Citation: R v Joshua Veitch [2012] NSWDC 175
Court: District Court of New South Wales
Date: 9 May 2012
Judge(s): S Norrish QC DCJ
Background
On 8 May 2012, the District Court delivered judgment on applications concerning documents produced under subpoena that related to the complainant in a pending criminal trial. The documents in question were produced by Cumberland Hospital. The judgment resolved three issues, including whether the accused could have limited access to those documents.
Following that judgment, the complainant (in the role of "protected confider" under the protected confidences regime in the Criminal Procedure Act 1986) indicated a wish to appeal to the Court of Criminal Appeal under s 5F(3AA) of the Criminal Appeal Act 1912. To facilitate that appeal without the Court of Criminal Appeal first considering whether to grant leave, the complainant applied for a certificate from the District Court under s 5F(3AB) that the decision was a proper one for appellate determination.
The accused opposed the certificate application. The Crown neither opposed nor supported it.
Legal Issues
- Whether the District Court had jurisdiction to issue a certificate under s 5F(3AB) of the Criminal Appeal Act 1912 when no formal appeal had yet been lodged.
- Whether the decision of 8 May 2012 involved a defined legal question of sufficient character to warrant the issue of such a certificate.
- Whether issuing the certificate would achieve any meaningful expedition of the proposed appeal and the underlying trial.
Decision
Issue 1: Preliminary jurisdictional questions
His Honour noted two jurisdictional concerns. First, a question was foreshadowed (though not argued before the District Court) about whether the underlying subpoena applications had been properly dealt with under the protected confidences regime in the Criminal Procedure Act. His Honour observed that jurisdiction had been assumed by all parties and that no producing party had appeared to claim privilege or other protection. Any jurisdictional argument was left for the Court of Criminal Appeal to determine if properly raised there.
Second, his Honour queried whether he could issue a certificate at all before a formal appeal had been lodged. He accepted that an appeal could be lodged expeditiously and proceeded to address the substance of the application.
Issue 2: Whether a certificate should be issued
His Honour declined to issue the certificate. He was not satisfied that the decision raised a defined legal question of the character warranting certification. He also doubted that granting the certificate would produce any meaningful additional expedition in the listing of the appeal, beyond what would occur through the ordinary leave process.
His Honour drew on the Court of Criminal Appeal's observations in Pellegrino v Director of Public Prosecutions [2008] NSWCCA 17, which cautioned that the certification power should be exercised carefully. Certifying a matter bypasses the Court of Criminal Appeal's own gatekeeping function on whether to grant leave for interlocutory appeals. His Honour noted that issuing a certificate solely for expedition, without regard to the merits of certification, would be inappropriate.
Orders Made
- Certificate under the Criminal Appeal Act refused.
Key Takeaways
- The District Court confirmed that the power to certify an interlocutory decision as appropriate for appeal under s 5F(3AB) of the Criminal Appeal Act 1912 must be exercised with caution, consistent with the Court of Criminal Appeal's guidance in Pellegrino.
- Granting a certificate removes the Court of Criminal Appeal's opportunity to assess whether leave for an interlocutory appeal is appropriate, which serves as an important check on appellate jurisdiction over interlocutory matters.
- Expedition alone is not a sufficient basis for issuing a certificate; the decision must raise a defined legal question that warrants appellate determination at the interlocutory stage.
- Under s 5F(3AA), the right to appeal against a protected confidences ruling extends not only to the protected confider but also to a person required to produce documents or adduce evidence, a point the judgment noted in passing.
- Where jurisdictional issues were never raised by any party during the substantive hearing, the District Court indicated those arguments are properly reserved for the appellate court, to be determined on full argument.
Legislation and Cases Referenced
Legislation
- Criminal Procedure Act 1986
- Criminal Appeal Act 1912
Cases
- Pellegrino v Director of Public Prosecutions [2008] NSWCCA 17