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Court of Criminal Appeal 22 May 2002

Regina v Li

[2002] NSWCCA 215

Other

Citation: Regina v Li [2002] NSWCCA 215
Court: NSW Court of Criminal Appeal
Date: 22 May 2002
Judge(s): Ipp AJA, Burchett AJ, Dunford J

Background

The appellant was facing a criminal prosecution in the District Court. Before trial, he applied to the trial judge, Shadbolt DCJ, for a permanent stay of the indictment to be presented against him. That application was dismissed.

The appellant then sought to challenge that dismissal by appealing to the Court of Criminal Appeal before the trial proceeded. Because the decision under challenge was an interlocutory one (that is, a ruling made during the course of proceedings rather than a final verdict), leave to appeal was required under s 5F(3)(a) of the Criminal Appeal Act 1912.

  • Whether leave to appeal should be granted under s 5F(3)(a) of the Criminal Appeal Act 1912 in respect of an interlocutory decision refusing a permanent stay of an indictment
  • Whether the trial judge erred in dismissing the permanent stay application
  • Whether the interests of justice required the Court of Criminal Appeal to intervene before trial

Decision

The Court of Criminal Appeal refused leave to appeal. Burchett AJ, who delivered the leading judgment, noted that the appellant's own counsel conceded that the factual findings made by Shadbolt DCJ were open to him on the evidence. Those findings had been reached after hearing oral evidence and lengthy cross-examination, and they led directly to the dismissal of the stay application.

The Court applied the reasoning from Regina v Matovski (1989) 15 NSWLR 720, in which Gleeson CJ had confirmed that leave to appeal against an interlocutory criminal judgment requires both an absence of error and a demonstration that the interests of justice demand intervention. Where the trial judge's factual findings were plainly open, no such case for intervention arose.

The appellant's counsel argued that leaving the interlocutory decision undisturbed would impede the applicant's defence at trial. Burchett AJ rejected that submission. In those circumstances, granting leave would not generally be appropriate, and the court unanimously declined to do so.

Orders Made

  • Leave to appeal refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed that leave to appeal against an interlocutory criminal decision will not ordinarily be granted where the trial judge's factual findings were open on the evidence and no error of law or discretionary principle is demonstrated.
  • Under s 5F(3)(a) of the Criminal Appeal Act 1912, an applicant seeking leave to appeal an interlocutory ruling must establish both an error below and that the interests of justice require appellate intervention before trial.
  • A concession by counsel that the trial judge's factual findings were open to him is, in itself, a significant obstacle to obtaining leave to challenge an interlocutory decision.
  • The argument that an unreviewed interlocutory ruling will impede a defendant's trial defence is not, without more, a sufficient basis for leave to appeal at the interlocutory stage.
  • Regina v Matovski (1989) 15 NSWLR 720 remains the applicable authority in this Court governing the exercise of the leave discretion for interlocutory appeals in criminal proceedings.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), s 5F(3)(a)

Cases
- Regina v Matovski (1989) 15 NSWLR 720