EK v R

R v Steffan (1993) 30 NSWLR 633 R v Glossop [2001] NSWCCA 165 R v Lavender (2002) 37 MVR 491; [2002] NSWCCA 511 Kocer v R [2006] NSWCCA 328 CASES CITED : R v Sinanovic [2001] NSWCCA 217 R v Milakovic [2004] NSWCCA 199 R v RAG [2006] NSWCCA 343 R v Daher and Tochel [2004] NSWCCA 458 Subramaniam v R [2004] HCA 51

PARTIES: EK (Appellant) Regina (Respondent)

COUNSEL: Mr MC Ramage QC; Mr M Shaw (Appellant) Mr P Barrett; Mr T McIntosh (Respondent)

SOLICITORS: North & Badgery (Appellant) Solicitor for Public Prosecutions (Respondent)

LOWER COURT JUDICIAL OFFICER: Her Honour Judge Hock

IN THE COURT OF CRIMINAL APPEAL 2004/13473

Grove J Blanch J Johnson J

5 February 2009 EK v Regina Judgment 1 GROVE J: I agree with the reasons of Johnson J for the orders made by the Court on 3 February 2009. 2 BLANCH J: I also agree. 3 JOHNSON J: At the conclusion of argument on 3 February 2009, the Court ordered that this appeal be dismissed as incompetent, with reasons to be published at a later time. These are my reasons for joining in that order. 4 The Appellant, EK, seeks to appeal under s.5F(3) Criminal Appeal Act 1912 against what is said to be an interlocutory judgment or order of her Honour Judge Hock in the Sydney District Court on 29 January 2009. 5 The Crown submits that the appeal challenges a ruling on admissibility of evidence, and not an interlocutory judgment or order, and is incompetent.

Factual Background 6 An indictment has been presented charging the Appellant with the following nine offences under the Crimes Act 1900:

(a) Count 1: Between 1 and 31 March 2001, sexual intercourse with a child between the age of 10 and 16 years (namely 13 years) in circumstances of aggravation (alleged victim under authority) (s.66C(2));

(b) Counts 2-6: At various times between 1 January 2001 and 30 June 2003, sexual intercourse without consent in circumstances of aggravation (alleged victim under the age of 16 years) (s.61J(2)(d));

(c) Count 7: Between 1 May and 30 September 2003, indecent assault in circumstances of aggravation (alleged victim under the age of 16 years) (s.61M(1));

(d) Count 8: Between 1 October and 30 November 2003, sexual intercourse without consent in circumstances of aggravation (alleged victim under authority) (s.61J(2)(d));

(e) Count 9: Between 1 March and 31 March 2007, doing an act with intent to pervert the course of justice (s.319). 7 The trial of the Appellant commenced before his Honour Judge Keleman SC and a jury at Campbelltown District Court on 7 June 2007. The complainant gave oral evidence (comprising evidence-in-chief, cross-examination and re-examination) in this trial on 12-14, 18 and 20-21 June 2007. Her evidence was recorded by audio-visual recording equipment. The jury was discharged on 16 July 2007 due to concerns then arising about the Appellant's fitness to be tried. 8 On 4 February 2008, the Appellant was found by her Honour Judge Sweeney to be unfit to be tried. On 9 October 2008, the Mental Health Review Tribunal determined that the Appellant would not become fit to be tried within a period of 12 months. The Director of Public Prosecutions advised the District Court Criminal Registry on 22 December 2008 that the matter would proceed by way of special hearing. 9 The special hearing pursuant to s.19(1) Mental Health (Criminal Procedure) Act 1990 was listed to commence before her Honour Judge Hock on 27 January 2009. The Crown had given notice on 1 November 2007 of an intention to rely on s.306I Criminal Procedure Act 1986 to tender the record of the complainant's evidence in the trial before his Honour Judge Keleman SC. Counsel for the Appellant raised a threshold objection to the admissibility of this recording upon the basis that s.306I does not apply to a special hearing. 10 On 29 January 2009, her Honour ruled that the Crown may tender as evidence in the special hearing a record of the original evidence of the complainant provided that the other requirements of s.306I have been met. On that day, her Honour issued a certificate under s.5F(3)(b) that the purported judgment or order was a proper one for determination on appeal by the Court of Criminal Appeal.

Submissions 11 The Crown contends that the decision under challenge does not constitute an "interlocutory judgment or order" within the meaning of s.5F so that the appeal is incompetent. The Crown submits that the decision was a ruling on the admissibility of evidence and that such rulings are not susceptible to appeal under s.5F: R v Steffan (1993) 30 NSWLR 633 at 639-40; R v Glossop [2001] NSWCCA 165 at [15]-[19]; R v Lavender (2002) 37 MVR 491; [2002] NSWCCA 511 at [8]; Kocer v R [2006] NSWCCA 328 at [1], [10], [15]. Rulings on the admissibility of evidence can be challenged following conviction on an appeal under s.5(1) Criminal Appeal Act 1912: Kocer v R at [19]. 12 The Crown submits that the ruling under challenge was not a judgment or order. There was no judgment determining an identifiable part of the proceedings. Nor was there an order that something be done (or not done): R v Steffan at 639. Matters relating merely to the manner of conduct of the trial do not qualify as interlocutory judgments or orders: R v Sinanovic [2001] NSWCCA 217 at [16]. 13 Mr Ramage QC, for the Appellant, submits that the appeal is competent and that this Court has jurisdiction to entertain it. He submits that the decision under challenge involved the proper construction of s.306I and not the admissibility of evidence. He referred to R v Milakovic [2004] NSWCCA 199, a Crown appeal under s.5F(3A), in support of this submission.

14 Section 306I lies within Chapter 6 (ss.274-306ZP) of the Criminal Procedure Act 1986, entitled "Evidentiary Matters". Part 5 of Chapter 6 (ss.290-306L) is entitled "Evidence in Sexual Offence Proceedings". Section 306I lies within Division 4 (ss.306H-306L) which is entitled "Special Provisions Relating to Subsequent Trials of Sexual Offence Proceedings". The heading to s.306I is "Admission of evidence of complainant in new trial proceedings". 15 I am satisfied that the present decision constituted a ruling on the admissibility of evidence. The decision under challenge involved determination of the threshold question as to whether the procedure under s.306I was available where evidence is tendered at a special hearing. It was the first step to be considered concerning the admissibility of evidence tendered by the Crown. The decision under challenge involves a step along the way of a path concerning the admissibility of evidence. Whether that evidence is admitted, ultimately, will depend upon outstanding statutory matters under s.306I(3) and (5) concerning admissibility. The principle in R v Steffan, which has been applied repeatedly by this Court, has application to this case.

16 The decision in R v Milakovic is distinguishable. There, the Court held, at [9] and [22]-[30], that a ruling which refused the Crown leave to cross-examine a Crown witness under s.38 Evidence Act 1995 was a ruling related to an aspect of the conduct of the prosecution case and not a ruling on the admissibility of evidence. The decision in R v Milakovic was relied upon in R v RAG [2006] NSWCCA 343 at [11] in support of the conclusion that a decision that a witness was not competent to give unsworn evidence under s.13(2) Evidence Act 1995 was not a ruling on the admissibility of evidence. 17 In R v RAG, at [12]-[14], the Court distinguished R v Steffan and subsequent decisions of the Court where R v Steffan has been applied in the context of attempts to appeal under s.5F against rulings under Chapter 3 of the Evidence Act 1995 concerning the admissibility of evidence. In my opinion, the statutory scheme set out at [14] above supports the conclusion that the ruling that s.306I applied to the tender of evidence at a special hearing was a ruling on the admissibility of evidence. The reasoning in R v RAG supports this conclusion. 18 It should be observed that the Crown was the appellant in R v Milakovic and R v RAG under s.5F(3A), which provides expressly for a Crown appeal against a ruling on the admissibility of evidence in certain circumstances. That provision does not extend to an appeal under s.5F by an accused person. 19 Further, I am satisfied that the ruling in this case did not constitute an interlocutory judgment or order for the reasons advanced in the submissions of the Crown (at [12] above). 20 Of course, the grant of a certificate under s.5F(3)(b) does not operate to overcome the jurisdictional difficulty confronting the Appellant: R v Lavender at [1]; Kocer v R at [23].

Conclusion 21 The scheme set up by the Criminal Appeal Act 1912 confines appeals during the currency of proceedings on indictment to circumstances permitted by s.5F: R v Daher and Tochel [2004] NSWCCA 458 at [11]-[12]. If verdicts are returned adverse to the Appellant at the special hearing under s.22(1)(c) Mental Health (Criminal Procedure) Act 1990, an appeal will lie to the Court of Criminal Appeal as if by way of appeal against conviction: s.22(3)(c) Mental Health (Criminal Procedure) Act 1990; ss.2(1), 5(1) Criminal Appeal Act 1912; Subramaniam v R [2004] HCA 51 at [45]. The present ruling may be challenged on such an appeal. However, an appeal to this Court under s.5F against the relevant ruling is incompetent. 22 It was for these reasons that I joined in the order of the Court made at the conclusion of the hearing on 3 February 2009 that the appeal be dismissed as incompetent.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.