CATCHWORDS:
Criminal Law
Criminal Appeal
competency of appeal
appeal from determination on admissibility of evidence
appeal from an interlocutory order
ruling on evidence not an interlocutory order
competency of stated case

LEGISLATION CITED:
Criminal Appeal Act 1912 (NSW)
Interpretation Act 1987 (NSW)
Crimes Legislation Further Amendment Bill
Supreme Court Act 1970

DECISION:
The appeal and the stated case is dismissed.

JUDGMENT:

- 1 -

IN THE COURT OF
CRIMINAL APPEAL

2006/2096
2006/1965
McCLELLAN CJ at CL
BUDDIN J
ROTHMAN J
22 September 2006

ALI KOCER v REGINA

Judgment

McCLELLAN CJ AT CL: This is yet another case where an accused person has sought to raise a question in relation to the admissibility of evidence in this Court. This Court made plain in R v Steffan (1993) 30 NSWLR 633 that questions as to the admissibility of evidence at a trial are not amenable to review on the application of an accused person during the course of the trial. There are obvious and previously stated policy reasons for this position.
A trial judge is entrusted with the conduct of the trial and in only limited circumstances can his or her decision be reviewed in this Court during the course of the trial. The proper administration of the criminal justice system requires both the trial judge and this Court to be alert to ensure that the trial process is not fragmented by applications during the trial when ultimately, if an injustice occurs, it can be corrected on appeal to this Court.

I agree with Rothman J and the orders which his Honour proposes.
BUDDIN J: I agree with Rothman J and the orders which his Honour proposes. I also agree with the additional observations made by McClellan CJ at CL.
ROTHMAN J: Ali Kocer purports to appeal pursuant to the terms of s.5F of the Criminal Appeal Act 1912 (the Act) against the determination of his Honour Judge Goldring of the District Court of New South Wales made on 18 July 2006. An issue arises as to the competency of the appeal, which involves the construction of s.5F. Before dealing with that issue it is necessary to recite very briefly the nature of the matter which is sought to be appealed.
On 18 July 2006, Goldring DCJ determined that Constable Lehmann was acting on a reasonable suspicion when he chose to stop and search the vehicle registered NXA 21A at 11.05 pm on 12 September 2005. The accused has been charged with supply…

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 Kocer v R

Details

AGLC: Kocer v R [2006] NSWCCA 328
Case: [2006] NSWCCA 328
Decision Date: 22/09/2006

CaseChat Overview and Summary

The appellant in this matter, Kocer, was appealing against the ruling of the Court of Criminal Appeal in relation to the admissibility of certain evidence. The respondent, the Crown, objected to the competency of the appeal. The issue before the court was whether the appeal was within the legislative exceptions that permit an appeal from an interlocutory order. Additionally, the court had to determine if the stated case was competent.

The court held that the appeal was not within the exceptions provided by the legislation, as the ruling on evidence was not an interlocutory order. The court emphasised that the legislative intention is to limit the interference by interlocutory appellate procedures in criminal trials. The trial judge had issued a certificate under ss.5F(3)(i)(b), but the court found that the judge should not have done so as there was no substantial doubt about the correctness of the order made. The court also found that the stated case was incompetent. The appeal was dismissed, and the stated case was also dismissed.

The court concluded that the appeal was not within the legislative exceptions that permit an appeal from an interlocutory order. The ruling on evidence was not an interlocutory order and therefore the appeal was not within the exceptions. The court also found that the stated case was incompetent. The appeal and the stated case were dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

As I understand it, the appeal under s.5F of the Act was filed in circumstances where the Crown objected to the competence of the stated case and was intended by the applicant to subsume the stated case. In any event, no case can be stated under s.5B of the Act and the case stated is also incompetent. Conclusion It is important to understand that the legislative intention is that criminal trials will be dealt with by the trial judge without undue interference by interlocutory appellate procedures. There are a limited number of exceptions in which the legislature has determined that there may be an appeal, because of the effect of the order on the trial as a whole and, usually, the absence of appeal rights if the trial proceeds to its conclusion. The trial judge issued a certificate under ss.5F(3)(i)(b). It cannot be stressed too highly that trials should proceed without interruption by interlocutory appeals, except where to do otherwise may permanently affect the rights of a party or so inconvenience the trial that an interruption is necessary, in the interests of justice. It will rarely be appropriate for a trial judge to issue a certificate and it will be done only when, in addition to the foregoing considerations, the judge has substantial doubt about the correctness of the order made. As this Court said in Lethlean v R (1995) 83 A Crim R 197 at 206:“I would add that although, in the present case, the trial judge granted a certificate, in my opinion and with due respect, he clearly should not have done so. His Honour apparently had no doubt that he had ruled correctly and said he was prepared to grant the certificate with considerable reluctance. A certificate should be granted only if the trial judge considers there is substantial doubt about the interlocutory judgment given or order made and that it is convenient that the Court of Criminal Appeal resolve that doubt before the trial proceeds further. The trial judge should bear in mind the general disadvantages of appeals on interlocutory matters. These include that the appeal may ultimately prove to have been either unnecessary or an unnecessary duplication of the appeal process.”An interlocutory appeal should be a last resort and not a tactic to delay the trial or undermine the finality of the trial process. This purported appeal under s.5F does not fit within one of the legislative exceptions and is incompetent. As discussed, the stated case is also incompetent. I propose that each of the appeal and the stated case be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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Citations

AGLC Citation

Kocer v R [2006] NSWCCA 328

Most Recent Citation

McIlvar v Szwarcbord [2008] SASC 179

Cases citing this decision · 11 of 11 shown

Burton v The King
[2024] NSWCCA 213 Para 8

…302 and 304; R v Glossop [2001] NSWCCA 165 at [15]-[19]; R v F [2002] NSWCCA 125; R v Lavender [2002] NSWCCA 511; 37 MVR 491 at [8]; Kocer v R [2006] NSWCCA 328 at [1], [10], [15] and [18]; EK v R [2009] NSWCCA 4; 75 NSWLR 302 at [11]-[12] and [19]; and Gedeon v R [2009] NSWCCA 278 at [15]. [75] It is undoubted tha…
Nicholson v The Queen
[2017] NSWCCA 38 Para 33

…asha inquiry as an order within the meaning of s 5F(3) of the Criminal Appeal Act. The applicant pointed to the decision of this Court in Kocer v R [2006] NSWCCA 328 at [11]ff as authority for the proposition that where an adjudication has been made by the Court between parties to the proceedings resolving a dispute…
DSJ v R; NS v R
[2014] NSWCCA 77 Para 1

…In Kocer v Regina [2006] NSWCCA 328, the Court (Rothman J, McClellan CJ at CL and Buddin J agreeing) examined the history of s 5F and the context s 5F(3) of the Criminal Appeal Act 1912. Unless the term "interlocutory order" in s 5F(2) and s 5F(3) of the Criminal Appeal Act is read to exclude rulings on evidence, s…
D v Director of Public Prosecutions (NSW) - Sydney
[2013] NSWSC 60 Para 21

…errupted, there being substantial doubt about an interlocutory order made, which it is convenient to resolve before the trial proceeds (see Kocer v R [2006] NSWCCA 328 at [22] - [23]).…
Badans v R
[2012] NSWCCA 97 Para 1

…o convict and sentence: see Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 440; R v Pavia (1993) 67 A Crim R 364 at 368-369; Kocer v R [2006] NSWCCA 328 at [13]; Nagi v Director of Public Prosecutions (NSW) [2009] NSWCCA 197 at [23].…
Dao v The Queen
[2011] NSWCCA 63 Para 1

…296 at 302 and 304; R v Glossop [2001] NSWCCA 165 at [15]-[19]; R v F [2002] NSWCCA 125; R v Lavender [2002] NSWCCA 511; 37 MVR 491 at [8]; Kocer v R [2006] NSWCCA 328 at [1], [10], [15] and [18]; EK v R [2009] NSWCCA 4; 75 NSWLR 302 at [11]-[12] and [19]; and Gedeon v R [2009] NSWCCA 278 at [15].…
R v Ford
[2009] NSWCCA 306 Para 9

…whether such a ruling is an “order” for the purpose of s 5F, I rely on my reasons (with whom McClellan CJ at CL and Buddin J agreed) in Kocer v R [2006] NSWCCA 328 at [11]-[19]. As is clear from those reasons, the term in a different context may have a very different meaning.…
Gedeon v The Queen
[2009] NSWCCA 278

…NSW Crime Commisson [2008] HCA 43; 236 CLR 120 EK [2009] NSWCCA 4 Glossop [2001] NSWCCA 165 Groves (2 April 1990 NSWCCA unrep No 60407 of 1989) Kocer [2006] NSWCCA 328 Lavender [2002] NSWCCA 511; 37 MVR 491 Marchione [2002] NSWCCA 131; 128 A Crim R 574 Steffan (1990) 30 NSWLR 633 PARTIES: Gilbert Gedeon The Crown FI…
Nagi v Director of Public Prosecutions (NSW)
[2009] NSWCCA 197 Para 2

…hough it may, of course, conclude the fate of the particular application in which it is made”. Although this description was adopted in Kocer v R [2006] NSWCCA 328 at [13] by Rothman J (with whom McClellan CJ at CL and Buddin J agreed), it is not directly applicable to s 5F. A criminal proceeding is not “an action o…
EK v The Queen
[2009] NSWCCA 4

…cipal 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 [200…
McIlvar v Szwarcbord
[2008] SASC 179 Para 17

…Piper ;[21] but cf Rich v Australian Securities and Investments Commission. [22] [17] (1988) 14 NSWLR 136 at 138. [18] (1993) 30 NSWLR 633. [19] [2006] NSWCCA 328. [20] (1997) 97 A Crim R 296. [21] [2005] NSWCCA 134. [22] [2005] NSWCA 233 at [21]-[25]; (2005) 54 ACSR 365 at 368-69 per Basten JA.…

View all 11 citing cases →

Cases cited in this decision · 8 of 8 shown

Project Blue Sky Inc v Australian Broadcasting Authority
[1998] HCA 53 Para 14

…Even before the enactment of the provisions of s.33 of the Interpretation Act 1987 and the injunction of the High Court in Project Blue Sky v ABA (1998) 194 CLR 355, an examination of the purpose for which ss.5F(3A) was enacted would have been permissible to discover the mischief at which it was directed. In that reg…
Sali v SPC Ltd
[1993] HCA 47 Para 9

…Peterborough v Overseers of Parish of Wilsthorpe (1883) 12 QBD 1; Maxwell v Keun [1928] 1 KB 645; Bloch v Bloch (1981) 180 CLR 390 at 395; Sali v SPC (1993) 67 ALJR 841 at 843.…
Williams v Spautz
[1992] HCA 34 Para 10

…l trial to admit or reject evidence is an interlocutory order within the terms of the Supreme Court Act 1970 : Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 610-611. However, the question of whether a ruling on the admissibility of evidence is an order or an interlocutory order is not, even on the gene…
Bloch v Bloch
[1981] HCA 56 Para 9

…an adjudication between parties to the proceedings: Peterborough v Overseers of Parish of Wilsthorpe (1883) 12 QBD 1; Maxwell v Keun [1928] 1 KB 645; Bloch v Bloch (1981) 180 CLR 390 at 395; Sali v SPC (1993) 67 ALJR 841 at 843.…
Hall v Nominal Defendant
[1966] HCA 36 Para 11

…The most widely accepted definition of an interlocutory order is that given by Taylor J in Hall v Nominal Defendant (1966) 117 CLR 423 at 440: “An order made in the course of an action or suit which does not conclude the rights of the parties inter se , though it may, of course, conclude the fate of the particular ap…
Saraswati v The Queen
[1991] HCA 21 Para 13

…one possible use: the terms of ss.5F(3A) might be an express provision limiting the general power to appeal contained in ss.5F(2): see Saraswati v R (1991) 172 CLR 1.…
[1928] 1 KB 645
[1928] 1 KB 645 Para 9

…nary meaning, is an adjudication between parties to the proceedings: Peterborough v Overseers of Parish of Wilsthorpe (1883) 12 QBD 1; Maxwell v Keun [1928] 1 KB 645; Bloch v Bloch (1981) 180 CLR 390 at 395; Sali v SPC (1993) 67 ALJR 841 at 843.…
Peterborough v Wilsthorpe
(1883) 12 QBD 1 Para 9

…An order, in its ordinary meaning, is an adjudication between parties to the proceedings: Peterborough v Overseers of Parish of Wilsthorpe (1883) 12 QBD 1; Maxwell v Keun [1928] 1 KB 645; Bloch v Bloch (1981) 180 CLR 390 at 395; Sali v SPC (1993) 67 ALJR 841 at 843.…

Legislation cited in this decision · 3

Criminal Appeal Act 1912 (NSW)
1 mention (from Para 3)
Interpretation Act 1987 (NSW)
1 mention (from Para 14)
Supreme Court Act 1970 (NSW)
1 mention (from Para 10)