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Court of Criminal Appeal 14 March 2005

REGINA v. ST. ALDER

[2005] NSWCCA 95

Other

Citation: Regina v St. Alder [2005] NSWCCA 95
Court: NSW Court of Criminal Appeal
Date: 14 March 2005
Judge(s): Adams J, Bell J, Hall J

Background

The applicant was charged under s 195(b) of the Crimes Act 1900 with maliciously damaging a dwelling house by fire. The Crown's case relied on expert evidence including DNA evidence, fire cause analysis, and blood pattern evidence recovered from the scene.

During committal proceedings in the Local Court, the applicant was absent on 17 September 2004 because he had been taken into custody on unrelated matters. His solicitor's firm was aware of this but had not sought to have him produced or to notify the court in advance. On that date, the Deputy Chief Magistrate proceeded with the cross-examination of three expert witnesses despite the applicant's absence, without any formal adjournment application being made by his solicitor.

The applicant sought an extension of time to file a notice of appeal under s 5F of the Criminal Appeal Act 1912, arguing that the magistrate erred in allowing evidence to be taken in his absence.

  • Whether the court should grant an extension of time to bring an appeal under s 5F of the Criminal Appeal Act 1912
  • Whether the Deputy Chief Magistrate's decision to proceed with taking evidence in the applicant's absence constituted an appealable interlocutory order or judgment
  • Whether the magistrate erred in the exercise of her discretion by effectively refusing an adjournment
  • Whether any substantial miscarriage of justice resulted from the applicant's absence on 17 September 2004

Decision

Hall J (with whom Bell J and Adams J agreed) acknowledged the threshold procedural uncertainties: it was not clearly established that a refusal to adjourn had actually been made, nor that any such refusal constituted an interlocutory judgment or order within s 5F. However, Hall J proceeded on the assumption that both conditions were satisfied, in order to assess the substantive merits.

Even accepting those assumptions, the applicant still needed to demonstrate that the magistrate had erred in a discretionary decision. The Court applied the well-established principle from House v The King (1936) 55 CLR 499 that appellate courts will intervene to correct discretionary decisions, such as adjournment rulings, only in rare cases.

Hall J found no identifiable prejudice to the applicant from the proceedings on 17 September. The cross-examination of the three expert witnesses was consistent with the earlier rulings on permissible cross-examination topics, the solicitor appearing on the day was adequately briefed, and no difficulty arose in conducting the cross-examination. The applicant's assertion that his presence would have prompted additional questions was not supported by any identification of specific issues left unexplored. Hall J also noted that further questions could still be directed to the witnesses in writing, or an application could be made to the trial judge consistent with the approach in Basha (1989) 39 A Crim R 337.

Adams J, agreeing with Hall J's conclusion albeit "with some real doubt," observed that while the Deputy Chief Magistrate had acted peremptorily in indicating the matter would proceed before giving the solicitor an opportunity to formally apply for an adjournment, this did not prevent the solicitor from making such an application. No such application was made, and no clear instructions were withheld or shown to have hampered the cross-examination conducted on the day.

Orders Made

  • The application for an extension of time to bring an appeal is dismissed.

Key Takeaways

  • In dismissing the application, the Court of Criminal Appeal confirmed that appellate intervention in discretionary decisions such as adjournment rulings is reserved for rare cases, applying the longstanding test in House v The King (1936) 55 CLR 499.
  • A defendant's absence from committal proceedings does not automatically constitute a miscarriage of justice; the applicant must identify specific, concrete prejudice resulting from that absence.
  • Where an accused's solicitor proceeds with cross-examination without objection, without making a formal adjournment application, and without identifying any inability to obtain proper instructions, this weighs against a finding of substantial miscarriage of justice on appeal.
  • The Court noted, without finding appellate error, that the magistrate had acted "quite peremptorily" in signalling the matter would proceed before counsel had an opportunity to apply for an adjournment, suggesting such conduct is at least procedurally inapt even if not determinative.
  • Remaining gaps in expert cross-examination at committal are not necessarily irreparable: the Court identified written questions to witnesses and an application to the trial judge (consistent with Basha) as available mechanisms to address any shortcoming before trial.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 195(b)
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), s 72

Cases:
- House v The King (1936) 55 CLR 499
- Regina v O'Meara [2001] NSWCCA 195
- Regina v BWM (1997) 91 A Crim R 260
- Basha (1989) 39 A Crim R 337