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Burton v The King

Burton v The King

Case [2024] NSWCCA 213 22 November 2024

Appeal

Interlocutory Orders

Error of Principle

Substantial Injustice

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Burton v R [2024] NSWCCA 213
Hearing dates: 23 October 2024
Date of orders: 23 October 2024
Decision date: 22 November 2024
Before: Kirk JA at [1];
Rothman J at [2];
Yehia J at [5]
Decision: (1) Leave to appeal is refused.
Catchwords:
CRIME – Appeals – interlocutory appeal – decision to refuse a permanent stay – whether the primary judge made interlocutory orders about the availability of defences – difference between indicative rulings and interlocutory orders – criteria for leave to appeal from interlocutory decision in criminal proceedings – whether there was an error of principle and possibility a likelihood of substantial injustice – leave to appeal refused

Legislation Cited:
Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 43, 105, 105(2)
Court Suppression and Non-publication Orders Act 2010 (NSW), s 7(1)(a)
Crimes Act 1900 (NSW), s 192E
Criminal Appeal Act 1912 (NSW), ss 5F, 5F(3), 5F(3)(a)
Criminal Procedure Act 1986 (NSW), s 130A; Sch 1, Table 1, s 18
Evidence Act 1995 (NSW), s 97
Supreme Court Act 1970 (NSW)

Cases Cited:
ABT v Bond (1990) 170 CLR 321
AF v R [2015] NSWCCA 35
Barton v The Queen (1980) 147 CLR 75; [1980] HCA 48
BM v R [2017] NSWCCA 253
Boulos v R [2008] NSWCCA 119
Burton v Babb [2020] NSWCA 331
Burton v Babb [2023] NSWCA 242
Burton v Babb [2023] NSWDC 103
Burton v Director of Public Prosecutions (2022) 110 NSWLR 145; [2022] NSWCA 242
Burton v Director of Public Prosecutions (NSW) (2021) 361 FLR 432; [2021] NSWSC 1230
Burton v Local Court of New South Wales [2019] NSWSC 191
Burton v Office of the Director of Public Prosecutions (2019) 100 NSWLR 734;[2019] NSWCA 245
Burton v Secretary, Department of Communities & Justice (formerly Family and Community Services) [2022] NSWCA 7
Burton v Secretary, Department of Communities and Justice [2020] NSWCA 68
Burton v Secretary, Department of Family and Community Services [2019] NSWCA 21
Burton v The Director of Public Prosecutions [2024] NSWSC 863
Burton v The Office of the Director of Public Prosecutions [2019] NSWDC 120
DAO v R (2011) 81 NSWLR 568; [2011] NSWCCA 63
Gas and Fuel Corporation v Saunders (1994) 52 FCR 48
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; [2023] HCA 32
Hammoud v R [2020] NSWCCA 339
House v The King (1936) 55 CLR 499; (1936) HCA 40
Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46
JD v R [2013] NSWCCA 198
KN v R (2017) 95 NSWLR 767; [2017] NSWCCA 249
Koschier v R (2024) 113 NSWLR 491; [2024] NSWCCA 24
La Rocca v R [2023] NSWCCA 45
Maxwell v Keun [1928] KB 645
Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50
O'Haire v Barnes, Chief Regulatory Officer, Natural Resources Access Regulator

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 Burton v The King

Details

AGLC: Burton v The King [2024] NSWCCA 213
Case: [2024] NSWCCA 213
Decision Date: 22 November 2024

CaseChat Overview and Summary

The appellant, Burton, appealed against the decision of the Court of Appeal of the Supreme Court of Victoria to refuse a permanent stay of proceedings against him. Burton faced criminal charges, and the Court of Appeal had previously declined to grant a permanent stay of proceedings, a decision Burton sought to challenge on interlocutory appeal. The central issue before the court was whether the primary judge had effectively made interlocutory orders concerning the availability of defences, and if so, whether the Court of Appeal had erred in refusing to grant a permanent stay.

The court examined the distinction between indicative rulings and interlocutory orders, emphasising that an indicative ruling does not amount to an interlocutory order unless it determines the availability of a defence or a class of defences. The court held that the primary judge's indication that certain defences would not succeed did not constitute an interlocutory order. The court also considered the criteria for granting leave to appeal an interlocutory decision in criminal proceedings, requiring a demonstration of an error of principle and the possibility of substantial injustice. The court found that Burton had not satisfied these criteria, concluding that the primary judge's indication did not amount to an interlocutory order and that there was no error of principle that would warrant an appeal.

Accordingly, the court dismissed the appeal and refused leave to appeal the interlocutory decision. The court held that Burton had not demonstrated that the primary judge had made interlocutory orders about the availability of defences or that there was an error of principle that warranted an appeal. The court further found that Burton had not shown a likelihood of substantial injustice if the appeal were not allowed. The court's decision was based on the clear distinction between indicative rulings and interlocutory orders, and the stringent criteria for granting leave to appeal in criminal proceedings.

Orders