Duke v The Queen

[1999] WASCA 215

DUKE -v- R [1999] WASCA 215

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASCA 215
Court:	THE FULL COURT (WA)
Case No:	CIV:2007/1999	Heard:	13 OCTOBER 1999
Coram:	MALCOLM CJ KENNEDY J PIDGEON J	Delivered:	13/10/99
No of pages:	3	Judgment Part:	1 of 1
Result:	Application dismissed
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Parties:	DARREL JAMES DUKE THE QUEEN
Catchwords:	Criminal procedure Application for leave to appeal against interlocutory order refusing separate trial Application incompetent No right of appeal
Legislation:	Supreme Court Act 1935, s 58
Case References:	Christianos v Young (1990) 3 WAR 303 Connell v R, unreported; FCt SCt of WA; Library No 930514; 21 September 1993 Lim v Gregson [1989] WAR 1 R v Iorlano (1983) 151 CLR 678 Sankey v Whitlam (1978) 142 CLR 1 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : DUKE -v- R [1999] WASCA 215 CORAM : MALCOLM CJ

KENNEDY J
PIDGEON J

HEARD : 13 OCTOBER 1999 DELIVERED : 13 OCTOBER 1999 FILE NO/S : CIV 2007 of 1999 BETWEEN : DARREL JAMES DUKE

Applicant (Respondent)

AND

THE QUEEN
Respondent (Complainant)

Catchwords:

Criminal procedure - Application for leave to appeal against interlocutory order refusing separate trial - Application incompetent - No right of appeal

Legislation:

Supreme Court Act 1935, s 58

Result:

Application dismissed

(Page 2)

Representation:

Counsel:

Applicant (Respondent) : Mr J M Malcolm
Respondent (Complainant) : No appearance

Solicitors:

Applicant (Respondent) : Macdonald Rudder
Respondent (Complainant) : No appearance

Case(s) referred to in judgment(s):

Christianos v Young (1990) 3 WAR 303
Connell v R, unreported; FCt SCt of WA; Library No 930514; 21 September 1993
Lim v Gregson [1989] WAR 1
R v Iorlano (1983) 151 CLR 678
Sankey v Whitlam (1978) 142 CLR 1

Case(s) also cited:

Nil

(Page 3)

1 MALCOLM CJ: In my opinion this application for leave to appeal should be dismissed as incompetent. By notice of motion dated 9 September 1999, the applicant seeks leave to appeal from an order made by his Honour Judge Wisbey in the District Court on 19 August 1999, in criminal proceedings on indictment in that Court, by which his Honour dismissed an application pursuant to s 624 of the Criminal Code that the applicant be tried separately from any co-accused. His Honour also dismissed an application pursuant to s 577 of the Criminal Code that the trial of the applicant take place in the District Court sitting at Kalgoorlie.

2 The appeal provisions in ch 69 of the Criminal Code are an exclusive statement of the rights of appeal in criminal proceedings governed by the Code. This gives an accused a right of appeal only after conviction. There is also provision for an application for leave to appeal in relation to sentence. There is no provision under the Code for any form of interlocutory appeal. Such appeals were held to be incompetent in Connell v R, unreported; FCt SCt of WA; Library No 930514; 21 September 1993.

3 The only exception so far recognised is in relation to applications for bail which are not governed by the Criminal Code. In Lim v Gregson [1989] WAR 1 it was held that an application for bail was a matter which was governed by the provisions of s 58 of the Supreme Court Act 1935, and there was a right of appeal to the Full Court against a refusal of the grant of bail.

4 The policy in relation to the undesirability of fragmenting the criminal process by way of interlocutory appeals, applications for prerogative relief, impending criminal proceedings and the like was outlined by this Court in Christianos v Young (1990) 3 WAR 303 at 307 per Malcolm CJ, Wallace and Rowland JJ in a joint judgment. See also Sankey v Whitlam (1978) 142 CLR 1 and R v Iorlano (1983) 151 CLR 678.

5 For those reasons I would dismiss this application.

6 KENNEDY J: I agree.

7 PIDGEON J: I agree.