(The Honourable President Livesey, the Honourable Justice Bleby and the Honourable Justice David)
4 April 2024
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL - GENERAL PRINCIPLES - FUNCTIONS OF APPELLATE COURT - SUBSTANTIVE RIGHT OR MATTER OF PROCEDURE - MATTERS OF PROCEDURE - OTHER CASES
CRIMINAL LAW - EVIDENCE - PROPENSITY, TENDENCY AND CO-INCIDENCE - ADMISSIBILITY AND RELEVANCY - FOR PARTICULAR PURPOSE - SEXUAL OFFENCES
The accused is charged with two counts of unlawful sexual intercourse with a person under 17 years, contrary to s 49(3) of the Criminal Law Consolidation Act 1935 (SA) (CLCA), and one count of indecent assault, contrary to s 56(1) of the CLCA.
Before the jury was empanelled, the trial judge ruled that text messages from the accused to the complainant, his 16-year-old step-daughter, sent between eight months and a year after the alleged offending comprised discreditable conduct but were not admissible pursuant to s 34P(2)(b) of the Evidence Act 1929 (SA) (Evidence Act).
The trial judge also ruled that text messages and a conversation between the accused and the complainant in which she told him that she had revealed his offending to her psychologist, who was going to make a mandatory report, were protected communications pursuant to s 67E of the Evidence Act and could not be adduced by the prosecution. Following these communications, later that day the accused made admissions to his wife, the mother of the complainant, and then to police after attempting suicide.
The Director of Public Prosecutions (SA) applied for permission to appeal these interlocutory rulings pursuant to s 157 of the Criminal Procedure Act 1921 (SA) (CPA). After the application was made, the trial judge adjourned the trial.
HELD (the Court), assuming these rulings were interlocutory judgments, permission to appeal should be refused:
1.An adjournment which ensured the loss of the trial date should not have been sought or granted. A short adjournment over the course of an afternoon or perhaps a day, as originally envisaged, was sufficient. It is in the public interest, as well as in the interests of the accused and the complainant, that criminal proceedings involving serious charges, once commenced, be heard expeditiously and not be unduly fragmented or delayed, [2]-[6]. Observations made about the s 157 CPA application procedure, [24]-[33].
2.Whilst these rulings were made in the course of the prosecution of serious charges, they are far from determinative of the outcome of the prosecution. And, most importantly, they are open to be reconsidered by the trial judge. In connection with the second ruling, it was relevant though not decisive that the Director was taking a different approach to s 67E of the Evidence Act compared with the approach taken before the trial judge. It is not in the interests of justice that…
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.
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AGLC
R v Geoffrey (a pseudonym) [2024] SASCA 40
Case
[2024] SASCA 40
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions sought permission to appeal an evidentiary ruling made by a District Court judge prior to the empanelling of a jury. The ruling concerned the admissibility of evidence under s 34P(2) and the Crown's permission to adduce evidence under s 67F of the *Evidence Act 1929* (SA). The Court of Appeal, comprising Livesey P, Bleby and David JJ, heard the application for permission to appeal.
The central legal issues before the Court of Appeal were whether the trial judge's ruling constituted an "interlocutory judgment" for the purposes of s 157 of the *Criminal Procedure Act 1921* (SA), and if so, whether permission to appeal should be granted. The Court was required to consider the distinction between substantive questions or issues and merely incidental decisions, particularly in the context of evidentiary rulings, and the Court's general reluctance to entertain interlocutory appeals that might delay or fragment criminal proceedings.
The Court reasoned that interlocutory appeals are an exception to the ordinary course of criminal proceedings, which should ideally proceed to verdict without undue fragmentation or delay. Drawing on established principles, the Court distinguished between rulings that finally resolve a substantive question and those that are incidental to the main proceedings. While evidentiary rulings can sometimes be substantive, they are often incidental, akin to rulings on practice and procedure, and do not necessarily have the character of a judgment or order. The Court noted that the specific evidentiary ruling in this case, made before the jury was empanelled, was not considered to be an interlocutory judgment that finally resolved a substantive question.
The Court expressed regret that the trial had been adjourned to accommodate the permission hearing, observing that such an adjournment, leading to the loss of a trial date, was disproportionate to the nature of the application. The Court ultimately determined that the ruling did not constitute an interlocutory judgment for the purposes of s 157 of the *Criminal Procedure Act 1921* (SA), and therefore, permission to appeal could not be granted.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Initially, the application came on urgently. On the morning of 5 March 2024, counsel for the Director contacted the President’s chambers to enquire about the potential for an expedited hearing of an application for permission to appeal in the Court of Appeal. The Court was advised that the previous day, during the course of a trial in the District Court before the jury was empanelled, the trial judge had delivered a ruling that certain evidence was inadmissible. The ruling addressed the admissibility of evidence pursuant to s 34P(2), as well as whether the Crown should be granted permission to adduce evidence pursuant to s 67F of the Evidence Act 1929 (SA) (the EvidenceAct). After being advised that the matter was likely to be mentioned before the trial judge later that day and before the trial resumed the following morning, the Court told the parties that it was prepared to hear the Director’s application for permission to appeal later that day at 2.15 pm on 5 March 2024. However, before the matter was called on before the Court of Appeal, the Court was told that the trial had already been adjourned to a directions hearing on 15 April 2024. The Court was told that the adjournment was granted because the permission hearing was listed before the Court of Appeal. That is regrettable. Realistically, this six-day jury trial can, even with priority, only be re-listed toward the end of this year. Merely because the Director seeks permission to appeal does not mean that permission will be granted, still less that the appeal will succeed. Indeed, even if permission was granted and the appeal allowed, an adjournment may not have been necessary. An adjournment which ensured the loss of the trial date should not have been sought or granted. A short adjournment over the course of an afternoon or perhaps a day, as originally envisaged, was sufficient. Entertaining a Director’s interlocutory appeal must be seen as an exception to the ordinary course that criminal proceedings, once commenced, continue to verdict.[1] In R v Rolfe the High Court described the fragmentation of criminal proceedings as “highly undesirable”.[2] It is in the public interest, as well as in the interests of the accused and the complainant, that criminal proceedings involving serious charges, once commenced, be heard expeditiously and not be unduly fragmented or delayed. [1] R v Marshall [2023] SASCA 105, [96] (Livesey P, David JA and Kimber AJA), citing Sankey v Whitlam (1978) 142 CLR 1, 26 (Gibbs ACJ), in turn citing Shapowloff v Dunn [1973] 2 NSWLR 468, 470 (Jacobs P, as he then was). See also WCM v Western Australia [2015] WASCA 55, [11].[2] R v Rolfe (2021) 273 CLR 413, [32]. See Sankey v Whitlam (1978) 142 CLR 1; Yates v Wilson (1989) 168 CLR 338; R v Elliott (1996) 185 CLR 250; Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120; and Obeid v The Queen (2016) 90 ALJR 447.Disposition of the application for permission under s 157 of the CPA Permission can only be granted if this Court is satisfied that what is sought to be appealed is an “interlocutory judgment” and permission to appeal should be granted under either of the two limbs of s 157(3) of the CPA.
Decision
Reasons for decision
The context in which the right to seek permission to appeal arises is important.[7] That context includes the limited opportunities offered to the prosecution and the defence to pursue interlocutory appeals under the CPA, as well as the Court’s reluctance to entertain any interlocutory appeal which may delay or fragment criminal proceedings.[8] [7] In R v Marshall it was observed that, despite the recommendations of the Royal Commission, no additional funding or resources have been made available to accommodate these ad hoc, urgent hearings within the ordinary listing practices of the Court of Appeal, where lists and hearing dates are finalised months ahead of the hearings and where the Court is presently listing appeals in October 2024, R v Marshall [2023] SASCA 105, [74], [83] (Livesey P, David JA and Kimber AJA).[8] R v Marshall [2023] SASCA 105, [5], [49] (Livesey P, David JA and Kimber AJA).Interlocutory judgment or order On the question of what was encompassed within the composite phrase, “interlocutory judgment”, in R v Marshall the Court referred to the well-recognised distinction between a judgment or order that finally resolves a substantive question or issue, and a merely incidental decision, ancillary to the making of a judgment or order:[9]There is a well-recognised distinction between a judgment or order that finally resolves a substantive question or issue and a merely incidental decision or ruling which is made in the course of, and ancillary to, the making of a judgment or order.[10] The typical conclusion to a criminal proceeding is the entry of a final judgment or order, such as a conviction or acquittal, following a verdict of guilty or not guilty.[11] Once a criminal trial is concluded, the trial court usually has no further role to play in the determination of guilt.[12] Short of a final judgment, a range of rulings may result in orders which determine substantive questions or issues in litigation. By contrast, examples of merely incidental rulings include rulings made about an adjournment, about objections to questions asked in the course of evidence, and about the admissibility of a document or other evidence. What should or should not be included in a charge to the jury provides another example. Many of these could be described as decisions relating to incidental legal, evidentiary or procedural matters.Whilst the distinction is usually clear, it is not always easy to draw. The clearest example of a ruling that may not necessarily be clear is provided by an evidentiary ruling. At one level, all evidentiary rulings decide something which is in contest. However, some may be so routine and, relatively speaking, unimportant that they are unlikely to have any real influence on the conduct of the prosecution or the defence. They do not decide substantive questions or issues. They do not have the character of a judgment or order. They are properly regarded as incidental, akin to rulings on practice and procedure. By contrast, other evidentiary rulings may have a very important bearing on the conduct of the prosecution or the defence. This latter kind of evidentiary ruling may, and often will, be the subject of a formal hearing devoted to the argument and judicial determination of the substantive evidentiary question which is in contest. The pronouncement made by the court may result in a ruling which is, or is at least akin to, a formal order.[9] R v Marshall [2023] SASCA 105, [90]-[93] (Livesey P, David JA and Kimber AJA).[10] Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, 127 (King CJ).[11] It is the trial judge who must enter a judgment for conviction or acquittal following the verdict of the jury, NH v Director of Public Prosecutions (SA) (2016) 260 CLR 546, [76]-[78]; [99]-[100].[12] R v Pacitti [2022] SASCA 108, [8]-[18].