Citation: R v Pera [1999] NSWCCA 348
Court: Court of Criminal Appeal, New South Wales
Date: 6 September 1999
Judge(s): Meagher JA, James J, Sperling J
Background
During a criminal trial in the District Court at Campbelltown, the trial judge (Keleman DCJ) made evidentiary rulings under sections 114 and 115 of the Evidence Act. The practical effect of those rulings was to prevent the Crown from proceeding with any realistic prospect of success in the prosecution.
In response, the Crown lodged an appeal to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912, which permits the Crown (but not the accused) to appeal certain interlocutory rulings. Despite the Crown having commenced that appeal, the trial judge indicated he intended to proceed with the trial immediately.
The Crown then brought an urgent Notice of Motion seeking a stay of the trial until the Court of Criminal Appeal heard and determined the section 5F appeal.
Legal Issues
- Whether the Crown had a right to appeal the trial judge's evidentiary rulings under section 5F of the Criminal Appeal Act 1912
- Whether the trial, listed to commence that same morning, should be stayed to preserve the Crown's right of appeal
- Whether the Court of Criminal Appeal had discretion to grant such a stay in the circumstances
Decision
Meagher JA, with James J agreeing, held that the Crown was entitled to appeal under section 5F. The trial judge's stated intention to proceed with the trial despite the pending appeal appeared, in Meagher JA's view, to reflect a misapprehension that no such statutory right existed. Without a stay, the Crown's appeal would become entirely nugatory.
Sperling J agreed with the orders but expressed the reasoning somewhat more narrowly. His Honour declined to state that a trial judge would always err by refusing to adjourn in every case where a section 5F appeal had been lodged. In the particular circumstances, however, the Crown had at least an arguable case on appeal, and that factor was sufficient to warrant the exercise of the Court's discretion to grant the stay.
All three judges agreed that the stay was necessary to preserve the Crown's opportunity to have the evidentiary determination reviewed. The Court made the orders sought in the Notice of Motion.
Orders Made
- The Notice of Motion was returnable instanter (immediately, without prior notice)
- The trial before Keleman DCJ in the District Court at Campbelltown, listed for 10:00am on 6 September 1999, was stayed until the Court of Criminal Appeal heard and determined the Crown's section 5F application
- Service of the Court's orders was permitted by facsimile to the Registrar of the District Court Campbelltown
Key Takeaways
- Under section 5F of the Criminal Appeal Act 1912, the Crown holds a statutory right to appeal interlocutory evidentiary rulings, a right that does not extend to an accused person
- Where a Crown section 5F appeal would be rendered nugatory by a trial proceeding in the meantime, the Court of Criminal Appeal can exercise its discretion to stay the trial
- The Court of Criminal Appeal confirmed that the arguability of the Crown's appeal was a relevant and sufficient factor supporting the grant of a stay in this instance
- Sperling J's reasons introduce a degree of caution: the decision does not establish that a trial court will always err by refusing to adjourn whenever a section 5F appeal has been lodged, leaving room for discretion in different factual circumstances
- Evidentiary rulings under sections 114 and 115 of the Evidence Act that effectively foreclose a prosecution can enliven the Crown's right to seek interlocutory appellate review
Legislation and Cases Referenced
Legislation:
- Evidence Act (NSW), sections 114 and 115
- Criminal Appeal Act 1912 (NSW), section 5F
Cases cited: No specific cases were cited in the judgment.