Solicitors:
Applicant self-represented
Office of Director of Public Prosecutions (Respondent)
File Number(s): 2014/190130; 2018/243717
Decision under appeal Court or tribunal: District Court
Jurisdiction: Criminal
Date of Decision: 08 August 2018; 13 August 2018; 20 August 2018; 23 August 2018
Before: Frearson DCJ
File Number(s): 2014/190130
[2]
Judgment
BASTEN JA: On 2 August 2018 the applicant, Tony Liristis, was arraigned in the District Court on an indictment containing six counts involving allegations of various non-consensual sexual activities with three complainants. Judge Frearson, before whom the applicant was arraigned, was required in the ensuing weeks to make a number of interlocutory decisions with respect to the conduct of the forthcoming trial. The applicant seeks to challenge certain of those rulings.
On 27 August 2018 the applicant signed a form under the Criminal Appeal Act 1912 (NSW) purportedly giving notice of an application for an extension of time or to apply for leave to appeal. It should be inferred that he was seeking to appeal against an order made on 20 August 2018, that being the date inserted against the heading "Date of conviction or sentence". On 20 August 2018 the trial judge refused an application for a permanent stay of the proceedings. However, the judge did grant an adjournment of the trial to allow steps to be taken by the defence to obtain access to material on encrypted hard drives which were in the possession of the applicant until seized by police. They have been made available to the applicant.
Assuming that the intention was, as confirmed in oral submissions, to seek leave to appeal pursuant to s 5F(3)(a) of the Criminal Appeal Act, the form was clearly deficient in a formal sense in that it failed to identify the actual order or orders from which the appeal was brought and, importantly, failed to identify any grounds on which leave might be granted.
On 8 August 2018 a summons was filed in the Court of Appeal which also contained deficiencies. The document appears to have been a photocopy of a summons filed for a different purpose, containing the signature of the applicant and the date 26 December 2017. It sought a stay of the applicant's criminal trial. The summons was accompanied by a document purporting to be an affidavit, dated 13 July 2018 but filed on 8 August 2018. Neither the summons nor the affidavit identified any decision in the District Court which was to be reviewed. The affidavit (which ran to some 22 pages and 150 paragraphs) set out the material which might have been relevant to a first instance application for a stay of proceedings.
Two matters may be noted at this stage with respect to the affidavit. First, it was undoubtedly prepared following the decision of this Court in Commissioner for Corrective Services v Liristis [1] delivered on 28 June 2018, to which it made reference. Indeed, the affidavit set out extracts from the judgment of the primary judge (whose decision was overturned in this Court) and pages of extracts from the judgment of the dissenting judge in this Court. None of that material bears on the present application, although it is clear that the applicant was familiar with the judgment of this Court and therefore with the conclusion that the Supreme Court in the exercise of its supervisory jurisdiction did not have power to make orders against third parties in aid of a criminal trial in another court.
The second matter to note is that the applicant has the assistance (for some purposes) of a solicitor. The solicitor countersigned the last page of the affidavit, which did not contain the usual jurat or affirmation clause. None of the other pages was signed. The purport of that signature was unclear.
The day before the hearing of the applications, the Court of Appeal Registrar was provided by the solicitor for the applicant with a number of documents, including one entitled "Submissions" which contained the file number in the Court of Appeal. The submissions identified the issues before the Court in the following terms:
"1. My Appeal will include in addition to the Appeal for the Stay Application include the following,
a. Appeal against Frearson J's decision against the Application for Separate Trials and Tendency and Coincidence that was heard in the Sydney District Court on 8 August 2018
b. Appeal against Frearson J's decision against the Defence application to admit evidence that was heard in the Sydney District Court on 13 August 2018
c. Appeal against Frearson J's decision against the Warrant and section 219 Application that was heard in the Sydney District Court on 23 August 2018
2. I will also be seeking declaratory relief in the Supreme Court of NSW (As per the Summons re the Warrant, which is attached) to be adjourned and heard on 14 September 2018."
The written submissions were largely devoted to the second matter, namely a decision made pursuant to s 293 of the Civil Procedure Act 1986 (NSW) in relation to "the defence application to admit evidence", which was the subject of a ruling made on 13 August 2018. Those submissions extended through pages 2-17 (inclusive) of the submissions.
There followed a section headed "Inappropriate and Unfair and Offensive Comments and Remarks made by his Honour Frearson J against the Appellant". That material commenced on page 17 and concluded halfway through page 20. These comments and remarks were said to have "affected" and to be "clearly reflected in" the judgments, presumably being the ruling sought to be challenged. No further reliance was placed upon that material.
The submissions then sought, in one paragraph, to withdraw the stay application, and the challenges to the rulings made on 8 August 2018 and 23 August 2018. That intention has been confirmed by the applicant in oral submissions.
All of the applications are misconceived and should be dismissed. If by seeking to "withdraw" the applications, the applicant was intending to revisit them at some later date, that course should not be permitted. As the following reasons will explain, the scope for review of interlocutory judgments under s 5F of the Criminal Appeal Act is limited and does not extend to rulings on evidence or other rulings of a procedural kind which are necessary for the orderly conduct of criminal proceedings before a jury. Further, such rulings cannot properly be the subject of relief in the supervisory jurisdiction of this Court for the same reason as that limiting the scope of s 5F interlocutory appeals under the Criminal Appeal Act, namely that they do not finally dispose of the rights of a party and, if made in error, may be the subject of appeal at the end of the criminal trial, if the accused is convicted.
Trial judges are well familiar with these principles and it may be expected that, if further applications of a similar kind are made, they will not be permitted to delay or interfere with the course of the criminal proceedings.
[3]
Interlocutory appeals
As it was unclear from the voluminous documents which have been filed by the applicant whether he was invoking the appellate jurisdiction of the Court of Criminal Appeal, or the supervisory jurisdiction of the Court of Appeal, the Court has been constituted to exercise both jurisdictions.
Section 5F of the Criminal Appeal Act relevantly provides:
5F Appeal against interlocutory judgment or order
(1) This section applies to:
…
(b) proceedings under sections 97 and 99 and Division 9 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, and
…
(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.
…
(4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.
(5) The Court of Criminal Appeal:
(a) may affirm or vacate the judgment, order, decision or ruling appealed against, and
(b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against.
(6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.
…
It was established soon after the commencement of s 5F that the provision did not apply to rulings on the admissibility of evidence as these did not fall within the expression "interlocutory judgment or order" in s 5F(3). The first reported case in a line of authorities appears to have been R v Powch delivered on 24 August 1988. [2] The limitation was further explained in R v Edelsten [3] and R v Steffan, [4] recently cited with approval in R v Seller; R v McCarthy. [5] Some rulings, which may have the effect of excluding evidence but go further, may constitute interlocutory judgments or orders, as considered in R v Seller and in R v Cheikho. [6] Accordingly, it is necessary to identify the nature of the rulings made in the present case.
The applicant sought to cross-examine two of the complainants in the criminal trial, known as SG and AD, in a manner which attracted the operation of s 293 of the Criminal Procedure Act. Section 293 is headed "Admissibility of evidence relating to sexual experience" and renders various categories of evidence relating to "sexual reputation", "sexual experience" and "sexual activity" inadmissible. It may affect the cross-examination of a complainant: s 293(2), (3) and (5). The prohibition is limited to exclude evidence which is temporally related to the commission of the alleged offence, together with an exception for cross-examination where the prosecution evidence has disclosed or implied sexual experience or sexual activity and the accused might be unfairly prejudiced if the cross-examination were not permitted: s 293(4) and (6).
In his judgment delivered on 13 August 2018, the trial judge addressed the evidence sought to be adduced and the relevant provisions of the section. Part of the evidence with respect to one complainant was not objected to and was held to be admissible. Other evidence relating to that complainant and to the other complainant was rejected.
This was a conventional ruling on admissibility and would, according to the principles stated in the cases referred to above, fall outside the scope for an interlocutory appeal pursuant to s 5F of the Criminal Appeal Act. The applicant's written submissions did not explain, nor could there be gleaned from them, any reason why an interlocutory appeal would be available. The applicant was unable to add anything in oral argument. Accordingly, the application for leave to appeal from the judgment with respect to the admission of evidence, governed by s 293 of the Criminal Procedure Act and delivered on 13 August 2018, must be refused.
It should be added that the lengthy written submissions in this regard (which set out much of the evidence verbatim and to which the applicant sought leave to make further reference in the course of oral submissions) in effect sought to reagitate the merits of the ruling made by the trial judge. The material did not suggest that there was any error of principle or error of law in the approach adopted by the judge, nor was there any patent error.
[4]
Supervisory jurisdiction
To the extent that the applicant sought to invoke the supervisory jurisdiction of the Court of Appeal, pursuant to s 69 of the Supreme Court 1970 (NSW), the application should be dismissed for the following reasons.
First, any application for relief in the nature of the former prerogative writs is, conventionally, founded on there being a final decision affecting the rights or interests of the individual applicant. Prior to 1987, there were a number of cases in which the refusal in criminal proceedings of an application for a permanent stay had been entertained by the Court of Appeal in its supervisory jurisdiction. One purpose, if not the primary purpose, of the introduction of s 5F into the Criminal Appeal Act was to ensure that such matters were disposed of in the Court of Criminal Appeal, rather than in a civil jurisdiction. The language of "interlocutory judgment or order" reflected the limitation of the supervisory jurisdiction. Accordingly, there is no reason to suppose that the supervisory jurisdiction would operate in circumstances where s 5F was not engaged because there was no interlocutory judgment or order. There was no submission to the contrary before this Court.
Further, in accordance with general principles, the Court will be reluctant in the exercise of the supervisory jurisdiction and, as relied upon by the applicant in oral submissions, any jurisdiction otherwise conferred by s 23 of the Supreme Court Act, to intervene in the course of a criminal trial, for reasons articulated in Smith v Commissioner of Corrective Services in 1978. [7] More recently, French CJ in Alqudsi v The Queen [8] said that there is "ample authority for the proposition that this Court should be reluctant to disturb the progress of pending criminal proceedings." The Chief Justice quoted with approval the observations of Kirby J in Pan Laboratories Pty Ltd v The Commonwealth [9] that "great restraint must be exercised by the High Court and by other courts of appeal and review before issuing orders or taking steps which may disturb or fragment the course of a criminal trial."
To similar effect, in Gedeon v Commissioner, New South Wales Crime Commission [10] the Court said:
"[23] With respect to the exercise of the power to make the declaratory orders now sought by the applicants, authority in this Court affirms an important general principle. This is that power to make declaratory orders should be exercised sparingly where the declaration would touch the conduct of criminal proceedings. The fragmentation of the criminal process is to be actively discouraged."
It follows that, even were there jurisdiction in the Court of Appeal to intervene in circumstances where intervention under s 5F of the Criminal Appeal Act was not available, it is most unlikely that the Court would do so, rather than decline to grant relief on a discretionary basis. For present purposes it has been assumed that the Court of Appeal has jurisdiction to entertain proceedings under s 69 of the Supreme Court Act in relation to proceedings for the prosecution of a person on indictment in the District Court, despite the terms of s 17(1) and par (a1) of the Third Schedule of the Supreme Court Act. [11]
The Court of Criminal Appeal should make the following order:
To the extent the applicant seeks leave to appeal pursuant to s 5F of the Criminal Appeal Act from the following rulings of the District Court:
(a) the refusal on 8 August 2018 of an application for separate trials;
(b) the refusal on 13 August 2018 of an application to admit evidence pursuant s 293 of the Civil Procedure Act 1986 (NSW);
(c) the grant on 20 August 2018 of an adjournment but refusal of a permanent stay;
(d) the refusal on 23 August 2018 of an application with respect to the issue of a warrant;
refuse leave to appeal.
The Court of Appeal should make the following orders:
(1) Dismiss the summons:
(a) to the extent the applicant seeks review under s 69 of the Supreme Court Act 1970 (NSW), and
(b) to the extent the applicant seeks relief under s 23 of the Supreme Court Act
of rulings made by the District Court in exercise of its criminal jurisdiction with respect to the applicant.
(2) No order as to the costs of the summons proceedings.
(1989) 18 NSWLR 213 at 216 (Lee CJ at CL); see also Newman J and Loveday J at 221 and 222 respectively.
(1993) 30 NSWLR 633; 67 A Crim R 506 (Hunt CJ at CL, Grove and Sharpe JJ).
(2015) 89 NSWLR 155; [2015] NSWCCA 76 at [82] (Bathurst CJ, Fullerton J and Bellew J relevantly agreeing).
(2008) 75 NSWLR 323; [2008] NSWCCA 191.
[1978] 1 NSWLR 317.
(2015) 90 ALJR 192; [2015] HCA 49 at [22].
(1999) 73 ALJR 464 at [11].
(2008) 236 CLR 120; [2008] HCA 43.
Barr (a pseudonym) v Director of Public Prosecutions (NSW) [2018] NSWCA 47 at [31]-[45] (Leeming JA, N Adams J agreeing); Commissioner of Corrective Services v Liristis [2018] NSWCA 143 at [96]-[103].
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Decision last updated: 12 September 2018