R. v. SINANOVIC [2001] NSWCCA 217

COUNSEL : M.C. Grogan (Respondent) In person SOLICITORS : S.E. O'Connor (Respondent) In person CATCHWORDS : CRIMINAL LAW AND PROCEDURE - Interlocutory judgment or order - What is - Leave to appeal against - When granted - Criminal Appeal Act 1912 s.5F(3) - ND DECISION : Leave to appeal refused

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

JUDGMENT 1 POWELL JA: There was listed before the Court today an application to extend the time within which the Appellant, Mr Sinanovic, might seek leave to appeal from what is said to have been an interlocutory judgment or order given, or made, by Blanch J, the Chief Judge of the District Court, on 2 February last, in connection with an indictment which had been found against the Appellant, and which was to be listed for hearing in the District Court after an earlier appeal against conviction had been upheld. 2 There was also listed an application for leave to appeal against an order made by Moore DCJ in the District Court on 7 May last, when his Honour dismissed the Notice of Motion in which the Appellant had sought (inter alia) to have the further proceedings upon that indictment stayed. 3 In addition, the Appellant has sought to raise today what is, in effect, an application for leave to appeal from the refusal of Luland DCJ in the District Court on Monday last to adjourn the hearing on that indictment. 4 Although the materials which are before the Court make it difficult to be sure of what exactly were, and are, the Appellant's circumstances, it would appear that the Appellant had originally been arraigned on an indictment in September 1997, charging him with having fraudulently misappropriated certain moneys given to him by one Tina Ruello and, having pleaded not guilty to that indictment, he was tried before Acting Judge Stewart and a jury of twelve in the District Court during the month of September 1997. At the conclusion of that trial, the Appellant was found guilty. 5 Following that finding of guilt, his Honour sentenced the Appellant to a minimum term of two years and five months to commence on 3 November 1997 and to expire on 15 April 2000, and an additional term of ten months and one day, commencing on 16 April 2000 and expiring on 16 February 2001. 6 The Appellant appealed from that conviction and, although the matter is not entirely clear, it would seem that the Appellant also appealed to this Court in respect of a number of convictions which he had sustained following trials on other indictments before, among others, Judge Grogan and jury, Acting Judge Horler and jury, and Judge Maguire and jury, all appeals, including that in respect of the conviction before Acting Judge Stewart, seemingly being heard together. 7 Judgment in respect of those appeals was delivered in December last, the appeal in respect of the indictment for fraudulent misappropriation which had been dealt with by Acting Judge Stewart being upheld, the conviction and sentence quashed, and a new trial directed. However, as best I can judge it from the materials which are now before the Court, all the other appeals were dismissed and, although the sentences were adjusted because of the quashing of the conviction on the appeal that was upheld, the sentences were not reduced. 8 It would appear that thereafter there was, or were, filed in the High Court of Australia on behalf of the Appellant applications for special leave to appeal from the judgment or judgments of this Court dismissing the Appellant's appeals against the other convictions. The hearing of that application, or of at least one of those applications, was expedited by her Honour Gaudron J on 22 February last and that application was then heard by Gummow and Callinan JJ in the High Court on 10 April last, on which day special leave to appeal was refused. 9 Meantime, the proceedings which have given rise to these applications today had been listed before Blanch J on 2 February last, on which day, so it is alleged, his Honour ordered that the Appellant's wife "not be granted leave to assist and get access to represent in relation to the trial." That allegation appears to be based on the following passage in the transcript of proceedings before his Honour on that day: "HIS HONOUR: Yes, madam Crown? MRS SINANOVIC: For the accused, Hakija Sinanovic.

HIS HONOUR: Well, I am not granting you leave to appear, Mrs Sinanovic. Could you bring up Mr Sinanovic, please.

MRS SINANOVIC: He has not been brought in, your Honour.

MRS SINANOVIC: I have been instructed he has instructed me I faxed a letter to your office about power of attorney to seek leave to appear on his behalf.

HIS HONOUR: Well, I'm not granting you leave, he will have to come in for these appearances. I mean you can help him, but I am not allowing you to appear in the matters. It's really for the sake of - I mean you can make an application to the judge at the trial of course to assist again as well. It is really a matter for fixing a date for the hearing of the matter and have you got any thoughts about that?"

10 It would appear that his Honour then adjourned the matter to 16 February, on which day he fixed the hearing for 14 May last, and directed that the matter be listed for mention on 7 May last. 11 On 1 May last, the Appellant's wife filed in the District Court on his behalf a Notice of Motion in which she sought the following orders: "1. To quash indictment and enter 'No Bill'.

2. To stay proceedings indefinitely." 12 That application came before Moore DCJ on 7 May last, on which day, as I have earlier indicated, his Honour refused the relief sought in the Notice of Motion, dismissed it and confirmed the hearing date which had earlier been fixed by Blanch J. 13 The applications which are now made, and in respect of which leave has been sought in order to raise them, are based on provisions of s 5F(3) of the Criminal Appeal Act 1912, which relevantly provides: "(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, justice, justices or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal." 14 Rule 5B of the Criminal Appeal Rules provides: "5B. Any party to whom section 5F(3) of the Act applies, which section relates to appeals against interlocutory judgments or orders (desiring to appeal to the Court or to obtain the leave of the Court to appeal against any interlocutory judgment or order) shall give notice of appeal or notice of application for leave to appeal within 14 days of the date of the judgment or order or within such extended time as may in any case be allowed by the Court."

15 Meantime, on Monday last, the matter was listed before Luland DCJ, at which time Mr W Terracini SC, appearing pro bono instructed by a Mr Hill, Solicitor, appeared for the Appellant for the purpose only of seeking to have the hearing adjourned. A number of dates for the adjourned hearing date were suggested to his Honour from as late as October of this year and, in a descending scale, to a date no less than fourteen days from Monday last. His Honour entertained that application and - in support of it, heard certain evidence that was tendered by a witness who, it was suggested, would be able to provide expert evidence that was necessary over the period of the morning, at the end of which his Honour declined the adjournment. We have had an opportunity to read both the transcript record for the hearing of that application and his Honour's reasons for judgment. 16 Although there has been no definitive exposition of what is an interlocutory judgment or order for the purposes of s 5F, it seems clear enough that some judgment or order affecting the trial must have been given or made. It seems equally clear that matters which go no further than relating to the manner of conduct of the trial do not qualify as interlocutory judgments or orders (see, for example, R. v. Powch (1988) 14 NSWLR 136 and R. v Edelsten (1989) 18 NSWLR 213). 17 Further, it is clear that, insofar as a person other than the Attorney General or the Director of Public Prosecutions claims to appeal, the matter is one for leave and that it is incumbent upon the applicant for leave to demonstrate that, in some way, there has been error on the part of the presiding magistrate or judge, and that the error is of such a nature that leave ought to be given so that it can be dealt with (see R. v. Matovski (1989) 15 NSWLR 720). 18 So far as the first of the applications which is listed before us today is concerned, it is I believe, abundantly clear from that passage from the transcript which I have set out above that Blanch J delivered no interlocutory judgment and made no interlocutory order other than for the purpose of the application that was before him for fixing a date. In no way did his Honour seek to dictate the future conduct of the hearing, as is made abundantly clear from that part of the transcript where his Honour makes it abundantly clear that if the Appellant's wife sought to appear for or assist him on the hearing that was a matter she could put to the trial judge. 19 So far as the second matter is concerned, we have had the benefit of the reasons for judgment of Moore DCJ and, in my view no error of law or of principle appears on the face of the judgment. 20 So far as the third matter is concerned, we have, as I have earlier indicated, had the benefit of the transcript record of the hearing on Monday, both before and after Luland DCJ refused the application for an adjournment and as well, we have had the opportunity to read his Honour's reasons for judgment. It seems to me that there is no merit in the application that is now sought to be made, and, therefore, that we should not further entertain an application for leave to appeal in respect of it. 21 The orders which I propose in respect of the two matters that have been formally listed for hearing today are that, in each case, leave to appeal be refused and I would record that the Court should not entertain the informal application that has been made during the course of the afternoon. 22 WOOD CJ at CL: I agree. 23 SULLY J: I also agree. 24 POWELL JA: The orders of the Court are thus those which I have proposed.

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