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New South Wales |
Case Name: | AF v R |
Medium Neutral Citation: | [2015] NSWCCA 35 |
Hearing Date(s): | 23 February 2015 |
Decision Date: | 16 March 2015 |
Before: | Hoeben CJ at CL at [1]; |
Decision: | Leave to appeal pursuant to s 5F(3) refused |
Catchwords: | CRIMINAL LAW – appeal – appeal under s 5F Criminal Appeal Act – where complainant found to be vulnerable person – whether decision of District Court judge that evidence of complainant be given by pre-recorded interview pursuant to Ch 6 Pt 6 Criminal Procedure Act an interlocutory judgment or order per s 5F(3) – not a ruling on the admissibility of evidence – where ruling lacks finality – not an interlocutory judgment or order – appeal incompetent |
Legislation Cited: | Crimes Act 1900 (NSW) |
Cases Cited: | EK v R [2009] NSWCCA 4; 75 NSWLR 302 |
Category: | Principal judgment |
Parties: | AF |
Representation: | Counsel: |
File Number(s): | 2012/245668 |
Publication Restriction: | As the applicant was a juvenile at the relevant time, s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits publication of anything that would identify him |
Decision under appeal: | |
Court or Tribunal: | District Court |
Date of Decision: | 17 December 2014 |
Before: | Payne DCJ |
File Number(s): | 2012/245668 |
JUDGMENT
HOEBEN CJ at CL: I agree with R A Hulme J.
HARRISON J: I agree with R A Hulme J.
R A HULME J: AF (“the applicant”) seeks leave to appeal pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW) against what is said to be an interlocutory judgment or order made by her Honour Judge Payne in the District Court at Parramatta on 17 December 2014.
Background
The applicant was arrested on 7 August 2012 and charged in relation to the alleged sexual assault of a woman at Glendenning on 12 May 2012. The Crown proposes that he be tried on five accounts of aggravated sexual assault in company contrary to s 61JA of the Crimes Act 1900 (NSW).
The matter was listed for trial on 28 October 2013 but that date was vacated on the basis that the Crown sought that the complainant be psychiatrically assessed in relation to possible cognitive impairment.
The complainant was interviewed and assessed by Dr Susan Pulman, a clinical neuropsychologist and forensic psychologist, on 28 October 2013 and by Dr Olav Nielssen, psychiatrist, on 16 June 2014. Both assessed the complainant…
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CaseChat Overview and Summary
The primary legal issue for the court to decide was whether the District Court's decision to permit the complainant to give evidence via a pre-recorded interview was an interlocutory judgment or order under section 5F(3) of the Criminal Appeal Act. The court was required to determine if this ruling constituted a final decision on the admissibility of the complainant's evidence, thus making it appealable. If the ruling was deemed interlocutory, the appeal would be incompetent.
The court held that the District Court's decision did not constitute an interlocutory judgment or order because it lacked finality. The court reasoned that the decision to allow the complainant to give evidence through a pre-recorded interview was not a ruling on the admissibility of the evidence itself, but rather a procedural matter that could be revisited. The ruling was therefore not final, and the appeal was incompetent. The court emphasised that for a decision to be appealable under section 5F, it must be an interlocutory judgment or order that determines the admissibility of evidence. The court also noted that the decision to permit the use of a pre-recorded interview could be reconsidered at a later stage in the proceedings.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Established by: HOEBEN CJ
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