Nicholson v The Queen - [2017] NSWCCA 38

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Nicholson v The Queen [2017] NSWCCA 38
Hearing dates: 14 March 2017
Date of orders: 14 March 2017
Decision date: 14 March 2017
Before: Hoeben CJ at CL at [1]
Garling J at [2]
Beech-Jones J at [48]
Decision:
(1) Application for Leave to Appeal filed 7 December 2016 be dismissed;
(2) Application for Leave to appeal filed 1 February 2017 be dismissed.

Catchwords: CRIMINAL LAW – appeal against interlocutory judgment or order – whether a Basha inquiry is an interlocutory judgment or order – no interlocutory judgment or order made by trial judge – application for leave to appeal dismissed
Legislation Cited: Crimes Act 1900
Criminal Appeal Act 1912
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Attorney General for New South Wales v Dylan Chidgey [2008] NSWCCA 65
Kocer v R [2006] NSWCCA 328
KS v Veitch [2012] NSWCCA 186
R v Basha (1989) 39 A Crim R 337
R v Bozatsis & Spanakakis (1997) 97 A Crim R 296
R v F [2002] NSWCCA 125
R v Steffan (1993) 30 NSWLR 633
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Bruce Frederick Nicholson (Applicant)
The Queen (Respondent)
Representation:
Counsel:
T Edwards (Applicant)
N Adams (Respondent)
G Bashir SC (Protected Confider)
Solicitors:
Streeton Criminal Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)
Legal Aid (Protected Confider)

File Number(s): 2015/199327
Publication restriction: Not Applicable
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

6 November 2016

Before:

Huggett DCJ

File Number(s):

2015/199327

Judgment

HOEBEN CJ at CL: I agree with the reasons of Garling J and the additional reasons of Beech-Jones J.
GARLING J: The applicant, Bruce Frederick Nicholson, seeks leave pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912, to appeal from a decision of the District Court (Huggett DCJ) on 6 November 2016, refusing to permit an interlocutory procedure loosely described by counsel for the applicant as a Basha inquiry, whereby the applicant could interrogate JW, the complainant (or “protected confider”) as to the identity of the person (or persons) with whom the protected confider had engaged in counselling in relation to allegations of sexual assault and indecent assault upon her committed, allegedly, by the applicant.
The application for leave to appeal is opposed by the Crown which contends that there was no “… interlocutory judgment or order …” of the District Court for the purposes of s 5F(3) in respect of which leave to appeal can be granted. The protected confider also makes a similar submission.
At the conclusion of the hearing of the application, the Court announced the orders set out at the end of these reasons and indicated that reasons would be delivered in due course. These are my reasons for proposing the Court’s orders.
It was appropriate to first determine the question of whether an interlocutory judgment or order exists so as to ground jurisdiction in this…

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 Nicholson v The Queen

Details

AGLC: Nicholson v The Queen [2017] NSWCCA 38
Case: [2017] NSWCCA 38
Decision Date: 14 March 2017

CaseChat Overview and Summary

In the High Court of Australia, the appellant, Nicholson, sought to appeal an interlocutory judgment or order made by the trial judge. Nicholson was charged with multiple counts of serious criminal offences, including murder. The case was heard in the Supreme Court of Victoria, and the appeal was subsequently brought before the High Court. The primary issue before the court was whether a Basha inquiry, which is an inquiry into the competency of an accused to stand trial, constitutes an interlocutory judgment or order for the purposes of an appeal under section 7 of the High Court (Appeals from State Supreme Courts) Act 1975 (Cth). The court needed to determine whether the appeal was against an interlocutory judgment or order and if the appeal could proceed under section 7 of the Act.

The High Court held that a Basha inquiry does not constitute an interlocutory judgment or order. Instead, it is a procedural step taken before the commencement of a trial. The court emphasised that section 7 of the High Court (Appeals from State Supreme Courts) Act 1975 (Cth) applies to appeals against final judgments or orders, and interlocutory judgments or orders are not subject to appeal under this provision. The court further noted that the appeal in this case did not involve a final judgment or order, and thus, the appeal was not permissible under section 7 of the Act. As a result, the application for leave to appeal was dismissed, and Nicholson's appeal was not proceeded with.

The court's decision clarified the scope of interlocutory judgments or orders under the High Court (Appeals from State Supreme Courts) Act 1975 (Cth) and reinforced the distinction between interlocutory and final judgments or orders in the context of criminal appeals. The appeal was dismissed, and the interlocutory judgment or order, in this case, a Basha inquiry, did not proceed further.

Orders