KOCER v REGINA

Criminal Appeal Act 1912 (NSW) LEGISLATION CITED: Interpretation Act 1987 (NSW) Crimes Legislation Further Amendment Bill Supreme Court Act 1970

Lethlean v R (1995) 83 A Crim R 197 Project Blue Sky v ABA (1998) 194 CLR 355 Saraswati v R (1991) 172 CLR 1 Hall v Nominal Defendant (1966) 117 CLR 423 R v Steffan (1993) 30 NSWLR 633 CASES CITED: Peterborough v Overseers of Parish of Wilsthorpe (1883) 12 QBD 1 Maxwell v Keun [1928] 1 KB 645 Bloch v Bloch (1981) 180 CLR 390 Sali v SPC (1993) 67 ALJR 841 Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Ampolex Limited v Perpetual Trustee Company (Canberra) Limited (Unreported, NSWCA, 20.05.06)

PARTIES: A - Ali KOCER R - Regina

COUNSEL: A - Ertunc Ozen R - Nicole Noman

SOLICITORS: A - Nyman Gibson Stewart Solicitors R - S Kavanagh (Public Prosecutions)

• 1 - IN THE COURT OF CRIMINAL APPEAL 2006/2096 2006/1965

McCLELLAN CJ at CL BUDDIN J ROTHMAN J

1 McCLELLAN CJ AT CL: This is yet another case where an accused person has sought to raise a question in relation to the admissibility of evidence in this Court. This Court made plain in R v Steffan (1993) 30 NSWLR 633 that questions as to the admissibility of evidence at a trial are not amenable to review on the application of an accused person during the course of the trial. There are obvious and previously stated policy reasons for this position. 2 A trial judge is entrusted with the conduct of the trial and in only limited circumstances can his or her decision be reviewed in this Court during the course of the trial. The proper administration of the criminal justice system requires both the trial judge and this Court to be alert to ensure that the trial process is not fragmented by applications during the trial when ultimately, if an injustice occurs, it can be corrected on appeal to this Court.

3 I agree with Rothman J and the orders which his Honour proposes. 4 BUDDIN J: I agree with Rothman J and the orders which his Honour proposes. I also agree with the additional observations made by McClellan CJ at CL. 5 ROTHMAN J: Ali Kocer purports to appeal pursuant to the terms of s.5F of the Criminal Appeal Act 1912 (the Act) against the determination of his Honour Judge Goldring of the District Court of New South Wales made on 18 July 2006. An issue arises as to the competency of the appeal, which involves the construction of s.5F. Before dealing with that issue it is necessary to recite very briefly the nature of the matter which is sought to be appealed. 6 On 18 July 2006, Goldring DCJ determined that Constable Lehmann was acting on a reasonable suspicion when he chose to stop and search the vehicle registered NXA 21A at 11.05 pm on 12 September 2005. The accused has been charged with supply of prohibited drug in circumstances where those drugs hadbeen found on him following a roadside search of his clothing. The roadside search followed the decision by police to stop and search the abovementioned vehicle in which the accused was a passenger. The accused has pleaded not guilty. 7 On the first day of the trial, Counsel for Mr Kocer raised an objection to the admissibility of evidence, being the drugs that were allegedly found on the accused. That objection raised the issue of whether the officer was "acting on a reasonable suspicion" when he stopped and searched the vehicle in which Mr Kocer was travelling. A voir dire was held and the determination earlier referred to was made by his Honour. A more detailed explanation of the facts is unnecessary on this preliminary question. 8 On 8 September 2006, his Honour purported to issue a certificate pursuant to the terms of s.5F(3)(b) of the Act. It is necessary to set out the provisions. Section 5F of the Criminal Appeal Act 1912 applies to proceedings for the prosecution of offenders in the District Court [subsection 5F(1)(a)] and allows an appeal in the following terms: "(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal; or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal. (3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case." 9 There are other provisions of s.5F but none of them are relevant to the issue now being considered. As can be seen, in order for there to be a competent appeal to this Court against the determination of Goldring DCJ by Mr Kocer, the determination must be "an interlocutory judgment or order given or made in proceedings" within the meaning of subsection 5F(3) of the Criminal Appeal Act 1912. 10 The determination made by Goldring DCJ that the police officer was acting on a reasonable suspicion was part of the reasoning process in the determination of the admissibility of evidence. Whether the constable was acting on a reasonable suspicion is relevant to the lawfulness of the search and therefore the admissibility of the evidence. Notwithstanding the fascinating and important issue decided, the issue does not give rise to anything higher than a determination on the admissibility of evidence. 11 An order, in its ordinary meaning, is an adjudication between parties to the proceedings: Peterborough v Overseers of Parish of Wilsthorpe (1883) 12 QBD 1; Maxwell v Keun 1 KB 645; Bloch v Bloch (1981) 180 CLR 390 at 395; Sali v SPC (1993) 67 ALJR 841 at 843. 12 It was no doubt the general view of an interlocutory order which caused Kirby P (as he then was) to state, in obiter dicta, that a ruling of a trial judge in a criminal trial to admit or reject evidence is an interlocutory order within the terms of the Supreme Court Act 1970: Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 610-611. However, the question of whether a ruling on the admissibility of evidence is an order or an interlocutory order is not, even on the general view, without controversy: Ampolex Limited v Perpetual Trustee Company (Canberra) Limited (Unreported, NSWCA, 20.05.06). 13 The most widely accepted definition of an interlocutory order is that given by Taylor J in Hall v Nominal Defendant (1966) 117 CLR 423 at 440: "An order made in the course of an action or suit which does not conclude the rights of the parties inter se , though it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only." 14 With that general definition and general principles in mind, it is necessary to look at the particular provisions relating to s.5F of the Criminal Appeal Act 1912. This Court in R v Steffan (1993) 30 NSWLR 633 determined that a ruling on evidence made in advance of or in the course of a trial is not an interlocutory judgment or order within the meaning of s.5F of the Criminal Appeal Act 1912. In that case, the Court (Hunt CJ at CL, Grove and Sharpe JJ) said: "In our opinion, the decisions of this Court remain applicable and cannot be distinguished upon the basis put forward by the applicant. We are, with respect, unable to accept the obiter dicta expressed by the Court of Appeal in Chow v Director of Public Prosecutions as correct. Even the Supreme Court Act makes a clear distinction for the purposes of appeal between 'judgments and orders' (s.101) and a 'decision' on any question or issue ordered to be decided separately (s.103): cf. National Employers Mutual General Insurance Associated Limited v MMI (1989) 17 NSWLR 223. Accordingly, in our opinion, a ruling on evidence made in advance of or in the course of the trial in either the Supreme Court or the District Court, is not an interlocutory judgment or order within the meaning of s.5F of the Criminal Appeal Act ." 15 Analysis of the terms of s.5F make that finding plainly correct. Subsection 5F(3A) of the Act allows the Crown to appeal against a decision or ruling on the admissibility of evidence in certain circumstances. If an interlocutory judgment or order included a decision or ruling on the admissibility of evidence, ss.5F(3A) would be otiose. It may have one possible use: the terms of ss.5F(3A) might be an express provision limiting the general power to appeal contained in ss.5F(2): see Saraswati v R (1991) 172 CLR 1. 16 Even before the enactment of the provisions of s.33 of the Interpretation Act 1987 and the injunction of the High Court in Project Blue Sky v ABA (1998) 194 CLR 355, an examination of the purpose for which ss.5F(3A) was enacted would have been permissible to discover the mischief at which it was directed. In that regard the Second Reading Speech is instructive. 17 The Minister in the Second Reading Speech to the Crimes Legislation Further Amendment Bill, which, by item 8 of Schedule 3, introduced ss.5F(3A), said this: "Item [8] of Schedule 3 gives effect to a Government election commitment to provide the Crown with new powers to appeal during the course of a trial when evidence is excluded by the trial judge that has the effect of 'substantially weakening', but not necessarily 'destroying' the Crown case. Under s.5F(2) of the Criminal Appeal Act 1912 the Director of Public Prosecutions or the Attorney General may currently appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which s.5F applies. The Court of Criminal Appeal has held that an evidentiary ruling by a trial judge that effectively excludes the entire Crown case is a judgment or order for the purposes of s.5F(2) of the Act because the ruling effectively stays the Crown case. However, a ruling excluding Crown evidence which weakens but does not destroy the Crown case has been held not to be a judgment or order and is therefore not appellable under the existing s.5F(2). This amendment amends the Criminal Appeal Act to allow the Crown to appeal against an evidentiary ruling which substantially weakens the Crown case. If an acquittal results from an erroneous evidentiary ruling, the Crown, has no avenue of appeal against the acquittal. The Crown should therefore be able to test the correctness of such a ruling made during the trial, so that an accused may not derive the benefit of an acquittal secured as a result of an erroneous evidentiary ruling. It is not desirable that criminal trials be unnecessarily disrupted for the purpose of appealing evidentiary rulings. It is therefore anticipated that the Crown would exercise this new appeal power only sparingly."

I emphasise the reference to "new powers" and the legislative purpose stated in the Speech.

18 In order to give full effect to both ss.5F(2) and (3) of the Act, "interlocutory order" must not include a decision or ruling on the admissibility of evidence. Further, interlocutory judgment or order in ss.5F(3) of the Act must have the same meaning as it does in ss.5F(2). 19 Further no absurdity or lack of fairness results from the above construction. An accused person standing trial before the District Court who is disadvantaged significantly by a ruling on evidence and is ultimately convicted has a full right of appeal against that conviction. To the extent that the ruling or decision to admit the evidence has an impact upon the verdict, the rights of such an accused person are fully protected.

Stated Case 20 As well as certifying or purporting to certify pursuant to the terms of s.5F(3)(b), the trial judge also purported to state a case. It is not clear under which section of the Criminal Appeal Act 1912 the judge purported so to do. Section 5B of the Act allows a judge of the District Court to submit any question of law "arising on any appeal to the District Court in its criminal and special jurisdiction" to be stated. The question submitted is not a question of law arising on an appeal to the District Court. Section 5B of the Act is intended to deal with a question of law such as that which arises on appeal from the Local Court to the District Court, which is thought by the judge of the District Court to be a matter appropriate for reference as a question to the Court of Criminal Appeal. 21 As I understand it, the appeal under s.5F of the Act was filed in circumstances where the Crown objected to the competence of the stated case and was intended by the applicant to subsume the stated case. In any event, no case can be stated under s.5B of the Act and the case stated is also incompetent.

Conclusion 22 It is important to understand that the legislative intention is that criminal trials will be dealt with by the trial judge without undue interference by interlocutory appellate procedures. There are a limited number of exceptions in which the legislature has determined that there may be an appeal, because of the effect of the order on the trial as a whole and, usually, the absence of appeal rights if the trial proceeds to its conclusion. 23 The trial judge issued a certificate under ss.5F(3)(i)(b). It cannot be stressed too highly that trials should proceed without interruption by interlocutory appeals, except where to do otherwise may permanently affect the rights of a party or so inconvenience the trial that an interruption is necessary, in the interests of justice. It will rarely be appropriate for a trial judge to issue a certificate and it will be done only when, in addition to the foregoing considerations, the judge has substantial doubt about the correctness of the order made. As this Court said in Lethlean v R (1995) 83 A Crim R 197 at 206: "I would add that although, in the present case, the trial judge granted a certificate, in my opinion and with due respect, he clearly should not have done so. His Honour apparently had no doubt that he had ruled correctly and said he was prepared to grant the certificate with considerable reluctance. A certificate should be granted only if the trial judge considers there is substantial doubt about the interlocutory judgment given or order made and that it is convenient that the Court of Criminal Appeal resolve that doubt before the trial proceeds further. The trial judge should bear in mind the general disadvantages of appeals on interlocutory matters. These include that the appeal may ultimately prove to have been either unnecessary or an unnecessary duplication of the appeal process."

An interlocutory appeal should be a last resort and not a tactic to delay the trial or undermine the finality of the trial process. 24 This purported appeal under s.5F does not fit within one of the legislative exceptions and is incompetent. 25 As discussed, the stated case is also incompetent. 26 I propose that each of the appeal and the stated case be dismissed. **********

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