R v Marshall

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.