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4
Court of Criminal Appeal 5 February 2009

EK v R

[2009] NSWCCA 4

Also reported as 75 NSWLR 302
Sexual offences
CRIMINAL LAW TENDER BY CROWN OF AUDIO RULING ON ADMISSIBILITY OF EVIDENCE NOT INTERLOCUTORY JUDGMENT OR ORDER S.5F APPEAL INCOMPETENT

Citation: EK v R [2009] NSWCCA 4
Court: NSW Court of Criminal Appeal
Date: 5 February 2009
Judge(s): Grove J, Blanch J, Johnson J

Background

The appellant faced nine charges under the Crimes Act 1900, including multiple counts of sexual intercourse with a child and without consent. Her trial commenced in 2007 and the complainant gave oral evidence over several days, which was captured by audio-visual recording. The jury was discharged mid-trial after concerns arose about the appellant's fitness to stand trial.

The appellant was subsequently found unfit to be tried and, following a Mental Health Review Tribunal determination that she would remain unfit for at least 12 months, the matter was listed for a "special hearing" under the Mental Health (Criminal Procedure) Act 1990. A special hearing is a modified proceeding that takes place when an accused cannot be tried in the ordinary way.

The Crown sought to tender the audio-visual recording of the complainant's earlier trial evidence under section 306I of the Criminal Procedure Act 1986, which deals with the admission of complainant evidence in subsequent trial proceedings. The appellant objected on the threshold basis that section 306I does not apply to a special hearing. The District Court judge ruled against that objection, and the appellant sought to appeal that ruling to the Court of Criminal Appeal under section 5F of the Criminal Appeal Act 1912, which permits interlocutory appeals in limited circumstances.

  • Whether the District Court judge's ruling constituted an "interlocutory judgment or order" within the meaning of section 5F of the Criminal Appeal Act 1912, making it susceptible to appeal.
  • Whether, alternatively, the ruling was a ruling on the admissibility of evidence and therefore outside the scope of section 5F.
  • Whether the judge's issue of a section 5F(3)(b) certificate overcame any jurisdictional deficiency.

Decision

The Court of Criminal Appeal dismissed the appeal as incompetent. Johnson J, with whom Grove J and Blanch J agreed, held that the impugned ruling was a ruling on the admissibility of evidence, not an interlocutory judgment or order. Section 306I sits within Chapter 6 of the Criminal Procedure Act 1986, which deals expressly with evidentiary matters, and within a Division specifically concerned with the admission of complainant evidence in subsequent proceedings. The threshold question of whether section 306I applied to a special hearing was therefore the first step on a path concerning admissibility, not a freestanding interlocutory determination.

The appellant sought to rely on R v Milakovic, where a ruling refusing the Crown leave to cross-examine its own witness was found not to be an admissibility ruling. Johnson J distinguished that case on the basis that it concerned the conduct of the prosecution case rather than the admission of particular evidence. The Court found the statutory context of section 306I firmly placed the ruling in the admissibility category, consistent with the principle in R v Steffan and subsequent authorities.

The Court also confirmed that the certificate issued by the District Court judge under section 5F(3)(b) did not confer jurisdiction on the Court of Criminal Appeal where jurisdiction was otherwise absent. A judge cannot certify an appeal into existence. If the appellant receives an adverse verdict at the special hearing, she retains the right to challenge the admissibility ruling on a full appeal against conviction at that point.

Orders Made

  • The appeal is dismissed as incompetent.

Key Takeaways

  • A ruling on the threshold question of whether a particular statutory provision governs the tender of evidence constitutes a ruling on the admissibility of evidence, not an interlocutory judgment or order for the purposes of section 5F of the Criminal Appeal Act 1912.
  • Under section 5F, an accused person cannot appeal mid-trial against an evidentiary ruling; that avenue is available only to the Crown in defined circumstances under section 5F(3A).
  • Issuing a certificate under section 5F(3)(b) does not cure a jurisdictional defect in a proposed appeal. The Court of Criminal Appeal confirmed it has no power to hear an appeal that falls outside section 5F regardless of any such certificate.
  • Where adverse verdicts are returned at a special hearing under the Mental Health (Criminal Procedure) Act 1990, an appeal lies to the Court of Criminal Appeal as if it were an appeal against conviction, at which point evidentiary rulings from the special hearing may be challenged.
  • The distinction drawn in R v Milakovic between rulings on the conduct of a prosecution case and rulings on the admissibility of evidence remains significant. The statutory context in which a ruling is made is a key factor in characterising it.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5(1), 5F
- Crimes Act 1900 (NSW), ss 61J, 61M, 66C, 319
- Criminal Procedure Act 1986 (NSW), s 306I and Chapter 6 generally
- Mental Health (Criminal Procedure) Act 1990 (NSW), ss 19, 22
- Evidence Act 1995 (NSW), ss 13, 38

Cases:
- R v Steffan (1993) 30 NSWLR 633
- R v Glossop [2001] NSWCCA 165
- R v Lavender [2002] NSWCCA 511
- Kocer v R [2006] NSWCCA 328
- R v Sinanovic [2001] NSWCCA 217
- R v Milakovic [2004] NSWCCA 199
- R v RAG [2006] NSWCCA 343
- R v Daher and Tochel [2004] NSWCCA 458
- Subramaniam v R [2004] HCA 51