A, Mr v Police

[2008] SASC 298

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

A, MR v POLICE

[2008] SASC 298

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Sulan and The Honourable Justice David)

4 November 2008

MAGISTRATES - APPEALS AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO FULL COURT

EVIDENCE - ADMISSIBILITY AND RELEVANCY - SIMILAR FACTS - IN GENERAL - RELEVANT PRINCIPLES

Application for permission to appeal to the Full Court against a decision of a single judge - applicant charged with five counts of unlawful sexual intercourse - five different complainants - magistrate considered that evidence in relation to each count not admissible in relation to the other counts - magistrate ordered that separate trials take place for each count - appeal against decision of magistrate allowed by single judge - single judge considered that evidence was cross-admissible - whether permission to appeal to the Full Court should be granted.

Held: Appeal to single judge turned on application of relevant principles to the facts of the case - proposed appeal raises no issue of principle - no other factors make case suitable for appeal - court reluctant to interfere with the course of criminal proceedings - applicant could challenge any subsequent conviction based on the cross-admissibility of evidence in the Court of Criminal Appeal - not an appropriate case to grant permission to appeal.

Supreme Court Act 1935 (SA) s 50(4), referred to.
Hoch v The Queen (1988) 165 CLR 292; R v Boardman [1975] AC 421, considered.

A, MR v POLICE
[2008] SASC 298

Full Court:  Doyle CJ, Sulan and David JJ

1. THE COURT:  This is an application for permission to appeal to the Full Court.

2. The proposed appeal is against a decision of a single Judge of this Court, on appeal from a judgment of the Magistrates Court. Accordingly, permission to appeal is required by s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA).

3. Mr A is charged on an Information with five counts of indecent assault.  Each count relates to a different complainant.

4. When the matter came before a Magistrate, counsel for Mr A applied for an order that each count be tried separately.  Counsel argued that the evidence on any one count was not admissible as evidence in proof of any other count.  That being so, counsel argued, an order should be made for separate trials.

5. The prosecutor argued that the evidence of each complainant was admissible on each other count.  The argument for admissibility rested on the combination of suggested similarities in the manner in which each offence was committed on each of the young women involved, and on the unlikelihood of five different young women giving an account of events having the degree of similarity that existed.  The prosecution argued that the case was a case of the kind referred to by a majority of the High Court in Hoch v The Queen (1988) 165 CLR 292 at 295-296, and by Lord Wilberforce in R v Boardman [1975] AC 421 at 444.

6. The Magistrate upheld the submission by counsel for Mr A, and ordered separate trials of each count.  The argument before the Magistrate was conducted on the basis of an outline of the prosecution case only.  Witness statements were not given to the Magistrate.

7. On an appeal against the Magistrate’s decision, a single Judge came to a contrary conclusion.  The Judge held that the evidence of the complainant on each count was admissible on each other count.  There appears to be no issue as to relevant principles applicable.  The case turned on the application of the principles to the facts of the case.

8. We are unanimously of the opinion that permission to appeal should be refused, for the following reasons.

9. The grant of a permission to appeal will lead to yet another consideration of the application of well-established principles to the facts of this particular case.  No point of principle is involved.  This is not to say that counsel for Mr A does not have an arguable point.  Cases of this kind are nearly always arguable.  But the fact remains that no point of principle arises.

10. No feature of the case has been identified that makes the case suitable for appeal for some other reason.

11. The Court is reluctant to interfere with the course of criminal proceedings by hearing appeals from preliminary rulings, unless there is some good reason to do so.  The fact that there is or may be an arguable point involved is not, of itself, a sufficient reason to entertain a further appeal.

12. Moreover, deciding the admissibility of the evidence on the basis of an outline of the prosecution case has its drawbacks.  The evidence, when given, might not accord entirely with the prosecution’s outline.  If that happens, the admissibility of the evidence may fall to be decided on a different factual basis.

13. The decision of a single judge will not prevent defence counsel renewing the application for the exclusion of evidence at the close of the prosecution case, or even later, if the evidence before the Magistrates Court differs from the prosecution outline.  Nor would a decision by the Full Court, if given at this stage.  For that reason, there is limited value in the Full Court deciding the issue of admissibility on the basis of an outline of the prosecution case.  This is a reason militating against the grant of permission to appeal.

14. Moreover, if the evidence is ultimately treated as cross-admissible, and if Mr A is convicted, he can still challenge the decision to admit the evidence by appealing against his conviction.  In that event, the court will have a firm basis for a decision on the question of admissibility.  As things stand, if the Court granted permission to appeal, the court might find that its decision on the admissibility of evidence had to be revisited on an appeal against conviction.

15. The factors that we have canvassed lead us to conclude that this is not an appropriate case for a grant of permission to appeal.