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EK v The Queen

EK v The Queen

Case [2009] NSWCCA 4 5 February 2009

Appeal

Admissibility of Evidence

Criminal Law

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Reported Decision: 75 NSWLR 302

New South Wales

Court of Criminal Appeal

CITATION: EK v R [2009] NSWCCA 4

HEARING DATE(S): 3 February 2009

JUDGMENT DATE:
5 February 2009

JUDGMENT OF: Grove J at 1; Blanch J at 2; Johnson J at 3

DECISION: The appeal is dismissed as incompetent.

CATCHWORDS: CRIMINAL LAW - appeal under s.5F Criminal Appeal Act 1912 - ruling by District Court Judge that s.306I Criminal Procedure Act 1986 applied to special hearing - tender by Crown of audio-visual recording of evidence of complainant at earlier trial - ruling on admissibility of evidence - not interlocutory judgment or order - s.5F appeal incompetent

LEGISLATION CITED: Criminal Appeal Act 1912
Crimes Act 1900
Mental Health (Criminal Procedure) Act 1990
Criminal Procedure Act 1986
Evidence Act 1995

CATEGORY: Principal judgment

CASES CITED: R v Steffan (1993) 30 NSWLR 633
R v Glossop [2001] NSWCCA 165
R v Lavender (2002) 37 MVR 491; [2002] NSWCCA 511
Kocer v R [2006] NSWCCA 328
R v Sinanovic [2001] NSWCCA 217
R v Milakovic [2004] NSWCCA 199
R v RAG [2006] NSWCCA 343
R v Daher and Tochel [2004] NSWCCA 458
Subramaniam v R [2004] HCA 51

PARTIES: EK (Appellant)
Regina (Respondent)

FILE NUMBER(S): CCA 2004/13473

COUNSEL: Mr MC Ramage QC; Mr M Shaw (Appellant)
Mr P Barrett; Mr T McIntosh (Respondent)

SOLICITORS: North & Badgery (Appellant)
Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 2004/21/3337

LOWER COURT JUDICIAL OFFICER: Her Honour Judge Hock

LOWER COURT DATE OF DECISION: 29 January 2009

2004/13473

Grove J
Blanch J
Johnson J
5 February 2009

EK v Regina

Judgment

1 GROVE J: I agree with the reasons of Johnson J for the orders made by the Court on 3 February 2009.

2 BLANCH J: I also agree.

3 JOHNSON J: At the conclusion of argument on 3 February 2009, the Court ordered that this appeal be dismissed as incompetent, with reasons to be published at a later time. These are my reasons for joining in that order.

4 The Appellant, EK, seeks to appeal under s.5F(3) Criminal Appeal Act 1912 against what is said to be an interlocutory judgment or order of her Honour Judge Hock in the Sydney District Court on 29 January 2009.

5 The Crown submits that the appeal challenges a ruling on admissibility of evidence, and not an interlocutory judgment or order, and is incompetent.

Factual Background

6 An indictment has been presented charging the Appellant with the following nine offences under the Crimes Act 1900:

(a) Count 1: Between 1 and 31 March 2001, sexual intercourse with a child between the age of 10 and 16 years (namely 13 years) in circumstances of aggravation (alleged victim under authority) (s.66C(2));

(b) Counts 2-6: At various times between 1 January 2001 and 30 June 2003, sexual intercourse without consent in circumstances of aggravation (alleged victim under the age of 16 years) (s.61J(2)(d));

(c) Count 7: Between 1 May and 30 September 2003,…

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 EK v The Queen

Details

AGLC: EK v The Queen [2009] NSWCCA 4
Case: [2009] NSWCCA 4
Decision Date: 5 February 2009

CaseChat Overview and Summary

The case of EK v The Queen involved an appeal by the defendant against a ruling made by a District Court Judge. The dispute centred around the admissibility of an audio-visual recording of the complainant's evidence from an earlier trial, tendered by the Crown at a special hearing. The specific legal issue was whether the appeal was competent under section 5F of the Criminal Appeal Act 1912, given that the ruling pertained to the admissibility of evidence rather than an interlocutory judgment or order.

The court examined whether the ruling by the District Court Judge, which concerned the application of section 306I of the Criminal Procedure Act 1986, was appealable under section 5F. The court found that the ruling did not constitute an interlocutory judgment or order, as defined by the Act, and thus the appeal was deemed incompetent. The court emphasised the distinction between rulings on the admissibility of evidence and interlocutory judgments, which typically involve procedural or interim decisions that significantly affect the case's progression.

Consequently, the court dismissed the appeal, holding that the ruling on the admissibility of the audio-visual recording was not an interlocutory judgment or order and therefore not appealable under section 5F. The decision underscored the importance of accurately categorising the nature of the ruling in determining the appropriateness of an appeal. The final orders of the court were that the appeal was dismissed, and the ruling of the District Court Judge on the admissibility of the evidence remained in effect.

Orders