R v Elliot

The questions of law which the applicant seeks to raise are of considerable importance. They fall into two categories. The first relates to the powers of the National Crime Authority under ss 28 and 25 of the National Crime Authority Act 1984 Cth. Section 28 authorises the Authority to issue a summons to a witness to attend before the Authority at a hearing to give evidence and to produce documents. Section 25 authorises the holding of hearings for the purposes of a special investigation. Section 30 compels a witness summoned to a hearing to be sworn, to answer questions and to produce documents. The learned trial judge held that the National Crime Authority had exceeded its powers in conducting so much of the hearings as obtained the evidence which the prosecution now seeks to tender against the respective respondents. That conclusion was reached in part by reference to terms of a reference by the Minister pursuant to s 13(1) of the National Crime Authority Act. In so far as the conclusion depends on issues particular to the case, no point warranting a grant of special leave emerges.

In any event, the hearings by the Authority have been completed without any questions arising as to the scope of the powers available for exercise by the Authority in the case of any of the present respondents. An appeal from interlocutory proceedings in a criminal trial is not the appropriate vehicle for canvassing the scope of the powers of the Authority at the time when it summoned the respective respondents and required them to answer questions at a hearing before it.

The second category of questions relates to the admissibility of evidence obtained by the National Crime Authority from a witness during a s 25 hearing when the witness is subsequently tried on an indictment charging him with a criminal offence. In the criminal proceedings against the respective respondents pending in the Supreme Court of Victoria, Vincent J has ruled that, as the matter into which the National Crimes Authority was conducting a hearing when the relevant statements were made by the respective respondents did not empower the Authority to compel the giving of the evidence now sought to be tendered against them, that evidence was not given voluntarily. His Honour thus ruled that the evidence is not admissible on their trial. And that, despite the provisions of s 30(4) of the National Crime Authority Act which entitles a natural person to refuse to answer questions or to refuse to produce documents on the ground that the answer to the question or the production of the document might tend to incriminate that person. Whether such ruling is correct in law is an important question. It raises the question whether a purported but invalid exercise of power to compel the giving of evidence necessitates the conclusion that any evidence given is involuntary and, for that or any other reason, inadmissible. In an appropriate case, that question would warrant a grant of special leave.

What now falls for consideration, therefore, is whether this case, in which a question of importance has arisen from a preliminary ruling in a criminal trial, is one in which that question should be determined on appeal to this Court, assuming that an appeal lies under s 73 of the Constitution.

The procedure prescribed by s 391A of the Crimes Act is a special procedure by which the court may make preliminary rulings so as not to delay criminal trials once the jury is impanelled. The utility of such a provision is manifest, but the Legislature has prescribed this special procedure upon terms that no appeal should lie from the preliminary ruling to the Victorian Court of Appeal: see s 17A(3) of the Supreme Court Act 1986 Vict. That is the court which has the ordinary jurisdiction to entertain appeals generally from the Supreme Court in the exercise of its primary criminal jurisdiction. As the joint judgment in Smith v The Queen [1] observes:

It would appear that s 14(3) [now s 17A(3)] was intended to avoid the fragmentation of criminal trials by appeals brought from rulings before or during the course of a trial, whilst allowing appeals where there was a conviction by a single judge. 1. (1994) 181 CLR 338 at 346.

It is understandable that the ordinary course of criminal procedure in Victoria requires the interlocutory rulings of a trial judge to be accepted for the purposes of the trial, whether those rulings be right or wrong. If the rulings are wrong then, upon conviction, an accused person is entitled to challenge the ruling on appeal. But the prosecution has no such right. If the ruling results in an acquittal the ruling, albeit erroneous, can be canvassed on appeal, but only to correct the ruling - not to impeach the acquittal: see s 450A.

Obviously two considerations are in competition here. On the one hand, the prosecution is entitled no less than the defence to a trial according to correct rulings on questions of law. On the other, interlocutory appeals in criminal trials delay the trial and are likely to produce miscarriages of justice in ways unrelated to the ruling. The personal and financial stress of criminal trials, the dimming of witnesses' memories and the sheer delay between criminal conduct and the administration of condign punishment are factors which weigh heavily in favour of expediting the process of the criminal trial even though incorrect rulings have to be accepted by the prosecution in order to achieve that object, subject to s 450A. The legislative scheme gives greater weight to the despatch of criminal trials than it has given to protecting the prosecution's ability to appeal against rulings which it thinks to be incorrect.

It follows that a grant of special leave in the present case would significantly frustrate the process of the criminal trial as prescribed by the Victorian Parliament. This Court has long been extremely reluctant to intervene in criminal trials by granting special leave to appeal against interlocutory decisions. The present case, though it raises important questions for consideration, does not warrant a departure from the practice of this Court and the policy that is manifest in the Crimes Act Vict.

On the issues argued by counsel for the applicant, and in the light of this conclusion, it is unnecessary for this Court to address the question whether an appeal might lie from the interlocutory ruling of Vincent J pursuant to s 73 of the Constitution.

Solicitor for the applicant, P Wood , Solicitor to the Director of Public Prosecutions (Vict) . Solicitors for the respondents, Barker Gosling ; Arnold Bloch Leibler ; Phillips Fox ; Coadys ; Galbally & O'Bryan ; and Newbury Bell .