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Court of Criminal Appeal 17 March 2000

Regina v Pera

[2000] NSWCCA 109

Assault & violence
CRIMINAL LAW AND PROCEDURE PRE TRIAL RULING IN DISTRICT COURT OTHER EVIDENCE AVAILABLE TO CROWN

Citation: Regina v Pera [2000] NSWCCA 109
Court: Court of Criminal Appeal, New South Wales
Date: 17 March 2000
Judge(s): Spigelman CJ, Grove J, Hidden J

Background

The respondent was charged in connection with a brawl that occurred in central Sydney in the early hours of 6 April 1997. A group of men, including the respondent, were involved in an altercation near the Criterion Hotel and then moved into the Hyde Park area, where a security guard was knocked unconscious and another man became involved in a fight.

Police stopped four men, including the respondent, nearby about an hour after the initial incident. A witness named Kazal was brought to the scene and identified all four men. Some months later, Kazal also identified the respondent from a photographic display.

Before trial in the District Court, Keleman DCJ ruled that he would exclude both the on-street identification and the later photographic identification. During the pre-trial proceedings, the Crown conceded that sufficient evidence remained to establish the respondent's guilt even without the identification evidence. The Crown then appealed to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912, challenging the evidentiary rulings.

  • Whether the Court of Criminal Appeal had jurisdiction under section 5F of the Criminal Appeal Act 1912 to hear a Crown appeal against a pre-trial ruling on the admissibility of identification evidence.
  • Whether the District Court's exclusion of the on-street and photographic identification evidence was correct, having regard to section 114 of the Evidence Act 1995.
  • Whether, without the excluded identification evidence, the Crown retained a sufficient case to proceed to trial.

Decision

The Court first addressed the threshold jurisdictional question: whether section 5F permitted a Crown appeal against a pre-trial evidentiary ruling. Drawing on the Court's earlier decisions in R v Steffan, R v Bozatsis, and R v Lissoff, Grove J outlined the governing principle. A pre-trial evidence ruling is not ordinarily an "interlocutory judgment or order" within the meaning of the Act. Section 5F jurisdiction is available only in rare cases where a ruling effectively destroys any real and practical prospect of the Crown presenting the substance of its case.

The Court found that this was not such a case. Even without the identification evidence, the Crown retained other evidence against the respondent: his clothing matched descriptions, he had injuries to his hands and head consistent with a fight, and he made a statement to police that the court regarded as significant in context. At a later interview, the respondent admitted being present at the events but denied participation. Grove J concluded that the Crown's concession before Keleman DCJ, that it could proceed without the identification evidence, was well-founded.

Because the exclusion of the identification evidence did not destroy the Crown's case, the ruling remained a discrete pre-trial evidentiary decision rather than a matter capable of engaging section 5F. The Crown appeal therefore did not lie, and all three judges agreed it should be dismissed.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Section 5F of the Criminal Appeal Act 1912 does not routinely permit Crown appeals against pre-trial evidentiary rulings in the District Court; jurisdiction arises only where the ruling, in a real and practical sense, destroys the Crown's ability to present the substance of its case.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed the principle from R v Lissoff that where a ruling merely weakens, rather than effectively destroys, the Crown case, the approach in R v Steffan applies and the appeal does not lie.
  • The character of the question decided and the effect of the decision are the critical considerations in determining whether a pre-trial ruling constitutes a "judgment or order" for the purposes of section 5F, as confirmed in R v Bozatsis.
  • A Crown concession during pre-trial proceedings, acknowledging that sufficient evidence exists independently of the contested material, is a weighty factor in assessing whether the jurisdictional threshold for a section 5F appeal has been reached.
  • Under section 114(2) of the Evidence Act 1995, identification evidence may be excluded unless reasonable grounds exist for not holding an identification parade; the on-street confrontation in this case was not treated as a compliant identification parade.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), section 5F
- Evidence Act 1995 (NSW), section 114 (including section 114(2))

Cases
- R v Steffan (1993) 30 NSWLR 633
- R v Bozatsis (1997) 97 A Crim R 296
- R v Lissoff (unreported, Court of Criminal Appeal, 22 November 1999)