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Court of Criminal Appeal 22 September 2006

KOCER v REGINA

[2006] NSWCCA 328

Drugs
CRIMINAL LAW CRIMINAL APPEAL COMPETENCY OF APPEAL APPEAL FROM AN INTERLOCUTORY ORDER COMPETENCY OF STATED CASE

Citation: Kocer v Regina [2006] NSWCCA 328
Court: New South Wales Court of Criminal Appeal
Date: 22 September 2006
Judge(s): McClellan CJ at CL, Buddin J, Rothman J

Background

The appellant was charged with supply of a prohibited drug. The drugs were found on him following a roadside search of his clothing, which itself followed police stopping and searching the vehicle in which he was travelling as a passenger. The appellant pleaded not guilty.

On the first day of trial, the appellant's counsel objected to the admissibility of the drug evidence, arguing the police officer lacked a reasonable suspicion when he stopped and searched the vehicle. A voir dire (a preliminary hearing to determine admissibility) was held before Goldring DCJ in the District Court, who ruled on 18 July 2006 that the officer had been acting on a reasonable suspicion. The ruling effectively meant the drug evidence would be admitted at trial.

The trial judge then issued a certificate under section 5F(3)(b) of the Criminal Appeal Act 1912, purporting to certify the ruling as a proper matter for determination on appeal. The appellant sought to bring both an appeal under section 5F and a stated case to the Court of Criminal Appeal, challenging the evidentiary ruling before the trial concluded.

  • Whether a ruling on the admissibility of evidence constitutes an "interlocutory judgment or order" within the meaning of section 5F of the Criminal Appeal Act 1912, so as to ground a competent appeal by an accused person during trial
  • Whether the trial judge's certificate under section 5F(3)(b) was validly issued in these circumstances
  • Whether the stated case procedure was also available and competent

Decision

The Court held unanimously that the appeal was incompetent. Rothman J (with whom McClellan CJ at CL and Buddin J agreed) found that a ruling on the admissibility of evidence is not an "interlocutory judgment or order" within section 5F of the Criminal Appeal Act 1912. The Court reaffirmed its earlier position in R v Steffan (1993) 30 NSWLR 633, which had squarely decided this point. Rothman J declined to follow the obiter remarks of Kirby P in Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, which had suggested otherwise.

The Court noted the legislative structure of section 5F is significant. Section 5F(3A) expressly grants the Attorney General and Director of Public Prosecutions a right to appeal a decision on admissibility, but only where it eliminates or substantially weakens the prosecution case. No equivalent right was granted to an accused. This deliberate legislative distinction reinforced the conclusion that an evidentiary ruling is not an interlocutory order for the purposes of the section.

The Court also found the stated case to be incompetent on separate grounds. The stated case procedure under section 5B of the Act was unavailable in these circumstances, and the attempt to use it could not rescue the appellant's position.

On the certificate issued by the trial judge, the Court took the opportunity to stress that such certificates should be granted only where the trial judge has substantial doubt about the correctness of the ruling and where an interlocutory appeal would serve the interests of justice. The Court cited Lethlean v R (1995) 83 A Crim R 197 for the proposition that certificates are rarely appropriate and should never be used as a mechanism to delay trial or undermine its finality.

Orders Made

  • The appeal dismissed
  • The stated case dismissed

Key Takeaways

  • A ruling on the admissibility of evidence, made in advance of or during a criminal trial, is not an "interlocutory judgment or order" within section 5F of the Criminal Appeal Act 1912, and cannot ground a mid-trial appeal by an accused person to the Court of Criminal Appeal.
  • The Court of Criminal Appeal reaffirmed R v Steffan (1993) as authoritative on this point, declining to adopt contrary obiter remarks from the Court of Appeal in Chow v Director of Public Prosecutions.
  • Under section 5F, only the Attorney General and Director of Public Prosecutions hold a right to appeal an evidentiary ruling, and even then only where it eliminates or substantially weakens the prosecution case. No equivalent right exists for an accused.
  • Certificates under section 5F(3)(b) should be issued sparingly. A trial judge should certify a matter only where they hold substantial doubt about the correctness of their ruling and where appellate resolution before trial proceeds is genuinely in the interests of justice.
  • In dismissing both the appeal and the stated case, the Court emphasised the strong policy interest in ensuring criminal trials are not fragmented by interlocutory applications, noting that any injustice can ordinarily be corrected through a conventional appeal after verdict.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), particularly sections 5F and 5B
- Interpretation Act 1987 (NSW)
- Supreme Court Act 1970 (NSW)

Cases:
- R v Steffan (1993) 30 NSWLR 633
- Lethlean v R (1995) 83 A Crim R 197
- Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
- Hall v Nominal Defendant (1966) 117 CLR 423
- Bloch v Bloch (1981) 180 CLR 390
- Sali v SPC (1993) 67 ALJR 841
- Peterborough v Overseers of Parish of Wilsthorpe (1883) 12 QBD 1
- Maxwell v Keun [1928] 1 KB 645
- Project Blue Sky v ABA (1998) 194 CLR 355
- Saraswati v R (1991) 172 CLR 1
- Ampolex Limited v Perpetual Trustee Company (Canberra) Limited (Unreported, NSWCA, 20 May 2006)