George (a pseudonym) v The Queen - [2022] SASCA 66

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
GEORGE (A PSEUDONYM) v THE QUEEN
[2022] SASCA 66
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice Lovell)
5 July 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - OTHER MATTERS - CASE STATED AND RESERVATION OF QUESTION OF LAW
COURTS AND JUDGES - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - PARTICULAR GROUNDS
The applicant is charged with murder pursuant to s 11 of the Criminal Law Consolidation Act 1935 (SA). He entered a plea of not guilty at arraignment and is awaiting trial.
On 1 July 2022, the Chief Justice dismissed the applicant’s application that he recuse himself from hearing a preliminary application which was listed later that afternoon. The Chief Justice subsequently dismissed the applicant’s preliminary application that the Director of Public Prosecution be restrained from appearing on the upcoming “documents hearing”.
By originating application dated 4 July 2022, the applicant sought permission to seek an order requiring the Supreme Court to refer “a relevant question” to the Court of Appeal for consideration and determination pursuant to s 153(6) of the Criminal Procedure Act 1921 (SA) (the CPA) and r 114 of the Supreme Court Criminal Rules 2014 (SA).
The applicant’s proposed questions concerned the Chief Justice’s involvement after he issued a Surveillance Devices Warrant concerning the applicant, and his Honour’s refusal to stay proceedings to allow the Director to brief alternate counsel where the Director is alleged to have “potential conflicts of interest” in the matter.
Held (the Court) dismissing the originating application:
1.The applicant has not proffered questions of law within the meaning of s 153 of the CPA.
2.The applicant has not identified questions referable to the decisions made by the Chief Justice on 1 July 2022.
3.There is not sufficient merit in the applicant’s proposed questions to warrant fragmentation, delaying the documents hearing and therefore the trial of this matter.

Criminal Procedure Act 1921 (SA) s 153(6); Supreme Court Criminal Rules 2014 (SA) r 114; Supreme Court Act 1935 (SA) s 6A, referred to.
R v White [2021] NSWSC 962; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Charisteas v Charisteas (2021) 95 ALJR 824, considered.

GEORGE (A PSEUDONYM) v THE QUEEN
[2022] SASCA 66
Court of Appeal – Criminal: Livesey P and Lovell JA
THE COURT (ex tempore):

By originating application dated 4 July 2022 the applicant applies for permission to seek an order requiring a Supreme Court Judge to refer “a relevant question” to the Court of Appeal for consideration and determination pursuant to s 153(6) of the Criminal Procedure Act 1921 (SA) (the CPA) and r 114 of the Supreme Court Criminal Rules 2014 (SA).
The proposed questions of law are, in essence, as follows:
1.Was I correct as a matter of law not to apply the decision of R v White [2021] NSWSC 962 in relation to the determination of whether the proceedings ought to be stayed until I recused myself having received confidential information in relation to my determination to issue a Surveillance Devices Warrant in order to obtain potential evidence against the accused upon his arrest on the following day?
2.Was I correct as a matter of law in determining not to stay the proceedings until I recused myself from hearing any pretrial or other matters in relation to the trial of the accused, where I received confidential information for the purposes of determining an application by police to issue a Surveillance Devices Warrant …?
3.Was I correct as a matter of law in determining not to stay the proceedings until the Director of Public Prosecutions delegated his function and arranged for …, the alternative counsel engaged on behalf of the Director, to appear on the pretrial questions for determination, in circumstances where the Director has potential conflicts of interest …?
On Friday, 1 July 2022 the Chief Justice made two rulings.
The first ruling was that his Honour declined to recuse himself from hearing a preliminary application which was listed for hearing later that afternoon. That application was concerned with whether the Director of Public Prosecutions should be restrained from taking any part in a documents hearing addressing the disclosure of documents, as well as public interest immunity and further subpoenas, all of which are ancillary to the prosecution of the applicant.
Following that decision, the Chief Justice heard further argument and, by his second ruling, his Honour dismissed the application that the Director be restrained from appearing on the documents hearing.
The documents hearing is set for tomorrow, Wednesday, 6 July 2022.
By proceeding in this way, the Chief Justice explicitly reserved the question of his further involvement, and that of the Director, concerning for example, the prosecution and determination of the stay and exclusion hearings which are scheduled to be heard later this year. By contrast, the proposed questions appear to have been drafted on a broader basis and, at least to that extent, are not referable to the decisions made on Friday.
It is implicit from the questions that the applicant seeks a stay pending any determination made by the Court of Appeal.
There is an issue about the competence of this application. The Director submits that the application is incompetent. Section 153 of the CPA provides:
153—Reservation of relevant questions
(1) In this section—
relevant question means a question of law and includes a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised.
(2) A court by which a person has been, is being or is to be tried or sentenced for an indictable offence may reserve for consideration and determination by the Court of Appeal a relevant question on an issue—
(a)     antecedent to trial; or
(b)     relevant to the trial or sentencing of the defendant,
and the court may (if necessary) stay the proceedings until the question has been determined by the Court of Appeal.
(3) Unless required to do so by the Court of Appeal, a court must not reserve a question for consideration and determination by the Court of Appeal if reservation of the question would unduly delay the trial or sentencing of the defendant.
(4) A court before which a person has been tried and acquitted of an offence must, on application by the Attorney-General or the Director of Public Prosecutions, reserve a question antecedent to the trial, or arising in the course of the trial, for consideration and determination by the Court of Appeal.
(5) The Court of Appeal may, on application under subsection (6), require a court to refer a relevant question to it for consideration and determination.
(6) An application for an order under subsection (5) may be made by—
(a)     the Attorney-General or the Director of Public Prosecutions; or
(b)     a person who—
(i) has applied unsuccessfully to the primary court to have the question referred for consideration and determination by the Court of Appeal; and
(ii) has obtained the permission of the primary court or the Supreme Court to make the application.
(7) If a person is convicted, and a question relevant to the trial or sentencing is reserved for consideration and determination by the Court of Appeal, the primary court or the Supreme Court may release the person on bail on conditions the court considers appropriate.
Sub-section 153(6)(b)(i) of the CPA requires that the applicant has applied unsuccessfully to the primary court to have the questions referred to the Court of Appeal. That occurred when the Chief Justice refused permission on Friday.

Sub-section 153(6)(b)(ii) requires, in addition, that the applicant has obtained the permission of the primary court or the Supreme Court to make the application. This second reference to the primary court assumes the necessity for a second application to the primary court, albeit not for referral but for permission. Alternatively, permission can be obtained from “the Supreme Court”.
The Director submits that the reference to “the Supreme Court” in s 153(6)(b)(ii) cannot mean the Court of Appeal because the Court of Appeal is explicitly referred to elsewhere in this and other provisions of the CPA.[1] He submits that this reference can only mean a single Judge of the General Division of the Supreme Court. He maintains that contention even though the Supreme Court comprises one Court with two divisions.[2]
[1] The Director also relied on the fact that the earlier version of this provision had referred to the Full Court and to the Supreme Court, rather than the Court of Appeal and the Supreme Court.
[2] See s 6A of the Supreme Court Act 1935 (SA): “The Supreme Court is constituted of the General Division and the Court of Appeal”. See also s 19A: “The Court of Appeal is established as a division of the Supreme Court”.
For the purposes of determining this application, it is not necessary to rule on this objection. That is because we take the view that there are three reasons why the application for permission to require the Supreme Court to refer relevant questions to the Court of Appeal must be dismissed.
First, we are far from satisfied that the applicant has proffered questions of law within the meaning of s 153 of the CPA. The questions, as framed, appear to incorporate questions of fact.
Secondly, we are not satisfied that the applicant has identified questions referable to the decisions actually made by the Chief Justice.
Thirdly, and in any event, we are not satisfied that there is sufficient merit in these questions to warrant fragmentation and delaying the hearing scheduled for 6 July 2022 and, in consequence, to warrant delaying the trial of this matter. Key to an evaluation of the merits of the application concerning the involvement of the Chief Justice is the articulation of the “logical connection” which gives rise to the feared deviation from the course of deciding the issues before the court on 6 July on their merits.[3] The cases which were relied on, R v White[4] and Charisteasv Charisteas,[5] are distinguishable.
[3]     Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Charisteasv Charisteas (2021) 95 ALJR 824, [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ).
[4]     R v White [2021] NSWSC 962 concerned disqualification where the judge who authorised a warrant was required to rule on the admissibility of the evidence obtained with that warrant before presiding over a trial before a jury.
[5]     Charisteasv Charisteas (2021) 95 ALJR 824 concerned a series of secret conversations between the trial judge and counsel for a party during a trial and before judgment. What was discussed was not disclosed but it did not concern “the substance” of the case.
In these circumstances the order of the court is that the originating application dated 4 July 2022 is dismissed.