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Court of Criminal Appeal 27 November 2002

REGINA v VORHAUER

[2002] NSWCCA 483

Assault & violencePublic order & justice offences
CRIMINAL LAW APPEALS FROM INTERLOCUTORY DECISIONS

Citation: Regina v Vorhauer [2002] NSWCCA 483
Court: New South Wales Court of Criminal Appeal
Date: 27 November 2002
Judge(s): Spigelman CJ, Sully J, Kirby J

Background

The appellant faced serious criminal charges arising from events on 14 July 1999, when council officers and police attended her property to enforce a Land and Environment Court order requiring her to remove chickens. She was alleged to have resisted arrest, thrown a Molotov cocktail, and seriously injured two police officers with a knife.

The criminal proceedings were listed in the District Court. Before the matter reached trial, the appellant pursued multiple interlocutory applications in the District Court, raising a range of arguments grounded in constitutional law. Six notices of motion seeking leave to appeal against interlocutory District Court decisions came before the Court of Criminal Appeal.

The appellant appeared in person. The Crown opposed leave on all six motions, and the Attorney General of New South Wales intervened.

  • Whether leave to appeal against the interlocutory District Court decisions should be granted under s 5F of the Criminal Appeal Act 1912
  • Whether the interlocutory decisions had the requisite degree of finality to qualify as appealable under s 5F
  • Whether s 73 of the Commonwealth Constitution deprived State courts of jurisdiction to hear constitutional matters
  • Whether the constitutional arguments advanced, drawn from several High Court decisions, had any validity
  • Whether the criminal proceedings or judicial orders made in them were invalid on constitutional grounds
  • Whether local government bodies were unconstitutional
  • Whether an application to remove proceedings to the High Court and stay the District Court proceedings should succeed

Decision

Spigelman CJ, with Sully J and Kirby J agreeing, refused leave to appeal on all six notices of motion. The Chief Justice observed that the appeals were so plainly hopeless that leave should be refused on the ground of futility, without needing to resolve the finality question in every instance. The court noted that many of the constitutional arguments were, in the Chief Justice's words, based on "a profound ignorance of the law."

On the constitutional arguments, the court rejected each in turn. Section 73 of the Constitution confers appellate jurisdiction on the High Court but does not generate the various implications the appellant sought to draw from it. The court dismissed the argument that Parliament cannot modify common law rights at all, noting that the principle in Coco v The Queen is a rule of statutory construction, not a constitutional guarantee. The suggestion that proceedings against the appellant amounted to "treason" under the Crimes Act 1914 (Cth) was found to have no basis.

The argument that Plenty v Dillon invalidated the criminal proceedings was also rejected. That decision concerned trespass to land and was not relevant to the validity of the criminal proceedings themselves, though the court noted it might have implications for admissibility of evidence, a matter not before the court. The submission that only the High Court can determine constitutional issues was plainly wrong: s 77(iii) of the Constitution expressly permits Parliament to invest State courts with federal jurisdiction, and this has been done through s 39 of the Judiciary Act 1903 (Cth). The argument that local councils are unconstitutional because a constitutional referendum on local government failed was dismissed as without logic.

On the finality question, the court found that at least one of the decisions, the rejection of an application for additional witnesses and consequent vacation of the trial date, did not have the requisite degree of finality to constitute an interlocutory judgment or order under s 5F. Leave was refused both on futility grounds and on the basis that the relevant decision was not an order to which s 5F applied.

Orders Made

  • All six applications for leave to appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that leave to appeal against interlocutory decisions under s 5F of the Criminal Appeal Act 1912 will be refused where the proposed appeal is so plainly hopeless as to be futile, regardless of whether finality questions are resolved.
  • Section 73 of the Commonwealth Constitution, which confers appellate jurisdiction on the High Court, does not deprive State courts of jurisdiction to hear constitutional matters. The proposition that only the High Court can consider constitutional issues is incorrect.
  • Under s 77(iii) of the Constitution, Parliament may invest State courts with federal jurisdiction in constitutional matters, and has done so through s 39 of the Judiciary Act 1903 (Cth).
  • The rule of statutory construction in Coco v The Queen, that Parliament is presumed not to modify fundamental rights without clear expression, is not a constitutional guarantee limiting legislative power.
  • Interlocutory decisions lacking the requisite degree of finality, such as rulings on witness availability, fall outside the scope of s 5F and cannot ground a valid application for leave to appeal to the Court of Criminal Appeal.

Legislation and Cases Referenced

Legislation:
- Commonwealth Constitution, including ss 73, 75, 76, 77, 114, covering cl 5 of the Preamble
- Criminal Appeal Act 1912 (NSW), s 5F
- Judiciary Act 1903 (Cth), s 39
- Crimes Act 1914 (Cth), s 24AA(1)(a)

Cases:
- Coco v The Queen (1994) 179 CLR 427
- Plenty v Dillon (1991) 171 CLR 635
- R v Apostilides (1984) 154 CLR 563
- R v Glossop [2001] NSWCCA 165
- University of Wollongong v Metwally (1984) 158 CLR 447