Citation: Michael v Regina [2012] NSWCCA 164
Court: NSW Court of Criminal Appeal
Date: 9 August 2012
Judges: Beazley JA (with Hall J and S G Campbell J agreeing)
Background
The applicant was committed for trial in the Local Court on 19 March 2012 on a charge of intending to pervert the course of justice under s 319 of the Crimes Act 1900. The committal proceeded by way of a "paper committal," meaning the prosecution's evidence was tendered in the form of written statements rather than through live witnesses. The applicant was self-represented at the hearing, having previously indicated he would be legally represented.
After the magistrate found a prima facie case, the applicant raised for the first time an argument under s 89 of the Criminal Procedure Act 1986. That section requires a magistrate, before written statements can be admitted in a paper committal, to explain the relevant procedural rights to an unrepresented accused and to be satisfied the accused understands those rights. The magistrate had not given that explanation, but declined to exclude the evidence or quash the indictment, taking the view that s 89 was unlikely to apply given the earlier indications of legal representation.
The applicant then sought leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912, arguing the magistrate's decisions constituted "interlocutory judgments or orders" that could be challenged on appeal.
Legal Issues
- Whether the magistrate's decision to commit the applicant for trial constituted an "interlocutory judgment or order" within the meaning of s 5F of the Criminal Appeal Act 1912
- Whether the magistrate's refusal to exclude the written evidence (in the context of the alleged s 89 breach) constituted such a judgment or order
- Whether the Court of Criminal Appeal had jurisdiction to hear the application at all
Decision
Beazley JA, with the agreement of Hall J and S G Campbell J, held that the application for leave to appeal must be dismissed. The threshold question was whether any "interlocutory judgment or order" had actually been made that could found the jurisdiction under s 5F. The Court found it had not.
Drawing on the definition in R v Steffan (1993) 30 NSWLR 633, the Court confirmed that a "judgment" is a decision entered in the records of a court that determines proceedings or an identifiable part of them, while an "order" is a command by a court that something be done or not done. A ruling on the admissibility of evidence does not satisfy either definition and is therefore not amenable to appeal under s 5F.
The Court rejected the applicant's argument that an order excluding the evidence should be inferred from the circumstances. A judgment or order is either made or it is not, and the Court will not infer its existence. Section 89 itself does not require the making of any order; it sets out a precondition to admissibility. Additionally, a committal for trial is an administrative or executive act, not a judgment or order, as confirmed in Waterhouse v Gilmore (1988) 12 NSWLR 270.
Even if the applicant had made an application under s 91 (for a direction requiring a witness to attend), a refusal to grant such a direction would not constitute an interlocutory judgment or order under s 5F, following R v Colby (1995) 84 A Crim R 125. The indictment having been filed separately in the District Court, the sole basis for quashing it was the alleged s 89 breach, and that basis was not one that engaged s 5F jurisdiction.
Orders Made
The Court dismissed the application for leave to appeal.
(Note: The orders section provided with the source text does not contain the final orders of the Court of Criminal Appeal. The dismissal order is drawn from the reasoning at paragraphs 21 to 23 of the judgment.)
Key Takeaways
- A committal for trial is an administrative or executive act, not a "judgment or order" within the meaning of s 5F of the Criminal Appeal Act 1912, and cannot ground an application for leave to appeal to the Court of Criminal Appeal.
- Under s 5F, a ruling on the admissibility of evidence is not an "interlocutory judgment or order": it is neither a formal court determination entered in the records nor a command that something be done.
- A judgment or order must actually be made, not merely inferred; the Court of Criminal Appeal confirmed it will not treat one as having been implicitly made where none appears on the record.
- Section 89 of the Criminal Procedure Act 1986 operates as a precondition to admissibility at committal, but its application or non-application does not generate an "order" that can be appealed under s 5F.
- In dismissing the application, the Court of Criminal Appeal confirmed earlier authority that a magistrate's refusal to direct a witness to attend committal proceedings (under s 91 or its predecessor) similarly falls outside the scope of s 5F.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 319
- Criminal Appeal Act 1912 (NSW), s 5F
- Criminal Procedure Act 1986 (NSW), ss 8(2), 74, 89, 91
Cases
- Director of Public Prosecutions v Kolalich (1990) 19 NSWLR 520
- R v Colby (1995) 84 A Crim R 125
- R v Powch (1988) 14 NSWLR 136
- R v Steffan (1993) 30 NSWLR 633
- R v Waterhouse (1992) 62 A Crim R 59
- Waterhouse v Gilmore (1988) 12 NSWLR 270