McIlvar v Szwarcbord - [2008] SASC 179

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
MCILVAR v SZWARCBORD
[2008] SASC 179
Judgment of The Honourable Justice White
4 July 2008
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - EVIDENCE UNFAIR TO ADMIT OR IMPROPERLY OBTAINED - GENERALLY
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - GENERALLY
MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - WHEN APPEAL LIES AND EFFECT OF DEATH OF PARTY
Application for permission to appeal against rulings by magistrate on admissibility of evidence - whether appeal is competent - whether rulings on evidence are "judgments" - whether permission to appeal should be granted - whether magistrate erred in application of public policy discretion.
Held: appeal incompetent - ruling on admissibility of evidence not a "judgment" for the purposes of s 42 Magistrates Court Act 1991 (SA) - not necessary to consider other issues on appeal.
Magistrates Court Act 1991 (SA) s 3, s 42; Workers Rehabilitation and Compensation Act 1986 (SA) s 120; Education Regulations 1997 (SA) reg 6; Supreme Court Act 1935 (SA) s 50; District Court Act 1991 (SA) s 43; Criminal Appeal Act 1912 (NSW) s 5F; Statutes Amendment (Criminal Procedure) Act 2005 (SA) s 12, referred to.
Legal Practitioners' Complaints Committee v A Practitioner (1987) 46 SASR 126; Corporation of the City of Mitcham v Fusco [2001] SASC 164; Police v Dorizzi (2002) 84 SASR 416; Holder v Lewis (2003) 231 LSJS 431; Osenkowski v Magistrates Court of South Australia (2006) 96 SASR 456, applied.
Police v Edwards [2007] SASC 289, distinguished.
R v Swaffield (1998) 192 CLR 159; Ridgeway v The Queen (1995) 184 CLR 19; R v Lobban (2000) 77 SASR 24; R v Steffan (1993) 30 NSWLR 633; R v Powch (1988) 14 NSWLR 136; Kocer v The Queen [2006] NSWCCA 328; R v Bozatsis (1997) 97 A Crim R 296; R v Piper [2005] NSWCCA 134; Rich v Australian Securities and Investments Commission (2005) 54 ACSR 365, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"judgment", "decision"

MCILVAR v SZWARCBORD
[2008] SASC 179
Magistrates Appeal
WHITE J:

The appellant is being prosecuted in the Magistrates Court for seven alleged contraventions of s 120(1)(a) of the Workers Rehabilitation and Compensation Act 1986 (SA) (WRCA), ie, obtaining a payment of income maintenance by dishonest means. In addition, the appellant is being prosecuted for 12 alleged contraventions of s 120(1)(c) of the WRCA, ie, making a statement dishonestly in relation to a claim for compensation. These offences are alleged to have occurred at various times in the period between 20 April and 20 June 2005.
At the commencement of his trial, the appellant sought rulings precluding the prosecution from adducing video film evidence of certain of his activities. He submitted in particular that the magistrate should preclude the prosecution from adducing video film evidence which had been obtained by investigators while trespassing on the land of his neighbours at Sedan on 4 and 5 June 2005; while using school grounds on numerous other occasions in contravention of reg 6(a) of the Education Regulations 1997 (SA); and while trespassing on the land of a small business at O’Sullivan’s Beach. The appellant sought to have the magistrate exercise the public policy discretion considered in R v Swaffield;[1] Ridgeway v The Queen;[2] and R v Lobban.[3]
[1] (1998) 192 CLR 159.
[2] (1995) 184 CLR 19.
[3] [2000] SASC 48; (2000) 77 SASR 24.
On 13 November 2007 the magistrate ruled that the prosecution was entitled to adduce the video tape film taken from the land of his neighbours at Sedan. He did, however, rule that the prosecution could not introduce into evidence film taken on the appellant’s own property on 30 May 2005. On 27 March 2008, after a further voir dire, the magistrate ruled that the prosecution was entitled to lead the video tape evidence taken from the school grounds and from the business premises.
The appellant now seeks permission to appeal against those two rulings. With the consent of the respondent, I granted the appellant an extension of time to 18 April 2008 in which to commence his application for permission.
The application raises three issues. First, is the appeal competent? Secondly, if so, should permission to appeal be granted? Thirdly, if so, did the magistrate err in his consideration of the application of the public policy discretion in the circumstances of this case?
As will be seen, I consider it necessary to consider only the first of these issues.
Is the Appeal Competent?
The right of appeal from judgments delivered in the criminal division of the Magistrates Court is contained in s 42 of the Magistrates Court Act 1991 (SA) (MCA). Subsections (1) and (1a) provide:
(1)A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
(1a)    An appeal does not, however, lie against an interlocutory judgment unless—
(a)     the judgment stays the proceedings; or
(b)     the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or
(c)     the Court or the appellate court is satisfied that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial and grants its permission for an appeal.
It can be seen that sub-s (1) grants a right of appeal (with some exceptions) against any “judgment” given in an action. That right is qualified by sub-s (1a) which precludes appeals against interlocutory judgments in all but three circumstances. In the present case the appellant relies upon sub-paragraph (c). He contends that the magistrate’s decision declining to preclude the prosecution from adducing the video evidence is an interlocutory judgment; that there are special reasons why it would be in the interests of justice to have the appeal heard now rather than awaiting the completion of the trial; and that the Court should grant permission to appeal.
The respondent contends that the application for permission to appeal is not competent. He contends that neither of the magistrate’s rulings is a “judgment” for the purposes of s 42(1).
“Judgment” is defined in s 3(1) of the MCA to mean “a judgment, order or decision and includes an interlocutory judgment or order”. It will be necessary to address later the significance of the word “decision” in this definition.
There is a long line of authority indicating that a ruling about the admissibility of evidence is not a “judgment” giving rise to an entitlement to appeal.
In Legal Practitioners’ Complaints Committee v A Practitioner[4] (LPCC) the issue was whether a decision by a judge of this Court that an appeal was competent was a judgment or order for the purposes of s 50(1) of the Supreme Court Act 1935 (SA) which could be the subject of appeal. King CJ said:
A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the Court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave.[5] (Emphasis added)
Subsequent decisions in this Court have taken the same approach. In Corporation of the City of Mitcham v Fusco,[6] the question was whether a ruling by the Environment, Resources and Development Court that certain evidence was inadmissible was an “interlocutory order” against which an appeal lay to this Court. After referring to R v Steffan[7] Debelle J held that a ruling on the admissibility of evidence was not an interlocutory order. Debelle J said:
Rulings on the admissibility of evidence are capable of being changed as the hearing proceeds. Furthermore, as with a criminal trial, it is undesirable that civil proceedings should be interrupted by appeals in relation to rulings on the admissibility of evidence. Not only might the ruling be altered as the hearing proceeds but, in addition, the ultimate decision of the Court might render it unnecessary to examine the correctness of the ruling on evidence. For these reasons, the expression “an interlocutory order” does not include a ruling on the admissibility of evidence. There are a multitude of procedures in civil actions which may give rise to interlocutory judgments or orders. But I do not think it is intended that s 30(1)(a) should apply to rulings on the admissibility of evidence.[8]
[4] (1987) 46 SASR 126.
[5] Ibid at 127.
[6] [2001] SASC 164.
[7] (1993) 30 NSWLR 633.
[8] Ibid at [7].
A similar view was taken by Duggan J (with whom Williams J agreed) in Police v Dorizzi.[9] The decision concerned an appeal against the dismissal by a magistrate of certain charges for want of prosecution. After the magistrate had ruled that certain videotape evidence was inadmissible, the prosecution tendered no further evidence and the charges were then dismissed. An appeal was brought to this Court under s 42 of the MCA. At that time s 42(1a) provided that an appeal did not lie against an interlocutory judgment given in summary proceedings. In considering the exercise of appeal rights in those circumstances, Duggan J said:
Section 42(1a) specifically excludes appeals from interlocutory judgments given in summary proceedings. Presumably, the policy behind the restricted right of appeal is to prevent summary proceedings from being fragmented. Furthermore, it is relevant to bear in mind that a ruling on the admissibility of evidence is not a judgment in any event.[10] (Emphasis added)
As support for the proposition emphasised, Duggan J referred to the passage in LPCC quoted above.
[9] [2002] SASC 356; (2002) 84 SASR 416.
[10] Ibid at [19], 419.
Although agreeing with the result in Dorizzi, Debelle J took a different view about the availability of an appeal. He held that the “order” excluding the videotape was an interlocutory order which the then terms of s 42(1a) prevented from being the subject of an appeal. Debelle J did not give any reasons for that conclusion and it is not clear whether he was intending to modify the approach he had adopted in Fusco.
Holder v Lewis[11] was also decided at a time when s 42(1a) provided that an appeal did not lie against an interlocutory judgment. In that case, a magistrate had ruled that certain prosecution evidence was inadmissible and then found that the defendant had no case to answer. The magistrate dismissed the complaint. Doyle CJ (with whom Prior and Perry JJ agreed) held that the appeal against the magistrate’s dismissal of the complaint was competent. However, in relation to the magistrate’s ruling about the admissibility of the prosecution evidence Doyle CJ said:
The magistrate’s decision to exclude the evidence was not “an interlocutory judgment”. It was not a judgment at all. It was simply a ruling made in the course of the trial.[12]
Doyle CJ referred in that respect to LPCC and to Dorizzi.
[11] [2003] SASC 397; (2003) 231 LSJS 431.
[12] Ibid at [20], 433.
Police v Edwards[13] was a case in which s 42(1a) in its current form applied. Anderson J considered that the prosecution did have “standing” pursuant to s 42(1a) to appeal against a magistrate’s decision excluding certain evidence. It appears, however, that the appellant’s “standing” had been conceded by the respondent in that case.
[13] [2007] SASC 289.
In Graziano v Graziano[14] Bleby J considered two appeals from decisions of a District Court judge. By s 43(1) of the District Court Act 1991 (SA) (DCA) a party could, subject to certain qualifications, appeal against any “judgment” given in an action. Section 3(1) of the DCA defined the word “judgment” in the same way as does s 3(1) of the MCA. One of the decisions of the District Court judge was a refusal of an application for leave to re-open the plaintiff’s case so as to permit further evidence to be led. Bleby J regarded this decision as being “akin to a ruling on the admissibility of evidence made in the course of the trial”.[15] He referred to the authorities mentioned above and to decisions of the New South Wales Supreme Court to which reference will be made shortly. Bleby J concluded that the true characterisation of the decision of the judge refusing leave to the plaintiff to reopen his case was that it was a ruling in the course of the trial and therefore not an interlocutory order which could be appealed.[16]
[14] [2008] SASC 142.
[15] Ibid at [46].
[16] Ibid.
In New South Wales s 5F of the Criminal Appeal Act 1912 grants a right of appeal in certain circumstances against an interlocutory judgment or order. In several cases, it has been held that a ruling by a judge on the evidence which may, or which may not, be admitted into a criminal trial is not an “interlocutory judgment or order” so as to give the party aggrieved an entitlement to seek leave to appeal. See, for example, R v Powch;[17] R v Steffan;[18] Kocer v The Queen;[19] R v Bozatsis;[20] and R v 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.
The structure of s 42(1) and (1a) is to permit an appeal against “any” judgment in a criminal action but then to confine the appeals which may be brought against interlocutory judgments. This means that in order for an appeal to lie at all, the decision in question must first be properly characterised as a “judgment”. Subsection (1a) confines, rather than enlarges, the operation which sub-s (1) would otherwise have.
As noted earlier, the definition of “judgment” in s 3(1) of the MCA indicates that a “decision” may be a judgment. The appellant submitted that this indicates that a decision about the admissibility of evidence may be a judgment for the purposes of s 42(1). I do not consider that to be an appropriate construction. In the first place, none of the judgments in Dorizzi, Holder or Graziano have considered the word “decision” to be significant in this context. It is true that none of the reasons for judgment in those cases refer expressly to the possible significance of the word “decision” in the definition of judgment but it is not to be supposed that the presence of that word, or its possible significance, was overlooked. I note that in Dorizzi, Duggan J referred expressly to the definition of “judgment” in s 3(1) of the MCA.[23]
[23] Police v Dorizzi [2002] SASC 356 at [18]; (2002) 84 SASR 416 at 419.
Secondly, and in any event, there are implications to be drawn from the manner of expression used in the definition of “judgment”. The definition uses the technique of specifying a meaning (“judgment” means a judgment, order or decision) and then enlarging (or clarifying) that meaning by specifying that certain kinds of interlocutory judgments are included. It is significant that the enlargement or clarification does not specify that an interlocutory decision is to be regarded as a judgment. That omission implies that interlocutory decisions are not to be regarded as judgments. In other words, it seems that the definition is to be read as indicating that while final court rulings of all kinds are judgments, only interlocutory judgments and orders are to be so regarded. The appellant’s submissions acknowledged that the structure of the definition presented a “problem” for his submission.
It does seem that when Parliament enacted s 42(1a) in its present form it contemplated that it would, in the limited circumstances to which it refers, permit an appeal against a ruling on the admissibility of evidence by a magistrate. So much is evident from the Second Reading Speech of the Attorney-General:
The decision of the Full Court in Police v Dorizzi (2002) 84 SASR 416 illustrates a problem with section 42. In Dorizzi, the Full Court held that section 42 does not enable a party to a criminal proceeding (in this case the prosecution) to appeal a ruling on the admissibility of evidence by a magistrate. Dorizzi was the prosecution [of] nightclub security guards for assault. The key prosecution evidence was tapes from various video-surveillance cameras purporting to show the offence taking place. The magistrate hearing the matter ruled the video tapes inadmissible. As a result, the prosecution case collapsed. The magistrate ruled there was no case to answer and ordered the case be dismissed.
The prosecution appealed the magistrate’s decision to a single judge of the Supreme Court under section 42. On appeal, the Judge ruled the video tape was incorrectly ruled inadmissible, set aside the magistrate’s orders, and ordered a retrial. On further appeal, however, the Full Court held that the prosecution could not have succeeded in its appeal as section 42 did not authorise an appeal against the magistrate’s ruling on the admissibility of the video tapes.
The Bill amends section 42 to provide, in effect, a right of appeal against a decision by the Magistrates Court on an interlocutory judgment.[24]
[24] South Australia, Parliamentary Debates, House of Assembly, 20 September 2005, 3469 (Michael Atkinson, Attorney-General).
However, if that was the intention, I do not think that it can be said that sub-s (1a) gives effect to it. This Court had held clearly in Dorizzi and in Holder that a ruling concerning the admissibility of evidence is not a judgment. Such a ruling therefore does not come within s 42(1). The partial removal of the prohibition on appeals against interlocutory judgments which was effected by s 12 of the Statutes Amendment (Criminal Procedure) Act 2005, without an enlargement of the matters which should be characterised as interlocutory judgments, does not alter that position.
In my opinion, effect should be given to the judgments in LPCC, Fusco, Dorizzi, Holder and Graziano referred to earlier. The effect of those judgments is that a ruling concerning the admissibility of evidence is not a “judgment” which gives rise to an entitlement to appeal. Edwards may be a decision to the opposite effect but that decision was influenced by the attitude of the respondent. Further, it is a decision of a single judge. To the extent to which it departs from the principle stated by the Full Court in Dorizzi and Holder and by Bleby J in Graziano, I do not consider that it should be followed. This means that neither s 42(1a)(b) nor (c) may have the full effect which it seems was intended by Parliament.

In my opinion, the present appeal is incompetent.
This conclusion makes it both unnecessary and inappropriate to consider the second and third issues arising on the appeal.[25] The appeal should be dismissed.
[25] Osenkowski v Magistrates Court of South Australia [2006] SASC 345 at [58]; (2006) 96 SASR 456 at 472.