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…

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 Bell v The King

Details

AGLC: Bell v The King [2023] SASCA 86
Case: [2023] SASCA 86
Decision Date: 10 August 2023

CaseChat Overview and Summary

In *Bell v The King*, the applicant sought permission from the Full Court of the Supreme Court of South Australia to apply for an order that the trial judge reserve certain questions of law for the Court of Appeal's consideration. The dispute concerned the admissibility of evidence of discreditable conduct under section 34P of the *Evidence Act 1929* (SA) and the joinder of multiple charges for a single trial.

The legal issues before the Full Court were whether it was appropriate to grant the applicant permission to seek a reservation of questions. Specifically, the Court had to determine if the questions posed were suitable for reservation, if they possessed general importance or utility, and if reserving them would cause undue delay or fragmentation of the proceedings.

The Court reasoned that the questions were not appropriate for reservation because they required a detailed factual analysis of the evidence, essentially seeking an advisory opinion rather than a determination of a point of law. Furthermore, the Court found that the questions, while important to the applicant's case, did not raise issues of general importance or utility to other cases, nor was there a demonstrable divergence in judicial approaches to section 34P of the *Evidence Act*. Crucially, the Court held that reserving the questions would unduly delay and fragment the proceedings, which had already been subject to multiple trial listings since 2017, and risked further erosion of evidence quality. Consequently, the Court refused to grant the applicant permission to apply for the order.

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

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 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. 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. 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. 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.