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Liristis v Director of Public Prosecutions

Liristis v Director of Public Prosecutions

Case [2018] NSWCCA 196 7 September 2018

Jurisdiction

Appeal

Admissibility of Evidence

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Liristis v Director of Public Prosecutions [2018] NSWCCA 196
Hearing dates: 7 September 2018
Date of orders: 07 September 2018
Decision date: 07 September 2018
Before: Basten JA at [1];
Macfarlan JA at [27];
Leeming JA at [28]
Decision:
In the Court of Criminal Appeal matter 2014/190130:

To the extent the applicant seeks leave to appeal pursuant to s 5F of the Criminal Appeal Act from the following rulings of the District Court:

(a)   the refusal on 8 August 2018 of an application for separate trials;
(b) the refusal on 13 August 2018 of an application to admit evidence pursuant s 293 of the Civil Procedure Act 1986 (NSW);
(c)   the grant on 20 August 2018 of an adjournment but refusal of a permanent stay;
(d)   the refusal on 23 August 2018 of an application with respect to the issue of a warrant;

refuse leave to appeal.

In the Court of Appeal matter 2018/243717:

(1)   Dismiss the summons:

(a) to the extent the applicant seeks review under s 69 of the Supreme Court Act 1970 (NSW), and
(b) to the extent the applicant seeks relief under s 23 of the Supreme Court Act

of rulings made by the District Court in exercise of its criminal jurisdiction with respect to the applicant.
(2)   No order as to the costs of the summons proceedings.
Catchwords:
CIVIL PROCEDURE – Court of Appeal – jurisdiction – whether Court of Appeal has jurisdiction to review ruling on admissibility of evidence in District Court – Supreme Court Act 1970 (NSW), ss 23, 69 – interference with criminal trial – discretionary refusal of relief
CRIMINAL PROCEDURE – appeal from interlocutory judgment or orders – whether Court of Criminal Appeal has jurisdiction to hear appeal regarding ruling on admissibility of evidence – whether ruling on admissibility of evidence a “judgment” or “order” – Criminal Appeal Act 1912 (NSW), s 5F
Legislation Cited: Civil Procedure Act 1986 (NSW), s 293
Criminal Appeal Act 1912 (NSW), s 5F
Supreme Court 1970 (NSW), ss 17, 23, 69
Cases Cited: Alqudsi v The Queen (2015) 90 ALJR 192; [2015] HCA 49
Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47
Commissioner for Corrective Services v Liristis [2018] NSWCA 143
Gedeon v Commissioner, New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43
Pan Laboratories Pty Ltd v The Commonwealth (1999) 73 ALJR 464
R v Cheikho (2008) 75 NSWLR 323; [2008] NSWCCA 191
R v Edelsten (1989) 18 NSWLR 213
R v Powch (1988) 14 NSWLR 136
R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76
R v Steffan (1993) 30 NSWLR 633; 67 A Crim R 506
Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317
Category: Principal judgment
Parties: Antonio (Tony) Liristis (Applicant)
Director of Public Prosecutions (Respondent)
Representation:
Counsel:
Applicant self-represented
C Evans (Respondent)
Solicitors:
Applicant self-represented
Office of Director of Public…

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 Liristis v Director of Public Prosecutions

Details

AGLC: Liristis v Director of Public Prosecutions [2018] NSWCCA 196
Case: [2018] NSWCCA 196
Decision Date: 07 September 2018

CaseChat Overview and Summary

The Court of Appeal was asked to determine whether it had jurisdiction to review a ruling made by the District Court regarding the admissibility of evidence in a criminal trial. The appellant, Liristis, sought to challenge the decision of the District Court which had ruled that certain evidence was inadmissible. The Director of Public Prosecutions opposed the appeal, arguing that the Court of Appeal did not have the authority to review such rulings. The primary legal issues for the court to decide were whether the Court of Appeal had the jurisdiction to review the admissibility ruling, and whether the ruling constituted a "judgment" or "order" within the meaning of the Criminal Appeal Act 1912 (NSW).

The Court of Appeal considered the statutory provisions of the Supreme Court Act 1970 (NSW) and the Criminal Appeal Act 1912 (NSW). The court noted that s 23 of the Supreme Court Act granted the Court of Appeal jurisdiction to review decisions of the District Court, but this was subject to the limitations set out in s 69, which provided that the Court of Appeal would not interfere with a criminal trial unless it considered it necessary to do so in the interests of justice. The court also examined s 5F of the Criminal Appeal Act, which defined "judgment" or "order" for the purposes of an appeal from an interlocutory judgment or order. The court concluded that the ruling on admissibility did not meet the statutory criteria for a "judgment" or "order" and, therefore, was not appealable to the Court of Criminal Appeal.

Given that the Court of Appeal found it did not have jurisdiction to review the ruling on admissibility of evidence, the appeal was dismissed. The court emphasised that such rulings were within the discretion of the trial judge and could only be reviewed by the Court of Appeal in exceptional circumstances where there had been a clear error of law or a miscarriage of justice. The court declined to exercise its discretion to intervene in this case, upholding the ruling of the District Court and the position of the Director of Public Prosecutions.

Orders