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10
Court of Criminal Appeal 18 November 1999

REGINA v CHENG

[1999] NSWCCA 373

Also reported as (1999) 48 NSWLR 616
DrugsPublic order & justice offences
CRIMINAL LAW CRIMINAL APPEAL ACT 1912 S5F STATUTORY INTERPRETATION "INTERLOCUTORY JUDGMENT OR ORDER" CRIMINAL APPEAL ACT 1912 S5F

Citation: [1999] NSWCCA 373; reported at 48 NSWLR 616
Court: Court of Criminal Appeal, New South Wales
Date: 18 November 1999
Judge(s): Spigelman CJ; Dunford J; Kirby J

Background

The accused was charged in the District Court with conspiracy to manufacture a prohibited drug. At the close of the Crown's case, defence counsel submitted there was no case to answer. The trial judge agreed, finding there was "no evidence beyond reasonable doubt of shared intention," identified as a critical element of the conspiracy charge. The judge concluded that no reasonable jury could properly convict and indicated he would direct the jury to return a verdict of not guilty.

The Crown moved urgently to appeal before the jury was directed or any verdict entered. The jury had not been discharged, and the trial was stood over pending this Court's determination.

The Crown argued that the trial judge's ruling was an "interlocutory judgment or order" within the meaning of s 5F(2) of the Criminal Appeal Act 1912, which permits the Director of Public Prosecutions to appeal against such orders without needing leave.

  • Whether the Court of Criminal Appeal had jurisdiction under s 5F(2) of the Criminal Appeal Act 1912 to hear the Crown's appeal.
  • Whether the trial judge's ruling on the no-case submission constituted an "interlocutory judgment or order" within the meaning of that section.
  • Whether, absent explicit statutory language, s 5F(2) extended to a direction to acquit given by a trial judge.

Decision

Spigelman CJ, with whom Dunford and Kirby JJ agreed, dismissed the appeal for want of jurisdiction. The Chief Justice identified the central question as whether the trial judge's ruling fell within the phrase "interlocutory judgment or order" in s 5F(2).

The Court accepted the Crown's submission that the test for whether a decision is "interlocutory" turns on legal effect rather than practical reality, drawing on established authority including Licul v Corney and Port of Melbourne Authority v Anshun (No 1). However, the Chief Justice held that the word "interlocutory" could not be assessed in isolation from a fundamental principle of statutory interpretation: Parliament does not intend to modify fundamental common law rights or principles except by clear and unambiguous language.

The principle that the Crown has no right of appeal against an acquittal is, Spigelman CJ observed, too firmly established to be displaced by general words. A direction to acquit by a trial judge amounts to an acquittal in substance, and only explicit legislative language could extend s 5F(2) to cover such a direction. The language of s 5F(2) does not meet that standard.

Dunford J added that, at the point of the Crown's appeal, the trial judge had reached a conclusion but had not yet made any order or entered any judgment. The only order that would follow was a final judgment of acquittal, which is not subject to appeal. Until that point, no "order or judgment" had in fact arisen from the ruling.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A judge's ruling on a no-case submission, made before the jury is directed and before any verdict is entered, does not constitute an "interlocutory judgment or order" for the purposes of s 5F(2) of the Criminal Appeal Act 1912.
  • The principle that the Crown has no right of appeal against an acquittal is a fundamental common law principle, and general statutory language will not be read as abrogating it without clear and unambiguous expression of that intent.
  • Under the approach confirmed in this decision, courts apply a legal-effect test when characterising decisions as interlocutory or final, but that test operates alongside broader principles of statutory interpretation, not instead of them.
  • Dunford J's reasoning adds a further, independent basis: where a judge has delivered reasons but has not yet directed the jury or discharged the accused, there is no "order or judgment" in existence capable of being appealed.
  • In dismissing the appeal, the Court drew a distinction between the ruling in R v Bozatsis & Spanakakis (where all prosecution evidence was excluded before any case was made) and a situation where the Crown has presented its case and the judge finds it legally insufficient.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(2)

Cases
- Bropho v Western Australia (1990) 171 CLR 1
- Jago v District Court of New South Wales (1989) 168 CLR 23
- Licul v Corney (1976) 50 ALJR 439
- Port of Melbourne Authority v Anshun (No 1) (1980) 147 CLR 35
- Potter v Minahan (1908) 7 CLR 277
- R v Bozatsis & Spanakakis (1997) 97 ACrimR 296
- R v Lethlean (1995) 83 ACrimR 197
- R v Snow (1915) 20 CLR 315
- Rohde v Director of Public Prosecutions (1986) 161 CLR 119
- Southern Cross NL v All Risks Insurance Company Limited (No 2) (1990) 21 NSWLR 200
- Thompson v Mastertouch TV Service Pty Ltd (1978) 38 FLR 397
- Wall v The King; Ex parte The King & Won & Wah On (No 1) (1927) 39 CLR 245