Gall v The Queen - [2016] NSWCCA 82

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Gall v R [2016] NSWCCA 82
Hearing dates: 18 November 2015
Decision date: 06 May 2016
Before: Simpson JA at [1], Johnson J at [34], Davies J at [35]
Decision:
Application for leave to appeal refused.

Catchwords:
JURISDICTION – application for leave to appeal under Criminal Appeal Act 1912 (NSW), s5F(3)(a) – pre-trial ruling concerning defence of superior orders – whether ruling an “interlocutory judgment or order” under s 5F(3)(a) – ruling concerned admissibility of evidence – ruling given in advance and concerned matters affecting conduct of trial – ruling not an interlocutory judgment or order under s 5F(3)(a) – leave refused for want of jurisdiction
CRIMINAL LAW – appeal – dangerous driving occasioning death – dangerous driving occasioning grievous bodily harm – whether defence of superior orders available
Legislation Cited: Crimes Act 1900 (NSW), s 52A
Criminal Appeal Act 1912 (NSW), s 5F(3)(a)
Criminal Procedure Act 1986 (NSW), ss 130, 130A, 142(1)(b), 143(1)(b)
Evidence Act 1995 (NSW), s 97
Cases Cited: A v Hayden (No 2) [1984] HCA 67; 156 CLR 532
R v Edelsten (1989) 18 NSWLR 213
R v Powch (1988) 14 NSWLR 136
Steffan v R (1993) 30 NSWLR 633
Category: Principal judgment
Parties: Alexander David Gall (Applicant)
Regina (Respondent)
Representation:
Counsel:
D A McLure SC/K Wolaham/P G Sharp (Applicant)
T Smith (Respondent)
Solicitors:
Kennedys (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2013/246851
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

30 July 2015

Before:

Tupman DCJ

File Number(s):

2013/246851

Judgment

SIMPSON JA: The applicant seeks leave, pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), to appeal against a determination of a judge of the District Court in relation to a pending trial of criminal proceedings in which he is charged with a number of serious offences.
At the outset, an issue arises as to the jurisdiction of this Court to entertain the application. Section 5F(3)(a) allows an appeal, by leave, against “an interlocutory judgment or order”. The jurisdictional issue that arises is whether the determination the subject of the application is properly characterised as “an interlocutory judgment or order”. It will be necessary to consider that question as a preliminary issue.

Preliminary

On 27 July 2015 the applicant was presented in the District Court on an indictment that contained seven counts under s 52A of the Crimes Act 1900 (NSW). One count is of driving in a manner dangerous causing death; six are of driving in a manner dangerous causing grievous bodily harm. All are offences of strict liability – that is, the Crown is under no obligation to prove any relevant state of mind or mens rea. All charges arise out of a single episode of driving, on 8 October 2012, at the Holsworthy Army Base in Sydney.
When arraigned on the indictment, the applicant entered a plea of not guilty to each count. On his behalf, it was…

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 Gall v The Queen

Details

AGLC: Gall v The Queen [2016] NSWCCA 82
Case: [2016] NSWCCA 82
Decision Date: 06 May 2016

CaseChat Overview and Summary

The application for leave to appeal in the case of Gall v The Queen was brought under section 5F(3)(a) of the Criminal Appeal Act 1912 (NSW). The respondent, Gall, had been charged with dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm. Gall sought leave to appeal a ruling concerning the admissibility of evidence in relation to a potential defence of superior orders. The primary issue before the court was whether the pre-trial ruling constituted an “interlocutory judgment or order” under section 5F(3)(a), which would afford the respondent the right to seek leave to appeal.

The court considered the nature of the ruling and its implications for the conduct of the trial. The ruling in question was given in advance of the trial and addressed the admissibility of evidence relevant to the defence of superior orders. The court noted that while the ruling concerned matters affecting the conduct of the trial, it was not an interlocutory judgment or order as defined in section 5F(3)(a). Instead, the court held that the ruling was more appropriately categorised as a determination of the admissibility of evidence, which did not fall within the scope of the statutory provision. Consequently, the court found that it lacked jurisdiction to grant leave to appeal.

The court’s reasoning led to the conclusion that the application for leave to appeal was without merit. The court emphasised that the ruling pertained to the admissibility of evidence and did not fall within the category of an interlocutory judgment or order. Therefore, the court dismissed the application for leave to appeal for want of jurisdiction. The court did not grant leave to appeal and, as a result, no appeal was permitted.

Orders