Citation: Liristis v Director of Public Prosecutions [2018] NSWCCA 196
Court: Court of Criminal Appeal (also constituted to exercise Court of Appeal jurisdiction)
Date: 7 September 2018
Judges: Basten JA (with Macfarlan JA and Leeming JA agreeing)
Background
The applicant had been arraigned in the District Court on an indictment containing six counts involving alleged non-consensual sexual activities with three complainants. In the weeks following arraignment, the trial judge made a series of interlocutory rulings, including refusals of applications for separate trials, a permanent stay, and an application to admit evidence under s 293 of the Civil Procedure Act 1986 (NSW).
The applicant sought to challenge those rulings through two separate avenues: an application for leave to appeal to the Court of Criminal Appeal under s 5F of the Criminal Appeal Act 1912 (NSW), and a summons filed in the Court of Appeal invoking that court's supervisory jurisdiction under ss 23 and 69 of the Supreme Court Act 1970 (NSW). Both applications were procedurally deficient in various respects.
Because it was unclear from the materials filed whether the applicant was invoking appellate or supervisory jurisdiction, the court was constituted to exercise both.
Legal Issues
- Whether s 5F of the Criminal Appeal Act 1912 (NSW) confers jurisdiction on the Court of Criminal Appeal to hear an appeal against a ruling on the admissibility of evidence made during a criminal trial in the District Court
- Whether such a ruling constitutes a "judgment" or "order" for the purposes of s 5F
- Whether the Court of Appeal has jurisdiction, in its supervisory role under ss 23 and 69 of the Supreme Court Act 1970 (NSW), to review interlocutory rulings made in the exercise of the District Court's criminal jurisdiction
Decision
On the s 5F question, Basten JA confirmed a line of authority dating back to 1988 holding that rulings on the admissibility of evidence do not fall within the expression "interlocutory judgment or order" in s 5F(3). A ruling on evidence does not finally dispose of the rights of any party and, if made in error, can be the subject of an appeal following conviction. The section therefore did not confer jurisdiction to entertain any of the challenges pressed by the applicant.
Basten JA similarly rejected the availability of supervisory relief through the Court of Appeal. The reasoning closely tracked the s 5F analysis: because the rulings did not finally determine the parties' rights, and because any error could be corrected on appeal after conviction, the supervisory jurisdiction was not an appropriate vehicle for intervention. His Honour also noted that the Court had previously questioned whether the Supreme Court's supervisory jurisdiction under s 17(1) and the Third Schedule of the Supreme Court Act extended at all to criminal proceedings in the District Court, though it was unnecessary to decide that point finally.
The court disposed of all applications, including those the applicant had purported to withdraw. Basten JA expressly noted that a purported withdrawal should not be treated as preserving the right to revisit these applications later, given that the applications were misconceived. His Honour also observed that trial judges are well familiar with the principles limiting interlocutory review and that further applications of a similar kind should not be permitted to delay or interfere with the criminal proceedings.
Orders Made
Court of Criminal Appeal:
- Leave to appeal refused in respect of all four challenged rulings: the refusal of separate trials (8 August 2018), the refusal to admit evidence under s 293 (13 August 2018), the refusal of a permanent stay and grant of an adjournment (20 August 2018), and the refusal of the warrant application (23 August 2018)
Court of Appeal:
- Summons dismissed to the extent the applicant sought review under s 69 of the Supreme Court Act 1970 (NSW)
- Summons dismissed to the extent the applicant sought relief under s 23 of the Supreme Court Act in respect of the District Court's criminal jurisdiction rulings
- No order as to costs of the summons proceedings
Key Takeaways
- Section 5F of the Criminal Appeal Act 1912 (NSW) does not extend to evidentiary rulings made during a criminal trial: a long line of authority, beginning with R v Powch (1988), establishes that such rulings are not "interlocutory judgments or orders" within the meaning of the section.
- A ruling that does not finally dispose of the rights of a party is not amenable to interlocutory review, whether through the Court of Criminal Appeal under s 5F or through the Court of Appeal's supervisory jurisdiction under ss 23 and 69 of the Supreme Court Act 1970 (NSW).
- Errors in evidentiary or other procedural rulings made in a criminal trial can be corrected on appeal after conviction; the existence of that avenue is central to why interlocutory review is unavailable.
- In dismissing all applications, the court treated the applicant's purported withdrawal of certain grounds as insufficient to preserve a right to relitigate those grounds later, given they were misconceived from the outset.
- Whether the Supreme Court's supervisory jurisdiction extends at all to the District Court's exercise of criminal jurisdiction remained an open question that the court declined to resolve, having disposed of the matter on discretionary grounds in any event.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Supreme Court Act 1970 (NSW), ss 17, 23, 69
- Civil Procedure Act 1986 (NSW), s 293
- Criminal Procedure Act 1986 (NSW)
Cases:
- R v Powch (1988) 14 NSWLR 136
- R v Edelsten (1989) 18 NSWLR 213
- R v Steffan (1993) 30 NSWLR 633
- R v Seller; R v McCarthy (2015) 89 NSWLR 155; [2015] NSWCCA 76
- R v Cheikho (2008) 75 NSWLR 323; [2008] NSWCCA 191
- Alqudsi v The Queen (2015) 90 ALJR 192; [2015] HCA 49
- Gedeon v Commissioner, New South Wales Crime Commission (2008) 236 CLR 120; [2008] HCA 43
- Pan Laboratories Pty Ltd v The Commonwealth (1999) 73 ALJR 464
- Smith v Commissioner of Corrective Services [1978] 1 NSWLR 317
- Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47
- Commissioner for Corrective Services v Liristis [2018] NSWCA 143