Police v Williams

[2015] SASCFC 129

Supreme Court of South Australia

(Full Court)

POLICE v WILLIAMS

[2015] SASCFC 129

Judgment of The Full Court

(The Honourable Chief Justice Kourakis, The Honourable Acting Chief Justice Gray and The Honourable Justice Stanley)

9 September 2015

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - GENERALLY

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - MISCELLANEOUS MATTERS - SOUTH AUSTRALIA

The respondent was convicted in the Magistrates Court for three driving offences and one offence of resist a member of the police force. During the pursuit the Police approached the respondent in a car in the backyard of private residential premises.

The respondent appealed to a single Judge of this court who allowed the appeal on the grounds that he was not satisfied that the identification evidence proved beyond reasonable doubt the respondent had committed the offences. In the process of his ruling the Judge excluded the evidence of the police officers while they were on the private residential premises, the Judge found that the police officers had no implied licence to enter the premises.

The appellant appeals only the finding of the single Judge to exclude the evidence on the grounds that no implied licence to enter the private residential premises existed. The order of acquittal is not appealed.

Held per Kourakis CJ (Gray and Stanley JJ agreeing):

1. The appeal was brought to the Supreme Court against the final orders of conviction against the respondent. The appeal was not brought against an “interlocutory judgment” pursuant to s 42 of the Magistrates Court Act 1991.

2.     The appeal is incompetent.

Magistrates Court Act 1991 (SA) s 3, s 42; Supreme Court Act 1935 (SA) s 50, referred to.
Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, considered.

POLICE v WILLIAMS
[2015] SASCFC 129

Full Court:  Kourakis CJ, Gray ACJ and Stanley JJ

1. KOURAKIS CJ:    This is an application for permission to appeal against the decision of a Judge of this Court on a Magistrates Appeal. The Judge allowed the respondent’s appeal against his convictions.  The respondent, Mr Williams, was convicted in the Magistrates Court of:

   ·Count 1 – driving a motor vehicle without consent;

   ·Count 2 – driving a motor vehicle whilst disqualified;

   ·Count 3 – aggravated driving dangerously to escape police pursuit;

   ·Count 4 – resist a member of the police force in the execution of his duty.

2. The Judge allowed the appeal on the first three counts because on a review of the evidence he was not satisfied that the identification evidence of the police officers proved beyond reasonable doubt that Mr Williams was the driver.  The prosecution case on the resist arrest charge was that the police found Williams in a car in the back yard of private residential premises.  They yelled at him to come out but did not speak words of arrest.  Mr Williams, not surprisingly, decided not to alight from the car because two snarling police dogs were waiting for him outside.  On that count the Judge found that there was no case to answer on the basis of the evidence admitted in the Magistrates Court.

3. The police do not challenge those findings. 

4. In the course of his reasons the Judge considered an alternative contention put by Mr Williams that the police evidence of the events which transpired in the back yard should be excluded because the police were trespassers.  The Judge found that the police had no implied licence to enter the premises whilst searching for an offender.  The Judge exercised his discretion to exclude the evidence of the finding of the appellant in the yard of those premises.  That ruling on the evidence provided a further reason for the conclusion that there was no case to answer on count 4. 

5. It is that evidential ruling that the police seek to overturn.    However, the Police purport to bring this appeal against that ruling alone and without appealing against the order of acquittal itself.  It is, of course, not possible for the Police to do so in the absence of a challenge to the Judge’s finding that, even on the premise that the evidence was admissible, there was no case to answer.

6. The Police contend that the decision of the Judge to exclude the evidence of the events in the yard in which the respondent was found is liable to review by way of appeal subject to a grant of permission pursuant to SCR 288(1)(a)(ii).  I reject that contention for the reasons which follow.

   The Legislation

7. Section 3 of the Magistrates Court Act 1991 (SA) (the Magistrates Court Act) provides:

   judgment means a judgment, order or decision and includes an interlocutory judgment;

   interlocutory judgment includes—

   (a)an interlocutory order; and

   (b)an order or ruling relating to the admissibility or giving of evidence;

8. Section 42 of the Magistrates Court Act 1991 (SA) provides for appeals:

   42—Appeals

   (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.

   …

   (5)On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:

   (a)     it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;

   (b)     it may remit the case for hearing or further hearing before the Magistrates Court;

   (c)     it may make any other order (including, subject to subsection (5a), an order for costs) that may be necessary or desirable in the circumstances.

   (5a)The Full Court may not make an order for costs in relation to an appeal to the Full Court of a kind referred to in subsection (2)(ab).

   (6)Where a judgment or order has been confirmed, varied or made on appeal under this section, the Magistrates Court has the same authority to enforce that judgment or order as if it had not been appealed against or had been made in the first instance.

9. The expansion of the orders which can be appealed pursuant to s 42 of the Magistrates Court Act to include interlocutory judgments was enacted to allow the hearing and determination of appeals against evidential and other procedural rulings which are likely to critically effect the outcome of a trial of a criminal matter in the Magistrates Court.[1]

   [1]    See Police v Dorizzi (2002) 84 SASR 416; McIlver v Szwarebond [2008] SASC 179.

10. If an appeal against such a ruling is brought to this Court, whilst the trial in the Magistrates Court is stayed, and determined by a single judge, the judge’s decsion will be subject to an appeal brought in accordance with s 50 of the Supreme Court Act 1935 (SA) (the Supreme Court Act). That is so because the judge’s decision is a final decision disposing of an appeal brought pursuant to s 42 of the Magistrates Court Act. However this matter came before the Judge by way of an appeal against the final orders of conviction made against Mr Williams and not by way of an appeal against “the interlocutory judgment” made in the Magistrates Court admitting the challenged evidence. Nonetheless the applicant contends that the ruling on the admissibility of the challenged evidence made by the Judge in his judgment finally disposing of Mr Williams’ appeal may also be reviewed pursuant to s 50 of the Supreme Court Act, even though the applicant does not appeal against the judgment of acquittal.

11. I reject that contention.

12. Section 50 of the Supreme Court Act provides:

    50—Appeals

    (1)     Subject to this section—

    (a)     an appeal lies to the Full Court against a judgment of the court constituted of a single judge;

    …

    (4)     An appeal lies only with the permission of the court—

    (a)     from a judgment of any of the following classes:

    …

    (ii)a judgment given by a single judge on appeal from a judgment of the Magistrates Court; or

    …

    (6)     In this section—

    judgment includes—

    (a)     an order or direction; and

    (b)     a decision not to make an order or direction.

13. Section 5 of the Supreme Court Act also provides that a judgment includes a decree.

14. In Legal Practitioners Complaints Committee v A Practitioner King CJ explained that s 50 of the Supreme Court Act as it then stood did not extend to incidental rulings made in the course of disposing of a matter:[2]

    The question for decision is whether the learned judge's decision as to the competency of the appeal is a judgment or order within the meaning of s 50. The word “direction” is also used in subs (1) but I think that that word may be ignored. I do not think that it can add anything to the words “judgment” and “order”. It is noteworthy that the requirement for leave is confined in subs (3) to judgments and orders of an interlocutory nature. There is no reference to “direction”. I should think that any judicial act which could be characterised as a “direction” would be likely to be interlocutory. If the word “direction” in subs (1) were not surplusage there would therefore be a class of interlocutory judicial acts known as “directions” which would be appealable without leave. That is clearly not the meaning of the section. I have no doubt that all decisions made appealable by s 50(1) are comprehended by the words “judgment” and “order” and that the use of the word “direction” was not intended to extend the class of appealable decisions beyond those comprehended by those expressions.

    There is no completely satisfying definition of either “judgment” or “order” and no exhaustively definitive way of distinguishing between judicial acts which should be characterised as judgments and judicial acts which should be characterised as orders. Fortunately it is unnecessary for present purposes to make such a distinction. If the decision falls within either description it is appealable.

    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.

    (underlining added)

    [2] (1987) 46 SASR 126 at 127.

15. The amendments to the Supreme Court Act made after the decision in that case do not affect the construction of s 50 of the Supreme Court Act of King CJ. The removal of the extended meaning of judgment from s 50(1) of the Supreme Court Act to subsection (6), which serves as a dictionary for the section, is stylistic only. There is no indication in the text, or in any secondary material, of an intention to effect a substantive change. Moreover, the ruling challenged in this case, even if it were subject to appeal if made as a preliminary ruling, has now merged into the final judgment of acquittal.

16. I would hold that the proposed appeal is incompetent.

17. The appeal being incompetent it is not necessary to pass on the merits of the contentions of the Police on:

    •whether the Police have an implied licence to enter private premises at any time of the day or night for the purposes of searching for suspected offenders;

    •the extent of the statutory and common law powers of Police to do so.

18. Their contentions raise large issues which may well arise for consideration in the future.  They are best left for further discussion at such time and in the context of the particular facts and circumstances of the case in which they arise.  The extent of an implied licence to enter private premises is necessarily fact sensitive.  The Courts cannot lay down a rule of general and certain application on the subject of the implied licence of police to enter and search private residential premises for suspected offenders.  Only Parliament can do so if it considers that such a rule is necessary and justified.

19. GRAY ACJ:               In my view the proposed appeal is incompetent.  I agree with the reasons of the Chief Justice.

20. STANLEY J:         For the reasons given by the Chief Justice I agree that the appeal is incompetent.