Application for Reservation of Questions of Law (No 2) No. Sccrm-97-222 Judgment No. S6496

[1997] SASC 6496

APPLICATION FOR RESERVATION OF QUESTIONS

OF LAW [No. 2]

Court of Criminal Appeal
Coram: Cox, Prior and Williams JJ

By the Court

This is an application by the Crown, made at the start of the trial of the respondents by a Judge of this Court, for an order directing the learned Judge to reserve for consideration and determination by the Full Court the following questions of law -

1. Is a Bunning and Cross discretion to exclude evidence on public policy grounds applicable to exclude evidence not on the basis that the evidence was improperly or unlawfully obtained, but on the basis of conduct by the police and/or civilian witnesses presenting a false story either in a declaration to the court or in giving evidence?

1. Can the seizure of documents pursuant to a search warrant, which documents are not the subject of legal professional privilege, be rendered unlawful because the police officer seizing the documents did not address the issue of whether legal professional privilege might exist?"

The respondents are charged on an information that contains sixty-four counts of abuse of public office. Each count alleges an offence on the part of one of more of the respondents. The learned Judge is sitting without a jury. Following a pre-trial application by the respondents her Honour ruled that a very large number of office files, obtained by the police from a man named Renko, should be excluded from the trial on discretionary grounds. The findings and reasoning that led to this decision are set out at length in her Honour’s voir dire ruling of 21 May 1997. The Crown says - and this was not disputed - that without the files it has no case against the respondents. It asked the Judge to reserve the questions pursuant to subs(1) of s350 of the Criminal Law Consolidation Act 1935 but her Honour declined to do so. The Crown thereupon applied to the Full Court for an order directing the trial Judge to reserve the questions to the Full Court: see subs(2). In earlier proceedings on that application the Full Court held that it has power to make such a direction in this case: Application for Reservation of Question of Law (Full Court, 7 November 1997). Another Full Court, differently constituted, has now heard argument on the merits of the Crown’s application.

This is a new power. The Court has generally set its face against anything in the nature of an interlocutory appeal in criminal matters. It causes delay and anxiety and expense for what may turn out to be no worthwhile purpose at all. Obviously the amended s350 permits an exception to be made to that general practice. However, the factors we have mentioned are relevant to the exercise of the Court’s discretion when asked to act under s350. Compare subs(3).

The questions that the Crown seeks to have reserved are of general importance in the criminal law. More to the point, they are relevant and important in this particular trial. If the Full Court should answer them in a particular way, it could be expected that the learned trial Judge would reconsider her ruling. The questions are fit for consideration, then, under s350.

The alleged offences are very serious.  Without the evidence contained in the files the trial cannot proceed.  It is understandable that the Crown should seek to have the questions answered now and not be obliged to wait until the trial has finished.

Her Honour refused to refer the questions because she considered that she had no power to do so. The Full Court has overruled that ground of objection. Her Honour was also of the view that the application should fail on the merits. She referred to the delay that had occurred in getting the matter to trial, and she considered that Question 1 had already been answered by the Court of Criminal Appeal in the case of R v Plunkett (1 July 1997). We do not think that the delay, though regrettable, is a sufficient reason for refusing the application. Nor would using the statutory procedure delay the trial unduly. The Crown should have moved more quickly in making its s350 applications, first to the trial Judge and then to the Full Court, but we do not think that it should be disqualified for its dilatoriness. It is not appropriate here to analyze the Full Court’s decision in Plunkett which was, of course, handed down after the voir dire ruling.

In the end it is a matter of weighing the competing considerations and deciding whether the Crown has made out its case.  In our opinion it has.

We would make an order requiring the trial Judge to reserve the two questions set out in the Director’s summons for consideration and determination by the Full Court.