Director of Public Prosecutions (ACT) v AI, AD and JR [2012] ACTCA 23

Court of Appeal (ACT)|2012-05-18|Before: Refshauge J

1. The respondents in each of these matters have each been charged on a joint indictment with serious offences of conspiracy to commit murder, choking the complainant so as to render him insensible and assault occasioning actual bodily harm.

2. On 10 April 2012, the Supreme Court ordered that the indictment be severed and that separate trials be held in respect of each respondent.

3. The appellant, the ACT Director of Public Prosecutions, wishes to challenge that decision. There is no doubt that the decision is an interlocutory decision: Saunders (1994) 72 A Crim R 347 at 348, 353. Accordingly, of the (ACT) requires leave to appeal. The Director has applied for that leave.

4. Filed in support of the application is a detailed affidavit setting out the grounds of the appeal. The Director also raises in the affidavit substantial issues about the effect of the decision and the difficulties it is said will arise if left undisturbed.

5. Ordinarily, courts are reluctant to delay the hearing of criminal trials as a result of parties taking interlocutory appeals, thereby fragmenting the criminal proceedings: see R v Elliott [1996] HCA 21; (1996) 185 CLR 250 at 257. Indeed, there are dicta to suggest that the courts should be hesitant to permit appeals against decisions of trial courts to order separate trials: see Saunders at 356.

6. Nevertheless, the consequences of the decision as set out extensively in the supporting affidavit filed by the Director do seem to me to form a reasonable basis for suggesting that this is one of those rare cases where leave might be granted.

7. Whether leave should be granted, however, is heavily dependent upon the likely prospects of success of the appeal. Such circumstances justify the question of leave being referred to the Court of Appeal constituted by three judges to be argued as an appeal so that the issue can be fully argued and, if leave is granted, the Court can consider the appeal instanter. I have not been able to find precedent for this procedure in this Court, but it occurs from time to time in the High Court. See, for example, United Mexican States v Cabal [2001] HCA 60; (2001) 209 CLR 165 at 172; [10] and Clayton v The Queen [2006] HCA 58; (2006) 168 A Crim R 174 at 176; [2]. There is no relevant legislative provision which would make this Court unable to make such a decision. It seems at least implicit in the terms of s 37J(1) of the Supreme Court Act that it can be made.

8. The respondents all consented to that proposed course of action. Accordingly, on 2 May 2012, I made orders that the application for leave be referred to the Court of Appeal constituted by three judges for argument, as on appeal.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: ACT Director of Public Prosecutions

Solicitor for the First Respondent: Ben Aulich & Associates

Solicitor for the Second Respondent: Kamy Saeedi Lawyers

Solicitor for the Third Respondent: Darryl Perkins Solicitors

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