing with the point, a decision refusing the Crown’s application to amend the indictment also constitutes either an interlocutory judgment or order, and in Victoria certainly an interlocutory decision. (It could not, however, without torturing language, be said to be, in the usual case, a ruling on the admissibility of evidence; it is, rather, a ruling which may have consequences for the admissibility of evidence.) Although no order is required to leave an indictment unamended, we saw above that the “substance over form” principle means that a decision refusing an application that, if granted, would have required an order to effect it also constitutes, for present purposes, an order. Similarly, an order for further and better particulars and a decision refusing such an order are appellable under the interlocutory criminal appeals system.157 149 150 151

152 153 154 155 156

157

(1995) 84 A Crim R 125 at 129. See above, Ch 3 fn 114. [2000] NSWCCA 488. In this case the court also held that House principles were applicable to appeals on this topic: at [9]f, [30]f; accord the Victorian case of Vjestica v The Queen (2008) 182 A Crim R 350 at 354. [2004] NSWCCA 55. WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 at [49]. As we saw above (p 53), the words used in a statute do not necessarily control the classification of an alleged judgment or order under s 5F. Criminal Procedure Act 2011 (NZ) ss 218(2)(b), 223(2); see also above, Ch 1 fn 78. Criminal Procedure Act 1986 (NSW) s 21(1); Epacris Pty Ltd v Director-General, Department of Natural Resources (2007) 69 NSWLR 507 (summons); Cargnello v The Queen [2009] NSWCCA 192; DJF v The Queen [2011] NSWCCA 228 at [15] – [21], [35], [40]. WorkCover Authority of New South Wales v TMG International Pty Ltd (2002) 116 IR 128 at 141 (decision now dubious for other reasons: Morrison v Joy Manufacturing Co Pty Ltd

[3.120]

Jury issues

For the same reason also, a decision refusing an adjournment158 or a change of venue can also be appealed against even if no formal order refusing the application is made.

Jury issues [3.120] In most jurisdictions, although not Victoria, it is possible for an accused to elect for trial by judge alone in place of a jury. In New South Wales, this occurs pursuant to an “order”, as it is described by the statute, made under s 132 of the Criminal Procedure Act 1986. Unless both the prosecution and defence agree, such an order is not automatic, as it is in some other States in which there are no interlocutory appeals; the statutory test in s 132 of the Criminal Procedure Act 1986 is whether judge-alone trials are “in the interests of justice”, taking in particular into account whether “the trial will involve a factual issue that requires the application of objective community standards, including (but not limited to) an issue of reasonableness, negligence, indecency, obscenity or dangerousness”.159 In introducing the current version of this scheme, the Attorney-General, John Hatzistergos stated: The Standing Committee [on Law and Justice] recommended that consideration be given to preventing interlocutory appeals from a Court’s decision in relation to an application for a Judge-only trial. The government has given serious consideration to this issue but has decided not to implement a bar on appeals from such decisions. Given the serious issues at stake, it is appropriate that they be determined according to the ordinary appeal provisions that otherwise apply to interlocutory orders in criminal matters. It is noted that, while no direct appeal provisions are provided in Queensland and Western Australia, parties that dispute an order in relation to a Judge-alone trial can object via other means; for example, via a stay of proceedings or as a ground of appeal against conviction or sentence. The Committee was concerned as to the delays that a right to appeal might create. However, the government is confident that, should the Court of Criminal Appeal determine that a trial-by-Judge order is appellable under the Criminal Appeal Act 1912, the Court has the capacity to deliver a swift hearing and verdict prior to a trial taking place. Given the relatively limited circumstances where a Judge would make an order that might be the subject of appeal, there is unlikely to be a significant impact on the criminal justice system by implementing the provisions in their current form. Moreover, in the long term, the decisions of the Court of Criminal Appeal would provide useful guidance to both practitioners and Judges

158

159

(2004) 137 IR 8 at 31f); Ul-Haque v The Queen [2006] NSWCCA 241 at [30] – [41] (special leave to appeal refused: Ul-Haque v The Queen [2007] HCATrans 61); REE v The Queen (2010) 203 A Crim R 11 at 12f; Lin v The Queen [2015] NSWCCA 204. R v Balic (1994) 75 A Crim R 509 (point not taken by respondent Crown); Ho v Director of Public Prosecutions (unreported, NSW Court of Criminal Appeal, 18 July 1994); R v Alexandroaia (1995) 81 A Crim R 286; R v Clarke [2008] 1 Cr App R 403, although the statutory language in England was rather different from that in New South Wales. Until its repeal by s 3 and Sch 1 Item 4 of the Mental Health (Criminal Procedure) Amendment Act 2005 (NSW), s 11A of what is now the Mental Health (Forensic Provisions) Act 1990 (NSW) provided that an accused might, with the consent of the prosecutor, elect to have his fitness for trial determined by a judge alone instead of a jury. This too was appellable under s 5F: R v Mifsud (unreported, NSW Court of Criminal Appeal, 8 November 1995); Newman v The Queen (2007) 173 A Crim R 1 at 9; see also R v WRC (2003) 59 NSWLR 273.

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[3.120]

about which matters are suitable to be heard before a Judge sitting alone, ensuring that the system operates efficiently and fairly.160

In R v Belghar161 the accused successfully applied for a trial by judge alone in the District Court of New South Wales, and the Crown appealed, also with success. The background was that the accused was a Moslem, his backward opinions about the place of women were said to be part of the background to his offence and it had been concluded below that, as a result, a jury might be biased against him. It was held that “a high degree of judicial restraint is required of an appellate Court when asked to review”162 a decision on this issue. Although “discretion” might not be quite the right word to describe the process that must be engaged in, the court held that the usual principles in determining whether there was an error were again applicable – was the wrong principle applied, irrelevant matters considered or relevant ones not considered, etc? In this case there was no evidence that the prejudice the accused feared actually existed, nor had the judge considered whether any prejudice could be neutralised in the selection of the jury and by directing the jury at trial.163 The appeal was therefore allowed and the order for a judge-alone trial quashed. (In the end, the accused pleaded guilty to lesser charges and no trial occurred.) A similar result was reached, for similar reasons, in R v Stanley,164 except that in that case the prejudice assumed to exist without proper evidence was against Aborigines rather than Moslems. These decisions might be criticised on the grounds that they set the bar too high for a judge-alone trial, and that the accused’s apprehension of prejudice against him, or even just a desire to be tried by judge alone, ought normally to suffice for a judge-alone trial without any need actually to lead some type of evidence of prejudice. That, however, would be a point that deals with substantive questions for the legislature rather than interlocutory criminal appeals on the basis of the law as it stands. Some sign of the acceptance of this view might be found in the very recent case of Redman v The Queen,165 although part of the reason why the interlocutory appeal of the accused was allowed and a trial by judge alone ordered was that the accused’s own evidence (namely, that he had been in prison for some of the time during which the sexual assault on the child could have been committed) was the possible source of prejudice to him and he would be hampered in presenting his own defence if unable to be wholly frank with a jury about this point. In R v Jamal,166 a stay ordered by the trial judge until the Crown consented to a judge-alone trial was quashed. Clearly, there is a difference between jurisdictions such as South Australia, in which a judge-alone trial is the accused’s virtually for the asking, and New South Wales, where much more is required. Another jury-related issue that may come before the appeals court is an application for the discharge of the jury or of a juror. We saw in Chapter 1167 that the specific provision in New South Wales on the discharge of the whole jury, s 5G of the Criminal Appeal Act 1912 (NSW), was inserted 160 161 162 163 164 165 166 167

New South Wales Parliament, Legislative Council, Debates (24 November 2010) pp 28073ff. (2012) 217 A Crim R 1. R v Belghar (2012) 217 A Crim R 1 at 24. R v Belghar (2012) 217 A Crim R 1 at 28. [2013] NSWCCA 124. [2015] NSWCCA 110. (2008) 72 NSWLR 258. See above, p 9.

[3.120]

Jury issues

apparently as a result of a misapprehension that such decisions were not interlocutory. Even so, it does at least serve to draw attention to the special category in which these applications stand, particularly in respect to their need for urgency (s 5G(2)), and permits an appeal to proceed even if no order has yet been made formally discharging a jury although the trial judge has made a “decision” that it should be discharged. In Victoria, the discharge of the jury or a juror does of course come under the interlocutory appeals system as an interlocutory decision, as will a decision to continue a trial and refuse an application for discharge. Under s 297(3) of the Criminal Procedure Act 2009 (Vic), it will need to be shown, given that such steps must occur during the trial, that the reasons for granting leave “clearly outweigh any disruption to the trial”,168 and, in the case of an appeal against discharge, arrangements will also have to be improvised in order to keep the jurors on standby while the point is decided. In New South Wales, s 5G permits by its plain wording, and with reference to its purpose and history, only appeals (by either side) against decisions to discharge the jury – not against refusals to do so. Both sides need leave – this is the only situation in which the Crown needs leave in New South Wales. Perhaps surprisingly, where it could be most helpful there is no provision for a certificate of the trial judge to obviate the need for leave. The discharge of the jury does not need to have been ordered; if the trial judge has made a mere “decision” to discharge the jury, that decision can be the subject of a speedy appeal before the formal order of discharge is made.169 If the jury is indeed to be discharged, s 5G thus provides for a mechanism by which that drastic step can be speedily reviewed before it becomes irrevocable. However, if, for example, the jury accidentally learns prejudicial and inadmissible information about the accused’s past record but an application to discharge the jury is then refused, can there be an appeal? It would be possible to read s 5G as an implied exclusion of appeals against non-discharges. This would be quite sensible as a policy decision;170 but there is no evidence that that is what was intended by the insertion of the section, and the temporary misapprehension that the decision was not interlocutory should not be permitted to govern this question. It has been held that a decision that the jury should not be discharged but the trial proceed with a jury of 10 or 11 members is effected by an order and thus can be appealed against under s 5F,171 and also – although this was before s 5G was inserted, there is no evidence that s 5G was meant to reverse this – that the refusal to discharge a jury because of allegedly prejudicial media reporting was appellable under s 5F.172 The discharge of a jury or juror is often173 (although not always)174 also a discretionary decision, with the usual House consequence for appeals against it.

168 169 170 171

172 173

Department of Justice (Victoria), Criminal Procedure Act 2009 – Legislative Guide, p 279. See above, p 9; see also Practice Note No SC CCA 1 at [38], [39]. Compare above, p 30. Jury Act 1977 (NSW) s 22; Petroulias v The Queen (2007) 73 NSWLR 134. In deciding this question, account must be taken of the fact that what a statute calls a “decision” will not necessarily determine whether it is a “judgment or order” under s 5F: see above, p 52. R v Forbes [2004] NSWCCA 55. For example, R v Munro (unreported, NSW Court of Criminal Appeal, 30 June 1994); R v

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[3.120]

At least where the decision is discretionary, it has been said in the Court of Appeal for Victoria that it should be “rare”,175 not to say “exceedingly rare”,176 that an interlocutory appeal should be brought against a decision to refuse to discharge a jury. That having been said, it is noticeable that at least one of the cases in which that point was made was a case in which the jury was very close to rendering a verdict. In such cases there is usually every reason to allow them to do so as rapidly as is consistent with proper procedure rather than delay matters with appeals that could, if necessary, just as easily occur after the verdict.177 Things might be different if the trial, particularly a long trial, had only just started. Equally, there might be very good reasons to hear an appeal not against a refusal to discharge, but an order discharging a jury at a late stage in a long trial.178 Something will also depend on the nature of the alleged problem, for the circumstances which can give rise to an application to discharge the jury are infinitely various. At the very least it might be worth granting leave to appeal in some cases in order to investigate the question. Questions about the proper empanelment of the jury can also be raised on interlocutory criminal appeal – in Victoria without restriction, as long as the trial judge has made a decision, and in New South Wales as long as that decision reaches the level of a “judgment or order”. That was the case, for example, in Petroulias v The Queen,179 where the trial judge ordered the discharge of a disqualified juror and the Court of Criminal Appeal held by majority on an interlocutory appeal that the whole jury was not constituted as required by law because that juror had been empanelled. Similarly, in Ronen v The Queen,180 where the trial judge had rendered a judgment on a separate and discrete issue,181 partly of constitutional law and partly of statutory interpretation – namely whether the accused was entitled to know the identities of the jurors – an interlocutory appeal against that judgment was dismissed. It need hardly be said that the resolution of issues relating to the correct empanelment of the jury may contribute to avoiding uncertainty about the status of the trial and a possible discovery after verdict that all was in vain.

Disqualification for bias [3.130] Disqualification for bias (or “recusal”, as it is sometimes nowadays referred to)182 is one of the fields in which the difference in the test for the availability of an interlocutory appeal that exists between New South Wales

174 175 176

177 178 179 180 181 182

Abdul-Razzak [2006] NSWCCA 195 at [9]; R v Luland [2007] NSWCCA 64 at [28]; Dertilis v The Queen [2010] VSCA 360 at [11]; SD v The Queen [2011] VSCA 76 at [13]; Director of Public Prosecutions (Vic) v Zheng [2013] VSCA 304 at [45]. Petroulias v The Queen (2007) 73 NSWLR 134 (about to be mentioned in the text). Dertilis v The Queen [2010] VSCA 360 at [17]. Director of Public Prosecutions (Vic) v Zheng [2013] VSCA 304 at [38]; SD v The Queen [2011] VSCA 76 at [12]: “exceptional”; cf R v Forbes [2004] NSWCCA 55, with the further factor in that case that the accused was already in custody on another matter and there could be no question of holding a possibly innocent man in custody. An exception is clearly constituted by WC v The Queen [2012] NSWCCA 231. Department of Justice (Victoria), Criminal Procedure Act 2009 – Legislative Guide, pp 279, 281. (2007) 73 NSWLR 134. (2004) 211 FLR 320; see further, R v Ronen [2004] NSWCCA 189. See above, Ch 2 fn 44. The first record of this curious word in the Oxford English Dictionary is its appearance in the Case Note, (1911) 28 S Af LJ 101. The Oxford English Dictionary describes the word as

[3.130]

Disqualification for bias

and Victoria – “judgment or order” versus “decision” – does translate into a real difference in available appeal rights. In New South Wales there is no appeal against the refusal of a trial judge to disqualify himself (or a decision to do so – but appeals against such decisions are hardly to be expected). This is because such a decision is not a “judgment or order”, nor a decision on the admissibility of evidence, and therefore does not fall under s 5F of the Criminal Appeal Act 1912 (NSW).183 Although reasons might be given and they could be described as a “judgment”, a ruling on a disqualification application does not constitute a “judgment” in the technical sense.184 Recently some unease has bubbled to the surface over this state of the law in the judgment of the New South Wales Court of Criminal Appeal in Gurung v The Queen,185 and although the unease is well founded as a matter of legal policy, it is submitted that the law is clearly established, is merely a consequence of the adoption of the phrase “interlocutory judgment or order” in its accepted meaning and is consistent with the position in civil cases also (from which that phrase was originally taken).186 Needless to say, a refusal to disqualify oneself can be appealed against after any conviction; if an interlocutory order is made or an interlocutory judgment is given by the allegedly biased judge following his refusal to disqualify himself, that too can be the subject of an appeal at which the refusal may well be one of the grounds. In Piras v The Queen,187 for example, an appeal was brought against a judgment refusing the accused permission to change his plea of guilty, and alleged bias on the part of the judge was properly one of the grounds of the appeal against that judgment. Indeed, in Gurung v The Queen,188 it was said that “it is usually not difficult to identify a ‘later interlocutory order’ which might properly be the vehicle for appeal”. In a recent civil case, Michael Wilson & Partners Ltd v Nicholls,189 the High Court of Australia approved of this technique for bringing the issue of bias to the attention of the appeals court and even went so far as to state that a party that failed to make use of it might be considered to have waived the point. That is, however, clearly a statement made in the context of the facts of the case concerned,190 and it is hard to conceive of circumstances in which an accused person, rather than a party to civil litigation, could legitimately be faced with such an argument after conviction. Furthermore, an application can be brought for a prerogative writ to the Court of (civil) Appeal – as long as the judge in question is not a judge of the

183 184 185 186 187

188 189 190

“chiefly South African and US”. However, the verb “recuse” has a longer history, both in its transitive (1387) and its reflexive (1829) forms. For a case in which the suggestion was made that one of the appeal judges was disqualified, see Grassby v The Queen (1989) 168 CLR 1 at 19-21. R v Rogerson (1990) 45 A Crim R 253 at 255. This also appears to be the law in “defined issues” jurisdictions: Draoui v District Court of South Australia [2011] SASCFC 15 at [8]. See above, Ch 2 fn 44; Ch 3 fn 36. [2012] NSWCCA 201 at [41] – [49], [55] – [57], [67]; see also R v Reid (2004) 148 A Crim R 425 at 428f. See below, Ch 7 fn 12. (2006) 167 A Crim R 260; see also Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593 at 600f; R v Steffan (1993) 30 NSWLR 633 at 637; Chevalley v Morrison (2012) 219 IR 193 at 205. [2012] NSWCCA 201 at [56]. (2011) 244 CLR 427 at 449-51. M Aronson and M Groves, Judicial Review of Administrative Action (5th ed, Lawbook Co., Sydney, 2013) p 679.

75

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[3.130]

Supreme Court of New South Wales, to which such writs cannot be directed.191 This is so even if no order has been made or judgment given, as it is a breach of the rules of natural justice for a person to sit as a judge in a trial when disqualified for bias.192 There is also the possibility of a declaration in such circumstances. In Chow v Director of Public Prosecutions (NSW)193 a declaration was granted in circumstances where the accused had pleaded guilty but the judge’s remarks in sentencing proceedings gave rise to a reasonable apprehension of bias. On the other hand, such relief was refused in sentencing proceedings in the industrial jurisdiction in Chevalley v Morrison194 on the usual ground that criminal proceedings should not be interrupted by such applications. Given the ease with which an appeal against sentence can be brought, there is much to be said for that view – unless the convicted person is faced with the possibility of a custodial sentence and no grant of bail pending appeal. Finally, there was one high-profile case in which the Court of Criminal Appeal for New South Wales granted a temporary stay until a Crown Prosecutor affected by apprehended bias was replaced.195 In Victoria, on the other hand, it is clear that a judge’s decision not to withdraw from sitting as a result of bias is an “interlocutory decision” and therefore amenable to an interlocutory criminal appeal. The Court of Appeal for Victoria so held in GP v The Queen.196 It added that: the decision of a judge not to recuse himself or herself on a ground of apprehended bias ought be regarded as being of sufficient importance to the trial to justify it being determined on an interlocutory appeal; that is, assuming always that the application to recuse is one serious in its content, rather than merely frivolous.197

Nevertheless, the same court recently refused leave to appeal in a case in which the application could not have been called frivolous and GP was not cited, although it gave full reasons in doing so and thus did not entirely refuse to deal with the point.198 In a recent civil case, the Court of Appeal for New South Wales has expressed similar views to those in GP: Although a recusal application does not involve a judge deciding a matter in which she or he has an interest (there being no legal “interest” in sitting or not sitting on a particular case) the judge is nevertheless called upon to rule on the possible effect of his or her conduct on a fair-minded lay observer. That assessment may, at least subconsciously, be influenced by the judge’s assessment of his or her own ability to determine the case impartially. Further, a challenge to the position or conduct of a judge may have the tendency to exacerbate, or appear to exacerbate, any level of conflict between the judge and a party or counsel appearing in the case. In most circumstances, that consideration will militate in favour of brief reasons, 191

192 193 194 195 196 197 198

Barton v Walker [1979] 2 NSWLR 740 at 758; Gaudie v Local Court of New South Wales (2013) 235 A Crim R 98 at 141. There is a collection of authorities in Lee v Cha [2008] NSWCA 13 at [11] – [37]. Chow v Director of Public Prosecutions (NSW) (1992) 28 NSWLR 593 at 610, 618. (1992) 28 NSWLR 593. (2012) 219 IR 193 at 205f. R v MG (2007) 69 NSWLR 20. For a case in which this did not occur, see Bagshaw v The Queen [2009] NSWCCA 32 at [12]. (2010) 27 VR 632 at 638f; see also GEM v The Queen [2010] VSCA 168 at [13] fn 5. GP v The Queen (2010) 27 VR 632 at 639. Dillon v The Queen [2014] VSCA 164.

[3.140]

Issues related to guilty pleas

accepting that brevity may need to be tempered by the need to demonstrate that the various matters raised have been taken into account. It is because of the particular role placed upon a judge in determining a recusal application that it will frequently be appropriate to grant leave to appeal, assuming the challenge is not patently untenable and where a long and costly trial would be avoided if the decision below were incorrect.199

It would be desirable to amend the legislation in New South Wales to permit interlocutory appeals when judges refuse to disqualify themselves.

Issues related to guilty pleas [3.140] Interlocutory criminal appeals are available in both New South Wales and Victoria against the refusal by a court to allow the accused to withdraw his plea of guilty200 (as long as the matter has not proceeded to a conviction and sentence, in which case an appeal against the conviction must be brought).201 This seems established, although there has been little to no consideration in New South Wales of the question whether such a refusal constitutes a “judgment or order” and, if so, which one of those and why. Nor has anyone in New South Wales – as distinct from Victoria202 – given much thought to whether the interlocutory appeal is really required in such cases given that an appeal against conviction after sentence on the same basis would not involve much delay and bail could be granted to the accused, if necessary and justifiable, pending such an appeal. However that may be, the appeal is against the exercise of a discretion with the usual consequences for appellate review.203 Nevertheless, it is clear enough that the appeal should be determined without making any allowance for the fact that it is still technically an interlocutory rather than a final proceeding, 199 200

201

202 203

Barakat v Goritsas (No 2) [2012] NSWCA 36 at [63]f. For New South Wales cases (some of which refer to what happens as a “judgment”, others as an “order”, others as both, but none of which considers the question in detail), see R v Boag (1994) 73 A Crim R 35; R v Sewell [2001] NSWCCA 299 (special leave to appeal refused: Sewell v The Queen [2001] HCATrans 529; 621); Piras v The Queen (2006) 167 A Crim R 260; Rotner v The Queen [2011] NSWCCA 207. For Victorian cases, see UR v The Queen [2011] VSCA 152; Kumar v The Queen [2013] VSCA 297. For a case from a “defined issues” jurisdiction which declares the decision to be an order, see Moran v Police [2005] SASC 375 at [11]f; for a Magistrates’ appeal from New South Wales to the same effect, see Wong v Director of Public Prosecutions (NSW) [2005] NSWSC 129 at [1]; for a case from Queensland confirming that the order is interlocutory, see R v Verrall [2013] 1 Qd R 587 at 593. For cases in which interlocutory appeals were brought between conviction and sentence, see below, Ch 3 fn 382; Ch 4 fn 106. Having regard to what is said in Jenkins v Director of Public Prosecutions (NSW) [2013] NSWCA 406 at [11], [81], although without any serious consideration of the classification of the appeal, it might be advisable, depending on what exactly occurred and was said after the plea of guilty, to bring both interlocutory and post-conviction appeals in such circumstances. It is indeed possible that both of these types of appeal are available if a plea of guilty is accepted and/or a conviction is pronounced or recorded but sentence not yet passed. In many cases, however, the conviction will not be formally pronounced or recorded until sentence, and it will be only at that point that the interlocutory stage will be concluded. In cases of doubt, such arid points should be avoided if possible by unobjectionable procedural devices such as bringing two appeals, one of which can be summarily dismissed. UR v The Queen [2011] VSCA 152 at [6]f; Kumar v The Queen [2013] VSCA 297 at [3]. Hart v The Queen [1997] NSWSC 191; Piras v The Queen (2006) 167 A Crim R 260 at 263f; UR v The Queen [2011] VSCA 152 at [9]. Garcia-Godos v The Queen [2015] NSWCCA 144 at [47] – [55] does not contradict this but does involve some confusion between the nature of the appeal and the standard of review: see above, [2.110].

77

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[3.140]

given that the dismissal of the appeal will finally determine the appellant’s conviction of the offence to which he initially pleaded guilty. In theory the Crown could also appeal against the grant of leave to withdraw a plea of guilty, but such a course is unlikely given that in such circumstances a trial should usually ensue. However, there has been one case in which the withdrawal was entered without considering at all the question of leave or the provision of supporting evidence, and a Crown appeal was accordingly allowed.204 One step by the Crown that has been the subject of appeal at least four times in New South Wales is an application to withdraw its acceptance of a plea of guilty. If successful, such an application too may be the subject of an interlocutory criminal appeal by the accused – also against a discretion.205 In such a case, appealing under the interlocutory system does make sense, for if the appeal were allowed the trial would be rendered unnecessary and the trial court could proceed straight to sentence. It seems right to say that, in the limited set of circumstances in which a judge may reject a plea of guilty by the accused, an appeal against that rejection is permissible. For instance, in Maxwell v The Queen,206 Dawson and McHugh JJ referred to the appeal as being against an “order … rejecting the appellant’s plea”.207 Section 5F(1)(b) of the Criminal Appeal Act 1912 (NSW) expressly includes within the ambit of interlocutory criminal appeals ss 99 – 108 of the Criminal Procedure Act 1986 (NSW), which include an authorisation to reject a guilty plea at committal and various other powers. (Although the pedigree of those sections goes back, as s 51A of the Justices Act 1902 (NSW), to 1955, those powers that are out of the ordinary course and might raise appeal points, such as the power to return an accused who pleaded guilty at committal for continuation of the committal under s 104, seem to have been little used.) One further decision may conveniently be mentioned under this heading, if only because it allowed Gleeson CJ to give an outing to his sense of humour. In R v Impiombato,208 a District Court judge had refused to give a sentencing indication to an accused on the ground that he was clearly guilty and should plead guilty immediately. His Honour observed: It would be incongruous if the sentence indication procedure were only intended to elicit guilty pleas from persons who appear to have solid, or least arguable, defences. There is nothing in the legislation to indicate that the sentence indication procedure was not intended to be available to people who are clearly guilty. One would hope and expect that the sentence indication procedure will encourage pleas of guilty from people who really are guilty and not from people who really are not guilty.209

Accordingly, the judge had taken an irrelevant consideration into account in rejecting the application for a sentence indication. However, this scheme has long since been discontinued in New South Wales, while in Victoria the 204 205

206 207 208 209

R v Abbruzzese [2006] NSWCCA 207. R v BWM (1997) 91 A Crim R 260 (further proceedings following Maxwell v The Queen (1996) 184 CLR 501); R v Beeby (1999) 104 A Crim R 142; R v Miller (2001) 127 A Crim R 344; R v Filimoehala (2003) 138 A Crim R 299. For a Victorian case in which leave was refused, see Stannard v Director of Public Prosecutions (Vic) (2010) 28 VR 84. (1996) 184 CLR 501. Maxwell v The Queen (1996) 184 CLR 501 at 507. (1995) 35 NSWLR 627. R v Impiombato (1995) 35 NSWLR 627 at 629.

[3.150]

Constitutional points

enabling statute expressly precludes appeal.210 Although in theory a decision outside jurisdiction on the point in the County Court of Victoria could lead to an application for a prerogative writ,211 this decision is of academic interest only at present.

Constitutional points [3.150] Questions about the constitutional validity of a provision may give rise to an “interlocutory judgment or order”. In Cheikho v The Queen,212 the accused were charged with participation in a terrorist conspiracy, a federal offence, and were faced with a conclusive certificate, issued pursuant to statute, about the acts done by the telecommunications company Optus as part of the surveillance of the accused by ASIO. They claimed that the conclusiveness of the certificate violated either the separation of judicial power in the federal Constitution or the right to trial by jury in s 80 of the federal Constitution. The challenge could have been seen as a merely evidentiary one (and thus one in relation to which, in New South Wales, the accused cannot appeal), given that the conclusiveness of the certificate denied the accused the opportunity to adduce contradictory evidence and it was also necessary to determine the admissibility of the certificate. It was, nevertheless, correctly held that the decision below was a “judgment”.213 It will be recalled that the principal characteristic of a judgment is that it is a “decision of a Court which determines the proceedings (or an identifiable or separate part of them)”.214 There were three reasons, the court held, why this description was satisfied here. First, the Attorney-General for the Commonwealth had intervened pursuant to s 78B of the Judiciary Act 1903 (Cth), thus transforming the nature of the proceedings so that they no longer involved the parties only. Second, if the accused’s constitutional points had any merit in them it might be necessary to read down the statute, changing the conclusive certificate into a merely evidentiary one. That too would be in effect a separate proceeding. Finally, the decision on the constitutional validity of the statute was simply in its nature “an identifiable or separate part” of the case.215 Even so, leave was refused on the ground that both constitutional objections were of insufficient weight to warrant it – even though the trial was expected to last for about a year.216 It will not be every case in which an Attorney-General intervenes or a question about reading down a statute will arise, but it is submitted that the final reason of the three just mentioned will be sufficient in every case. Whether it is brought under the State or the federal Constitution, a constitutional challenge is by its nature something set quite apart from the determination of guilt or innocence in the criminal law. Thus, a constitutional challenge will always involve a “judgment” within the meaning of s 5F of the Criminal Appeal Act 1912 (NSW) when a ruling on it is given below (and a fortiori it is also a 210 211 212 213 214 215 216

Criminal Procedure Act 2009 (Vic) s 209(4). See above, Ch 2 fnn 103, 104. (2008) 75 NSWLR 323. Cheikho v The Queen (2008) 75 NSWLR 323 at 326. See above, Ch 2 fn 44. Cheikho v The Queen (2008) 75 NSWLR 323 at 330. Cheikho v The Queen (2008) 75 NSWLR 323 at 351.

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[3.150]

“decision” within the meaning of the Victorian statute). Indeed, there are cases in which an accused’s challenge to constitutional validity has been made the subject of entirely separate proceedings seeking a declaration of right.217 There is one further case in the High Court of Australia218 and several cases in the Court of Criminal Appeal for New South Wales,219 both before and after Cheikho, in which, it is true, an Attorney-General intervened, but nothing was made of that fact and the court proceeded without serious consideration of the jurisdictional point to decide constitutional points such as a challenge under s 80 of the federal Constitution to trial arrangements, whether the offence unjustifiably restricted political communication or whether the evidentiary provisions under which the court operated infringed Kable220 principles. That does not mean, of course, that leave must always be granted under s 5F, even though it always can be – for the constitutional question may be very easily decided: they often are, because hopeless arguments are regularly attempted. In R v O’Halloran221 the constitutional challenge to the validity of federal legislation had occurred pursuant to a notice of motion to quash the indictment which was dismissed by an “interlocutory order”.222 The Court of Criminal Appeal for New South Wales did not analyse, but rather assumed that it possessed jurisdiction on that basis. It must be recalled, however, that the question whether there is a “judgment or order” is one to be determined by substance rather than form. Nevertheless, the preceding paragraph has suggested that the substance of such a decision will always constitute a judgment.

Existence and meaning of offence [3.160] In Chung v The Queen,223 the accused pleaded guilty to the commonlaw offence of conspiracy to cheat and defraud, and then claimed before sentence that the offence had been displaced by federal legislation and no longer existed. This claim was dismissed by the trial court, and an appeal was rightly both entertained and dismissed by the Court of Criminal Appeal for New South Wales on the assumption that this ruling constituted a judgment. The arguments just presented in the case of constitutional challenges can be easily adapted to show that the question whether federal law has led to the extinction of a common-law offence constitutes an “identifiable or separate part” of proceedings. The same position would exist if it were claimed that a federal law had overridden a State law rather than the common law. In relation to issues falling short of the existence of the offence, there seems again to be a divergence between New South Wales and Victoria based on the 217 218 219

220 221 222 223

For examples, see above, Ch 1 fn 91. Monis v The Queen (2013) 249 CLR 92. R v Ronen (2004) 211 FLR 320; Ul-Haque v The Queen [2006] NSWCCA 241 at [30] – [41] (special leave to appeal refused: Ul-Haque v The Queen [2007] HCATrans 61); R v Wilkie (2005) 64 NSWLR 125; BUSB v The Queen (2011) 80 NSWLR 170 at 174f; KS v Veitch (No 2) (2012) 84 NSWLR 172; NAR v PPC1 (2013) 224 A Crim R 535 at 549-52; Buckman v The Queen (2013) 280 FLR 219; Ratcliff v The Queen [2013] NSWCCA 259. No intervention appears to have occurred in Leonard v The Queen [2007] NSWCCA 197, R v Ronen (2004) 62 NSWLR 707 at 725 or R v Frawley (2005) 190 FLR 158. Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. (2000) 182 ALR 431. R v O’Halloran (2000) 182 ALR 431 at 432. (2007) 175 A Crim R 579.

[3.160]

Existence and meaning of offence

dichotomy between “interlocutory judgment or order” and “interlocutory decision”. In Victoria any ruling on the meaning of a statute (including common-law principles applicable to statutes such as the presumption of mens rea) or the shape of a common-law offence may be the subject of an application for leave to appeal – which is not to say that it will be granted.224 On the one hand, in PJ v The Queen225 a question arose about the mens rea applicable in cases of people smuggling: did the accused have to know not only what his intended destination was, but also that it was part of Australia? In answering this question in the affirmative and thus reversing the trial judge’s decision, the Court of Appeal for Victoria stated: Plainly enough, this is a question of considerable importance, with implications for trials to be conducted around Australia. It is also a question of some difficulty, and his Honour was required to deal with it as a matter of urgency. It was precisely so that significant legal issues of this kind could receive appellate consideration before the commencement of a trial that the interlocutory appeal provisions were enacted in 2009.226

A similar statement may be found in Director of Public Prosecutions (Cth) v Karabegovic.227 And in Director of Public Prosecutions (Cth) v FM,228 leave was granted to the Crown to appeal against a trial judge’s ruling in circumstances in which the accused, charged with using a message service to procure or groom a child for under-age sex, claimed that he had been wholly fantasising, never expected any such sex to occur with the young person in question (who was actually an undercover police officer) and had obtained his gratification from the communications only. The trial judge had ruled that, if the Crown could not exclude this state of affairs beyond reasonable doubt, the jury should acquit. “[N]ot without misgivings”229 the Court of Appeal for Victoria granted leave to appeal against this decision but affirmed it, while clarifying one point that need not detain us here. An appeal under a procedural requirement was considered in Director of Public Prosecutions (Vic) v BDX.230 On the other hand, in Director of Public Prosecutions (Vic) v Zheng231 a question under the common law arose as a result of the fact that the accused, charged with murder, had committed two separate attacks against the deceased and was claiming self-defence. The trial judge had ruled that he would direct the jury that they would need to acquit of murder unless they could identify the act causing death and then exclude the possibility of self-defence when that act was committed. The Court of Appeal for Victoria held the trial judge’s ruling to be plainly correct and leave to appeal was therefore refused. In GA v The

224

225 226 227 228 229 230 231

Stannard v Director of Public Prosecutions (Vic) (2010) 28 VR 84, although here the point was actually decided on the way to refusing leave; see also SAJ v The Queen (2012) 36 VR 435. (2012) 36 VR 402; Wallace, “Migrant Smuggling, Criminal Fault and the Legal Status of Australia: PJ v The Queen” (2013) 39 Mon LR 246 at 278. PJ v The Queen (2012) 36 VR 402 at 404 (emphasis in original). (2013) 282 FLR 383 at 385 (special leave to appeal refused: Director of Public Prosecutions (Cth) v Karabegovic [2014] HCATrans 179). (2013) 233 A Crim R 83. Director of Public Prosecutions (Cth) v FM (2013) 233 A Crim R 83 at 93. (2010) 27 VR 536. [2013] VSCA 304.

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[3.160]

Queen,232 leave to appeal was refused not for that reason, but on a ground relating to the interpretation of the telephone interception legislation: it was a complex question, would involve examination of much legislative history and other courts’ decisions, including decisions in other States that could not be departed from unless they were plainly wrong, and might require further factual findings which could not sensibly be made by calling evidence on an interlocutory appeal. Such questions relating to the application of the law to the facts cannot necessarily be agitated at all in New South Wales, or at most, as we shall see, through the back door, because of the restrictions imposed by “judgment or order”. Two cases have raised the question whether intoxication can be taken into account under Pt 11A (ss 428A – 428I) of the Crimes Act 1900 (NSW) in relation to attempted rape233 and breaking and entering,234 and in both it has been held that a ruling on this point neither constitutes a “judgment or order” nor a ruling on the admissibility of evidence235 and therefore cannot be the subject of interlocutory appeal. A similar line has been taken on whether insanity can be a defence to a particular charge.236 Nevertheless, the case of attempted rape is one of those cases237 in which the court took the opportunity to indicate to the trial judge that the ruling below was wrong, even though formally it had no jurisdiction in the matter! The trial judge had held under s 61HA(1) and (3)(e) of the Crimes Act 1900 that, in determining whether the accused knew or was reckless as to the non-consent of his sexual partner, or did not have reasonable grounds for believing that she consented, his intoxication was to be disregarded in attempted rape as it is in rape. The Court of Criminal Appeal for New South Wales, however, pointed out that this was not the law laid down in s 61HA, which did not apply to the offence of attempt. A similar procedural sleight of hand was resorted to in R v Kanaan,238 in which the trial judge had erroneously concluded that the facts alleged could not constitute an offence given that the statutory offence was firing a firearm “in or near a public place”, and authority had established that a car was not a public place. In so holding, the trial judge had omitted to notice the word “near” which enabled the authority in question to be distinguished, and had also not 232 233

234

235

236

237 238

[2012] VSCA 44 at [45]f; see also Dale v The Queen (2012) 229 A Crim R 480, although here leave to appeal was granted and the appeal dismissed. WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 (the common-law term, not the statutory one). An application for judicial review was also dismissed: WO v Director of Public Prosecutions (NSW) [2009] NSWCA 370. R v Adamson [2005] NSWCCA 7. A point relating to the mens rea of the offence was left open in R v El Hassan (2001) 126 A Crim R 477 at 478; it must now be regarded as settled that this appeal would have been incompetent. See, in particular, WO v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 at [29]f, overruling any suggestion to the contrary in R v Adamson [2005] NSWCCA 7 at [7]. Both appeals were, however, by the accused, so that there would be no right to appeal against a ruling on evidence anyway (s 5F(3A) restricts this to the Crown). Therefore, this view could be said to be an obiter dictum, but it seems correct in principle: see further below, Ch 3 fn 288. The point appears also to have been missed in Selim v The Queen [2006] NSWCCA 378. R v Piper [2005] NSWCCA 134. Further steps involved in prosecutions involving allegations of insanity were raised in R v Mailes [1999] NSWCCA 127; R v Jeans [2005] NSWCCA 73. See also R v Joyce (2004) 1 DCLR (NSW) 290 at 292f; I can find no appeal to the Court of Criminal Appeal for New South Wales in this case, which is probably due to the fact that it considered it lacked jurisdiction. See above, p 21. [2003] NSWCCA 396; see above, Ch 1 fn 100.

[3.160]

Existence and meaning of offence

thought of the possibility that a firearm pointing through the open window of a car might be “in” a public place. In Kanaan the only order that the trial judge had made was an adjournment of the case, against which no appeal had been brought, and the judge’s reasons did not constitute a “judgment or order”. In dismissing the appeal as incompetent, the Court of Criminal Appeal for New South Wales took the opportunity to set the judge right on those points, again despite its lack of jurisdiction. It suggested, moreover, that a declaration or prerogative relief might be available, but that seems very doubtful given that declarations are infrequently granted in criminal proceedings and prerogative relief is available only where there is an error on the record.239 The most obvious means of having such a point of law decided would be via the case stated, but in New South Wales this can occur only after a conviction240 and therefore this procedure is of no use in the present circumstances. This restriction should be removed but, pending action on that front, other options must be sought, and fortunately there are quite a few – as there is no reason why accused persons should escape punishment simply because a statute is interpreted incorrectly, nor should accused persons be put on trial based on incorrect interpretations of statutes. First, an appeal could be brought against the adjournment and that could be used as a means of dealing with the point in question. Second, although it would be stretching the power to quash somewhat, the Crown could ask for an order that the indictment be quashed and then bring an appeal under s 5C. Third, the Crown might be able to begin its case with some item of evidence the relevance of which depends on the point in issue, and then appeal under s 5F(3A) when that evidence is ruled irrelevant. A fourth option is for the Crown to allow the accused to be acquitted by direction and then bring an appeal on a question of law alone, namely the correct interpretation of the statute, under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW).241 Fifth, if the ruling in question were made some time in advance of the trial, the accused might then apply for a permanent stay of proceedings and, as we have seen, an appeal can certainly be brought against that.242 Finally, there is the possibility of arguing that a question on which a ruling was obtained was of such significance that it constitutes an “identifiable or separate part” of proceedings and can therefore be the subject of appeal as a judgment or order.243 If, on the other hand, an interpretative point might be sufficient to decide the accused’s innocence, if decided in his favour, the accused can bring an 239 240 241

242

243

See above, Ch 1 fnn 91, 92. See above, Ch 1 fn 94. Compare the unusual situation in R v Miller (2001) 127 A Crim R 344, where the accused pleaded guilty to a less serious offence and the Crown then formed the view that he could not lawfully be found guilty of it, since he was not the complainant’s “step-father” within the meaning of Crimes Act 1900 (NSW) s 73 as he was not married to the complainant’s mother at the time in question. The accused argued that he was guilty of that offence to avoid being liable for the more serious offence, and the Crown’s application to withdraw its acceptance of the guilty plea turned into a decision on the point in question (he was not a “step-father”). Just before this book went to press, s 5C was successfully mobilised in R v Peart [2015] NSWCCA 321. This was, in effect, what was done in Lin v The Queen [2015] NSWCCA 204, via the mechanism of seeking further particulars on a topic which it was only necessary to particularise on the accused’s reading of the statute. For an example, see below, Ch 3 fn 365.

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[3.160]

application for a permanent stay of proceedings on the ground that the prosecution is doomed to fail and appeal against its refusal if that is what occurs (just as the Crown could appeal against a grant of such a stay). In Pellegrino v Director of Public Prosecutions (Cth),244 that is exactly what the accused did. He was charged with dishonestly appropriating Commonwealth property, and his claim was that the control that the federal Customs exercised over the goods could not be sufficient in law to allow for the conclusion that theft could be committed against it. The Court of Criminal Appeal for New South Wales dismissed the appeal on the ground that “it cannot be said at this stage that the prosecution is foredoomed to fail”245 – the precise degree of control which the Customs had over the items in question would need to be the subject of evidence at the trial. Finally, it should be noted that in New South Wales (a fortiori in Victoria) the decision whether an offence is triable on indictment or summarily is an interlocutory order, and thus amenable to appeal.246

Privileges and subpoenas [3.170] Questions of privilege usually come up in relation to orders for the production of documents, and these are orders directed to the person required to produce the documents, and within the meaning of s 5F of the Criminal Appeal Act 1912 (NSW). Furthermore, it has been held that, if a person in receipt of a subpoena objects to it and the objection is upheld, this is to be “regarded as making a ruling which is or involves an order to the effect that the subpoena, the service of which would otherwise impose an obligation to produce the documents, need not be complied with”.247 If the appellable order is for the production of documents, it matters not, as far as the competency of the appeal is concerned, whether the privilege claimed is lawyer/client privilege,248 public interest immunity249 or the sexual assault 244

245 246

247 248 249

(2008) 71 NSWLR 96; see also R v El Azzi (2001) 125 A Crim R 113; R v Frawley (2005) 190 FLR 158 (challenging standing of federal Director or seeking order quashing indictment); Selim v The Queen [2006] NSWCCA 378; Agius v The Queen (2011) 80 NSWLR 486; Joffe v The Queen (2012) 82 NSWLR 510 (application to quash counts; special leave to appeal refused: Joffe v The Queen [2013] HCATrans 109); R v Aubrey (2012) 82 NSWLR 748 (special leave to appeal refused: Aubrey v The Queen [2013] HCATrans 110); R v Beckett [2015] HCA 38; Madden v The Queen [2014] NSWCCA 291; Little v The Queen [2015] VSCA 62; R v Peart [2015] NSWCCA 321. Pellegrino v Director of Public Prosecutions (Cth) (2008) 71 NSWLR 96 at 112. Anson v Director of Public Prosecutions (NSW) (2002) 129 A Crim R 328 (although this was not an appeal under s 5F, the judgment makes it clear that the same position obtains under that section). R v Keeling (unreported, NSW Court of Criminal Appeal, 5 September 1996) per James J. R v Keeling (unreported, NSW Court of Criminal Appeal, 5 September 1996); R v Joyce (2003) 38 MVR 432 (further proceedings: R v Joyce [2003] NSWCCA 280). Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 670-3, 687-9; R v Meissner (1994) 76 A Crim R 81 (special leave to appeal refused: Meissner v The Queen [1995] HCATrans 263); R v Lilley [1998] NSWSC 161 (statutory analogue); R v Abdullah [1999] NSWCCA 188; R v Fandakis [2002] NSWCCA 5; R v Francis (2004) 145 A Crim R 233; Lipton v The Queen [2010] NSWCCA 175; R v Lipton (2011) 82 NSWLR 123; (2012) 224 A Crim R 177 at 184; Derbas v The Queen (2012) 221 A Crim R 13; Osborne v The Queen (2014) 283 FLR 97 at 99 (statutory analogue). See also the very unusual situation that arose relating to the privilege against self-incrimination in Cornwell v The Queen (2006) 160 A Crim R 243 (further appeal: Cornwell v The Queen (2007) 231 CLR 260).

[3.170]

Privileges and subpoenas

communications privilege,250 or even if there is no privilege involved and the sole objection is based on general considerations applicable to subpoenas such as oppressiveness, lack of legitimate forensic purpose or the ban on “fishing”.251 Nor does it matter whether the appellant is the Crown or the accused (except that the accused needs leave in New South Wales, whereas the Crown does not), or whether it is New South Wales or Victoria. However, the question whether a privilege is available also may arise in the middle of the giving of viva voce evidence, and here it has been held, although without any explanation, that the decision to permit the questions in issue to be asked constitutes a judgment.252 In R v Francis,253 Simpson J dealt with the nature of this appeal as follows: The application before this Court is an application pursuant to s 5F of the Criminal Appeal Act for leave to appeal against what was, essentially, a discretionary decision. (I say it is discretionary because Blackmore DCJ purported to exercise a discretion under s 130 of the Evidence Act. The correct exercise, in my view, was a balancing exercise, weighing the two conflicting aspects of the public interest, which, of itself, is not, but is analogous to, a discretionary judgment. In any event, the determination to set aside a subpoena on that basis is, in essence, a discretionary decision.) Ordinarily, an applicant for leave to appeal under s 5F would be required to establish error in the process undertaken by the primary judge, in the sense explained in House v The King. Here, it was accepted by the Commonwealth that the absence of reasons and the withholding of the factual basis for the claim from the applicant and his legal advisers rendered that requirement inappropriate. In practical terms, it is necessary that this Court perform its own evaluation task and exercise its own discretion independently of what was done by the primary judge. I have read the confidential affidavit. Its contents are persuasive. It establishes (so far as an untested affidavit may do so) that more harm would be done to the public interest by disclosure of the material sought than would be done to the administration of justice by its being withheld. It would be inappropriate to say more than that. In reaching that conclusion, I have been influenced by the absence of any obvious usefulness of the material to the applicant in his defence of the charge. I make that comment, with reservations as outlined above.254

Mason P agreed with the proposition that House review would not be fair to the accused in this case.255 250

251

252 253 254 255

R v N [1998] NSWSC 281; R v Lee (2000) 50 NSWLR 289; NAR v PPC1 (2013) 224 A Crim R 535. For a Victorian case raising this privilege, see SLS v The Queen [2014] VSCA 31 at [224] – [248]. R v Stig (unreported, NSW Court of Criminal Appeal, 17 October 1996) (also objection by reason of public interest immunity); R v Gergis [2000] NSWCCA 508; R v Ronen (2004) 62 NSWLR 707; Sood v The Queen [2006] NSWCCA 252; R v Taylor (2007) 169 A Crim R 543; Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536; Lipton v The Queen [2010] NSWCCA 175; R v Lipton (2011) 82 NSWLR 123; (2012) 224 A Crim R 177. The point had been left open on an appeal from a Magistrate in R v Anderson (unreported, NSW Court of Criminal Appeal, 12 October 1989). Attorney-General v Kaddour [2001] NSWCCA 456 at [2]. (2004) 145 A Crim R 233; see also R v Taylor (2007) 169 A Crim R 543 at 546. R v Francis (2004) 145 A Crim R 233 at 237f. R v Francis (2004) 145 A Crim R 233 at 234; see also R v Gergis [2000] NSWCCA 508 at [53], [62]; Sood v The Queen [2006] NSWCCA 252 at [10]; Attorney-General (NSW) v Chidgey (2008) 182 A Crim R 536.

85

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[3.170]

Recent interlocutory appeals in civil cases256 have, however, thrown doubt upon the proposition that House review is the correct standard in dealing with matters of this nature. It should be recalled, above all, that there is not a sharp dichotomy between discretionary and rule-based decisions, but rather a continuum.257 As the quotation from Francis itself shows, much depends upon the facts of the case, the grounds on which the appeal is brought and the nature of the privilege and the objection taken – even on the state of knowledge of the parties. The balancing exercise to be undertaken in some cases of privilege does not usually involve a discretion as such, anyway, but what is more rightly seen as an evaluative judgment. It would be hazardous to attempt to provide here a complete answer given the variety of factors involved and the fact that the law is clearly still coming to grips with this question, or rather series of questions. As was seen in the discussion of third-party appeals in Chapter 2, it will sometimes be the case that a non-party to the criminal litigation will wish to appeal against the issue of a subpoena. For example, a subpoena may be issued on behalf of the accused seeking records of the police or a government department. Aside from one special case for which express provision is made by s 5F(3AA) and (3AB) in New South Wales, we saw that in both States it would be necessary for the would-be appellant third party to enlist the aid of a party to the litigation in order to have standing to appeal under the interlocutory appeals system. In R v Seller258 the Court of Criminal Appeal did not expressly consider the question whether there is an appeal available to the accused under s 5F(3) against a ruling that lawyer/client privilege had not been waived by the Crown, but the analogy with the issues relating to privilege already dealt with is close and there is no reason to doubt that such an appeal is available.

Witness-related issues [3.180] Rulings exist on numerous topics, as is only to be expected, about the interaction between interlocutory criminal appeals and decisions related to witnesses. First, it would seem that rulings about whether witnesses are competent or compellable can be the subject of appeal in New South Wales. This emerges from R v RAG,259 in which the question related to the competence of a seven-year-old complainant. It was held that the decision that she was incompetent was “an identifiable or separate part of the proceedings”260 and therefore constituted an appellable judgment. Thus, it could be appealed against under s 5F(2) of the Criminal Appeal Act 1912 (NSW) – so there was no need for the Crown to attempt to demonstrate that its case had been weakened to the extent required by s 5F(3A). Error in the decision below was easily established given that the judge had relied on various irrelevancies to form his 256 257 258 259

260

Australian Securities and Investments Commission v P Dawson Nominees Pty Ltd (2008) 169 FCR 227 at 230-4; Victoria v Brazel (2008) 19 VR 553 at 565-8. See above, Ch 3 fn 124. [2015] NSWCCA 76 at [159] – [170]. [2006] NSWCCA 343; see also RA v The Queen (2007) 175 A Crim R 221 and, for a case with unusual facts but on a comparable point, see R v Seller [2015] NSWCCA 76 at [78] – [84]. R v RAG [2006] NSWCCA 343 at [15].

[3.180]

Witness-related issues

view and not considered the correct question,261 but this is not a discretionary decision (and it was not suggested that it was). On the other hand, a decision not to allow a witness to be recalled is not a judgment or order.262 In Victoria, both of these things would constitute interlocutory decisions and establish the jurisdiction of the appeals court on that point, which is far from saying that every such decision is one against which leave to appeal should be granted.263 In both jurisdictions, but for different reasons, there is no interlocutory criminal appeal against a refusal to require a witness to give evidence in person at a committal hearing: in Victoria this is because s 295(1) of the Criminal Procedure Act 2009 requires that the case must have reached the higher courts, while in New South Wales committal proceedings are included in s 5F(1)(a), but the issue does not constitute a judgment or order.264 There are, however, cases in which such a refusal has been made the subject of an application for prerogative writs (or the modern versions of those institutions).265 Refusals to allow witnesses to be cross-examined on the voir dire in the court of trial can, nevertheless, be the subject of interlocutory criminal appeal in Victoria, but as a discretionary decision and a ruling on practice and procedure there is a very high hurdle that must be surmounted by a would-be appellant.266 Although the author knows of no authority on the point,267 it would seem that the decision to order or not to order a Basha inquiry268 would not be appellable in New South Wales, unlike in Victoria, given that the closest analogy is to directions for the attendance of witnesses at committals which, as we have just seen, do not constitute judgments or orders. However, if a stay is ordered on a ground such as that a Basha inquiry will not meet the case, or the trial will be an abuse of process without one, or an application to make such an order is refused, that can be appealed against on the same basis as a stay granted or refused for any other reason.269 The exercise of the court’s general powers to control the course of evidence under ss 26 and 192 of the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic) would also seem to be subject to interlocutory criminal appeal. This was assumed rather than decided in Bagshaw v The Queen,270 in which the complaints raised by a self-represented accused were easily dismissed regardless 261 262 263 264

265

266

267

268 269 270

R v RAG [2006] NSWCCA 343 at [55]f. R v Powch (1988) 14 NSWLR 136 at 138. For a case from the Australian Capital Territory, see R v Muller (2013) 7 ACTLR 296. R v Colby (1995) 84 A Crim R 125 at 128f; Miller v The Queen [2011] NSWCCA 195 at [13]. As explained at p 20 above, the general topic of appeals against committals is not considered here. For example, Poliakov v George (2009) 212 A Crim R 461. The legislation referred to above, Ch 2 fn 103, does not apply in such a case because of the words “in the Court or in the District Court” at the end of para (a1). FMJ v The Queen [2011] VSCA 308 at [57]f; there seems no reason why the Crown would not have to surmount the same hurdle if it were appealing against an order that evidence should be given. In Meissner v The Queen (No 2) [1997] NSWSC 476 the court did not appear to object to the idea that the issue could be the subject of an appeal, but as the parties reached agreement on it the point was not decided. The question of leave did not have to be considered as the trial judge had granted a certificate, so the issue was concealed, and the first authority referred to in fn 492 was not considered. R v Basha (1989) 39 A Crim R 337; Criminal Procedure Act 2009 (Vic) Pt 4.11. R v Sepulveda [2003] NSWCCA 131. For a case involving the Crown’s refusal to call a witness, see Meissner v The Queen (No 2) [1997] NSWSC 476. [2009] NSWCCA 32 at [21].

87

88

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[3.180]

of the jurisdictional point. In Victoria such orders are clearly decisions, whereas in New South Wales the use of the word “order” in s 26 justifies the conclusion that such orders are also available for appeal.271 Nevertheless, it is not likely to be a frequent occurrence that an interlocutory criminal appeal against such orders will be justified. There is an apparent conflict of authority on whether orders for the taking of evidence by video link are appellable in New South Wales. In Victoria they clearly are272 – which is again not to say that leave must be granted – as a “decision”, but in New South Wales the position is more complex. Thus, in R v Wilkie,273 the accused appealed against such a decision on the ground that, under s 80 of the federal Constitution, it was unconstitutional to allow a witness to give evidence by video link, and nothing was said to suggest that the question could not be subject to appeal. However, it will be recalled that constitutional issues can be the subject of a “judgment”, and although the decision on appeal did not go into this question in detail, it is on that basis that this decision can be explained. These questions are judged, as we saw earlier, on substance not form, and the substance of this case was a constitutional point even though the form was an appeal against an order permitting evidence to be given by video. Absent any such background, it would seem that a direction – to use the statutory language of at least one of the powers available274 – that evidence should be taken by video link does not count as an “order or judgment” within the meaning of s 5F(2) and (3)275 and therefore could be appealed against only in Victoria, not in New South Wales. In Sasterawan v Morris276 it was held that such a direction was merely procedural and analogous to a ruling on evidence. This causes one to wonder about the possibility of a Crown appeal against the failure to make such a direction in relation to its own witnesses. This question in turn depends on the conclusion that the phrase “admissibility of evidence” in s 5F(3A) includes not merely the question whether evidence may be adduced at all, but the mechanism by which it is to be brought before the court. Sasterawan suggests that this is not so: both Basten JA277 and Schmidt J278 referred to the admissibility of evidence as a different question from the “manner” in which it was given, under which heading their Honours subsumed the question of video 271 272 273 274

275

276 277 278

See, however, above, p 53. X v Director of Public Prosecutions (Vic) [1995] 2 VR 622 confirms what would be obvious anyway, namely that this decision is interlocutory. (2005) 64 NSWLR 125 (special leave to appeal refused: Wilkie v The Queen [2005] HCATrans 849). Evidence (Audio and Audio Visual Links) Act 1998 (NSW) s 5B. As we saw above (p 53), however, s 5F does not necessarily take its cue from the words used in statutory powers, which may well have been drafted without thought being given to the consequences for it of any wording selected. Other powers include Criminal Procedure Act 1986 (NSW) ss 290 – 294D, 306M – 306ZP; Criminal Procedure Act 2009 (Vic) ss 359 – 369. On an extension of time under the latter set of provisions, see MAC v The Queen (2012) 34 VR 193. The point was not decided in Director of Public Prosecutions (NSW) v Moradian [2010] NSWCCA 27 as the Crown withdrew its appeal. In R v Marchando (2000) 110 A Crim R 337 points were raised by the accused about the video link evidence which clearly could be the subject of appeal. (2010) 201 A Crim R 302 at 310, 320. Sasterawan v Morris (2010) 201 A Crim R 302 at 310. Sasterawan v Morris (2010) 201 A Crim R 302 at 320.

[3.180]

Witness-related issues

link evidence. Although these were mere obiter dicta, both the ordinary meaning of the word “admissibility” and the history behind the introduction of s 5F(3A)279 suggest that this is the correct answer. It is also hard to see that it could be said that such a direction “eliminates or substantially weakens the prosecution’s case”: s 5F(3A). On the other hand, in BUSB v The Queen280 it was held, obviously not without some hesitation, the reasons for which are unfortunately not recorded in full in the judgments, that a direction that a witness should give evidence while not visible to the accused was an order that could be the subject of appeal by the accused under s 5F(3). This direction was, however, made pursuant to the court’s inherent non-statutory powers and was not described in any enabling statute as a mere direction. It is unfortunate that the accused’s rights to appeal should depend upon such fine distinctions. In addition, the admission of the complainant’s evidence at a previous trial pursuant to a statutory power to do so281 is a ruling on the admissibility of evidence, meaning that the Crown – only – can challenge it in New South Wales.282 A further point which might come up is an application by the prosecution to reopen its case in order to tender further evidence. For example, in Higgins v Parker283 the prosecutor tendered the wrong copy of the South Australian Government Gazette to prove a speed limit – it was dated after the alleged offence – and the magistrate refused to allow him to reopen his case in order to tender the correct copy. If such a technicality arose in a trial for an indictable offence in New South Wales or Victoria, would an appeal be available? In Abigroup Contractors Pty Ltd v WorkCover Authority of New South Wales284 the Industrial Relations Commission of New South Wales in Court Session appears to have concluded, without wishing to say so in so many words, that such a decision was not a “judgment or order” – which seems obviously correct. When that case was decided, however, there was no appeal against evidentiary rulings under s 5F(3A). Would an appeal be available nowadays to the Crown? In Victoria there is no doubt that it would be,285 but in New South Wales it would appear that no appeal could be brought under s 5F(3A) – for the same reason as we just encountered in relation to how evidence may be adduced: the time at which evidence is tendered is not a question of its “admissibility”. There is no contradiction in saying: this evidence was admissible, but we did not tender it in time. On the other hand, if, for example, the evidence was so crucial that its absence produced a directed acquittal, an appeal could be brought under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW). A further alternative – if the refusal to allow the case to be reopened meant that an acquittal was inevitable given that a vital element in proving the accused’s guilt was missing, as in the example of the speed limits 279 280 281 282 283 284 285

See above, p 8. (2011) 80 NSWLR 170. Criminal Procedure Act 1986 (NSW) s 306I. EK v The Queen (2009) 75 NSWLR 302. (1984) 35 SASR 229. (2002) 119 IR 319. Compare SLS v The Queen [2014] VSCA 31 at [117], in which the question was whether the defence could have reopened upon a stay application, and the unusual situation dealt with in the same case at [263]f involving the Crown’s attempt to split its case.

89

90

3: Decisions Amenable to Appeal

[3.180]

case above – would be to attempt to resurrect the pre-2003 cases286 under which such an outcome is equated to an order dismissing the whole of the Crown’s case and thus appellable under s 5F(2). Abigroup would not stand in the way of that, given that it was an attempted defence appeal against the admission of evidence after a prosecution reopening, and the point therefore did not arise.

[3.190] An application to have a witness declared unfavourable raises a similar distinction between admissibility as such and the mode of adducing evidence. When the Crown brought an appeal against the refusal to declare a witness unfavourable in R v Milakovic,287 the Court of Criminal Appeal held that this was not a decision on the admissibility of evidence: [The Crown’s] contention merges the concept of a ruling with its potential consequences. The ruling related to an aspect of the conduct of the prosecution case, it was not a ruling on the admissibility of evidence. The circumstances that the Crown could identify the evidence that it wished to adduce did not alter the nature of the ruling.288

There is a curious lack of authority on whether rulings admitting, or not admitting, expert evidence can be the subject of interlocutory criminal appeal on grounds such as whether the expert is qualified. On first principles, and using the cases mentioned earlier in this section as analogies, it seems unarguably correct that a decision under s 79 of the Evidence Act 1995 (NSW) is a decision on the admissibility of evidence; thus, it can be challenged by the Crown under s 5F(3A) if it “eliminates or substantially weakens” the Crown’s case. In Victoria decisions not to admit Crown experts’ evidence clearly can be appealed against, as decisions – although only two cases have been found by the author in which such a ruling was the subject of an appeal.289 However, as the table at p 95 will demonstrate – and assuming that the decision about whether, for example, an expert is qualified is just a step in determining whether the expert’s evidence is admissible within the meaning of s 295(3)(a) of the Criminal Procedure Act 2009 (Vic) and the whole question is thus an evidentiary one – the Victorian accused cannot appeal against the rejection of an expert proposed as a witness for the defence, which goes some way towards explaining the remarkably small number of appeals. This is because s 295(3)(a) requires that the ruling inadmissible of the evidence must eliminate or weaken the Crown case,290 whereas a defence expert’s evidence would need to be admissible in order to do one of those two things. 286 287 288 289

290

See above, Ch 3 fn 46. [2004] NSWCCA 199. R v Milakovic [2004] NSWCCA 199 at [9]. Wells v The Queen (No 2) [2010] VSCA 294 at [11]; SLS v The Queen [2014] VSCA 31 at [191] – [223]. R v DG (2010) 28 VR 127 involved DNA evidence, but it was not challenged on the ground that the means of its admission did not involve an expert. Tuite v The Queen (No 2) [2015] VSCA 180 at [18]. The paragraph actually says that “the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution’s case”. This is literally nonsense, because if proposed evidence is ruled inadmissible, it will never be evidence. More importantly, this could also be read as setting up two requirements: (a) ruled inadmissible; (b) would eliminate or substantially weaken the Crown’s case. But while a defence expert’s evidence may certainly be evidence that “would eliminate or substantially weaken the prosecution’s case”, the history and intent of the provision show that “if ruled inadmissible” is not merely a further condition for the right to appeal to arise (given that accuseds’ appeals against the admission of Crown evidence are also available), but rather describes a possibly hypothetical action in relation to the proposed evidence.

[3.190]

Witness-related issues

A further question arises if the accused in New South Wales wishes to challenge a decision to admit either Crown or defence expert evidence, for in that case the decision must constitute a “judgment or order”. In Hargrave v Slater291 the view was expressed, in a somewhat different context, that such decisions did not constitute orders, and on first principles this too seems correct: such a decision is not “a command by a Court that something be done (or not done)”. On the other hand, “a judgment is the decision of a Court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the Court”.292 A formal decision on the qualification of an alleged expert, or whether the proposed evidence requires expert evidence or is a matter for the jury, for example, could meet this description, and indeed there is at least one judgment of the Court of Criminal Appeal for New South Wales in which their Honours referred to a decision on expert evidence as delivered by means of “a judgment containing … rulings”293 – although this was not said with the requirements of s 5F(2) and (3) particularly in mind, given that the appeal in question followed conviction. If this is correct, an accused in Victoria could argue that a decision that a defence expert was not qualified would fall under s 295(3)(b) and thus also be available for appeal by the accused. In Bagshaw v The Queen294 it was furthermore assumed, without considering the point expressly, that the accused could bring an appeal on points relating to the admissibility of expert evidence. Some rulings required by proposed expert evidence might raise the question whether evidence is more prejudicial than probative295 and can be dealt with under that heading. However, the initial decision whether a witness is qualified as an expert and whether the proposed evidence is eligible for admission as expert evidence is different in one important respect from the more-prejudicialthan-probative issue: assessing the qualifications of the witness does not involve evaluative judgment to nearly the same extent as the more-prejudicial-thanprobative discretion, because there is no balancing of competing factors but rather a statutory test of the same type as that for relevance, for example; thus, House principles are not applicable.296 There is authority from New South Wales that a costs order against a party that has unreasonably required the attendance of an expert, made under

291 292 293 294 295 296

What this section actually means can thus be more accurately expressed as a gerundial phrase: “the ruling inadmissible of the evidence would eliminate or substantially weaken”; or, “if the proposed evidence were ruled inadmissible, doing so would eliminate or substantially weaken”. (2000) 113 A Crim R 371 at 374f. See above, Ch 2 fn 44. Nguyen v The Queen (2007) 173 A Crim R 557 at 560. [2009] NSWCCA 32 at [23]f. As in R v Lisoff [1999] NSWCCA 364; R v DG (2010) 28 VR 127; SLS v The Queen [2014] VSCA 31 at [219]. In Tuite v The Queen [2015] VSCA 148 at [8] (see also Tuite v The Queen (No 2) [2015] VSCA 180 at [33]), the Court of Appeal for Victoria appears to contradict this, but the judgment concentrated on the more-prejudicial-than-probative discretion and what was said (at [8]) must be read in that context. In earlier decisions of the court (see especially above, Ch 2 fn 111 and PNJ v Director of Public Prosecutions (Vic) (2010) 27 VR 146 at 150), the issue was treated, correctly, as depending in part on the nature of the decision to be reviewed. In relation to the findings on specialised knowledge, the court said (at [84]) that they were “plainly correct” – this is not House language. See also below, Ch 4 fn 139; Director of Public Prosecutions (Vic) v Brownlie (No 2) [2015] VSCA 267 at [59].

91

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[3.190]

s 177(7) of both the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic), is amenable to an interlocutory appeal.297 Suppression orders may be the subject of interlocutory criminal appeal in both States. This is established for New South Wales by R v Smith.298 In Victoria a difficulty arises because, before the introduction of the interlocutory criminal appeals system, it was held in Herald and Weekly Times Pty Ltd v A299 that an appeal under the general appeals provision in s 17(2) of the Supreme Court Act 1986 (Vic) could be brought, which, given the terms of s 17A(3) which prohibits appeals in criminal matters under s 17(2), implies – as indeed the Court of Appeal for Victoria held – that the suppression order is, in the words of s 17A(3), not “on or in relation to the trial or proposed trial of a person on indictment”. At that time, the alternative to an appeal under s 17A(2) was no appeal at all; now it is an appeal under the interlocutory criminal appeals procedure, for which the test is whether the decision was made in a proceeding “for”300 the prosecution of an indictable offence. Furthermore, there would be a serious question about whether there can be an appeal from a suppression order issued in the County Court of Victoria except under the interlocutory criminal appeals procedure.301 The Open Courts Act 2013 (Vic) contains, on this point, no deus ex machina. Given that “for” does not mean quite the same thing as “on or in relation to”, one possible way out would be to hold that appeals are available under both provisions when the suppression order is issued in the Supreme Court of Victoria, and only under the interlocutory criminal appeals procedure otherwise. It is the same court after all, although the tests for leave are nowhere near the same. Although it is not strictly a question related to witnesses, there is only inconclusive authority on whether judicial rulings relating to the provision and role of McKenzie friends are appellable in New South Wales.302 In Victoria leave could be sought to appeal against such a decision, but it is suggested that the better view is that a McKenzie friend appears by leave, as a mere “matter of practice and procedure”303 and not pursuant to a judgment or order, and therefore there can be no appeal in New South Wales.

297

298

299 300 301 302 303

Badans v The Queen [2012] NSWCCA 97 at [78] – [82]. Quaere whether a “direction” under s 4 of the Evidence Act 1995 would be appellable in New South Wales as a “judgment or order”; it would clearly be appellable as a “decision” in Victoria: see above, p 53. It is suggested that a decision on whether the rules of evidence apply in a sentencing hearing under s 4 is probably a “judgment or order”, given the criteria by which the decision is to be made and the fact that it is a separate and discrete issue: see above, Ch 2 fn 44. (1996) 86 A Crim R 308 at 311; see also R v Kwok (2005) 64 NSWLR 335; Nagi v Director of Public Prosecutions (NSW) [2009] NSWCCA 197 at [22] – [28]; and, for the manner in which an appeal might be brought on behalf of a non-party such as a witness, see above, [2.100]. An appeal against the closing of the court was entertained in Lodhi v The Queen [2006] NSWCCA 101, presumably under s 5F. (2005) 160 A Crim R 299. Criminal Procedure Act 2009 (Vic) s 295(1). Prerogative relief could, however, be sought: Herald and Weekly Times Pty Ltd v County Court of Victoria [2004] VSC 512. R v Kanaan [2003] NSWCCA 190; see also R v Sinanovic [2001] NSWCCA 217 at [18]. R v Smith (1985) 159 CLR 532 at 534.

[3.210] Admissibility: relevance, rape shield laws, hearsay & identification evidence

Admissibility: relevance, rape shield laws, hearsay and identification evidence Relevance [3.200] Rulings on relevance are infrequently the subject of interlocutory criminal appeals, but they can occur if, for example, a trial judge, perhaps because of inexperience, the pressure of the live trial, excessive anxiety for the accused’s rights or inability to see the wood for the trees, takes too severe a view of the requirement that evidence must be relevant.304 In Victoria such an appeal is possible subject only to the restrictions of leave – which would be refused in many cases for the sorts of discretionary reasons to be considered in the next chapter – and the determination that a ruling that the evidence is inadmissible would “eliminate or substantially weaken the prosecution case”,305 while in New South Wales the Crown does not need leave but the further restriction exists, under s 5F(3A), that such an appeal can be brought only by the Crown, not by the defence.306 Relevance is a one-dimensional question of law based on logical connexion,307 and an appellate court is in the same position as a trial judge to say whether the statutory test308 is satisfied; House therefore does not apply.

Appeals against admission of defence evidence [3.210] A strange disjunction exists in relation to rulings on evidence to be adduced by the defence, however, owing to a quirk in the wording of the two States’ statutes. This quirk came to light via R v Burton,309 in which the Court of Criminal Appeal for New South Wales differed with the trial judge on the admission of defence evidence of the complainant’s conduct shortly preceding the alleged offence in a venue in Kings Cross, when she had supposedly shown sexual interest in a stranger, and about a relationship she had had with another man. The trial judge’s rulings that evidence on these topics was admissible were clearly in error under the “rape shield” laws310 – which, at least in the version applicable in New South Wales,311 may be seen as simply resolving for a particular set of cases the outcome of the application of the general principle of relevance for certain types of evidence.312 Indeed, the evidence in Burton was 304

305 306 307 308 309 310 311

312

Examples seem to have arisen with unusual frequency in 2004: R v NKS [2004] NSWCCA 144; R v Lameri [2004] NSWCCA 217; R v Chanthovixay [2004] NSWCCA 285; R v MM [2004] NSWCCA 364 at [60]f. However, there is also R v Nguyen [2010] NSWCCA 97 at [7]f; BJS v The Queen [2011] NSWCCA 239 at [30], [47], [139] – [145]; R v Norris [2014] NSWCCA 76. An appeal by the Crown was not permitted in Director of Public Prosecutions (Vic) v Pace [2015] VSCA 18. Criminal Procedure Act 2009 (Vic) s 295(3)(a); see above, p 32. R v Lavender (2002) 37 MVR 491 at 492f; R v Vorhauer [2002] NSWCCA 483 at [51]. R v Ford (2009) 201 A Crim R 451 at 480. See however below, Ch 6 fn 9. Evidence Act 1995 (NSW) s 55(1); Evidence Act 2008 (Vic) s 55(1). (2013) 237 A Crim R 238. Criminal Procedure Act 1986 (NSW) s 293; Criminal Procedure Act 2009 (Vic) Pt 8.2 Div 2. The version applicable in Victoria differs in important ways – most importantly, it sets up a balancing test rather than rigid categories of evidence that are admissible as an exception to the general ban. However, we shall see that in Victoria there is no appeal by the Crown against the acceptance of defence evidence. For a case in which a permanent stay as a result of the unfairness produced by these rules was set aside on appeal under s 5F, see R v PJE [1995] NSWSC 117.

93

94

3: Decisions Amenable to Appeal

[3.210]

not even relevant, as the court held, because it could not, if accepted, “rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding”.313 On the facts of the case, which need not be reviewed in detail here, that conclusion was correct. But the error could not be corrected unless there was a statutory appeal procedure for doing so. Was an appeal permissible under s 5F(3A), which allows appeals by the Crown against evidentiary rulings that eliminate or substantially weaken the prosecution’s case? The history of the provision shows that it was introduced in order to cater for circumstances in which evidence tendered by the prosecution was rejected, not circumstances in which evidence tendered for the defence was wrongly admitted. However, the Court of Criminal Appeal for New South Wales held that the appeal was permissible: [T]he issue with which the trial judge dealt was an application by the respondent’s legal representatives to cross-examine the complainant with respect to her general sexual availability. It may be assumed that, leave having been given, it might extend to allowing Mr McManus to give evidence of his observations of the complainant’s sexual interest in the stranger in the bar, with a view to laying a basis for a submission to the jury that the complainant, being prepared to agree to consensual sexual activity with one man, would also agree to consensual sexual activity with the respondent. The present question is whether the admission of evidence of that nature “substantially weakens the prosecution’s case”. Section 5F(3A) is not, as might at first be thought, limited to evidence tendered by the prosecution. If that had been the intention of the legislature, it could readily have framed the sub-section in that way. It may be equally damaging to the prosecution case erroneously to admit defence evidence, whether by crossexamination or through witnesses. There is no reason that such a ruling should or would not come within sub-s (3A), although, to the best of my knowledge, that has not previously been the subject of a decision of this Court. Does the admission of evidence of the complainant’s sexual interest in a man other than the respondent “substantially weaken the prosecution’s case”? After considerable hesitation, I have concluded that it does. Admission of that evidence would deflect the jury from a proper consideration of the true issues in the trial. It would permit a false issue to be raised – the inference proposed to be advanced that, because the complainant showed a sexual interest in the stranger, she would equally have been sexually interested in the respondent. By distracting the jury from its proper task, and raising a false issue, admission of the evidence would substantially weaken the prosecution case.314

As we have already seen, there has been one earlier issue in relation to which the argument was put forward, and was wrongly accepted for a time, that the coverage of the interlocutory appeals system was limited by the occasion for its creation.315 Nevertheless, it does seem that that possibility should have been more thoroughly examined in this instance. Allowing appeals against the admission of evidence for the defence is a serious thing, and an analogy could 313 314 315

Evidence Act 1995 (NSW) s 55(1). R v Burton (2013) 237 A Crim R 238 at [212] – [216], with the correction of small and obvious typographical errors. See above, Ch 1 fn 29.

[3.210] Admissibility: relevance, rape shield laws, hearsay & identification evidence

be drawn with appeals against acquittals:316 traditionally, we have not allowed the accused to be hampered in making full answer and defence by the possibility of appeals against the tendering of the evidence they wish to adduce, and that goes a step beyond merely ensuring that the Crown can properly present its case against them. It is true that the appeal in question fits within the literal meaning of the words in the statute, but it may certainly be questioned whether it fits within its purpose as revealed by its history. Unlike the earlier occasion referred to when a limitation not expressed in the section was unjustifiably written into it and the historical materials showed that to be a mistaken view of the history anyway, here it may be due to a mere accident of wording that appeals against the admission of evidence for the defence fall within the literal meaning of the statute. This is perhaps best shown by the Victorian statute, which permits appeals when “the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case”, and there is no provision for appeals when the evidence, if ruled admissible, would substantially weaken the prosecution’s case. This rules out, and was intended (before Burton was decided) to rule out,317 appeals against the admission of evidence for the defence, including under the “rape shield” laws, under this heading in Victoria. When such a slight change in wording so dramatically changes the outcome, more reference should be made to broader matters such as purpose and history – this point too distinguishes the issue at hand from the earlier claim just mentioned to the effect that history was all-important at the expense of clear wording. Nor is there much in the claim in the extract from Burton just quoted that Parliament might have expressly excluded this class of case from the ambit of the system if it is not shown, as it cannot be, that Parliament expressly considered the question and decided on the wording with the precise intent of allowing this type of appeal.318 Assuming, despite all these reasons to doubt it, the correctness of Burton, the following table summarises the available appeal rights in relation to the acceptance or rejection of evidence.

Evidence favourable to Crown accepted

316 317

318

319

Can losing side appeal in New South Wales? No. Appeals by the Crown only (unless also judgment or order under s 5F(3)).

Can losing319 side appeal, with leave, in Victoria? Yes, as long as the Crown case would have been eliminated or substantially weakened had the ruling gone the other way. It was left open in ML v The Queen [2011] VSCA 193 at [10] whether this applies to evidence given during the defence case: the evidence in question was that of the accused under cross-examination about a prior inconsistent statement that strengthened the Crown case; leave was not granted to the accused to appeal against its admission on other grounds. See following text.

As the Victorian Court of Appeal has done in another field: see above, Ch 3 fn 52. Harmonisation of Criminal Procedure Working Group, Harmonisation, p 166; see also Tuite v The Queen (No 2) [2015] VSCA 180 at [18]. Note that in such cases that involve a pure question of law (not likely in “rape shield” cases), the case stated may be of assistance: Director of Public Prosecutions (Cth) v Galloway [2014] VSCA 272 at [19]. It should also be mentioned that the topic is not dealt with in the New South Wales Law Reform Commission’s recent Report No 140, Criminal Appeals (2014) as the judgment in Burton was rendered after the closing date for submissions on the project. Note also the rare possibility of an appeal by a victorious Crown if it is convinced that the ruling below is in error, as in Director of Public Prosecutions (Vic) v Newman [2015] VSCA 25.

95

96

3: Decisions Amenable to Appeal

Evidence favourable to Crown rejected Evidence favourable to defence accepted

Evidence favourable to defence rejected

Can losing side appeal in New South Wales? Yes, as long as the Crown case is eliminated or substantially weakened. Ditto (Burton applies if evidence tendered by defence). Appeals by Crown only so co-accused cannot appeal (unless also judgment or order under s 5F(3)). No. Appeals by Crown only (unless also judgment or order under s 5F(3)).

[3.210]

Can losing319 side appeal, with leave, in Victoria? As in New South Wales.

No. Ruling such evidence inadmissible would strengthen rather than weaken the Crown case. Possible exception: joint trials, “cut throat” defences. See further, following text.

No. Statutory test is whether evidence, if ruled inadmissible, would eliminate or substantially weaken the Crown’s case, but this sort of evidence might do that only if ruled admissible.320

[3.220] The possibility of an appeal in Victoria by one accused against the admission of evidence for another – based, for example, on the claim that the evidence that strengthens the Crown’s case is hearsay and/or does not fall under an exception to hearsay – is certainly a delicious one! For example, accused A might have evidence admitted that puts accused B at the scene of the crime. B might then appeal on the ground that it was hearsay and claim the right to do so given that it was evidence strengthening the Crown case against him, and ruling it inadmissible would have substantially weakened the Crown case.321 If R v Burton322 is right, the scenario above seems an a fortiori case for appeal given that co-accused B would have a right not to be convicted on inadmissible evidence – although at first sight one would think that, if Parliament had intended such an innovation as startling as allowing one accused to appeal against evidence admitted for another, it would have said so expressly. But Burton shows that sometimes there are surprises lurking in the wings, and it must also be recalled that joint trials are, in theory, a series of separate trials being run concurrently. Thus, A and B face a different “prosecution case”, and the words “the prosecution case” in s 295(3)(a) of the Criminal Procedure Act 2009 (Vic) must be read to refer to the prosecution case against each accused taken separately. The disputed evidence of B’s presence at the scene would be evidence unfavourable to accused B, as well as evidence favourable to A’s defence. It could therefore be said that had the evidence been excluded, the Crown’s case against B would have been substantially weakened. While we have seen that a difference in the wording rules out in Victoria a straight appeal by the Crown along Burton lines, the difference here is that the appeal would be taken by one accused against evidence sought to be adduced by another. Assuming such an appeal did proceed and it were allowed, various further possibilities, most obviously an order for separate trials, might need to be considered as a result. Given that so much would depend upon the precise facts, it is probably best not to speculate about such cases until one arises. 320 321

322

See further, above, Ch 3 fnn 290, 317. A further variant is considered below, Ch 3 fn 348, but there the admission would certainly be part of the Crown case and the question whether a co-accused could appeal against the exclusion of the admission is therefore largely theoretical. (2013) 237 A Crim R 238.

[3.230] Admissibility: relevance, rape shield laws, hearsay & identification evidence

A further and more important reason for abstaining from speculation is that it would also be necessary to resolve the question left open in ML v The Queen323 and noted in the table: whether evidence proffered by the Crown (this is the distinction with Burton) but outside the Crown case can be evidence that, if ruled inadmissible, would substantially weaken the Crown case. It is suggested that this is not so and that the reasons for this indicate also that an appeal by accused B against the admission of evidence by accused A can never arise, nor can an appeal be entertained by an accused person against evidence to be adduced by the Crown in cross-examination of them, as was attempted in ML v The Queen. There are a number of reasons for this. First, the words “the prosecution case” in s 295(3)(a) are most naturally to be read as referring to the case presented by the prosecution, rather than anything which may favour its hypotheses arising during the defence case(s). This is not merely the most natural meaning of the words, it is also a formal criterion which provides a clear demarcation, and incidentally also obviates the spectacle of one accused possibly appealing against evidence proffered by another – something which surely would not have gone without remark in the planning of the Act if it had been the intention. The authors of the scheme stated that s 295(3)(a) “has the effect of limiting interlocutory appeals on decisions about the admissibility of evidence to those relating to key prosecution evidence”.324 Very recently, although in a different context, the High Court of Australia has said: As a matter of ordinary usage, the phrase “presented … in support of the [applicant’s] case” is apt to describe the active presentation of the case propounded by an applicant … but it is not at all apt as a description of the process of eliciting information under cross-examination.325

Second, given that joint trials are, in theory, a series of separate trials run concurrently, it might be questioned whether a co-accused is “a party” within the meaning of s 295(2). Third, joint trials and “cut-throat” defences are fairly common and the possibility of accused-against-accused appeals would surely have been considered if the intention had been to allow an appeal on evidentiary points after the close of the Crown case.

Meaning of inadmissible [3.230] It should also be noted that in both Acts evidence can be said to have been held inadmissible if it is held inadmissible on one of any number of counts, or against one but not all accused, or for one of many possible purposes. Reference to the legislation shows that this view is compatible with the wording of both Acts, which state that appeals can be brought on points “on” (New South Wales) or “concerning” (Victoria) admissibility, not merely about a decision to admit, and it also clearly represents a sensible outcome.326 323 324 325 326

[2011] VSCA 193. Department of Justice (Vic), Criminal Procedure Act 2009 – Legislative Guide, p 270. Uelese v Minister for Immigration and Border Protection (Cth) (2015) 89 ALJR 498 at [44]. Authority to this effect exists in New South Wales at least: R v Harker [2004] NSWCCA 427 at [32]; R v Nguyen [2010] NSWCCA 97 at [19]; see also R v Lane (2011) 221 A Crim R 309 at 329. The point was missed in ML v The Queen [2011] VSCA 193 at [12]. In R v McConalogue [2010] NSWCCA 56 at [6]f the point would have been raised had the trial judge expressed a more definite opinion.

97

98

3: Decisions Amenable to Appeal

[3.240]

Other points [3.240] Appeals against decisions that evidence is inadmissible hearsay, or admissible under an exception to the hearsay rule, are appeals about the admissibility of evidence and thus stand in the same position as appeals against rulings that evidence is inadmissible as irrelevant.327 The same applies to rulings on the admissibility of identification evidence under ss 113 – 115 of both the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic).328 There is a great deal of case law on the question of what constitutes eliminating or substantially weakening the Crown’s case. This question will be dealt with in the following chapter.

Tendency/coincidence evidence [3.250] Of course, this is not a general work on tendency/coincidence evidence, and it is unnecessary to consider here the point that, despite the fact that the statutes are identical,329 it is considerably easier to have such evidence admitted in New South Wales than in Victoria.330 Rather, here we concentrate solely on tendency/coincidence evidence as it interacts with the system of interlocutory criminal appeals. Users of this book are unlikely to need a detailed explanation of the relationship between the admissibility of tendency/coincidence evidence and the topic of severance of counts within an indictment,331 which was dealt with in an earlier section of this chapter. A decision of the Court of Appeal for Victoria which deals with this topic in detail in the context of multiple charges of sexual offending is GBF v The Queen.332 The topic is of particular importance in New South Wales, however. This is because there is no appeal by the accused against mere rulings on evidence, such as rulings that tendency and coincidence evidence can be admitted – but there is an appeal against the refusal to make an order severing counts within the one indictment, even if that decision is based on the evidentiary ruling relating to tendency and coincidence evidence. Allowing the accused to appeal in such circumstances may be a breach of our 327

328

329 330 331

332

For examples, see Evidence Act 1995 (NSW) and Evidence Act 2008 (Vic) s 65: R v Kazzi (2003) 140 A Crim R 545; R v Morton (2008) 191 A Crim R 333; R v Darmody (2010) 25 VR 209; ZL v The Queen (2010) 208 A Crim R 325; Finn v The Queen [2011] VSCA 68; Evidence Act 1995 (NSW) and Evidence Act 2008 (Vic) s 66: R v XY (2010) 79 NSWLR 629; Singh v The Queen (2011) 33 VR 1. But cf Bray v The Queen [2014] VSCA 276, where the submission was that admissible hearsay evidence should be rejected for other reasons. R v Adler (2000) 52 NSWLR 451; R v Pera [2000] NSWCCA 109 at [13]; R v Shamouil (2006) 66 NSWLR 228 (a case in which identification evidence was rejected under s 137 of the Evidence Act 1995 (NSW)); R v Mundine (2008) 182 A Crim R 302; Peterson v The Queen [2014] VSCA 111 (a case where identification evidence was not rejected); Pace and Collins v The Queen [2014] VSCA 317 at [11] – [29]. For a case involving alleged illegality and identification evidence, see below, Ch 3 fn 362. Evidence Act 1995 (NSW) and Evidence Act 2008 (Vic) ss 94 – 101. An impression the author had formed before reading the remarks of the Court of Appeal for Victoria in Velkoski v The Queen [2014] VSCA 121 at [34], [152], [164]. But primers may be found in MR v The Queen [2011] VSCA 39 at [9]; R v Bright [2014] VSCA 341 at [47]; see also Harris v The Queen [2015] VSCA 112 at [31]. The fly in the ointment identified in R v Nassif [2004] NSWCCA 433 at [37]f has been largely cured by the enactment of s 130A of the Criminal Procedure Act 1986 (NSW), the Victorian equivalent of which is Criminal Procedure Act 2009 (Vic) Pt 5.5 Div 4. [2010] VSCA 135 at [51] – [55]; see also KRI v The Queen (2011) 207 A Crim R 552 at 565; SLS v The Queen [2014] VSCA 31; and the reasons for the refusal of leave to appeal to the Crown given in Director of Public Prosecutions (Vic) v BCR [2010] VSCA 229 at [36].

[3.250]

Tendency/coincidence evidence

usual approach that the question whether an order or judgment exists is to be determined by substance not form,333 but it is justified by the equal and, in this case, opposite slogan that appeals are against orders, not reasons: while the admission of tendency/coincidence evidence against the accused may be the reason, the refusal to sever is the order.334 And allowing appeals by the accused as well on this point is eminently sensible, for such evidence can have an enormous effect on the trial and is such obviously suitable material for an appeal in the event of conviction that there is every reason to sort the matter out beforehand if it is possible to do so.335 It has recently been said in the Court of Criminal Appeal for New South Wales that the fact that separate trials orders are based on a decision about tendency/coincidence evidence “is a strong consideration against the grant of leave in respect of an order refusing separate trials”,336 even though technically the appeal is available to the accused subject to leave. This somewhat overstates the effect of the previous case law in a case which had clearly tested the patience of the legal system, and only time will tell whether this is a new departure or a mere blip on the radar. It is also noticeable that Rothman J qualified the comments just quoted in a concurring judgment by stating that the evidentiary basis of the decision was “a significant factor”337 among others in considering whether leave should be granted. In addition, there had been a previous decision of the appeals court in the case and the refusal of leave was accompanied by a 248-paragraph judgment, which amounted to a substantive consideration of the issues raised, not merely a refusal to consider them at all. It would therefore not be right to take the comments quoted out of context and to say that appeals courts are justified in simply refusing leave without considering the merits just because a case raises evidentiary points as background to the question whether separate trials or severance should be ordered. Given the great importance of the issue in many trials, and the fact that many other considerations must also be relevant, leave should continue to be granted in suitable cases for this issue to be decided. Assuming that this is accepted, there is a possible theoretical puzzle: why, in both New South Wales and Victoria, has the Crown, if the appellant, sometimes338 been required to demonstrate that the ruling against the admission of tendency/coincidence evidence substantially weakens its case, as if the appeal were based on the evidentiary point alone and (in New South Wales) that were the test for establishing jurisdiction? Even leaving aside cases in which there is only one charge on the indictment, and thus no order for severance is possible,339 or the tendency/coincidence evidence otherwise is not the subject of 333 334

335

336 337 338 339

Compare DSJ v The Queen (2014) 100 ACSR 70 at 72f. DAO v The Queen (2011) 81 NSWLR 568 at 573, 583, 593; R v MR [2013] NSWCCA 236 at [57] (in which – as well as R v Ceissman [2010] NSWCCA 50 – the Crown appealed under both s 5F(2) and (3A) of the Criminal Appeal Act 1912 (NSW). On the view taken here, only the former subsection needs to be used.) Compare also R v Yuill (1993) 69 A Crim R 450 at 457; see also below, Ch 4 fn 61, explaining R v SK [2011] NSWCCA 292. Which is not necessarily the case; thus leave was refused to the Crown in Director of Public Prosecutions (Vic) v BCR [2010] VSCA 229, and initially to the accused in KJM v The Queen (2011) 33 VR 11; [2011] VSCA 151. See also BC v The Queen [2015] NSWCCA 327 at [90]. DSJ v The Queen (2014) 100 ACSR 70 at 72. DSJ v The Queen (2014) 100 ACSR 70 at [220]; see also the discussion following to [225] and, in addition, [241]. But not always: see above, Ch 3 fnn 117, 118. Such as R v Gale (2012) 217 A Crim R 487.

99

100

3: Decisions Amenable to Appeal

[3.250]

the charges, or there is a statutory presumption that the offences in question must be tried together anyway,340 there is on occasion a failure to follow one’s premises through to their logical conclusion on this point. If there is an order to sever, or a refusal to order severance, then the appeal is against that order even if the background is the evidentiary ruling on tendency/coincidence evidence. But the practical resolution of this puzzle is not difficult to find: it must be a rare case in which rejection of tendency/coincidence evidence will not substantially weaken the prosecution case and easily satisfy the test, even though it is actually a work of supererogation to consider whether it is satisfied.341 Equally, it would be incredibly hard to imagine a case in which, under Victorian law, the accused wished to appeal against a ruling admitting tendency/coincidence evidence, but could not demonstrate that, if the evidence were ruled inadmissible, the Crown’s case would be substantially weakened. That means that the only cases in New South Wales that are not catered for are those in which, for some reason, there is, or even can be, no refusal to order severance, but the accused wishes to appeal against the admission of tendency/ coincidence evidence. There would be something to be said for expressly adding such cases to the list of the issues on which the accused may appeal in that State. There is at least one case on record in which the appeal point was whether the proposed evidence constituted tendency/coincidence evidence at all, or whether it was merely evidence of a defective system of manufacture supporting a verdict of manslaughter by criminal negligence.342 In such a case it is a matter of judging whether evidence is admitted for at least one of the statutory purposes set out in ss 97 and 98 of the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic). This is a question which requires some legal judgment but which is not one of discretion: it is more or less the same as the question of determining why – that is, for what purpose – evidence is relevant. As we have seen, this is a question of logical connexion rather than discretion or evaluative judgment. There has even been an appeal based on whether the notice requirements in s 100 of the two Acts just mentioned should have been waived.343 Most appeals are, however, brought on the basis that the statutory test applicable in criminal matters set out in s 101 of the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic) is or is not met. There has even been one such appeal which was interposed between the conclusion of evidence and the final addresses and summing up.344 After many travails it is now settled in both States that, whatever the position on an appeal against conviction might be, 340 341

342

343 344

For example, Criminal Procedure Act 2009 (Vic) s 194. Partly for this reason, the case law on what constitutes a substantial weakening of the Crown case can be postponed to the next chapter; see also R v PWD (2010) 205 A Crim R 75 at 93; R v Ceissman [2010] NSWCCA 50 at [7]; CEG v The Queen [2012] VSCA 55 at [4]. It is possible that an exception to what is said in the text might be constituted by CGL v Director of Public Prosecutions (Vic) (2010) 24 VR 486 at 492 given that the Court of Appeal for Victoria held that the evidence had such little probative value that it would not even have reached the tendency/coincidence hurdle applicable in civil cases – although that was a defence appeal, and not everyone would agree with the court’s view just summarised. R v Cittadini (2008) 189 A Crim R 492. The destiny of this prosecution is revealed in Cittadini v The Queen [2010] NSWCCA 291. See also R v Ngatikaura (2006) 161 A Crim R 329 at 332-5, 342f, 345; R v Ford (2009) 201 A Crim R 451 at 480; and, for a case in which the tendency evidence had been held inadmissible under s 138 of the Evidence Act 1995 (NSW) as improperly obtained, R v MM [2004] NSWCCA 364. R v Harker [2004] NSWCCA 427. R v Jennings [2010] NSWCCA 193.

[3.260]

Admissions

interlocutory appeals under this rubric are to be determined on House principles,345 although there is still the occasional case where this principle seems to be lost sight of. If that results in the correction of an error against the accused, as in Harris v The Queen,346 it is hard not to applaud given that both an unfair trial and, possibly, a successful post-conviction appeal will be eliminated. In this field the House standard recognises: the necessarily preliminary and interim nature of many such rulings, given that the evidence on which the final judgment is to be made will in many cases be that to be adduced before the jury and tested by cross-examination, which may differ substantially from what is available at the interlocutory stage; the difference between the interlocutory appeal and appeals after conviction, which revolve around the concept of the miscarriage of justice; and the need for a greater degree of appellate restraint at the interlocutory stage than on appeal against conviction.347

Admissions [3.260] Admissions are subject to a suite or, perhaps more accurately, a bewildering array, of tests for admission in ss 84, 85, 90 and 137 of the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic). It is of course routine that more than one of these – sometimes all of them – are raised at once in relation to one and the same admission. No matter: in each case it is a question of the admissibility of evidence and thus an appeal can be brought by both sides in Victoria348 and by the Crown in New South Wales. Again, it will usually be the case – although it is not inevitably so given the breadth of the definition of “admission” in the Dictionary to the Acts – that a ruling that an admission could not be used in evidence would significantly weaken the Crown’s case and can thus be the subject of appeal. Section 137 will be examined in detail in the following section. As far as ss 84, 85 and 90 are concerned, there are the significant differences that ss 84 345

346 347 348

New South Wales: DAO v The Queen (2011) 81 NSWLR 568 at 581-2, 589f, 599, 601f; BJS v The Queen [2011] NSWCCA 239 at [111], [187]; DSJ v The Queen (2012) 84 NSWLR 758 at 772f; R v Gale (2012) 217 A Crim R 487 at 493; Bangaru v The Queen (2012) 297 ALR 108 at 158f; R v MR [2013] NSWCCA 236 at [92]; DSJ v The Queen (2014) 100 ACSR 70 at 73, 105; R v MM [2014] NSWCCA 144 at [54]; Victoria: KJM v The Queen (No 2) (2011) 33 VR 11 at 12f (see above, p 42); SPA v The Queen [2011] VSCA 306 at [9]; WEA v The Queen [2013] VSCA 386 at [20] – [30]; SLS v The Queen [2014] VSCA 31 at [176]; CV v Director of Public Prosecutions (Vic) [2014] VSCA 58 at [17]; Page v The Queen [2015] VSCA 357 (also disputed whether tendency or coincidence evidence or both); see also McCartney v The Queen (2012) 38 VR 1 at 11f. There is an interesting but now partly superseded discussion of this question by Campbell JA in R v Ford (2009) 201 A Crim R 451 at 465-84. In Victoria the question had been left open in JLS v The Queen (2010) 28 VR 328 at 339. [2015] VSCA 112. See above, Ch 2 fn 111; Ch 3 fn 335; Criminal Appeal Act 1912 (NSW) s 6; Criminal Procedure Act 2009 (Vic) s 276(1)(b), (c). Read literally, in Victoria the statute would also permit a co-accused to appeal against the exclusion of an admission. This would surely be an unusual case given that the Crown could be expected to appeal, but there seems no reason of principle why it should not be allowed: cf also s 83(2) of the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic). However, what was said in the table above (at [3.200]), combined with the idea that two co-accuseds are involved in two separate trials run simultaneously, may suggest that in strictness it cannot be done: from the point of view of the co-accused wishing to appeal, the admission would be evidence favourable to the defence that was rejected, and thus not available for appeal by the accused.

101

102

3: Decisions Amenable to Appeal

[3.260]

and 85(2) create rules and the Crown must disprove, if the question is raised, the matters stated there, while the matters in ss 85(1) and 137 must be demonstrated by the accused, while s 90 creates, in addition, a discretion (in the language of the heading to the section – perhaps more accurately, a power requiring the exercise of an evaluative judgment). Thus, appeals brought under s 90 are to be determined by application of House principles,349 whereas there is much more room to move, even on an interlocutory appeal, for an appellate court under ss 84 and 85: in particular, it will be required to determine whether the statutory criteria for exclusion are met or not.350 In Beckett v The Queen,351 the Court of Criminal Appeal for New South Wales entertained, but dismissed, an appeal by an accused, not on the discretionary points that would have arisen had her statements constituted admissions, but rather against the decision that the statements were not admissions at all (they were, rather, the very false statements akin to perjury on which the charges against her were founded). That this point was taken by an accused on appeal may have been because the decision on the classification of statements constituted a “judgment or order” and was thus available for appeal by the accused; or because there was an overarching application for a stay, the rejection of which was an order and justified considering all the ingredients that went into it; or because the point was missed or it was not considered necessary to raise it given the number of other points which did definitely have to be decided. The court did not explain itself. Outside the uniform evidence legislation, statute also requires admissions to be recorded.352 Rulings under these provisions are available for appeal by the Crown in New South Wales353 and by both sides in Victoria, but the element of discretion and value judgment is much less.

More prejudicial than probative [3.270] Another matter that is frequently raised in relation to admissions, but which also applies to other evidence, is s 137 of the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic) – the obligation to refuse to admit Crown evidence if its probative value is outweighed by the danger of prejudice to the accused. Mention should also be made of the discretions to refuse to admit evidence contained in s 135 and the of the two Acts on the grounds that it may be unfairly prejudicial, misleading, confusing or wasteful of time, or to limit its use under s 136. 349

350 351

352

353

R v Em [2003] NSWCCA 374 at [104] – [115] (on further proceedings: Em v The Queen (2007) 232 CLR 67 at 89, 105f, 122f, 127f – at that last point Kirby J rejects the applicability of House principles but does not state how else the matter could be resolved); R v Frangulis [2006] NSWCCA 363 at [26] – [34]; WK v The Queen (2011) 33 VR 516 at 527; FMJ v The Queen [2011] VSCA 308 at [53]; R v XY (2013) 84 NSWLR 363 at 396f; R v Burton (2013) 237 A Crim R 238 at 256-66. The author knows no authority on the point, but presumably s 85(1) is in the same category. For an example, see ML v The Queen [2011] VSCA 193. (2014) 315 ALR 295 at 332-5. The court allowed the appeal on other grounds but this was then reversed by the High Court of Australia: R v Beckett [2015] HCA 38. In R v G [2005] NSWCCA 291 at [6] – [30] a similar point was the subject of appeal – but by the Crown, so the puzzle dealt with in the text did not arise. Criminal Procedure Act 1986 (NSW) s 281; Crimes Act 1958 (Vic) s 464H. As this book went to press, a decision was published under s 464A(2) of the latter Act: Sanders v The Queen [2016] VSCA 6. R v Frangulis [2006] NSWCCA 363 at [7] – [21].

[3.270]

More prejudicial than probative

There is at least one case in New South Wales354 in which an appeal by the accused against a failure to exclude evidence under ss 135 and 137 was entertained, but this was probably because it was bundled with other issues on which an appeal did lie, most notably an application for a permanent stay. It is submitted that ss 135 – 137 inclusive, like ss 84, 85, and 90, involve the admissibility of evidence only and not a judgment or order and therefore cannot be the basis of an appeal by the accused in New South Wales. It would be right to deal shortly with an accused who attempted to use an application for a permanent stay as a fig leaf to cover an inability to appeal against a decision under one of those sections.355 There are, however, some differences among those three sections, beyond the differences obvious from their content, which must be reflected when an interlocutory appeal arises under them as well as in other appeals: ss 135 and 136 create a discretion properly so called, whereas s 137 requires an evaluative judgment. Nevertheless, it is now settled that House principles apply to all three sections on interlocutory appellate review despite these differences. The reason for this is essentially the same as for tendency/coincidence evidence, namely that any assessment of evidence that has yet to be given before the finder of fact is necessarily an interim assessment, and that such a rule also promotes restraint in appellate practice at the interlocutory stage by requiring a serious error.356 As a result of these principles, precedents depend very much upon the individual facts of each case and little purpose would be served by a detailed recounting of the facts and decision in each case. One question of principle that has produced “turmoil”,357 although not in the field of interlocutory appeals specifically, is the question whether, in assessing the probative value of Crown evidence, account should be taken of some matters that might subtract from its probative value, as the Court of Appeal for Victoria thinks, or whether, as the position in New South Wales may be summarised, the evidence should be assumed to be reliable and acceptable to the putative jury and its probative

354 355 356

357

R v Glossop [2001] NSWCCA 165 at [25] – [54]. See above, Ch 3 fn 96. R v Glossop [2001] NSWCCA 165 at [53]f; R v Chanthovixay [2004] NSWCCA 285 at [54]; R v SJRC [2007] NSWCCA 142 at [33]f; Sood v The Queen [2007] NSWCCA 214 at [23]; R v Arvidson (2008) 185 A Crim R 428 at 433; R v Cittadini [2009] NSWCCA 81 at [13]; R v DG (2010) 28 VR 127 at 133-8; GBF v The Queen [2010] VSCA 135 at [61]; Singh v The Queen (2011) 33 VR 1 at 6; WK v The Queen (2011) 33 VR 516 at 527; McCartney v The Queen (2012) 38 VR 1 at 11f; R v MK (2012) 223 A Crim R 572 at 583; R v XY (2013) 84 NSWLR 363 at 394, 396, 401; see also at 363, 370, 380; Peterson v The Queen [2014] VSCA 111 at [51]; Bray v The Queen [2014] VSCA 276 at [62]. There were, however, Victorian cases which doubted the proposition stated in the text in relation to s 137: THD v The Queen (2010) 200 A Crim R 106 at 113; Director of Public Prosecutions (Vic) v BB (2010) 29 VR 110 at 120f; Director of Public Prosecutions (Vic) v DJC (2012) 36 VR 33 at 42, 46. The view expressed in New South Wales in R v Rima (2003) 145 A Crim R 27 at 35 and in Director of Public Prosecutions (NSW) v JG (2010) 220 A Crim R 19 at 64f has also obviously not found general approval. BC v The Queen [2015] NSWCCA 327 at [122] – [129] involved an unusual ground relating to unfairness supposedly produced by the need for the doli incapax presumption to be applied on some counts but not others. It may be questioned whether the accused could have appealed on the doli incapax point alone, had it been the subject of dispute rather than the alleged unfairness. S Odgers, Uniform Evidence Law (11th ed, Lawbook Co., Sydney, 2014) p 856, with many further references. For further cases involving this discretion and identification evidence, see above, Ch 3 fn 328.

103

104

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[3.270]

value assessed on that basis. There are good arguments on both sides of the divide, but it is correct to see the Victorian position as preferable.358 There has also been a successful defence appeal in Victoria against a decision on a proposed paragraph in a Crown opening. The basis of the appeal was that it equated to an appeal against admitting the evidence that would need to be called in due course to support the matters to be mentioned in the proposed opening – namely, the accused’s (Tony Mokbel’s) past criminal conduct.359

Illegality and impropriety [3.280] At first sight it might seem clear enough that questions about the admissibility of evidence despite illegality and/or impropriety decided under ss 138 and 139 of the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic) would involve the discretionary admissibility of evidence and be appellable under that heading under the usual restrictions and conditions in both New South Wales and Victoria. That is all correct, but in such cases there is necessarily a prior question (although not one inevitably the subject of an appeal), namely whether the illegality or impropriety existed at all in the first place. That question is not one about the admissibility of evidence. It is important to keep these two questions apart. Thus in R v Ladocki,360 for example, the trial judge held the police operation illegal, but admitted the evidence it revealed in the exercise of his discretion. The accused had no desire to appeal against the first finding, and in New South Wales could not appeal against the second as it was a question of the admissibility of evidence. In R v MM,361 a finding that a probation and parole officer had misconceived her duty in asking the accused about his attitude to sex with children was held erroneous on appeal by the Crown and set aside, and with it fell the holding that the evidence should be excluded. R v Diamond362 is similar to the extent that it was a Crown appeal on the initial issue of illegality, and the appeal was allowed and the legality of the police conduct was affirmed, obviating the need to apply any illegality discretion – although there the question was the ambit of an authorisation under the Law Enforcement (Controlled Operations) Act 1997 (NSW) s 16. In R v Em,363 the trial judge made two errors: first, he wrongly assumed that the accused was under arrest and thus the caution had wrongly not been given; and second, in exercising the discretion, he took into account an irrelevant consideration. In R v Eade364 the Court of Criminal Appeal for New South Wales itself came to grief on the need to distinguish between the holding of illegality or 358

359 360

361 362 363 364

As does S Odgers, Uniform Evidence Law (11th ed, Lawbook Co., Sydney, 2014) p 857f. For a contrary view, see D Heydon, “Is the Weight of Evidence Material to its Admissibility?” (2014) 26 Current Issues in Criminal Justice 219 at 231-8. Mokbel v The Queen [2010] VSCA 354. [2002] NSWCCA 442. For a case involving a Crown appeal in which the court split on this question, see R v McKeough [2003] NSWCCA 385; and for another case which brings out the difference between the two aspects of the question clearly, see R v Gallagher [2015] NSWCCA 228. [2004] NSWCCA 364. [2013] NSWCCA 337. Another comparable case, this time on identification evidence, is R v SA [2011] NSWCCA 60; see also R v McConalogue [2010] NSWCCA 56 at [15]. [2003] NSWCCA 374 at [68] – [97] (further proceedings: Em v The Queen (2007) 232 CLR 67). (2000) 118 A Crim R 449.

[3.280]

Illegality and impropriety

impropriety and the consequent exercise of the exclusionary discretion. The trial judge’s ruling that certain listening warrants were invalid was followed by a ruling that the evidence should, in exercise of the discretion, not be excluded. The accused wished to appeal against this latter finding but not, of course, against the finding that the warrants were invalid. According to Priestley JA, the initial decision that the warrants were invalid “was (probably) an interlocutory judgment or order”,365 presumably on the ground that it was a “decision of a Court which determines the proceedings (or an identifiable or separate part of them)”,366 given that the validity of the warrants is a separate question from anything to do with the charge faced by the accused – but the Crown was not appealing against it. It appears that the jurisdictional point about the accused’s lack of right to appeal against a decision on the admissibility of evidence was overlooked during argument. The jurisdictional point, having been noticed by Priestley JA by the time of judgment, was waived because the judge below also had had no power to make the order he did binding on the trial judge,367 and this was made clear by setting it aside. The judge below had also apparently required the accused, rather than the Crown, to bear the onus on the exercise of the admissibility discretion, and this error also needed correction. In Victoria,368 appeals can be brought on both sub-issues – the existence of the illegality or impropriety and the consequent ruling on the admissibility of the evidence – by both sides; and in New South Wales both sub-issues are available for appeal on the part of the Crown as well, while, if Priestley JA was right, it will regularly be the case that the accused can appeal with leave against an initial finding that there was no irregularity or impropriety, as that constitutes a judgment or order.369 In both States the ruling on evidence must meet the usual hurdle about the Crown’s case being weakened. In New South Wales, it will again be the case that an accused who seeks a stay as a mere cover for an attempt to appeal against the discretionary non-exclusion of evidence may find that leave is refused without going into the merits.370 Another reason for keeping these two sub-issues separate is that different appellate standards will probably apply. In relation to the first sub-issue – the illegality or impropriety of the conduct in question – it is likely, although not inevitable, that, other things being equal, there will be a single right answer to the question based on the standard for illegality, in particular, under the statute or common-law rule in question. Subject only to the need to exercise restraint on interlocutory appeal and to respect the trial judge’s findings of fact to the (variable!) extent that they are usually respected on any appeal, errors of law can therefore be corrected.371 On the other hand, a discretionary decision to 365 366 367 368 369

370

371

R v Eade (2000) 118 A Crim R 449 at 452. See above, Ch 2 fn 44. On this basis the question might be distinguished from those relating to the offence itself dealt with above, [3.160]. Section 130A(1) of the Criminal Procedure Act 1986 (NSW) did not then exist. A case which clearly illustrates the difference referred to in the text is WK v The Queen (2011) 33 VR 516. Such an appeal was entertained in Beckett v The Queen (2014) 315 ALR 295 at 320-32, although the point was not expressly considered in the judgment or in the Crown’s successful appeal: R v Beckett [2015] HCA 38. Gedeon v The Queen [2009] NSWCCA 278 at [24]; see also above, Ch 3 fn 96. Note also the Victorian case of Watkins v Director of Public Prosecutions (Vic) [2015] VSCA 363, where the issue was legitimately raised via an application to set aside a subpoena premised on the assertion of illegality; this avenue might be available for an accused’s appeals in New South Wales. As, eg, in R v MM [2004] NSWCCA 364 at [51].

105

106

3: Decisions Amenable to Appeal

[3.280]

exclude or not to exclude evidence resulting from any such illegality or impropriety, along with any value judgments made along the way about matters listed in s 138, such as the gravity of the contravention, are, of course, to be reviewed on House principles.372 As the Court of Appeal for Victoria said in relation to a trial judge’s findings, which it did not fully endorse, in Director of Public Prosecutions (Vic) v Marijancevic,373 although it dismissed the Crown’s appeal against the outcome:374 As to the alleged error as to a finding of fact, we would only be entitled to substitute our own findings of fact for those of the trial judge if he “mistakes the facts”. That will only be demonstrated if there is no evidence to support such a finding or if the finding was not reasonably open on the evidence. As to the attack upon the value judgment made by his Honour, we would not be justified in substituting our view if his Honour’s view as to the seriousness of the impropriety was reasonably open. Moreover, as the applicant’s reliance on specific errors must be considered in the context of its sole ground of appeal that the discretion was wrongly exercised, the applicant must therefore show that had such error as has been made out, not been made, it would not have been reasonably open to the trial judge to exercise the discretion as he did.

Issues arising after close of evidence375 [3.290] The most obvious case, that of complaints about proposed directions to the jury, can be dealt with under the substantive heading in question: thus, a complaint that a tendency/coincidence direction will or will not be given to the jury is subject to the law applicable to such evidence, just as if the question had arisen long in advance of the trial.376 Needless to say, in granting leave, the advanced stage that the trial has reached will hardly be overlooked, but leave can be granted if it could have been granted on the issue in question before trial. Another example is R v Lane,377 where the Crown appealed successfully against the ruling that lies could not be relied on by it as evidence of guilt and the consequent proposed jury directions. While Simpson J and Howie AJ refrained from finally determining the issue,378 McClellan CJ at CL was right to conclude379 that this was simply an instance of a ruling about the relevance possessed by evidence and, as we have seen, that in turn constitutes a ruling on the admissibility of evidence and is available for appeal by the Crown in New South Wales. A Victorian example of an appeal is Director of Public Prosecutions (Vic) v Newman,380 in which the question was whether a good-character direction 372

373 374 375 376 377 378 379 380

R v Phan [2003] NSWCCA 205 at [13]; R v G [2005] NSWCCA 291 at [66]; Director of Public Prosecutions (Vic) v MD (2010) 29 VR 434 at 440; R v Cooney [2013] NSWCCA 312 at [8]. This state of the law was not specifically referred to in R v Camilleri (2007) 68 NSWLR 720 but is a reasonable deduction from the reasons. (2011) 33 VR 440. Director of Public Prosecutions (Vic) v Marijancevic (2011) 33 VR 440 at 445 (footnotes omitted). This heading refers to the final close of evidence; on applications to reopen the Crown case, see above, p 89. See above, Ch 3 fn 344. (2011) 221 A Crim R 309. R v Lane (2011) 221 A Crim R 309 at 329f. R v Lane (2011) 221 A Crim R 309 at 312. [2015] VSCA 25; see also Director of Public Prosecutions (Vic) v Pace [2015] VSCA 18, where the main issue involved the refusal to allow the Crown to ask a question of a witness. An appeal was also brought against an anticipatory refusal to allow the Crown to address the jury on the point which the question was intended to reveal.

[3.290]

Issues arising after close of evidence

should be given; this also boils down to a question of relevance, but in Victoria it is of course not necessary to demonstrate that the appeal involves a judgment or order. Either side can appeal and, indeed, in Newman it was noticeable that the ruling was so questionable that the Crown appealed against it – successfully – even though the ruling was in its favour. Another Victorian example is the appeal against proposed directions resulting from an alleged error of law brought in R v Zheng.381 In R v Birlut382 a technical problem that became known between verdict/ conviction (by judge alone) and sentencing, relating to an apparent failure to procure the necessary consent by the Crown to a judge-alone trial, caused the trial judge to adjourn proceedings. In that case an interlocutory criminal appeal could be brought against that adjournment and the technical issue then cleared up by the appeal judgment. Nagi v Director of Public Prosecutions (NSW)383 is a rare case of an interlocutory criminal appeal in sentencing proceedings following a plea of guilty (other than a plea of guilty which the accused sought to resile from – a question dealt with earlier). The accused brought his appeal on the ground that his HIV status should be suppressed. Leave to appeal was granted, indicating that the order was an interlocutory one despite the recording of the conviction. However, the appeal was dismissed.

381 382

383

[2013] VSC 559; see also Director of Public Prosecutions (Vic) v Zheng [2013] VSCA 304. (1995) 39 NSWLR 1. On interlocutory appeals after conviction and before sentence, see above, Ch 3 fn 201 in conjunction with Tonari v The Queen (2013) 237 A Crim R 490; see also below, Ch 4 fn 106. [2009] NSWCCA 197 (special leave to appeal refused: Nagi v The Queen [2010] HCATrans 146). Lipton v The Queen [2010] NSWCCA 175; R v Lipton (2011) 82 NSWLR 123; (2012) 224 A Crim R 177 is not a case which arose after the close of evidence, as the accused pleaded guilty, but it did arise in sentencing proceedings. It was mentioned above, Ch 3 fn 99.

107

4

Factors to be Considered in Determining Applications [4.10] Introduction................................................................................................109 [4.20] Eliminating or substantially weakening the Crown’s case...................... 110 [4.50] Other matters – general............................................................................. 117 [4.60] Justice.........................................................................................................119 [4.70] Accused’s bail status...................................................................119 [4.80] Equality....................................................................................... 120 [4.90] Importance of issue.....................................................................121 [4.100] Efficiency................................................................................................. 122 [4.110] Reducing the overall burden on the courts.............................. 122 [4.120] Length of trial........................................................................... 123 [4.130] Examining the question in issue after trial.............................. 124 [4.140] Fact-dependent rulings.............................................................. 125 [4.150] The applicant’s burden............................................................. 126 [4.160] Fragmentation............................................................................126 [4.170] Challenging an existing line of authority.................................126 [4.180] Refusal of leave........................................................................ 127 [4.190] Trial imminent or underway..................................................... 128 [4.200] Doubt......................................................................................... 129 [4.210] Importance of point and points of law.....................................129 [4.220] Point not raised below.............................................................. 130 [4.230] The Victorian Charter............................................................... 131 [4.240] Respect for the trial judge’s authority.................................................... 132 [4.250] Crown’s limited post-conviction appeal rights.......................................134

Introduction [4.10] Given the fact that applications for leave are routinely – indeed, with very infrequent exceptions1 – used to determine the question whether the appeal succeeds on the merits,2 this chapter deals with the factors that must be considered in relation to both issues as far as generalisations can be made about them independently of the specific area of law concerned (which was the task of the previous chapter). Nevertheless, it will occasionally be necessary to draw attention to the difference between an application for leave (including, in Victoria, the trial judge’s certification under the Criminal Procedure Act 2009 s 295(3)) and the decision on appeal once leave has been granted. In relation to appeals against evidentiary rulings, it will be recalled that the elimination or substantial weakening of the Crown case by the exclusion of the evidence is a requirement in both New South Wales and Victoria, although in slightly different contexts as regards, above all, the decision-maker. That 1 2

See above, Ch 2 fn 72. See above, Ch 2 fnn 73, 92.

110

4: Factors to be Considered in Determining Applications

[4.10]

requirement is therefore dealt with first. The remainder of the chapter deals with other factors that may be considered in granting leave and/or considering whether an appeal can be allowed. These are grouped into four themes reflecting the various aims that the system pursues: • justice; • efficiency; • respect for the trial judge’s authority; and • the effect of the Crown’s limited post-conviction appeal rights.

Eliminating or substantially weakening the Crown’s case [4.20] This topic comes up in appeals against evidentiary rulings in both New South Wales and Victoria. In New South Wales only the Crown can appeal against evidentiary rulings which do not raise a question of the correctness of a “judgment or order”, and the limitation to evidentiary rulings that eliminate or substantially weaken the Crown case is jurisdictional.3 In Victoria the system is more complicated and, although it was considered in more detail earlier in Chapter 2,4 a brief outline is again in order. First, in Victoria both sides can appeal; in the case of a defence appeal against the inclusion of evidence, the question is whether, had hypothetically the decision gone the other way and the evidence been excluded, the Crown case would have been eliminated or substantially weakened.5 Second, the question whether the evidentiary ruling did eliminate or substantially weaken (in the case of defence success) or (in the case of Crown success) would have eliminated or substantially weakened the Crown case is to be considered by the trial judge as part of the preliminary certification that precedes the granting or non-granting of leave by the Court of Appeal for Victoria. It is not a jurisdictional point: jurisdiction in the appeals court is established if there is an “interlocutory decision”6 and either the trial judge’s certificate has been granted7 or an appeal against its refusal allowed. Whether the Crown’s case is substantially weakened or eliminated, or would have been had the decision gone against it, must, however, clearly also be considered by the appeals court if there is an appeal against a refusal to certify by the trial judge: s 296. Such an appeal is to be determined by the Court of Appeal’s own assessment of the position.8 While there is no mechanism to review the grant as distinct from the refusal of certification by the trial judge, and thus an incorrect certification will not deprive the appeals court of jurisdiction,9 we have already seen that the Court of Appeal for Victoria, in 3 4 5 6

See above, p 32. See above, [2.60] – [2.90]. See above, p 31. Criminal Procedure Act 2009 (Vic) s 295(1). As we saw in the previous chapter, all conceivable evidentiary rulings will meet this criterion, which was drafted specifically to avoid technical arguments on the jurisdictional point: see above, p 32.

7 8

Singh v The Queen (2011) 33 VR 1 at 8. Criminal Procedure Act 2009 (Vic) s 296(4)(a); Wells v The Queen (No 2) [2010] VSCA 294 at [6]. A case in which it was held that the trial judge had incorrectly granted certification is mentioned below, Ch 4 fn 43, but jurisdiction still existed.

9

[4.20]

Eliminating or substantially weakening the Crown’s case

considering whether to grant leave, may also look, if there are good reasons to do so, at questions that arose on certification, including the question whether the evidence eliminated or substantially weakened the Crown case.10 A final important difference is that leave is required all round in Victoria, but in New South Wales the Crown, the only party that can appeal against an evidentiary ruling, does not require leave to do so: the authors of the system are taken to have been confident that it would use this power only in justified circumstances.11 As a result, the Court of Criminal Appeal for New South Wales has stated that trial judges should raise with counsel before the empanelment of the jury whether the Crown contends that any challenge to the evidence would, if upheld, give it the right to appeal by substantially weakening or eliminating its case. This is to ensure that the point receives proper attention on the part of the trial judge, and the court has indicated that it might draw the conclusion that the evidence does not meet the statutory test if the Crown does not do what it can to ensure that appeals do not occur after the empanelment of the jury.12 The suggestion that such matters should be raised before the jury’s empanelment has now been incorporated into the Bench Book for trial judges issued by the Judicial Commission of New South Wales.13 There is no statutory warrant for the idea that an appeal might be dismissed solely on the ground that action was not taken that might possibly have avoided it, nor is the author aware of any case in this field in which that has been done to date. However, it is possible to think of analogies outside the criminal law where a party can justly be required to suffer the consequences of its own delays and failures, and in this case it would not be the party whose liberty is at stake that would be required to do so. In Victoria the need for leave on all sides, and the greater involvement of the trial judge in the process of obtaining it, will ensure that the need mentioned is often met anyway, but there would certainly be no harm in ensuring that clarity exists on the status of any such points before the trial judge rules on them.14 It is for the appellant to demonstrate that the Crown case has been, or would be, eliminated or substantially weakened by the decision in question.15 All authorities to this effect are from New South Wales; in Victoria, where the defence can also appeal and the point is not jurisdictional, principle clearly requires the appellant, Crown or defence, to demonstrate that this hurdle is surmounted. A complete elimination of the Crown’s case will not be difficult to identify, but determining whether the Crown’s case has been substantially weakened 10 11 12 13

14 15

See above, Ch 2 fn 85. See above, Ch 2 fn 61. R v Lameri [2004] NSWCCA 217 at [52] – [54]; see also R v MR [2013] NSWCCA 236 at [58]. See Judicial Commission of New South Wales, Criminal Trial Courts Bench Book (Update 9, November 2015) at [1-005]: http://www.judcom.nsw.gov.au/publications/benchbks/criminal (accessed 30 November 2015). There it is suggested that the trial judge should decide whether any exclusion of evidence may allow the Crown to appeal. Presumably this involves consultation with the Crown. In relation to trials in the County Court of Victoria, see its Practice Note No 2 of 2010 at [138], [143]. However, no party can appeal without leave in that jurisdiction. For a slight variation on this theme from Victoria, see Director of Public Prosecutions (Vic) v Bracken [2014] VSC 94 at [51]. See also below, Ch 6 fn 17. R v Milakovic [2004] NSWCCA 199 at [31]; R v Shamouil (2006) 66 NSWLR 228 at 233; R v GAC (2007) 178 A Crim R 408 at 417, 422; R v SJRC [2007] NSWCCA 142 at [26]; see also above, Ch 2 fn 93.

111

112

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[4.20]

will require a more complex assessment. In this connexion it is important that – to cut to the chase – the requirement has, as we shall shortly see, not been interpreted as setting a particularly high hurdle. This makes up, first, for the fact that the measuring stick for “substantially weaken” is not, and could not be, precisely determined. Second, the difficulty is not merely that incommensurables cannot be measured, but also that the Crown’s case, in strictness, does not yet exist – it will unfold only at the trial. Given this limitation, the court, in dealing with the questions of what the Crown’s case as a whole is and whether it would be substantially weakened by the exclusion of the disputed evidence, can only do its best with the data in front of it (namely, the Crown brief, any evidence given on the voir dire and any written materials that might be expected to be tendered in evidence at trial),16 using also its own knowledge of, and experience in, criminal trials. [4.30] Comparing the Crown’s case with and without the disputed evidence will involve, in the first instance, an assessment of the strength of the Crown case without the disputed evidence. In New South Wales it has been suggested that the court should assume that all undisputed evidence proposed for tender by the Crown will be accepted for tender,17 but this would be an absurd position if it meant that even the most obviously inadmissible evidence must be included in the assessment. There can be little, if any, room for assessments of credibility that are dependent upon demeanour at this point, but if rank hearsay, for example, were proposed for the Crown, there is no reason why it should be assumed admissible.18 Fortunately, this problem largely solves itself – first, because the Crown, if the appellant, has no incentive to exaggerate the strength of evidence not the subject of the appeal (the greater the proportion of the appealed-against to the other evidence, the more likely the Crown is to be able to show that its case is substantially weakened).19 Second, because the hurdle is neither high nor precisely identifiable, there will be few cases indeed in which any reasons to doubt that the jury might accept the other evidence, as far as it appears admissible, could possibly be decisive. Turning to the language of the statute, the words “prosecution’s case” will generally direct attention to what the Crown hopes to prove and away from any reason to doubt its case.20 This is a further reason why it is not often that any points going to the credibility or reliability of the undisputed evidence could possibly determine the result of the comparison of the appealed-against to the other portions of that case that is mandated by the need to decide whether the case would be substantially weakened by excluding the former. Then there is the strength of the disputed evidence. Again it seems logical that any serious reason to doubt its credibility or reliability should be considered in assessing its strength, to the limited extent that this can be done in advance of trial and by an appeals court. There is no reason to doubt evidence gratuitously or to invent possible arguments against its reliability, but real reasons to doubt it should not be ignored either. As we have seen, a similar but different question under provisions such as s 137 of the Evidence Act 1995 16 17 18

19 20

R v GAC (2007) 178 A Crim R 408 at 422; R v Arvidson (2008) 185 A Crim R 428 at 433. R v GAC (2007) 178 A Crim R 408 at 423; R v Ryan [2013] NSWCCA 316 at [21]. This was referred to, but not expressly approved in R v DG (2010) 28 VR 127 at 132. This point is, in fact, recognised in R v Shamouil (2006) 66 NSWLR 228 at 235. As this book went to press, R v Moore [2015] NSWCCA 316 at [30], [160] was published; in that case, Bathurst CJ at least was willing to assume that the Crown could establish that a relevant conversation had occurred, but the issue raised no question of admissibility. See above, Ch 2 fn 95. Compare R v MR [2013] NSWCCA 236 at [57]. See above, Ch 4 fn 18.

[4.30]

Eliminating or substantially weakening the Crown’s case

(NSW) and the Evidence Act 2008 (Vic) has caused “turmoil”21 and a disagreement between New South Wales and Victorian authority. However, while the question under s 137 involves comparing the probative value and prejudicial effect of the one piece of evidence, here we are comparing the evidence in question to the rest of the case and estimating what proportion of that case it represents.22 In R v XY23 this issue emerged in a slightly unusual form: statements by the accused to the complainant had been recorded and thus had unarguably been made, and to that extent there was no issue of credibility or reliability, but they were susceptible of several interpretations, only one of which was anything like an admission and would clearly have aided the Crown’s case. The other interpretations went at most to character, or were entirely irrelevant as admissions to perhaps disreputable, but possibly legal and almost certainly inadmissible sexual conduct with unspecified other schoolgirls. It was held that, in determining whether its exclusion would substantially weaken the Crown’s case, the evidence should be assessed in accordance with the most favourable interpretation from the Crown’s point of view.24 But this is doubtful: we are not dealing with an application for a no-case ruling, and when evidence is clearly ambiguous (oxymoron intended) in this way, there is no reason to treat it as if it were unambiguous. It would have been preferable if the court had taken into account the possibility that the jury might disregard the evidence for the reasons indicated, but still concluded that the substantial possibility that the jury might treat the evidence as an admission was enough to justify the conclusion that its exclusion would substantially weaken the Crown’s case – as it certainly was. The same would apply to an admission even if there were reasons to doubt whether the words alleged had been actually ever spoken: unless that is an overwhelming inference and the probative value of the admission is virtually destroyed, admissions are such powerful evidence of guilt that the exclusion even of a vague or doubtful one substantially weakens the Crown’s case. As far as the actual measuring stick for “substantially weaken” is concerned, it would be hard to better the illustration given by Giles JA in R v GAC:25 [A] case which is very likely to succeed may still be substantially weakened if evidence of cogency or force is withheld. Although in the assessment of the strength of the Crown case credibility and reliability considerations going to its weight are generally put aside, the strength is not a matter of one witness or document [being] sufficient for proof of a matter. As an abstract illustration, assume that the critical fact in the prosecution’s case is that the cat was black. One 21 22 23 24

25

See above, Ch 3 fn 357. This point seems to have been elided in R v Sood [2007] NSWCCA 214 at [28]. (2013) 84 NSWLR 363. R v XY (2013) 84 NSWLR 363 at 384f, 390-3. Price J’s dissenting view on this point (at 408) ignores the established law that a merely corroborative statement is not ipso facto excluded from appeal – in other words, the “black cat” point about to be mentioned in the text. (2007) 178 A Crim R 408 at 426f. The ellipsis conceals a reference to R v Shamouil (2006) 66 NSWLR 228 insofar as it deals with another point, referred to above at p 104, which is not required for the topic at hand and has not been agreed to in Victoria. The principles enunciated in the quotation are independent of the view taken in Shamouil on the interpretation of s 137 of the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic), and the word “generally” in the second sentence of the quotation ensures that account will be taken in the exceptional case of any reason to suspect that Crown evidence may not be accepted by a jury.

113

114

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[4.30]

witness will say that the cat was black; that evidence is fit to go to the jury … A second witness will also say that the cat was black. In my opinion, it could properly be said that exclusion of the evidence of the second witness would substantially weaken the Crown case; instead of two witnesses saying the cat was black, the Crown will have only one witness saying the cat was black. Declining to enter upon the credibility and reliability of the evidence does not mean ignoring that the credibility or reliability of the evidence of the first witness may be impugned at the trial, or that the evidence of the second witness may support its acceptance or independently be accepted by the jury. … The evidence in the Crown brief plus the tendency evidence, if accepted by the jury, constitutes a strong Crown case. Without the tendency evidence it would still be strong, but that is not the question: the question is whether it would be substantially weakened. The tendency evidence would quite strongly support that the respondent acted as charged. It is not necessary for present purposes to speak of “substantial probative value”, but without it the Crown case would be weakened, and in my view to an extent satisfying the test of substantial weakening.

The only qualification that might be made to this statement is that it is conceivable that, in accordance with the view argued for above, there might be cases in which something more of an open mind might need to be kept about whether evidence, if admissible, would actually be accepted by the jury. And if the court, as appears to be conceded here, can make some assessment of the strength of one witness’s evidence, although its admissibility is undisputed and it is not the subject of an appeal, it can certainly also assess the strength of evidence that is the subject of appeal.

[4.40] In assessing the effect on the Crown’s case of the exclusion of its evidence, it is also legitimate to take into account not merely the reduction in the strength of the Crown’s case itself, but also any strengthening of the defence case which might result – for example, innocent explanations that might be expected to be open to the defence if the Crown is not permitted to lead the evidence in dispute which will weaken or destroy such innocent explanations.26 As a result of all of these rulings, “[e]ven a case which is otherwise likely, even very likely, to succeed, may still be ‘substantially weakened’, if evidence of cogency or force is withheld”,27 and “substantially” means little more than not trivially, “more than ephemerally or more than nominally”.28 As the “black cat” example suggests, the exclusion of merely corroborating evidence may substantially weaken the Crown case, not only if it would otherwise depend upon the alleged victim’s evidence alone,29 but also when there is further real evidence.30 Among other things, a test of this type takes appropriate account of the unpredictability of juries, although this matter has never been mentioned, as far as I know, by any court as a justification for the rule. Nevertheless, the rule 26 27 28 29 30

R v Lameri [2004] NSWCCA 217 at [37]. R v Shamouil (2006) 66 NSWLR 228 at 234; R v SJRC [2007] NSWCCA 142 at [26]. R v SJRC [2007] NSWCCA 142 at [56]. A rare case in which this hurdle was not cleared on one issue was R v G [2005] NSWCCA 291 at [68]. R v NKS [2004] NSWCCA 144 at [11] (admission by accused of sexual activities with complainant). R v Ngatikaura (2006) 161 A Crim R 329 at 339, 341 (tendency evidence corroborating real evidence of drug dealing).

[4.40]

Eliminating or substantially weakening the Crown’s case

also does little to reduce the number of appeals – the Crown’s good judgment must largely be relied on for that, particularly in New South Wales.31 After some experimentation with a higher hurdle,32 the same principles about when the Crown’s case is substantially weakened within the meaning of s 295(3)(a) of the Criminal Procedure Act 2009 have also been followed in Victoria,33 as was the intention of the scheme’s designers.34 It would of course have been possible to argue that the differences between the Victorian and interstate legislation (appeal for both sides, requirement of leave and different decision-maker) mean that the words in question should be read differently35 but, if anything, the additional requirement of leave, for example, would point to the lowering of the hurdle – something which would barely be possible. What if more than one ruling is brought forward as the proposed subject of appeal? In R v Nguyen,36 the Court of Criminal Appeal for New South Wales – without reference to a case five years earlier, R v G,37 in which the items on the Crown’s appeal agenda had been considered separately – held that “the appropriate course is first to look at each individual ruling to determine whether there is error, and then to consider whether the cumulative effect of those rulings is to eliminate or substantially weaken the prosecution’s case”. The only opportunity so far to reconsider this counterintuitive ruling has been passed over.38 The ruling is counterintuitive because it puts the cart before the horse – first we consider the outcome of the appeal, and only then do we consider whether it can be brought at all. This is not how appeals after conviction that require leave are usually handled. It is also the ne plus ultra of the tendency to amalgamate the questions of leave to appeal and outcome of appeal.39 For that reason alone this principle may simply not work in Victoria, where the decision-makers are different, at least if certification is granted rather than refused by the trial judge.40 The procedure suggested also does nothing to deter appeals on unimportant points, which is a principal purpose of imposing a requirement for leave/certification, and the “substantially weakens” hurdle is by no means unduly high and in need of correction of this sort. The view taken in Nguyen would, moreover, allow the Crown to bring omnibus appeals against dozens of minor rulings in the one case. There is, last but not least, nothing in the text of s 5F(3A) of the Criminal Appeal Act 1912 (NSW) to support it, and anyone advocating it would be reduced to citing the boilerplate rule that the 31 32

33 34 35 36

37 38 39 40

See above, p 33. CGL v Director of Public Prosecutions (Vic) (No 2) (2010) 24 VR 482 at 483f (far higher test proposed); ZL v The Queen (2010) 208 A Crim R 325 at 329; Director of Public Prosecutions (Vic) v MD (2010) 29 VR 434 at 437; see also Director of Public Prosecutions (Vic) v Bracken [2014] VSC 94 at [52], where the words “central or critical or fundamental to the Crown case” exceed the current test by some orders of magnitude. CJD v The Queen [2012] VSCA 329 at [16]f. Department of Justice (Victoria), Criminal Procedure Act 2009 – Legislative Guide, p 278. See above, p 48. [2010] NSWCCA 97 at [4]. This was presaged by similar statements in R v McConalogue [2010] NSWCCA 56 at [25], along with the procedure of first considering the merits and then the question of jurisdiction. [2005] NSWCCA 291, esp at [68]. R v Burton (2013) 237 A Crim R 238 at 241f. See above, p 35. Although the point was not specifically considered, there was no sign of anything like it in Wells v The Queen (No 2) [2010] VSCA 294 at [10]. On the other hand, R v Karabegovic [2015] VSC 661 at [7] appears to take a global, undifferentiated approach.

115

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[4.40]

singular includes the plural.41 The case should be overruled on this point and the approach followed in R v G restored. In Victoria, it seems possible to deal with the “substantial weakening” point contingently on the success of the other side to the appeal (an issue that does not arise in New South Wales, as there cannot be a cross-appeal on evidentiary points there). In R v DG,42 DNA connected with the accused was found on two items near the body. The evidence was admitted by the trial judge in relation to the first item, a man’s thong, and excluded in relation to the second, a piece of nylon rope. Each side appealed on the point on which it had lost. The trial judge certified, in each case, that the exclusion of the evidence would substantially weaken the Crown’s case. The Crown had sought certification on the nylon rope only if the admission of the evidence of the DNA on the thong was excluded upon appeal. Clearly, it took the view that if there was no DNA evidence available, its case would be substantially weakened, but which item was admitted was not so important. The Court of Appeal for Victoria disapproved of certification on this basis. It said: The Crown’s position was understandable, as was his Honour’s decision to certify in relation to the nylon rope. As is apparent from the transcript, he took the view that, if the admissibility of the evidence regarding the DNA on the thong was to be considered by this Court, it would be sensible to have the matter of the DNA on the nylon rope before the Court as well. That said, in our view, the formal requirements for certification under s 295(3)(a) were not met in relation to the nylon rope. That evidence had been excluded, but other arguably more potent evidence of DNA had been ruled admissible. It could not be said that the evidence regarding the DNA on the nylon rope, which had been excluded, satisfied the statutory criterion for certification, namely that “if [that evidence were] ruled inadmissible, [it] would eliminate or substantially weaken the prosecution case”. Of course, that criterion might, at a later stage, be met, but only if this Court allowed the appeal in relation to the DNA on the thong. Then, and only then, would there be a statutory basis for certification regarding the nylon rope. His Honour’s decision to certify in relation to the nylon rope was, none the less, understandable.43

It is possible to imagine other circumstances in which it is the accused who might wish to appeal contingently – for example, if the Crown wins an appeal on the admission of a certain item of evidence, that might put a further item of evidence in a new light, which, the accused may wish to argue, is more prejudicial than probative. At any rate, the Court of Appeal for Victoria did not suggest what procedure could be adopted in circumstances where one party wishes to appeal only if the other wins on another point. Some way to do this should be found, as this method would avoid multiple applications for leave to appeal and enable the whole point to be dealt with on an integrated basis rather than an unrealistic partial one. One possible alternative to the procedure of which the court disapproved is for the trial judge to refuse leave on the point to the party that wishes to appeal contingently; that party could then lodge an appeal against the refusal under s 296, which could be simply abandoned if the 41

Interpretation Act 1987 (NSW) s 8(b).

42 43

(2010) 28 VR 127. R v DG (2010) 28 VR 127 at 129.

[4.50]

Other matters – general

result on the other appeal so permits. Another possibility would be simply to use the power to extend the time for seeking leave to appeal,44 if it becomes necessary to do so.

Other matters – general [4.50] Once it is established that the decision in question is of a type which is amenable to appeal, none of the other matters to be considered in granting leave to appeal, certifying the appeal as a fit case for the consideration of the appeals court, or considering the appeal itself, is jurisdictional45 – but clearly some or even one may be decisive in the particular case. The remainder of this chapter will consider those matters under the headings previously identified: • justice; • efficiency; • respect for the trial judge’s authority; and • the effect of the Crown’s limited post-conviction appeal rights. In both New South Wales and Victoria some attempt has been made to give structure to this decision-making process. In New South Wales the structure is simply the traditional mechanism of requiring leave to appeal (with the rarer alternative of a certificate of the trial judge),46 whereas in Victoria a much more elaborate scheme has been worked out involving both a division of labour between the trial judge and the Court of Appeal for Victoria, and a listing of the considerations that must be taken into account by them in discharging their respective roles.47 In both cases the attempt has achieved very modest success: in New South Wales, the hearing of the application for leave is regularly treated as the appeal proper,48 and at any rate only the accused requires leave to appeal, not the Crown; in Victoria, even without the complication of an appeal under s 296 of the Criminal Procedure Act 2009 against a refusal by the trial judge to certify the case as a fit one for appeal, the appeals court often, and with statutory authorisation, looks at matters which can also engage the attention of the trial judge,49 and case law has both supplemented the statutory list of criteria and also, as it usually does, given content and meaning to the items already on that list. Therefore, in what follows it is possible to treat the considerations that are in play in the subject-by-subject fashion already mentioned rather than, for example, attempting to classify them by the decision-maker or the stage of the decision-making process to which they appertain. Nevertheless, it will be possible to make some remarks, in individual cases, on that topic. It remains, under this general heading, to say something about the purpose of requiring interlocutory criminal appeals to go through such filters. In part this was dealt with in Chapter 1 under the heading “Rationale of the legislation”, but it is hard to avoid quoting the extremely thoughtful, 44

Criminal Procedure Act 2009 (Vic) s 313(1)(b) and (2).

45 46 47 48 49

See above, Ch 2 fn 57 (New South Wales); Ch 4 fn 6 (Victoria). See above, p 33. See above, [2.80]. See above, Ch 2 fn 73. See above, p 35 (reverse also applies – trial judges also to consider merits, etc of appeal); see also Ch 2 fn 85.

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[4.50]

comprehensive and concise analysis of this question from the judiciary’s point of view provided in R v Leonard50 by the Court of Appeal for New Zealand: The existence of the leave requirement recognises that there are competing interests to be considered in pre-trial appeals in criminal matters. Policy reasons in favour of pre-trial appeals include: (a) If an accused is denied access to a pre-trial appeal, he or she must wait until the conclusion of a trial and a post-trial appeal (if convicted) for review of any error. The entire trial must then be repeated and both the accused and the legal system have expended considerable time and cost for naught. (b) Delay occasioned by postponing relief until after the trial may impact negatively on the memories of witnesses at any retrial. Delay may also limit the ability of either side to put their case. (c) If any error leads to a successful post-trial appeal, the parties (and in particular the Crown) may have an unwarranted opportunity to improve their case at any retrial. (d) The Crown has limited post-trial appeal rights and those that exist are used very sparingly. The Crown should have the opportunity to test on appeal any rulings which will significantly affect its case at trial. (e) While an accused can appeal post-trial if convicted, the test is more onerous. Policy reasons against appeals in pre-trial matters include: (a) Hearing an appeal after the trial is ended permits the Court to address all appeal issues simultaneously and in the context of the completed trial, thus preventing the wasted time and confusing fragmentation that may occur if several separate appeals arise out of a single trial. It also allows the Court to get a better gauge of the impact of any error, which is especially important in terms of the application of the proviso.51 (b) Often the trial Judge is in the best position to determine the issue and primacy ought to be given to his or her decision. (c) Declining to hear a pre-trial appeal ensures that the appeal is truly required and it is not later rendered moot by an acquittal or by a subsequent ruling made at trial. (d) Limiting pre-trial appeals limits delay in the trial process. Not only does the accused have the right to be tried within a reasonable time, there is also a societal interest in dealing quickly with criminal charges, leading some commentators to argue that the effects of pre-trial appeals are especially pernicious in criminal proceedings. (e) An expeditious trial lessens the attendant strain on complainants and witnesses.

50 51

[2008] 2 NZLR 218 at 219f – omitting mentions of legislative sections specific to the jurisdiction and other references. I hesitate about this point, however, for the reasons given above, p 14.

[4.70]

Justice

Justice [4.60] According to the scheme in force in Victoria, the “interests of justice” form the overriding criterion for the grant of leave, and the same phrase appears from time to time in the case law in New South Wales.52 However, what the Victorian statute understands under that heading is illustrated by the list of more specific criteria that follow and amplify the phrase (s 297(1)(a) – (c)), all of which are concerned mostly with efficiency. This in turn exposes a well-known tension between what might be called justice-as-fairness, an abstract standard or ideal, and doing justice, an activity which the courts engage in with reference to, but not solely by the light of, the abstract standard or ideal. The heading to this section of this work refers to the first of those concepts; it is clearly largely the second of these that the statute means by the “interests of justice”. In a system of interlocutory appeals, whether in New South Wales, Victoria or elsewhere, it should occasion no surprise that keeping the processes of justice moving is what is mostly to be understood by “the interests of justice”. Therefore, this section, which focuses on the other meaning of “justice”, is short. The accused’s opportunity to receive justice in its fullest sense will occur at the trial and, if it comes to that, at sentencing. But this is, nevertheless, an important section. The case law in both New South Wales and Victoria shows that justice-as-fairness is, as is also only to be expected, often relevant in deciding whether to hear an interlocutory appeal or to allow it.

Accused’s bail status [4.70] One consideration that may be relevant in certain cases is whether the accused is on bail. If so, it might be defensible to permit an appeal to be taken even if it must necessarily occupy some time. This was the case in R v Karabegovic,53 in which a question had arisen about the correct interpretation of a new statutory offence connected with terrorism, which could not be solved either by reference to the House discretion or to any longstanding body of law and which would therefore necessarily occupy some little time. The Crown wished to appeal against the trial judge’s ruling, and no doubt if the accused had not been on bail, under these circumstances the decision to grant leave to it would have been a more difficult one. The accused, if on remand, might be able to make a bail application on any grant of leave – and bail might also come into play in New South Wales, where the Crown would not require leave for such an appeal.54 On the other hand, the claims of justice may also be urged against the accused. If he breaches bail, which is a serious offence in itself and a breach of a solemn undertaking, this will weigh very heavily against the grant of leave unless perhaps there is a “manifest defect in the proceedings”.55 Another situation in which this consideration is relevant is when there is a prospect that, without leave, the accused will be sentenced to prison on the basis of a mistaken 52

For example, Agius v The Queen (2011) 80 NSWLR 486 at 489; R v Dinh (2000) 120 A Crim R 42 at 48. The phrase may also be found in other statutes, such as s 30AJ(4) of the Federal Court of Australia Act 1976 (Cth), where it is the criterion for allowing an appeal; see also above, Ch 2 fn 9.

53

[2013] VSC 576 at [11] (appeal dismissed: Director of Public Prosecutions (Cth) v Karabegovic (2013) 282 FLR 383; special leave to appeal refused: Director of Public Prosecutions (Cth) v Karabegovic [2014] HCATrans 179). Under these precise circumstances, a question would also arise whether the Crown could appeal given the possible lack of a “judgment or order”. On this, see above, [3.160]. AL v The Queen [2014] VSCA 81 at [11].

54 55

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[4.70]

ruling and then have to await an appeal against conviction to ventilate the point – this is such a common situation, however, that it must be “plain”56 that the ruling in question is wrong before such a prospect can be of much assistance. It is also possible that one accused may wish to appeal, and other accuseds who are not on bail would suffer further delay as a result – this counts against granting leave.57 Nevertheless, if there is a prospect of an appeal by an accused who is on bail, which may even further delay the trial of a co-accused on remand, that will count in favour of at least considering whether the co-accused on remand should have a separate trial.58 If the accused is in custody anyway for another offence, that may tip the scales in favour of allowing any errors or unfairness in the trial to be determined after conviction when the full context can be appreciated. That was so in R v Forbes,59 although in that case there were excellent discretionary reasons of efficiency for refusing leave to the accused, most obviously the fact that the trial was at an advanced stage. On the other hand, if the trial has not yet commenced, extra time might be available precisely because the accused is not going anywhere soon.

Equality [4.80] Another situation which raises the question of justice-as-fairness, sub-heading “Equality”, occurs when one side is appealing and the other side also wishes to agitate the same issue from a different point of view, or where evidentiary rulings are separate but linked. A case of the first type was R v F.60 In that case the Crown had won on some points before the trial judge and the accused on others as far as the joinder or severance of counts on the indictment was concerned. The Court of Criminal Appeal for New South Wales, through Wood CJ at CL, said: While the Crown appeal lies of right, I am satisfied having regard to the history of the proceedings, and in particular the way in which the Crown has changed its position, that it would be unfair to the respondent if he were not given leave to appeal, so as to argue the application which he had made, and which did not find favour with her Honour.61

And as we have just seen,62 there was a case of the second type in Victoria, where the Crown lodged what amounted to a contingent application for leave to appeal depending on the outcome of the accused’s appeal, with the aim of preserving at least one item of DNA evidence in its case. The Court of Appeal for Victoria disapproved of the procedure adopted, but in mild terms which suggest that it did not disapprove of the thought behind it.

56 57 58 59 60 61 62

MA v The Queen (2011) 31 VR 203 at 207; see also R v Waterhouse (1992) 62 A Crim R 59 at 64. R v Mokbel [2010] VSC 349 at [8] (5). If leave is granted, the matter should be dealt with expeditiously: JSM v The Queen [2010] NSWCCA 255 at [1]. R v Zheng [1997] NSWSC 387. R v Forbes [2004] NSWCCA 55 at [21] – [23], [27]f. (2002) 129 A Crim R 126. R v F (2002) 129 A Crim R 126 at 136; R v SK [2011] NSWCCA 292 may also be such a case, but the point was not adverted to. See above, p 116.

[4.90]

Justice

Importance of issue [4.90] Finally, there is the question of the importance of the issue to be raised.63 This is something that hardly needs to be said to anyone familiar with applications for leave to appeal. It is also, under s 295(3)(b) of the Criminal Procedure Act 2009, a question expressly remitted to the trial judge in Victoria64 in deciding whether a certificate should be granted on a nonevidentiary question. In both New South Wales and Victoria it is obviously related to whether, on an evidentiary appeal, the Crown’s case would be substantially weakened or eliminated. This issue will be dealt with also under the following heading, “Efficiency”, as it may not be an efficient use of time and resources to deal with a minor point on an interlocutory appeal, but the question is also one of fairness. Importance actually comes in two varieties: importance to the trial (which is what s 295(3)(b) refers to) and general importance to the broader legal system. The claims of justice-as-fairness will most obviously involve importance in the trial rather than to the world at large. This is because it is not fair to the accused to make him stand trial and expend resources and energy of all types – not to mention give away his defence – if the point is so important to the trial that, if it is got seriously wrong, any conviction is almost inevitably going to be quashed. It may also be unfair to the Crown, and through it the community which the system of criminal justice serves, to make it run the risk of an acquittal against which no appeal can be brought because a point that is important in the trial is wrongly decided against it. This applies most obviously in cases such as the granting of a stay, where the prosecution is ended by a ruling against the Crown and there is no other means of appeal.65 Clearly, importance in the trial will, nevertheless, often be connected to the general importance of the point at issue. On the other hand, the exercise of a well-established discretion in a particular case may have no importance for cases other than that one, where it is crucial. Such a case raises no items of general importance to the legal system, but its crucial importance to the trial of the particular accused means that there is still a justice-as-fairness angle to any application to appeal against a ruling on the point. In Hamed v The Queen,66 a further interlocutory appeal was successfully taken by the accused to the Supreme Court of New Zealand, although an interlocutory appeal in the case on the point in question had already been decided by the Court of Appeal for New Zealand. The Supreme Court of New Zealand stated, in a paragraph that is rich with pointers about when leave should be granted: Despite the high threshold and the proper reluctance of the court to grant leave in cases where a [pre-trial ruling on the admissibility of evidence] may be able to be revisited at trial and will be able to be appealed post-conviction by the accused, we think that this case is one in which the jurisdiction to grant leave should properly 63

64 65 66

Director of Public Prosecutions (Cth) v Karabegovic (2013) 282 FLR 383 at 385 (special leave to appeal refused: Director of Public Prosecutions (Cth) v Karabegovic [2014] HCATrans 179). This does not, however, preclude the Court of Appeal for Victoria from considering it also: see above, Ch 2 fn 85. R v FJL [2014] VSCA 57 at [16]. [2011] 3 NZLR 725. This would, obviously, be the equivalent of a grant of special leave to appeal by the High Court of Australia in an interlocutory criminal matter already dealt with by the intermediate appeals court.

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[4.90]

be exercised. We consider it is necessary in the interests of justice for the Court to consider the appeal ahead of trial. The principal reason for that view is the conclusion of the Court of Appeal, overturning on the point the decision of the High Court, that the surveillance evidence was obtained lawfully under warrants issued under s 198 of the Summary Proceedings Act [1957 (NZ)]. The conclusion was reached as a matter of statutory interpretation and is therefore binding on the trial judge so that, if it stands, there is no opportunity for the trial judge to re-visit the question of admissibility, such as might otherwise be done under s 30 of the Evidence Act [2006 (NZ)], should the provisional conclusion that exclusion would be disproportionate require reconsideration on the evidence actually adduced and in the context of the trial. The Court of Appeal’s interpretation of s 198 also concerns an important issue in the investigation of suspected crime which should be resolved promptly.67

Another useful example involving both general importance and importance in the trial comes from the Australian Capital Territory. In Kola v The Queen, 68 the accused sought leave to appeal and it was: common ground that the resolution of the challenge to the validity of the warrant may be decisive of the trial and that it is in the public interest for the matter to be resolved before the trial commences. Second, the legal issues that arise for resolution on the proposed appeal are serious and of potential importance to other cases. … [T]he issues extend beyond mere matters of form and relate to the nature of the responsibility that rests upon magistrates in considering applications for search warrants.69

In deciding whether to clarify a point at the interlocutory stage it is also legitimate, in cases involving vulnerable witnesses, to take into account the particular need to avoid the possibility of their having to give evidence a second time, after a putative successful post-conviction appeal.70

Efficiency [4.100] As mentioned earlier in this chapter, efficiency is the most prominent of the virtues emphasised by the system for interlocutory criminal appeals, and as we also discovered efficiency may work hand in hand with justice-asfairness, as an aspect of the broader project of doing justice, as well as competing with it. There is therefore no reason to conceal or be embarrassed by the prominent role that efficiency has in this system.

Reducing the overall burden on the courts [4.110] The most obvious aspect of efficiency is whether leave to appeal will reduce the overall burden of the prosecution in question on the courts. In Victoria the Criminal Procedure Act 2009 expressly mentions this consideration under various guises: s 297(1)(b)(i) – (iv). For example, if tendency/coincidence evidence is admitted by the trial judge in circumstances which seem to raise doubt about the correctness of the ruling, it may be possible to obviate an appeal after conviction with good prospects of success by dealing with the 67 68 69 70

Hamed v The Queen [2011] 3 NZLR 725 at 730f; decision on appeal: Hamed v The Queen [2012] 2 NZLR 305. [2006] ACTCA 23. Kola v The Queen [2006] ACTCA 23 at [5]. The appeal was, however, dismissed: Kola v The Queen (2007) 1 ACTLR 164; 176 A Crim R 102. REE v The Queen (2010) 203 A Crim R 11 at 12f.

[4.120]

Efficiency

question in the interlocutory system and thus save the time and expense of both an appeal after conviction and a retrial. An interlocutory appeal may also avert a misinterpretation of a statute which would taint the jury directions or other pretrial decisions.71 Even if it turns out that the trial judge’s interpretation of the statute is correct, there may be little loss in overall efficiency in deciding this before, rather than after, the trial. In such a case we should at least have an answer to a question of general importance, whereas in cases of tendency/ coincidence evidence there is – usually – no general significance to the question and we must always balance the possibility of an acquittal, which will render otiose any appeal by the defence against the admission of that evidence. On the other hand, if a ruling is “plainly correct”72 there will be less to be said for granting leave. Possible examples are legion and it is not necessary to labour the point.73

Length of trial [4.120] Allied to this is the question of the anticipated length of the trial, a factor that will bear on the proportion of time taken up by the appeal as against the effort that might be wasted if the point is saved up for a possible post-conviction appeal. In Stannard v The Queen74 the accused was attempting to withdraw a plea of guilty, and thus the effort that would have been saved by postponing the appeal until after the interlocutory stage would amount only to that involved in sentencing procedures based on the plea of guilty that he wished to withdraw. The Court of Appeal for Victoria stated that the trial judge, under those circumstances, should not even have granted a certificate for appeal even though his Honour did have some doubt about the correctness of his decision – although the court itself slightly undermined this view by going on, in refusing leave, to consider the merits of the appeal and rejecting it rather than simply refusing leave outright. Bongiorno and Hansen JJA in the Court of Appeal for Victoria considered a trial of five days short enough to mention its length as a significant factor in refusing leave to appeal in Finn v The Queen.75 Even eight to ten days’ duration was considered to be short enough that the trial’s length was a “weighty consideration” against granting leave in Singh v The Queen.76 It must be recalled that a three-judge appeals Bench triples the investment of judicial man-hours in the clock time taken up in hearing any appeal compared to conducting a trial before only a single judge. Nevertheless, an eight- to ten-day trial will certainly not always be a bad case for an interlocutory appeal. Hamed v The Queen77 was a case hardly at the other extreme – the trial was expected to last 12 weeks – but one in which the Supreme Court of New Zealand concluded that its length, along with the number of accused (18) was part of the 71 72 73

74 75 76 77

As in R v El Hassan (2001) 126 A Crim R 477 at 478 (but see above, Ch 3 fn 234 for a query whether this appeal was competent at all); R v King [2013] ACTCA 23 at [23] – [28]. Pace v The Queen [2014] VSCA 317 at [4]. See, eg, Kola v The Queen [2006] ACTCA 23 at [5]; R v Karabegovic [2013] VSC 576 at [4]; Director of Public Prosecutions (Cth) v JM (2013) 250 CLR 135 at 154; see also R v DG (2010) 28 VR 127 at 132; Director of Public Prosecutions (Vic) v Pace [2015] VSCA 18 at [26]. (2010) 28 VR 84 at 91. [2011] VSCA 68 at [9]f; see also MA v The Queen (2011) 31 VR 203 at 206; Dale v The Queen (2012) 229 A Crim R 480 at 508 fn 109. (2011) 33 VR 1 at 9f. [2011] 3 NZLR 725 at 731.

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[4.120]

reason why a second interlocutory appeal was justified. Another factor to be taken into account is the length of time to be occupied by any proposed appeal, including the preparatory work required of the appeals court such as reading the relevant materials.78 On the procedural front, the Court of Appeal for Victoria has pointed out that there should not be multiple interlocutory appeals, and that all issues on which appeals may be taken should first be raised with the trial judge. In later cases, the court warned, leave might be refused if this injunction were ignored.79

Examining the question in issue after trial [4.130] Another related point that is sometimes made is that that there may be an advantage in examining the question in issue after the trial.80 Tellingly, however, the author has found only a few cases in which this consideration tipped the scales. It is certainly true that in many situations there will be greater clarity about the evidence and the course of the trial after it is over, but the interlocutory appeals system accommodates this in various ways – by means of the House principles, for example, and by generally making allowances for this factor in assessing the merits. This is therefore not usually a reason for refusing leave, as distinct from a consideration to be taken into account once leave is granted. It is, nevertheless, possible than an interlocutory appeal may end up dealing with a question of detail on a factual foundation which is very incomplete or otherwise not likely to be the one that actually emerges at trial – if, for example, there are Crown witnesses who have not been proofed, or the defence strategy is not clear, and accordingly the questions that will be asked of witnesses, let alone the answers they may give, are not known. Very occasionally so much depends on such factors that it is not advisable to determine an issue before the evidence is actually adduced. In R v Folli,81 one of the very few examples available in which such considerations were part of the justification for refusing leave, the question was whether collusion between the complainants might be suggested at trial, and much would depend on what would develop from that (if it occurred) as far as the application for separate trials was concerned. Too much, however, could easily be made of the supposed 78

79

80

81

R v Mokbel [2010] VSC 349 at [8] (5); SLS v The Queen [2014] VSCA 31 at [278], where an appeal was dealt with despite the “very great amount of the Court’s time” involved, which would have been “unsustainable in all but the rarest of cases”; see also below, Ch 6 fn 41. Wells v The Queen (No 2) [2010] VSCA 294 at [4]; see also Director of Public Prosecutions (Vic) v BCR [2010] VSCA 229 at [40], [49]f; Finn v The Queen [2011] VSCA 68 at [11]; KJM v The Queen [2011] VSCA 151 at [7]. Note that at least one attempt has been made to flout this warning and it was not specifically reiterated, although the court’s impatience was clear enough: Pace v The Queen [2014] VSCA 317; Director of Public Prosecutions (Vic) v Pace [2015] VSCA 18 at [1]; note also the exceptional possibility of a second interlocutory appeal suggested in RM v The Queen (2012) 221 A Crim R 465 at 488 (Hidden J agreeing at 489). There were also two interlocutory appeals by the Crown in Director of Public Prosecutions (Vic) v Brownlie [2015] VSCA 147; Director of Public Prosecutions (Vic) v Brownlie (No 2) [2015] VSCA 267, but for good reason. Agius v The Queen (2011) 80 NSWLR 486 at 489; DAO v The Queen (2011) 81 NSWLR 568 at 574f; R v Waterhouse (1992) 62 A Crim R 59 at 64f; Director of Public Prosecutions (Vic) v Zheng [2013] VSCA 304 at [46]. [2000] NSWCCA 460 at [10]; for another example, see NAR v PPC1 (2013) 224 A Crim R 535 at 547; see also R v GAC (2007) 178 A Crim R 408 at 422. This point came up more often before the adoption of legislation such as the Criminal Procedure Act 1986 (NSW) s 130A and the Criminal Procedure Act 2009 (Vic) Pt 5.5 Div 4: R v Nassif [2004] NSWCCA 433 at [37]f; R v ELD [2004] NSWCCA 219 at [28]; R v Edelsten (1989) 18 NSWLR 213 at 215f.

[4.140]

Efficiency

benefit of leaving things until after the trial: not only can allowances usually be made as necessary in considering an appeal, it is also the case that, as we have seen, one of the advantages of the interlocutory criminal appeal is, indeed, that it isolates the legal issue before any conviction occurs and ensures that any conviction does not colour, or is even thought to colour, the consideration of the legal issue.82 This in turn contributes to ensuring that a fair trial is had, justice seen to be done and a verdict rendered according to law. In BUSB v The Queen83 Spigelman CJ made the following interesting point in relation to an application to appeal against the manner in which a witness had been permitted to give evidence: In the normal course, this Court would not grant leave under s 5F on the basis of an assertion that procedural orders about the manner in which evidence is to be given will undermine the fairness of the trial. That is a matter best dealt with in retrospect after the trial. However, there has already been a trial at which the relevant evidence was given. This application relates to the procedure being repeated in the retrial. The Court can assess the relevant facts on the basis of what happened at the first trial.

Fact-dependent rulings [4.140] A very fact-dependent ruling may be a less suitable case for interlocutory criminal appeal.84 But again it must be recalled that such decisions will often be reviewed only on House principles – for example, the admissibility of tendency/coincidence evidence.85 Furthermore, a factdependent ruling may need to deal with hypothetical states of affairs given that the evidence may differ at trial from what appears likely to be the case beforehand.86 But the cases under that, as under other headings show that it is very far from being the case that a fact-dependent ruling is unsuitable for interlocutory criminal appeal. Perhaps the point is best expressed in the other way: if a ruling is not fact-dependent, but involves, for example, the correct interpretation of a statute, that will count in favour of allowing an appeal to proceed. As Gleeson CJ stated in R v Matovski,87 admittedly before the appeal on evidentiary points had been created, in dismissing an application for leave to appeal: I would not suggest that there may not be cases in which substantial factual error could form the basis of a successful application for leave to appeal under s 5F. I do not intend to suggest that the only cases in which this Court would give leave to appeal would be cases where the applicant can point to some error of law or mistake in principle concerning the way in which a discretion of the kind involved in an application such as that presently in question should be exercised. No doubt there may always be cases where the interests of justice would require the granting of leave to appeal even in the absence of some specific error of the kind to which 82 83 84

85

86 87

See above, pp 14, 117–118. (2011) 80 NSWLR 170 at 172. R v Skase [1995] 2 Qd R 297 at 301; Leonard v The Queen [2007] NSWCCA 197 at [13]f (application premature given that factual basis of stay application not yet considered by trial judge). As in KJM v The Queen [2011] VSCA 151 at [47]. Another example is the more-prejudicialthan-probative discretion: MA v The Queen (2011) 31 VR 203 at 207; see also SLS v The Queen [2014] VSCA 31 at [278]. Tuite v The Queen (No 2) [2015] VSCA 180 at [40] is an extreme case that illustrates the point well. (1989) 15 NSWLR 720 at 723.

125

126

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[4.140]

reference has already been made. Accordingly, it is not appropriate to circumscribe the discretion which this Court has in deciding whether to grant or withhold leave to appeal. Equally, however, it is necessary to attend to the statutory requirement that leave be granted where an appeal against an interlocutory judgment is contemplated by a party to proceedings other than [the Crown]. The present case is not in my view one in which leave to appeal should be granted. I can see no error of law or discretionary principle in the reasons for judgment of the learned trial Judge. He took a particular view of the facts after hearing detailed evidence and argument and it seems to be a view of the facts which was at least open to him. The case is not one in which in my view the interests of justice require intervention by this Court at this stage.

The applicant’s burden [4.150] At this point it is worth recalling that “it is the applicant who bears throughout the burden of establishing on the probabilities a case that is appropriate to attract a grant of leave to appeal”.88 In the first place, this may mean that, if it is the applicant who has, by failing to prepare or other forms of disorganisation, largely caused the situation which has in turn produced the point sought to be taken on appeal, and that applicant has no good explanation for causing the problem, leave could be defensibly refused or even – in the case of the Crown in New South Wales, which does not need leave – the appeal dismissed solely on that basis.89 If the applicant is the accused, however, it may not be fair to punish him for the sins of his advisers, if the responsibility clearly lies with them.

Fragmentation [4.160] Second, interlocutory criminal appeals are – as we have seen – a blessing, but not by any means an unmixed one. In almost every case there will be some degree to which the appeal will delay proceedings or cause fragmentation of the criminal prosecution in question. The extent of this will vary, needless to say, among cases. As the Full Court of the Federal Court of Australia said in pre-interlocutory-appeal days, “[w]here the facts are simple and few and the point is one of law, a claim may, as an exception to the fragmentation principle, be entertained on an application for judicial review, even if it could affect the admissibility of evidence”.90 Clearly, the interlocutory appeals system that has since been created only underlines the utility of doing so in suitable cases. The danger of excessive delay is also obviously much greater if the trial is underway, for example. It is for the applicant to meet the fragmentation objection in the individual case.91

Challenging an existing line of authority [4.170] While a trial judge’s ruling on a point of “pure” law may constitute a proper case for the grant of leave to appeal, it has been said by the Court of 88 89 90 91

See above, Ch 2 fn 93. R v Harker [2004] NSWCCA 427 at [62]; R v Lameri [2004] NSWCCA 217 at [53]. Flanagan v Commissioner of Australian Federal Police (1996) 60 FCR 149 at 188. The anti-fragmentation principle is mentioned in numerous cases, some of which go on to show that it is not the last word because leave is granted in them: see, eg, R v NKS [2004] NSWCCA 144 at [16] – [18]; R v Natoli [2005] NSWCCA 292 at [7] (which may over-emphasise the point); R v Sarlija (2006) 167 A Crim R 101 at 105; Einfeld v The Queen (2008) 71 NSWLR 31 at 37; R v DG (2010) 28 VR 127 at 132; MA v The Queen (2011) 31 VR 203 at 206; Singh v The Queen (2011) 33 VR 1 at 9f; Dale v The Queen (2012) 229 A Crim R 480 at 508 fn 109; Director of Public Prosecutions (Vic) v Pace [2015] VSCA 18 at [24]. For cases in the High Court of Australia making the same point, see above, [2.120].

[4.180]

Efficiency

Appeal for Victoria that “an appeal against an interlocutory decision would only be an appropriate vehicle for challenging an existing line of authority in exceptional circumstances”.92 By this the court meant a decision of its own – which it does not reverse unless it is plainly wrong. Cases in which leave could nevertheless sensibly be granted could be imagined – for example, if a decision of the High Court of Australia cast great doubt on an existing line of authority, or it had granted special leave to appeal with some type of indication that the line of authority in question might not withstand its scrutiny.93 But in most cases such a challenge would require the court at least to consider convening a five-member Bench and would obviously also involve argument about the “plainly wrong” standard. On the question of granting leave, the Criminal Procedure Act 2009 (Vic) also concentrates very squarely on the issue of the need for an interlocutory appeal in the context of the trial that is underway, as distinct from more generally for the benefit of the legal system as a whole. On the other hand, in at least three cases – DAO v The Queen,94 DSJ v The Queen95 and R v XY96 – the Court of Criminal Appeal for New South Wales has convened a five-member Bench to solve some disputed point on an interlocutory appeal. In the last-mentioned case it was faced with a declaration by the Victorian Court of Appeal that one of its (the New South Wales) decisions was plainly wrong – so such a course clearly cannot be ruled out. Whether to do this is clearly a question of judgment, not of a rule, and in Victoria the need for a disputed point to be cleared up could easily be fitted, if it were desired to do so, under the general rubric in s 297(1)(c).

Refusal of leave [4.180] Another factor that will count against the grant of leave in the usual run of cases is that leave has previously been refused in the same case on the same or similar points by the appeals court.97 This point is too obvious to require elucidation. A little more thought needs to be given to the trial judge’s own refusal of leave. Ordinary appeal principles will, of course, often demand that the trial judge’s views on some point will demand considerable respect – for example, in the assessment of witnesses’ credibility or the exercise of a discretion (a point to be elaborated upon in the next section).98 But what of the trial judge’s decision – if there is one – to refuse to certify the case as one fit for appeal? In R v Plummer99 the Court of Criminal Appeal for New South Wales appeared to attach significance, in refusing leave, to the fact that the judge had heard and rejected an application for a certificate. Since then, however, the 92 93 94 95 96

97 98

99

Director of Public Prosecutions (Vic) v BCR [2010] VSCA 229 at [44]; see also Hinton v The Queen [2015] VSCA 40 at [7]f. The latter case was postulated in SC v The Queen [2010] VSCA 271. (2011) 81 NSWLR 568. (2012) 84 NSWLR 758. (2013) 84 NSWLR 363. A five-member Bench also sat in BUSB v The Queen (2011) 80 NSWLR 170 and in X7 v The Queen (2014) 292 FLR 57; see also Beckett v The Queen (2014) 315 ALR 295 at 318 (appeal allowed: R v Beckett [2015] HCA 38). Petroulias v The Queen [2006] NSWCCA 415; DSJ v The Queen (2014) 100 ACSR 70 at 76. A point which receives especial emphasis in R v DG (2010) 28 VR 127 at 132; see also R v Cox [1999] NSWCCA 229 at [8]f; R v Leonard [2008] 2 NZLR 218 at 222; Director of Public Prosecutions (Vic) v Brownlie [2015] VSCA 267 at [59] where the trial judge’s misapprehension was about the effect of the evidence and a Crown appeal was therefore allowed. (Unreported, NSW Court of Criminal Appeal, 12 July 1989).

127

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[4.180]

court has stated that trial judges should only exceptionally grant certificates,100 and accordingly little significance could be attached to this circumstance by itself nowadays, absent exceptional circumstances. In Victoria there is an appeal against the refusal of certification which necessarily assumes that the trial judge’s assessment is challengeable. (The next section will be devoted to considering the countervailing need to respect the trial judge’s authority.)

Trial imminent or underway [4.190] Often a major objection to granting leave to appeal will be that the trial is imminent or even underway. “The undesirability of disruption of criminal proceedings does not apply with full force in the case of a ‘pre-trial’ ruling”,101 but if the trial is imminent, matters such as disruption to the list102 and to witnesses must be considered, as well as whether there was some good reason that prevented the raising of the point in question at a more suitable stage. If the trial is actually in progress – that is, if the jury remains empanelled and is not discharged103 – ss 295(3)(c) and 297(2) of the Criminal Procedure Act 2009 (Vic) erect specially high hurdles to the granting of a certificate by the trial judge and the granting of leave to appeal by the Court of Appeal for Victoria.104 The trial judge must be notified immediately if a party is even thinking about appealing so that directions can be given by the trial judge.105 In New South Wales there is no statutory equivalent of those hurdles, but clearly the imminence of the trial or its actual commencement can always be taken into account in deciding whether leave should be granted106 using the same common-sense points as are prescribed by statute in Victoria. Nevertheless, there are occasional cases in which intervention during the trial itself has occurred – for example, in R v Gilfillan107 an appeal against a refusal to permit an adjournment in the middle of the trial was heard and determined in the appellant’s (the accused’s) favour. This point applies most strongly to applications for the discharge of the jury itself, and becomes ever stronger the more imminent the verdict is – in most cases there is every reason to allow the jury to render a verdict, whatever it may be found to be worth on any appeal after conviction, rather than permit an appeal to be taken against a refusal to discharge the jury. The Court of Appeal for Victoria has said that appeals against refusal to discharge juries should be rare although, as suggested above, a long trial that involves an alleged jury problem on the first day might be quite a good case for an appeal against a refusal to discharge given that, otherwise, the risk of wasting large amounts of 100 101 102 103 104 105 106

107

See above, pp 33f. R v GAC (2007) 178 A Crim R 408 at 422. MA v The Queen (2011) 31 VR 203 at 206. Director of Public Prosecutions (Vic) v DJC (2012) 36 VR 33 at 38 fn 5. See also ML v The Queen [2011] VSCA 193 at [13] – [15]. County Court of Victoria, Practice Note No 2 of 2010 at [144]. R v Mailes [1999] NSWCCA 127 at [7]; R v Forbes [2004] NSWCCA 55; NAR v PPC1 (2013) 224 A Crim R 535 at 539. Leave was refused to appeal against an interlocutory order in R v O’Meara [2003] NSWCCA 206 because the trial was actually over and guilty verdicts had been rendered; appeals should be brought against those convictions: see O’Meara v The Queen [2006] NSWCCA 131; see also R v Dyers [1997] NSWSC 508, in which a retrial was pending; Practice Note No SC CCA 1 at [37]. (2003) 139 A Crim R 460. An example from Victoria is Director of Public Prosecutions (Vic) v Newman [2015] VSCA 25.

[4.210]

Efficiency

time would be too great.108 Equally, it will be a rare case in which an appeal by the accused against a dismissal of a no-case submission would be an efficient use of resources.109

Doubt [4.200] Another important factor is whether the decision below is attended by a sufficient degree of doubt. In Victoria, case law gives authority for allocating this consideration (when the trial judge is considering whether to certify and the question is not an evidentiary one) to the question whether the interlocutory issue is of sufficient importance to the trial to justify an appeal.110 If the case reaches the Court of Appeal for Victoria, it falls under the rubric in s 297(1)(b)(iv) of the Criminal Procedure Act 2009 (the extent to which an appeal may “reduce the likelihood of a successful appeal against conviction”) and, perhaps more dubiously, also under subpara (iii) in that paragraph (“resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial”).111 In New South Wales, case law establishes this consideration as relevant also.112

Importance of point and points of law [4.210] Another question is whether the point is generally important for the clarification of a disputed or uncertain legal point. If the issue’s importance lies largely outside the confines of the criminal trial proper in that way – such as the extent of compulsory questioning powers possessed by a quasi-judicial body in circumstances where the Crown seeks to tender the answers in the criminal trial – an interlocutory criminal appeal may well not be the right forum in which to decide such an issue113 from the point of view of efficiency – largely for reasons already given, such as the need to avoid delay and fragmentation and the hesitation about allowing an interlocutory criminal appeal to be used to challenge an existing line of authority. Therefore, there may well be something of a conflict between the demands of efficiency and those of fairness, which suggest that the matter should perhaps not be left unresolved before liberty is placed in jeopardy. However, it will not always be the case that the need to clarify a broad legal question of significance in a number of cases will disqualify the case from interlocutory criminal appeal. The Court of Appeal for New Zealand has referred to general importance: 108 109 110 111

112

113

See above, p 73. See above, p 55. Wells v The Queen (No 2) [2010] VSCA 294 at [7]; R v Mokbel [2010] VSC 349; Peterson v The Queen [2014] VSCA 111 at [7] (review of refusal to certify). Director of Public Prosecutions (Vic) v Zheng [2013] VSCA 304 at [10]. For a case before the institution of the interlocutory criminal appeal in which this consideration was also deemed relevant, see Brereton v Sinclair (2000) 2 VR 424 at 432. For example, R v Anderson (unreported, NSW Court of Criminal Appeal, 12 October 1989); R v Steffan (1993) 30 NSWLR 633 at 636f, 644f; R v BWM (1997) 91 A Crim R 260 at 267; R v Cox [1999] NSWCCA 229 at [11]; R v Dinh (2000) 120 A Crim R 42 at 48; R v Vorhauer [2002] NSWCCA 483; Einfeld v The Queen (2008) 71 NSWLR 31 at 37; Agius v The Queen (2011) 80 NSWLR 486 at 489 (special leave to appeal refused: Agius v The Queen [2011] HCATrans 171). R v Elliott (1996) 185 CLR 250 at 256 (although this was an application for special leave to appeal to the High Court of Australia, which is rarely granted, the general point is still valid).

129

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4: Factors to be Considered in Determining Applications

[4.210]

For example, the fact that an appeal is based on a novel point of law or the issue to be appealed would have significance in other cases would normally be enough to determine the leave application in favour of granting leave unless there are procedural circumstances, such as lack of time before the trial, that may make a pre-trial appeal inappropriate.114

An Australian example of a case raising both a fairly novel point of law and of great significance for other cases is the appeal against a misinterpretation of s 66 of the Evidence Act 1995 (NSW) dealt with in R v XY,115 where the court went out of its way to emphasise that, although the Crown did not need leave, the point was clearly an important one.116 In Joffe v The Queen,117 leave was granted because it was “of public” or “general importance” to settle disputed questions about the interpretation of insider-trading statutes. Other ways in which a point may have general importance may readily come to mind. That does not, however, mean that a solely category-based approach is usually decisive – rather, the assessment must also be based on the merits. This is something to which, perhaps, the quotation from New Zealand just reproduced does not pay sufficient regard. Thus, a weak constitutional point, even one raised by the accused, may well not be suitable for a grant of leave.118 Questions relating to the importance of the issue in the particular trial rather than generally were dealt with earlier under the heading of “Fairness”.

Point not raised below [4.220] It sometimes occurs that a party wishes to appeal against an order which it did not oppose below, or otherwise make a point on appeal which did not have an outing before the trial judge. This is, for obvious reasons, strongly discouraged, but in interlocutory criminal appeals such a course of action is particularly undesirable given that no final disposition of the case will occur and there are many issues on which trial judges are entitled to revise their rulings in suitable circumstances. The appeals court, therefore: will not ordinarily entertain an appeal by a party on the basis of a point of law which that party did not advance below. … Indeed, if anything, unless new facts come into existence or are discovered which make an interlocutory order unjust, the principle that a party is bound by the conduct of his case applies with even greater force to interlocutory appeals than to appeals against final orders, and especially so in the case of the Crown. … Accordingly, to allow the Crown now to argue that the judge erred in holding that the respondent could not receive a fair trial without the attendance of an instructing solicitor at court for each day of the trial would be to allow the Crown 114 115 116 117

118

R v Leonard [2008] 2 NZLR 218 at 222. (2010) 79 NSWLR 629. R v XY (2010) 79 NSWLR 629 at 630. (2012) 82 NSWLR 510 at 512, 515 (special leave to appeal refused: Joffe v The Queen [2013] HCATrans 109); see also R v Seller (2013) 232 A Crim R 249 at 253 (special leave to appeal refused: Seller v The Queen [2013] HCATrans 204). Cheiko v The Queen (2008) 75 NSWLR 323 at 351.

[4.230]

Efficiency

to advance a new and radically different point for the first time on interlocutory appeal. In the circumstances of this case, we are unable to discern the justice in allowing that to be done.119

This point can also be raised against the Crown on appeal if it fails to disclose a point it seeks to make use of in the usual timely manner and then raises it for the first time before the trial judge during the trial.120 In New South Wales, r 4 of the Criminal Appeal Rules provides: No direction, omission to direct, or decision as to the admission or rejection of evidence given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.

This would not cover the full gamut of interlocutory appeals even if it were applicable to them – and it appears to be generally assumed that it is not, which is perhaps natural given that this rule was introduced in 1925,121 long before interlocutory criminal appeals were ever thought of, and it would be generally a poor fit as currently expressed. Nevertheless, it would be worth thinking about introducing a similar rule for interlocutory criminal appeals. Even without such a formal rule, however, the discretion of the court can be used to achieve these aims and practitioners could rarely be excused for not considering such matters in drafting their applications for leave to appeal.

The Victorian Charter [4.230] Finally, in Victoria the Court of Appeal has made it clear that a strong case will be needed for leave to be granted for an interlocutory criminal appeal on a point under the Charter of Human Rights and Responsibilities (Vic). Such appeals can certainly be run if the ground is properly prepared: the Court of Appeal for England and Wales,122 the Supreme Court of New Zealand123 and the Court of Appeal for the Australian Capital Territory124 have all entertained interlocutory criminal appeals involving their jurisdictions’ equivalents. However, in Wells v The Queen (No 2),125 Ashley and Redlich JJA said: [C]ounsel for the applicant submitted that Charter provisions intended to ensure that an accused receives a fair trial provide greater protection to the accused against an unfair trial than do the common-law principles applicable to a stay application. Counsel did not proffer any authority for that proposition to the trial judge, nor did he do so before us. In short, counsel advanced no reason, as distinct 119

120 121 122 123 124

125

R v Chaouk (2013) 40 VR 356 at 370f (footnotes omitted); see also R v Groves (unreported, NSW Court of Criminal Appeal, 2 April 1990); R v Steffan (1993) 30 NSWLR 633 at 642; Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (2000) 100 IR 156 at 164; R v Marchione (2002) 128 A Crim R 574 at 577f; Aydin v The Queen (2010) 28 VR 588 at 594; Sasterawan v Morris (2010) 201 A Crim R 302 at 312; Director of Public Prosecutions (Vic) v BDX (No 2) (2010) 27 VR 536 at 537; R v Naidu [2010] VSCA 265 at [50], [53]; R v Gallagher [2015] NSWCCA 228 at [40]. Director of Public Prosecutions (Vic) v Pace [2015] VSCA 18 at [30]. New South Wales Government Gazette (30 October 1925) p 4644. R v K [2008] QB 827. Hamed v The Queen [2011] 3 NZLR 725; [2012] 2 NZLR 305. R v Fearnside (2009) 3 ACTLR 25 at 43-51; Nona v The Queen (2013) 8 ACTLR 168 (special leave refused owing to insufficient prospects of success: R v Nona [2014] HCATrans 44). [2010] VSCA 294; see also WK v The Queen (2011) 33 VR 516 at 525f, 531f, 533f, in which it was concluded that there was no breach of the Charter.

131

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[4.230]

from mere assertion, in support of his submission that the Charter confers a right more extensive than the common law right that, so far as possible, the accused be afforded a fair trial. This Court should generally not be expected to entertain arguments involving the application of the Charter on interlocutory appeals. As counsel for both parties to this application conceded, such arguments will usually involve complex questions. The construction of the provisions of the Charter often require[s] substantial research of international jurisprudence and resulting lengthy consideration. The raising of a Charter issue requires the notification, and the possible involvement, of additional entities (including the Attorney-General); and most often significant delay in the trial below. For these reasons, it can be expected that arguments involving the Charter will rarely be appropriate for determination on an interlocutory appeal. The fragmentation of individual trials should be avoided unless there is a compelling reason to the contrary. Further, in circumstances where it is not perfectly plain that a fair trial cannot be had, assessment whether there was not in fact a fair trial – by reference to the common law, or to the Charter if and insofar as applicable principles differ – is best undertaken by reference to the trial as a whole. In this case, it was not demonstrated to be perfectly plain that a fair trial could not be had. None of the factors relied upon by the applicant, either individually or in combination, justified a permanent stay of proceedings.126

Weinberg JA agreed with these comments, “particularly so when, as appears in this application, little or no thought has been given to whether the particular point sought to be agitated can in any way be supported”.127 Although these latter comments were referred to only in a footnote in the only other case in which the question has been raised,128 they clearly strike the right note. What is to be discouraged is not so much all mention of the Charter, but throwing it in as an afterthought and a makeweight in the hope that, if all else fails, an invocation of the Charter might just save the day. That is just a waste of everyone’s time. Anyone who wants to argue a Charter point on an interlocutory appeal must ensure that a very good case is made for granting leave despite the extra complexity and delay that it will involve, and the necessary research must be done before filing the application for leave to appeal.

Respect for the trial judge’s authority [4.240] In R v Steffan,129 the Court of Criminal Appeal for New South Wales said that “[t]he requirement of leave in s 5F evidences a legislative intention to uphold the authority of the trial Judge”. This was certainly true in the context of the case then before their Honours, although if offered as a more general proposition two elaborations would be required. The first is that the lack of any requirement for the Crown to apply for leave in New South Wales does not indicate an intention that the authority of the trial judge in such a situation disappears; rather, it was hoped that the Crown’s self-restraint would be 126

127 128 129

Wells v The Queen (No 2) [2010] VSCA 294 at [38] – [40]; see also Director of Public Prosecutions (Vic) v BDX (No 2) (2010) 27 VR 536 at 541; Dale v The Queen (2012) 229 A Crim R 480 at 508 fn 109. Wells v The Queen (No 2) [2010] VSCA 294 at [48]. R v Chaouk (2013) 40 VR 356 at 376. (1993) 30 NSWLR 633 at 642.

[4.240]

Respect for the trial judge’s authority

sufficient protection.130 Second, the creation of an avenue of appeal obviously indicates that upholding the trial judge’s authority is not an absolute value which brooks no qualification. On the other hand, however, it is still the case that an appeal system must be operated with an eye to this important consideration. Indeed, this is immanent in any system of appeal, but in the interlocutory context it is especially important that the trial should not be constantly interrupted by appeals unless there is a good justification for them. The House principles, where applicable, are one way in which the trial judge’s decision is respected, although that is far from the only goal of those principles, and they are not applicable to all types of decisions. We have already encountered briefly the concept of respect being due to the trial judge’s factual assessments based on the fact that the trial judge sees and hears the witnesses and the appeals court generally does not.131 In R v Ford,132 Campbell JA considered this aspect at length in the context of an interlocutory criminal appeal, with much citation of authority on appeals generally, and pointed out that there are plenty of circumstances in which the trial judge’s assessment of the facts can legitimately be questioned by an appeals court that did not hear the witnesses. This may be the case both in regard to the comparison of the facts found with a legal standard (whether evidence is relevant or conduct producing an admission was “oppressive”, for example)133 and even in relation to the finding of the primary facts. In the former case the appeal court may well be in just as good a position as the trial judge to make such a value judgment, whereas in the latter case more caution is obviously necessary, but there are certainly cases in which an error could be identified in the trial judge’s factual conclusions.134 This may occur if, for example, the trial judge’s reasoning process did not observe the elementary laws of logic (a rare case), findings contrary to substantially uncontradicted evidence were made without explanation,135 or disproportionate weight was placed on one item of evidence in the process of determining where the truth lay (or whether an onus had been discharged). As in all criminal appeals, it is also necessary not to take the remarks of the judge below out of context – for example, if the judge omits to express himself, on every possible occasion, with strict accuracy regarding the burden of proof.136 Furthermore, and adding apologies for the possibly mixed metaphor, it has been rightly said that, on an interlocutory as on any other type of appeal, a trial judge’s reasons must “not be raked over microscopically in the hope that there will be found somewhere or other some elegant forensic debating 130 131 132

133

134

135 136

See above, p 33. See above, p 127. (2009) 201 A Crim R 451 at 477-80. Another useful recent analysis and collection of authorities on this point may be found in Western Australia v Rayney (2013) 46 WAR 1 at 67-9. The latter example is mine rather than his Honour’s and based on s 84(1)(a) of the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic); the former is his Honour’s: R v Ford (2009) 201 A Crim R 451 at 480. Further discussion and references to cases largely on the comparable topic outside the criminal law may be found in M Beazley, P Vout and S Fitzgerald, Appeals and Appellate Courts in Australia and New Zealand (LexisNexis Australia, Chatswood, 2014) pp 106, 109. As in R v Bozatsis (1997) 97 A Crim R 296 at 305; R v Gallagher [2015] NSWCCA 228 at [51]. R v DG (2010) 28 VR 127 at 138f.

133

134

4: Factors to be Considered in Determining Applications

[4.240]

point”,137 but rather analysed with awareness that a trial judge must often respond quickly to unexpected situations without the luxury of time for consideration such as appellate courts often have. This is all the more so in interlocutory appeals if a point has arisen in the middle of a trial rather than on the voir dire. However, time may press on appellate courts also, and even in relation to interlocutory criminal appeals before rather than during trial. In Tuite v The Queen,138 the Court of Appeal for Victoria said: [H]er Honour [the trial judge] had the benefit of hearing from each of the three Crown experts, and from a defence expert, over some 22 days of hearing. It is simply not possible at this stage, nor is it necessary given the nature of an interlocutory appeal, for this Court to acquire the same level of technical understanding of the particular field of scientific learning.139

It was the author’s conclusion above140 that the trial judge’s own refusal of a certificate should count for little in itself.

Crown’s limited post-conviction appeal rights [4.250] The question under this heading is the extent to which the shape of the ordinary criminal appeals system casts its shadow back on to the interlocutory appeals system. Although it does not, strictly speaking, fall within the ambit of this chapter, which is concerned with the granting of leave in circumstances in which an appeal is available, we have already seen that the Court of Appeal for Victoria has refused to allow appeals from the upholding of a no-case submission on the ground that that would amount to an appeal against acquittal, something against which the criminal law had set its face since before the introduction of the modern system of criminal appeals.141 When the question relates to an admittedly competent appeal which does not concern the final disposition of the case, a question that arises is whether the Crown might expect more generous treatment at the interlocutory stage because of the less generous treatment usually afforded to it afterwards. The Court of Appeal for New Zealand gives the answer “yes”: [I]t is appropriate for the more limited appeal rights of the Crown to be taken into account in assessing a Crown pre-trial leave application as part of the more general consideration of whether the matter at issue in the proposed appeal is more appropriately dealt with in any appeal after the trial has occurred.142

By itself, however, this quotation would give a misleading picture of what the court thought. A lot will depend, for example, upon the precise nature of the issue and the problem alleged. A point is not in itself the more suitable for interlocutory appeal simply because it cannot be made the subject of an appeal 137 138 139 140 141

142

R v Yuill (1993) 69 A Crim R 450 at 458; for a similar case, see R v Filitis [2004] NSWCCA 68 at [18]. [2015] VSCA 148. Tuite v The Queen [2015] VSCA 148 at [9]. On what the court here refers to as the nature of the appeal, see above, Ch 3 fn 296. See p 127. See above, Ch 3 fn 52. There are exceptions to the inability of the Crown to appeal after an acquittal, such as those found in the Crimes (Appeal and Review) Act 2001 (NSW) s 107(1)(a). R v Leonard [2008] 2 NZLR 218 at 223; see also R v Lisoff [1999] NSWCCA 364 at [23]f, but this was before the right to appeal against evidentiary rulings had been created.

[4.250]

Crown’s limited post-conviction appeal rights

after any acquittal, and the rest of the factors mentioned by the Court of Appeal for New Zealand as relevant in assessing the grant of leave show that it is clearly aware of this point. To take an obvious and Australian example, if the Crown through lack of preparation bears ultimate responsibility for the need to run the appeal at all,143 it may find itself treated unsympathetically, and no amount of reminding the court that it has no other appeal will help! Another example, too complicated to explain in full here, is R v Zheng,144 in which the Crown sought to appeal against the trial judge’s conclusions of law and consequent proposed directions of law based on a very sophisticated argument representing a theoretically possible, but unlikely, set of factual conclusions on the part of the jury. It is certainly true that any error of law could not have been the subject of an appeal in the event of an acquittal (and the accused was, indeed, eventually acquitted), but leave was rightly denied to the Crown in this instance because the point that it wished to raise was too obscure and theoretical and might have resulted in complicating the directions to an extent that would likely have aided no-one. In considering the balance to be struck, it is important to remember that the lack of appeal rights available to the Crown is not some type of oversight or loophole to be got around by any means available, but rather a deliberate decision on the part of the legal system. Therefore, it is not a question of correcting or making up for some perceived injustice to the Crown. It is right, at least in the view of the appeals system for which legislation provides, that accused persons, after an acquittal, should not again be placed in jeopardy by an appeal. On the other hand, the interlocutory appeals system exists for a purpose also, and in New South Wales in particular, where the Crown does not need leave for any appeal and only it has the right to appeal against evidentiary rulings, the system is obviously set up with a view to righting an imbalance in appeal rights that otherwise would exist. In Victoria, too, the first reason given when the system for interlocutory criminal appeal was introduced was that it would “prevent guilty people being acquitted”,145 although the more generous facilities for the accused to appeal in Victoria make even clearer the need for perspective in assessing the extent to which the system is designed to remedy the Crown’s lack of post-acquittal appeal rights. It is also trite, but no less true, to state that the Crown represents the community, which has an interest in the just punishment of, protection from and reformation of, offenders. It might also be thought that there is a limit to which appeal judges could be asked to put out of their minds the obvious and well-known consequences, in the case of an eventual acquittal, of refusing leave to the Crown for an interlocutory appeal or dismissing that appeal on some such ground as that the time is not yet ripe to consider the point. Finally, to the extent that an accused person’s application for leave to appeal might be met with the claim that it would be more efficient to deal with the matter after the verdict, such a response can clearly not usually be given to the Crown. The interlocutory appeals system is not designed to cancel out the postconviction appeals system, but to complement it. Nor is an appeal before or 143 144 145

See above, Ch 4 fn 89. [2013] VSC 559 (refusal to certify confirmed: Director of Public Prosecutions (Vic) v Zheng [2013] VSCA 304). See above, Ch 1 fn 61.

135

136

4: Factors to be Considered in Determining Applications

[4.250]

during the trial the same as an appeal afterwards, for a number of reasons – much about the trial may still remain unknown before the defence case opens, for example. Therefore, it is not the case that the Crown should receive leave to appeal (in Victoria) or (in New South Wales) should feel itself justified in appealing just because the point will not be available after any acquittal. As we have seen, the judgment of the legal system is that it is just that acquittals should, as a rule, be final, and the interlocutory appeals system does not upset this extremely important principle by a side-wind. But within these limits it does seem right, and even inevitable that the limited post-conviction appeal rights of the Crown should be taken into account to some extent in determining its interlocutory appeal opportunities.

5

Procedural Aspects of Appeals [5.10]

Constitution of court................................................................................. 137

[5.20]

Rules.......................................................................................................... 138

[5.30]

Stay or adjournment pending appeal........................................................ 139

[5.40]

Time; abandonment................................................................................... 141

[5.50]

Additional evidence...................................................................................143

[5.60]

Notice of alternative contention................................................................146

[5.70]

Publication of judgment............................................................................ 146

[5.80]

Amici......................................................................................................... 148

Constitution of court [5.10] As previously noted, it is regularly the case that the hearing of the application for leave to appeal (which is not required by the Crown in New South Wales) morphs into the hearing of the appeal as such.1 There are even cases in which a firm rejection of the application for leave on a threshold point unrelated to its merits has been accomplished only by means of a demonstration that the appeal would be dismissed on the merits anyway!2 It is also possible for the court to grant leave to appeal but dismiss the appeal on some grounds, while refusing leave on others3 – whether this is of any consolation to the unsuccessful appellant may be doubted. In both States single judges sitting alone are empowered to hear applications for leave to appeal (and, in Victoria, reviews of refusals of certification by the trial judge).4 That this power is not exercised more often – indeed, hardly at all – and a serious attempt made to separate leave applications from appeals proper is perhaps to be explained by the fact that there is a right to have any leave application determined by the court (three judges in New South Wales, two in Victoria)5 if the single judge refuses it along with the fact that interlocutory criminal appeals must normally be disposed of with some despatch.6 Nevertheless, there is at least one case in Victoria in which a refusal of a trial judge’s certification was reviewed by a single judge7 and there is a good case for doing so regularly or even, by statutory change, making that the invariable rule in relation to such reviews. 1 2 3 4

6

See above, Ch 2 fnn 72, 92. See above, Ch 4 fn 74. For example, Agius v The Queen (2011) 80 NSWLR 486 at 506. Criminal Appeal Act 1912 (NSW) s 22(1)(a); Criminal Procedure Act 2009 (Vic) s 315(1)(a), (b); JW v The Queen [2016] NSWCCA 26. As provided by the Criminal Appeal Act 1912 (NSW) s 3(1); Criminal Procedure Act 2009 (Vic) s 315(2). Criminal Appeal Act 1912 (NSW) s 22(2); Criminal Procedure Act 2009 (Vic) s 315(2).

7

ML v The Queen [2011] VSCA 193.

5

138

5: Procedural Aspects of Appeals

[5.10]

The appeal itself must be decided upon by a court consisting of three judges in New South Wales;8 in Victoria the Bench in appeals from the Trial Division of the Supreme Court must be three judges, unless the President of the Court of Appeal directs that a Bench of two may sit in a particular case, while in appeals from the County Court of Victoria there is standing authority for a Bench of two judges in any case.9 There are few examples of two-judge Benches in Victoria but at least two cases exist in which Crown appeals were allowed by a Bench consisting of only two judges.10

Rules [5.20] In both jurisdictions, rules govern some of the procedural aspects of appealing. In Victoria the principal rules are collected in Order 3 of the Supreme Court (Criminal Procedure) Rules 2008,11 while in New South Wales the applicable provisions may be found in rr 5B, 11A, 23B, 23E, 24(1)(e) and (2), 24A and 24B of the Criminal Appeal Rules.12 Forms are also prescribed by the rules. There is no need to reproduce the contents of the rules in detail here. Little, if any, case law refers to them, unsurprisingly given their largely mechanical nature. Nevertheless, it is noticeable that Victoria attempts in its rules, as it does also in its Act, to provide more structure to and information about the process of an interlocutory appeal. For example, r 3.03(2) requires that the application for leave to appeal “shall state in precise terms the grounds on which it is sought to appeal”, whereas in New South Wales, Form VC says merely that one must “[s]et out the grounds”. In Victoria, an affidavit is also required under r 3.05(1) which requires the applicant to: file and serve an affidavit stating the acts, facts, matters and circumstances relating to – (a) the order under appeal; (b) the grounds set out in the notice of application for leave to appeal; and (c) why leave to appeal should be given.

This, however, is not usually required for an urgent interlocutory appeal (an interlocutory appeal filed during the trial or shortly preceding the commencement date of the trial) under paras 1.2 and 9.2 of the Court of Appeal’s “Practice Statement No 1 of 2010 Interlocutory Appeals in Criminal Proceedings”. It is also often dispensed with in other cases, being of limited utility. Again, Victoria has succumbed to the temptation of over-prescription, going beyond what is sensible in practice. Rule 3.05(3) of the Supreme Court (Criminal Procedure) Rules 2008 (Vic) further requires a copy of the “order under appeal or the decision to be 8 9

10

11 12

Criminal Appeal Act 1912 (NSW) s 3(1). Supreme Court Act 1986 (Vic) s 11(1), (1A), (1B); Supreme Court (Criminal Procedure) Rules 2008 (Vic) r 2.03(1); Director of Public Prosecutions (Vic) v Brownlie [2015] VSCA 267. Director of Public Prosecutions (Vic) v DJC (2012) 36 VR 33; Director of Public Prosecutions (Vic) v Newman [2015] VSCA 25 (although here the Crown had taken the extraordinary step of appealing against a ruling favouring itself). On the other hand, in WK v The Queen (2011) 33 VR 516, the Bench was evidently enlarged from two to three judges after the hearing: at 520. See, however, above, Ch 5 fn 9. As previously noted, r 4 has been treated as irrelevant: above, p 130.

[5.30]

Stay or adjournment pending appeal

reviewed” along with any reasons to be exhibited to the affidavit, or their absence accounted for. If, as would seem to be the case, the expression “decision to be reviewed” is a reference solely to a review of the trial judge’s decision not to certify, the choice of the word “order” is certainly an unfortunate one given that the Victorian statute deliberately permits decisions falling short of orders to be appealed against.13 Nevertheless, the intent is clear. However, in practice, again, such basic material is usually obtained from the trial court rather than via this indirect method, and directions are given as necessary for the provision of any further materials needed. Further procedural steps are set out in Practice Notes issued by each court – for example, paras 34(e) and 35 – 39 of Practice Note No SC CCA 1 of the Court of Criminal Appeal for New South Wales and paras 138 – 148 of Practice Note No 2 of 2010 of the County Court of Victoria.

Stay or adjournment pending appeal [5.30] If leave to appeal is granted during a trial, short adjournments are often granted while the appeal is dealt with. In Victoria, s 299 of the Criminal Procedure Act 2009 (Vic) requires this course and adds that the jury should not be discharged “if reasonably practicable”.14 Adjournments may also be necessary while an application for leave to appeal is considered by the Court of Appeal for Victoria,15 although they are not required by statute. In New South Wales no statute or rules govern the matter – not even when there is an appeal against a discharge of the jury under s 5G of the Criminal Appeal Act 1912 (NSW), although that section is written so as to enable the final order of discharge to be put off while the appeal is heard16 – but if an appeal does proceed during the trial it will usually be sensible to grant an adjournment, not to say necessary given that counsel cannot appear before two courts at the one time.17 There are, on the other hand, few cases indeed in which a stay or an adjournment of a trial has been granted when leave is sought or obtained before the trial commences. This is partly a tribute to the despatch with which both appeal courts have treated such applications,18 but also partly because: [i]t would be an easy expedient indeed to avoid a trial by filing a hopeless application for leave to appeal against some unimportant interlocutory order if trial Judges were obliged to [order a stay or adjournment as a result]. There would 13 14

15 16 17 18

See above, Ch 2 fn 53. As drafted, this provision is ambiguous; it could mean either: • if reasonably practicable, the trial must be adjourned and the jury not discharged; or • the trial must be adjourned in any event, and, if reasonably practicable, the jury must not be discharged. The Explanatory Memorandum solves this dilemma and states that the section means that “if the Court of Appeal grants leave to appeal under clause 295 after the trial has commenced, the trial Judge must adjourn the trial until the appeal has been determined. The trial Judge must adjourn the trial without discharging the jury, if this is reasonably practicable.” For example, Dertilis v The Queen [2010] VSCA 360 at [9]. See above, p 72. R v Joyce (2004) 1 DCLR (NSW) 290 at 292f; R v Milenkovic [2005] NSWCCA 382; (2005) 158 A Crim R 4 at 8f. See, especially, R v Harker [2004] NSWCCA 427 at [16] which records the granting of a stay until the appeal could be heard – on the following day.

139

140

5: Procedural Aspects of Appeals

[5.30]

need to be something of an exceptional character in the circumstances for it to be appropriate to delay a trial because there was a s 5F application for leave to appeal outstanding, particularly where there had been plenty of time for the accused person to bring on for hearing his application for leave in this Court.19

As is well known, the rules of criminal procedure place great emphasis on the identification and resolution of issues of law well before the commencement of the trial if at all possible, and that is by far the most convenient and sensible means of ensuring that there is enough time to deal with such issues. If, however, the utility of an appeal either before or after the trial might be wholly lost without an adjournment – for example, if a claim to public interest immunity is rejected and the identity of an informer is in peril of being revealed – it may be an error of law not to grant an adjournment so that the ruling can be tested.20 There have been a few cases in which the appeals court has stayed a trial until it is able to deal with an issue raised before it. I have found stays granted only to the Crown21 – which both cannot appeal after any acquittal caused by an erroneous ruling, and also is far less likely to make hopeless applications in dubious faith. While there is no prohibition on the accused’s applying for a stay, clearly the likelihood of success is less. Given that the Crown cannot appeal against an acquittal, its case is always likely to be stronger than an accused’s on the score of detriment to the party applying for the stay. Nevertheless, it is conceivable that a case will one day arise in which a stay is granted to the accused. In all cases it is a question of balancing the prospects of success against the detriment to the party applying for the stay if it is not granted and considering the balance of convenience. Under that latter heading, further “far ranging and diverse”22 factors may also be relevant depending upon the nature of the case, such as any irremediable unfairness to the accused or significant inconvenience to witnesses or jurors. In one case, R v Pera,23 the Court of Criminal Appeal for New South Wales granted a stay to enable a Crown appeal on the exclusion of identification evidence to be heard, even though the trial judge had refused an adjournment and the appeal was subsequently dismissed as incompetent (before the express power to appeal against evidentiary rulings had been added in New South Wales and the Crown was required to show, to establish jurisdiction, that its case had been eliminated). After the addition of s 5F(3A) permitting the Crown to appeal on such evidentiary rulings, a stay was granted to the Crown in R v NKS24 to enable a ruling on admissibility to be questioned; this time the appeal was allowed. The trial had started on a Monday (3 May 2004) and the stay was granted on Friday (7 May); the appeal was allowed on that day and the stay lifted so that the trial could recommence on the following Monday (10 May), with reasons published on the following day in advance of the summing up. Also on Monday 3 May 2004, in New South Wales, the trial in R v Ronen25 was due to commence. The accused in that case wished to raise points related to the empanelment of the jury based both on the applicable statute and 19 20 21 22 23 24 25

R v Stolpe (unreported, NSW Court of Criminal Appeal, 30 October 1996) pp 32ff. R v Fandakis [2002] NSWCCA 5 at [47]. But cf RM v The Queen (2012) 221 A Crim R 465 at 467. R v Ronen [2004] NSWCCA 189 at [20]. [1999] NSWCCA 348; [2000] NSWCCA 109. [2004] NSWCCA 144. [2004] NSWCCA 189; R v Ronen (2004) 211 FLR 320.

[5.40]

Time; abandonment

the federal Constitution, and applied on Thursday 29 April for a stay of the trial due to commence on the following Monday, relying on the statutory rather than the constitutional points. The trial judge had granted a certificate permitting the appeal to proceed without the leave of the Court of Criminal Appeal for New South Wales, but nevertheless the stay was refused. Grove and Howie JJ, who had sat also in NKS, refused the stay on the basis of the balance of convenience and the need not to delay the trial any further. Simpson J, on the other hand, who had not been on the Bench in NKS, thought that the balance of convenience, if anything, spoke in favour of the accused, given the need to abort the trial and start again if they made good their points, but that the merits of their case were such that the stay should be refused. In this her Honour was right, for the interlocutory appeal was dismissed and the accused were in the end convicted.26 Her Honour was also clearly correct to take into account the prospects of success of an applicant for a stay in determining whether it should be granted27 – and that was so even though a trial judge’s certificate had been granted. Grove and Howie JJ appeared to think that this consideration had been foreclosed by the issue of the certificate, which attributes too much meaning to a procedure that was not designed for that purpose, does not relieve the appeals court from making its own assessment and finally ignores the fact that in the view of the trial judge a point may be very likely to succeed, or only just likely enough to warrant the granting of such a certificate, perhaps in conjunction with other factors.

Time; abandonment [5.40] In New South Wales the time limit for lodging an application for leave to appeal is 14 days after the judgment or order to be appealed against, as set out in r 5B of the Criminal Appeal Rules – which, however, applies only to the defence. There is no time limit for the Crown, at least unless and until a recent recommendation to that effect by the New South Wales Law Reform Commission is implemented.28 It is easy to see why no time limit was thought necessary for the Crown: as well as its general obligations of fair play, it is the party which, all other things being equal, has the greater incentive to keep proceedings moving rather than stalling them. Nevertheless, there has been at least one case in which the prosecution’s delay was “both gross and unexplained”,29 and no doubt others in which the situation has not been quite so extreme but the lack of a time limit has been deleterious. It is also important in principle to have procedural rules that apply equally to both sides. In Victoria the statutory process consists of two steps: certification by the trial judge (or a successful review of refusal to do so) followed by the grant of leave by the Court of Appeal for Victoria. The statutory scheme necessitates that an application for certification will be made shortly after the decision against which the appeal is to be run, and expressly requires the application to 26 27

28 29

The final outcome may be seen in R v Ronen (2006) 161 A Crim R 300. See, in particular, the reasons given by McHugh J for refusing a stay in Sewell v The Queen [2001] HCATrans 529, which contains references to the authorities on stays in general in comparable situations. New South Wales Law Reform Commission, Report No 140, Criminal Appeals (2014) pp 216ff. R v Mosely (1992) 28 NSWLR 735 at 737. For a case in which such delay was more mildly treated, see Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7 at 25.

141

142

5: Procedural Aspects of Appeals

[5.40]

be determined “as soon as practicable”.30 Consequently, the various time limits in s 298(1) of the Criminal Procedure Act 2009 (Vic) are based only on the second stage, the application for leave, and any delay in seeking certification will eat into the time for seeking leave. These limits are based on the date of commencement of the trial, which occurs “when the accused pleads not guilty on arraignment in the presence of the jury panel”.31 There may therefore be an element of prognostication involved. If the scheduled start of the trial is more than 10 days away when the decision is made, 10 days is the period for lodging an appeal; if the trial is less than 10 days away but still in the future, the period ends two days after the trial commences; if the trial has already commenced, the would-be appellant has two days after the making of the decision. Similar time limits apply under s 296(2) to an application for a review of the trial judge’s decision not to certify, but calculated from the day on which certification is refused. In New South Wales the 14-day period, where it applies, is calculated including all weekends and public holidays. Unless the court sits at the weekend, 14 days will naturally expire on a weekday, but if that weekday should happen to be a public holiday, time is extended to the following day by the Interpretation Act 1987 (NSW) s 36(2)(b). In Victoria 10- or two-day periods may very possibly expire on weekends as well as public holidays, and in that case s 44(3) and (4) of the Interpretation of Legislation Act 1984 (Vic) also extend the time to the following working day. In neither jurisdiction is there any express provision for the long Christmas break, but extensions of time would surely not be difficult to obtain in case, for example, a voir dire is held just before Christmas and an appeal cannot be lodged until afterwards. Provisions such as r 1.09 of the Supreme Court (Criminal Procedure) Rules 2008 (Vic) provide a model, although not directly applicable to statutorily prescribed time limits. Extensions of time32 are available in New South Wales under r 5B itself, read in conjunction with r 28, and in Victoria under s 313 of the Criminal Procedure Act 2009. Rule 2.23 of the Supreme Court (Criminal Procedure) Rules 2008 (Vic) delegates this power to the Registrar and provides for an appeal to the Court of Appeal for Victoria if the extension of time is refused; in New South Wales a single judge may extend the time for seeking leave to appeal under s 22(1)(c) of the Criminal Appeal Act 1912. Extensions have been granted with reasonable freedom, either because the delay is minor (a few days only)33 or accounted for in some way by illness,34 other proceedings35 or the need for representation to be sorted out.36 If one accused lodges on time and the others do not, there is no reason not to grant them an extension if the issues are 30

Criminal Procedure Act 2009 (Vic) s 295(4); see also County Court of Victoria, Practice Note No 2 of 2010 at [140], [146].

31 32

Criminal Procedure Act 2009 (Vic) s 210(1). A case involving an extension of time other than for the interlocutory appeal itself is noted above, Ch 3 fn 274. R v Pirrottina (1996) 88 A Crim R 220; Stanizzo v Complainant [2013] NSWCCA 295 at [5]: “not gross”. R v Sewell [2001] NSWCCA 299 at [8](l). R v Carver [1999] NSWCCA 135 at [6]. Piras v The Queen (2006) 167 A Crim R 260 at 263.

33 34 35 36

[5.50]

Additional evidence

similar.37 The requirement for a written application for extension has been waived in New South Wales, but in a case in which a trial judge’s certificate authorising the appeal had already been issued.38 However, unavailability of the transcript should not be used as an excuse for lateness,39 nor should the expectation of further evidence – such situations should be accommodated by filing the appeal and adding the missing information later, unless perhaps there really is some doubt about whether the transcript or evidence will make a difference to whether an appeal is instituted.40 Even in such cases, however, the courts are reluctant to make the client suffer for the default of the lawyer.41 Recent decisions of the High Court of Australia on extensions of time in sentence appeals appear to justify the conclusion, despite the great and obvious differences between those appeals and interlocutory criminal appeals, that, under the very broad slogan of “the interests of justice”, the applicant’s prospects of success are relevant in deciding whether the extension should be granted.42 No doubt the interests of justice will also include the need for interlocutory criminal appeals to be commenced as rapidly as possible – along with any other factors that can be identified in the case at hand, such as whose fault the delay was, whether the trial is imminent and the foreseeable effects of the alleged error upon the accused’s rights and interests and on a conviction, if one occurs. Furthermore, while interlocutory criminal appeals do not produce a final result in anywhere near the same sense as conviction appeals do, it is also important for them to be brought to finality given that fragmentation of criminal proceedings should be minimised and the trial must be able to proceed. In dealing with the considerations that apply to extensions of time, it is not possible to be more specific than that, and experience does not suggest that judges need a great deal of guidance in this field anyway. An appeal may be abandoned under r 27 of the Criminal Appeal Rules in New South Wales and, in Victoria, under s 314 of the Criminal Procedure Act 2009 in conjunction with rr 2.40 and 2.41 of the Supreme Court (Criminal Procedure) Rules 2008. It may also be summarily dismissed and reinstatement to the list refused if the appellant fails to prosecute it efficiently.43

Additional evidence [5.50] The difficulties involved in having new evidence admitted on a postconviction appeal are well known.44 However, in R v Filimoehala,45 Dowd J expressed the view – with cases involving guilty pleas in the forefront of his mind, where it is understandable that insufficient evidence might have been 37 38 39 40 41 42 43

44

Cheikho v The Queen (2008) 75 NSWLR 323 at 326. Newman v The Queen (2007) 173 A Crim R 1 at 4f. R v Pirrottina (1996) 88 A Crim R 220 at 220f. Compare R v Rogerson (1990) 45 A Crim R 253 at 254f. R v Rogerson (1990) 45 A Crim R 253 at 255. Kentwell v The Queen (2014) 252 CLR 601 at 614; O’Grady v The Queen (2014) 252 CLR 621 at 625f. As in R v Stolpe (unreported, NSW Court of Criminal Appeal, 30 October 1996): see towards the end of Barr J’s judgment for the circumstances; see also Criminal Appeal Act 1912 (NSW) s 22(1)(i) and (2). The statutory authorities for the admission of fresh evidence are the Criminal Appeal Act 1912 (NSW) s 5F(4) (“fresh, additional or substituted evidence”) and the Criminal Procedure Act 2009 (Vic) s 300(1): “additional evidence”. Although the terms differ, there does not seem to be any suggestion that any other difference is intended. Nor does either

143

144

5: Procedural Aspects of Appeals

[5.50]

called below because it was assumed that the guilty plea disposed of the necessity of demonstrating the full case – that the Court of Criminal Appeal for New South Wales “frequently”46 admits new evidence (usually, I might add, by affidavit) on such appeals. Smart AJ picked up this theme and stated: The authorities acknowledge that the rules as to the admissibility of additional evidence have not become rigid or stereotyped and that there is a degree of flexibility with them. The ultimate issue is always whether there has been a miscarriage of justice. … [T]he requirements which existed in relation to adducing additional evidence were perhaps of less importance where the appeal is from an interlocutory judgment or order. In practice, this court has generally adopted a more liberal approach in admitting additional evidence on appeals from interlocutory judgments or orders. This has primarily been designed to avoid miscarriages of justice. Interlocutory applications are often dealt with and have to be dealt with by the primary judge at short notice and in hurried circumstances. At that stage what is significant is on occasions, not fully appreciated. This court has been reluctant to deal with matters on inadequate materials, determine them and then see a further application being made on the further material to the primary judge and a further appeal. It has been better to resolve the disputes and not delay the criminal processes. … The explanation for the absence of the evidence is often an important consideration.47

Accordingly the Crown, in defending the trial judge’s order permitting it to withdraw its acceptance of a plea of guilty against which the accused had appealed, was permitted to submit 40 witness statements exhibited to an affidavit in order to show how inadequate the accused’s level of criminality was that was implied by its earlier mistaken acceptance of the original plea of guilty to a lesser charge. It is also important to note that the accused did not desire to lead any further evidence in response to the Crown’s additional evidence (it need hardly be said that this opportunity will always need to be given when new evidence is admitted). The need for the Crown to defend the decision below by pointing to facts that justified it was decisive in that case. What was said in R v Boag48 is a salutary corrective to what might otherwise appear an excessively promiscuous attitude towards additional evidence. In that case the accused, not the Crown, sought to continue his attack by means of appeal, rather than to defend, a decision below – namely, to refuse him leave to withdraw a plea of guilty. The evidence in question consisted essentially of further particulars of, and explanations for, his mistake in entering that plea. After noting that the requirement that evidence must have been not reasonably available at a trial could not be applied with the same rigour on an interlocutory appeal, Hunt CJ at CL, with whom the rest of the Court of Criminal Appeal for New South Wales agreed, stated that:

45 46 47 48

section specify any criteria for discerning when leave might be granted, although “the requirement that leave be obtained must be interpreted as imposing some restriction upon the adducing of additional evidence”: R v Filimoehala (2003) 138 A Crim R 299 at 308. (2003) 138 A Crim R 299. R v Filimoehala (2003) 138 A Crim R 299 at 305. R v Filimoehala (2003) 138 A Crim R 299 at 308f. (1994) 73 A Crim R 35.

[5.50]

Additional evidence

[i]t would be quite wrong for applicants to think that they can have a trial run before a Judge and that, if they fail to obtain the interlocutory relief there which they seek, they can mend their hand in this Court with additional evidence and try again.49

Leave to introduce the new evidence was refused given that the only explanation proffered for not calling the appellant below in order to explain his initial plea was tactical reasons – a commendably honest explanation but not one that is likely to fill the court with enthusiasm for admitting new evidence. Therefore, it can still be said that special and convincing reasons of some sort are still required in order to justify the admission of additional evidence. The issue of miscarriage of justice that was prominent in the Filimoehala quotation makes sense as an overall test in the context of conviction appeals.50 It makes less sense in the context of interlocutory appeals, where a more individualised approach will be necessary using the types of discretionary factors considered in the last chapter and the assessment by experienced appeal judges of the need for such evidence in context. Certainly, a survey of the cases has not come up with so many recorded instances in which new evidence was admitted that it could be said to occur “frequently”,51 as distinct from, for example, when some special reason justifies it. In Derbas v The Queen52 the Crown again succeeded on appeal in having additional evidence admitted, this time in order to substantiate its successful appeal against a decision not to exclude a document relating to contact between the police and an informer, and in particular to assist the court, if it allowed the appeal on the basis of error by the trial judge, in determining what order should be made instead. In R v Westley53 the issue was whether the evidence was sufficient to overcome a statutory bar under which prosecutions had to be commenced within 12 months of the alleged offence if the complainant was aged from 14 to 16 years. Attention was first directed to this issue on appeal, and the Court of Criminal Appeal for New South Wales appeared willing to allow further evidence of the complainant’s age at the time, but did not give leave in so many words, and nevertheless decided that the prosecution fell at that hurdle. In other cases in which it was the accused who applied for the admission of new evidence, they failed; in some the Court of Criminal Appeal for New South Wales has indicated that a fresh application on the basis of the evidence in question should, or might, if the circumstances permitted it, be brought to the trial court.54 There have, however, been a few cases in which the Crown has not objected, or has not raised any objection to the admission of new evidence for the accused.55 49 50 51 52 53 54

55

R v Boag (1994) 73 A Crim R 35 at 38. Not least because of references to it in, eg, the Criminal Appeal Act 1912 (NSW) s 6(1). See above, Ch 5 fn 48. (2012) 221 A Crim R 13. [2004] NSWCCA 192. R v Subramaniam [2000] NSWCCA 441 at [21], [23] (appeal allowed on other grounds: Subramaniam v The Queen (2004) 211 ALR 1); R v Giovannone (2001) 119 A Crim R 519 at 523f; R v Joyce (2003) 38 MVR 432 at 436 (further proceedings: R v Joyce [2003] NSWCCA 280); Potier v The Queen [2006] NSWCCA 300 at [3]; Calleija v The Queen (2012) 223 A Crim R 391 at 417f. In Giovannone the headnote is clearly wrong to say that there is no power to admit additional evidence; as the court was somewhat sidetracked (at 523f) by the confusion about what a rehearing is (referred to above, Ch 2 fn 122), the authority of this case is somewhat limited. R v McDonald (unreported, NSW Court of Criminal Appeal, 10 August 1994) (Crown appeal against stay; accused provided affidavits with further reasons for upholding stay); R v

145

146

5: Procedural Aspects of Appeals

[5.50]

As a matter of both principle and practice, it would be surprising if additional evidence were frequently needed in interlocutory criminal appeals given that they often deal with points of law or the exercise of discretions, or the making of value judgments that are assessed on House principles, and they do not finally dispose of the case. Underscoring this a priori assessment of unlikelihood is that few cases exist in New South Wales and, as far as could be discovered, only one in Victoria, in which – even though the appeal was allowed – leave to call an additional witness was refused because the evidence was not fresh within the ordinary acceptation of the term in criminal appeals.56 Cases involving the withdrawal of guilty pleas are thus the exception, not the rule.57 Finally, it should be noted that, if additional evidence is admitted, it may, under s 75 of the Evidence Act 1995 (NSW) and the Evidence Act 2008 (Vic), be hearsay, provided that evidence of its source is adduced.

Notice of alternative contention [5.60] It is now established that, despite the lack of any provision for such a thing in the statute or rules of either New South Wales or Victoria, the respondent to an appeal is entitled to defend the holding below on alternative bases by lodging a notice of alternative contention, as in a civil appeal.58 This is because the respondent has the right to defend the decision below by alternative contentions at common law; the notice of alternative contention merely ensures that the appellant is not taken by surprise and that unnecessary expense and delay are avoided.59

Publication of judgment [5.70] Clearly, care has to be taken to ensure that the publication of a court’s reasons for deciding an interlocutory criminal appeal does not itself arguably make a fair trial more difficult. The Court of Appeal for Victoria has recently

56 57

58 59

Kennedy (1997) 94 A Crim R 341 at 344 (Dietrich – evidence of means); Hart v The Queen [1997] NSWSC 191 (withdrawal of guilty plea); R v Littler (2001) 120 A Crim R 512 at 529 (state of aged accused’s memory on application for stay). SLS v The Queen [2014] VSCA 31 at [116]. Reference should also be made to the possibility of admitting the Crown’s brief in order to determine whether its case is substantially weakened by excluded evidence, as in R v Arvidson (2008) 185 A Crim R 428 at 433. Attorney-General (NSW) v Built NSW Pty Ltd (2013) 239 IR 102 at 125f. R v Moti (2010) 240 FLR 218 at 234-7 (appeal allowed on other grounds: Moti v The Queen (2011) 245 CLR 456). The headnote in the Federal Law Reports is wrong to suggest that a notice of alternative contention was not available in general, as distinct from containing matters of no substance in the case in hand. Muir JA did not say that, and indeed was treated by Holmes JA (at 231) as stating the opposite; Fraser JA had clearly the better argument, which also coincides with the law laid down in New South Wales. A notice of alternative contention was also lodged in R v LK (2010) 241 CLR 177, an appeal under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW) against a directed acquittal. The question arose in a very different context in Western Australia v Rayney (2013) 46 WAR 1 at 118-21. Cases in which alternative contentions were proffered without there being any sign of a notice are R v McDonald (unreported, NSW Court of Criminal Appeal, 10 August 1994); R v Scott (unreported, NSW Court of Criminal Appeal, 8 December 1998). On the other hand, in R v Petroulias (2005) 62 NSWLR 663 at 682 Mason P referred to the absence of a notice in terms suggesting one would have been required for such issues to be considered.

[5.70]

Publication of judgment

published judgments under pseudonyms consisting of full surnames,60 and has also used initials, although in some such cases it was doubtless also family members and victims who were to be protected even after the conclusion of the trial. In New South Wales, initials are often used to ensure that the pending trial is not affected,61 and practice directions indicate the procedure to be followed if a judgment on line is capable of affecting a jury’s deliberations.62 Nevertheless, the importance of the provision of reasons by the courts, not only to the parties but also to the profession and the general public, is so great that suppression of judgments or their publication under a pseudonym can occur only if necessary to ensure a fair trial, and only to the extent necessary to serve that goal. Thus, in Einfeld v The Queen63 there was, despite the high public profile of the accused, simply no reason why non-publication was required to ensure a fair trial. Publication of accuseds’ names and limited information about the charges may also cause further witnesses to come forward.64 However, full reasons for an interlocutory decision will often go beyond that and may contain references to material that is not to be submitted to the jury, for example. Even the information that an accused attempted to have certain evidence withheld from the jury may be prejudicial. In one Victorian case in which the discharge of a jury was upheld, the decision along with the ruling of the judge below were not published, “for obvious reasons”,65 until after the trial had concluded. It is within the inherent powers of the court to ensure that a fair trial is possible and thus this step is compatible with the directive in s 24(3) of the Charter of Human Rights and Responsibilities (Vic) that “[a]ll judgments or decisions made by a Court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits”, and with s 16 of the Open Courts Act 2013 (Vic). A similar step has been approved by the Court of Criminal Appeal for New South Wales in an appeal in a tendency/coincidence case, given that even with pseudonyms the factual situation might still be recognisable, and: particularly given the lack of opposition by the Crown, and the comparatively short time that would be involved. However, it is important that the Court’s judgments be available to the public in general as soon as any reason for restricting their availability ceases to be applicable. To enable that to happen, I [Campbell JA] propose to direct the Solicitor for Public Prosecutions to notify the

60

61 62

63 64 65

The pseudonyms are chosen by the Registry with the help of a random name generator. Unlike the gargoyles on churches, sometimes said to reflect with astounding accuracy the features of the enemies of the architect or builder, any similarity to the name of a real person is therefore wholly coincidental. For example, R v CE [2005] NSWCCA 326 at [1]; R v RGC [2012] NSWCCA 271 at [3]. Practice Note No SC CL 9; District Court Practice Note (Crime) No 8. Some judgments, perhaps because the factual situation cannot be disguised sufficiently and could be recognised by a juror, are not published at all until the trial, and even appeals, are concluded. A notable example was Gedeon v The Queen [2009] NSWCCA 278, which remained unpublished until special leave to appeal against the conviction was refused in 2014. This may be attributable to inadvertence but, if deliberate, indicates an excess of caution. (2008) 71 NSWLR 31 at 59. R v Davis (1995) 57 FCR 512 at 514, although there the court’s decision was that a permanent stay was upheld and thus no trial would ever occur. Director of Public Prosecutions (Vic) v Zheng [2013] VSCA 304 at [47].

147

148

5: Procedural Aspects of Appeals

[5.70]

Registrar of the Court, in writing, promptly after the trial of the Respondent has concluded. The judgment can then be placed on the internet promptly after that notification is received.66

It seems odd to find the court placing this requirement on an outside body – it should have its own systems for ensuring that publication occurs as soon as possible, especially given that these days there is a secure system for enabling practitioners to obtain access to restricted judgments and it is simply a matter of lifting the bar and publishing to the world.

Amici [5.80] In 2012 there was one case in which leave was sought to appear as an amicus by the Australian Crime Commission as it was “its” legislation that was being interpreted. Leave was refused on the ground that the Commission’s submissions were virtually indistinguishable from the Crown’s.67 A similar answer was given to the Victorian Bar and the Law Institute of Victoria in another case in the following year.68 Given the constraints surrounding interlocutory criminal appeals, most obviously time, it will be an unusual case in which such leave should be given and, if it is ever given, it will no doubt be strictly confined. If, for example, the Australian Crime Commission had had a point which was not raised by other counsel and it could have put it shortly, there might have been good reason to grant leave in the first case mentioned. A reference should also be made to Watkins v Commissioner for the Australian Federal Police69 where the Commissioner lacked the capacity to be a party to the appeal but was permitted to intervene because his rights and interests might be directly affected by the accuseds’ appeals against the setting aside of subpoenas directed to him.

66 67 68 69

R v Ford (2009) 201 A Crim R 451 at 488. Dale v The Queen (2012) 229 A Crim R 480 at 508. R v Chaouk (2013) 40 VR 356 at 376f. [2015] VSCA 321 at [16]. For the outcome, see above, Ch 2 fn 102.

6

Decision on Appeal, Precedential Status of Decision and Costs [6.10] Disposition if appeal allowed................................................................... 149 [6.10] Decision reversed.............................................................................149 [6.20] Restraining the Crown Prosecutor?.................................................151 [6.30] Decision varied................................................................................ 151 [6.40] Quashing order reversed..................................................................152 [6.50] Re-exercise of discretion................................................................. 152 [6.60] Referral back....................................................................................153 [6.70] Jury discharged/reinstated................................................................155 [6.80] Agreement reached.......................................................................... 156 [6.90] Precedential status of decision.................................................................. 156 [6.110] Costs of appeal........................................................................................ 161 [6.110] The general rule............................................................................. 161 [6.120] New South Wales...........................................................................161 [6.130] Victoria........................................................................................... 163 [6.140] Federal jurisdiction........................................................................ 165

Disposition if appeal allowed Decision reversed [6.10] If the decision below is wrong the most obvious outcome on appeal is for the decision to be reversed and the correct decision substituted for it. This involves an exercise of the power granted by s 5F(5)(a) and (b) of the Criminal Appeal Act 1912 (NSW) or s 300(2)(a) and (b)(i) of the Criminal Procedure Act 2009 (Vic). Under those provisions, any order may be made that the court below could have made, which allows for various consequential and ancillary orders to be made in addition to the principal one.1 Most obviously, this can be the right order to make if the question involved is susceptible of a yes-or-no, binary answer, such as when a statute is misinterpreted and evidence is consequently ruled inadmissible when in fact it was, on the proper interpretation of the statute, unobjectionable.2 1

2

For example, R v O’Connor [2000] NSWCCA 124 at [18]; R v Fandakis [2002] NSWCCA 5 at [54], in which, in addition to an order stating that a witness was not required to give certain evidence as a result of public interest immunity, answers given to questions in the court below were struck from the record. For example, R v Sarlija (2006) 167 A Crim R 101; Osborne v The Queen (2014) 283 FLR 97.

150

6: Decision on Appeal, Precedential Status of Decision and Costs

[6.10]

However, it is also possible that a decision which in theory requires a weighing up of competing factors, a value judgment and/or the exercise of a discretion, might be the subject of this power if the proper exercise of the discretion, etc can lead to only one right answer as a result of which there is “no basis for excluding the evidence”,3 “the result is inevitable, and the prospect of further error and a further appeal should be avoided”.4 The case for doing so is also slightly improved if in the proceedings in question the issue has been the subject of much deliberation and argument already or of several rulings, or if the position is otherwise unclear and in need of a final determination so that the trial can proceed efficiently and on a clear basis.5 In ZL v The Queen,6 for example, a decision to admit evidence pursuant to s 65(2)(b) of the Evidence Act 2008 (Vic) was reversed given that it had not been demonstrated that the witness in question was unavailable: the Crown had not made all reasonable efforts to find her and thus the order below was wrong. The order admitting the evidence was therefore set aside, although the Court of Appeal for Victoria pointed out that the Crown could reapply under s 65(2)(b) if it made further efforts before the trial to find the witness that might approach the standard of all reasonable efforts. In this case no discretion was involved, but given the half-heartedness of the efforts made to find the witness, the value judgment inherent in assessing whether all reasonable efforts had been made could have only one legitimate outcome. An instructive situation arose in R v Cittadini.7 The ruling under appeal there – that evidence was tendency evidence within the meaning of ss 97 and 101 of the Evidence Act 1995 (NSW) – was held incorrect and vacated, as the evidence was in truth evidence of an allegedly defective system of constructing yachts which caused the deaths in question, rather than of any general tendency. However, as it was possible that there might be some other objection to the evidence, it would not have been right to rule simply that the evidence in question was admissible. Rather, it was sufficient to indicate that the evidence in question was not tendency evidence and to leave any further objections to be taken in the court below. In R v Norris,8 the trial judge had made a ruling that evidence was irrelevant. The Court of Criminal Appeal for New South Wales held the ruling incorrect, and thus it vacated the ruling. However, the Crown abandoned its application for an order to the effect that the evidence was in fact relevant given that the trial in question had been abandoned and a new trial was necessary. At first sight it may appear that this showed perhaps an excess of caution given that relevance is not a question of discretion or value judgment but merely one of 3 4

5 6 7 8

R v Chanthovixay [2004] NSWCCA 285 at [54]. Attorney-General (NSW) v Stuart (1994) 34 NSWLR 667 at 684. Other cases to the same effect are R v Abdullah [1999] NSWCCA 188; R v Phan [2003] NSWCCA 205 at [16]; R v Westley [2004] NSWCCA 192 at [50]; R v Harker [2004] NSWCCA 427 at [59] (one issue only); R v CE [2005] NSWCCA 326 at [16]; R v Frangulis [2006] NSWCCA 363 at [34]; R v Camilleri (2007) 68 NSWLR 720 at 727; R v Seller (2013) 232 A Crim R 249 (special leave to appeal refused: Seller v The Queen [2013] HCATrans 204); R v Salami [2013] NSWCCA 96; SLS v The Queen [2014] VSCA 31 at [6]. R v Ford (2009) 201 A Crim R 451 at 491. (2010) 208 A Crim R 325. (2008) 189 A Crim R 492. For the ultimate outcome, see above, Ch 3 fn 342. [2014] NSWCCA 76 at [33].

[6.30]

Disposition if appeal allowed

logical connexion,9 but it is undeniable that there may be cases in which the question of relevance may alter from trial to trial and it was best to avoid tying the trial judge’s hands by an order from above.

Restraining the Crown Prosecutor? [6.20] In R v MG10 the Court of Criminal Appeal for New South Wales reversed the decision below and granted a temporary stay until the Crown Prosecutor was replaced. It then expressed the view11 that it could have considered restraining her, if joined as a party, from conducting the trial – although it did not say by what means she could have been so joined. Perhaps the starting point would be found in the words in s 12(1) of the Criminal Appeal Act 1912 (NSW) allowing the court to “exercise in relation to the proceedings of the Court any other powers which may for the time being be exercised by the Supreme Court on appeal or applications in civil matters”, but the point was not expressly decided or thoroughly considered, and it is perhaps enough of a commentary on it to say that the temporary stay was certainly enough to achieve the goal in mind.

Decision varied [6.30] There is no express power in the statutes to vary an order directly, as distinct from setting it aside and making a new one. This state of affairs reflects the idea that also lies behind the procedure for granting leave, namely that first an error must be alleged and then, if the allegation is substantiated, it is possible to proceed to the question of what to do about it. However, there is one case in which the Court of Criminal Appeal for New South Wales did, apparently using its own inherent powers, make a direct alteration to an order below. In R v Mosely,12 a judge had made a costs order against the Crown – justly on the facts, but without any power to do so. A further order was then made below staying the proceedings until that – invalid – order was complied with. On appeal, the second of those orders was varied to remove the objection attaching to it because of the invalidity of the first order, which it supposedly was made to enforce. The Court of Criminal Appeal for New South Wales did this by confirming the stay but providing simply that it would remain in force until the costs in question were paid rather than until the earlier invalid order was complied with. It is unlikely that this device will be needed in many cases. Indeed, it is not clear why it was needed in this case. It would have been possible to set aside, rather than to amend, the order for a stay made to enforce the first, invalid order, and to substitute for it the order that was correct under the circumstances. For that purpose the appeal can be allowed pro forma. That step occurred in Director of Public Prosecutions (NSW) v Allan,13 in which the Crown’s appeal against a Dietrich stay failed on all fronts, but the appeal was nevertheless allowed in order to vary the order slightly. Thus, the order of the court below granting a stay until legal aid was provided was quashed, and instead it was 9 10 11 12 13

See above, p 93. (2007) 69 NSWLR 20. R v MG (2007) 69 NSWLR 20 at 48. (1992) 28 NSWLR 735 at 741; see also R v Fisher (2003) 56 NSWLR 625 at 631; above, Ch 3 fn 104. [1996] NSWSC 4.

151

152

6: Decision on Appeal, Precedential Status of Decision and Costs

[6.30]

ordered that the stay should continue until legal representation was provided – the point being that, if legal representation of any type was found, even outside legal aid, that would suffice. It is therefore unlikely that the course taken in Mosely will need to be taken again in any later case.

Quashing order reversed [6.40] As was noted above (at p 58), if an appeal against a quashing order is allowed under s 5C of the Criminal Appeal Act 1912 (NSW), the trial then proceeds automatically. For this to happen, there is no need for any further order once the quashing order is set aside; the only orders that may be necessary under s 5C are ancillary orders for moving the matter forward – for example, listing it for mention or trial. Any further applications for other relief can be made only outside s 5C.

Re-exercise of discretion [6.50] Section 5F(5)(a) and (b) of the Criminal Appeal Act 1912 (NSW) and s 300(2)(a) and (b)(i) of the Criminal Procedure Act 2009 (Vic) also authorise the appeals court to re-exercise the discretion in question, or make its own value judgment in cases in which an error has occurred below but there is no one obviously right answer. In such a case the discretion or value judgment is truly being re-exercised or remade, rather than the only possible decision being substituted for a wrong one.14 This is a very broad power, as is illustrated by the orders made in R v Kennedy:15 in lieu of an order dismissing an application for a Dietrich stay, a trial date three weeks hence was vacated and directions were given for the further progress of the matter involving a special hearing pursuant to a remitter of the case under s 12(2) of the Criminal Appeal Act 1912 (NSW) to determine the accused’s means and the approximate cost of representation. The question whether the court should exercise such a power will depend upon a number of factors, such as: the imminence of the trial; whether the answer depends in part on evidence or is a question largely divorced from detailed evidentiary considerations (such as whether the accused should have a trial by judge alone); the likelihood, if the issue does depend upon the precise shape of the evidence, that the evidence available later might differ from that known at the time of the appeal; the extent to which issues of credit given to evidence may be decisive; whether the trial has in fact commenced, making it perhaps wiser to defer to the trial judge’s judgment; the attitude of the parties on the point; and whether the issue should be dealt with speedily and not be allowed to cause further delay given the extent of delay so far and the need for a trial to take place as swiftly as possible.16 It is certainly possible that the decision below might, in the result, be confirmed, for it may have involved erroneous reasoning but be supportable 14 15 16

Numerous examples exist: see, eg, R v Littler (2001) 120 A Crim R 512 at 528f; Redman v The Queen [2015] NSWCCA 110. (1997) 94 A Crim R 341 at 348f, 354. R v Ford (2009) 201 A Crim R 451 at 484-7; R v Ngatikaura (2006) 161 A Crim R 329 at 336 (dissenting); R v Smith (1996) 86 A Crim R 308 at 315; R v Stanley [2013] NSWCCA 124 at [41]. Recently, in TS v The Queen [2014] NSWCCA 174 at [60] the court exercised this power but did not give its reasons for not referring the question back.

[6.60]

Disposition if appeal allowed

once the error is removed.17 The factors mentioned also clearly pull in different directions and, although obviously not each will be of equal weight in every case, it will sometimes be a difficult decision whether to allow a trial judge to make a decision or for the appeals court to make it itself.

Referral back [6.60] The relevant statutory powers for referral back are s 5F(5)(a) of the Criminal Appeal Act 1912 (NSW) and s 300(2)(a) and (b)(ii) of the Criminal Procedure Act 2009 (Vic). The latter statute adds (s 300(3)) that the Court of Appeal for Victoria may give directions about the basis for determining the matter which are binding on the court below. This is implicit in the idea of an appeal within a hierarchical system of precedent and thus the omission of any such provision in New South Wales makes no difference. It is merely another example, and perhaps the most egregious, of the Victorian statute’s garrulousness. Needless to say, referral back will be most obviously indicated in cases in which a discretion must be exercised, or a value judgment made, and it is not clear that there is only one possible sensible answer,18 or the factors considered in [6.50] above suggest that the re-exercise of the discretion by the appeals court itself is the less desirable course. In such cases, it may be that the re-exercise of the discretion below according to proper principles and in accordance with the appeal judgment will produce the same result as that against which the appeal was brought.19 If the appeals court is not willing to see that outcome, it would be better for it to exercise the discretion itself, a course for which (as we have seen) it has ample powers and precedents – but there is at least one case in which the Court of Criminal Appeal for New South Wales merely sent the case back with a strong hint about the right answer.20 An unusual situation arose in R v Dodd:21 the accused had made application to the trial court for a permanent stay or the quashing of the indictment, both of which were refused; but it was held on appeal that they could raise an autrefois plea. The powers of the Court of Criminal Appeal for New South Wales under s 5F(5)(b) would have been sufficient to make this alteration once the original judgment had been vacated, but it chose instead to send the case back in the expectation that the Crown would not proceed on the charge. Referral back may also be necessary if further discretions may come into play once a ruling on evidence given under one particular principle has been 17

18 19

20

21

As in Cargnello v The Queen [2009] NSWCCA 192; BJS v The Queen [2011] NSWCCA 239 at [38]; R v Gale (2012) 217 A Crim R 487 at 495-500; and possibly also R v Goldburg (unreported, NSW Court of Criminal Appeal, 23 February 1993). In R v Moore [2015] NSWCCA 316 at [246] – [251] Simpson J (dissenting) would have dismissed an appeal against a stay, subject to receiving further submissions from the parties, because, while error in granting the stay had been established, delay in bringing the prosecution made it an abuse of process anyway. As in, eg, R v G [2005] NSWCCA 291 at [66]. For a case in which the court divided on this question, see R v Sibraa [2012] NSWCCA 19 at [5], [27], [30]. DSJ v The Queen (2012) 84 NSWLR 758 at 788; see also Gentry v Director of Public Prosecutions (Vic) [2014] VSCA 211 at [47], in which no error of principle had occurred and the appeal was dismissed, but that did not foreclose reconsideration after the special hearing. R v Lisoff [1999] NSWCCA 364 at [60] – [68], and perhaps also R v Smith (2008) 190 A Crim R 8. But see RM v The Queen (2012) 221 A Crim R 465 at 487, where an intention to provide hints was expressly disclaimed. (1991) 56 A Crim R 451.

153

154

6: Decision on Appeal, Precedential Status of Decision and Costs

[6.60]

decided upon and disposed of, as in the case of R v Cittadini just referred to.22 In that case, the decision below that evidence was inadmissible under one rule was set aside on appeal, but it might have been inadmissible under other principles (such as the “more prejudicial than probative” discretion) and it was necessary for the trial judge to decide that. Therefore, the case was referred back. The need to “hold fire” may also arise, as in R v Em,23 because all the evidence is not in, and once it is there may be further issues to be dealt with before any particular item of evidence can finally be ruled admissible or not. In that case, a decision that a confession was inadmissible under the fairness discretion could be set aside as the reasoning that underlay it was wrong, but it could not be held positively that the confession was admissible until further factual issues had been investigated. For that purpose, rather than for the re-exercise of the discretion in issue in the appeal, the matter needed to be referred back to the trial court (but to a different judge to preserve the appearance as well as the reality of impartiality). Both factors – the need for a discretion to be exercised and the serious possibility of a change in the evidence – coalesced in R v Harker:24 I do not believe that the Court should indicate how the discretion arising under s 101(2) [of the Evidence Act 1995 (NSW)] should be exercised if, and when, the matter comes back before the District Court [of New South Wales] for hearing as to the admissibility of the evidence of DE. Of course on that occasion the material before the trial judge might be different to that which was before Judge Puckeridge, particularly if DE is called to give evidence on a Basha inquiry and is cross-examined on behalf of the respondent. Further, the nature of the discretion under s 101(2) is such that reasonable minds might differ on how it should be exercised in any particular case. It could not be said that it is not open for a trial judge to exercise the discretion under s 101(2) to reject the evidence, provided of course that the discretion is exercised in a principled way and adequate reasons are given.25

In Joud v The Queen,26 the matter was referred back to the trial judge for another evidence-related reason, namely that there was a large volume of evidence and the trial judge was much more familiar with it than the appeals court. 22 23

24 25 26

See above, Ch 6 fn 7. For similar cases, see: R v MM [2004] NSWCCA 364 at [55] – [57]; R v Cooney [2013] NSWCCA 312 at [9]. [2003] NSWCCA 374 at [139]f (further proceedings: Em v The Queen (2007) 232 CLR 67). See also R v ELD [2004] NSWCCA 219 at [28]; R v SJRC [2007] NSWCCA 142 at [42]; R v Lipton (2012) 224 A Crim R 177 at 191f; R v Jarrett [2012] NSWCCA 81 (apparently); R v Bright [2014] VSCA 341 at [54], [122]; ER v Khan [2015] NSWCCA 230 at [116]f. A case which is similar in effect, although not quite in the cause of the evidentiary difficulty, is R v Bozatsis (1997) 97 A Crim R 296 at 305. In the federal system, the Explanatory Memorandum to the Federal Court of Australia Amendment (Criminal Jurisdiction) Bill 2008 (Cth), which introduced the interlocutory appeals system there, stated (at [326]): “If the Court hears an appeal against an interim judgment or decision it will also have power, if appropriate, to defer judgment on the appeal until the substantive proceedings have been completed.” There is no such express power in the legislation but such an order was clearly thought inherent in the court’s powers. Experience in other jurisdictions suggests, however, that such an option will rarely, if ever, be needed. [2004] NSWCCA 427. R v Harker [2004] NSWCCA 427 at [60] (reference omitted). (2011) 32 VR 400 at 445.

[6.70]

Disposition if appeal allowed

Referral back can also be used as a means of keeping a matter under review. In a dissenting judgment – the two other members of the Bench would have dismissed the accused’s appeal – Smart AJ considered the order that should be made after a decision that the accused’s representation was inadequate: The trial fixed for 14 February 2000 should be vacated. There are two alternatives, namely, to grant a stay until legal representation is available to the applicant for trial on the counts in the indictment, or to remit the matter to the District Court [of New South Wales] for close supervision by a judge of that Court, in the expectation that a trial date will be set some fifteen to twenty-four months hence. The applicant has made out a case for either form of relief. I prefer the latter form because it is the more effective way of dealing with this matter. It will keep the applicant up to the mark, and allows greater flexibility. It would not be beyond the Court’s power to require the applicant to set aside weekly amounts to meet his costs. If the moneys held by the wife are paid to the Taxation Department that may enable a fresh application for legal aid to be made.27

In SLS v The Queen,28 the Court of Appeal for Victoria took the rare step of directing that the matter should be reconsidered by a different judge from the one from whom the appeal was brought. It did not explain this decision expressly, because both parties agreed to it, but the lack of explanation contrasts with the giving of an explanation in R v Em,29 and is unfortunate from the point of view of those whose lot it is to expound the law or to seek to have it applied in future cases. The court refused to make the same direction in Director of Public Prosecutions (Vic) v Brownlie30 and this time explained why: there was no reason to conclude that the trial judge would not be detached and fair. Nevertheless, in future cases, especially if errors on the scale committed in SLS are again committed, it will be open to argue that a similar order should be made on that basis.

Jury discharged/reinstated [6.70] In New South Wales appeals against the discharge of (but not the refusal to discharge) a whole jury may be brought under s 5G of the Criminal Appeal Act 1912.31 With that exception, jury-related issues can be dealt with under the courts’ ordinary powers to deal with interlocutory appeals, although they are clearly most likely to arise during the trial. Section 5G(3) does not, at any rate, deviate greatly from the usual formula insofar as it states that, on an appeal, the Court of Criminal Appeal for New South Wales may affirm or vacate the decision appealed against, and in the latter case may make some other decision. There appears to be no case law applying this provision and only one case, Petroulias v The Queen,32 in which a jury was actually discharged by order of an appeals court under s 5F(5)(a) and

27 28 29 30 31 32

R v BK (2000) 110 A Crim R 298 at 315. [2014] VSCA 31 at [6], [72] fn 30. [2003] NSWCCA 374; see above, Ch 6 fn 23. [2015] VSCA 267 at [70]f. For the background, see above, p 9. (2007) 73 NSWLR 134.

155

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[6.70]

(b) (the reverse of the situation contemplated by s 5G, which applies to appeals against decisions below that discharge juries, not to decisions below that do not).33 Petroulias suggests that the powers of the appeals courts to reinstate or discharge individual jurors are quite ample, but in both New South Wales and Victoria there are statutory and/or case law restrictions on the extent to which appeals are available against such decisions at all, as was shown in Chapter 3.

Agreement reached [6.80] An unusual situation arose in R v Heatley:34 during the hearing of an interlocutory appeal in the course of that long-running saga, the Bench suggested the outline of a compromise solution in a dispute about the production of documents. The appeal was adjourned part-heard while the procedures in question were implemented and, that having been successfully accomplished, the appeal was formally dismissed. And in R v GLC,35 the Crown conceded that there should be separate trials and that the tendency/ coincidence evidence was not cross-admissible. The court formally dismissed the accused’s appeal so that effect could be given to this view by presenting two new indictments. Agreement was also reached in R v Jackson36 and R v RGC37 that the issue of tendency/coincidence evidence needed reconsideration below, and to permit that to occur the appeal was allowed without opposition or by consent, the order below set aside and the matter sent back to the trial court for reconsideration.

Precedential status of decision [6.90] The relevant provisions in both statutes – the Criminal Appeal Act 1912 (NSW) s 5F(6) and the Criminal Procedure Act 2009 (Vic) s 297(3) – contain statements to the effect that the refusal of leave for an interlocutory appeal does not prevent the institution of an appeal after conviction.38 Other than that, neither statute contains anything determining the precedential status of decisions in interlocutory criminal appeals, with the possible exception of the slightly mysterious s 301 of the Victorian statute, which requires, for an unstated reason, the decision of the appeals court to be entered on the record of the trial court after transmission by the Registrar of Criminal Appeals.39 The provisions are virtually identical, except that the section in New South Wales refers to the non-preclusion of appeals “following a conviction” – and those words are absent in Victoria. There is no obvious type of appeal, not 33 34 35 36 37 38

39

See above, p 73; see also R v RGC [2012] NSWCCA 271. [2003] NSWCCA 163. [2000] NSWCCA 99. For a comparable situation, but with the defence conceding, see R v Han [2011] NSWCCA 120. [2001] NSWCCA 387. [2012] NSWCCA 271. For another reference to resolution by agreement, see above, Ch 3 fn 267. For a case on whether this includes a Victorian review of a judge’s decision not to certify, see Kumar v The Queen [2014] VSCA 102 at [12]f. The view to which the court inclined there is clearly right, as s 297(3) only confirms what the law would be anyway, as is demonstrated in the text, and injustice could not possibly be ignored after conviction simply because of what happened beforehand. See also County Court of Victoria, Practice Note No 2 of 2010 at [142], [147].

[6.90]

Precedential status of decision

being an appeal against conviction, to which the omission of these words could be intended to refer, other than, perhaps, a further interlocutory appeal. It would seem that there is no general power to reopen an interlocutory appeal and have the orders set aside once they are perfected.40 Occasions on which a second interlocutory appeal on the same issue would nevertheless be both legally open and a sensible course would necessarily be rare, but they can be imagined – if, for example, the evidence changed so significantly that it was not a question of setting aside past orders but rather making new ones on a new factual foundation.41 Nevertheless, the Victorian version of the rule merely clarifies the law by allowing for a second interlocutory appeal; the law is no different, as we shall see, from what it is in New South Wales. Subject to that refinement, ss 5F(6) and 297(3) are best understood as having, first, the purpose of heading off at the pass any possible argument (weak though it would be, for a reason about to be encountered) that the principle that only one appeal is allowed to the accused applies to prevent a conviction appeal after leave was refused for an interlocutory one;42 and, second, as indicating that the court does not need to feel any pressure to grant interlocutory leave upon the assumption that any problem may not be susceptible of correction later simply because of a refusal of interlocutory leave.43 Of course, the sections do not conversely mean that leave must automatically be granted for a conviction appeal. It is easy to conceive of cases in which it might be almost inevitable that leave would be refused for such an appeal (for example, a hopeless pre-trial application for separate trials when the evidence unfolded as expected at trial) even though it was also refused for an interlocutory appeal. The sections do not state what the position is when leave is granted for an interlocutory appeal but that appeal is dismissed. On first principles, however, it is clear that the rule against multiple criminal appeals does not apply, for the interlocutory appeal is an appeal against a particular judgment, order or decision, whereas the post-verdict appeal is an appeal against conviction (or, in the rare case, acquittal). The two appeals are against different things and are judged against different standards. It is perfectly possible that the state of the evidence might be such as to make it sensible to postpone consideration of a point until after the trial is concluded and the final shape of the evidence is known, and that an interlocutory appeal might be dismissed for this reason without prejudice to any appeal after conviction. On the other hand, it has been suggested – although not decided – in the Court of Criminal Appeal for New South Wales that, if there is no material 40

41

42 43

See Ove Arup Pty Ltd v WorkCover Authority (NSW) (2005) 141 IR 78, in which an appeal had been allowed and the respondents wished to reopen it after a later case determined that the appeal was incompetent owing to lack of jurisdiction. See further, B Sangha and R Moles, “Post-Appeal Review Rights: Australia, Britain and Canada” (2012) 36 Crim LJ 300 at 305-8. On the question of successive interlocutory appeals on different points, see above, Ch 4 fn 79. An example of a second interlocutory appeal on the same issue does exist: Tuite v The Queen (No 2) [2015] VSCA 180 (the judgment indicates that the court did not favour it in this case). For example, R v Andrews [2012] SASC 78. Compare DAO v The Queen (2011) 81 NSWLR 568 at 574: “as a matter of caution”; for examples, see R v Folli [2000] NSWCCA 460 at [10]; R v O’Meara [2003] NSWCCA 206 at [8]; O’Meara v The Queen [2006] NSWCCA 131 at [9]. For a case in which inaction at the interlocutory stage was wrongly allowed to prejudice the accused post-conviction, see below, Ch 6 fn 65.

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[6.90]

change in the evidence, it may be that a post-conviction appeal cannot be brought on the same point on which an interlocutory appeal was dismissed. This could be because of some principle analogous to issue estoppel or because “[i]t would be invidious if a second Bench of this Court were to rule upon the correctness of a decision of an earlier Bench”44 (although such a thing is hardly unknown – even though it seldom happens in one and the same case). In principle, however, it is, for the reasons given in the previous paragraph, not open to formal objection that an appeal is brought on the same point after conviction as beforehand.45 It is, first, conceivable, even if admittedly not usually very likely, that a decision on a particular point (say, the admission of the accused’s criminal past) may appear justifiable when taken in isolation, but on looking at the trial as a whole in retrospect can be seen to have caused arguable injustice. The Court of Appeal for Victoria has, moreover, stated that it might consider permitting the argument to be run after conviction that a decision by a previous interlocutory Bench was wrong in principle;46 it has allowed one appeal against conviction on points which failed at the interlocutory stage, noting that “analysis of the issues ventilated on the interlocutory appeal might yield to a different result on an appeal against conviction”;47 it has also considered at length and dismissed only by majority a post-conviction appeal against an accused on, in part, the same basis as an interlocutory appeal was heard and dismissed.48 As Maxwell P quite rightly said in R v Vjestica49 in reference to one topic in particular, but in words that could be applied more generally:50 While the pre-trial ruling on change of venue is an exercise in risk assessment, the post-conviction appeal against a refusal to order a change of venue is a hindsight review. The appeal court must decide whether a miscarriage of justice occurred as a result of the refusal to order a change of venue.

[6.100] If there is no claim of incorrectness in the law applied at the interlocutory stage or material change in the evidence, or other exceptional circumstance, it is certainly true that a repeat performance of the interlocutory criminal appeal would simply cancel out the benefits that flow from having interlocutory criminal appeals at all.51 However, the courts have quite enough power to prevent such a thing – that is, the requirement of leave which applies on conviction appeals as well (except for “pure” points of law in New South Wales – which are, however, also the least likely to need any form of reconsideration).52 Any argument that a conviction appeal would be simply a recapitulation of an interlocutory criminal appeal should be dealt with in the 44 45 46 47

48 49 50

51 52

DAO v The Queen (2011) 81 NSWLR 568 at 607; see also at 608; contra at 574f; left open at 590; not discussed by Kirby J. And it is often the case that the same judges may hear both appeals: R v El-Zeyat [2012] NSWSC 340 at [38]f. Kumar v The Queen [2014] VSCA 102 at [12]. Bauer v The Queen [2015] VSCA 55 at [133] fn 67; the earlier case was WEA v The Queen [2013] VSCA 386; see also Tuite v The Queen [2015] VSCA 148 at [14]; Tuite v The Queen (No 2) [2015] VSCA 180 at [32]. Reeves v The Queen (2013) 236 A Crim R 448, esp at 463, 473. (2008) 182 A Crim R 350. R v Vjestica (2008) 182 A Crim R 350 at 354; see also BSJ v The Queen (2012) 35 VR 475 at 480; McCartney v The Queen (2012) 38 VR 1 at 11f; Tuite v The Queen [2015] VSCA 148 at [8], [14] (but note the qualification above, Ch 3 fn 296). New South Wales Law Reform Commission, Report No 140, Criminal Appeals (2014) p 218. See also s 107(2) of the Crimes (Appeal and Review) Act 2001 (NSW).

[6.100]

Precedential status of decision

application for leave to appeal after conviction and having regard to the proposed grounds of appeal and the standard of review applicable to them – for example, whether it is a discretion/value judgment or not, and whether it is suggested that there was in fact a material change in the evidence. Such a view reflects the expectations of those who drafted the Victorian scheme.53 Neither principle nor practice justifies any stronger rule, and thus the Court of Criminal Appeal for New South Wales has reviewed after conviction (and again affirmed) the trial judge’s decision not to order separate trials in Darwiche v The Queen54 even though it had also dismissed an interlocutory criminal appeal on that point. This was a sensible course to take given that further alleged prejudice to the accused had resulted during the trial. Assuming that a decision is made on an interlocutory appeal application – whether by granting leave and deciding the point, or by refusing leave with reasons that make it clear that an appeal, had one been available without leave, would have been dismissed – the next question that arises is to what extent the court below is bound by the Court of (Criminal) Appeal’s reasons. If a “pure” point of law is involved, there may be no doubt about this. For example, if the appeals court decides that the offence with which the accused is charged is constitutionally valid, or that an expression in its statutory definition has a certain meaning, clearly the trial court could not differ from that.55 On the other hand, as we have seen, many decisions against which appeals can be taken are either discretions properly so called or value judgments, rather than yes/no, on/off binary decisions. In such cases the principles that guide the exercise of such discretions or value judgments bind the lower courts, and any view on the part of the appeals court that a certain result could not be arrived at by a proper exercise of the discretion or making of the value judgment would also be binding; otherwise the actual exercise of the discretion or making of the value judgment is individual to each judge. If the appeals court does not conduct the applicable exercise itself, the trial judge is bound by the principles it expresses, but not by anything else. Nevertheless, there have been cases in which substantial hints have been provided in the appeals court about the most likely outcome of the re-exercise of the discretion or value judgment below.56 This point may be particularly important if the shape of the evidence changes. The liability of evidence in criminal trials to undergo subtle or not-so-subtle mutation is a further reason why the precedential value of a decision on an interlocutory criminal appeal might be less than usual. Clearly, a decision made in the expectation that the evidence will have a certain shape will lose some or all of its cogency if the evidentiary basis for it changes. Indeed, it is of the nature of interlocutory rulings that they are not final and can always be reversed for good cause by the trial judge.57 53 54 55

56 57

Department of Justice (Vic), Criminal Procedure Act 2009 – Legislative Guide, p 281. [2011] NSWCCA 62 at [184]. Another example is R v El-Azzi [2004] NSWCCA 455 at [13] – [42]. For examples, see above, Ch 4 fn 67; R v Petroulias (No 1) (2006) 217 FLR 242 at 259; R v Selim [2007] NSWSC 362 at [30]. Another example could be the point decided in Agius v The Queen (2011) 80 NSWLR 486 (special leave to appeal refused: Agius v The Queen [2011] HCATrans 171), despite what is said at 489. The Court in R v El Hassan (2001) 126 A Crim R 477 at 478 seems to have undersold itself on this point; but probably the appeal was incompetent anyway: see above, Ch 3 fn 234. See, eg, above, Ch 6 fn 20. DAO v The Queen (2011) 81 NSWLR 568 at 574; Gentry v Director of Public Prosecutions (Vic) [2014] VSCA 211 at [47].

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[6.100]

There have, indeed, been some cases in which an appeals court has made a decision on an interlocutory appeal as it stood at a particular point and expressly reserved the right of the trial judge to change the ruling if the evidence changed.58 A particularly clear example of this was ZL v The Queen,59 in which the question was whether the Crown had taken all reasonable steps to find a particular proposed witness. The Court of Appeal for Victoria held that this was not so at the time of its decision and thus allowed the appeal from the court below in which the contrary conclusion had been reached, but added that the judge should reconsider the question at, or shortly before, the trial in the light of any further steps the Crown had taken by that stage.60 Another frequently mentioned example of circumstances in which an interlocutory order may need to be reviewed is the decision whether a joint or separate trial is to be had, given that “material may emerge during a joint trial which makes it unjust to proceed other than by ordering a separate trial”.61 In such cases also, a post-conviction appeal against the decision of the trial court following the interlocutory appeal can, clearly, not be ruled out a priori. Another important point along the same lines was made by the Court of Appeal for Victoria in dismissing an appeal in Director of Public Prosecutions (Cth) v Karabegovic:62 We should not be taken, however, to have endorsed the precise terms of the proposed direction to the jury which the Judge included in his ruling. That is not the function of an interlocutory appeal. The Court drew attention during argument to certain aspects of the proposed direction which might require reconsideration. The transcript of argument is available for the assistance of the Judge and the parties. The final form of the direction will, of course, depend on the evidence given at the trial.63

Mention should also be made of the precedential status of inaction. In R v DF64 a trial judge treated the Crown’s failure to appeal in an earlier, otherwise unrelated, case as if it were confirmation of the ruling in that earlier case. This seems to be reading too much into inaction, which may be attributable to many 58

59 60 61

62 63

64

In addition to the authorities about to be mentioned in the text, see: R v Kennedy (1997) 94 A Crim R 341 at 353 (but see the same case, R v Kennedy [1998] NSWSC 671); R v Birdsall [1997] NSWSC 66; R v Meissner [1999] NSWCCA 91 at [18]; Cargnello v The Queen [2009] NSWCCA 192 at [22]; R v FJL [2014] VSCA 57 at [89]; Hinton v The Queen [2015] VSCA 40 at [11]f; Tuite v The Queen [2015] VSCA 148 at [14]; Sanders v The Queen [2016] VSCA 6 at [22]f; Luna v The Queen [2016] VSCA 10 at [42]. A less useful example is R v Ford (2009) 201 A Crim R 451 at 484, given that the possibility of change of evidence in that case was, according to the court, only theoretical. In Lipton v The Queen [2010] NSWCCA 175 at [22] the court raised the possibility of issuing a new subpoena, and although this did not happen, further developments were considered in R v Lipton (2011) 82 NSWLR 123; (2012) 224 A Crim R 177. (2010) 208 A Crim R 325. ZL v The Queen (2010) 208 A Crim R 325 at 331. R v Saunders (1994) 72 A Crim R 347 at 353; see also McNamara v The Queen (1978) 20 ALR 98 at 100, 102; R v Bailey (1988) 36 A Crim R 30 at 32; R v Georgiou [1999] NSWCCA 125 at [19]; R v O’Meara [2003] NSWCCA 206 at [8]; O’Meara v The Queen [2006] NSWCCA 131 at [9] (stay); Powch v The Queen [2006] NSWCCA 147 at [15]; McKellar v The Queen [2014] NSWCCA 35 at [27]. (2013) 282 FLR 383 (special leave to appeal refused: Director of Public Prosecutions (Cth) v Karabegovic [2014] HCATrans 179). Director of Public Prosecutions (Cth) v Karabegovic (2013) 282 FLR 383 at 385. This does not mean, however, that appeal Judges are precluded from expressing an opinion about what directions will need to contain as a result of the decision on appeal, as in Luna v The Queen [2016] VSCA 10 at [46]. (2014) 19 DCLR (NSW) 30 at 31, 36.

[6.120]

Costs of appeal

causes beyond complete customer satisfaction, but the Crown’s remedy in the later case, if still dissatisfied, is, of course, to bring on the appeal that did not occur after the earlier one. Far more undesirable is the mobilisation of inaction at the interlocutory stage as an argument against the accused on a post-conviction appeal, as in Luland v The Queen,65 which can only be explained by the extreme delays and difficulties that had been experienced on the very point in question in earlier trials in that case, and the need to resolve jury-related matters on the spot. This point should not be made against accused persons in any future case. As the High Court of Australia said in Cornwell v The Queen,66 “[t]o launch interlocutory appeals under s 5F of the Criminal Appeal Act against all rulings which they were dissatisfied with would run foul of the strong repugnance appellate courts have towards interrupting trials by interlocutory appeals.”

Costs of appeal The general rule [6.110] In both New South Wales and Victoria,67 the general rule is that costs

are not awarded in indictable criminal matters, and that includes appeals.68 This applies even if, in fact, the appeal was not competent (for example, an appeal by an accused in New South Wales against something that is clearly not a “judgment or order” within the meaning of s 5F(3) of the Criminal Appeal Act 1912 and also does not come under any other provisions such as s 5G), although there is a possible exception for cases in which the appeal is an out-and-out abuse of process.69 In both States, however, there are – different – mechanisms by which costs may be claimed in exceptional cases or from a central fund.

New South Wales [6.120] Here one-and-a-half possibilities exist, the first of which is subject to s 17(1) of the Criminal Appeal Act 1912 and therefore does not permit costs of the interlocutory appeal to be awarded, as distinct from the costs below,70 which is why it is here referred to as only half a possibility. Under s 2(1)(a) of the Costs in Criminal Cases Act 1967 (NSW),71 a trial court may, “where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken” – something which may obviously occur if the Crown loses an 65 66 67

68 69 70 71

[2007] NSWCCA 64 at [29]. (2007) 231 CLR 260 at 297. On costs orders below and appeals against them, see above, Ch 3 fnn 15, 104, 297; R v Harker [2004] NSWCCA 427 at [59], [63]; Environment Protection Authority v Truegain Pty Ltd (2013) 85 NSWLR 125; Stanizzo v Complainant [2013] NSWCCA 295. Criminal Appeal Act 1912 (NSW) s 17(1); Criminal Procedure Act 2009 (Vic) s 409(a); R v Payara (2012) 36 VR 326 at 328. Sasterawan v Morris (2010) 201 A Crim R 302 at 314, 321-3. R v Manley (2000) 49 NSWLR 203 at 207. This state of affairs is criticised in New South Wales Law Reform Commission, Report No 140, Criminal Appeals (2014) p 204ff. On this Act, see generally, G Dal Pont, Law of Costs (3rd ed, LexisNexis Butterworths, Sydney, 2013) pp 868-77.

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[6.120]

interlocutory appeal – grant a certificate stating (to paraphrase) that the prosecution was not reasonable on all the facts, which in turn enlivens a discretion72 under s 3 in the Director-General of the Attorney-General’s Department to pay a sum towards the accused’s costs. Under s 2(3), a trial “includes preliminary proceedings that form part of the trial, for example, a voir dire”.73 This statute is clearly unrelated to appeals as such, but may on occasion find application following an interlocutory criminal appeal. A source of funds specifically designed for appeals is the Suitors’ Fund established under the Suitors’ Fund Act 1951 (NSW). The central provision for present purposes is s 6(2)(b),74 which allows a respondent accused in a Crown appeal which has been allowed to apply for an indemnity certificate for costs up to the maximum of $10,000. The purpose of this was explained in Director of Public Prosecutions (NSW) v Moradian:75 [Section] 6 only applies where an appeal “succeeds”. Where that occurs, the purpose of the statute is to relieve the unsuccessful respondent of at least part of the costs for which he or she will be liable in circumstances where the court system, run by the State, has erred. If the appeal is unsuccessful, at least in civil cases, the respondent will be likely to obtain an order for the payment of his or her costs by the appellant. In criminal cases no such entitlement arises. The expense incurred by the successful respondent is not caused by a failure of the court system, but by the erroneous attempt by the appellant, in this case the Director acting on behalf of the State, to overturn the decision of the Court below.

Thus, a premium is placed on failure and the successful respondent/accused, in cases where the Crown appeal fails or (as in Moradian) is withdrawn, has no recourse to the Suitors’ Fund.76 There are a few cases77 in which an unsuccessful respondent/accused, after the Crown’s appeal against the ruling below has succeeded, has obtained without great difficulty the necessary certificate; this, under s 6(5), is generally in the discretion of the court. However, in R v King,78 which was a case dealing with the status of a foetus deliberately attacked by the accused in its mother’s womb, Dunford J, with whom Spigelman CJ and Adams J agreed on this point, stated: It has not in my experience been the practice of this Court to grant certificates of indemnity in appeals under s 5F and I see no reason why the practice should be varied as a general rule. This case was exceptional in that it raised a question of public importance and involved a consideration of decisions of the highest Courts 72

73

74

75 76 77

78

On the discretionary nature of this decision, see New South Wales Parliament, Legislative Assembly, Debates (17 October 2001) p 17552; Solomons v District Court of New South Wales (2002) 211 CLR 119 at 131, 144, 165. See also G Dal Pont, Law of Costs (3rd ed, LexisNexis Butterworths, Sydney, 2013) pp 868ff. For a case in which an interlocutory appeal by the Crown was allowed but the accused was later acquitted by direction on appeal and then received the costs certificate under the legislation in question, see Cittadini v The Queen [2010] NSWCCA 291. An unusual case in which s 6A(1)(c) was mobilised is R v Beeby (1999) 104 A Crim R 142. In this case it appears that “a somewhat benevolent view” (at 148) was taken, not merely of the question of the accused’s fault, but also of when a hearing is discontinued and a new trial ordered. [2010] NSWCCA 27 at [11]. This appears to have been overlooked in R v Milenkovic (2005) 158 A Crim R 4 at 8. R v Rima (2003) 145 A Crim R 27 at 43; R v NKS [2004] NSWCCA 144 at [19]. Records or statistics allowing it to be said whether there are any other cases are not kept, according to the Department of Justice: e-mail communication with the author (4 November 2014). (2003) 59 NSWLR 472.

[6.130]

Costs of appeal

of the United Kingdom, Canada and New Zealand; and although the Crown Advocate in written submissions submitted that the appropriate remedy for the respondent was an application under s 6C, in oral submissions he conceded that s 6(1) of the Act applied. In these circumstances I have, with some hesitation, come to the conclusion that this is an appropriate case for the grant of an indemnity certificate, but in my opinion the grant of such certificates to unsuccessful respondents in appeals under s 5F should be limited to exceptional cases.79

On the other hand, in an appeal in a summary case under s 56(1)(c) of the Crimes (Local Courts Appeal and Review) Act 2001 (NSW) the Court of Appeal for New South Wales granted a certificate to an unsuccessful respondent/defendant and stated: “Where the power is available, a certificate is usually granted as a matter of course, in the absence of particular considerations which would warrant withholding a certificate in the exercise of the Court’s discretion.”80 This was in form not an interlocutory appeal, but in reality the dismissal of the case against the defendant had resulted from an evidentiary ruling. Perhaps the “practice of [the] Court” just referred to should be reconsidered. Section 6C of the Suitors’ Fund Act 1951 further permits what are in effect ex gratia payments from the fund by the Attorney-General’s Department in cases not covered by the standard provisions of the Act. It might be used by a successful respondent or appellant accused in interlocutory appeals, for example, but it is settled that the courts will not make any recommendation or otherwise involve themselves in applications under this section, at least for interlocutory criminal appeals.81 The responsible branch of the Department of Justice is not aware of any payments ever having been made under this provision in an interlocutory criminal appeal.82 In King, Spigelman CJ also rejected the idea that the Crown should be required to provide indemnity for costs to the accused as a condition of being permitted to prosecute its appeal on the ground that the allowance of $10,000 from the Suitors’ Fund should suffice.83

Victoria [6.130] In Victoria, ss 15A and 15B of the Appeal Costs Act 1998 were introduced specifically to deal with interlocutory criminal appeals: under the former an accused who successfully appeals may obtain reasonable costs, and under the latter the accused may seek reasonable costs in case of a prosecution appeal regardless of its outcome. This scheme leaves an accused who appeals or seeks leave to appeal unsuccessfully to pay his own costs (if not legally aided). 79 80

81

82 83

R v King (2003) 59 NSWLR 472 at 478, 492. Robinson v Zhang (2005) 158 A Crim R 575 at 585; see also R v Aubrey (2012) 82 NSWLR 748 at 761 (special leave to appeal refused: Aubrey v The Queen [2013] HCATrans 110), where the issue of the certificate is treated as if it were a normal entitlement. R v Gilfillan (2003) 139 A Crim R 460 at 474; Director of Public Prosecutions (NSW) v Moradian [2010] NSWCCA 27 at [9]. In other types of cases statements have occasionally been made to a positive effect, as in Blackman v Blackman [2003] NSWSC 1200 at [5]; and perhaps this is the explanation of the exchange in R v Milenkovic (2005) 158 A Crim R 4 at 8. E-mail communication with the Department (4 November 2014). R v King (2003) 59 NSWLR 472 at 478.

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[6.130]

In both cases it is also provided that the reasonable costs of a “new trial” may be claimed, if one is ordered. This is unfortunate phrasing, clearly borrowed unthinkingly from the provisions for appeals against convictions. A new trial is not something which the court has any express power to order under s 300(2) of the Criminal Procedure Act 2009 on allowing an interlocutory appeal,84 nor will it need to do so. Rather, the court’s decision on an appeal during trial may have the effect that an existing trial is abandoned (for example, because separate trials are held to be required), in which case a new one would be the natural consequence, perhaps after the presentation of new indictments. The Explanatory Memorandum to the Bill confirms that this was indeed the type of situation that was in mind.85 The word “ordered” was therefore badly chosen, but it may lead to otherwise unnecessary applications for the appeals court to order new trials expressly so that there is power to award costs. Section 16 of the Appeal Costs Act 1998 also allows for costs of a discontinued proceeding to be paid and, in the example just given, would be the means by which reimbursement could be sought for the costs of the joint trial, which was abandoned after the decision in the interlocutory criminal appeal holding that separate trials were needed. Another unnecessary, sloppy ambiguity in the drafting of s 15B is whether the accused may have costs if the prosecution seeks leave to appeal, but fails.86 A case on a related provision, Director of Public Prosecutions (Vic) v Hayden (No 2),87 suggests that, having regard to the beneficial purpose of the Act, no narrow view should be taken of what constitutes an appeal and that it should include an application for leave. On the other hand, s 15B refers quite specifically to s 295 of the Criminal Procedure Act 2009 (unlike s 15A, which refers to the whole Division dealing with interlocutory criminal appeals), and s 295 makes a clear distinction between appealing and obtaining leave to appeal. The Explanatory Memorandum just referred to states: Consistent with the approach to prosecution appeals against sentence in s 15 of the Appeal Costs Act 1998, the Court may grant an indemnity certificate to the respondent (the accused) for the costs of the appeal irrespective of the outcome of the appeal.

Hayden was an appeal under s 15, and the words “irrespective of the outcome” suggest that, perhaps, the intention was to include applications for leave. Doing so would also be fair to the accused, given that he should not miss out just because the prosecution falls at the first rather than the second hurdle. But the point could and should have been put beyond doubt by sufficiently clear wording. In all cases the granting of the certificate under the Act, which entitles the accused to reimbursement, is within the discretion of the court. However, given 84 85

Compare s 277(1)(a) and (d). The notes on cl 370 of the Criminal Procedure Bill 2008 (Vic) state in part: The other situation covered is where a new trial is needed as a result of a successful interlocutory appeal by the accused. This will occur rarely and only where an interlocutory appeal is taken during trial and, as a result of the appeal being successful, the current trial has to be abandoned and a new trial commenced.

86 87

For a further possible refinement, see also above, Ch 6 fn 38. [2006] VSCA 155.

[6.140]

Costs of appeal

that the Victorian Act contains those two provisions dealing with interlocutory criminal appeals in terms, there should be no reason for, and there does not appear to have been, the same hesitation about granting such certificates in the ordinary run of cases, as in New South Wales. In the few cases in which the question is specifically mentioned, the grant of a certificate is treated as a matter of course.88

Federal jurisdiction89 [6.140] It remains to note that, despite the usual rule,90 neither the New South

Wales91 nor the Victorian92 legislation permitting the recovery of costs from a central fund is applicable in federal trials held in State courts because that legislation involves procedures outside court and the executive branch. Those procedures are therefore not included within the general application of State law to federal trials (and probably could not constitutionally be so included given that federal law cannot authorise the spending of State money). In federal cases there remains, then, only the general prohibition on awarding any costs between the parties. Although there is a Federal Proceedings (Costs) Act 1981 (Cth) which clearly contemplates that it could apply in criminal proceedings,93 it has yet to be tested in a case in which the Federal Court of Australia is the trial court for an indictable criminal offence and there is an interlocutory criminal appeal – but it gives no rights in relation to proceedings in State courts in the federal jurisdiction.

88 89 90 91 92 93

JLT v The Queen [2010] VSCA 358 at [8]; ZL v The Queen (2010) 208 A Crim R 325 at 332. For a case from Western Australia, see Western Australia v Burke [No 2] [2012] WASCA 129. See above, Ch 1 fn 13. Commissioner of Stamp Duties (NSW) v Owens (No 2) (1953) 88 CLR 168 at 170; Solomons v District Court (NSW) (2002) 211 CLR 119. Director of Public Prosecutions (Cth) v Hunter (2003) 7 VR 119. Section 8(2), which, however, requires an appeal against conviction. Other provisions, such as ss 6(1) and 10(3), are conceivably applicable in trials in the Federal Court of Australia when an interlocutory appeal is taken.

165

7

Future Options and Conclusion [7.10]

Generally, a success …............................................................................. 167

[7.20]

… but still much room for improvement................................................. 168

Generally, a success … [7.10] In New South Wales at least, interlocutory criminal appeals came about almost by accident, but are such an entrenched part of the practice of the criminal law now that hardly anyone would dream of abolishing them – and they have, in the last few years, also spread to Victoria. Nevertheless, they do constitute a rebalancing of the relationship between the accused citizen and the state which could not be described as utterly fundamental, but which is certainly significant – given that, before they existed, there was, in the general run of cases, little that the Crown could do about a ruling in favour of the accused beyond proceeding as best it could with whatever remained of its case. This situation had, in turn, arisen because of the decision made in 1907 to create criminal appeals designed to attack flawed convictions and to avoid infringing upon the constitutional prerogative of the jury to acquit. Interlocutory criminal appeals have shown that there was a gap in the market, so to speak, for a type of appeal that does not invade the jury’s rightful prerogatives but reinforces the jury’s task of considering the facts under the law – even though, in many cases, interlocutory criminal appeals result in a loss for the accused on the law. The integration of this new type of appeal into the pre-existing system has been reasonably smooth, with – subject to one exception1 – no serious compromise of the legitimate rights and interests of the accused, which is in large part a tribute to the ability and sense of fairness of the courts and the profession, and possibly also to the scarcity of legal aid funding. Interlocutory criminal appeals have been shown – if taken in moderation, as the statistics show they, as a rule, have been2 – to enhance the process of attempting to deliver criminal justice. Without significantly compromising the courts’ efficiency, they have avoided error and much of the expense and trouble that would be needed to remedy error in a relatively small, but significant number of cases. These cases include many in which the error would have disadvantaged the accused. It might accordingly be thought only a matter of time before the other jurisdictions also adopt a form of interlocutory criminal appeal modelled on that in force in New South Wales. It would be better if they did so in a planned way rather than as a knee-jerk response to some momentary pressure. Jurisdictions that do adopt interlocutory criminal appeals will need to consider whether they should take the path chosen in New South Wales of allowing only the Crown to appeal against evidentiary rulings of significance, or rather permit the accused to do so also, as in Victoria. 1 2

Namely, the ruling in R v Burton (2013) 237 A Crim R 238, to be mentioned again shortly. See above, p 4.

168

7: Future Options and Conclusion

[7.10]

As suggested above,3 the choice in principle is between seeing the interlocutory criminal appeal largely as a way of redressing in relation to evidentiary rulings (but not, curiously, the “judgment or order”) the Crown’s lack of rights to appeal after acquittal, or whether there are broader purposes to interlocutory criminal appeals, such as avoiding wasted expenses on both sides and saving witnesses the trauma of having to give their evidence again. It would seem obviously right to say that interlocutory criminal appeals will and, in many cases should, serve that second set of purposes as well, and that a lopsided right of appeal is at first blush hard to reconcile with the equality of procedural arms, and that therefore the restriction to Crown appeals on evidentiary points is at first sight to be rejected on principle. As an American commentator has pointed out,4 interlocutory criminal appeals by the accused also permit evidentiary points to be dealt with in isolation before any finding of guilt, and thus reinforce both the division of labour between judge and jury and the perception of fairness and legality. Very considerable weight must, however, be given to the opposite view of Weinberg JA, who prefers the system in operation in New South Wales, having stated that allowing the accused to appeal against evidentiary rulings provides a “strong incentive to systemic abuse, and is in no way beneficial to the public interest”.5 The New South Wales Law Reform Commission agrees with this assessment, finding the grass greener on its own side of the fence.6 Sometimes considerations of practice must be allowed to trump those of abstract principle; principles can be taken to extremes and produce more trouble than they are worth. Furthermore, the lopsidedness of the appeal at the interlocutory stage is balanced and reflected, to a considerable extent, by the equivalent bias in favour of the accused after the verdict. However, a resolution to this dilemma can be suggested only after considering one other possible reform. What does need reassessment from first principles involving a consideration of the values at stake, as well as from all practical angles, is the decision in R v Burton7 to permit the Crown to appeal against the admission of evidence for the defence. The slightly different wording of the Victorian statute rules such a course out there, and therefore this is an issue for New South Wales alone at present. Although it is submitted that the ruling against which the appeal was brought in Burton was clearly wrong, it is equally clear that an appeal right in the Crown against the admission of defence evidence rather than against the exclusion of its own evidence should have been the subject of much greater examination before it was created, and that it works a fundamental change in the system against the accused that was not intended by the authors of the scheme for interlocutory criminal appeals. This issue too will need to be postponed until one further possible reform is considered.

… but still much room for improvement [7.20] It would certainly not be desirable for other jurisdictions to copy the Victorian model word for word given its excessively detailed and pedantic scheme for running a system of interlocutory criminal appeals – a system which 3 4 5 6 7

See above, [2.60]. See above, p 15. See above, Ch 2 fn 58; see also the Foreword to this book. New South Wales Law Reform Commission, Report No 140, Criminal Appeals (2014) p 213. See above, Ch 3 fn 309.

[7.20]

… but still much room for improvement

might appeal to tidy academic minds, but in this respect has little to offer as an add-on to the system in New South Wales in practice. Judges can be trusted to run a system of interlocutory criminal appeals sensibly and fairly without the need for every move in the dance to be prescribed for them. Perhaps the most egregious example of this is the list of criteria for granting leave in s 297(1) of the Criminal Procedure Act 2009 (Vic): all the nominated points are obvious and the list then ends with “any other matter that the court considers relevant”.8 At various points, the Victorian system has already begun to show further, less obvious deficiencies as a result of this vice of over-prescription, most notably in relation to the need identified by case law for the trial judge, as well as the appeals court, to consider the likelihood of success of a proposed appeal point along with other matters affecting the desirability of granting leave despite there being no statutory warrant for doing so as part of giving the trial judge’s certification.9 Indeed, there is something to be said for entirely abolishing the trial judge’s power to certify in Victoria10 given that its statutorily prescribed purpose – providing an estimation of the importance of the evidence or other point in the context of the trial – is scarcely something which appeal judges will be unable to do themselves, with the assistance of counsel if necessary, and given the further fact that an appeal to those same appeal judges (called a review) is available against a refusal to certify anyway. But as a means of ensuring, as I am informed it was,11 that there is at least some hurdle before direct access can be obtained to the appeals court, it is perhaps of greater utility, although the ability to apply for a review shows that this hurdle can be circumnavigated. Each jurisdiction has, in fact, the defects that result from its own path to interlocutory criminal appeals: if Victoria reeks too much of academic central planning, New South Wales suffers from an excess of unplanned growth. The central role played by the concept of “judgment or order” in non-evidentiary appeals makes the selection of orders against which appeals can be brought sometimes rather random, because that concept was not chosen with an eye to discriminating between the topics on which interlocutory criminal appeals were (generally) desirable and other topics, but was, rather, borrowed in haste from the civil law’s provision for interlocutory appeals.12 One topic on which there definitely should be an appeal available, but there is not owing to the limitations of the statutory phrase, is that of the judge’s refusal to disqualify himself: such a refusal might spring from blindness to one’s own true position, and can easily taint the whole proceedings. Other important topics on which consideration should be given to permitting appeals, given the crucial role they can have in criminal trials, include the admission of tendency/coincidence evidence in all cases (there being no appeal by the accused if some overarching question such as severance does not arise), the meaning of statutory offences in general and the relevance of intoxication in relation to individual offences under Pt 11A (ss 428A – 428I) of the Crimes Act 1900 (NSW). Sometimes the distinctions drawn between appellable and non-appellable topics are also 8 9 10

11 12

See also above, p 38. See above, Ch 2 fnn 77, 78. A point also made to me by one of the practitioners I discussed my topic with. On the trial judge’s power to certify in New South Wales, which serves a different purpose but should probably also be abolished, although for different reasons, see above, pp 33f. See above, p 35. See what is now s 101(2)(e) of the Supreme Court Act 1970 (NSW).

169

170

7: Future Options and Conclusion

[7.20]

impossible to justify, such as the apparent variation of the accused’s appeal rights in relation to decisions dealing with the manner in which witnesses should give evidence.13 In each jurisdiction, the usually rather dull and second-order topic of costs exemplifies the defects that are typical of the jurisdiction in question: Victoria has two sections designed specifically for interlocutory criminal appeals but which show defects of drafting as a result of a lack of thought about practicalities. New South Wales, on the other hand, attempts to ram the square peg of the topic of costs following an interlocutory criminal appeal into the round hole of several sections that were not specifically designed for the topic in question. Victoria needs to clean up the ambiguities and annoyances in its sections, while New South Wales should consider the matter afresh and put more thought and planning into the matter – without losing sight of practical realities. As part of the project of refining each model, a reform worth considering from overseas is New Zealand’s system of itemising the types of decisions against which interlocutory criminal appeals can be brought.14 In its recent report, the New South Wales Law Reform Commission15 considered the need for greater certainty on this front, but thought that it would be too difficult to define the term “interlocutory judgment or order” satisfactorily. It did not, however, consider adopting the method used in New Zealand, of which it appeared to be unaware. [7.30] There is now sufficient experience with interlocutory criminal appeals in New South Wales for it to be possible to make (there and in other States) a list of topics on which such appeals are permitted with very little risk of missing anything of significance and some improvement in the certainty, transparency and practical effectiveness of the law. There is no magic in the phrase “interlocutory judgment or order”: it was borrowed from the civil law and without any serious consideration of how exactly it would “cash out” in the criminal law or whether it was suitable in principle or could lead to desirable results. As we have seen, it excludes a number of issues on which it is very easily concluded that a right of appeal should exist, such as disqualification for bias or what (if any) mens rea is required for the commission of the offence. A similar itemisation of the issues available for appeal could occur in Victoria as well, perhaps in combination with dealing with the next issue to be raised and as a means of determining which issues really do justify an interlocutory appeal, rather than just leaving the question entirely open. This is perhaps the one area in which the Victorian scheme, rather than providing too much guidance, provides too little. In Victoria, there is the potential for a list of issues on which interlocutory criminal appeals are available to include some issues which, in New South Wales, are currently excluded. In both States, if it is thought that some issues currently available for appeal should not be, there is also an opportunity to streamline procedures and avoid unnecessary delay and expense by narrowing in some respects the classes of decisions against which appeals are available. A New-Zealand-style list would, furthermore, enable an intermediate and sophisticated position to be developed with regards to the difficulty raised by 13 14 15

See above, p 88. See above, [1.80]. New South Wales Law Reform Commission, Report No 140, Criminal Appeals (2014) p 211. The beginnings of such a list may also be found in Department of Justice (Victoria), Criminal Procedure Act 2009 – Legislative Guide, p 274.

[7.30]

… but still much room for improvement

Weinberg JA – the accused’s rights to appeal against evidentiary rulings. If a statutory list existed of the classifications of decisions that can be the subject of appeal, it would be possible to exclude appeals by the accused on some, but not all, issues. For example, it might be thought sensible, after study and broad consultation, to preclude an appeal by the accused against the refusal of a permanent stay on the ground that the prosecution is, on the facts, doomed to fail, while allowing appeals (with leave of course) against such refusals on other grounds, such as that legal representation is inadequate,16 a statute has been wrongly interpreted and the prosecution is doomed to fail for that reason, or separate trials should have been ordered. At the very least, the debate on the accused’s interlocutory appeal rights would gain, both as far as it concerns principle and even more so on practical questions, if we were able to consider these issues individually one by one rather than being compelled to make a decision globally at too high a level of generality. A variant on this approach possible in New South Wales would be to specify particular sorts of decisions that do, or do not, fall within the ambit of “judgment or order” without defining that phrase exhaustively; in Victoria, certain decisions could be excluded by statute from appeal by one side or the other. It would also be possible, if New Zealand’s itemisation strategy were adopted, to consider whether there is any room for Burton-like appeals by the Crown against the admission of defence evidence on specific issues, rather than simply allowing or prohibiting them in general. Perhaps, after examination and consultation, it might be found that there are good reasons to allow appeals by the Crown against the admission of defence evidence on the highly sensitive topic actually dealt with in Burton, namely the sexual past of the complainant, and perhaps a few other issues as well – although hardly in general. A topic of lesser, but still some significance, which has tended to fall by the wayside – in Victoria particularly, despite the excessive detail of much of its provisions – is the rights of third parties to appeal against orders affecting them. In both jurisdictions there would be a gain in considering whether to extend, by express statutory enactment, third-party appeal rights beyond those set out in s 5F(3AA) and (3AB) of the Criminal Appeal Act 1912 (NSW) in the case of the sexual assault communications privilege. One thing that the courts could certainly do without any further statutory authorisation17 is to take the process of granting leave more seriously. It is rare indeed to find a case in which there is a real assessment of whether leave should be granted without a very detailed consideration of the merits of the case.18 Frequently the merits are considered for many pages only for the conclusion to result that leave should be refused. Given that many issues arising on interlocutory criminal appeal involve review only on the House standard and/or a more or less uncertain evidentiary foundation for dealing with the point at issue, and that an appeal after any conviction is not precluded by the refusal to grant leave at the interlocutory stage (s 5F(6)/s 297(3)), there may well be room for improvement in the appeal courts’ procedures on this front. 16 17

18

In Victoria, this would need to be an appeal against a failure to adjourn under the Criminal Procedure Act 2009 s 197(3). The number of judges is, however, statutorily prescribed: see above, [5.10]; see also above, p 48. This would limit, but hardly eliminate, the savings available from taking leave seriously. See above, p 35.

171

172

7: Future Options and Conclusion

[7.30]

Some applications for leave to appeal are also brought on very inadequate foundations and could be dealt with in a much more summary fashion.19 This change would be particularly useful in Victoria given its broader rights of appeal for the accused. Where, as Weinberg JA states in the Foreword to this book, a specious point is raised on behalf of the accused and the system is being abused, whether intentionally or not, the courts should much more often say little more than this: there is little or nothing in the point raised, and the application for leave is dismissed. An even more radical thought would be to introduce short time limits for oral argument comparable to those applicable for special leave to appeal before the High Court of Australia: if there is a real vice with the consideration of a point below or its outcome, it should be capable of being stated in 20 minutes or half-an-hour on an application for leave, as distinct from full argument of the point following the grant of leave. Measures of this type would also make it much easier to endorse without qualification equal interlocutory appeal rights by the accused, which otherwise are susceptible of being misused to cause delay, as Weinberg JA has pointed out in the Foreword to this book.

19

Director of Public Prosecutions (Vic) v Pace [2015] VSCA 18 may well be such a case (application to review refusal to certify).

Index A Abandonment, ..................................... [5.40] Accused defence evidence, appeal against admission of, ...................................... [3.210] interlocutory appeal, right to, ......... [2.20] judge alone trial, election for, ........ [3.120] leave to bring appeal, New South Wales, ............................................. [2.70] right of appeal on conviction, ......... [2.20] Acquittal directed verdict of, appeal against, ........................................... [1.120] Adjournments decisions on, appeal against granting application, ..... [3.40], [3.90], [3.110] refusal to grant, .............. [3.40], [3.90] Dietrich stays, ................................. [3.90] discretionary nature of, ................. [3.110] interlocutory nature of, ................. [3.110] presumption of correctness of decisions, ............................................ [3.110] review, standard of, ....................... [3.110] vacating trial dates, orders, ........... [3.110] venue, orders on change of, ........... [3.110] Admissions classification as, ............................ [3.260] recording of, rulings as to, ............ [3.260] rulings as to, ................................. [3.270] exclude, refusal to, .................. [3.270] interlocutory appeals against, ........................................... [3.270] prejudicial more than probative value, ........................................... [3.270] tests for admission, ....................... [3.260] appellability of rulings on, ....... [3.260] exclusion, statutory criteria, .... [3.260] Amici application to appear as, ................. [5.80] Appeal decisions agreement reached, where, .............. [6.80] allowed, decisions where, .... [6.10]–[6.80] costs of — see Costs of interlocutory appeals

Crown Prosecutor, restraining until replaced, .............................. [6.20] decision below is reversed, .............. [6.10] discharge of jury, against, ................ [6.70] individual jurors, of, .................. [6.70] refusal to order, no right to appeal, ............................................. [6.70] discretion, re-exercise of, ................ [6.50] factors considered, ..................... [6.50] precedential status of decisions — see Interlocutory rulings or decisions referral back, .................................. [6.60] reversal of decision, where, ............. [6.10] correct substituted, .................... [6.10] scope of orders, ......................... [6.10] reversal of quashing order, .............. [6.40] variation of decision, where, ........... [6.30] Applications for leave — see also Leave to appeal determinations court, by, ................................... [5.10] single judges sitting alone, ......... [5.10] procedural rules, ............................. [5.20] time for lodgment, .......................... [5.40] extensions of, ............................ [5.40] Victoria, in, ............................... [5.40] Victoria, two-step process, .............. [5.40] Australia criminal appeals, introduction of, ............................................. [1.10] Australian Capital Territory appeal system, background, ............ [2.40] civil/criminal appeals not distinguished, ............................................. [2.40] discharge of jury or juror, appeal against, ............................................. [2.50] leave requirement, ........................... [2.40] criteria for grant, ....................... [2.40] legislation permitting appeals, ......... [2.10] third-party appeals, ....................... [2.100] Autrefois pleas, ......................... [3.30], [3.80] appeal against decisions on, availability of accused, where against, ............. [3.80] decision upholding, where, ........ [3.80] autrefois acquit, .............................. [3.80] autrefois convict, ............................ [3.80]

174

Index

B Bail applications, .................................. [3.20] Bias applications for disqualification for, appeal rights New South Wales, ................... [3.130] after conviction, ...................... [3.130] Victoria, .................................. [3.130] declarations of, ............................. [3.130] prerogative writ to Court of (civil) Appeal, ........................................... [3.130] temporary stay due to, .................. [3.130]

C

Canada extent interlocutory appeals permissible, ............................................. [1.90] Case stated after conviction, ............................ [3.160] before conviction, ......................... [1.120] Certiorari, .......................................... [1.120] Commonwealth — see Federal Court of Australia Constitutional points appeal against orders relating to, ........................................... [3.150] judgment or order, whether constitute, ........................................... [3.150] constitutional challenges, ......... [3.150] Contempt cases, ................................... [3.20] Costs of interlocutory appeals deficiencies in models, ..................... [7.20] general rule, .................................. [6.110] Federal jurisdiction, ...................... [6.140] New South Wales, ......................... [6.120] Suitors’ Fund, .......................... [6.120] Victoria, ........................................ [6.130] Criminal Appeal Act 1907 (UK), .......... [1.10] appeals after conviction, restriction to, ............................................. [1.10] Criminal Appeal (Amendment) Act 1987 (NSW), ................................. [1.30] Crown, right to, .............................. [1.30] s 5C, .................................... [1.30], [2.30] s 5F, general appeal provision, ........ [1.30] jurisdictional requirements under, .................................. [3.10]–[3.40]

s 5G, ............................................... [1.30] Criminal Justice Act 2003 (UK) no-case ruling appeal against dismissal of application for, ....................................... [3.60] Criminal appeals after conviction, .............................. [1.10] Australia, introduction into, ........... [1.10] interlocutory — see Interlocutory criminal appeals statutory origin of, .......................... [1.10] Crown acceptance or rejection of evidence of appeal rights on, ...................... [3.210] admissibility of evidence, rulings, .................................. [1.30], [3.40] Crown right to appeal, ............ [3.180] s 5F(3A) amendments, .............. [3.40], [3.180], [3.190] appeal decision restraining Prosecutor, ............................................. [6.20] evidentiary rulings — see Eliminating or substantially weaking Crown case leave to appeal, no requirement, ........................................... [4.240] legislative provisions, appeal rights, ............................................. [2.20] limited post-conviction appeal rights, ........................................... [4.250] Crown Prosecutor appeal decision restraining, ............. [6.20]

D Declarations mid-trial, where, ........................... [1.120] Defence evidence acceptance or rejection of, appeal rights, ........................................... [3.210] admission for one defendant whether appealable by another, ........................................... [3.210] appeals against admission of, ........ [3.210] Discretion re-exercise of, .................................. [6.50] Dismissal of appeal, ............................. [5.40]

E Eliminating or substantially weaking Crown case burden of showing, ......................... [4.20] determining whether ruling will, ..... [4.30]

175

Index Eliminating or substantially weaking Crown case — cont assessment of evidence, .............. [4.30] evidentiary rulings having effect of, appeals from, ........................ [1.30], [4.20] leave requirements, .................... [4.20] New South Wales, ..................... [4.20] Victoria, .................................... [4.20] exclusion of evidence, assessment of impact, ................................. [4.40] multiple rulings as appeal basis, ...... [4.40] “substantially weaken”, meaning, .................................. [4.20]–[4.40] England interlocutory appeals, availability, ............................................. [1.70] no-case ruling appeal against dismissal of application for, ....................................... [3.60] Evidentiary rulings — see also Eliminating or substantially weakens Crown case — see also Witnesses acceptance or rejection of, appeal rights Crown, of, ................... [3.210], [7.10] defence, of, .............................. [3.210] Victorian and New South Wales models contrasted, ........................... [7.10] admissibility of, rulings, ...... [1.30], [3.40] Crown only right to appeal, ................................ [3.180], [7.10] s 5F(3A) amendments, .............. [3.40], [3.180], [3.190] admissions — see Admissions after close of evidence, issues after, ........................................... [3.290] proposed directions to jury, ..... [3.290] sentencing proceedings, in, ...... [3.290] appeals reversing, ............................ [6.10] irrelevant evidence, .................... [6.10] tendency evidence, ..................... [6.10] application to reopen to tender further, ........................................... [3.180] coincidence, rulings on, ................. [3.250] defence evidence, rulings on admission of, ........................................... [3.210] expert evidence, rulings on admission of, ........................................... [3.190] hearsay, rulings on, ....................... [3.240] illegality and impropriety, rulings as to, ........................................... [3.280] inadmissible, meaning, .................. [3.230] relevance, rulings on, .................... [3.200] “substantially weakens” Crown case, appeals from, ....................... [1.30] tendency/coincidence evidence, rulings on, ........................................... [3.250] video link, rulings as to, ................ [3.180] Western Australia, right of either party to appeal, ................................. [2.60] Expert evidence rulings as to, appeals against admissibility of, ....................... [3.190]

costs orders, ............................ [3.190] qualifications of expert, ........... [3.190]

F

Federal Court of Australia appellate jurisdiction transfer from High Court, .................................. [2.40] cartel-related offences, ........ [1.10], [2.10], [2.50] costs of interlocutory appeals, ....... [6.130] interlocutory appeals, extent of availability, ............................................. [2.50] jurisdiction, indictable criminal, ..... [1.10], [2.50] leave requirement, ........................... [2.50] legislation, general nature of, .......... [2.10] State courts and offences against federal law, ...................................... [1.10] third-party appeals, ....................... [2.100] Federal Court of Australia Act 1976 (Cth) interlocutory appeals under, ............ [1.10]

G

Germany interlocutory appeals, extent of availability, ........................................... [1.100] Guilty pleas interlocutory appeals against orders acceptance of, application to withdraw, ................................ [3.140], [5.50] grant of leave to withdraw, ...... [3.140] rejection of plea by judge, ........ [3.140] refusal to allow withdrawal, .... [3.140]

H

Hearings amici, application to appear as, ...... appeals, of, ..................................... applications for leave, of court, ......................................... single judges sitting alone, ......... procedural rules, .............................

[5.80] [5.10] [5.10] [5.10] [5.20]

Hearsay, rulings on, ........................... [3.240] High Court appeals to, .................................... [2.120] interlocutory criminal, ............. [2.120] leave to, ................................... [2.120] appellate jurisdiction, transfer to Federal Court, .................................. [2.40] special leave to appeal, .................. [2.120]

176

Index High Court — cont stay, appeal from refusal to order, ............................................. [3.90]

I

Illegality and impropriety admissibility despite, rulings as to, ........................................... [3.280] existence of, rulings as to, ............. [3.280] separation of issues as to, .............. [3.280] Indictment — see also Proceedings on indictment — see also Quashing indictment amendment, appeal from decisions on, ............................................ [3.110] Insanity appeal from rulings on, ................. [3.160] Interlocutory criminal appeals — see also Leave to appeal abandonment of, ............................. [5.40] accused, benefits to, ........................ [1.60] adjournments — see Adjournments admissions, rulings on, .................. [3.270] advantages of, ..................... [4.50], [7.10] amendment of indictment, from decisions on, ...................................... [3.110] amici, application to appear as, ...... [5.80] autrefois pleas, against, ....... [3.30], [3.80] bias, against decisions on, ............. [3.130] constitutional validity decisions, ........................................... [3.150] contempt cases, ............................... [3.20] costs of — see Costs of interlocutory appeals court, constitution of, ..................... [5.10] Crown, in favour of, ....................... [1.60] disadvantages of, ................. [1.60], [4.50] dismissal of, .................................... [5.40] evidence, adducing additional, ........ [5.50] withdrawal of guilty plea cases, ............................................. [5.50] guilty pleas, against decisions as to, ........................................... [3.140] illegality and impropriety — see Illegality and impropriety interpretation of statutes, against rulings on, ..................................... [3.160] itemisation of topics, ....................... [7.30] judge-alone trials, ......................... [3.130] jurisdictional requirements of interlocutory appeals, ..................... [3.10]–[3.20] jury matters — see Jury leave, impact on, ............................. [1.60] legislation, overview, ....................... [2.10] nature of, ...................................... [2.110] New South Wales and Victorian models contrasted, ........................... [7.10] no-case ruling — see No-case ruling

offences, against rulings on existence of, ........................................... [3.160] policy reasons for and against, ........ [4.50] post-verdict appeals and, ................ [6.90] leave requirements and, ........... [6.100] privilege and subpoenas, rulings on, ........................................... [3.170] procedural rules, ............................. [5.20] publication of decisions, ................. [5.70] quashing an indictment — see Quashing indictment rationale for, ........................ [1.60], [7.10] reasons for restrictions on, .............. [1.10] reinstatement of, ............................. [5.40] respondent, defence by notice of alternative contention, ........................... [5.60] second appeals, ............................... [6.90] severance/separate trials — see Severance and separate trial applications statutory authorisation for, requirement, ............................................. [1.10] stay or adjournment pending appeal, ............................................. [5.30] stays — see Stays suppression orders, ....................... [3.190] trial judges’ authority, respect for, ........................................... [4.240] factual assessments, ................. [4.240] vacating trial dates, against orders on, ............................................ [3.110] variations in availability, ................. [1.10] venue, against orders on change of, ............................................ [3.110] witnesses, rulings as to — see Witnesses Interlocutory rulings or decisions — see also Interlocutory criminal appeals adjournments — see Adjournments amendment of indictment, ............ [3.110] autrefois pleas, .................... [3.30], [3.80] evidentiary rulings, .............. [1.30], [3.40] final decisions differentiated, ........... [3.30] meaning, ......................................... [3.30] no-case ruling — see No-case ruling pardon, plea of, .............................. [3.80] post-verdict appeals and, ................ [6.90] leave requirements and, ........... [6.100] Prasad directions, ........................... [3.60] precedential status of, ........ [6.90]–[6.100] court below, extent bound by appeal court, ................................. [6.100] inaction, status of, ................... [6.100] second interlocutory appeals, .... [6.90] re-opening of, ................................. [6.90] refusal of applications as, ................ [3.40] severance/separate trials — see Severance and separate trial applications stays — see Stays vacating trial dates, appeal against orders on, ...................................... [3.110] venue, orders on change of, ........... [3.110] Interpretation of statutes appeals against rulings on New South Wales, ................... [3.160]

177

Index Interpretation of statutes — cont Victoria, .................................. [3.160] case stated, .................................... [3.160] declarations or prerogative relief, ........................................... [3.160] Intoxication appeal from rulings on, ................. [3.160]

J Joinder of charges — see Severance and separate trial applications

Federal Court, in, ...................... [2.50] New South Wales, in, ............... [2.50], [3.120] one juror, ................................... [1.30] Victoria, in, ............................. [3.120] whole, ....................................... [1.30] discharged before verdict, where, .... [3.20] empanelment, appeal for improper, ........................................... [3.120] evidentiary challenges, flagged before empanelment, ....................... [4.10] judge alone trials, .......................... [3.120] proposed directions to, appeals as to, ........................................... [3.290] refusal to discharge, no appeal against, ................................ [3.120], [6.70]

Judiciary Act 1903 (Cth), ..................... [1.10]

L Judge expression of opinion by, appellability, ............................................. [3.40] Judge alone trials accused, election for, ..................... [3.120] New South Wales criteria for, ........................................... [3.120] interlocutory appeals on decisions on, ........................................... [3.120] Judgment or order — see also Interlocutory rulings or decisions autrefois pleas, ................................ [3.80] decisions which constitute, .............. [3.40] directed acquittals, .......................... [3.60] evidentiary rulings, .............. [1.30], [3.40] expression of opinion by judge, ...... [3.40] meaning, .............................. [2.60], [3.40] Mental Health (Forensic Procedures) Act 1990 (NSW) dismissal of charges under as, .... [3.60] New South Wales, s 5F appeals from, .................................. [2.60], [3.40] definition, .................................. [3.40] no-case ruling — see No-case ruling Prasad directions, ........................... [3.60] principle characteristic of, .............. [3.40], [3.150] refusals of applications as, .............. [3.40] Jurisdictional requirements of interlocutory appeals interlocutory not final decision, ...... [3.10] proceedings on indictment, ............. [3.20] requirements New South Wales, ..................... [3.10] Victoria, .................................... [3.10] Jury appeals against discharge, ............... [6.70] discretionary nature of order to discharge, ........................................... [3.120] discharge of, appeal against order for, ............................................. [6.70]

Leave to appeal, ........................ [1.60], [2.10] accused’s bail status, ....................... [4.70] applicant, burden on to obtain grant, ........................................... [4.150] applications for — see Applications for leave Australian Capital Territory, requirement, ............................................. [2.40] criteria for grant, ....................... [2.40] considerations in granting/refusing accused’s bail status, ................. [4.70] doubt, ...................................... [4.200] efficiency, questions of, ............ [4.100] equality between parties, ........... [4.80] importance of issue raised, ........ [4.90] importance of point of law, ..... [4.210] interests of justice, .......... [4.60]–[4.90] challenge to existing authority, as, ........................................... [4.170] examination of question after trial, ........................................... [4.130] fact-dependent rulings, ............ [4.140] fragmentation of proceedings, causing, ........................................... [4.160] length of trial, .......................... [4.120] point not raised below, where, ........................................... [4.220] previous refusal, ...................... [4.180] trial is imminent/underway, ..... [4.190] Crown, limited post-conviction appeal rights, ................................. [4.250] not required to obtain, ............ [4.240] efficiency, questions of, ................. [4.100] burden on courts, reducing, ..... [4.110] evidentiary rulings eliminating or substantially weakens Crown case appeals from, ................. [1.30], [4.20] burden of showing, .................... [4.20] exclusion of evidence, assessment of impact, ................................. [4.40] leave requirements, .................... [4.20] multiple rulings as appeal basis, ............................................. [4.40]

178

Index Leave to appeal, [1.60], [2.10] — cont “substantially weaken”, meaning, .................................. [4.30]–[4.40] Federal Court, in, ............................ [2.50] grant on some grounds, dismissal on others, where, ...................... [5.10] importance of issue raised, .............. [4.90] to the legal system, .................... [4.90] to the trial, ................................ [4.90] interests of justice, ............... [4.60]–[4.90] New South Wales, in, .......... [2.70], [4.50] severance, against decision on, ........................................... [3.100] reform of process, suggested, .......... [7.30] refusal of leave, ................ [4.180]–[4.230] Victoria, in, ......................... [2.70], [4.50] after trial has commenced, where appeal proposed, .................. [2.90] appeal against refusal for certification, ........................................... [4.180] certificate of trial judge, ............. [2.80] criteria, statutory list, ..... [2.70], [2.80] deficiencies in system, ................ [7.20] factors court must consider, ....... [2.80] procedure, ................................. [2.80] reasons for decision, .................. [2.80] rationale for, ................................... [4.50] stay or adjournment pending appeal, ............................................. [5.30] trial judges’ authority, respect for, ........................................... [4.240] factual assessments, ................. [4.240] Victorian Charter of Human Rights and Responsibilities, under, ...... [4.230] Legislation types permitting interlocutory appeals, ............................................. [2.10] classes of decisions, from, .......... [2.10] comprehensive right, where, ...... [2.10]

M McKenzie friends rulings as to, appellability, ............ [3.190]

N New South Wales admissibility of evidence rulings, .... [1.30], [3.40] bias, against decisions on, ............. [3.130] costs of interlocutory appeals, ....... [6.120] Suitors’ Fund, .......................... [6.120] Criminal Appeal (Amendment) Act 1987 (NSW), ................................. [1.30] Crown, right to appeal, ............. [1.30] s 5C, .............................. [1.30], [2.30] s 5F, general appeal provision, ............................................. [1.30] s 5G, .......................................... [1.30]

deficiencies in appeal system, .......... [7.20] directed acquittals, appeals from, .... [3.60] discharge of jury or juror, appeals against, .................................. [1.30], [2.50] evidence, rulings on — see Evidentiary rulings extent interlocutory appeals available, ............................................. [1.10] itemisation of topics, ....................... [7.30] judge alone trials, appeals against decisions on, ..................................... [3.120] “judgment or order” — see Judgment or order jurisdictional requirements, ............. [3.10] interlocutory not final decision, .................................. [3.10], [3.30] proceedings on indictment — see Proceedings on indictment introduction, background, .............. [1.30] leave to appeal accused, ..................................... [2.70] Crown, ...................................... [2.70] decision-maker, ......................... [2.70] legislation, general nature of, .......... [2.10] Mental Health (Forensic Procedures) Act 1990 (NSW) dismissal of charges decisions, ............................................. [3.60] no-case ruling — see No-case ruling number of, ...................................... [1.10] quashing an indictment — see Quashing indictment rehearing, by way of, .................... [2.110] s 5C, ........................ [1.30], [2.30], [3.70] quashing of indictment, appeals from, .................................. [3.70], [6.40] s 5F general appeal system, ............. [1.30] interlocutory not final decisions, ............................................. [3.30] judgment or order, from, .......... [2.60], [3.40] jurisdictional requirements, ....... [3.10] severance/separate trials — see Severance and separate trial applications stay orders, against, ........................ [1.30] Suitors’ Fund, ............................... [6.120] suppression orders, ....................... [3.190] third-party appeals, ....................... [2.100] vacation of trial dates, orders on, ............................................ [3.110] Victorian model contrasted, ............ [7.10] venue, orders on change of, ........... [3.110] witnesses, rulings as to — see Witnesses New Zealand introduction of appeals, .................. [1.80] prior to trial, not during, ................ [1.80] topics on which appeals permitted, .................................. [1.80], [7.30] venue, appeal from orders on change of, ............................................ [3.110] No-case ruling appeal against dismissal of application for, ............................................. [3.60]

179

Index No-case ruling — cont Western Australia, ..................... [3.60] New South Wales, status of, ............ [3.60] Victoria, status in, ........................... [3.60] appeals from, ........................... [4.250]

Precedential status of interlocutory decisions court below, extent bound appeal court, ........................................... [6.100] inaction, status of, ........................ [6.100] second interlocutory appeals, .......... [6.90]

Northern Territory appeals against stays, introduction of, ............................................. [1.50] defined issues, appeals permitted from, ............................................. [2.20] limited provisions for appeal, .......... [1.10] quashing an indictment, as topic of appeal, ............................................. [2.30]

Privilege and subpoenas availability of privilege appeals on rulings as to, .......... [3.170] nature of rulings on, ................ [3.170] objections to production, .............. [3.170] orders for production, appellability of, ........................................... [3.170] types of, ........................................ [3.170]

Notice of alternative contention respondent, defence by, ................... [5.60]

O

Offence, existence and meaning of appeal against orders relating to, ........................................... [3.160] New South Wales, ................... [3.160] Victoria, .................................. [3.160] firing a firearm in a public place, ........................................... [3.160] insanity, rulings on, ....................... [3.160] interpretation of statutes, appeals against rulings on case stated, .............................. [3.160] declarations or prerogative relief, ........................................... [3.160] New South Wales, ................... [3.160] Victoria, .................................. [3.160] intoxication, rulings on, ................ [3.160] triable on indictment, appeals on rulings as to, ...................................... [3.160]

Proceedings on indictment bail applications, ............................. [3.20] contempt matters, ........................... [3.20] costs applications, ........................... [3.20] jury discharged before verdict, where, ............................................. [3.20] meaning, ......................................... [3.20]

Q Quashing indictment, ........................... [2.30] appeals from New South Wales, .......... [3.70], [6.40] Victoria, .................................... [3.70] dismissing information constituting, ............................................. [3.70] setting aside order for, ......... [3.70], [6.40] refusal to, appeal against, ............... [3.70] Queensland appeals against stays, introduction of, ............................................. [1.50] extent available, provisions, ............ [1.10] legislation, general nature of, ......... [2.10], [2.20]

Order meaning, ......................................... [2.60]

R

P Rape shield laws, ................................ [3.210] Pardon, plea of appeal against decision on, availability, ............................................. [3.80] Post-conviction appeals admission of new evidence on, ........ [5.50] Crown, limited appeal rights on, ........................................... [4.250] interlocutory decisions and, ................................ [6.90]–[6.100] leave requirements, .................. [6.100] Prasad directions decision to make or not, status of, ............................................. [3.60]

Recusal — see Bias Rehearing appeals by way of, ........................ [2.110] meaning, .................................. [2.110] Relevance rulings on, appeals against, .......... [3.200], [6.10]

S Severance and separate trial applications appeals against decisions on, ......... [3.250] leave to, ................................... [3.100]

180

Index Severance and separate trial applications — cont New South Wales, ................... [3.100] Victoria, .................................. [3.100] Western Australia, ......... [1.50], [2.20], [2.30], [3.100] discretionary orders, ..................... [3.100] evidentiary basis of decisions, ....... [3.100] interlocutory nature of, ................. [3.100] joinder of charges, ......................... [3.100] review, standard of, ...................... [3.100] South Australia abuse of process, stay on ground of, ............................................. [2.20] appeals against stays, introduction of, ............................................. [1.50] defined issues, appeal permitted from, ............................................. [2.20] legislation, general nature of, .......... [2.10] limited provisions for appeal, .......... [1.10] third-party appeals, ....................... [2.100] Stays as basis of appeal in all jurisdictions, ............................................. [2.20] appeals from decisions on granting of, ................................ [3.90] New South Wales, in, ................ [3.90] refusal of, .................................. [3.90] Victoria, in, ............................... [3.90] civil cases, effect in, ......................... [3.90] delay, grants as a result of, .............. [3.90] Dietrich stays, ................................. [3.90] discretionary power, ....................... [3.90] grounds of application for, .............. [3.90] interlocutory nature, whether, ......... [3.90] multiple applications for, ................ [3.90] review of, standard applicable, ....... [3.90] stay or adjournment of proceedings pending appeal, .................... [5.30] temporary orders, ........................... [3.90] costs, pending payment by Crown, ............................................. [3.90] replacement of Crown Prosecutor, pending, ............................... [6.20] Subpoenas — see Privilege and subpoenas Suitors’ Fund New South Wales, ........ [6.120] Switzerland extent interlocutory appeal availability, ........................................... [1.100]

T Tasmania appeal against stays, introduction of, ............................................. [1.50] defined issues, appeals permitted from, ............................................. [2.20]

legislation, general nature of, .......... [2.10] limited provisions for, ..................... [1.10] quashing an indictment, as topic of appeal, ............................................. [2.30] Tendency/coincidence evidence rulings on, appeals against, .......... [3.250], [6.10] severance, ................................ [3.250] Third-party appeals New South Wales, in, .................... [2.100] Victoria, in, ....................... [2.100], [7.30] Trial proceedings stay or adjournment pending appeal, ............................................. [5.30] before commencement of trial, ............................................. [5.30]

U

United States appeals after acquittal, .................. appeals after conviction, ............... extent of right of appeal, ............... prosecution, of, ........................

[1.110] [1.110] [1.110] [1.110]

V

Vacating trial dates appeal against orders on, .............. [3.110] Venue, change of appeal against orders on, .............. [3.110] interlocutory nature of, ................. [3.110] New South Wales, in, .................... [3.110] Victoria bail applications, ............................. [3.20] bias, against decisions on, ............. [3.130] application for leave to appeal involving, ........................................... [4.230] Charter of Human Rights and Responsibilities, ................. [4.230] contempt cases, ............................... [3.20] costs of interlocutory appeals, ....... [6.130] Criminal Procedure Act 2009 (Vic), ............................................. [1.40] “decisions”, appeal from, ............... [2.70] deficiencies in appeal system, .......... [7.20] evidence, rulings on — see Evidentiary rulings extent interlocutory appeals available, ............................................. [1.10] introduction of appeals, .................. [1.40] itemisation of topics, ....................... [7.30] jurisdictional requirements, ............. [3.10] leave requirement, ........................... [2.70]

181

Index Victoria — cont — see also Applications for leave — see also Leave to appeal appeal against refusal of certification, ........................................... [4.180] after trial has commenced, where appeal proposed, .................. [2.90] certificate of trial judge, ............. [2.80] criteria, statutory list, ..... [2.70], [2.80] deficiencies in system, ................ [7.20] factors court must consider, ....... [2.80] procedure, ................................. [2.80] reasons for decision, .................. [2.80] legislation, general nature of, .......... [2.10] New South Wales model contrasted, ............................................. [7.10] number of interlocutory appeals, .... [1.10] severance/separate trials — see Severance and separate trial applications suppression orders, ....................... [3.190] third-party appeals, ....................... [2.100] witnesses, rulings as to — see Witnesses Video link, orders as to evidence by, ........................................... [3.180]

W Wales interlocutory appeals, extent of availability, ............................................. [1.70] no-case ruling appeal against dismissal of application for, ....................................... [3.60] Western Australia Crown, rights of appeal

adjournments or stays, from, ..... [1.50] quashing of an indictment, from, ............................................. [1.50] defined issues permitting appeal, ..... [2.20] evidentiary decisions, right of either party to appeal, ............................. [2.60] introduction of appeals, .................. [1.50] legislation, general nature of, .......... [2.10] limited provisions for appeal, .......... [1.10] New South Wales system distinguished, .................................. [2.60], [2.70] no-case ruling appeal against dismissal of application for, ....................................... [3.60] severance and separate trial applications, against, .......... [1.50], [2.20], [2.30] third-party appeals, ....................... [2.100] Witnesses acceptance or rejection of, ............ [3.190] appellability of decisions on New South Wales, ................... [3.180] Victoria, .................................. [3.180] Basha inquiry, rulings as to, .......... [3.180] compellability of, rulings as to, ..... [3.180] competency, rulings as to, ............. [3.180] expert evidence, rulings on admissibility, ........................... [3.190] costs order against unreasonably requiring, ........................... [3.190] qualification of expert, ............ [3.190] McKenzie friends, rulings as to, .... [3.190] refusal to order personal attendance, ........................................... [3.180] unfavourable, application for declaration, ........................................... [3.190] video link, orders as to evidence by, ........................................... [3.180]