His Honour reviewed the authorities dealing with what constitutes an "interlocutory judgment or order given or made in the proceedings" for the purposes of s 5F and concluded by observing:
"In my opinion what Judge Job was asked to do in the present case, correctly categorised, was to rule on a point of law raised during the hearing. This like a ruling on the admissibility of evidence is not within the meaning of s 5F(3) an interlocutory judgment or order. This conclusion accords with the object and purview of the section and decisions of the Court in Powch , Groves , Rogerson and Steffan . Notwithstanding the inclusion, in the case of any party other than the Attorney-General or the Director of Public Prosecutions, of the need to obtain the leave of the Court of Criminal Appeal or the certificate of the court of trial, the legislature should not be taken to have intended that the course of a criminal trial should be interrupted by appeals from rulings on law or evidence. In my opinion no appeal lay under s 5F(3) from Judge Job's decision that there was a case to answer. I would uphold the jurisdictional point raised by the Crown and dismiss the appeal."
15 In the present case although it would seem that there was some lack of formality in the way the appellant's application was framed, it was an application that the proceedings charged in count one of the indictment be permanently stayed. An order permanently staying an indictment or, conversely, declining so to do is one which falls within the terms of s 5F; Regina v Edelsten (1989-90) 18 NSWLR 213; Regina v Bozatsis and Spanakakis (1997) 97 A Crim R 296. There is undoubted jurisdiction to stay proceedings on indictment upon the ground that their continuance would amount to an abuse of the process of the Court; Jago v The District Court of New South Wales (1989) 168 CLR 23; Ridgeway v The Queen (1994-1995) 184 CLR 19.
16 The application was advanced upon the basis that the abuse was of the character described by Mason CJ, Deane and Dawson JJ in Walton v Gardiner (1992-1993) 177 CLR 379 at 393:
"The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and the impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse if they can be clearly seen to be foredoomed to fail."
17 The success of the appellant's application depended upon persuading the primary judge that the evidence upon which the Crown proposed to rely upon at trial was not capable of supporting the charge which it brought. It is true that such a contention if advanced, and rejected, at the close of the Crown case would not have afforded the appellant a basis for seeking leave to appeal under s 5F(3)(a). However, the order appealed against is that of a refusal of a stay and not a ruling made during the trial such as that in Lethlean.
18 In R v Steffan (1993) 30 NSWLR 633 the Court observed at 640-641:
"It was submitted by the Crown that, in order to prevent the circumvention of the restricted terms of s 5F, this Court should always refuse leave to appeal from a refusal of a stay where that decision is based upon a ruling as to the admissibility of evidence. We are not prepared to accept that submission in the absolute terms in which it was expressed. Although it is not easy to formulate an example, there may well be the rare case where a ruling upon the admissibility of evidence in favour of the accused would demonstrate a proper basis for a stay of proceedings, so that it would be appropriate to grant leave to appeal from a refusal of a stay in such a case notwithstanding that the principal legal issue which would be determined in the appeal was the admissibility of evidence. This Court's decision in R v Groves [(unreported), NSWCCA, 2 April 1990] did not go so far as this submission by the Crown goes.
19 I consider that the challenge to this Court's jurisdiction to entertain the appeal must fail. It is, however, appropriate to bear in mind the observations of this Court in Groves. In that case an application for leave to appeal was brought pursuant to s 5F(3)(a) from a decision of a judge of the District Court refusing a permanent stay of proceedings against the applicant upon an indictment charging him with five counts of sexual intercourse without consent and one count of indecent assault. The grounds of appeal formulated in the application for leave to appeal included that the further prosecution of the application would be an abuse of process in that the applicant could not lawfully be convicted on the evidence proposed to be adduced by the Crown. In dealing with this latter ground the Court observed:
"This ground was not argued before Flannery DCJ, or raised in the original application for leave to appeal. As a threshold point, therefore, the applicant requires leave to argue it before this Court. Since it involved a possible point of general importance, we heard the argument before ruling on the question of leave. In essence, counsel for the applicant submitted that the identification evidence was so weak that, acting according to law, the trial judge would be bound to direct an acquittal on the basis that there was no evidence to support a conviction. He submitted that the trial judge should come to that situation in either of two ways. The first would be by rejecting the evidence, in the exercise of his discretion, on the basis that its probative weight was outweighed by its prejudicial effect. Alternatively, it was submitted, he could rule that the evidence was so tenuous that there was no case which could be left to the jury.
In this way it was argued the applicant 'could not lawfully be convicted' on the evidence proposed to be adduced by the Crown, so that the further prosecution of him would amount to an abuse of process.
The applicant faces a difficulty in seeking to raise either proposition in this case by way of an application for leave to appeal under s 5F. First, the trial judge was not invited to rule on the admissibility of the evidence or to exercise the discretion in question, nor was he asked to rule that there would be insufficient evidence to go to the jury. Had he made any such ruling at the commencement of or during the trial, it would not have been amenable to an appeal under s 5F: Regina v Jeffrey Walter Edelsten (CCA, 7 November 1989 unreported) and Regina v Powch (1988) 14 NSWLR 136. It is difficult to see why the applicant should be permitted to have an appellate court review a decision refusing to stay the further prosecution of the proceedings on these grounds, when they were not taken before the trial judge, and when the relevant rulings during the trial could not have been reviewed save by appeal after conviction pursuant to s 5 of the Criminal Appeal Act 1912.
As the decisions in Edelsten and Powch show appeals under s 5F are to be kept within strict confines. This Court should be slow to permit those decisions to be watered down by allowing parties to pursue, as grounds for stay applications, matters which are more properly the subject of rulings or decisions in the trial and are amenable to appeal under s 5.
…
Although we do not wish to foreclose entirely the possibility that considerations relative to the ability of the Crown to call a case sufficient to go to the jury, or relative to the integrity of a verdict, cannot be taken into account on a stay application brought prior to trial, we cannot as presently advise envisaged circumstances in which that might be appropriate."