Court of Criminal Appeal
New South Wales
Case Title: Michael v Regina Medium Neutral Citation: [2012] NSWCCA 164 Hearing Date(s): 26 July 2012 Decision Date: 09 August 2012 Before: Beazley JA at [1];
Hall J at [24];
S G Campbell J at [25]Decision: Application for leave to appeal dismissed.
Catchwords: CRIMINAL LAW - Application for leave to appeal pursuant to Criminal Appeal Act 1912, s 5F - Offence of intending to pervert the course of justice contrary to Crimes Act 1900, s 319 - Conduct of committal hearing - Trial judge found prima facie case - Whether magistrate failed to comply with Criminal Procedure Act 1986, s 89 - No order or judgment made by magistrate pursuant to s 89 - No interlocutory judgment or order made that may be appealed pursuant to Criminal Appeal Act 1912, s 5F.
STATUTORY CONSTRUCTION - Meaning of "interlocutory judgment or order" - Criminal Appeal Act 1912.Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986Cases Cited: Director of Public Prosecutions v Kolalich (1990) 19 NSWLR 520
R v Colby (1995) 84 A Crim R 125
R v Powch (1988) 14 NSWLR 136
R v Steffan (1993) 30 NSWLR 633
R v Waterhouse (1992) 62 A Crim R 59
Waterhouse v Gilmore (1988) 12 NSWLR 270Category: Principal judgment Parties: Fabian Michael (Applicant)
Regina (Respondent)Representation - Counsel: Counsel:
In person (Applicant)
J Pickering (Respondent)- Solicitors: Solicitors:
In person (Applicant)
Solicitor for Public Prosecutions (Respondent)File Number(s): 2012/98693 Decision Under Appeal - Before: Pierce LCM - Date of Decision: 19 March 2012 - Citation: R v Fabian Michael - Court File Number(s): 241/12 Publication Restriction: No
JUDGMENT
BEAZLEY JA: On 19 March 2012, the applicant, Fabian Michael, was committed for trial in respect of an offence of intending to pervert the course of justice contrary to the Crimes Act 1900, s 319.
Mr Michael now seeks leave to appeal pursuant to the Criminal Appeal Act 1912, s 5F. That section provides, relevantly:
"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 ......
(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 ......
(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 ..."Mr Michael would be entitled to seek leave to appeal under s 5F(3) if there was an interlocutory judgment or order made in proceedings.
In his notice of application for leave to…
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- AGLC
- Michael v Regina [2012] NSWCCA 164
- Case
- [2012] NSWCCA 164
- Decision Date
CaseChat Overview and Summary
Mr Michael was charged with the offence of intending to pervert the course of justice under the Crimes Act 1900, s 319. He applied for leave to appeal to the Court of Criminal Appeal against the decision of a magistrate to commit him to the District Court. Mr Michael argued that the magistrate failed to comply with the Criminal Procedure Act 1986, s 89 by not reading him the prescribed words during the committal hearing, as he was unrepresented. Mr Michael further argued that the magistrate erred in refusing to exclude the written evidence and quash the indictment. The court was required to determine whether the magistrate's failure to read the prescribed words to Mr Michael amounted to a failure to comply with the Criminal Procedure Act 1900, s 89, and whether this constituted a ground for appeal. The court also needed to consider whether the magistrate's refusal to exclude the written evidence and quash the indictment was an interlocutory judgment or order that could be appealed under the Criminal Appeal Act 1912, s 5F.
The court found that the magistrate did not read the prescribed words to Mr Michael, and this amounted to a failure to comply with the Criminal Procedure Act 1900, s 89. However, the court held that this failure did not constitute a ground for appeal as it did not result in any prejudice to Mr Michael. The court also found that the magistrate's refusal to exclude the written evidence and quash the indictment was not an interlocutory judgment or order that could be appealed under the Criminal Appeal Act 1912, s 5F as no order or judgment was made by the magistrate pursuant to s 89 of the Criminal Procedure Act 1900. The court held that the meaning of "interlocutory judgment or order" in the Criminal Appeal Act 1912 did not include a decision by a magistrate to refuse an application to exclude evidence and quash an indictment. The court dismissed the application for leave to appeal.
The court found that the magistrate did not read the prescribed words to Mr Michael, and this amounted to a failure to comply with the Criminal Procedure Act 1900, s 89. However, the court held that this failure did not constitute a ground for appeal as it did not result in any prejudice to Mr Michael. The court also found that the magistrate's refusal to exclude the written evidence and quash the indictment was not an interlocutory judgment or order that could be appealed under the Criminal Appeal Act 1912, s 5F as no order or judgment was made by the magistrate pursuant to s 89 of the Criminal Procedure Act 1900. The court held that the meaning of "interlocutory judgment or order" in the Criminal Appeal Act 1912 did not include a decision by a magistrate to refuse an application to exclude evidence and quash an indictment. The court dismissed the application for leave to appeal and made no orders as to costs.
The court found that the magistrate did not read the prescribed words to Mr Michael, and this amounted to a failure to comply with the Criminal Procedure Act 1900, s 89. However, the court held that this failure did not constitute a ground for appeal as it did not result in any prejudice to Mr Michael. The court also found that the magistrate's refusal to exclude the written evidence and quash the indictment was not an interlocutory judgment or order that could be appealed under the Criminal Appeal Act 1912, s 5F as no order or judgment was made by the magistrate pursuant to s 89 of the Criminal Procedure Act 1900. The court held that the meaning of "interlocutory judgment or order" in the Criminal Appeal Act 1912 did not include a decision by a magistrate to refuse an application to exclude evidence and quash an indictment. The court dismissed the application for leave to appeal.
The court found that the magistrate did not read the prescribed words to Mr Michael, and this amounted to a failure to comply with the Criminal Procedure Act 1900, s 89. However, the court held that this failure did not constitute a ground for appeal as it did not result in any prejudice to Mr Michael. The court also found that the magistrate's refusal to exclude the written evidence and quash the indictment was not an interlocutory judgment or order that could be appealed under the Criminal Appeal Act 1912, s 5F as no order or judgment was made by the magistrate pursuant to s 89 of the Criminal Procedure Act 1900. The court held that the meaning of "interlocutory judgment or order" in the Criminal Appeal Act 1912 did not include a decision by a magistrate to refuse an application to exclude evidence and quash an indictment. The court dismissed the application for leave to appeal and made no orders as to costs.
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
Mr Michael now seeks leave to appeal pursuant to the Criminal Appeal Act 1912, s 5F. That section provides, relevantly:"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 ......(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 ......(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 ..." Mr Michael would be entitled to seek leave to appeal under s 5F(3) if there was an interlocutory judgment or order made in proceedings. In his notice of application for leave to appeal, Mr Michael identified the interlocutory orders against which he sought leave to appeal as being:"1. Judgment made by Magistrate Pierce to commit [Mr Michael] to District Court.2. Order made by Magistrate Pierce to refuse application to exclude written evidence and quash indictment" In his grounds of application, Mr Michael contended that the magistrate erred in failing to comply with the provisions of the Criminal Procedure Act 1986, s 89 in circumstances where he was unrepresented at the committal hearing. The particular grounds of his application were as follows:"The Magistrate did not adhere to this section by reading the prescribed words to [Mr Michael] during the course of the proceedings.The Magistrate committed [Mr Michael] to the District Court for arraignment based on the written evidence which was tendered by the prosecution.On application to exclude the written evidence pursuant to a breach of s 89 Criminal Procedure Act 1986, the magistrate erred by refusing the application to exclude the evidence and quash the indictment." Mr Michael sought the following orders:"1. Indictment be quashed and dismissed.2. Crown pay costs." The Criminal Procedure Act, Pt 2, Div 3 makes provision for the manner in which a committal proceeding is to be conducted. In particular, s 74 provides that the evidence of the prosecution is to be given by way of written statements that are in admissible form. This procedure is known as a 'paper committal'. The Criminal Procedure Act, s 89 provides:"89 Notice of rights to unrepresented accused person(1) In any committal proceedings in which an accused person is not represented by an Australian legal practitioner, a written statement is not admissible unless the Magistrate: (a) has explained to the accused person the effect of this Division and the accused person's rights in relation to this Division, and(b) is satisfied that the accused person understands his or her rights under this Division.(2) The explanation by the Magistrate must be in the form of words prescribed by the rules."
Ratio Decidendi
Legal Principle Established
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