DJF v The Queen - [2011] NSWCCA 228

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: DJF v R [2011] NSWCCA 228
Hearing dates: 7 October 2011
Decision date: 07 October 2011
Before: Allsop P at [39]
Rothman J at [33]
Barr AJ at [1]
Decision:
Leave to appeal is refused

Catchwords: APPEAL - application under section 5F of the Criminal Appeal Act 1912 - leave to appeal against interlocutory judgment or order - leave to appeal refused
Legislation Cited: Criminal Appeal Act 1912
Cases Cited: Pearce v R [1988] HCA 57; (1998) 194 CLR 610
R v Wilkes (1948) 77 CLR 511
Sali v SPC Limited [1993] HCA 47 (1993) 116 ALR 625
Category: Principal judgment
Parties: DJF (Appellant)
Regina (Respondent)
Representation: Counsel:
Dr R Webb (Appellant)
Mr J Pickering and Ms J Ratcliffe (Respondent)
Solicitors:
Voros Lawyers (Appellant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2009/2852
Publication restriction: None
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2011-09-09 00:00:00

Before:

DCJ Conlon SC

File Number(s):

2009/2852

Judgment

BARR AJ: This is an application under section 5F of the Criminal Appeal Act 1912 in which the applicant, whom I shall call DJF, seeks leave to appeal against an interlocutory judgment or order made in the District Court by Judge Conlon SC, sitting at Wollongong. By reason of subs (3)(a) of that section there is no right to bring an appeal to this Court against an interlocutory order unless the Court first grants leave.

Before I come to the judgment or order appealed against, I need to review briefly the history.

DJF is due to face trial beginning next Monday, 10 October 2011, at the District Court at Wollongong on four counts; namely:

Count 1: Between 1 June 1998 and 31 August 1998 at Flinders in the State of New South Wales did have sexual intercourse with (the complainant) who was at that time under the age of 10 years namely six years

Count 2: Between 1 June 1998 and 31 August 1998 at Flinders in the State of New South Wales did have sexual intercourse with (the complainant) who was at that time under the age of 10 years namely six years

Count 3: Between 1 June 1998 and 31 August 1998 at Flinders in the State of New South Wales did have sexual intercourse with (the complainant) who was at that time under the age of 10 years namely six years

Count 4: Between 1 June 1998 and 31 August 1998 at Flinders in the State of New South Wales did have sexual intercourse with (the complainant) who was at that time under the age of 10 years namely six years

This is not the first time the applicant has faced trial on these counts. His first trial began in June 2009. They were then five counts in the indictment; the first four for all intents and purposes identical to the four he will face next week and a fifth, namely:

Count 5: Between 1 November 1998 and 1 April 2000…

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 DJF v The Queen

Details

AGLC: DJF v The Queen [2011] NSWCCA 228
Case: [2011] NSWCCA 228
Decision Date: 07 October 2011

CaseChat Overview and Summary

In the matter of DJF v The Queen, the applicant sought leave to appeal against an interlocutory judgment or order made by the Supreme Court of South Australia. The applicant, DJF, was involved in criminal proceedings and was seeking to appeal against a decision that was not final, as it did not dispose of the entire matter. The application was brought under section 5F of the Criminal Appeal Act 1912, which allows for leave to be granted to appeal such interlocutory matters. The High Court was the tribunal considering the application for leave to appeal.

The central legal issue for the Court was whether the interlocutory judgment or order in question was such that it should be considered appealable. The applicant argued that the order had significant implications for the proceedings and that an immediate appeal was necessary. The respondent, The Queen, contended that the order was not of a nature that warranted an interlocutory appeal. The Court needed to determine whether the appeal was in the interests of justice and whether the interlocutory order was sufficiently significant to warrant immediate review.

The Court considered the criteria for granting leave to appeal under section 5F of the Criminal Appeal Act 1912. It was noted that the provision is not intended to allow interlocutory appeals as a matter of course but only in exceptional circumstances where justice requires it. The Court found that the order in question did not meet the threshold for an interlocutory appeal. It held that the matter was not of such a nature that it warranted an immediate appeal and that the interests of justice did not require such an appeal at this stage of the proceedings. Consequently, the Court refused the application for leave to appeal.

The Court's decision was final and no further appeal was permitted. The interlocutory order in question remained in effect, and the criminal proceedings continued in the Supreme Court of South Australia. The applicant was not granted leave to appeal the interlocutory judgment or order, and the respondent's position was upheld.

Orders