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Court of Criminal Appeal 14 December 2004

Regina v Simon DAHER Regina v Tod TOCHEL

[2004] NSWCCA 458

Drugs
CRIMINAL LAW APPEAL

Citation: Regina v Simon Daher; Regina v Tod Tochel [2004] NSWCCA 458
Court: Court of Criminal Appeal, New South Wales
Date: 14 December 2004
Judge(s): Wood CJ at CL, Simpson J, Barr J

Background

Two applicants had been committed to the District Court for trial on charges that each had manufactured not less than the commercial quantity of methylamphetamine. Police found them heating a flask at their premises and seized it. Analysis of the flask's contents revealed 998.7 grams of preparation containing 23.1 per cent pure methylamphetamine.

Each applicant sought to argue that the commercial quantity threshold had not been met, on the basis that they would have had less than 250 grams of pure drug available for sale had manufacture been completed. This argument required challenging a prior decision of the Court of Criminal Appeal that a preparation containing any proportion of a prohibited drug falls within the statutory definition of that drug.

Defence counsel indicated frankly to the District Court that there was effectively no defence to the charge, and that guilty pleas would be entered. The sole question for the judge was whether the Crown could prove the commercial quantity. Both the defence and Crown told the judge they wished to test his view on appeal before proceedings advanced further. The judge delivered what he called a "judgment," expressed the opinion that the earlier Court of Criminal Appeal decision remained binding, and purported to certify the matter as appropriate for appeal under s 5F of the Criminal Appeal Act 1912.

  • Whether the District Court judge's ruling constituted a "judgment or order" for the purposes of s 5F of the Criminal Appeal Act 1912, so as to enliven a right to seek leave to appeal.
  • Whether the Court of Criminal Appeal had jurisdiction to entertain the applications in those circumstances.

Decision

Barr J, with whom Wood CJ at CL and Simpson J agreed, held that the applications were incompetent. The Criminal Appeal Act 1912 contemplates that appeal rights from District Court proceedings on indictment generally arise only once those proceedings are complete, through conviction, sentence, or acquittal. Section 5F provides the only avenue for interlocutory challenge during proceedings, but that provision does not extend to advisory opinions or advance rulings on questions of law.

The judge's determination was not, in Barr J's view, a "judgment" within the meaning of s 5F. All the judge had done was indicate to the parties what view he would take if the case proceeded on the evidence before him. No adverse order had been made against either applicant, and sentencing proceedings had never commenced.

Barr J observed that what the parties were effectively seeking was for the Court of Criminal Appeal to answer a question of law as though on a stated case. The Act contains no provision permitting a District Court judge to state a question of law for determination by the Court of Criminal Appeal in these circumstances, and the court had no power to entertain such a request under the guise of a s 5F appeal.

Orders Made

  • Applications dismissed.
  • Both matters remitted to the District Court.

Key Takeaways

  • Section 5F of the Criminal Appeal Act 1912 does not permit appeals against advisory opinions or advance rulings on questions of law made during the currency of proceedings on indictment.
  • A ruling that amounts to no more than an indication of how a judge would view the case if it proceeded to trial is not a "judgment or order" capable of founding a s 5F application.
  • The Court of Criminal Appeal confirmed that it has no jurisdiction to answer questions of law as though on a stated case where the Act provides no mechanism for such a referral.
  • A purported certification by a District Court judge under s 5F(3)(b) does not confer jurisdiction on the Court of Criminal Appeal if the underlying ruling does not constitute a judgment or order in the requisite sense.
  • Where no adverse order has been made and sentencing proceedings have not commenced, the preconditions for an interlocutory appeal under s 5F are not satisfied.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5, s 5A, s 5D, s 5F
- Drug Misuse and Trafficking Act 1985 (NSW), s 4

Cases:
- R v R (No. 2) (1990) 19 NSWLR 573
- R v Edelsten (1989) 18 NSWLR 213