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Court of Criminal Appeal 7 September 2001

Regina v O'MEARA

[2001] NSWCCA 340

Also reported as 124 A Crim R 493
Fraud & dishonesty
PRACTICE AND PROCEDURE ERROR IN COMMITTAL PROCEEDINGS

Citation: Regina v O'Meara [2001] NSWCCA 340
Court: NSW Court of Criminal Appeal
Date: 7 September 2001
Judge(s): Sheller JA, Sully J, Dowd J

Background

The applicant was charged with four counts of defrauding the Commonwealth under the federal Crimes Act 1914. During committal proceedings in the Local Court, a Magistrate admitted witness statements into evidence over the applicant's objection. The applicant argued the statements were inadmissible because the procedural requirements in ss 48B and 48D of the Justices Act 1902 (NSW) had not been followed.

On 15 June 2001, the Magistrate committed the applicant for trial in the Sydney District Court on all four charges. The applicant filed an application for leave to appeal three days later, seeking to challenge the evidentiary ruling under s 5F of the Criminal Appeal Act 1912.

The central question that emerged at the hearing was not whether the evidence was admissible, but whether the Court of Criminal Appeal had any jurisdiction to grant the relief sought at all.

  • Whether the Court of Criminal Appeal had jurisdiction under s 5F of the Criminal Appeal Act 1912 to entertain an appeal against an evidentiary ruling made during committal proceedings for a Commonwealth offence
  • Whether a committal order constitutes an interlocutory order (which could attract s 5F) or a decision of an administrative character
  • Whether s 9 of the Commonwealth's Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) operated to strip NSW courts of jurisdiction to review the committal decision

Decision

The Court dismissed the application unanimously, finding it had no jurisdiction to entertain the applicant's claim.

Sheller JA, with whom Sully J and Dowd J agreed, held that the only effective remedy for the alleged evidentiary error would have been an order setting aside or staying the committal order. Whatever form the application took, in substance the applicant was seeking review of that order. A ruling on admissibility of evidence is not itself an interlocutory judgment or order within the meaning of s 5F, as this Court had previously held in Steffan v R (1993) 30 NSWLR 633.

Section 9 of the ADJR Act provides that, notwithstanding any other Act, a State court has no jurisdiction to review a decision of an administrative character made under a Commonwealth enactment. A committal order is not an interlocutory order. It is a decision of an administrative character, as confirmed by the Federal Court in Lamb v Moss (1983) and accepted in this Court's earlier decision in R v Buckett (1992). Because the applicant was charged with Commonwealth offences, the committal was made under a Commonwealth Act, satisfying the further requirement of s 9.

The relief the applicant sought, namely an order effectively quashing or staying the committal, constituted a "review" within the meaning of the ADJR Act. That term covers orders of the same or similar nature or effect as prerogative relief such as certiorari or prohibition. The Court accordingly had no jurisdiction and the application had to be dismissed.

Orders Made

  • Application dismissed.

Key Takeaways

  • A committal order is a decision of an administrative character, not an interlocutory judgment or order, and this distinction has direct consequences for which courts can review it.
  • Section 9 of the Commonwealth's Administrative Decisions (Judicial Review) Act 1977 operates to exclude NSW State courts from reviewing committal decisions made under Commonwealth legislation, regardless of what the application is formally called.
  • Where a person is committed for trial on a Commonwealth offence, the committal falls within the scope of the ADJR Act because it is made under a Commonwealth enactment, even though State procedural law governs the mechanics of the committal.
  • An evidentiary ruling made during committal proceedings is not itself an interlocutory order for the purposes of s 5F of the Criminal Appeal Act 1912, confirming the position established in Steffan v R.
  • In dismissing the application, the Court of Criminal Appeal applied R v Buckett, reinforcing that the jurisdictional bar in s 9 of the ADJR Act applies consistently to Commonwealth committal proceedings regardless of the procedural vehicle used to mount the challenge.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Justices Act 1902 (NSW), ss 48B, 48D
- Crimes Act 1914 (Cth), s 29(d)
- Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3, 9
- Judiciary Act 1903 (Cth), s 68

Cases:
- R v Buckett (1992) 61 A Crim R 49 (NSWCCA)
- Lamb v Moss (1983) 76 FLR 296
- Steffan v R (1993) 30 NSWLR 633 (NSWCCA)