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2
Court of Criminal Appeal 7 May 2010

Sasterawan v Morris

[2010] NSWCCA 91

Also reported as (2010) 201 A Crim R 302
Fraud & dishonesty
APPEAL INTERLOCUTORY ORDERS LEAVE TO APPEAL CRIMINAL APPEAL ACT 1912 S 5F APPEAL INTERLOCUTORY ORDERS

Citation: Sasterawan v Morris [2010] NSWCCA 91
Court: NSW Court of Criminal Appeal
Date: 7 May 2010
Judge(s): Basten JA; Hulme J; Schmidt J

Background

The applicant, a former licensed taxi driver, had been convicted in the Local Court of three charges under s 178BB of the Crimes Act 1900 (NSW), involving the falsification of cabcharge dockets to inflate fares. He was fined $300 per offence. After a series of appeals and judicial review proceedings spanning several years, the matter was remitted to the District Court for a fresh hearing.

During that District Court rehearing, a key prosecution witness was overseas and unable to attend, and the informant (the prosecuting officer) fell ill while giving evidence on a voir dire. The District Court judge granted an adjournment and vacated the hearing dates, directing that a new hearing date be fixed. The applicant challenged that adjournment order, and also separately challenged an order permitting a witness to give evidence by videolink.

The applicant sought leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW). The respondent, the informant officer, cross-applied for costs of the proceedings in the Court of Criminal Appeal.

  • Whether the Court of Criminal Appeal had jurisdiction to entertain an appeal from interlocutory orders made in the course of a District Court hearing of an appeal from the Local Court, under s 5F of the Criminal Appeal Act 1912
  • Whether, if jurisdiction existed, there was an arguable basis for appellate intervention in respect of the adjournment order and the videolink order
  • Whether the Court had power to award costs against the applicant under s 17 of the Criminal Appeal Act 1912, and if so, whether such an order was appropriate

Decision

The Court refused leave to appeal on two independent bases. First, the Court concluded there was no jurisdiction to entertain the proposed appeal. Section 5F of the Criminal Appeal Act provides a right of appeal from interlocutory orders in criminal proceedings, but the proceeding in the District Court was itself an appeal from the Local Court, not a trial or first-instance criminal proceeding in the ordinary sense. The Court found it was at least arguable, and ultimately accepted, that the jurisdictional preconditions for s 5F were not satisfied in this context.

Second, and separately, the Court found that even if jurisdiction did exist, the applicant had not established any arguable basis for appellate intervention. The adjournment was granted in response to the informant's health concerns during her evidence, and the District Court judge's exercise of discretion to grant the adjournment was not shown to be attended by any legal error. The standard for disturbing a discretionary procedural decision of this kind (derived from House v The King) requires more than mere disagreement with the outcome.

On the costs question, the Court held that s 17 of the Criminal Appeal Act did not confer a general power to award costs in favour of a respondent following a refused leave application of this nature. While the Court acknowledged it may possess an implied power to award costs in cases involving abuse of process (as recognised in Markisic v Vizza), the mere hopelessness of a leave application, or the failure of a jurisdictional argument, does not amount to the kind of abuse of process required to enliven that power. The respondent's costs application was therefore refused.

Orders Made

  • Leave granted to the applicant to file the Second Amended Application for Leave to Appeal, dated 5 March 2010, with time extended accordingly
  • Leave to appeal refused
  • No order as to costs

Key Takeaways

  • Section 5F of the Criminal Appeal Act 1912 may not confer jurisdiction to appeal interlocutory orders made in the course of a District Court appeal from the Local Court, as distinct from interlocutory orders in original criminal proceedings
  • A failed jurisdictional argument, even a plainly hopeless one, does not by itself constitute an abuse of process sufficient to enliven any implied power to award costs in the Court of Criminal Appeal
  • Under s 17 of the Criminal Appeal Act 1912, there is no general statutory power to award costs against an applicant who fails to obtain leave to appeal in criminal proceedings
  • Discretionary procedural decisions such as the grant of an adjournment will only attract appellate intervention where legal error is demonstrated; the threshold derived from House v The King is not satisfied simply because the outcome was adverse to one party
  • The Court's implied costs jurisdiction, as affirmed in Markisic v Vizza, is confined to proceedings that cannot properly be characterised as appeals at all, not merely to applications for leave that are ultimately refused

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BB
- Criminal Appeal Act 1912 (NSW), ss 5F, 17
- Crimes (Appeal and Review) Act 2001 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence (Audio and Audio Visual Links) Act 1998 (NSW)
- Supreme Court Act 1970 (NSW)

Cases:
- House v The King [1936] HCA 40; 55 CLR 409
- Markisic v Vizza [2002] NSWCCA 53
- Re Application by John Fairfax Publications Pty Ltd re MSK, MAK, MMK and MRK [2006] NSWCCA 386
- R v JS (No 2) [2007] NSWCCA 309; (2007) 179 A Crim R 10
- Sasterawan v Morris [2007] NSWCCA 185; 69 NSWLR 547
- Sasterawan v Morris [2008] NSWCA 70
- Robinson v Woolworths Ltd [2005] NSWCCA 426
- Salter v Director of Public Prosecutions [2009] NSWCA 357
- Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476