Di Fede v Police; Di Fede v Police - [2023] SASCA 47

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
DI FEDE v POLICE; DI FEDE v POLICE
[2023] SASCA 47
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice David)
9 May 2023
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
CRIMINAL LAW - PROCEDURE - DISCLOSURE OBLIGATIONS
The applicants applied for permission to appeal against the refusal by a single judge of the Supreme Court to grant permission to appeal against the interlocutory ruling of a magistrate, who refused to order that the prosecution given further and better disclosure before trial.
The applicants also applied for a stay of the trial of their charges in the Magistrates Court.
The applicants contended that the judge applied the wrong tests when determining whether to grant permission to appeal, as well as when determining whether there had been a failure to provide proper disclosure.
Held (Livesey P and David JA) refusing the applications for an extension of time, for permission to appeal and for a stay:
1. The applicants failed to demonstrate any basis to doubt the manner in which the judge construed s 42(1a)(c) of the Magistrates Court Act 1991 (SA) when determining whether there were "special reasons".
2.      The applicants did not identify any error in the approach of the judge in relation to whether the prosecution had satisfied the common law test for disclosure.
3.     There is a reluctance to entertain second appeals against interlocutory rulings. It is not in the interests of justice to grant permission to appeal to this Court in circumstances where disclosure can theoretically be reagitated at or following the trial.
Criminal Law Consolidation Act 1935 (SA) s 20(3); Emergency Management Act 2004 (SA) s 28(1); Magistrates Court Act 1991 (SA) s 42; Supreme Court Act 1935 (SA) s 50; Joint Criminal Rules 2022 (SA) r 75.1, referred to.
Brawn v The King [2022] SASCA 96; Corporation of City of Adelaide v Circelli (2015) 207 LGERA 38; De Jong v Police (2010) 201 A Crim R 227; Di Fede v Police; Di Fede v Police [2023] SASC 30; Director of Public Prosecutions (Cth) v Kinghorn (2020) 102 NSWLR 72; DT v Chief Executive of The Department for Child Protection [2022] SASCA 28; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Edwards v The Queen (2021) 95 ALJR 808; Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36; Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126; Mallard v The Queen (2005) 224 CLR 125; McDonald v Attorney-General for the State of South Australia [2022] SASCA 43; McIlvar v Szwarcbord (2008) 186 A Crim R 106; Police v Mahon [2022] SASCA 76; R v Fitzgerald & Fleming [2023] SASCA 34; Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300; Sedmak v Police [2008] SASC 307; Shahin v El-Shafei; El-Shafei v Shahin (2018) 132 SASR 126; Siewertsz van Reesema v Police [2009] SASC 8, considered.

DI FEDE v POLICE; DI FEDE v POLICE
[2023] SASCA 47
Court of Appeal – Criminal: Livesey P and David JA
THE COURT (ex tempore):
Introduction

Mr and Mrs Di Fede (the applicants) have each applied for permission to appeal against the refusal by Nicholson J to grant them permission to appeal against the interlocutory decision of a magistrate, who refused their application that the prosecution give further and better disclosure before trial.
The application for leave to appeal was filed around three months’ out of time. An extension of time is required. In addition, the applicants have applied for a stay of the trial of their charges in the Magistrates Court, presently listed for hearing during June 2023.[1]
[1] Interlocutory Application dated 1 May 2023.
In the circumstances, this matter was listed with some urgency before two judges of this Court following the callover on 1 May 2023. The applicants declined a hearing on 3 May 2023 and sought more time until today to prepare.
For the reasons that follow, the proposed appeals are without merit. The applications for an extension of time, for permission to appeal and for a stay of the prosecution should each be refused.
The prosecution
On 26 May 2021, the applicants were charged with aggravated assault, contrary to s 20(3) of the Criminal Law Consolidation Act 1935 (SA). In addition, Mr Di Fede was charged with refusing or failing to comply with a requirement or direction given in accordance with the Emergency Management Act 2004 (SA), pursuant to s 28(1) of that Act. The charges arise out of an incident at Stirling Cellars and Patisserie earlier in May 2021.
The matter was initially listed for trial in the Magistrates Court on 16 December 2022.
At a status conference on 17 November 2022 the applicants sought further disclosure. In broad terms, the application was directed to addressing why the police had decided to charge the applicants when they had complained that they were the victims of an assault. The applicants also contended that the CCTV footage which had been provided to them had been altered and they sought the original, unedited footage. Today they have emphasised that police failed to secure all of the footage before it was deleted.
The prosecutor submitted to the magistrate that disclosure had been made of the declarations of all witnesses to be called at the trial, of the available CCTV footage (which she said was not edited) together with the Declaration of a Major Emergency and the Emergency Management (Public Activities No 24) (COVID-19) Direction 2021 (SA). The prosecutor explained to the magistrate that she had declined to provide any further material because it was not relevant to any issue.
The matter was adjourned to 24 November 2022, when the magistrate refused the application for further disclosure, finding that the prosecution had complied with its disclosure obligations.
On 29 November 2022, the applicants applied for permission to appeal, which was listed and heard urgently by Nicholson J, sitting as a single judge of the General Division of the Supreme Court, on 14 December 2022.[2] On that date, his Honour refused permission to appeal and dismissed the appeals, outlining his reasoning. No application for costs was made by the Director of Public Prosecutions (SA) (the Director) and no order for costs was made. Reasons were delivered on 6 March 2023.[3]
[2] Although the applicants claim that their Notice of Appeal was filed on 29 November, the prosecution maintains that it was not filed until 7 December 2022.
[3] Di Fede v Police; Di Fede v Police [2023] SASC 30 (Nicholson J).
The trial was not reached in December 2022. In early April 2023, a new trial date was set during June 2023, as was a date for the pre-trial conference on the afternoon of Thursday, 4 May 2023.
The ruling by the single judge
The Director contended before Nicholson J that the appeals were incompetent because they did not come within s 42(1) of the Magistrates Court Act 1991 (SA):
42—Appeals
(1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from committal proceedings).
By s 3 of the Magistrates Court Act 1991 (SA) the term “judgment” is defined to mean a “judgment, order or decision” which includes an “interlocutory judgment”. There was no issue that the magistrate’s ruling was interlocutory in nature. However, unless it was also a “judgment”, as defined, there was no right of appeal.
Justice Nicholson explained the traditional reluctance to entertain appeals against incidental or interlocutory rulings before a criminal trial is concluded because they have an undesirable tendency to fragment and delay the criminal process. In any event, rulings such as these can be revisited at or during the trial and, in time, if shown to be wrong and material to a conviction, they can be addressed after the trial as part of a contention that there has been a miscarriage of justice on an appeal against conviction.
Although Nicholson J was “strongly inclined” to accept the prosecution submission that the appeals were incompetent, because they likely addressed incidental rulings rather than orders,[4] his Honour found it unnecessary to finally determine that question. Rather, on the assumption that the appeals were competent, his Honour found that the applicants were obliged to identify “special reasons” but they had failed to do so. The requirement to demonstrate “special reasons” arises pursuant to s 42(1a)(c) of the Magistrates Court Act 1991 (SA):
(1a)    An appeal does not, however, lie against an interlocutory judgment unless—
(a)     the judgment stays the proceedings; or
(b)     the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c)     the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
[4]     Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 (King CJ); McIlvar v Szwarcbord (2008) 186 A Crim R 106; Sedmak v Police [2008] SASC 307, [18] (Doyle CJ) and Siewertsz van Reesema v Police [2009] SASC 8, [17]-[20] (Bleby J).
Justice Nicholson followed earlier authority to the effect that the requirement to show “special reasons” requires that the applicant demonstrate that there are features of the case which can properly be described as “extraordinary, unusual or atypical”.[5] His Honour also observed that earlier authorities had accepted that the statutory test may be satisfied by demonstrating the existence of significant questions of law,[6] as well as by demonstrating misunderstandings or confusion about the correct procedure, together with the existence of some risk that a miscarriage of justice has occurred.[7]
[5]     Corporation of City of Adelaide v Circelli (2015) 207 LGERA 38, [49] (Bampton J).
[6]     Shahin v El-Shafei; El-Shafei v Shahin (2018) 132 SASR 126, [44]-[48] (Parker J).
[7]     De Jong v Police(2010) 201 A Crim R 227, [46] (Gray J).
In Sedmak v Police, Doyle CJ explained that “special reasons” were unlikely to be demonstrated where the relevant order has no final effect on the issues in dispute between the parties, where the relevant application can be renewed at trial (at the close of either the prosecution or defence cases), or where the decision can be made a ground for an appeal against conviction after the factual issues have been determined at trial.[8]
[8] Sedmak v Police [2008] SASC 307, [19]-[22] (Doyle CJ).
Justice Nicholson was satisfied that the applicants had failed to identify “special reasons”. He held that there was nothing to prevent the applicants from issuing subpoenas or renewing their requests for disclosure should more information come to light at the trial. He also held that there was no reason to think that a miscarriage of justice was inevitable or even likely and there was no proper basis disclosed to overcome the court’s strong predilection against allowing the fragmentation of criminal proceedings.
Accordingly, permission to appeal pursuant to s 42(1a)(c) of the Magistrates Court Act 1991 (SA) was refused.
For completeness, Nicholson J addressed whether there was any merit in the complaint regarding the failure to order further and better disclosure. The applicants had relied on r 75.1 of the Joint Criminal Rules 2022 (SA), which is in the following terms:
75.1—Prosecution disclosure of evidentiary material
(1) Evidentiary material required to be disclosed by the prosecution to the defence in accordance with the prosecution’s common law duty of disclosure must be disclosed by serving on the defendant or youth an evidentiary material brief in the prescribed form.
In Edwards v The Queen, the following was said regarding the prosecution’s common law duty of disclosure of material which is not part of the prosecution case, that is, what has been described as “unused material”:[9]
The common law required, and still requires, disclosure of all material that, on a sensible appraisal by the prosecution: (i) is relevant or possibly relevant to an issue in the case; (ii) raises or possibly raises a new issue that was not apparent from the prosecution case; and (iii) holds out a real (as opposed to fanciful) prospect of providing a lead in relation to evidence concerning (i) or (ii). Further, since the disclosure can occur prior to any crystallisation of the defence case, or any refinement of the prosecution case, expressions in relation to common law disclosure rules, such as “an issue in the case” or “all relevant evidence of help to the accused”, must be given a broad interpretation.
(footnotes omitted)
[9] Edwards v The Queen (2021) 95 ALJR 808, [48] (Edelman and Steward JJ). As to whether the duty can be enforced by order, or only made the subject of an application for a stay, see Marwan v DPP (NSW) [2019] NSWCCA 161, [29]-[30] cited with approval in DPP (Cth) v Kinghorn (2020) 102 NSWLR 72, [126] (The Court). See also Cannon v Tahche (2002) 5 VR 317, [57] (The Court).
Justice Nicholson found that the applicants’ request for disclosure was so broad as to be oppressive. In particular, Nicholson J rejected any suggestion that the applicants could “make general and unspecified allegations and then seek far‑reaching disclosure in the hope that material may turn up to make them good”.[10]
[10] Ragg v Magistrates’ Court of Victoria (2008) 18 VR 300, [78] (Bell J), citing R v H [2004] 2 AC 134, 155.
Justice Nicholson also rejected the contention that the applicants were assisted by the terms of r 75.1 of the Joint Criminal Rules 2022 (SA). Effectively, he held that the rule was merely facilitative. That rule did not govern what must be disclosed by the prosecution, nor when it must be disclosed. His Honour found it unnecessary to address whether the duty of disclosure was only enforceable by way of subpoena.[11]
[11] Director of Public Prosecutions (Cth) v Kinghorn (2020) 102 NSWLR 72, [136].
Ultimately, Nicholson J held that the applicants had failed to demonstrate any reason to doubt that the prosecution had properly discharged its common law duty of disclosure. He held that, absent the identification of some basis to doubt the extent of the disclosure provided (whether by way of evidence or argument), it was appropriate to presume that the prosecution had properly discharged its duty.
Accordingly, the applications for permission to appeal were refused and the appeals were dismissed.
The application for permission to appeal to this Court
The applications for permission to appeal to this Court are governed by s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA) and r 196.2 of the Joint Criminal Rules 2022 (SA).[12]
[12] See Police v Mahon [2022] SASCA 76, [84]; R v Fitzgerald & Fleming [2023] SASCA 34, [37]-[46].
Essential to any consideration of the application for permission is whether it is in the interests of justice to grant permission to appeal. That, in turn, will ordinarily be influenced by whether the proposed appeal has any arguable merit. That same consideration will influence whether an extension of time should be granted as well as whether a proper basis has been disclosed for granting a stay of proceedings. In this case the stay is not merely directed to halting the trial pending the hearing of the appeal, but it is also intended to facilitate the provision of proper disclosure before the trial proceeds.
The applicants are not represented. They each relied upon the same amended grounds of appeal, which were in the following terms:
1.that HH the learned Justice erred in law and in fact in that he misdirected himself as follows:
a.     that the test to establish whether or not the Appellants met the criteria for leave to appeal was settled in the High Court of Australia.
b.    that HH the learned Justice failed to apply the settled criteria, as set out by the High Court of Australia.
c.     that HH the learned Justice applied case law which is not applicable to the test criteria for leave to Appeal and contained himself to decisions of the Courts of South Australia.
2.that HH the learned Justice failed to consider and properly address the Grounds of Appeal, filed in this matter, by the Appellants.
3.that the legal principles applied by HH the learned Justice failed to take into account the applicable settled case law.
4.that the legal principles applied by HH the learned Justice failed with respect,
a.     to competent appeals, and
b.    that HH misdirected himself as to the nature of the appeal, and
by suggesting that the appeal related to an adjournment or the admissibility of evidence.
5.that the legal principles applied by HH the learned Justice with respect to Special Reasons or Special Circumstances whereby HH misdirected himself with respect to the applicable case law that he followed.
6.that HH the learned Justice misdirected himself as to Disclosure, and
a.     the Prosecution’s duty of disclosure, and
b.    that HH failed to properly consider and apply the case law set out by the High Court of Australia.
7.that HH the learned Justice misdirected himself as to that part of the nature of the appeal being the application for an “adjournment”.
8.that HH the learned Justice misdirected himself as to the Application and Duties imposed by Rule 75.1 of the Joint Criminal Rules 2022, with respect to:
a.     the first and third contentions, and
b.    that HH did not make any finding with respect to the “second contention”.
9.Notwithstanding the above, HH failed to be impartial in that at the opening of the Appeal, HH expressed the view that “you’ve lost anyway” implying that he had already made his mind before he heard the Appeal.
10.That HH the learned Justice wrote in the publication of his decision his recommendations on how the proceedings of the criminal case (AMC-21-6144) should be conducted, limiting the common law rights of the Appellants.
In essence, the applicants contend that the judge applied the wrong tests when determining whether to grant permission to appeal, as well as when determining whether there had been a failure to provide proper disclosure. They say that they should not have to go through a trial without proper disclosure and be confined to an appeal against conviction.
At the callover on 1 May 2023, the applicants explained that the High Court authority on which they relied in paragraph 1 of their proposed grounds of appeal is Mallard v The Queen.[13] That was a case where the High Court allowed an appeal from a decision of the Court of Criminal Appeal of Western Australia which had rejected a petition for mercy based on further evidence. The High Court held that the Court of Criminal Appeal had fallen into error by inappropriately inhibiting its jurisdiction to entertain the reference. The High Court determined to deal with the petition rather than merely refer the matter back to the court below. The High Court quashed the conviction and ordered a retrial.
[13] Mallard v The Queen (2005) 224 CLR 125.
It is clear that the decision in Mallard was not concerned with whether permission to appeal should be granted pursuant to s 42(1a)(c) of the Magistrates Court Act 1991 (SA) and it does not demonstrate that the wrong test was applied by Nicholson J.

As the applicants have not demonstrated any basis to doubt the manner in which Nicholson J construed s 42(1a)(c) of the Magistrates Court Act 1991 (SA), nor any basis to question his reliance on the authorities which have addressed it, this aspect of the application for permission to appeal has not been shown to have any merit.
As for the second broad ground, the suggested failure to apply the correct common law test for disclosure by the prosecution, the applicants have not identified any error in the approach Nicholson J took to that issue which was, in any event, not at the forefront of his reasoning.[14] In so far as Mallard addressed the prosecution duty to make disclosure, the issue was whether prosecution’s admitted failure to make disclosure had caused a miscarriage of justice because it deprived the appellant of a fair trial in that case.[15] As the applicants have not demonstrated any basis to doubt the reasoning of Nicholson J, this proposed ground is without merit.[16]
[14] See, for example, Brawn v The King [2022] SASCA 96, [25]-[38] (Livesey P, Bleby and David JJA).
[15] Mallard v The Queen (2005) 224 CLR 125, [46], [56] and [67] (Kirby J), “the question became one of the significance of such failure”.
[16] During the callover on 1 May 2023 the applicants were warned that unless and until an order for a stay is made by this Court, they must prepare for trial on the assumption that the decision of Nicholson J is correct and no further disclosure will be forthcoming before trial.
Today, the applicants have criticised what they described as a “completely flawed” investigation and emphasised the specificity of their requests, outlined in an affidavit made on 12 December 2022. In that affidavit, Mr Di Fede affirmed:
8.I say that we have been very specific about what exactly we require by way of Disclosure, and we have not just thrown out a fishing net to catch everything, or sought information that is not directly connected to our specific case. In circumstances where we were asking for completely unrelated information, I can understand that we would have to be able to provide both Prosecution and the Magistrate with good reasons why we are seeking such broader information, but this does not apply in the current matter. Everything has been about “our case” over a very “specific time period” and we have said why we want that information – but both Prosecution and the Magistrate have considered it not relevant.
9.I say that rather than the current presiding learned Magistrate make a proper enquiry as to any reasonableness of our request/s as any proper judicial officer ought to do, and to hear the complaints we make (us – the Appellants), the learned Magistrate makes a “political” decision – that because Prosecution has “claimed” that they have complied, the Magistrate then also acts like Pontius Pilot and washes his hands of the matter and fails to make any proper Order/s for Disclosure.
Respectfully, these statements do not grapple with the nature of the duty of disclosure, nor with the criticism that the applicants’ requests are too broad. To refuse to disclose material which is not relevant, even if it is “unused material”, is not “suppression” (as it was put) but simply to recognise that the obligation to make disclosure has its limits.
Finally, and lest it be thought that they were overlooked, the applicants did not develop any of their other contentions. They did not address whether his Honour erred in refusing to grant them an adjournment, or in proceeding with the hearing notwithstanding the expression of a preliminary view regarding their prospects of success before he made orders following argument. In particular, the applicants failed to demonstrate that the well-known requirements for the determination of ostensible bias were properly engaged.[17]
[17] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
There is a particular reluctance to entertain second appeals against interlocutory rulings.[18] Special reasons were not demonstrated and no real attempt has been made to show otherwise. As the proposed appeals appear to be without merit, and as the question of disclosure can theoretically be reagitated at or following the trial in June 2023, it is not in the interests of justice to grant permission to appeal to this Court.
[18] See, for example, DT v Chief Executive of The Department for Child Protection [2022] SASCA 28, [7]-[8] (Livesey P, Doyle and David JJA); as well as Fletcher v Australian Health Practitioner Regulation Agency [2023] SASCA 36, [16] (Livesey P and Lovell JA); McDonald v Attorney-General for the State of South Australia [2022] SASCA 43, [21]-[22] (Livesey P and Bleby JA), citing Harris Scarfe Ltd (in liq) v Ernst & Young (No 2) [2005] SASC 168, [14] (Bleby J).
For the same reasons, the applications for an extension of time and for a stay must be dismissed.
Conclusion
The applicants have failed to demonstrate any reason to doubt the decision of Nicholson J. The applicants’ proposed grounds of appeal have not been shown to have any merit.
Accordingly, the orders of the Court are that the applications for an extension of time, for permission to appeal and for a stay are each dismissed.