Director of Public Prosecutions (ACT) v AI, Ad and Jr

[2012] ACTCA 23

DIRECTOR OF PUBLIC PROSECUTIONS (ACT) v AI, AD and JR
[2012] ACTCA 23 (18 May 2012)

APPEAL AND NEW TRIAL – in general and right of appeal – leave to appeal – referral to a bench of three judges.

Supreme Court Act 1933 (ACT), ss 37E(4), 37J(1)

Saunders (1994) 72 A Crim R 347
R v Elliott (1996) 185 CLR 250
United Mexican States v Cabal (2001) 209 CLR 165
Clayton v The Queen (2006) 168 A Crim R 174

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 12 of 2012
No. ACTCA 13 of 2012
No. ACTCA 14 of 2012

No. SCC 295 of 2009
No. SCC 268 of 2009
No. SCC 369 of 2009

Judge:          Refshauge J
Court of Appeal of the Australian Capital Territory
Date:           18 May 2012

IN THE SUPREME COURT OF THE     )          No. ACTCA 12 of 2012
  )          No. ACTCA 13 of 2012
AUSTRALIAN CAPITAL TERRITORY )          No. ACTCA 14 of 2012
  )          No. SCC 295 of 2009
COURT OF APPEAL  )          No. SCC 268 of 2009  )          No. SCC 369 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DIRECTOR OF PUBLIC PROSECUTIONS (ACT)

Appellant

AND:AI

AND:AD

AND:JR

Respondents

ORDER

Judge:  Refshauge J
Date:  2 May 2012
Place:  Canberra  

THE COURT ORDERS THAT:

1. The application for leave to appeal be heard by a full bench of the Court of Appeal, as on the appeal.

IN THE SUPREME COURT OF THE     )          No. ACTCA 12 of 2012
  )          No. ACTCA 13 of 2012
AUSTRALIAN CAPITAL TERRITORY )          No. ACTCA 14 of 2012
  )          No. SCC 295 of 2009
COURT OF APPEAL  )          No. SCC 268 of 2009  )          No. SCC 369 of 2009

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DIRECTOR OF PUBLIC PROSECUTIONS (ACT)

Appellant

AND:AI

AND:AD

AND:JR

Respondents

Judge:  Refshauge J
Date:  18 May 2012
Place:  Canberra  

REASONS FOR JUDGMENT

REFSHAUGE J:

1. The respondents in each of these matters have each been charged on a joint indictment with serious offences of conspiracy to commit murder, choking the complainant so as to render him insensible and assault occasioning actual bodily harm.

1. On 10 April 2012, the Supreme Court ordered that the indictment be severed and that separate trials be held in respect of each respondent.

1. The appellant, the ACT Director of Public Prosecutions, wishes to challenge that decision.  There is no doubt that the decision is an interlocutory decision:  Saunders (1994) 72 A Crim R 347 at 348, 353. Accordingly, s 37E(4) of the Supreme Court Act 1933 (ACT) requires leave to appeal. The Director has applied for that leave.

1. Filed in support of the application is a detailed affidavit setting out the grounds of the appeal.  The Director also raises in the affidavit substantial issues about the effect of the decision and the difficulties it is said will arise if left undisturbed.

1. Ordinarily, courts are reluctant to delay the hearing of criminal trials as a result of parties taking interlocutory appeals, thereby fragmenting the criminal proceedings: see R v Elliott (1996) 185 CLR 250 at 257. Indeed, there are dicta to suggest that the courts should be hesitant to permit appeals against decisions of trial courts to order separate trials: see Saunders at 356.

1. Nevertheless, the consequences of the decision as set out extensively in the supporting affidavit filed by the Director do seem to me to form a reasonable basis for suggesting that this is one of those rare cases where leave might be granted.

1. Whether leave should be granted, however, is heavily dependent upon the likely prospects of success of the appeal.  Such circumstances justify the question of leave being referred to the Court of Appeal constituted by three judges to be argued as an appeal so that the issue can be fully argued and, if leave is granted, the Court can consider the appeal instanter.  I have not been able to find precedent for this procedure in this Court, but it occurs from time to time in the High Court.  See, for example, United Mexican States v Cabal (2001) 209 CLR 165 at 172; [10] and Clayton v The Queen (2006) 168 A Crim R 174 at 176; [2]. There is no relevant legislative provision which would make this Court unable to make such a decision. It seems at least implicit in the terms of s 37J(1) of the Supreme Court Act that it can be made.

1. The respondents all consented to that proposed course of action.  Accordingly, on 2 May 2012, I made orders that the application for leave be referred to the Court of Appeal constituted by three judges for argument, as on appeal.

1. These are my reasons for so ordering.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date:                18 May 2012

Counsel for the Appellant:  Mr J White
Solicitor for the Appellant:  ACT Director of Public Prosecutions
Counsel for the First Respondent:                 Mr A McKenna
Solicitor for the First Respondent:                Ben Aulich & Associates
Counsel for the Second Respondent:            Mr K Archer
Solicitor for the Second Respondent:            Kamy Saeedi Lawyers
Counsel for the Third Respondent:               Mr J Lawton
Solicitor for the Third Respondent:               Darryl Perkins Solicitors
Date of hearing:  2 May 2012
Date of judgment:  2 May 2012