POLICE v DORIZZI, SKLIFOFF, HILL & MCBEATH No. SCCIV-01-1270 [2002] SASC 356

"The Learned Appeal Judge erred in failing to adequately consider whether the decision by the Magistrate to dismiss the Information was correct; whilst the Learned Appeal Judge considered the ruling of the Magistrate, he did not consider whether the evidence before the court (including the excluded evidence) was sufficient to make out the charge."

Subsequently, leave was given to the other appellants to appeal on the same ground.

In order to address the issues raised on appeal, it is necessary to have regard to the appeal provisions in the Magistrates Court Act 1991 (the Act). Section 42 provides as follows:

"42.(1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).

(1a) An appeal does not, however, lie against an interlocutory judgment given in summary proceedings.

(a) in the case of an action relating to an offence categorised under the Summary Procedure Act 1921 as an industrial offence - to the Industrial Court; or

(b) in any other case - to the Supreme Court constituted of a single Judge (but the Judge may, if he or she thinks fit, refer the appeal for hearing and determination by the Full Court).

(4) On an appeal, the appellate court may, if the interests of justice so require, re-hear any witnesses or receive fresh evidence.

(5) On the hearing of the appeal, the appellate court may exercise any one or more of the following powers:

(a) it may confirm, vary or quash the judgment subject to the appeal and, if the Court thinks the interests of justice so require, it may vary or quash any other judgment given in the same or related proceedings;

(b) it may remit the case for hearing or further hearing before the Magistrates Court;

(c) it may make any other order (including an order for costs) that may be necessary or desirable in the circumstances.

(6) Where a judgment or order has been confirmed, varied or made on appeal under this section, the Magistrates Court has the same authority to enforce that judgment or order as if it had not been appealed against or had been made in the first instance."

"Judgment" is defined in s 3(1) of the Act to mean, unless the contrary intention appears, "a judgment, order or decision and includes an interlocutory judgement or order".

Section 42(1a) specifically excludes appeals from interlocutory judgments given in summary proceedings. Presumably, the policy behind the restricted right of appeal is to prevent summary proceedings from being fragmented. Furthermore, it is relevant to bear in mind that a ruling on the admissibility of evidence is not a judgment in any event. In Legal Practitioners Complaints Committee v A Practitioner (1987) 46 SASR 126 King CJ considered the nature of the right to appeal provided for in s 50 of the Supreme Court Act 1935 which applies, inter alia, to "every judgment . . . order, or direction of a judge". King CJ said (127):

"A judgment or order is a judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings then before the court or judge. The question decided may be the substantive question or one of the substantive questions raised in the action; or it may be the question or one of the questions raised in interlocutory proceedings taken in the course of the progress of the action. Judgments and orders on the one hand are to be distinguished from incidental rulings given in the course of hearing and determining such questions. Examples of such incidental rulings are those which relate to adjournments, the time and place of hearing, admissibility of evidence and the exclusion or otherwise of witnesses from the hearing, as well as decisions upon submissions as to matters of fact law or procedure made during the course of a hearing. Such incidental rulings are not judgments or orders and are therefore not appealable even by leave."

The appeal from the magistrate to the single judge did not purport to be other than an appeal against a final judgment, namely, the dismissal of the information. However, when the veil is lifted to reveal the true nature of the appeal, it is clear that its purpose was to test the magistrate's ruling on admissibility. It was always the intention of the prosecution to seek a favourable decision on this issue on appeal and an order that there be a retrial on the charges. The prosecution was motivated by what appeared to be practical reasons for this approach. It was considered inappropriate to call a large number of witnesses after the magistrate's ruling when there was a clear possibility, or even likelihood, that, at least in the case of some of the appellants, there would not have been sufficient evidence for a case to answer without the evidence which had been excluded. Nevertheless, for the reasons which follow, it is my view that an appeal on this basis is contrary to the intent and purpose of the appeal provisions in the Act.

As I have suggested, the appeal provisions recognise the well accepted principle that, as a general rule, proceedings in trial courts should not be fragmented as a result of appeals against interlocutory judgments or rulings on admissibility. It is a consequence of this principle that hitherto the invariable practice has been for the prosecution to establish a case at first instance before initiating an appeal against acquittal.

There is obvious tension between this consideration and the advantage of obtaining an appellate ruling in the course of a case so as to avoid unnecessarily pursuing a particular issue in the case. However, the legislature has favoured the option which avoids disruption to hearings.

There are some limited concessions to the advantage of obtaining a ruling from a higher court in the course of a trial. Section 43 of the Act provides for a case stated on a question of law. In the criminal jurisdiction, a judge of the Supreme Court or District Court can also state a case for the consideration of the Full Court on a question of law or a question about how a judicial discretion should be exercised or whether a judicial discretion has been properly exercised (Criminal Law Consolidation Act 1935 s 350). Even in these situations, however, the question is not to be reserved if it would unduly delay the trial (s 350(3)) and the Full Court has stressed the importance of this consideration by urging restraint in the use of the procedure (Application for Reservation of Question of Law (No. 2 of 1999) [1999] SASC 260; (1999) 106 A Crim R 423; R v Gee and Anor [1999] SASC 116; (1999) 72 SASR 593).

I have expressed the view that the appeal to the single judge was contrary to the nature and purpose of the appeal provisions in the Magistrates Court Act. This conclusion becomes more evident when regard is had to the fact that the appeal is against the order of dismissal. Although the appeal is against this order, it has always been conceded that the dismissal was correct in that there was insufficient evidence to make out a case to answer.

Furthermore, in the state of the prosecution case at the time it was closed, there could have been no case to answer, whether or not the video evidence was taken into account.

Mr Walter, for the respondent, argued that a causal link between error and miscarriage of justice arose from the fact that the prosecution decided not to continue with its case once the ruling was made. In my view this argument cannot be accepted. Apart from the conceptual difficulty inherent in appealing against an order which was properly made, any miscarriage of justice said to arise from a ruling on evidence must be apparent from a consideration of the material before the court. The appeal court cannot speculate on whether the prosecution could have established its case from evidence which it decided not to call.

The inappropriateness of appealing against a dismissal of charges when the prosecution has not established a case to answer at first instance is further demonstrated by the general nature of an appeal under the Act. An appeal pursuant to s 42 of the Act is an appeal by way of rehearing as opposed to an appeal de novo or an appeal strictly so called. The various types of appeal were discussed by Cox J in Wigg v Architects Board of South Australia (1984) 36 SASR 111. The nature of the appeal under s 42 was discussed by Lander J in Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150. His Honour said (189):

"It is not an appeal stricto sensu, which is confined to a consideration of the judgment on the material which the lower court had before it. Nor is it an appeal de novo because the complainant/informant is not called upon to start his or her case again and call witnesses. It is an appeal by way of re-hearing which means a rehearing 'of the cause at the date of the appeal, that is 'by trial over again on the evidence used in the Court below; but there is special power to receive further evidence': in Re Chennell (1878) 8 Ch D 492', per Mason J in Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 619. See also Wigg v Architects Board (SA) (1984) 36 SASR 111. An appeal under the Justices Act was in the nature of a rehearing: Gray v Jones [1948] SAStRp 13; [1948] SASR 201.

In the case of appeals under this section the court has the further statutory power to rehear any witnesses. The rights of the parties on the appeal are to be determined on the facts before the appeal court and by the law applying at the time of the appeal and this Court may give such judgment 'as ought to be given if the case at that time came before the Court of first instance', per Mason J, Builders Licensing Board v Sperway Constructions (Sydney) Pty Ltd (at 620)."

In CDJ v VAJ (1998) 197 CLR 172 the High Court considered the nature of an appeal by way of rehearing, which in that case was an appeal to the Full Court of the Family Court pursuant to s 93A(2) of the Family Law Act 1975 (Cth). After acknowledging that a provision conferring jurisdiction on the court should be construed liberally, McHugh, Gummow and Callinan JJ went on to say in their joint judgment (para 111):

"Still another consideration is that the discretion is given to an appellate court hearing an appeal against an order made in the exercise of original jurisdiction. No doubt it is true that, because the appeal is by way of rehearing, the Full Court's jurisdiction is neither purely appellate nor purely original Ex parte Australian Sporting Club Ltd; Re Dash [1947] NSWStRp 11; (1947) 47 SR(NSW) 283. In Attorney-General v Sillem [1864] EngR 352; (1864) 10 HLC 704 [11 ER 1200], Lord Westbury LC pointed out that '[a]n appeal is the right of entering a superior Court, and invoking its aid and interposition to redress the error of the Court below' Sillem [1864] EngR 352; (1864) 10 HLC 704 at 724 [11 ER 1200 at 1209]. Appellate jurisdiction in the strict sense is jurisdiction to determine whether the order of the court below was correct on the evidence and in accordance with the law then applicable Ponnamma v Arumogam [1905] AC 383 at 388; Victorian Stevedoring [1931] HCA 34; (1931) 46 CLR 73 at 109. In contrast, the Full Court of the Family Court must decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal Victorian Stevedoring [1931] HCA 34; (1931) 46 CLR 73 at 107. Speaking of the similar jurisdiction of the English Court of Appeal, the Master of the Rolls, Sir George Jessel, said that the appeal is a 'trial over again, on the evidence used in the Court below; but there is a special power to receive further evidence' In re Chennell; Jones v Chennell (1878) 8 Ch D 492 at 505. Nevertheless, it is highly unlikely that Parliament in conferring jurisdiction on the Full Court to hear appeals intended that s 93A(2) should be construed in a way that would have the practical effect of obliterating the distinction between original and appellate jurisdiction. Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial."

In the present case no evidence was called by the prosecution on the hearing of the appeal before the judge appealed from and an important consequence of the prosecution's decision not to call any evidence at the summary trial except that which related to the video material, is that the appeal court was deprived of the opportunity to reach a conclusion on the case as a whole so as to finally dispose of it. In other words, the appeal court could not consider the combined effect of the evidence which the prosecution proposed to lead together with the video evidence which the judge decided should have been admitted into evidence.

As for the alternative course of considering whether to remit the matter for retrial, the court was also deprived of the opportunity to consider the video evidence in the context of the remainder of the prosecution case as disclosed by evidence which had been led in the usual way. All that it could refer to was an intimation by the police prosecutor of the broad nature of the evidence which the prosecution proposed to lead. This information was contained in an affidavit by the police prosecutor which set out his recollection of what he had said to the magistrate in the course of opening his case.

These considerations confirm further the fact that an appeal in these circumstances is contrary to the nature and purpose of the appeal provisions in the Act. If the prosecution evidence had been led, a proper assessment could have been undertaken by the appellate court as to whether the prosecution had established a case to answer by reference to the video evidence and the rest of the evidence in the prosecution case.

Instead, the prosecution has had the advantage of securing an order for a retrial solely by reason of the incorrect ruling by the magistrate. As I stated previously, the practical purpose of the appeal was to appeal against an evidentiary ruling in order that the proceedings could be reopened in the event of a decision favourable to the prosecution.

In the absence of any Australian authority to support his argument on the appropriateness of the appeal, Mr Walter relied on the case of R v Power (1994) 89 CCC (3d)1, a decision of the Supreme Court of Canada. In that case the accused was presented before the Supreme Court of Newfoundland for trial by jury on charges of impaired driving causing death and impaired driving causing bodily harm. The prosecutor sought to rely on the results of a breath analysis test taken from the accused. The admissibility of this evidence was challenged and the trial judge embarked upon a voir dire hearing. The evidence was ruled inadmissible. At this stage, the only other evidence that had been called at the trial was from a police officer who had taken photographs of the scene of the accident.

After the ruling, the prosecutor advised the court that he did not intend to call any further evidence. The trial judge directed the jury to return a verdict of acquittal.

The prosecutor then appealed to the Court of Appeal of Newfoundland on the ground that the excluded evidence should have been admitted. The Court of Appeal dismissed this appeal by a majority on the ground that there had been an abuse of process in that, instead of proceeding with the trial, the prosecution unreasonably declined to call further evidence which resulted in the acquittal of the accused.

The appeal to the Court of Appeal of Newfoundland was brought pursuant to s 676 of the Canadian Criminal Code which empowers the Attorney-General to appeal "against a judgment or verdict of acquittal of a trial court in proceedings by indictment on any ground of appeal that involves a question of law alone".

Section 686(4) of the Canadian Criminal Code sets out the powers of the court on appeal. It states:

"686(4) Where an appeal is from an acquittal, the Court of Appeal may

(b) allow the appeal, set aside the verdict and

(ii) except where the verdict is that of a court composed of a judge and jury, enter a verdict of guilty with respect to the offence of which, in its opinion, the accused should have been found guilty but for the error in law, and pass a sentence that is warranted in law, or remit the matter to the trial court and direct the trial court to impose a sentence that is warranted in law."

On a further appeal to the Supreme Court of Canada the court, by a majority of four judges to three, held that the s 686(4) of the Criminal Code conferred no discretion on the Court of Appeal to refuse to order a new trial where a reversible error of law had been found in the trial judge's decision. It was held that the trial judge had erred in his ruling and it was incumbent on the court to order a new trial.

The main issue dealt with in the judgments of the Supreme Court of Canada was whether the actions of the prosecutor constituted an abuse of the process of the court, thus rendering it inappropriate to order a new trial. It was held by the majority that in the absence of improper motive or bad faith on the part of the prosecutor, the court would not exercise its power to intervene on the ground of abuse of process. As the section conferred no discretion to refuse to order a new trial where a reversible error of law was found, the appeal was allowed and a new trial ordered.

The majority judgments of the Supreme Court of Canada proceeded on the basis that s 676 of the Code permits the prosecution to appeal against any acquittal, whether the acquittal is at the conclusion of a trial in which all the evidence has been called or after a directed acquittal consequent upon the prosecution closing its case after a ruling on a voir dire hearing but before making out a case to answer.

There would appear to be important differences between the Canadian legislation and the appeal provisions in the Magistrates Court Act. There is no reference in the reports of Power's case in the Supreme Court of Canada or the Supreme Court of Newfoundland to a statutory provision prohibiting appeals against interlocutory judgments. However, Marshall JA, who was a member of the majority in the Supreme Court of Newfoundland, held that it was unacceptable to allow the Crown a right to launch an interlocutory appeal whilst denying the defence the same entitlement (81 CCC (3d) 1 at 35).

Furthermore, there is a clear difference between the very broad powers conferred by s 42(5) of the Magistrates Court Act and the powers in s 686(4) of the Canadian Criminal Code which the majority were of the view left no discretion in the appellate court but to order a retrial in the event of error by the trial judge.

In my view, Power's case is of limited relevance to the present case.

For the reasons which I have given, the present appeal is flawed, however it is viewed. If it is to be regarded as an appeal against the dismissal then it cannot succeed because the magistrate acted correctly in dismissing the charges. The prosecution decided not to call evidence to establish a case to answer and I reject the respondent's argument that the original appeal should have been allowed because the prosecution acted in this way by reason of an incorrect ruling on the evidence.

If on the other hand, the purpose of the appeal is to do no more than overturn an evidentiary ruling so as to enable the case to be reopened, then the appeal provisions are being used for a purpose which is not authorised by the Act and the appeal should be dismissed.

I should add that these issues were not raised before the learned single judge. As I have mentioned previously, attention was drawn to them when the matter came before a differently constituted Full Court on the application for leave to appeal.

I would allow the appeal and set aside the orders of the learned judge. I would substitute an order dismissing the appeal from the magistrate.

DEBELLE J. I have had the advantage of reading the draft reasons of Duggan J. I agree with the substance of those reasons and the orders he proposes.

The difficulty confronting the prosecution on its appeal to the Supreme Court was that the decision under appeal was correct in that there was no sufficient evidence on which to determine whether there should be a new trial. Even if the prosecution secured a decision (as it did) that the videotape evidence had been wrongly excluded, the absence of other evidence would mean that the court was unable to determine whether to order a new trial. For that reason, this appeal must be allowed.

I sympathise with the prosecution which was faced with a difficult decision. Plainly, there was a very substantial cost in calling the other 40 or so witnesses. It was prudent to seek to avoid that cost. As the order excluding the videotape was an interlocutory order, the prosecution was prevented by reason of s 42(1) of the Magistrates Court Act from appealing against that order. It was also confronted with a question whether s 43 of the Magistrates Court Act permitted a case stated in the course of a trial. In short, the statutory provisions in respect of appeals to this Court from Magistrates Courts require this conclusion.

This is an instance where the interests of the proper administration of the criminal justice system required the admissibility of the videotape to be determined before calling the other witnesses. The conduct of the prosecution was not in any respect prompted by bad faith or an improper motive. In no respect did it intend to frustrate the administration of justice but rather seek to proceed in a way which was more conducive to the administration of justice.

This appeal, therefore, calls attention to the desirability of amending s 43 of the Magistrates Court Act to add a provision in terms similar to those in s 352(b) of the Criminal Law Consolidation Act 1935 which permits an appeal on a decision on an issue antecedent to the trial that is adverse to the prosecution.

WILLIAMS J. I agree with the reasons given by Duggan J and with the orders which he proposes.