THAI v POLICE

[2007] SASC 235

Supreme Court of South Australia

(Magistrates Appeals: Criminal)

THAI v POLICE

[2007] SASC 235

Judgment of The Honourable Justice David (ex tempore)

22 June 2007

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - GENERALLY

Criminal law – Magistrates Appeal – appeal against finding of a case to answer – trial part-heard – whether a finding of a case to answer can be appealed when the matter is part-heard – consideration of s 42 of the Magistrates Court Act 1991 (SA) – a finding of a case to answer is not a final judgment – no special reason why matter should be dealt with prior to determination of case – appeal dismissed.

Magistrates Court Act 1991 (SA) s 42; Criminal Law Consolidation Act 1935 (SA) s 5G(2)(b), s 140, referred to.

THAI v POLICE
[2007] SASC 235

DAVID J. (ex tempore)

1. This is an appeal pursuant to s 42 of the Magistrates Court Act 1991 (SA) against a ruling by a magistrate that there was a case to answer.

2. The appellant is charged with 21 counts of dishonest dealings with documents, contrary to s 140 of the Criminal Law Consolidation Act 1935 (SA). He has pleaded not guilty. At the end of the prosecution case at his trial, the appellant’s counsel submitted that as a matter of law there was no case to answer in relation to all counts and the matter should be dismissed at that stage. The basis of the application was that there was no jurisdiction to hear the matter in South Australia. The argument involved a question as to whether the necessary territorial nexus existed and involved consideration of s 5G(2)(b) of the Criminal Law Consolidation Act. The magistrate found that in relation to all of the counts, except one, taking the evidence of the prosecution at its highest, the necessary territorial nexus did exist and there was a case to answer.  In relation to one of the counts (count 2) he found that there was no case to answer and dismissed that count.  The matter was then adjourned to a further date for completion of the trial.

3. In the meantime, the appellant appeals against the ruling of the magistrate that there was a case to answer in relation to the 20 counts.  Before going into the merits of the matter, there is an argument that this appeal is not competent.

4. Section 42 of the Magistrates Court Act in dealing with the question of appeals says:

   42—Appeals

   (1)     A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).

   (1a)   An appeal does not, however, lie against an interlocutory judgment unless—

   (a)the judgment stays the proceedings; or

   (b)the judgment destroys or substantially weakens the basis of the prosecution case and, if correct, is likely to lead to abandonment of the prosecution; or

   (c)the Court or the appellate court is satisfied 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 and grants its permission for an appeal.

   …

   The applicant argues that because the decision made was a question of law, it is appealable. In my view, that is clearly not the case. The decision to find that there was a case to answer was not a final judgment. It was, in effect, an interlocutory judgment. As such, the applicable subsection is s 42(1)(a). If the magistrate had found that there was no case to answer and he dismissed the charges, that would be a final judgment and would be appealable. This is not the case.

5. In my view, s 42(1a)(c) does not apply, as there is no special reason why this matter should not be dealt with at the determination of the case when all the evidence has been heard. In my view, the matter is still part-heard and the appeal, at this stage, is incompetent.

6. As the matter is part-heard, it is not appropriate for me to delve into or deal with the substantive merits.  Accordingly I dismiss the appeal.