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Court of Criminal Appeal 5 October 2001

R v Potier

[2001] NSWCCA 404

Public order & justice offences

Citation: R v Potier [2001] NSWCCA 404
Court: NSW Court of Criminal Appeal
Date: 5 October 2001
Judge(s): Studdert J (with Wood CJ at CL and Bell J agreeing)

Background

The applicant faced two charges of soliciting murder in the District Court, contrary to s 26 of the Crimes Act. The Crown alleged he had solicited an undercover police officer to murder his former de facto partner and her current partner, in the context of ongoing Family Court custody proceedings involving their child. The alleged solicitations occurred across two in-person meetings and two telephone conversations in May 2000, all of which were recorded by way of concealed listening devices and telephone intercepts, each authorised by appropriate warrants.

Before the trial proceeded, the applicant raised a voir dire (a preliminary hearing on admissibility, conducted before the jury is involved). He sought to have the undercover officer's evidence excluded on the basis that it was unlawfully or improperly obtained, and also sought to exclude Crown transcripts of the recordings, arguing the poor quality of the audio made reliance on transcripts unfair.

The trial judge, Hosking DCJ, ruled against the applicant on both points and gave reasons on 25 September 2001. The applicant then came to the Court of Criminal Appeal, appearing in person, seeking to challenge those evidentiary rulings before the trial concluded.

  • Whether the trial judge's evidentiary rulings constituted an "interlocutory judgment or order" within the meaning of s 5F of the Criminal Appeal Act, so as to give the Court of Criminal Appeal jurisdiction to hear an appeal at that stage.
  • Whether leave to appeal under s 5F(3)(a) should be granted in the absence of a certificate from the trial judge under s 5F(3)(b).

Decision

The Court refused leave to appeal. The central question was whether a ruling on evidence, made by the trial judge in advance of or during the trial, qualifies as an "interlocutory judgment or order" for the purposes of s 5F. The Criminal Appeal Act does not define the phrase, but the Court found the answer well settled by a line of authority.

In R v Powch (1988), the Court of Criminal Appeal held that a ruling concerning a witness's recall for cross-examination was procedural in character and fell outside the concept of an interlocutory order under s 5F. In R v Edelsten (1989), a pre-trial admissibility ruling on tape recordings was likewise held not to constitute an interlocutory order. These principles were confirmed and extended in R v Steffan (1993), where the Court concluded comprehensively that any ruling on evidence, whether made before or during trial, does not fall within the meaning of s 5F.

Studdert J, with whom Wood CJ at CL and Bell J agreed, applied that settled line of authority directly. The rulings the applicant sought to challenge were plainly rulings on evidence, and no basis existed to treat them differently. The Court also reiterated the broader policy principle, drawn from R v Groves, that fragmenting criminal trial proceedings through interlocutory appeals is undesirable and that s 5F should be confined to its proper, narrow scope.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • A ruling on the admissibility of evidence, whether made before or during a criminal trial in either the District Court or the Supreme Court, is not an "interlocutory judgment or order" within the meaning of s 5F of the Criminal Appeal Act and cannot found an appeal to the Court of Criminal Appeal at that stage.
  • The Court of Criminal Appeal confirmed the principle from R v Steffan (1993): the absence of a statutory definition of "interlocutory judgment or order" in the Criminal Appeal Act does not open the door to characterising evidence rulings as appealable interlocutory orders.
  • Refusing leave to appeal, the Court reaffirmed the strong institutional interest in avoiding fragmentation of criminal trials through pre-verdict appellate intervention.
  • Under s 5F(3), an applicant who lacks a trial judge's certificate must obtain leave from the Court of Criminal Appeal, but the threshold question of jurisdiction must be resolved before leave can be meaningfully considered.
  • In cases where the trial judge was not the one who gave the impugned evidentiary ruling, as occurred in R v Edelsten, the outcome under s 5F remains the same: the nature of the ruling, not the identity of the judge who made it, is what determines appealability.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act (NSW), s 5F
- Crimes Act (NSW), s 26

Cases Cited
- R v Groves (unreported, NSWCCA, 2 April 1990)
- Sergi v DPP (unreported, NSWCA, 10 September 1991)
- R v Powch (1988) 14 NSWLR 136
- R v Edelsten (1989) 18 NSWLR 213
- R v Steffan (1993) 30 NSWLR 633