Slape v The Queen - [2021] SASCA 121

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
SLAPE v THE QUEEN
[2021] SASCA 121
Judgment of the Court of Appeal (ex tempore)
(The Honourable President Livesey and the Honourable Justice David)
14 October 2021
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWER TO BRING APPEAL - FROM INTERLOCUTORY OR ANTECEDENT JUDGMENT OR ORDER
The applicant sought leave to appeal, out of time, against a ruling made by an Auxiliary Judge of the District Court on 3 September 2021, refusing to sever the charges concerning two complainants on an Information dated 2 March 2021.
The applicant commenced an appeal before the trial was listed to start on 25 October 2021, contending that the ruling concerned an issue antecedent to trial within the meaning of s 151 of the Criminal Procedure Act 1921 (SA).
No application for a stay on the ground of abuse was made to the trial court and permission to appeal was not sought from the trial court. However, after the appeal was filed a stay application was made in the District Court.
Held, (the Court) dismissing the appeal as incompetent:
1.The appeal is incompetent because no application for a stay on the ground of abuse was made to the trial court and permission to appeal was not sought from the trial court as required by s 157(1)(d)(i) of the Criminal Procedure Act 1921 (SA).
2.There is no right of appeal and no basis upon which to seek permission to appeal from this Court. In any event, permission to appeal would be refused by this Court as it is inappropriate to fragment the litigation.

Criminal Procedure Act 1921 (SA) ss 151, 157, 158; Evidence Act 1929 (SA) s 34P; Supreme Court Criminal Rules 2014 s 108, referred to.
R v Barrie (2012) 218 A Crim R 448; R v Fuller (No 2) (1997) 92 A Crim R 245; R v Sexton (2000) 76 SASR 534, considered.

SLAPE v THE QUEEN
[2021] SASCA 121
Court of Appeal – Criminal: Livesey P and David JA
THE COURT:
Introduction

There is some urgency associated with this ruling because the applicant’s trial is scheduled to commence in Mount Gambier on 25 October 2021.
By notice of appeal dated 28 September 2021 the applicant seeks permission to appeal, out of time, pursuant to r 108 of the Supreme Court Criminal Rules 2014 (SA) (the Rules) against a ruling made by an auxiliary judge of the District Court on 3 September 2021, refusing to sever the charges concerning two complainants on an Information dated 2 March 2021.
The Director contends that the appeal is not reasonably arguable, and the notice is incompetent, and asks that the notice of appeal be struck out.
Earlier today this Court was provided with a “Rule 49 Application” dated 14 October 2021. We shall return to that.
The Criminal Procedure Act 1921
Speaking generally, the…

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 Slape v The Queen

Details

AGLC: Slape v The Queen [2021] SASCA 121
Case: [2021] SASCA 121
Decision Date: 14 October 2021

CaseChat Overview and Summary

In *Slape v The Queen*, the applicant, Slape, sought to appeal a ruling made by an Auxiliary Judge concerning the severance of charges. The appeal was brought before the Court of Appeal of South Australia.

The central legal issue before the Court of Appeal was the competence of Slape's appeal against the severance ruling. Specifically, the court had to determine whether the appeal was properly brought, considering the requirements of the *Criminal Procedure Act 1921* (SA) and the inherent powers of the Court of Appeal.

The Court of Appeal found the appeal to be incompetent. It reasoned that Slape had not sought a stay of proceedings from the trial court on the grounds of abuse, nor had he obtained permission to appeal from the trial court as mandated by section 157(1)(d)(i) of the *Criminal Procedure Act 1921* (SA). The court further held that there was no statutory right of appeal from such an interlocutory decision, nor a basis to seek permission to appeal directly from the Court of Appeal. Even if permission could have been sought, it would have been refused due to the inappropriateness of fragmenting the litigation. Consequently, the appeal was dismissed as incompetent.

Orders

Orders of the court

Held, (the Court) dismissing the appeal as incompetent:

1. The appeal is incompetent because no application for a stay on the ground of abuse was made to the trial court and permission to appeal was not sought from the trial court as required by s 157(1)(d)(i) of the Criminal Procedure Act 1921 (SA).

2. There is no right of appeal and no basis upon which to seek permission to appeal from this Court. In any event, permission to appeal would be refused by this Court as it is inappropriate to fragment the litigation.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

We say nothing about whether the severance ruling by the Auxiliary Judge might nonetheless later be challenged if there is a conviction at the conclusion to the trial.Conclusion The notice of appeal is incompetent and must be struck out. It need not be determined whether that is pursuant to s 158(6)(c) of the Act,[4] or the inherent powers of this Court.[4] That provision provides: “If an appeal is brought against a decision on an issue antecedent to trial, the Court of Appeal may exercise any one or more of the following powers … it may make any consequential or ancillary orders that may be necessary or desirable in the circumstances”. Whilst there is clearly no right of appeal, we convene today so as to put to rest any question that permission to appeal can be obtained from this Court; there is no right of appeal, no basis upon which to seek permission to appeal from this Court and, even if there were, permission would be refused because it is inappropriate to fragment this litigation. The applicant’s appeal is dismissed.

Ratio Decidendi

Legal Principle Established

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