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[2025] QCA 241
respondent. Application for leave to appeal struck out for want of jurisdiction.
The Court of Appeal did not decide whether the new indictment was properly drafted or whether the compulsory interview transcripts could be used. It decided only that it had no jurisdiction to hear an interlocutory appeal against the District Court's refusal to quash the indictment. That remained so whether the application was framed under s 596, under s 590AA, or under both. The Court treated s 590AA as a procedure for seeking pre-trial rulings, not as an independent source of power to quash an indictment.
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2,200 words · generated 07/10/2026
The judgment is about the Court of Appeal’s jurisdiction to hear an interlocutory appeal, not the admissibility of the ATO interview transcripts or the ultimate fairness of a future trial.
Philip Denis Leach had previously been convicted of fraud after trial on indictment 1479 of 2013. In [2019] 1 Qd R 459, a majority of the Court of Appeal quashed those convictions and ordered a retrial. The majority considered that the prosecution should not have accessed transcripts of compulsory ATO interviews in circumstances where the privilege against self-incrimination had been abrogated. It held that providing the applicant’s evidence to the prosecutor in those circumstances departed in a fundamental respect from the requirements of a fair trial and amounted to a miscarriage of justice ([1]).
3 cited instruments linked from this judgment.
The later history mattered because the legal position had shifted. In R v Van Eps; Ex parte Commonwealth Director of Public Prosecutions [2024] QCA 46, a differently constituted Court of Appeal held that the majority reasoning in Leach [No 1] was wrong and should not be followed, preferring the reasoning of the New South Wales Court of Criminal Appeal in R v Kinghorn ([3]). After that decision, the CDPP presented a new indictment, number 2275 of 2024, charging the same offences. It was common ground that the new indictment had been drafted by reference to the compulsory interview transcripts ([3]).
Leach applied to the District Court to have the new indictment quashed. He argued that the earlier majority decision in Leach [No 1] had conclusively decided, between him and the Crown, whether the transcripts could be used in a prosecution concerning the same matters ([4]). Judge Kent KC DCJ refused the application. His Honour considered that the later decision in Van Eps, which found Leach [No 1] incorrect, meant that the earlier decision was not a final determination “such as to attract the characteristic of incontrovertibility” in the particular circumstances ([5]).
Leach then sought leave to appeal to the Court of Appeal under s 118 of the District Court of Queensland Act 1967 (Qld). The Court listed the matter as a show cause hearing because there was no right of interlocutory appeal from a ruling under s 590AA of the Criminal Code (Qld) ([6]-[7]). Mullins P concluded that the Court lacked jurisdiction and struck out the application ([33]-[34]).
The central question was how to characterise the District Court’s refusal to quash the indictment for the purposes of the appeal provisions in s 118 of the Act.
Section 118(1)(a) excludes an appeal under that section from a judgment of the District Court “in the exercise of its criminal jurisdiction under part 4”. The applicant argued that the exclusion should be read narrowly, as applying only to a final determination of the offences, rather than a pre-trial matter. He also argued that s 118(1)(b) allowed an appeal by leave from other judgments in the District Court’s criminal jurisdiction ([16]-[18]).
Mullins P rejected that distinction. Section 60 of the Act gives the District Court jurisdiction “to inquire of, hear, and determine all indictable offences” subject to exceptions ([10]-[11]). The Court held there was no textual basis to insert “finally” before “determine” and thereby limit the jurisdiction to final determinations ([31]). A decision on a pre-trial application concerning an indictment presented in the District Court was an exercise of the part 4 criminal jurisdiction.
The judgment also explains the relationship between ss 590AA and 596 of the Code. Section 596 permits an accused person, before pleading, to apply to quash an indictment on the grounds that it is calculated to prejudice or embarrass the defence, or is formally defective ([8]). Section 590AA establishes a pre-trial directions and rulings procedure after an indictment has been presented. Its list of subjects includes “the quashing or staying of the indictment” ([8]).
The Court accepted the respondent’s construction of these provisions. Section 590AA(2)(a) identifies relief that may be sought through the procedural mechanism. It does not itself provide the substantive source of the power to quash or stay. That source is found elsewhere in the Code, including s 596, or, for a stay, potentially in the court’s inherent power ([28]). Thus, whether Leach’s application was treated as one under s 596, s 590AA, or both, it remained a matter dealt with in the District Court’s criminal jurisdiction ([29]-[30]).
The historical discussion of MacNamara supported that conclusion. Before s 590AA was enacted, the District Court could deal with certain pre-trial matters, including a motion to quash an indictment under s 596, even though it could not make the kind of advance evidentiary and trial-conduct rulings at issue in MacNamara ([24]-[27]). The 1997 amendment introducing the pre-trial ruling regime expanded the available procedural machinery. It did not remove the existing s 596 power from the District Court’s criminal jurisdiction or create an interlocutory appeal right.
Finally, the Court noted that criminal appeal rights must have a statutory basis ([22]). Section 590AA(4) expressly says that a direction or ruling must not be subject to interlocutory appeal, but may be raised as a ground of appeal against conviction or sentence ([8]). For a decision characterised as a s 596 ruling, the Court likewise found no statutory right of appeal before conviction ([30]). Section 118 did not supply one because the decision was made in the exercise of part 4 jurisdiction.
Before the 1997 amendment, the District Court could deal with some pre-trial applications after an indictment had been presented. The judgment identifies a motion to quash under s 596, an application for a stay, postponement of trial and an application for particulars as examples of pre-trial jurisdiction recognised in MacNamara ([25]). But MacNamara held that the District Court did not then have power to make advance rulings on evidence or the conduct of the trial before it began ([25]-[27]).
The 1997 amendment introduced the forerunner of s 590AA. The explanatory note described its purpose as enabling pre-trial directions and rulings about matters such as admissibility and trial conduct, avoiding the need to empanel a jury and then interrupt the trial to decide legal questions ([27]). The present judgment describes s 590AA as procedural: it provides a way to obtain pre-trial rulings and directions, while substantive relief such as quashing an indictment comes from other provisions or the court’s inherent power ([28]).
For appeals, the judgment distinguishes interlocutory review from review after trial. Before s 590AA, a pre-trial ruling could be raised after trial under the criminal appeal grounds, including an error of law or miscarriage of justice ([23]). Section 590AA(4) now expressly prevents interlocutory appeals from rulings under that provision, while preserving the possibility of raising the ruling in an appeal against conviction or sentence ([8]).
The decision applies that general structure to a s 596 motion as well. It holds that a refusal to quash an indictment cannot be appealed interlocutorily merely by describing the application as one under s 596 rather than s 590AA ([29]-[30], [33]). The judgment does not resolve the merits of the original dispute about transcript use. Nor does it decide whether the indictment could ultimately be challenged on appeal after a trial.
At [28], Mullins P says that s 590AA is concerned with “the timing and procedure” for seeking relief supplied by other provisions of the Code or by the court’s inherent power. In plain English, s 590AA is the procedural doorway for a pre-trial application; it does not, by itself, create every power needed to grant the relief sought.
At [29], the Court says the District Court’s power to make pre-trial directions or rulings under s 590AA is incidental to its criminal jurisdiction under s 60 of the Act. Even if the application were treated solely as one under s 596, the MacNamara decision showed that this kind of pre-trial decision was already within that jurisdiction. The practical consequence was that the route of appeal could not be detached from the character of the underlying District Court jurisdiction.
At [31], the Court rejects the attempt to limit s 60 to the final determination of an offence. The Act does not say that the District Court only exercises criminal jurisdiction when deciding guilt or sentence. A pre-trial ruling in proceedings on indictment may also be made in the exercise of that jurisdiction.
At [32], the judgment identifies two possible avenues for review: after trial, if there is a conviction, or by seeking declaratory relief in the Trial Division of the Supreme Court exercising supervisory jurisdiction. This passage identifies avenues in general terms. The judgment did not decide the availability or merits of any particular future proceeding.
At [33], the Court states its conclusion directly: it had no jurisdiction to hear an interlocutory appeal from the refusal to quash, regardless of whether the District Court application was made under s 590AA or s 596. The result was procedural, not a determination of whether the indictment was valid or whether the transcripts could be used.
The decision is relevant where an indictment has been presented in the Queensland District Court and an accused seeks to appeal, before trial, a ruling refusing to quash that indictment. Its reasoning is particularly relevant where the proposed appeal is framed under s 118 of the District Court of Queensland Act and the applicant seeks to distinguish between an application under s 596 and an application under s 590AA.
The key features are not the particular fraud charges or the nature of the interview transcripts. They are that the indictment was before the District Court, the ruling was made in the exercise of its part 4 criminal jurisdiction, and the proposed appeal was interlocutory. The Court’s conclusion applies whether the application to quash is treated as brought under s 596, through s 590AA, or under both ([29]-[33]).
The decision should not be read as determining the merits of an argument that an indictment was drafted using material that should not have been accessed. Those circumstances explain why Leach sought to quash the new indictment, but the Court of Appeal resolved only the jurisdictional question. It did not decide whether the transcript-related argument would succeed at trial or on a later appeal.
Nor does this judgment say that every pre-trial decision in every criminal proceeding is insulated from all review. Its holding addresses an interlocutory appeal to the Court of Appeal from the District Court’s refusal to quash an indictment in the circumstances described. At [32], it recognises the possibility of post-conviction appeal and supervisory declaratory relief, without deciding the merits of either route in a future case.
The judgment was delivered on 28 November 2025. The source text provides no account of decisions delivered after that date, so it cannot establish how later courts have treated R v Leach [2025] QCA 241 itself.
It does describe the earlier treatment of R v Leach [2019] 1 Qd R 459, which it calls Leach [No 1]. In Van Eps, a differently constituted Court of Appeal concluded that the majority decision in Leach [No 1] was wrong and should not be followed, and that the reasoning in R v Kinghorn should be followed instead ([3]). The 2025 judgment recounts that development as background to the new indictment and the District Court ruling; it does not reconsider the substantive transcript issue.
The 2025 decision’s own contribution is narrower. It determines the jurisdictional classification and appeal route for the refusal to quash. Its reasoning relies on the statutory language of ss 60 and 118, the relationship between ss 590AA and 596, and the historical account in MacNamara. The judgment cites Hutson for the possibility of supervisory declaratory relief in the Supreme Court ([32]), but it does not set out a broad test for when such relief should be granted.
The judgment leaves the merits of the proposed challenge to the indictment unresolved. It does not determine whether the use of the compulsory interview transcripts in drafting the new indictment has legal consequences, whether the earlier Leach [No 1] reasoning governs any later trial issue, or whether the prosecution may use particular material as evidence. Those questions were not necessary to decide whether the Court of Appeal had jurisdiction to hear the interlocutory appeal.
It also does not decide whether a particular application for declaratory relief in the Supreme Court would be available or appropriate. At [32], Mullins P identifies that avenue as a possibility, citing Hutson, but no such application was before the Court. The judgment therefore does not supply a conclusion about the outcome of any future supervisory proceeding.
More generally, the judgment concerns the interaction of the cited provisions in this setting: an indictment presented in the District Court, a refusal to quash it before trial, and a proposed interlocutory appeal. Questions involving different courts, different statutory appeal rights, or other kinds of pre-trial rulings are not determined by this decision.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v Leach [2025] QCA 241
PARTIES: R / v / LEACH, Philip Denis / (applicant)
FILE NO/S: CA No 224 of 2025 / DC No 2275 of 2024
DIVISION: Court of Appeal
PROCEEDING: Show Cause Hearing
ORIGINATING COURT: District Court at Brisbane – [2025] QDCPR 60 (Kent KC DCJ)
DELIVERED ON: 28 November 2025
DELIVERED AT: Brisbane
HEARING DATE: 17 October 2025
JUDGE: Mullins P
ORDER: Application for leave to appeal struck out for want of jurisdiction.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWER TO BRING APPEAL – FROM INTERLOCUTORY OR ANTECEDENT JUDGMENT OR ORDER – where the applicant was convicted after trial of fraud – where those convictions were quashed by the Court of Appeal by majority and a new trial was ordered – where the majority found the prosecution should not have accessed transcripts of the compulsory interviews of the applicant undertaken by the Australian Taxation Office where the privilege against self-incrimination was abrogated – where the majority decision was found to be wrong by a differently constituted Court of Appeal in another matter and was not followed – where a new indictment was presented by the Commonwealth Director of Public Prosecutions in the District Court charging the applicant with the same charges that were the subject of the previous indictment – where it was common ground the new indictment was drafted by reference to the transcript of the compulsory interviews – where the applicant applied to the District Court for a direction or ruling at least in part pursuant to s 596 of the Criminal Code (Qld) that the new indictment be quashed on the ground the decision of the majority in the first appeal had incontrovertibly decided the issue between the parties regarding the use of the transcripts – where the District Court judge refused the application – where the applicant sought leave to appeal against the District Court judge’s refusal to quash the new indictment – whether the Court of Appeal has jurisdiction to hear an application for leave to appeal against the refusal to quash the indictment / Criminal Code (Qld), s 559, s 571, s 573, s 590AA, s 596, s 597C, s 668D, s 668E / District Court of Queensland Act 1967 (Qld), s 7, s 60, s 61, s 61A, s 63, s 64, s 65, s 118 / Grierson v The King (1938) 60 CLR 431; [1938] HCA 45, cited / Hutson v Australian Securities and Investments Commission (2023) 17 QR 21; [2023] QCA 167, cited / R v His Honour Judge Noud; ex parte MacNamara [1991] 2 Qd R 86, considered / R v Leach [2019] 1 Qd R 459; [2018] QCA 131, related / R v Lowrie [1998] 2 Qd R 579; [1997] QCA 434, cited
COUNSEL: P J Dunning KC, with G Devereaux, for the applicant / G C Morgan for the respondent
SOLICITORS: Pharmacis Canning Lawyers for the applicant / Director of Public Prosecutions (Commonwealth) for the respondent
MULLINS P: The applicant was convicted after trial of fraud charges on indictment number 1479 of 2013. Those convictions were quashed by the Court of Appeal by majority and a retrial ordered: R v Leach [2019] 1 Qd R 459 (Leach [No 1]). The majority found that the prosecution should not have accessed the transcripts of the compulsory interviews undertaken of the applicant by the Australian Taxation Office (ATO) where the privilege against self-incrimination was abrogated. It was held (at [105]) that the provision to the prosecutor of the applicant’s evidence in those circumstances was a departure in a fundamental respect from the requirements of a fair trial that constituted a miscarriage of justice.
After that decision, the applicant filed a writ in the High Court of Australia seeking declarations that he could not receive a fair trial and the trial breached Chapter III of the Commonwealth of Australia Constitution Act 1900 (Imp). The matter was remitted by Gageler J to the District Court of Queensland for determination. The indictment was quashed in the District Court on 24 March 2020 but a stay was refused: CDPP v Leach (No 3) [2020] QDC 42.
A new indictment number 2275 of 2024 (the new indictment) was presented by the Commonwealth Director of Public Prosecutions (CDPP) in the District Court charging the applicant with the same charges that had been the subject of the previous indictment. It is common ground that the new indictment was drafted by the CDPP by reference to the transcript of the compulsory interviews. This step was taken by the CDPP after the decision in R v Van Eps; Ex parte Commonwealth Director of Public Prosecutions [2024] QCA 46 in which the Court concluded (at [67]) that the majority decision in Leach [No 1] was wrong and should not be followed and that the reasoning of the New South Wales Court of Criminal Appeal in R v Kinghorn (2021) 106 NSWLR 322 should be followed.
The applicant applied to the District Court for a direction or ruling that the new indictment be quashed on the ground the decision of the majority of the Court of Appeal in Leach [No 1] incontrovertibly decided between the applicant and the Crown whether the transcripts could be used in the prosecution of him concerning those matters.
The application was heard by his Honour Judge Kent KC on 20 August 2025. On that day, Judge Kent dismissed the application ruling that, as a result of the more recent Court of Appeal decision in Van Eps that held that Leach [No 1] was incorrect, the decision of the Court in Leach [No 1] did not form a final determination between the applicant and the Crown “such as to attract the characteristic of incontrovertibility in the peculiar circumstances of this particular case”.
Relevant legislation
“590AA Pre-trial directions and rulings
If the Crown has presented an indictment before a court against a person, a party may apply for a direction or ruling, or a judge of the court may on his or her initiative direct the parties to attend before the court for directions or rulings, as to the conduct of the trial or any pre-trial hearing.
Without limiting subsection (1) a direction or ruling may be given in relation to—
the quashing or staying of the indictment; or
the joinder of accused or joinder of charges; or
(ba) disclosure under chapter division 3 or 4; or
the provision of a statement, report, proof of evidence or other information; or
noting of admissions and issues the parties agree are relevant to the trial or sentence; or
(da)an application for trial by a judge sitting without a jury; or
deciding questions of law including the admissibility of evidence and any step that must be taken if any evidence is not to be admitted; or
ascertaining whether a defence of insanity or diminished responsibility or any other question of a psychiatric nature is to be raised; or
the psychiatric or other medical examination of the accused; or
the exchange of medical, psychiatric and other expert reports; or
the reference of the accused to the Mental Health Court; or
the date of trial and directing that a date for trial is not to be fixed until it is known whether the accused proposes to rely on a defence of insanity or diminished responsibility or any other question of a psychiatric nature; or
the return of subpoenas; or
(ka)matters relating to protected counselling communications under the Evidence Act 1977, part 2, division 2A: or
the Evidence Act 1977, part 2, division 4, 4A, 4C or 6, part 6A, part 6B, or part 7A; or
encouraging the parties to narrow the issues and any other administrative arrangement to assist the speedy disposition of the trial.
A direction or ruling is binding unless the judge presiding at the trial or pre-trial hearing, for special reason, gives leave to reopen the direction or ruling.
A direction or ruling must not be subject to interlocutory appeal but may be raised as a ground of appeal against conviction or sentence.
…
596 Motion to quash indictment
The accused person may before pleading apply to the court to quash the indictment on the ground that it is calculated to prejudice or embarrass the person in the person’s defence to the charge, or that it is formally defective.
Upon such motion the court may quash the indictment, or may order it to be amended in such manner as the court thinks just, or may refuse the motion.”
The right of appeal after conviction on indictment is provided for in s 668D of the Code. The three limbs on which an appeal against conviction can be pursued are set out in s 668E: unreasonable verdict (or the verdict cannot be supported having regard to the evidence), a wrong decision of any question of law during the trial, or there was a miscarriage of justice. These are the three limbs of the common form criminal appeal provisions. See MDP v The King (2025) 99 ALJR 969 at [1], [9] and [77].
The criminal jurisdiction of the District Court in relation to indictable offences is specified in part 4 of the Act. Section 60 of the Act which has the heading “Criminal jurisdiction” provides:
“The District Court has jurisdiction to inquire of, hear, and determine all indictable offences, wheresoever committed, save as hereinafter excepted.”
Exceptions to the jurisdiction conferred by s 60 of the Act are set out in s 61(1). It provides that the District Court does not generally have jurisdiction to try a person charged with an indictable offence if the maximum penalty for the offence is more than 20 years. Exceptions to that general statement are then provided for in s 61(2) with further refinements on the conferral of jurisdiction then set out in the remainder of s 61 of the Act. Section 61A(1) of the Act provides for another exception to the effect that the District Court does not have jurisdiction to try a child charged with an indictable offence, unless otherwise expressly provided by an Act. Further refinements to that exception to jurisdiction are then provided for the in the remainder of s 61A.
The only other provisions in part 4 of the Act of s 63, s 64 and s 65 are found in division 2 which is entitled “Procedure”. Section 63 concerns change of venue. Section 559 of the Code regulates the change of place of trial for an indictment presented against any person in the Supreme Court. As the name of the District Court suggests, it is organised on districts that relate to Magistrates Courts districts. See s 7 of the Act which deals with the declaration by regulation of a district for the District Court. That explains the specific provision in s 63 of the Act for change of venue from one district to another. Section 64 deals with the circumstances in which a District Court judge may hear a matter committed for trial or sentence to the Supreme Court and the exercise by the Supreme Court of the jurisdiction of that court where a person has been committed for trial to the District Court or indicted in the District Court. Section 65 provides for all indictable offences in the District Court to be tried by a judge and jury, subject to the provisions of the Jury Act 1995 (Qld) and the provisions of the Code that provide for a trial on indictment when a no jury order is made.
The only provision in division 2 of part 4 of the Act which provides for a pre-trial application that is brought specifically in the District Court is the change of venue application. The inclusion of that specific provision in the Act is explicable by the organisation of the District Court by reference to districts which differs from the organisation of the Supreme Court to which s 559 of the Code specifically relates to changing the place of trial from the place of the Supreme Court where the indictment is presented.
Appeals from the District Court are dealt with in part 9 of the Act. Section 118 which is headed “Appeal to the Court of Appeal in certain cases” provides:
“(1)This section—
does not apply to an appeal from a judgment of the District Court in the exercise of its criminal jurisdiction under part 4; but
does apply to an appeal from other judgments of the District Court in the exercise of its criminal jurisdiction, including on an appeal brought before the court under the Justices Act 1886, section 222.”
Applicant’s submissions
The applicant submits that the application before Judge Kent was argued both pursuant to s 596 of the Code and also pursuant to s 590AA(1) and (2)(a) of the Code. The applicant accepts that he does not have a right of interlocutory appeal from Judge Kent’s decision to the extent that it was determined pursuant to s 590AA (which was an appropriate concession in view of the unequivocal terms of s 590AA(4)). The applicant asserts that the content of the power to quash in s 596 is differently expressed to that in s 590AA(2)(a). He argues that he does have a right of appeal, by leave, to the extent the application was dismissed under s 596 of the Code.
The applicant urges that s 118(1)(b) of the Act should be construed as making it applicable to an interlocutory appeal, by leave, from Judge Kent’s decision to the extent that it was based on s 596 of the Code. This commences with a consideration of s 118(1)(a) of the Act. The applicant relies on the general approach to construing laws conferring or excluding jurisdiction that is described in Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (Federation Press, 2nd ed, 2020) at pp 134-135. On the basis that exclusion of jurisdiction in a statute is construed narrowly, it is argued the proscription against the application of s 118(1)(a) applying to appeals from a judgment of the District Court in the exercise of its criminal jurisdiction under part 4 should be limited to the jurisdiction that it is described in s 60 of the Act as the final determination of the offences on a criminal indictment and not pre-trial matters. The applicant submits that support for that construction is found in the regulation of appeals after criminal trials by chapter 67 of the Code.
On the basis that statutory provisions which confer jurisdiction are construed broadly (as explained in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72 at 77-78), it is argued s 118(1)(b) of the Act which is expressed to apply “to an appeal from other judgments of the District Court in the exercise of its criminal jurisdiction” should be given an expansive operation. The applicant submits that the express inclusion of an appeal brought before the District Court under s 222 of the Justices Act 1886 (Qld) does not limit the criminal jurisdiction that is the subject of an appeal under s 118(1)(b) and suggests that there must be matters other than s 222 appeals which are covered by s 118(1)(b).
The applicant therefore submits that there is an entitlement under s 118(1)(b), by way of grant of leave of the Court of Appeal, to appeal a judgment of the District Court in its criminal jurisdiction under the Code, other than the exercise of that criminal jurisdiction under part 4 of the Act. It follows that there is an express right of appeal, subject to a grant of leave, conferred in respect of a dismissal by an interlocutory order of an application under s 596 of the .
Respondent’s submissions
The respondent’s submissions include the following. A motion to a quash an indictment was one of the few instances of pre-trial rulings permitted prior to the enactment of s 590AA. Even prior to the enactment of s 590AA, there was no right of appeal against such a decision on an interlocutory basis. Section 590AA(2)(a) now provides that an application to quash an indictment under s 596 should be brought as an application for a direction or ruling within the meaning of s 590AA. The inclusion of s 590AA(2)(a) does not indicate a new and alternative power to s 596 but reflects that s 590AA(2)(a) is informed by s 596 and not separate to it.
The respondent argues that, if the Court did accept the argument that s 596 and s 590AA operate independently, the applicant’s application is still misconceived, as there remains no statutory right of appeal. The respondent adopts the contrary position to the applicant and argues that s 118(1)(a) of the Act covers Judge Kent’s ruling as it was within the scope of the exercise of the District Court of its criminal jurisdiction conferred by s 60 of the Act.
Was Judge Kent exercising jurisdiction under s 60 of the Act?
Because of the terms of s 118(1)(a) of the Act, if Judge Kent’s refusal to quash the new indictment was done in the exercise of the jurisdiction under s 60 of the Act, then s 118(1)(a) applies.
Any right of appeal in respect of the exercise of criminal jurisdiction by the District Court must have a statutory basis: Grierson v The King (1938) 60 CLR 431 at 435-436. It was not until the passing of the Criminal Code Amendment Act 1913 (Qld) that a right to appeal against conviction and, with leave, against sentence was conferred on a person in chapter 67 of the Code. See R v Lowrie [1998] 2 Qd R 579 at 584 and 589.
Before s 590AA was inserted in the Code, if there had been a pre-trial application under s 596 or for other matters such as a change of venue for the trial, the only means of appealing against the pre-trial ruling was after trial on the ground that the pre-trial ruling either was the wrong decision on a question of law or resulted in a miscarriage of justice (being the second and third limbs of the common form provisions for criminal appeals set out in s 668E(1) of the Code).
The introduction of a procedure for pre-trial directions and ruling by the 1997 amendment overcame the effect of the decision in R v His Honour Judge Noud; ex parte MacNamara [1991] 2 Qd R 86. In MacNamara, an indictment had been presented in the District Court against two police officers on charges of official corruption. The complainant woman who had been a prostitute and drug user at the time it was alleged the offences of corruption were committed wished to be identified at the trial as Miss X and for non-publication orders to be made in relation to her evidence which would prevent her from being identified. Before the trial commenced (which was upon the defendants being called upon to plead in open court as provided in s 594 of the Code – now s 597C), the prosecutor applied for orders relating to the conduct of the trial to facilitate the wishes of the complainant. Those orders were made by the primary judge. The police officers applied to the Full Court for a writ of certiorari against those orders.
The issue for decision in MacNamara was whether the primary judge had jurisdiction to make rulings before the trial began involving the form and admissibility of evidence to be given at the trial. Section 60 of the Act was then numbered s 58. McPherson J (with whom Demack J agreed) noted at 91 that the question concerned the extent of jurisdiction exercisable by the District Court in the proceedings commenced by the presentation of the indictment before the trial began. McPherson J identified that the Court in which the indictment had been presented could exercise some jurisdiction in respect of the proceedings before the trial, notably proceedings could be stayed (for abuse of process in exercise of the Court’s inherent power), the trial postponed, the indictment may be quashed (s 596 of the ), or the Court would have power to order particulars (s 573). After referring to cases that exemplified the existence of such jurisdiction that could be exercised before the trial began, McPherson J stated at 93:
“It may therefore be accepted that courts, including a District Court, possess a power exercisable even before trial to ensure that justice is properly administered in proceedings that have been commenced in that court. In none of the examples mentioned, however, did the court give a definitive ruling on evidence or on the conduct of proceedings at the trial itself.”
McPherson J concluded (at 97-98) that there was no power to make the first of the orders made by the primary judge that the complainant be identified at the trial as Miss X and that her address and occupation be written down and not disclosed and that the other non-publication orders depended for their effective operation on the subsistence of the first order. The orders therefore were quashed by making the writ of certiorari absolute. Williams J gave separate reasons also concluding (at 101) that he could find no authority permitting a court in the exercise of its criminal jurisdiction to make rulings on evidence prior to the commencement of the trial and agreed that it was an appropriate case to grant relief by way of certiorari.
MacNamara is therefore authority for the proposition that the jurisdiction conferred on the District Court under part 4 of the Act included disposing of pre-trial applications such as a motion to quash the indictment under s 596 of the Code but did not extend to making rulings about the evidence and the manner of dealing with a particular witness prior to the commencement of the trial. That was one of the innovations introduced by s 590AA. The Explanatory Note for the Bill that was enacted as the 1997 amendment stated in relation to this new provision:
“Under this new section, once an indictment is presented and the Court is seized of jurisdiction, the parties or a judge will be able to arrange for pre-trial directions to be given and rulings made about the admissibility of evidence and conduct of the trial. This will do away with the current practice of empanelling a jury and then sending them away or locking them up while questions of law are determined.”
The only provisions in the Code that permit quashing the indictment are s 571 and s 596. Section 571 of the Code is concerned with formal defects and is related to s 596. Section 590AA(2) sets out the subject matter on which a direction or ruling may be given or the relief that may be given in respect of an application for a pre-trial direction or ruling. In relation to s 590AA(2)(a), the specification of “the quashing or staying of the indictment” refers to the relief that is sought and not the source of the power to grant the relief. The construction contended for by the respondent that s 596 provides the source of the power for using the s 590AA procedure to seek the quashing of the indictment is the proper construction of the provisions. Section 590AA is concerned with the timing and procedure for the making of the application to seek the relief that is otherwise provided for by the application of other provisions of the Code or the inherent power of the Court (such as in the case of seeking the stay of an indictment as an abuse of process).
As a result of the 1997 amendment, the District Court has the jurisdiction to make pre-trial directions or rulings under s 590AA as incidental to the exercise of the criminal jurisdiction conferred by s 60 of the Act. Even if the application before Judge Kent were considered to have been brought only pursuant to s 596 of the Code, as MacNamara shows, that was the type of decision that was always within the District Court’s jurisdiction conferred by s 60 of the Act. On any view, Judge Kent’s refusal to quash the new indictment is only appellable under chapter 67 of the Code.
The applicant’s submission that his application to Judge Kent proceeded in part under s 596 and not s 590AA of the Code does not assist the applicant, as there is no right of appeal by the applicant under the Code before any conviction at trial in respect of the refusal of a trial judge to quash an indictment whether it is under s 596 or s 590AA of the Code.
It is not necessary to deal with the applicant’s arguments about presumptions that are applied to construing provisions concerned with conferral or exclusion of jurisdiction in respect of s 118 of the Act. The jurisdiction of the District Court that is relevant is that conferred by s 60 of the Act. The applicant’s submissions notionally inserted the word “finally” before the word “determine” in s 60 of the Act. There is no justification in the terms of s 60 of the Act for this attempt to limit the criminal jurisdiction of the District Court conferred by s 60 to the final determination of an indictable offence.
The possibilities for reviewing Judge Kent’s decision are therefore after a trial, if the applicant were to be convicted, or to seek declaratory relief in the Trial Division of the Supreme Court exercising its supervisory jurisdiction in respect of criminal proceedings: [2023] QCA 167 at [30] and [38].
Order
This Court has no jurisdiction to hear an appeal against an interlocutory order refusing to quash an indictment presented in the District Court, whether the application to the District Court was made under s 590AA or s 596 of the Code. The application for leave to appeal should be struck out for want of jurisdiction.
The order which will be made is: Application for leave to appeal struck out for want of jurisdiction.
R
Leach [2025] QCA 241
(1938) 60 CLR 431
(2021) 106 NSWLR 322
(2025) 99 ALJR 969
(2001) 207 CLR 72
Application for leave to appeal struck out for want of jurisdiction.
The applicant filed a notice of application for leave to appeal to this Court under s 118 of the District Court of Queensland Act 1967 (Qld) (the Act) against the whole of the judgment of Judge Kent refusing to quash the new indictment.
As there is no right of appeal to this Court by a defendant in respect of an interlocutory ruling made pursuant to s 590AA of the Criminal Code (Qld) in respect of a criminal matter that has been commenced on indictment in either the District Court or the Supreme Court, the application was listed for the applicant to show cause why the application should not be struck out for want of jurisdiction.