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Court of Criminal Appeal 7 April 2005

REGINA v TONIA PIPER

[2005] NSWCCA 134

Traffic & driving
CRIMINAL LAW INTERLOCUTORY APPEAL BY CROWN CHALLENGE TO RULING ON ADMISSIBILITY NOT A JUDGMENT OR ORDER APPEAL INCOMPETENT.

Citation: Regina v Tonia Piper [2005] NSWCCA 134
Court: Court of Criminal Appeal, New South Wales
Date: 7 April 2005
Judge(s): Spigelman CJ, Studdert J, Greg James J

Background

The respondent faced trial in the District Court on an indictment alleging dangerous driving causing death and dangerous driving causing grievous bodily harm. During the trial, conducted by judge alone, the defence sought to tender psychiatric evidence in support of a mental illness defence under s 38 of the Mental Health (Criminal Procedure) Act 1990.

The trial judge conducted a voir dire (a preliminary hearing to determine the admissibility of evidence) to rule on whether the psychiatric evidence was admissible. The Crown argued the evidence was irrelevant because the charges were offences of strict liability, meaning no mental fault element needed to be proved, and so evidence directed at the respondent's mental state could not be relevant to any issue in the trial.

The trial judge, in an extensive judgment, examined whether a mental illness defence could apply to such offences and ruled on the admissibility of the psychiatric evidence. The Crown then sought to appeal that ruling to the Court of Criminal Appeal under s 5F(2) of the Criminal Appeal Act 1912, which permits Crown appeals against interlocutory judgments or orders.

  • Whether the trial judge's ruling on the admissibility of psychiatric evidence constituted an "interlocutory judgment or order" within the meaning of s 5F(2) of the Criminal Appeal Act 1912, so as to found a right of Crown appeal.
  • Whether any exception applied where an evidentiary ruling effectively determines the fate of the prosecution case, bringing it within the scope of s 5F(2).

Decision

The Court of Criminal Appeal unanimously dismissed the appeal as incompetent. Greg James J, with whom Spigelman CJ and Studdert J agreed, held that the trial judge's ruling was concerned with the admissibility of evidence in the defence case. Such a ruling does not constitute a "judgment or order" for the purposes of s 5F(2).

The court applied a long line of authority, including R v Steffan, R v Lethlean, Powch, Rogerson, and most recently R v Adamson, all of which confirmed that rulings on admissibility do not satisfy the statutory requirements for an interlocutory appeal. The court noted this principle traces back to the High Court's consideration of the terms "judgment or order" in R v Snow (1915) 20 CLR 315.

An exception had been recognised in R v Bozatsis and Spanakakis, where a ruling might effectively deprive the Crown of any opportunity to make out its case against the respondent. However, Greg James J found that the ruling here, which concerned evidence in the defence case, did not come within that narrow exception. The trial judge's examination of the legal doctrine governing the mental illness defence did not transform the ruling into a judgment or order of the kind envisaged by s 5F(2).

The court also observed that the Criminal Appeal Act 1912 separately provides, in s 5A, for points of law arising after acquittal or conviction to be stated and referred to the Court of Criminal Appeal. The co-existence of that mechanism with s 5F reinforced a construction of s 5F that does not extend to mid-trial evidentiary rulings. The court expressed particular concern about the disruption to criminal trials that would follow if such rulings routinely founded interlocutory appeals.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A trial judge's ruling on the admissibility of evidence during a criminal trial does not constitute an "interlocutory judgment or order" within s 5F(2) of the Criminal Appeal Act 1912, and therefore cannot found a Crown interlocutory appeal.
  • The Court of Criminal Appeal confirmed the narrow exception recognised in R v Bozatsis and Spanakakis: only where a ruling effectively denies the Crown any opportunity to make out its case might such a decision qualify as a judgment or order under s 5F(2). That exception did not apply here.
  • In dismissing the appeal, the Court reinforced that courts should guard against mid-trial disruption arising from interlocutory appeals on questions of admissibility or applicable legal doctrine.
  • The existence of s 5A of the Criminal Appeal Act 1912, providing a separate mechanism to refer points of law following verdict, supports a restrictive reading of s 5F as it applies to interlocutory matters.
  • A ruling examining whether a particular legal doctrine, such as the mental illness defence, applies to specific charges does not become a judgment or order simply because it involves a final determination of a discrete legal controversy.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5A, 5F(2), 5F(3)
- Mental Health (Criminal Procedure) Act 1990 (NSW), s 38
- Crimes Act 1900 (NSW), s 428C

Cases:
- R v S [1979] 2 NSWLR 1
- R v Andrew Michael Hennessy (1989) 89 CAR 10
- R v Adamson (31 January 2005) NSWCCA 7
- R v Steffan (1993) 30 NSWLR 633
- R v Neil Joseph Lethlean (1995) 83 A Crim R 197
- Powch (1988) 14 NSWLR 136
- Rogerson (1990) 45 A Crim R 253
- R v Snow (1915) 20 CLR 315
- R v Bozatsis and Spanakakis (1997) 97 A Crim R 296