Bell v The King

[2023] SASCA 86

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

BELL v THE KING

[2023] SASCA 86

Judgment of the Court of Appeal  

(The Honourable Justice Lovell, the Honourable Justice David and the Honourable Justice Stanley)

10 August 2023

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA - CASE STATED AND RESERVATION OF QUESTION OF LAW

This is an application by Troy Stephen Bell for permission to apply to the Court of Appeal for an order that a trial Judge of the District Court refer a relevant question for consideration and determination under s 153(5) of the Criminal Procedure Act 1921 (SA) (‘the CPA’).

The applicant is charged with 20 counts of theft contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’); and six counts of Aggravated Dealing with a Document, contrary s 140(4) of the CLCA. The trial Judge ruled that the charges were properly joined and should not be severed; and the discreditable conduct evidence of 140 uncharged acts of dishonesty was admissible pursuant to s 34P(2)(a) for a non-propensity purpose.

The applicant seeks permission to apply to have the following singular question reserved for consideration and determination by the Court of Appeal:

1.In a case where the prosecution relies upon a series of charges joined on the same Information, did the trial Judge comply with s 34P(2)(a) by considering questions of cross-admissibility between counts and the admissibility of discreditable conduct evidence by determining whether an ‘overall system’ existed, with that system comprised of evidence of both charged and uncharged acts?

In addition to the singular question, the applicant seeks permission to have the following three questions (which underpin and inform the singular question) reserved for consideration and determination:

1.1Is the evidence in respect of each charge cross-admissible in relation to every other charge on the Information having regard to s 34P of the Evidence Act 1929?

1.2 Was the uncharged discreditable conduct evidence admissible as a pattern or system pursuant to s 34P of the Evidence Act 1929?

2.Were all charges on the Information dated 27 April 2023 properly joined in accordance with s 102 of the CPA?

3. Was the discretion exercised by the trial Judge not to order severance such that there be separate trials on: counts 1 and 2; counts 3 and 4; counts 10 and 11; counts 22 to 26; counts 5 to 9; and counts 12 to 21, properly exercised?

The applicant submits the questions sought to be reserved are all questions of law, or questions as to how a judicial discretion should be properly exercised; and the answers to those questions will have a significant bearing on the outcome of the trial.

Held, per the Court, permission is refused and the application is dismissed.

Criminal Law Consolidation Act 1935 (SA) ss 134(1), 140(4), 350; Criminal Procedure Act 1921 (SA) ss 102, 153; Evidence Act 1929 (SA) s 34P, referred to.

George (A Pseudonym) v The Queen [2022] SASCA 66, distinguished.

Brant v The King [2023] SASCA 67; Lukaj v The King [2022] SASCA 135; R v Bell (No 4) [2023] SADC 78; R v Bell (No 5) [2023] SADC 90; R v Tran [2017] SASCFC 99, discussed.

BELL v THE KING
[2023] SASCA 86

Court of Appeal: Criminal – Lovell and David JJA and Stanley AJA

1. THE COURT: This is an application by Troy Stephen Bell for permission to apply to the Court of Appeal for an order that a trial Judge of the District Court refer a relevant question to the Court of Appeal for consideration and determination under s 153(5) of the Criminal Procedure Act 1921 (SA) (‘the CPA’).

2. The applicant is charged with 20 counts of theft contrary to s 134(1) of the Criminal Law Consolidation Act 1935 (SA) (‘the CLCA’); and six counts of Aggravated Dealing with a Document, contrary to s 140(4) of the CLCA.

3. The applicant’s trial was listed to commence on 14 March 2023, with the voir dire hearing (for all pre-trial applications) listed on 10 October 2022. This is the fifth trial listing of the matter. Relevantly, during the voir dire, the applicant challenged the cross-admissibility of various groups of charges (and contended there should be in fact six separate trials). The applicant also applied for the exclusion of the discreditable conduct evidence of 140 uncharged acts of dishonesty under s 34P of the Evidence Act 1929 (SA) (‘the Evidence Act’).

4. The trial Judge ruled that the charges were properly joined and should not be severed; and the impugned discreditable conduct evidence was admissible pursuant to s 34P(2)(a) for a non-propensity purpose.[1]

   [1]     R v Bell (No 4) [2023] SADC 78.

5. Following that ruling, the applicant applied to the trial Judge to reserve four ‘relevant questions’ for consideration and determination by the Court of Appeal pursuant to s 153(2) of the CPA. Broadly speaking, the relevant questions relate to whether the trial Judge’s rulings on the issues of joinder, severance, and the discreditable conduct evidence of uncharged acts of dishonesty were correct. In R v Bell (No 5)[2] the trial Judge declined the application for reservation as, inter alia, to do so would ‘unduly delay’ the applicant’s trial.

   [2] [2023] SADC 90.

6. On 17 July 2023, the applicant filed an originating application for the reservation of a question of law under s 153(6) of the CPA. Pursuant to s 153(6)(b)(ii) of the CPA, the applicant is required to obtain ‘the permission of the primary court or the Supreme Court to make the application’ to the Court of Appeal to require a trial court to refer a relevant question to it for consideration and determination.  In George (A Pseudonym) v The Queen,[3] (‘George’) the Director contended that the reference to the Supreme Court in s 153(6)(b)(ii) cannot mean the Court of Appeal because the Court of Appeal is explicitly referred to elsewhere in this, and other, provisions of the CPA; the reference can only mean a single judge of the General Division of the Supreme Court. In George, this Court considered that it was not necessary to decide this objection as the Court ultimately determined that the application for permission to require the trial court to refer relevant questions to the Court of Appeal should be dismissed. In the present case, the Director did not take a similar objection, and the matter was not the subject of submissions.

   [3] [2022] SASCA 66 at [12] per Livesey P and Lovell JA.

7. In any event, we would dismiss the application for the reasons which follow.

   Procedural history

8. The procedural history of this matter is set out in considerable detail in the written submissions of both parties.  It is not necessary to repeat that history except to say that this matter has a lengthy and protracted history. The charged offences relate to conduct allegedly committed by the applicant between 2008 and 2014. An information was laid in the Magistrates Court in respect of the allegations in August 2017. The applicant was first arraigned in the District Court on 9 October 2018.  The matter was first listed for trial in October 2019. The matter has been listed for trial on five occasions, the most recent trial listing being on 14 March 2023. There are still pre-trial applications to be heard relating to the admissibility of a record of interview, intercepted telecommunications, and expert evidence.  There is no indication as to when a jury may be empaneled.

9. The prosecution presently intends to call about 90 prosecution witnesses, the majority of whom are civilian witnesses. Those witnesses have not been released from subpoenas issued for their attendance in March 2023. Most of the witnesses were also subpoenaed to attend a previous trial listed to commence in 2020; they have been on notice since that time that they would be called upon in the future to give evidence.

10. The estimated length of the trial is four months.

    The relevant legislative provisions

11. The application for permission to require the trial court to reserve relevant questions to the Court of Appeal is governed by section 153 of the CPA. It provides as follows:

    153—Reservation of relevant question

    (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 Court of Appeal 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 Court of Appeal.

    (3)    Unless required to do so by the Court of Appeal, a court must not reserve a question for consideration and determination by the Court of Appeal 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 Court of Appeal.

    (5)    The Court of Appeal 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 Court of Appeal; 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 Court of Appeal, the primary court or the Supreme Court may release the person on bail on conditions the court considers appropriate.

12. The power of reservation is not intended to operate as a general right of appeal.  In Application for Reservation of Questions of Law (No 1 of 2017),[4] the Full Court outlined the relevant general principles in respect of s 350 of the CLCA (the cognate provision to s 153 of the CPA). The Court said:

    Notwithstanding the general nature of the language in section 350(5), the power to direct a judge to reserve a question of law during the course of a criminal trial is only to be exercised in unusual or exceptional circumstances. Undue fragmentation of or interference with the conduct of a criminal trial is to be avoided. The Full Court before exercising the power also will have regard to whether or not such would lead to undue or unacceptable delay in the resolution of the criminal proceedings.

    Importantly, the power of the Full Court to require that a question be reserved is not intended to be a general right of appeal. Appeals to the Full Court in criminal matters are governed by section 352 of the Criminal Law Consolidation Act. The circumstances in which the prosecution may obtain permission to appeal against an acquittal are very constrained. As a consequence, it has repeatedly been observed that the power to refer a question should only be exercised where the issue under consideration is one of general importance in that the answer to it might prove to be of assistance in other cases.

    The power of reservation is not designed to facilitate advisory opinions and where a direction is made for a reservation it will then fall upon the trial judge to set out for the Full Court any findings of fact necessary for the determination of the questions so reserved.

    (citations omitted)

    [4] [2017] SASCFC 90 (Nicholson, Parker and Lovell JJ).

13. These general principles remain applicable to s 153 of the CPA.

    The relevant questions

14. The applicant seeks permission from the Supreme Court to apply to have the following singular relevant question reserved for consideration and determination by the Court of Appeal:

    1. In a case where the prosecution relies upon a series of charges joined on the same Information, did the trial Judge comply with s 34P(2)(a) of the Evidence Act by considering questions of cross-admissibility between counts and the admissibility of discreditable conduct evidence by determining whether an ‘overall system’ existed, when that system comprised of evidence of both charged and uncharged acts?

15. In addition to the singular question, the applicant seeks permission to have the following three further questions (which appear to underpin and inform the singular question) reserved for consideration and determination by this Court: 

    1.1 Is the evidence in respect of each charge cross-admissible in relation to every other charge on the Information having regard to s 34P of the Evidence Act?

    1.2 Was the uncharged discreditable conduct evidence admissible as a pattern or system pursuant to s 34P of the Evidence Act?

    2.Were all charges on the Information dated 27 April 2023 properly joined in accordance with s 102 of the CPA?

    3. Was the discretion exercised by the trial Judge not to order severance such that there be separate trials on: counts 1 and 2; counts 3 and 4; counts 10 and 11; counts 22 to 26; counts 5 to 9; and counts 12 to 21, properly exercised?

16. The applicant submits that the relevant questions sought to be reserved are all questions of law, or questions as to how a judicial discretion should be properly exercised; and the answers to those questions will have a significant bearing on the outcome of the trial. The applicant also submits that permission should be granted for the following reasons.

    1.   The trial will not be unduly delayed by reason that:

    (a)if the applicant’s submissions are accepted, and the charges or some of the charges are severed and the subject of a separate trial, the combined length of any trials is likely to be substantially shorter than the length of the current single trial; and  

    (b)the discreditable conduct evidence involves approximately 140 uncharged acts committed over a significant period which extends to the applicant’s transactions with nine schools (other than a High School which is the subject of the charged offences) and, if inadmissible, there will be less evidence adduced on the prosecution case, the summing up will be shorter and less cumbersome and, consequently, the length of the trial reduced.

    2. The questions sought to be reserved raise issues of general importance; namely, the correct approach to the admissibility of discreditable conduct evidence pursuant to s 34P of the Evidence Act in circumstances where the prosecution alleges an overarching system or pattern of dishonesty evinced by both the charged acts and other uncharged conduct. The applicant contends that in such circumstances there is a conflict between the authorities of Lukaj v The King[5] (‘Lukaj’) and Brant v The King[6] (‘Brant’) on the one hand, and R v Tran,[7] (‘Tran’) on the other, in relation to the approach to be taken to the admissibility of evidence under s 34P.

    3.   The reserved questions involve issues of general application to other cases such that there is significant utility in the questions sought to be reserved being considered and determined by this Court.  

    [5] [2022] SASCA 135.

    [6] [2023] SASCA 67.

    [7] [2017] SASCFC 99.

17. The prosecution opposes the application on the following bases:

    1.The application would unduly delay and fragment the proceedings, in circumstances where the defendant will have a right of appeal if he is convicted.

    2.The application is akin to an application for an advisory opinion.

    3.The questions themselves do not identify evidence and are insufficiently precise to allow the Court of Appeal to render a clear answer.

    4.The impugned decision of R v Bell (No 4)[8] reflects the application of well-settled principles of law.

    [8] [2023] SADC 78.

    The trial Judge’s reasons

18. The trial Judge in declining to reserve the relevant questions had regard to s 153(3) of the CPA and the requirement that the trial court must not reserve a question if to do so would unduly delay the trial of the defendant. The trial Judge said that ‘the law has long recognized that undue fragmentation or interference with the conduct of a trial is to be avoided where possible’ and ‘should only occur where appropriate in all the circumstances.’

19. The trial Judge noted that the pre-trial application and submissions which rendered the impugned ruling in R v Bell (No 4) ‘were many hundreds of pages of written submissions and supplementary materials tendered, and ten full days of oral submissions.’  The trial Judge briefly set out the basis upon which the applicant sought to have the relevant questions reserved to the Court of Appeal, which are in similar terms to those put to this Court. The trial Judge then outlined the potential impact of further delay on both parties’ interests. After having considered those matters, the trial Judge concluded:

    Weighing up everything put, tendered and submitted, in light of the clarity of the applicability of Tran, and the consequent lack of an obviously controversial legal issue justifying pre-trial clarification and determination by the Court of Appeal, together with the admissibility of discreditable conduct evidence being a straightforward application of section 34P to the facts of the case, together with the likely delay and loss of trial listing that will on balance occur, with the consequence of delaying the trial for at least another year, against a backdrop of five years since committal to this court, it would not be appropriate pursuant to section 153 of the Act to refer the matter to the Court of Appeal for consideration and determination.

20. It is evident that the trial Judge had regard to the relevant legislative provisions under s 153 of the CPA, and the correct legal principles in determining whether to reserve the relevant questions to this Court.

    Consideration

21. We consider that it is not appropriate to grant the applicant permission to apply for an order that the trial Judge direct the relevant questions to the Court of Appeal for consideration and determination for the following reasons.

22. First, the relevant questions are framed so that they cannot be answered without this Court undertaking a detailed factual analysis of the evidence sought to be adduced by the prosecution at trial, in order to consider and determine what, if any, inferences can be drawn from the materials to justify the admission of the evidence under s 34P(2)(a) of the Evidence Act, and the joinder of all charges to be heard in a single trial. It is to be observed that, during the trial, the evidence may well depart from that foreshadowed in the materials, or indeed it may take on a different complexion as the whole of the evidence emerges, and one not readily apparent on the materials. For that reason, the applicant, in effect, seeks an advisory opinion. That is not an appropriate use of the referral process under s 153 of the CPA.

23. Second, whilst the relevant questions are plainly important to the resolution of the applicant’s case, we are not satisfied they are of any general importance or utility to other cases. Contrary to the applicant’s assertion that there is a divergence in the approach taken by this Court in Tran on the one hand, to the approach taken in the more recent authorities of Lukaj and Brant, on the other, any such dichotomy is not evident from a consideration of those cases. Rather, all three authorities reflect the application of well-established principles governing the admission of discreditable conduct evidence pursuant to s 34P of the Evidence Act as applied to varying factual scenarios. There may well be a question for this Court in due course, should the applicant be convicted of any of the offences, whether those well-settled principles as to the operation of s 34P have been correctly applied by the trial Judge on the facts of this case.

1. Third, and importantly, the reservation of the relevant questions will unduly delay and fragment the proceedings. This matter has been progressing through the courts since 2017. The matter was first listed for trial to have commenced on 8 October 2019. This is the fifth trial listing. If the trial court was ordered to reserve the relevant questions, it would be difficult, given the voluminous nature of the proposed evidence, for this Court to hear the matter and deliver judgment this year; the trial date would inevitably be lost.   There are over 90 witnesses currently required to give evidence; all are subject to subpoena. Bearing in mind our conclusion that the relevant questions do not raise any issues of general importance and are akin to a request for an advisory opinion with little potential for broader utility, we are also satisfied that, as the trial Judge found, any further fragmentation of the proceedings would amount to undue delay.  That delay runs the risk of a further erosion of the quality of the evidence that depends on the reliability of witnesses’ memory. It is a cogent factor against granting permission.

2. For those reasons, we refuse permission and dismiss the application.

3. It is important to reiterate that the refusal to grant permission does not prevent the applicant from again raising the points encapsulated in the relevant questions. Should the applicant be convicted of any of the offences, it will of course be open to him to raise any of those matters on appeal.  

   Orders:

   1.Permission to apply to the Court of Appeal to make an application to require the District Court to refer relevant questions of law to the Court of Appeal is refused.

   2.Application dismissed.