R v Piper

[2005] NSWCCA 134

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:      REGINA  v  TONIA PIPER [2005]  NSWCCA 134

FILE NUMBER(S):
No. 394 of 2005

HEARING DATE(S):               07/04/2005

JUDGMENT DATE: 07/04/2005

PARTIES:
REGINA  v  TONIA PIPER

JUDGMENT OF:       Spigelman CJ Studdert J Greg James J   

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S):          

LOWER COURT JUDICIAL OFFICER:     Hosking DCJ

COUNSEL:
Crown-D.Frearson SC, J.Girdham
Respondent-R.Hulme SC, H.Allan

SOLICITORS:

CATCHWORDS:
Criminal law - interlocutory appeal by Crown - challenge to ruling on admissibility - not a judgment or order - appeal incompetent.

LEGISLATION CITED:
Mental Health (Criminal Procedure) Act, 1990
Crimes Act 1900
Criminal Appeal Act 1912

DECISION:
Appeal dismissed

JUDGMENT:

IN THE COURT OF

CRIMINALAPPEAL

No. 394 of 2005

SPIGELMAN CJ

STUDDERT, J.

GREG JAMES, J.

THURSDAY 7 APRIL2005

REGINAv  TONIA PIPER

JUDGMENT

1. SPIGELMAN CJ:I invite Greg James J to deliver the first judgment.

1. GREG JAMES J:  Relying upon s 5F (2), the Director of Public Prosecutions seeks to appeal against what is asserted to be an interlocutory judgment or order given or made in proceedings in the District Court of New South Wales during a trial by judge alone of the respondent on an indictment containing one count that she drove dangerously, causing the death of Ms Fallow and on another count that she, by driving dangerously caused grievous bodily harm to Carl Wong.

1. The learned trial judge embarked upon a voir dire, notwithstanding that he was sitting as a judge alone, on the admissibility of evidence sought to be tendered by the defence, which evidence in particular, so it was said, was tendered to support a defence of mental illness, the defence referred to in s 38 of the Mental Health (Criminal Procedure) Act, 1990.  His Honour considered the Crown's objection that the evidence was irrelevant to a charge of the kind faced by the respondent since that offence, so it was asserted, was an offence of "strict liability", that is to say, it was an offence in which there was no active fault element to be proved by the Crown as existing in the mind of respondent at the time of the commission of the acts or omissions causing the death and the injury asserted i.e. a specific intent.

1. His Honour in an extensive judgment examined the question of whether the defence of mental illness might apply to such offences.  He expressed his views of the task he was undertaking at page 2 of that judgment:

   "At this stage I am simply determining the admissibility of certain psychiatric evidence following the giving of that evidence on the voir dire.  This issue of admissibility arises because the Crown contends that the evidence is not relevant to any issue in the trial and is therefore inadmissible."

2. Reference was made throughout the judgment to the Crown's contention that the defence is not available in respect of such offences.  At page 3 in his Honour's judgment appears the following:

   “In these circumstances the Crown says that what I will refer to, for short, as the psychiatric evidence is irrelevant ... The Crown contends that the psychiatric evidence is only relevant to the question of the accused’s lack of a guilty intent and that because the Crown does not have to prove any guilty intent, simply an intent to drive the vehicle, the evidence is not relevant to any issue in the trial."

3. During the judgment there was reference made to prior decided cases on the issue of insane automatism. One could be forgiven for thinking, following the judgment of this Court in R v S [1979] 2 NSWLR 1, that insane automatism is a species of the mental illness defence to which s 38 refers. Not withstanding, reference was made in the trial judge’s decision to a dearth of authority on the point but I note there would appear, after research, to be further authorities than those referred to in the decision and further authorities than those cited to us, in particular the decision of the English Court of Appeal in R vAndrew Michael Hennessy (1989) 89 CAR 10.

4. However, as the matter has come before us objection has been taken to the competence of the purported Crown appeal. In that regard, our attention has been drawn to a line of cases in this Court, concluding with the decision in R v Adamson (31 January 2005) NSWCCA 7, which was an application for leave to appeal pursuant to the provisions of s 5F(3).

1. Section 5F(3) relates to applications for leave to appeal by other parties to criminal proceedings. In that case the applicant had raised the ambit of the legal doctrines relating to intoxication and particularly had raised a question on what is sometimes referred to as the defence of intoxication and its relationship to specific intent in the light of s 428C of the Crimes Act 1900. 

1. The trial judge had ruled that the applicant could not rely on the defence of intoxication in relation to the charges before him.  He had rejected tendered evidence.  The court held that he had made no order and that his reasons for decision did not constitute a judgment, notwithstanding that it was argued, as it is argued here, that his determination of the application of the legal doctrine involved a final legal ruling on a discrete legal controversy.  It was even suggested in that case that the judge, although sitting in the criminal jurisdiction, had given a declaration but the Court of Criminal Appeal held, that had not occurred.

2. That decision sat squarely within a long line of authority, which included R v Steffan (1993) 30 NSWLR 633 and R v Neil Joseph Lethlean (1995) 83 A Crim R 197, in which latter decision are set out a number of the cases concerning rulings on the admissibility of evidence being held not to found a right of appeal under s 5F(2) or (3). Particularly those cases include: Powch (1988) 14 NSWLR 136; Rogerson (1990) 45 A Crim R 253 and Steffan (supra). In Lethlean (supra), the court's attention was drawn to an early seminal case in the High Court of Australia R vSnow (1915) 20 CLR 315, concerning what was said to be an error at trial and its ability to be corrected by the High Court. On an application for special leave regard was had to the terms "judgment or order" in legislation and in the Constitution. The Court of Criminal Appeal held, consonant with that decision that a ruling on admissibility does not answer the statutory requirements for appeal under section 5F (3).

3. In R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 the Crown brought an appeal pursuant to s 5F (2) against what were said to be interlocutory judgments or orders, and the court examined, in some detail, the ambit of the term "judgment or order". Allowing for a rare case where a ruling on evidence, which might form the basis of a stay of proceedings, or would have the effect of determining the fate of the prosecution case, as being possibly the subject of a s 5F appeal, the court held that a mere ruling lacks the quality of finally determining the rights of the parties such as to partake of being a judgment or order. It held that it is only where the Crown is effectively refused the opportunity to make a case against a respondent that such a decision is properly to be categorised as a judgment or order coming within the scope of s 5F(2). That decision and the line of authority that was examined in Lethlean (supra) to me makes clear that what occurred here, even though the trial judge was examining the ambit of a legal doctrine possibly applicable, was concerned with the rejection or admission of evidence in the defence case, so that his decision did not fall within any such exception to how rulings on evidence are to be regarded so that the right of appeal for which the Crown contends under s 5F(2) exists.

1. The Criminal Appeal Act 1912, does provide in s 5A for points of law to be stated by the judge in the event of either an acquittal or a conviction and for those points to be determined by this Court in a particular way and in particular circumstances.  The co-existence of that provision with s 5F speaks against s 5F(2) or (3) being interpreted as they apply to interlocutory judgments or orders in a way that would be wider in ambit than this Court has hitherto held.

1. In my view this Court should remain within the flood of authority on the point and in particular should be concerned to avoid the discontinuity in criminal trials which will occur if there are to be applications to this Court on questions of admissibility or on general questions of a what legal doctrine a judge should or should not apply, in mid-trial.

1. Section 5F(3)(a) makes provision for there to be, in appropriate circumstances, an application to the Court.  That is not, however, the provision upon which reliance is placed here        In my view the appeal should be dismissed as incompetent.

1. SPIGELMAN CJ: I agree

1. STUDDERT J: I also agree

1. SPIGELMAN CJ: The order of the court is as indicated by Greg James J.

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LAST UPDATED:     13/04/2005