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Court of Criminal Appeal 16 December 2002

R v Lavender

[2002] NSWCCA 511

Homicide
CRIMINAL LAW EVIDENTIARY RULING THIS SUBMISSION NOT PUT TO TRIAL JUDGE NO INTERLOCUTORY JUDGMENT OR ORDER APPEAL DISMISSED. ND

Citation: R v Lavender [2002] NSWCCA 511
Court: NSW Court of Criminal Appeal
Date: 16 December 2002
Judge(s): Giles JA; James J; Hidden J

Background

The appellant faced charges of manslaughter and culpable driving arising from a fatal incident at a sand mining site. During a lunch break, he drove a front-end loader into an area of regenerating bushland in pursuit of a group of trespassing boys. One of the boys, Michael, was concealed in that bushland and was killed when the loader ran over him.

The Crown pursued the manslaughter charge on two alternative bases: first, that the death resulted from an unlawful and dangerous act (specifically an assault); and second, criminal negligence. On the unlawful and dangerous act basis, the Crown argued it was not necessary to prove that Michael himself was put in fear, but rather that one of the other boys was put in fear, thereby establishing the assault.

During trial in the District Court before Coolahan DCJ, the Crown called evidence from Aaron, another boy present at the scene, as to his state of mind when he saw the loader enter the bushland. The trial judge ruled this evidence admissible and, over the Crown's objection, issued a certificate under s 5F(3)(b) of the Criminal Appeal Act 1912 certifying the ruling as appropriate for interlocutory appeal. The appellant then appealed to the Court of Criminal Appeal.

  • Whether the trial judge's evidentiary ruling constituted an "interlocutory judgment or order" within the meaning of s 5F of the Criminal Appeal Act 1912, so as to ground the appeal
  • Whether the evidence of Aaron's state of fear was admissible in support of the Crown's unlawful and dangerous act case, including whether the assault need be directed at the deceased
  • Whether the appellant's argument about the Crown's inability to establish mens rea for manslaughter rendered Aaron's evidence irrelevant and therefore inadmissible

Decision

The Court of Criminal Appeal dismissed the appeal, finding that it lacked the necessary jurisdictional foundation. Despite the trial judge having issued a certificate under s 5F(3)(b), the Court held that the issuance of such a certificate does not, of itself, transform what occurred into an interlocutory judgment or order. The requirement that there actually be an interlocutory judgment or order is a precondition to the appeal right under s 5F(3), not merely a matter of form.

The Court confirmed the established position that a ruling on the admissibility of evidence is not, as a general rule, an interlocutory judgment or order for s 5F purposes. While an exception exists where a ruling effectively excludes all or substantially all of the prosecution's evidence, thereby bringing the Crown case to nothing (as recognised in R v Bozatsis and Spanakarkis (1997) 97 A Crim R 296), that exception had no application here. The trial judge's ruling was, on its face, a conventional admissibility ruling made in the course of the Crown presenting its case.

The appellant's primary argument before the Court of Criminal Appeal was that Aaron's evidence was irrelevant because the Crown's case on mens rea could not otherwise succeed, making the evidence inadmissible on that basis. However, the Court noted this argument had never been put to the trial judge. The trial judge made no ruling or order in relation to it, and accordingly there was no judicial act capable of grounding an appeal under s 5F. Whether the Crown could ultimately sustain its case, and whether the evidence as a whole could support the case going to the jury, were described as entirely separate matters falling outside the scope of the present appeal.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A trial judge's certificate under s 5F(3)(b) of the Criminal Appeal Act 1912 is a necessary but not sufficient condition for an interlocutory appeal: the judicial act in question must itself constitute an interlocutory judgment or order.
  • As a general rule, a ruling on the admissibility of evidence does not amount to an interlocutory judgment or order for the purposes of s 5F.
  • The exception recognised in R v Bozatsis and Spanakarkis applies only in the somewhat exceptional circumstances where an evidentiary ruling has the practical effect of excluding all or substantially all of the Crown's evidence, effectively ending the prosecution case.
  • An argument not raised before the trial judge cannot form the basis of an interlocutory appeal under s 5F, because no judgment or order will have been made in respect of it.
  • In dismissing the appeal, the Court made clear that questions about whether the Crown's case was sufficient to go to the jury remained entirely open and were not determined by the ruling under challenge.

Legislation and Cases Referenced

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

Cases:
- R v Bozatsis and Spanakarkis (1997) 97 A Crim R 296