R v Vorhauer - [2002] NSWCCA 483

CITATION: REGINA v VORHAUER [2002] NSWCCA 483

FILE NUMBER(S): CCA 60466/02; 60467/02; 60468/02; 60469/02; 60470/02; 60471/02

HEARING DATE(S): 27 November 2002

JUDGMENT DATE:
27 November 2002

PARTIES :

Regina
Florence Amelia and Lisa Amelia VORHAUER

JUDGMENT OF: Spigelman CJ at 1; Sully J at 54; Kirby J at 55

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 99/31/0438

LOWER COURT JUDICIAL
OFFICER : Payne DCJ; Kirkham DCJ; Twigg DCJ

COUNSEL : Appellants: (Florence) In Person
Crown: PJP Power SC
A-G NSW Intervening: R Pepper

SOLICITORS: Crown: S E O'Connor
A-G NSW Intervening: I V Knight

CATCHWORDS: CRIMINAL LAW - Appeals from interlocutory decisions - whether decisions appealed from had requisite degree of finality - where Constitutional issues raised were misconceived - where application for removal of proceedings to High Court and stay of District Court proceedings.

LEGISLATION CITED: Commonwealth Constitution
Criminal Appeal Act 1912
Judiciary Act 1903 (Cth)

CASES CITED:
Coco v The Queen (1994) 179 CLR 427
Plenty v Dillon (1991) 171 CLR 635
R v Apostilides (1984) 154 CLR 563
R v Glossop [2001] NSWCCA 165
University of Wollongong v Metwally (1984) 158 CLR 447

DECISION: Appeal dismissed.

60466-60471/02

SPIGELMAN CJ
SULLY J
KIRBY J
Wednesday 27 November 2002

REGINA v Florence Amelia and Lisa Amelia VORHAUER

Judgment

1 SPIGELMAN CJ: By order of Sheahan J in the Land and Environment Court of 22 March 1999 the Applicant, Florence Amelia Vorhauer was ordered to remove chickens from her property. On 14 July 1999 officers of the Tamworth Local Council and police officers attended at the property to implement the order. It is alleged in criminal proceedings against the Applicant that she resisted arrest on that day and used an offensive weapon and maliciously wounded two persons. It is alleged the Applicant threw a Molotov cocktail at the police and others and also inflicted serious injuries upon two policemen, using a Stanley knife.

2 Before the Court are six notices of motion (one of which contains four distinct matters) seeking leave to appeal against interlocutory judgments or orders of the District Court, pursuant to s5F of the Criminal Appeal Act 1912. By s5F(3), a party to proceedings may appeal to this court against an interlocutory judgment or order if this court gives leave, or if the court of trial certifies that the matter is a proper one for determination on appeal. There has been no such certificate. The issue of leave arises.

3 The Crown opposes leave in all cases. It submits that in many cases the decision made by the respective District Court judges does not have the requisite degree of finality. (See eg R v Glossop [2001] NSWCCA 165 at 18 per Sully J and the cases cited therein). In some instances this submission is correct. In other instances it is arguable. It is unnecessary to decide the case on this basis.

4 As will presently appear, in large measure, the notices of motion, both before the District Court and in this Court are…

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.

Continue reading R v Vorhauer

Details

AGLC: R v Vorhauer [2002] NSWCCA 483
Case: [2002] NSWCCA 483
Decision Date: 27 November 2002

CaseChat Overview and Summary

In the matter of R v Vorhauer, the defendant was appealing against certain interlocutory decisions made by the District Court of New South Wales. The crux of the dispute was whether the interlocutory decisions reached by the District Court had the necessary finality to warrant an appeal. Additionally, the defendant contended that the constitutional issues raised in the appeal were misconceived. The appeal also involved an application for the removal of the proceedings to the High Court and a request for the stay of the District Court proceedings.

The legal issues that the court had to address included determining whether the interlocutory decisions appealed from had the requisite degree of finality to be subject to an appeal. The court also needed to examine whether the constitutional issues raised in the appeal were misconceived. Furthermore, the court had to consider whether there were grounds to remove the proceedings to the High Court and whether there was justification to stay the District Court proceedings.

In its reasoning, the court found that the interlocutory decisions in question did not possess the requisite degree of finality to warrant an appeal. The court held that the appeal should be dismissed as the interlocutory decisions did not meet the criteria for finality. Additionally, the court found that the constitutional issues raised in the appeal were misconceived. The court concluded that there were no valid grounds for removing the proceedings to the High Court or staying the District Court proceedings. Therefore, the appeal was dismissed.

The court's final orders were to dismiss the appeal and to direct that the proceedings continue in the District Court of New South Wales.

Orders