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74
Court of Criminal Appeal 1 April 2011

DAO v R

[2011] NSWCCA 63

Also reported as (2011) 81 NSWLR 568 (2011) 278 ALR 765
Sexual offences
CRIMINAL LAW APPEAL INTERLOCUTORY ORDERS S 5F(3) CRIMINAL APPEAL ACT 1912 ORDER FOR JOINT TRIAL WHETHER LEAVE OUGHT TO BE GRANTED

Citation: DAO v R [2011] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 1 April 2011
Judges: Spigelman CJ; Allsop P; Simpson J; Kirby J; Schmidt J

Background

The applicant faced 18 counts of sexual offences against six complainants. He applied for separate trials in respect of each complainant. The prosecution responded by giving notice of its intention to adduce tendency evidence under s 97 of the Evidence Act 1995, proposing to use each complainant's evidence as tendency evidence in relation to the allegations concerning each other complainant.

The District Court judge ordered separate trials for three complainants but declined to do so for three others (referred to as MB, SM, and JC). The basis for keeping those three matters together was that the evidence of each complainant in that group would be admissible as tendency evidence in the trial of the allegations relating to each other complainant in the group.

The applicant sought leave to appeal against that joint trial order under s 5F(3) of the Criminal Appeal Act 1912. The Crown challenged the Court's jurisdiction to hear the application, and the parties also contested the correct standard of appellate review and whether leave should be granted at all.

  • Whether the Court of Criminal Appeal had jurisdiction under s 5F of the Criminal Appeal Act 1912 to entertain the application, given that the Crown argued the ruling on admissibility was not an "interlocutory judgment or order"
  • Whether appellate review of a decision under s 97 of the Evidence Act is governed by the principles in House v The King (deferential review of a discretion) or Warren v Coombes (independent appellate review of a question of law or fact)
  • Whether leave to appeal under s 5F ought to be granted, given that the substance of the appeal was a challenge to an evidentiary ruling
  • Whether there is a separate decision under s 101 of the Evidence Act, distinct from the s 97 decision
  • What relationship exists between a s 5F interlocutory appeal and any later appeal under ss 5(1) and 6(1) of the Criminal Appeal Act following conviction

Decision

On jurisdiction: The Court held, unanimously, that a bare ruling on the admissibility of evidence is not an "interlocutory judgment or order" and therefore does not attract jurisdiction under s 5F. However, a refusal to order separate trials is an interlocutory order for the purposes of s 5F. Because the District Court had actually made an order (retaining the three matters as a joint trial), jurisdiction was established on that basis, even though the underlying reasoning was an evidentiary ruling.

On the standard of review: The Court did not reach a unanimous position on whether House v The King or Warren v Coombes governs review of s 97 decisions, but the majority agreed that the question did not strictly arise here. The order under review was a discretionary procedural decision (refusing to separate trials), and that decision was reviewable under the more deferential House v The King standard. Simpson J (with Schmidt J agreeing) went further, holding that review of s 97 decisions is governed by House v The King and that there is no separate decision under s 101, which instead introduces an additional hurdle into the s 97 decision itself.

On leave: Despite strong reservations about granting leave to appeal an evidentiary ruling by the back door of a s 5F application, the Court granted leave because of the significant unresolved conflict of authority on the appellate review standard for s 97 decisions. The appeal was then dismissed. The Court was clear that leave would not readily be granted in future cases where the substance of a s 5F application is a challenge to an evidentiary ruling.

On the relationship between s 5F and post-conviction appeals: The Court noted that the trial judge's ruling on probative value under ss 97 and 101 could be revisited as evidence unfolded at trial. Schmidt J observed that if the same admissibility question were raised in a post-conviction appeal, issue estoppel considerations of the kind discussed in Rogers v R (1994) 181 CLR 251 would likely arise for consideration.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A ruling on the admissibility of evidence, standing alone, is not an "interlocutory judgment or order" reviewable under s 5F of the Criminal Appeal Act 1912. Jurisdiction under s 5F requires an actual procedural order, such as a refusal to order separate trials.

  • Where the substance of a s 5F application is a challenge to a pre-trial evidentiary ruling rather than a true interlocutory order, the Court of Criminal Appeal confirmed that leave will not readily be granted, even where an admissibility ruling is embedded in the procedural decision under review.

  • A discretionary decision to refuse separate trials attracts the deferential standard of review from House v The King, meaning an appellate court will intervene only where error of principle, irrelevant considerations, or other recognised grounds of review are established.

  • Under the approach endorsed by Simpson J (Schmidt J agreeing), s 101 of the Evidence Act does not create a separate decision to be reviewed independently. Its effect is to impose an additional admissibility hurdle within the s 97 decision, and the whole exercise remains reviewable only on House v The King principles.

  • A pre-trial ruling on tendency evidence under ss 97 and 101 may be revisited during the trial as evidence unfolds, and if the same admissibility question is raised in a subsequent post-conviction appeal, issue estoppel principles discussed in Rogers v R (1994) 181 CLR 251 may become relevant.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5(1), 5F, 6(1)
- Evidence Act 1995 (NSW), ss 97, 101
- Criminal Procedure Act 1986 (NSW)

Key Cases
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
- Rogers v R [1994] HCA 42; (1994) 181 CLR 251
- R v Fletcher [2005] NSWCCA 338; 156 A Crim R 308
- R v Ford [2009] NSWCCA 306; 273 ALR 286
- Director of Public Prosecutions v El Mawas [2006] NSWCA 154; (2006) 66 NSWLR 93
- Cheikho v R [2008] NSWCCA 191; 75 NSWLR 323
- EK v R [2009] NSWCCA 4; 75 NSWLR 302
- Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
- Dwyer v Calco Timbers Pty Ltd [2008] HCA 13; 234 CLR 124
- Shrimpton v The Commonwealth [1945] HCA 4; 69 CLR 613
- Buck v Bavone (1976) 135 CLR 110
- Singer v Berghouse (No 2) (1994) 181 CLR 201