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 right of appeal conferred on a defendant by s 157 of the Criminal Procedure Act 1921(SA) (the Act) depends upon the existence of a conviction. The applicant however relies upon s 157(1)(d)(i) of the Act:
… if a court makes a decision on an issue antecedent to trial that is adverse to the defendant—
…the defendant may appeal against the decision before the commencement or completion of the trial with the permission of the court of trial (but permission will only be granted if it appears to the court that there are special reasons why it would be in the interests of the administration of justice to have the appeal determined before commencement or completion of the trial);
The appeal avenue provided by s 157(1)(d)(i) is an exception to the general rule. The applicant has contended that the ruling made in this case was “on an issue antecedent to trial”. However, that term is defined by s 151 of the Act as follows:
issue antecedent to trial means a question (whether arising before or at trial) as to whether proceedings on an information or a count of an information should be stayed on the ground that the proceedings are an abuse of process of the court …
It is not reasonably arguable that the ruling made in this case is an “issue antecedent to trial”. No application for a stay was made before the trial court on the ground that the proceedings are an abuse of process.
The traditional reluctance to permit fragmentation of the trial process may be discerned from the narrow meaning given to the term “issue antecedent to trial” as well as from the requirement to seek permission from the trial court. That permission will only be granted if it appears that there are special reasons why it is in the interests of the administration of justice to have the appeal determined, at least before the trial starts or is completed.
Permission to appeal under s 157(1)(d)(i) of the Act
The Full Court has held that the permission of the trial court is a condition precedent to pressing any appeal and, where it is refused, that refusal cannot be challenged in the Court of Appeal and the trial must proceed.[1] As Debelle J explained in R v Sexton:[2]
Once the trial judge has determined not to grant leave, the trial must then proceed and the defendant's ability to appeal against the decision on an issue antecedent to trial will only be available if he is convicted... viewed as a whole, it is apparent that the intention is not to delay the trial by appeals on issues antecedent to trial.
[1] R v Sexton (2000) 76 SASR 534, [9] (Debelle J with whom Lander and Nyland JJ agreed).
[2] R v Sexton (2000) 76 SASR 534, [9].
The applicant has not obtained permission from the trial court. That is an additional reason why this appeal is incompetent. Although the applicant says that he was advised by the Registry to seek permission pursuant to r 108 of the Rules, that advice cannot supplant the requirements of the Act. In the circumstances it is unnecessary to consider what might comprise “special reasons”.[3]
[3] R v Barrie [2012] SASCFC 124, [9] and see also R v Fuller (No 2) (1997) 92 A Crim R 245.
The Rule 49 Application
Earlier today the Rule 49 Application was supplied to this Court. There are two grounds raised: the first is based on an allegation of apprehended bias; and the second is based on an allegation of an abuse of process. These are put before the Court so as to show the issues that might be raised in support of the application for permission were it to be made before the trial Court or before this Court.
We deal with each of these contentions in turn. The allegation of apprehended bias is based on the contention that the Auxiliary Judge is privy to the evidence of both adult complainants and the DNA results as a consequence of ruling on severance. It is said that the defendant has a reasonable apprehension of bias that the Judge might not bring an impartial and prejudiced mind to the trial. This afternoon we were told that, despite the terms of the notice, it is not a separate ground but a reason why the stay application was not put before the Auxiliary Judge. Whatever the merit of that contention it falls outside the scope of an appeal under s 157(1)(d)(i) of the Act.
The allegation of abuse is based on the contention that the complainants are “only joined based on impermissible propensity reasoning”. Any question relating to impermissible propensity reasoning is a matter which has been addressed by the trial court. The prosecutor submitted to the Auxiliary Judge that the evidence of each complainant is also being led under s 34P(2)(a) of the Evidence Act 1929 (SA) to show the improbability of concoction.
In so far as the ruling was based on the usual principles relating to severance, in the circumstances of this case, that cannot be made the subject of a stay application. There is no arguable abuse of process and s 157(1)(d)(i) of the Act is not properly engaged.
This application had not been made and was not the subject of permission from the trial court by the time the appeal was lodged. This merely reinforces that the appeal is incompetent.
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.