Citation: Regina v Glossop [2001] NSWCCA 165
Court: Court of Criminal Appeal (NSW)
Date: 4 May 2001
Judge(s): Meagher JA, Sully J, Dowd J
Background
The appellant faced trial in the District Court on two serious sexual offence charges. The complainant was the appellant's natural son, and the alleged offences were said to have occurred in two periods during the mid-to-late 1970s. The appellant pleaded not guilty to both charges.
Before trial, the appellant brought a motion seeking, among other things, a permanent stay of proceedings and exclusion of the complainant's evidence. The motion was heard over four days by Nield DCJ, who refused the permanent stay and declined to exclude the complainant's evidence in its entirety. The appellant then obtained a certificate under section 5F of the Criminal Appeal Act 1912 (NSW), certifying the judgment as appropriate for interlocutory appeal.
The certified grounds focused on the complainant's delay in reporting the alleged conduct and the possibility that the complainant's memory was a false or recovered memory rather than a true one. The appellant did not press a third ground concerning compelled psychiatric examination.
Legal Issues
- Whether a pre-trial ruling declining to exclude a complainant's evidence at trial constitutes an "interlocutory judgment or order" capable of being the subject of a section 5F appeal
- Whether the appellant demonstrated sufficient error in the primary judge's refusal to grant a permanent stay of proceedings
- Whether the alleged risk of false or recovered memory, and the complainant's delay in reporting, warranted either a permanent stay or exclusion of evidence under sections 135 or 137 of the Evidence Act 1995 (NSW)
- What standard of review applies on a section 5F interlocutory appeal
Decision
The Court confirmed that a section 5F appeal is not an appeal by way of rehearing. Findings of fact and exercises of discretion by the trial judge can only be challenged if appellable error is first demonstrated, applying the same standard as an appeal against conviction. Error in the exercise of discretion requires showing that the judge acted on a wrong principle, gave weight to irrelevant matters, failed to consider relevant matters, or reached a result so unreasonable or plainly unjust as to indicate a failure to properly exercise the discretion.
Sully J, with whom Meagher JA and Dowd J agreed, held that the appeal was incompetent insofar as it challenged the primary judge's pre-trial ruling declining to exclude the complainant's evidence. A pre-trial ruling on the voir dire that evidence will not be excluded is not an "interlocutory judgment or order" within the meaning of section 5F. The Court therefore had no jurisdiction to entertain that aspect of the appeal.
On the permanent stay, the Court found no demonstrated error in Nield DCJ's refusal. The primary judge had taken into account the significant delay and the false memory arguments, but concluded that the evidence did not warrant a stay. The Court was not persuaded that this conclusion was plainly unjust, unreasonable, or otherwise erroneous.
On the question of sections 135 and 137 of the Evidence Act, the Court observed that the complainant's proposed evidence carried obvious probative value. No available evidence demonstrated a real risk that a jury, acting reasonably and guided by appropriate directions, would misuse the evidence unfairly. Accordingly, no error was established in the primary judge's approach to those provisions.
Orders Made
- Appeal dismissed
Key Takeaways
- A pre-trial voir dire ruling declining to exclude a complainant's evidence is not an "interlocutory judgment or order" for the purposes of section 5F of the Criminal Appeal Act 1912 (NSW), and a section 5F appeal against such a ruling is incompetent.
- On a section 5F appeal, findings of fact and discretionary decisions of the trial judge can only be overturned upon demonstration of appellable error; the Court of Criminal Appeal confirmed this standard is equivalent to that applied on an appeal against conviction.
- Allegations of false or recovered memory, combined with significant delay in reporting, did not, without more, establish the kind of error required to disturb a refusal to permanently stay proceedings.
- Under section 137 of the Evidence Act 1995, the test for exclusion is not merely that evidence is unfairly prejudicial, but that its probative value is outweighed by the danger of unfair prejudice. Section 135, by contrast, confers a discretionary power where probative value is substantially outweighed by that danger.
- Sully J observed that the practice of certifying judges stating reasons for granting a section 5F certificate serves no clear purpose under the legislation and may distract appellate courts from the real issues in the underlying judgment.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 5F
- Evidence Act 1995 (NSW), ss 135, 137
- Criminal Appeal Rules 1952, r 11A
Cases:
- BWM (1997) 91 A Crim R 260
- Alexandroaia (1995) 81 A Crim R 286
- Bozatsis and Spanakakis (1997) 97 A Crim R 296
- Lissof [1999] NSWCCA 364
- Pera [2000] NSWCCA 204
- Powch (1988) 14 NSWLR 136
- Jago v District Court of NSW (1989) 168 CLR 23
- The Queen v Glennon (1992) 173 CLR 592
- Tillott (1995) 38 NSWLR 1
- JMS [1998] VSCA 19