AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 16 May 2001

R. v. SINANOVIC

[2001] NSWCCA 217

Fraud & dishonesty
CRIMINAL LAW AND PROCEDURE INTERLOCUTORY JUDGMENT OR ORDER WHAT IS LEAVE TO APPEAL AGAINST WHEN GRANTED CRIMINAL APPEAL ACT 1912 S.5F(3)

Citation: R v Sinanovic [2001] NSWCCA 217
Court: NSW Court of Criminal Appeal
Date: 16 May 2001
Judges: Powell JA; Wood CJ at CL; Sully J

Background

The appellant had originally been convicted in the District Court in 1997 of fraudulently misappropriating money, and sentenced to a minimum term of two years and five months. He appealed against that conviction and several others arising from separate trials. In December 2000, the Court of Criminal Appeal upheld one appeal (relating to the misappropriation charge), quashed the conviction and sentence, and directed a new trial. The remaining appeals were dismissed, and an application for special leave to appeal to the High Court was refused in April 2001.

With the new trial approaching, various pre-trial interlocutory skirmishes arose before three different District Court judges. The appellant's wife had attempted to appear on his behalf. A notice of motion seeking to quash the indictment and stay the proceedings was filed and dismissed. An application to adjourn the hearing was also refused. The appellant, appearing in person in the Court of Criminal Appeal, sought leave to appeal against each of those three rulings.

  • Whether the refusal by Blanch CJ DC to allow the appellant's wife to appear on his behalf constituted an interlocutory judgment or order within the meaning of s 5F(3) of the Criminal Appeal Act 1912, so as to attract a right to seek leave to appeal
  • Whether Moore DCJ erred in law or principle in refusing the motion to quash the indictment and stay the proceedings
  • Whether Luland DCJ's refusal to adjourn the hearing gave rise to an arguable ground for leave to appeal

Decision

Powell JA (with whom Wood CJ at CL and Sully J agreed) refused leave to appeal in respect of all three matters.

On the first matter, the Court found that what occurred before Blanch CJ DC was not an interlocutory judgment or order at all. A review of the transcript showed that his Honour had done no more than fix a date, and had expressly left open the possibility that the appellant's wife could seek leave to assist at the substantive hearing before the trial judge. Because no ruling affecting the conduct of the trial had been made, the precondition for invoking s 5F(3) was simply not satisfied.

On the second matter, the Court reviewed Moore DCJ's reasons for dismissing the motion to quash the indictment and stay the proceedings. Powell JA found no error of law or principle on the face of that judgment, and accordingly there was no basis for granting leave.

On the third matter, the Court had access to the transcript of the adjournment application before Luland DCJ, including evidence that had been heard before his Honour declined the adjournment. The Court found no merit in the proposed appeal and declined to entertain it. The informal application advanced during the afternoon hearing was also not entertained.

Orders Made

  • Leave to appeal refused in each of the two formally listed matters (CCA 60250/01 and CCA 60251/01)
  • The informal application raised during the hearing was not entertained

Key Takeaways

  • Under s 5F(3) of the Criminal Appeal Act 1912, a pre-trial ruling must actually constitute an "interlocutory judgment or order" before leave to appeal can be sought; a directions hearing that merely fixes a date does not meet that threshold.
  • A ruling that goes no further than relating to the manner of conduct of a trial does not qualify as an interlocutory judgment or order for the purposes of s 5F (consistent with R v Powch (1988) 14 NSWLR 136 and R v Edelsten (1989) 18 NSWLR 213).
  • Where a party other than the Attorney General or Director of Public Prosecutions seeks leave to appeal an interlocutory order, the applicant must demonstrate error on the part of the presiding judge and that the error is of a nature warranting appellate intervention (applying R v Matovski (1989) 15 NSWLR 720).
  • No error of law or principle appearing on the face of a decision to refuse a stay is sufficient to defeat an application for leave to appeal against that decision.
  • Refusing an adjournment application is not, without more, a basis for interlocutory appeal; the Court found no merit in the application directed at Luland DCJ's refusal.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(3)
- Criminal Appeal Rules, r 5B

Cases
- R v Powch (1988) 14 NSWLR 136
- R v Edelsten (1989) 18 NSWLR 213
- R v Matovski (1989) 15 NSWLR 720