R v Gergis No. Sccrm-98-111 Judgment No. S6726

[1998] SASC 6726

R  v  GERGIS

Court of Criminal Appeal:  Doyle CJ, Williams and Bleby JJ

DOYLE CJ

This is an application for leave to appeal against conviction.  The applicant was convicted of armed robbery and related offences.  Leave to appeal against conviction was granted by Mullighan J on one ground, but refused on another ground.

By application dated 19 May 1998, the applicant applied to have determined by the Full Court his application for leave to appeal against conviction.

The application was considered in private pursuant to Rule 15(7) of the Supreme Court Criminal Appeal Rules.

The application was considered by a court comprising me, Williams and Bleby JJ.

The ground upon which the application was made involves a challenge to findings made by the trial judge on the voire dire.  Bearing in mind the advantages of the judge who heard the evidence, and the nature of the challenges to his findings, in our opinion there is no realistic prospect of the challenge to his decision succeeding.

Accordingly, for that reason, we would refuse leave to appeal on the ground upon which the applicant seeks leave to appeal.

There is also an application for an order that witnesses attend the court on the hearing of the appeal.  The application is not in an appropriate form.  It refers to a “surveillance squad”.  An order could not be made in those terms.  The order would have to name the witnesses to be called.  The application appears to relate to evidence given at the tria, and not at the voire dire, and so may be relevant to a ground upon which leave has been given.  However, whether the case is one in which it is appropriate to order that the witnesses attend cannot be determined at this stage, because of the lack of adequate information in support of the application.  The information given so far is insufficient to justify the making of the order.  There does not appear to be any power in the Act or the Rules for a single judge to determine the application that witnesses attend a court.  We consider that there is no alternative other than to have the court consider the matter when the grounds of appeal upon which leave has been given come before it.  Accordingly, it seems to us that no decision can be made at this stage upon the application for an order that witnesses attend the hearing.

The order of the court is that leave to appeal be refused on the ground on which Mullighan J refused leave to appeal.

The application for an order that witnesses attend on the hearing of the appeal is referred to the court that hears the appeal on the ground on which leave to appeal was granted.

Meantime, the Chief Justice directs that the application be listed before a single judge for directions to be given to ensure that the court has adequate information to deal with the application in due course.