(The Honourable President Livesey, the Honourable Justice David and the Honourable Justice Kimber)
27 September 2023
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 maintaining an unlawful sexual relationship with two children under s 50 of the Criminal Law Consolidation Act 1935 (SA).
On a hearing conducted pursuant to s 131 of the Criminal Procedure Act 1921 (SA) (CPA), the primary judge ruled that the accounts of the two complainants were not cross-admissible and ordered that each count be separately tried pursuant to s 102 of the CPA.
The Director of Public Prosecutions (SA) seeks permission to pursue an interlocutory appeal against the ruling pursuant to ss 157(1)(e) and 157(3) of the CPA.
As an alternative, the Director sought judicial review of the primary judge’s order.
HELD (the Court) granting permission to appeal and allowing the appeal:
1.Section 157(1)(e) must be seen as an important new right of appeal concerning interlocutory judgments made in a criminal proceeding that can only be exercised by the DPP with permission granted pursuant to s 157(3) of the CPA.
2.The order that there be separate trials is an “interlocutory judgment” within the meaning of s 157(1)(e) of the CPA, with the result that the Director’s appeal is competent.
3.The case concerns serious charges, each carrying maximum penalties of life imprisonment. The order is of real importance to the prosecution of these charges. If there should be one trial rather than two it is in the public interest to order one trial. It is preferable that the charges be prosecuted with the benefit of rulings on cross-admissibility and severance which are free from error and in accord with the law. On balance, it is “otherwise in the interests of justice” to entertain the DPP appeal in this matter pursuant to s 157(3)(b) of the CPA.
4.The primary judge erred in finding that the probative value of the evidence did not outweigh its prejudicial effect on a similarity of account basis pursuant to s 34P(2)(a) of the Evidence Act 1929 (SA). The charges should be tried together.
5.Observations made about what kinds of decisions comprise an “interlocutory judgment”, as distinct from incidental rulings about evidence or procedure, and about the requirements for permission to appeal.
6.Consideration given to the Criminal Justice Report produced by the Royal Commission into Institutional Responses to Child Sexual Abuse and interstate interlocutory appeal provisions.
7.Observations made about the effect of the removal of the word “substantially” from s 34P(2)(a) of the Evidence Act 1929 (SA).
8. The Director’s application…
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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Details
AGLC
R v Marshall [2023] SASCA 105
Case
[2023] SASCA 105
Decision Date
CaseChat Overview and Summary
The Director of Public Prosecutions (SA) sought permission to appeal an order made by a District Court judge directing separate trials for each count against the respondent, Mr Marshall. The Director's ability to appeal this order depended on whether it constituted an "interlocutory judgment" under section 157(1)(e) of the Criminal Procedure Act 1921 (SA). The Court of Appeal considered whether granting permission to appeal was in the interests of justice, given its usual reluctance to entertain interlocutory appeals that could delay or fragment criminal proceedings.
The central legal issue before the Court of Appeal was whether the District Court judge's ruling, which determined that the evidence of each complainant was not cross-admissible under section 34P of the Evidence Act 1929 (SA) and consequently ordered separate trials, qualified as an "interlocutory judgment" for the purposes of an appeal. This determination was crucial for establishing the competence of the Director's appeal.
The Court reasoned that while the term "interlocutory judgment" is not defined in the Criminal Procedure Act and lacks an established legal meaning in this context, the ruling on cross-admissibility and separate trials was not merely an incidental evidentiary or procedural matter. Instead, it determined a substantive question concerning the joinder of counts and the conduct of the trial. The Court found that such a ruling could be considered an "interlocutory judgment" within the meaning of section 157(1)(e) of the Criminal Procedure Act. Furthermore, the Court concluded that, in the specific circumstances of this case, it was in the interests of justice to grant permission to appeal. The Court held that the evidence of each complainant was indeed cross-admissible under section 34P(2)(a) of the Evidence Act on the grounds of improbability or similarity of account, often referred to as "coincidence" reasoning.
Consequently, the Court of Appeal granted permission to appeal, allowed the appeal, and ordered that the counts be tried together. The Director's alternative application for judicial review was dismissed.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
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Evidence
Evidence Before The Court
On 31 March 2023, a District Court judge ruled that the evidence of each complainant was not cross-admissible and did not have a permissible use under s 34P of the Evidence Act 1929 (SA) (the Evidence Act). In consequence, the primary judge ordered that each count be separately tried. By a notice of appeal dated 21 April 2023, the Director of Public Prosecutions (SA) (DPP or Director) seeks permission to appeal that order. The appeal is not competent unless the order made on 31 March 2023 comprised an “interlocutory judgment” within the meaning of s 157(1)(e) of the Criminal Procedure Act 1921 (SA) (the CPA). Whether permission to appeal should be granted depends upon whether the Court of Appeal is satisfied that the case comes within one of the two limbs of s 157(3) of the CPA, failing which permission to appeal cannot be granted. As will be seen, the order that there be separate trials is an “interlocutory judgment” within the meaning of s 157(1)(e) of the CPA. This Court is usually reluctant to entertain any interlocutory appeal or reservation of a question in a criminal case, whether by the prosecution or by the defence, particularly where it challenges an incidental evidentiary or procedural ruling and entertaining the appeal has the effect of delaying and fragmenting the criminal proceeding.[1] Nonetheless in the particular circumstances of this case it is, on balance, “otherwise in the interests of justice” under s 157(3)(b) of the CPA to entertain this interlocutory appeal against the order that there be separate trials. Permission to appeal should be granted.[1] In Sankey v Whitlam (1978) 142 CLR 1, 25-26 Gibbs ACJ referred to a “regrettable example of the delay that can be caused by departures from the normal course of procedure”. See also The Queen v Elliott (1996) 185 CLR 250; Police v Dorizzi (2002) 84 SASR 416; Holder v Lewis (2003) 231 LSJS 431; Application for Reservation of Questions of Law (No 1 of 2017) [2017] SASCFC 90, [9] (Nicholson, Parker and Lovell JJ), “… the power to direct a judge to reserve a question of law during the course of a criminal trial is only to be exercised in unusual or exceptional circumstances. Undue fragmentation of or interference with the conduct of a criminal trial is to be avoided”; and Bell v The King [2023] SASCA 86, [24] (Lovell, David JJA and Stanley AJA), regarding the power to refer questions for consideration and determination by the Court of Appeal under s 153 of the CPA. For the reasons that follow, the appeal should be allowed. The evidence of each complainant was cross-admissible under s 34P(2)(a) of the Evidence Act on the ground of improbability or similarity of account reasoning.[2] There should be an order that the counts be tried together.[2] That is, what might be described as “coincidence” reasoning under the Uniform Evidence Acts. The DPP made an application for judicial review, which was pressed only as an alternative to the interlocutory appeal. As will be seen, it is appropriate to dismiss that application.
Decision
Reasons for decision
Although the Director ultimately only relied only on the second limb, s 157(3)(b), it is necessary to consider the meaning and content of the first limb, s 157(3)(a), as part of the process of construing the scope and operation of the provision as a whole. The meaning of “interlocutory judgment” – competence of this appeal It is first necessary to address whether the ruling made by the primary judge can properly be described as an “interlocutory judgment” and, in consequence, whether the Director’s appeal is competent. The composite term “interlocutory judgment” is not defined in the CPA. The term is new to the CPA. It has no “established legal meaning” in this context which must be applied or displaced when determining its meaning according to orthodox principles of statutory construction.[74] Those principles require that consideration be given to the operation of this term as part of the whole provision, which extends to the scope for granting permission. [74] Cf Baini v The Queen (2012) 246 CLR 469, [43]. For the purposes of determining this appeal, it is not necessary to reach any final conclusion on what is, or is not, an “interlocutory judgment” within the meaning of s 157(1)(e). It will be necessary to address the meaning of that term on a case-by-case basis as cases arise for decision. Nonetheless, some general observations should be made. The ordinary meaning of the word “judgment” embraces a judicial decision on a substantive question or issue in contest between the parties and which concludes a proceeding or some identifiable part of it. It is difficult indeed to distinguish between a judgment and an order. In most contexts, they will carry the same meaning. Both a judgment and an order are capable of being seen as a judicial decision on a substantive question or issue which concludes at least a part of a proceeding. 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.[75] [75] Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126, 127 (King CJ). 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.[76] Once a criminal trial is concluded, the trial court usually has no further role to play in the determination of guilt.[77] 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.[76] 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].[77] R v Pacitti [2022] SASCA 108, [8]-[18].