Citation: A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244
Court: Court of Criminal Appeal, New South Wales
Date: 28 August 2015
Judge(s): Beazley P; R A Hulme J; Bellew J
Background
Three accused persons faced trial on charges of female genital mutilation under s 45(1)(a) of the Crimes Act 1900 (NSW), with an alternative charge of assault occasioning actual bodily harm in company under s 59(2). Two accused were charged as principals and one as an accessory after the fact, in relation to procedures allegedly performed on two young children.
Before jury empanelment, the trial judge (Johnson J) delivered a pre-trial ruling on the meaning of the word "mutilates" in s 45(1)(a). The Crown had submitted that any physical injury to the female genital organs done for non-medical reasons could constitute mutilation. The defence argued that the word required cutting off, destroying, or radically altering a body part. Johnson J accepted the Crown's construction and indicated he would direct the jury accordingly.
On the afternoon Johnson J delivered his ruling, each accused filed a Notice of Application for Leave to Appeal against Interlocutory Judgment or Order under s 5F(3) of the Criminal Appeal Act 1912 (NSW). The Court of Criminal Appeal convened the following morning specifically to determine whether the proposed appeal was competent.
Legal Issues
- Whether Johnson J's pre-trial ruling on the meaning of "mutilates" in s 45(1)(a) of the Crimes Act constituted an "interlocutory judgment or order" within the meaning of s 5F(3) of the Criminal Appeal Act 1912, so as to be amenable to appeal.
- Whether a ruling that does not finally determine the proceedings or an identifiable part of them, and which remains subject to revision by the trial judge, can qualify as an interlocutory judgment.
Decision
The Court unanimously refused the application for leave to appeal, holding it was incompetent. R A Hulme J (with whom Beazley P and Bellew J agreed) applied the well-established distinction between interlocutory judgments or orders, which are amenable to s 5F appeal, and mere rulings on questions of law, which are not.
To qualify as an interlocutory "judgment" for the purposes of s 5F(3), a ruling must determine the proceedings or at least an identifiable part of them, and must be capable of entry in the records of the court. To qualify as an interlocutory "order," it must amount to a command that something be done or not done. Johnson J's ruling satisfied neither description.
A critical concession proved fatal to the applicants' position. Senior counsel accepted during argument that it remained open to Johnson J to modify the jury direction he had indicated he would give. That theoretical possibility of revision meant the ruling lacked the finality required of a judgment. The Court characterised what Johnson J had done as outlining, in broad terms, a direction he presently proposed to give, with the detail inevitably to be refined as the evidence and submissions developed at trial.
The ruling was, in character, a ruling on a question of law rather than a determination of any part of the proceedings. The Court concluded it was not an interlocutory judgment or order within s 5F(3), making the purported appeal incompetent.
Orders Made
- The application for leave to appeal was refused as incompetent.
Key Takeaways
- A pre-trial ruling by a trial judge on the statutory construction of an element of an offence, framed as an indication of how the jury will be directed, does not constitute an "interlocutory judgment or order" amenable to appeal under s 5F(3) of the Criminal Appeal Act 1912.
- Under the test drawn from R v Steffan (1993) 30 NSWLR 633, a ruling must determine the proceedings or an identifiable part of them and be capable of entry in court records before it qualifies as an interlocutory judgment; a ruling that remains revisable at trial lacks the necessary finality.
- A concession that a trial judge retains the power to modify a pre-trial ruling, even if only theoretically, is sufficient to defeat a claim that the ruling carries the finality required for interlocutory judgment status.
- The Court of Criminal Appeal confirmed that rulings on questions of law, as distinct from orders commanding action or judgments determining proceedings, fall outside the scope of s 5F(3) appeal rights.
- Refusing the application, the Court reinforced that the bar for interlocutory appeal in criminal proceedings is a genuine jurisdictional threshold, not a discretionary filter.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 45, 59, 61HA, 61P
- Criminal Appeal Act 1912 (NSW), s 5F
Cases:
- AF v R [2015] NSWCCA 35
- Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667
- Commonwealth v Mullane (1961) 106 CLR 166
- KS v Veitch [2012] NSWCCA 186
- R v A2; R v KM; R v Vaziri (No 2) [2015] NSWSC 1221 (the ruling under appeal)
- R v Adamson [2005] NSWCCA 7
- R v Bozatsis and Spanakakis (1997) 97 A Crim R 296
- R v Cheikho [2008] NSWCCA 191; 75 NSWLR 323
- R v Piper [2005] NSWCCA 134
- R v Steffan (1993) 30 NSWLR 633
- Walton v Gardiner (1993) 177 CLR 378
- W O v Director of Public Prosecutions (NSW) [2009] NSWCCA 275