AF v R

Case [2015] NSWCCA 35 16 March 2015

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Court of Criminal Appeal
Supreme Court

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]; Harrison J at [2]; R A Hulme J at [3]
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) Criminal Appeal Act 1912 (NSW) Criminal Procedure Act 1986 (NSW) Evidence Act 1995 (NSW) Evidence (Children) Act 1997 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW)
Cases Cited:	EK v R [2009] NSWCCA 4; 75 NSWLR 302 Panchal v R; R v Panchal [2014] NSWCCA 275 R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 R v F [2002] NSWCCA 125; 129 A Crim R 126 R v Lethlean (1995) 83 A Crim R 197 R v RAG [2006] NSWCCA 343 R v Steffan (1993) 30 NSWLR 633
Category:	Principal judgment
Parties:	AF Regina
Representation:	Counsel: Mr E Kerkyasharian (Applicant) Mr K McKay (Crown) Solicitors: Aboriginal Legal Service Solicitor for Public Prosecutions
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AF v R

Details

AGLC: AF v R [2015] NSWCCA 35
Case: [2015] NSWCCA 35
Decision Date: 16 March 2015

CaseChat Overview and Summary

The case before the court involved an appellant, AF, appealing against a decision of the District Court of New South Wales. The nature of the dispute was a challenge to the competency of an appeal against a ruling that allowed the complainant to give evidence through a pre-recorded interview, as permitted under the Criminal Procedure Act. The appellant argued that the decision to allow such evidence was an interlocutory judgment or order, which could be appealed under section 5F of the Criminal Appeal Act.

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