Sutcliffe v Director of Public Prosecutions

[2003] VSCA 34

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 6562 of 2000

BRIAN ANDREW SUTCLIFFE

Appellant

v.

DIRECTOR OF PUBLIC PROSECUTIONS

(On behalf of Michael Jay Pena)

Respondent

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JUDGES:	PHILLIPS, BUCHANAN and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 April 2003
DATE OF ORDER:	7 April 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 34

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A. Nicholson	Wilson Potter Nicholson
For the Respondent	Mr J.D. McArdle Q.C.	Ms K. Robertson, Solicitor for Public Prosecutions

PHILLIPS, J.A.: 

1. On 4 May 2001 Brian Andrew Sutcliffe filed notice of appeal from an order made in the Trial Division on 1 March 2001, the time for appeal having been extended on his application.  On 1 March 2001 a judge had allowed an appeal by the Director of Public Prosecutions on behalf of the prosecutor, an appeal brought under s.92 of the Magistrates' Court Act 1989 from an order made by the Magistrates' Court on 24 July 2000, dismissing a charge against Mr  Sutcliffe for stalking.  Stalking is an offence created by s.21A of the Crimes Act 1958.

1. When the appeal was called on for hearing this morning counsel for Mr Sutcliffe described his client as “the applicant" accepting, as he had to, that he needed leave to appeal before the appeal could be regarded as properly on foot.  That was because when the appeal under s.92 of the Magistrates' Court Act 1989 was allowed the judge had made an order not only setting aside the order of dismissal below, but also directing that the matter be remitted to the Magistrates' Court for determination according to law.

1. No application for leave to appeal has yet been filed but as counsel said he was ready to make the application we allowed the application to be made ore tenus.  This was subject to objection by the respondent, and we chose to hear the argument before ruling on the objection.  The application for leave to appeal is opposed.

1. In order to obtain leave to appeal, Mr Sutcliffe needs to establish an arguable case of error in the judge's decision and also that it would be unjust to allow that decision to stand unreversed if in fact tainted by error.  We have heard, albeit in short form, from both counsel about the possibility of error below but, as will appear, whatever doubt I myself may have about the argument being propounded by the applicant, there is no need for me to say anything more about it. For the principal difficulty in granting leave to appeal lies elsewhere, it seems to me.

1. As recorded in the judge's reasons for judgment, the parties were proceeding in the Magistrates' Court upon an agreed set of facts in respect of which no admissions whatsoever were made on the part of the defendant, Mr  Sutcliffe.  It was on those agreed facts that the magistrate expressed herself as not satisfied that "this Court has jurisdiction to proceed with this charge of stalking".  It is an essential element of the offence, she observed, "that any course of conduct engaged in, by the defendant, actually did have the effect of arousing apprehension or fear in the victim for her personal safety", yet on the agreed statement of facts this "can only have occurred in Canada".  (The complainant, it appears, was resident in that country).  The magistrate continued that, there being "nothing to displace the presumption that a penal statute will be taken not to have extraterritorial operation", the charge fell to be dismissed.

1. On the Director’s appeal to the judge under s.92, the decision of the magistrate was set aside, as I have said, and the matter remitted for hearing and determination according to law.  His Honour was of opinion, not only that the Magistrates' Court had jurisdiction, but also that, on the agreed facts, the conduct of the defendant, within Victoria, was sufficient to establish an offence under s.21A on its proper construction.  In his Honour's view the matter was not so much a question of jurisdiction as one of construction of the statute and, from what has been said to us this morning, that appears now to be common ground.

1. As I see it, the difficulty in granting leave to appeal lies in the fact that the parties have thus far been proceeding upon an agreed statement of facts.  Nothing has yet been established against the defendant, for no admissions have been made and no evidence has yet been led.  While it might have been appropriate, and I offer no opinion on it, for an appeal to be brought under s.92 to the Trial Division, it seems to me altogether different when one of the parties insists upon re-litigating the issues in the Court of Appeal.

1. As a general rule this Court sets its face not only against the fragmentation of criminal proceedings but also against the expression of an advisory opinion.  That, it seems to me, is what is being sought here.  In my opinion it is time now for the parties to go into evidence and to establish the facts upon which this matter depends. 

Until they have done so, I cannot see how this proceeding can be characterised otherwise than as an application for an advisory opinion.

1. To return to the test by which leave to appeal is commonly granted or refused.  In my opinion there can be no injustice in allowing the decision below to stand unreversed while the facts remain undetermined.  It will be time to consider the correctness or otherwise of the decision given in the Trial Division if, when the facts have been found, the defendant is convicted, and if, should a further appeal be carried to the Trial Division, the judge then sees fit to follow and apply the decision given on 1 March 2001.  But at this stage the basis upon which the applicant seeks to have us proceed seems to me to be wholly academic. 

1. For that reason I would refuse leave to appeal.

BUCHANAN, J.A.: 

1. I agree.

CHERNOV, J.A.:

1. I also agree.

PHILLIPS, J.A.:

1. The order of the court is application for leave to appeal dismissed with costs.  The appeal is dismissed as incompetent.

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