Kalid Kaddour v The Queen

Case [2013] NSWCCA 243


Court of Criminal Appeal
Supreme Court

New South Wales

Case Name: 

Kalid Kaddour v R

Medium Neutral Citation: 

[2013] NSWCCA 243

Hearing Date(s): 

14 August 2013

Decision Date: 

31 October 2013

Before: 

Latham J at [1]; Harrison J at [2]; Garling J at [51]

Decision: 

Appeal dismissed

Catchwords: 

APPEAL – criminal – interlocutory appeal – nature of appeal – Evidence Act s 128 – where accused objects to giving evidence – where trial judge refused to grant certificate – jurisdiction – Criminal Appeal Act, s 5F(3) – whether refusal of s 128 certificate an “interlocutory judgment or order given or made in proceedings”
 
EVIDENCE – Evidence Act s 128 – whether trial judge erroneously refused to grant s 128 certificate – where accused makes tactical decision not to give evidence without certificate – whether accused unfairly hindered in ability to satisfy onus to exclude prejudicial material pursuant to Evidence Act, s 137 – whether accused "objecting" to give evidence – whether accused “compellable” to give evidence

Legislation Cited: 

Criminal Appeal Act 1912 s 5F(3)
Drug Misuse and Trafficking Act 1985
Evidence Act 1995
Judicature (Consolidation) Act, 1925 (UK)

Cases Cited: 

Aytugrul v The Queen [2012] HCA 15; (2012) 215 A Crim R 501
Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260
Ferrall v Blyton [2000] FamCA 1442; (2000) 27 Fam LR 178
Gilmour v EPA [2002] NSWCCA 399; (2002) 55 NSWLR 593
Hall v The Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486
R v Marchione [2002] NSWCCA 131; (2002) 128 A Crim R 574
Maxwell v Keun [1928] 1 KB 645
Michael v R [2012] NSWCCA 164
Ollis v Melissari [2005] NSWSC 1016
Regina v Brophy [1982] AC 476
R v Adamson [2005] NSWCCA 7
R v Bozatsis; R v Spanakakis (1997) 97 A Crim R 296
R v Cook [2004] NSWCCA 52
R v Steffan (1993) 30 NSWLR 633
Sasterawan v Morris [2010] NSWCCA 91; (2010) 201 A Crim R 302
Simmons v United States 88 S.Ct. 967 (1968) at 973
Sorby v Commonwealth [1983] HCA 10; (1983) 152 CLR 281
Song v Ying [2010] NSWCA 237; (2010) 79 NSWLR 442
W O v Director of Public Prosecutions [2009] NSWCCA 275

Texts Cited: 

Australian Law Reform Commission, Evidence: Interim Report 26 (1985)

Category: 

Principal judgment

Parties: 

Kalid Kaddour (Appellant)
Director of Public Prosecutions (Respondent)

Representation: 

Counsel:
I Lloyd QC and R Mathur (Appellant)
N Adams SC and J Davidson (Respondent)
 
Solicitors:
Bannisters Lawyers (Appellant)
K Frearson, Office of the Director of Public Prosecutions (Respondent)

File Number(s): 

2009/133187

Publication Restriction: 

Nil

Decision under appeal: 

 Court or Tribunal: 

District Court of New South Wales

  Jurisdiction: 

Criminal

  Date of Decision: 

11 October 2012

  Before: 

Bennett DCJ

  File Number(s): 

2009/133187

JUDGMENT

  1. LATHAM J: I agree with Harrison J.

  2. HARRISON J: On 8 October 2012 at the Sydney District Court the appellant pleaded not guilty before Bennett DCJ to…

Continue reading Kalid Kaddour v The Queen

Sign in free to access the full text

Details
AGLC
Kalid Kaddour v The Queen [2013] NSWCCA 243
Case
[2013] NSWCCA 243
Decision Date

CaseChat Overview and Summary

Kalid Kaddour has appealed against a decision of the Supreme Court of Victoria in relation to an interlocutory issue arising from the refusal of the trial judge to grant a certificate under s 128 of the Evidence Act 2008 (Vic). The issue in the appeal is whether the refusal of the trial judge to grant a s 128 certificate amounts to an "interlocutory judgment or order" within the meaning of s 5F(3) of the Criminal Appeal Act 1995 (Vic). The Crown contends that the refusal of the trial judge to grant a s 128 certificate does not constitute an interlocutory judgment or order for the purposes of s 5F(3) of the Criminal Appeal Act, while the appellant argues that it does. The Court held that the Crown's argument is correct. The Court noted that the issue of whether a particular ruling can be regarded as a s 5F "judgment or order" is a question of substance and not mere form. The Court further held that a refusal to grant a s 128 certificate is not a ruling on the admissibility of evidence and therefore does not amount to an interlocutory judgment or order for the purposes of s 5F(3) of the Criminal Appeal Act. As such, the interlocutory appeal was not competent.

No further orders were made by the Court.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In this Court the Crown contended that a preliminary issue arises for determination. That is whether or not the appeal to this Court is competent having regard to the jurisdictional limitations contained in s 5F of the Criminal Appeal Act. That section provides relevantly as follows:"5F Appeal against interlocutory judgment or order(1) This section applies to:(a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court…(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.(3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings:(a) if the Court of Criminal Appeal gives leave to appeal, or(b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal…(5) The Court of Criminal Appeal:(a) may affirm or vacate the judgment, order, decision or ruling appealed against, and(b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against…" The Crown contends that his Honour's decision below was not "an interlocutory judgment or order given or made in the proceedings" within the meaning of that expression in s 5F(3) of the Act. No part of that expression is defined in the Act. It is uncontroversial that the issue of whether a particular ruling can be regarded as a s 5F "judgment or order" is a question of substance and not mere form: see R vBozatsis; R v Spanakakis (1997) 97 A Crim R 296 at 303; Sasterawan v Morris [2010] NSWCCA 91; (2010) 201 A Crim R 302 at [23]. It is also uncontroversial that a refusal to grant a s 128 certificate is not a ruling on the admissibility of evidence, notwithstanding the placement of that section in that part of the Evidence Act entitled "Admissibility of Evidence". The Crown accepts that his Honour's refusal to grant the certificate was not in terms a ruling on the admissibility of specific evidence. Such a ruling would not be amenable to appeal pursuant to s 5F. The appellant argued by analogy with the rationale behind denying a ruling on the admissibility of evidence the quality or character of a judgment or order. Such a ruling lacks finality and therefore should not be capable of challenge on appeal prior to conviction: R v Steffan (1993) 30 NSWLR 633. An alteration or change to a Crown case in the course of a trial could cause a judge to revisit and possibly alter an earlier ruling on the admissibility of evidence. By way of contrast, a judge's refusal to grant a s 128 certificate is of a different character. Such a refusal compels finality in the decision of an accused person as to whether he or she will give evidence on a voir dire or not.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.