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 121Court 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…
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- Slape v The Queen [2021] SASCA 121
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- [2021] SASCA 121
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CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
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