APPLICATION FOR RESERVATION OF QUESTIONS OF LAW (NO 1 OF 2009)
[2009] SASC 12
•23 January 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
APPLICATION FOR RESERVATION OF QUESTIONS OF LAW (NO 1 OF 2009)
[2009] SASC 12
Judgment of The Full Court
(The Honourable Justice Nyland, The Honourable Justice David and The Honourable Justice Kelly)
23 January 2009
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - MISCELLANEOUS POWERS OF COURTS AND JUDGES
Application pursuant to s 350 of the Criminal Law Consolidation Act 1935 (SA) to require trial judge to reserve three questions of law - whether appropriate to exercise the power - discussion of relevant legal principles - applicant submitted delay caused by necessity of retrial and other factors made this an exceptional matter.
Held: questions do not raise matters of general importance - no other unusual or exceptional circumstances - appeal rights of accused preserved in any event - application dismissed.
Criminal Law Consolidation Act 1935 (SA) s 350, referred to.
R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; Pollard v The Queen (1992) 176 CLR 177; R v Gee (1999) 72 SASR 593; Application for Reservation of Questions of Law (No 2 of 1999) (1999) 106 A Crim R 423; R v Liddy [2001] SASC 116; Application for Reservation of Questions of Law (No 1 of 2006) [2006] SASC 65; R v Gassy (No 3) (2005) 93 SASR 454; R v Gassy (No 2) [2005] SASC 491; HML v R (2008) 245 ALR 204, applied.
APPLICATION FOR RESERVATION OF QUESTIONS OF LAW (NO 1 OF 2009)
[2009] SASC 12Full Court: Nyland, David and Kelly JJ
THE COURT: The applicant, Jean Eric Gassy, has applied to the Full Court to exercise its powers under the provisions of section 350(5) of the Criminal Law Consolidation Act 1935 (SA) (“the Act”) to require a judge of this Court to reserve relevant questions for consideration and determination by the Full Court.
The applicant is charged with the murder of a psychiatrist, Dr Margaret Tobin, on 14 October 2002. Before dealing with the issues which arise on the application, we set out briefly the history of the criminal proceedings to date in so far as they are relevant to our determination of this application.
The Course of the Criminal Proceedings
The applicant was convicted of the murder of Dr Tobin after a trial in the Supreme Court in 2004. He appealed to the Full Court of the Supreme Court against the conviction. The Full Court dismissed his appeal but, following an appeal to the High Court, the conviction was set aside.
The applicant’s retrial is due to commence on 16 February 2009. In the course of a voir dire hearing in October 2008, the applicant sought the exclusion of certain items of evidence seized by police as a result of a search of his parents’ address in New South Wales. The applicant challenged the validity of the search warrant used by the police to conduct the search and contended that the police had acted illegally and fraudulently both prior to, and after, executing the search warrant. The applicant’s challenge to the search warrant extended to allegations of improper conduct on the part of the issuing justice. The applicant made an additional challenge in relation to three particular items found during the search, namely a list of names of various people (“VDP33”), a torn railway ticket with the initials and addresses of three doctors written on it (“VDP34”) and two documents, namely a map of St Vincent’s Hospital at Darlinghurst in Sydney and a document containing the contact details of various medical practitioners (“VDP67”). The applicant argued that none of those items referred to Dr Tobin and should be excluded on the basis that they tended to show bad conduct or propensity.
The trial judge heard evidence from a number of police officers involved in the search and from the justice who issued the search warrant. In a detailed and considered ruling delivered on 17 December 2008 he rejected the application to exclude the challenged evidence.
The trial judge found that the procedures undertaken by the New South Wales Police and the issuing justice resulted in the issue of a valid search warrant. The trial judge concluded that even if the search warrant had been found to be invalid, he would still not exclude the evidence in the exercise of the public policy discretion. In reaching that conclusion the trial judge considered all relevant matters referred to in the leading authorities of R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54; Pollard v The Queen (1992) 176 CLR 177. In particular, one important matter which the trial judge took into account was his finding that any illegality which might have flowed from the use of the challenged search warrant was unintentional and without recklessness on the part of the police officers who conducted the search.
The trial judge ruled that the challenged documents VDP33, VDP34 and VDP67, were not inadmissible propensity evidence. He found that the documents were capable of establishing the applicant’s preoccupation with persons involved in his deregistration as a psychiatrist for one reason or another, and were therefore relevant to motive. The trial judge found that even if there was some prejudice to the applicant arising out of the reception of the evidence that prejudice was clearly outweighed by its probative value. In reaching this conclusion the trial judge noted that the same arguments had been considered and ruled upon by the Court of Criminal Appeal in the course of the applicant’s appeal against conviction in that Court and had been rejected. In this regard we also note that the High Court refused permission for special leave to appeal on the issues which arise in both questions 1 and 2.
As a consequence of the trial judge’s rejection of the application to exclude the challenged evidence, the applicant then made an application under the provisions of s 350(2) of the Act for the trial judge to reserve three questions of law for consideration and determination by the Full Court. In a ruling delivered on 17 December 2008 the trial judge declined to reserve those questions of law. The applicant now appeals to this Court under the provisions of s 350(6) of the Act to direct the trial judge to reserve to the Full Court, those three questions of law. The three questions are:
1.Was I correct in determining that VDP1, the warrant issued to Detective Moss on 29 Oct 2002 by Mr Wiseman, the authorised justice at Kogarah Local Court, was valid?
2.Was I correct in determining that, even if VDP1 was invalid, the public policy discretion should be exercised in favour of admitting the items illegally seized from the defendant’s premises into evidence?
3.Was I correct in determining that the following documents, which on the prosecution case indicated a ‘non-innocent interest’ by the defendant in people who had acted against him, were admissible at law:
a) VDP33 (two pages containing details of various doctors and one unknown, but not Dr Tobin’s);
b) VDP34 (torn rail ticket with initials and addresses of three doctors and one unknown, but not Dr Tobin’s);
c) VDP67 (two separate documents in one exhibit – p 1: map of St Vincent’s Hospital; p 2: contact details of various medical practitioners, but not Dr Tobin’s)?
The applicant submits that the reservation of the relevant questions need not necessarily delay the trial, which is scheduled to start on 16 February 2009 and in any event, the questions are of general importance. He argues that this case is in an exceptional category because it is now over six years since the murder of Dr Tobin and there has already been one trial and the appeal resulting in the quashing of his conviction.
Relevant Principles
The application is brought under the provisions of s 350 of the Act. That section relevantly states:
350—Reservation of relevant questions
(1)In this section—
relevant question means a question of law and includes a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised.
(2)A court by which a person has been, is being or is to be tried or sentenced for an indictable offence may reserve for consideration and determination by the Full Court a relevant question on an issue—
(a)antecedent to trial; or
(b)relevant to the trial or sentencing of the defendant,
and the court may (if necessary) stay the proceedings until the question has been determined by the Full Court.
(3)Unless required to do so by the Full Court, a court must not reserve a question for consideration and determination by the Full Court if reservation of the question would unduly delay the trial or sentencing of the defendant.
(4)A court before which a person has been tried and acquitted of an offence must, on application by the Attorney-General or the Director of Public Prosecutions, reserve a question antecedent to the trial, or arising in the course of the trial, for consideration and determination by the Full Court.
(5)The Full Court may, on application under subsection (6), require a court to refer a relevant question to it for consideration and determination.
(6)An application for an order under subsection (5) may be made by—
(a)the Attorney-General or the Director of Public Prosecutions; or
(b)a person who—
(i)has applied unsuccessfully to the primary court to have the question referred for consideration and determination by the Full Court; and
(ii)has obtained the permission of the primary court or the Supreme Court to make the application.
(7)If a person is convicted, and a question relevant to the trial or sentencing is reserved for consideration and determination by the Full Court, the primary court or the Supreme Court may release the person on bail on conditions the court considers appropriate.
There is no doubt that this Court has the power to direct a judge of this Court to reserve a question of law arising before or in the course of a criminal trial.
Since the section was amended in 1995 this Court has repeatedly stated that the power must be exercised with restraint, particularly where the application will interrupt the course of the trial or where the application is made with a view to requiring a trial judge to review a decision already made: R v Gee (1999) 72 SASR 593; Application for Reservation of Questions of Law (No 2 of 1999) (1999) 106 A Crim R 423.
The power of this Court to require a question to be reserved is not intended to be a general right of appeal. That right is protected by s 352 of the Act. The power should only be exercised where the issue has some general importance because it will or might arise in other cases: R v Liddy [2001] SASC 116; R v Gee.
Moreover, it is important when dealing with an application of this nature to consider the utility of the advice which might be given by the Full Court in addressing the issues raised in the questions. The circumstances in which the Full Court would proffer advice on the manner in which a trial judge’s discretion should be exercised on evidential issues, would be exceedingly rare: Application for Reservation of Questions of Law (No 1 of 2006) [2006] SASC 65.
Discussion
With those considerations in mind, we have addressed the question whether it is appropriate to order the trial judge to reserve the questions of law identified by the applicant.
Question 1, which relates to the validity of the search warrant, was considered by the Court of Criminal Appeal in the course of its judgment in the appeal against conviction in R v Gassy (No 3) (2005) 93 SASR 454. The majority (Bleby and White JJ) discussed the relevant legal principles which were applied by the trial judge in the first trial. Although the appellate court finally concluded that further evidence was required to determine the validity of the warrant, there was no real controversy about the legal principles which ought to be applied in the determination of the question.
In the course of the voir dire hearing the trial judge heard further evidence and applied the same legal principles to his determination of the issue.
The applicant’s contentions in relation to this question depend on many factual propositions and conclusions, which were specifically rejected by the trial judge in the course of a very detailed and thorough ruling.
Moreover, the resolution of question 1 would not finally determine the admissibility of the evidence seized under the provisions of the challenged warrant. After hearing evidence the trial judge concluded that the warrant, no matter when it was issued, was valid. He went on to say that in any event, if his conclusion about that was wrong, then he would still not exclude the evidence in the exercise of the public policy discretion.
Question 2 relates to the correctness of the conclusion by the trial judge that if the warrant was invalid, then the public policy discretion ought not to be exercised to exclude the items. In so concluding, the trial judge applied well established principles. He considered the exercise of the discretion on almost identical facts to those considered by the Court of Criminal Appeal, except that he had the benefit of hearing further evidence about the actual events at the Kogarah Courthouse and elsewhere on the day in question.
The applicant’s submissions in relation to this question once again rely on factual propositions which were specifically rejected by the trial judge in the course of his ruling. In particular, the applicant relies on the fact that the conduct was illegal and deliberate. No such findings were made by the trial judge.
Question 3 relates to the admissibility of the documentary evidence VDP33, VDP34 and VDP67. The trial judge came to a very similar conclusion to the Court of Criminal Appeal in R v Gassy (No 2) [2005] SASC 491, finding that this evidence did not attract the exclusionary rule applicable to evidence of bad character, propensity or other discreditable conduct.
The applicant’s submission that the question raises an issue of general importance must be rejected. In our view, whether or not the particular items of evidence attract the application of the exclusionary rule does not depend on whether that evidence was characterised as other criminal conduct or simply discreditable conduct generally.
In making the submission that question 3 raises an issue of general importance, the applicant relied on comments made in the High Court in HML v R (2008) 245 ALR 204 to the effect that the exclusionary rule extends to non-criminal conduct. The comments made by the High Court in HML in relation to other discreditable conduct are uncontroversial and do not have any particular relevance to the facts on which the trial judge determined this application. The trial judge determined the admissibility of that evidence by reference to well established principles. In this regard we note that the Court of Criminal Appeal in R v Gassy (No 2) at [106] also concluded that the challenged evidence did not attract the exclusionary rule as it was not inadmissible propensity evidence. Permission to appeal on that issue was refused.
It is now less than six weeks prior to the commencement of the trial. Even if this Court did determine to require the trial judge to reserve the questions, there can be no certainty that the Court would be able to produce a decision in that time frame to avoid disruption to the proposed commencement date of the trial. We mention this in light of the applicant’s submission that there was ample time for the Court to consider and answer the questions.
Whilst we acknowledge that that consideration is not on its own decisive, we have nevertheless reached the firm conclusion that this is not a matter where this Court should entertain the application. The questions sought to be reserved do not raise any question of general importance. Whilst the issue of the legality of the search warrant is a matter of general importance to the administration of justice, the application of the principles are well established and were applied by the trial judge in this case. The resolution of question 1 cannot finally determine the issue of the admissibility of the evidence obtained pursuant to the search warrant and will not determine the outcome of the trial with finality.
We do not consider that there is any other unusual or exceptional circumstance which would justify this Court interrupting the course of the retrial. In our view, the fact that there has already been one trial and considerable delay is a reason for ensuring that the proceedings are not further delayed.
The refusal of this application does not foreclose the points raised by the applicant. If the trial judge was wrong in the conclusion he reached, and should the applicant be found guilty after the trial, it may be expected that those errors will be corrected on appeal.
It follows from the foregoing that this application should be dismissed and accordingly we make that order.
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