Sasterawan v Morris

Sasterawan v Morris - [2010] NSWCCA 91 - NSWCCA 2010 case summary — Zoe

[12]

FRIDAY, 7 MAY 2010 SASTERAWAN v MORRIS Judgment 1 BASTEN JA: Pursuant to court attendance notices issued by the informant (Ms Morris) on 21 May 2004, the applicant (Mr Sasterawan) was charged with seeking to obtain a benefit through making or publishing a cabcharge document which had been altered, in contravention of s 178BB of the Crimes Act 1900 (NSW). He was convicted in the Local Court and appealed to the District Court. His first appeal to that Court resulted in the convictions being confirmed, but that determination was set aside by the Court of Appeal exercising powers of judicial review. 2 On 29 June 2009, the matter having been remitted to the District Court for rehearing, the Chief Judge gave leave, pursuant to s 19 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Appeal and Review Act") for the prosecution to recall the witnesses who had given evidence before the Local Court. That application was not opposed at the time, and the matter was listed for three days before Sweeney DCJ, commencing on Tuesday, 17 November 2009. 3 On the first day of the hearing, various preliminary matters were attended to. Two witnesses were called by the prosecution to establish that a key prosecution witness, Ms Elizabeth Kim, was currently residing in Korea. On the second day, again after some preliminary discussion, the informant was called to give evidence on a voir dire in relation to the conduct of an interview conducted with the applicant, in the course of which he had made admissions. In the course of her evidence, a concern arose as to the state of her health. The prosecution sought an adjournment. Counsel for the applicant opposed an adjournment "of more than a day or so". Her Honour granted the adjournment and vacated the hearing of the matter. She directed that a new hearing date be fixed. The primary basis of the present application for leave to appeal challenged that order. 4 For reasons explained below, leave should be refused. The reasons include the absence of jurisdiction in this Court to consider the proposed appeal and the failure of the applicant to demonstrate an arguable basis for appellate intervention, supposing that the Court had jurisdiction. 5 The informant sought an order that the applicant pay her costs of the application to this Court. However, the Court has no power to make such an order in this case; further, if it did have power, no such order should be made.

[13]

Procedural history 6 The matter has a complex procedural history which may be summarised as follows. The charges related to cabcharge dockets provided to the applicant, then a licensed taxi driver, in June, July and October 2003. In each case the charge alleged that details completed on the docket by the applicant were false. The first matter involved the alteration of a fare from $6.15 to $136.15; the second, a fare altered from $7 to $70 and the third, a fare altered from $6 to $260. The applicant appeared before the Local Court on 29 March 2005, was convicted on each charge and fined $300 in respect of each offence. The applicant appealed to the District Court, pursuant to s 11(1) of the Appeal and Review Act. On 7 September 2005 his appeal was dismissed by Nicholson DCJ, pursuant to s 20(1)(b) of the Appeal and Review Act. 7 On 29 September 2005 the applicant filed a summons seeking leave to appeal to the Court of Appeal from the decision of the District Court. That application was misconceived. On 7 December 2005 a further summons was filed seeking judicial review pursuant to s 69 of the Supreme Court Act 1970 (NSW) of the decision in the District Court. Whilst those proceedings were still on foot, the applicant sought to have Nicholson DCJ state a case to this Court pursuant to s 5B(2) of the Criminal Appeal Act 1912 (NSW). 8 When the stated case was brought on for hearing in this Court, the summons for judicial review in the Court of Appeal was discontinued and was dismissed by consent. The questions raised on the stated case were answered adversely to the applicant: Sasterawan v Morris [2007] NSWCCA 185; 69 NSWLR 547. 9 Undaunted by the dismissal of the first summons for judicial review, on 27 July 2007 the applicant filed a further summons for judicial review seeking to have the decision in the District Court quashed. The Court granted that relief, holding that the reasons given by Nicholson DCJ were inadequate and constituted an error of law on the face of the record: Sasterawan v Morris [2008] NSWCA 70 at [50] (Tobias JA, Beazley JA and McClellan CJ at CL agreeing). A second, and apparently separate basis for setting aside the decision, was the failure of the primary judge to find that the applicant knew that each of the dockets was false in a material particular: at [62]. Thirdly, the Court concluded that the experienced primary judge had reversed the burden of proof: at [72]. 10 This application relates to the rehearing of the matter in the District Court.

[15]

The first two orders sought related to the proceedings in the District Court; the third appears to have been sought for the purposes of the hearing in this Court. 13 By notice of motion dated 8 March 2010, the applicant's solicitor sought leave to rely upon a second amended application for leave to appeal. This application, together with an affidavit in support, the transcript of the District Court hearings on 17 and 18 November 2009, the judgment of the District Court of the adjournment application and written submissions, were provided to the Court on the afternoon of 9 March 2010, namely the day before the hearing. 14 The second amended application identified the orders appealed against in the following terms: "1 The Court's order of 18/11/09 to vacate the hearing …; 2 The Court's order 18/11/09 that Ms Kim be able to give evidence by audio visual link; 3 The Court's order of 29/06/09 that leave be granted for the prosecution to call evidence from Miss E Kim." 15 Each of these orders was sought to be vacated and a further order was sought that the appeal to the District Court be allowed "for reason of want of prosecution on the part of the [informant]". Extension of time 16 Pursuant to the rules, the applicant required an order of the Court extending the time within which to seek leave to appeal, the prescribed period being 14 days from the date of the judgment or order below: Criminal Appeal Rules, r 5B. That time expired on 2 December 2009. Putting other factors to one side, and with knowledge that neither the appeal nor the further hearing in the District Court would take place before the end of 2009, an extension of time until 16 December 2009, when the first application was filed, would not have been inappropriate. 17 The amended application however was not filed until two months after the vacation of the hearing and, whilst not expressly challenging them, sought orders which would have revoked orders made on 29 June 2009. Such an application for extension would fall within quite a different category. 18 Finally, there was the motion seeking an extension of time to permit consideration of the second amended application, lodged with the Court on 9 March 2010. The first order challenged was that identified in the first application. The second concerned an order made unopposed on 18 November 2009. The third identified an order made on 29 June 2009. Further consideration will need to be given to the extensions of time required in respect of the second and third orders. Jurisdictional issues 19 Counsel for the applicant sought to identify the jurisdiction of the Court by reference, variously, to sub-ss 5F(1), (3) and (5) of the Criminal Appeal Act. These provisions read as follows: " 5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court … … (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 … … (5) The Court of Criminal Appeal: (a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against." 20 Neither of sub-ss (1) nor (5) provides the basis for an appeal. Indeed, in relation to sub-s (1), it might be thought surprising that s 5F applies at all to appeals in the District Court from convictions in a Local Court. Such proceedings would not ordinarily be understood as involving "the prosecution of offenders on indictment". However, the term "indictment" is defined to include "any information presented or filed as provided by law for the prosecution of offenders": Criminal Appeal Act, s 2(1). 21 There is a sense in which this definition reverses common usage, whereby an indictment is a sub-class of information: see, eg, Criminal Procedure Act 1986 (NSW), s 8 and John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; 163 CLR 508 at 516-517 (Mason CJ, Deane and Dawson JJ), discussing the concept of quashing an information, within s 5C of the Criminal Appeal Act, which deals with both informations and indictments, perhaps inconsistently with the definition of "indictment". 22 It is sufficient to assume, without deciding, that an appeal to the District Court from a Local Court under Pt 3 (including s 11) of the Appeal and Review Act constitutes a proceeding "for the prosecution of offenders on indictment". That is sufficient, because the applicant must fail in seeking to bring himself within sub-s 5F(3). 23 The reference in sub-s (3) to "any other party" is by way of contrast with sub-s (2), which confers rights on the Attorney-General and the Director of Public Prosecutions. It is now beyond question in this Court that the words "interlocutory judgment or order" in sub-s (3) are not to be construed by "an analysis based on a dictionary definition of each of the words", but by reference to their substance and effect, within the statutory context and the general law principles applicable to a criminal trial: see R v Cheng [1999] NSWCCA 373; 48 NSWLR 616 at [32]-[34] (Spigelman CJ, Dunford and Kirby JJ agreeing) and R v Bozatsis & Spanakakis (1997) 97 A Crim R 296 at 303-304 (Gleeson CJ) referring to "the character and effect of the decision". 24 In Cheng, the Crown had sought to avoid a directed acquittal by seeking to bring an interlocutory appeal against a ruling by the trial judge that there was no case to answer, in circumstances where there was no general right of appeal from an acquittal. The Court denied the availability of an interlocutory appeal in that circumstance. At the other end of the scale, rulings which are capable of revision and may not directly affect the outcome of the case, including evidentiary rulings, have been held not to fall within the terms of s 5F(3): see, eg, Steffan v R (1993) 30 NSWLR 633. In Steffan, the reasoning of the Court commenced with the proposition that a judgment is "the decision of a court which determines the proceedings (or an identifiable or separate part of them) and which is entered in the records of the court": at p 636A. Further, an order is "a command by a court that something be done (or not done)".

[16]

25 Reference has been made on occasion to the analogous approach to construction identified in the Commonwealth v Mullane [1961] HCA 28; 106 CLR 166, dealing with the jurisdiction of the High Court under s 73(ii) of the Constitution to hear appeals from "all judgments, decrees, orders and sentences …". That case concerned the effect of a certificate provided by a Medical Board in respect of a claimant for workers' compensation. The primary judge had ruled upon the effect of the certificate, giving reasons for considering that the certificate was not conclusive against the worker. The High Court (Dixon CJ, Kitto, Taylor, Menzies and Windeyer JJ) stated at 169: "If the County Court had ruled against the employee who appealed to the County Court, the County Court might have dismissed that employee's appeal and that would have been an order. It might on the other hand have decided not then and there to dismiss his appeal but to hear more about it by way of explanation, or to enable another tribunal to pass judgment on the view which the learned judge adopted. What his Honour did was simply to give a ruling on a point of law which was raised. It did not conclude the rights of the parties before the hearing of the case was completed. The County Court judge might have altered his mind, he might have ruled otherwise, he might have qualified his ruling; there was no determination. It was something done in the course of the hearing. … It did not, in our opinion, amount to a judgment, still less to a decree; it did not amount to an order and certainly not to a sentence. It is outside the terms of s 73 of the Constitution and this appeal has no foundation in any curial order which is appealable." 26 That decision was relied on in Bozatsis, at 303, and has also been relied upon to exclude appeals against rulings on the admissibility of evidence: see Lethlean (1995) 83 A Crim R 197 at 205-206 (Sheller JA, Allen and Hulme JJ agreeing). It has been said that whether a decision or ruling constitutes a "judgment or order" turns on whether there is an operative judicial act: Salter v Director of Public Prosecutions [2009] NSWCA 357 at [14] (Spigelman CJ, McColl and Campbell JJA agreeing), dealing with s 53(3) of the Appeal and Review Act. 27 The phrase "interlocutory judgment or order" is also to be found in s 101 of the Supreme Court Act, dealing with the subject matter of appeals to the Court of Appeal. Leave is required in relation to an appeal from an interlocutory judgment or order: s 101(2)(e). (The precursor to this provision was s 31(1)(i) of the Supreme Court of Judicature (Consolidation) Act 1925 (UK), which referred to appeals from "any interlocutory order or interlocutory judgment".) Under that provision, rulings as to evidence given in the course of a trial, while concededly interlocutory, have been held not to give rise to a judgment or order which may be the subject of appeal: see Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd [1996] NSWCA 14 at p 3(5) (Mahoney P, Meagher JA agreeing); Rich v Australian Securities and Investments Commission [2005] NSWCA 233; 54 ACSR 365 at [19]-[25].

[17]

28 Clearly, the term "judgment" in s 5F is not being used in its broadest colloquial sense to encompass all that might be included in the reasons given by a court for taking a particular course. No doubt the term "interlocutory" envisages a judgment or order which is less than the final determination of the proceedings, disposing of the rights of the parties. In civil jurisdiction, whether a judgment or order is interlocutory or final may depend upon looking either to the legal effect or to the practical effect of the order. Although the former approach is that adopted in construing s 101 of the Supreme Court Act, it does not follow that that approach is necessarily the sole approach appropriate with respect to s 5F of the Criminal Appeal Act. Both approaches have been treated as relevant in this context where, as explained by Gleeson CJ in Bozatsis, it is "the character of the question, and the effect of the decision" that distinguishes a judgment or order from an incidental ruling made in the course of proceedings: 97 A Crim R at 303. Thus, an order staying proceedings may be appellable under s 5F, even though the basis of the order was, in effect, a ruling that evidence was or was not admissible. A ruling on evidence, standing alone, lacks finality; it may be varied in the course of the trial. However, once an order staying proceedings is made, the relevant element of finality is established. In the latter circumstance, the order may be challenged and, consequentially, any decision or ruling on which it was based. 29 Before leaving the question of statutory construction, it should be noted that the language of s 5F(5) extends beyond judgment and order and includes "decision or ruling". That is because the scope of the appeal conferred, as of right, on the Attorney-General and the Director of Public Prosecutions extends to "any decision or ruling on the admissibility of evidence", subject to a presently irrelevant limitation: s 5F(3A). The terms of sub-s (5) are clearly intended to pick up that extended operation of the right of appeal in circumstances which do not include a case such as the present, where the only right is to seek leave under sub-s (3). 30 While the precise scope and operation of s 5(3) may not be readily discernable from its terms, its application in practice will usually be clear. Relevantly for present purposes, it cannot operate with respect to an adjournment of proceedings, which does not constitute a stay, but is granted for the purpose of allowing the proceedings to continue at an appropriate time. 31 It remains to consider whether the section extends to an order permitting a witness to give evidence by audio visual link, or an order permitting the prosecution to call evidence from a particular witness, being an order pursuant to s 19 of the Appeal and Review Act. 32 There are two antecedent issues in relation to these orders, before any issue of jurisdiction arises. The first is whether the applicant should be permitted to rely upon the second amended application for leave to appeal provided to the Court on 8 March 2010; the second is whether any such direction or order was made, as alleged, on 18 November 2009. However, assuming they were resolved in favour of the applicant, there would nevertheless be no jurisdiction under s 5F. 33 Although not referred to by the parties, it appears to have been assumed by this Court in Alexandroaia (1995) 81 A Crim R 286 (Hunt CJ at CL, Grove and Dunford JJ) that an appeal would lie under s 5F in respect of the refusal by the trial judge of an adjournment, on the application of the accused. The jurisdictional issue may have been obscured by the fact that the trial judge granted leave to appeal under s 5F. However, the issue not having been addressed, the judgment is not authority for the proposition that such an appeal lies. 34 Once it is accepted, in accordance with authority such as Steffan, that no appeal can lie under s 5F from a ruling as to the admissibility of evidence, it must follow that a ruling as to the manner in which a witness can give evidence does not constitute an interlocutory judgment or order. 35 It is also unlikely that a direction that a person attend and give evidence, made pursuant to s 19 of the Appeal and Review Act, could constitute an interlocutory judgment or order. However, the proper characterisation of an order may depend upon the circumstances in which it is given. The orders made by the District Court under s 19 were made long before the present circumstances arose, namely on 29 June 2009. The orders were not opposed by the applicant. If circumstances have now changed (a suggestion which was not articulated in a comprehensible form before this Court) the proper course for the applicant was to seek to reopen those directions in the District Court. That was not done. The challenge in this respect having been raised expressly for the first time on 18 February 2010, by way of a proposed amendment, should not be permitted. Accordingly, leave should be refused to permit the amendment of the summons to include orders (1) and (2) identified in the amended application for leave to appeal referred to at [12]. Similarly leave should be refused to allow an amendment to include the third order identified in the second amended application, referred to at [14] above. In relation to orders (1) and (2) sought in the second amended application it is appropriate to grant an extension of time within which to challenge the additional orders, being identified as orders made on 18 November 2009, but reject leave to appeal, on the ground that neither falls within the scope of the Court's jurisdiction under s 5F(3).

[21]

Costs 42 The prosecutor sought an order for payment of her costs in this Court on the basis that the Court had an inherent or incidental power to make orders for payment of costs where proceedings were an abuse of the process of the Court. Reliance was placed on the decision of this Court in Markisic v Vizza [2002] NSWCCA 53. In that case, Stein JA (with whom Dowd and Barr JJ agreed) found that the appeal to the Court was incompetent: at [16]. The background involved an application in the Common Law Division, purportedly invoking the summary jurisdiction of the Supreme Court, to deal with offences, both under Commonwealth law and under State law. The trial judge had found the Court to be without jurisdiction to consider such complaints. On appeal, the respondents sought an order for payment of their costs, which gave rise to a question as to whether this Court had power to make such an order. It was common ground that, pursuant to s 17 of the Criminal Appeal Act, this Court had no power to award costs on the "hearing or determination of an appeal, or any proceedings preliminary or incidental thereto under this Act". The Court in Markisic accepted that it had jurisdiction to determine whether its jurisdiction had properly been invoked. Its conclusion that the proceedings fell outside its jurisdiction meant, the Court held, that although "the proceedings purport to be brought under the Act, they in fact were not so brought": at [31]. The proceedings not having been brought "under the Act" the prohibition in s 17(1) was held not to apply. The Court further concluded that, because it had implied power to control abuse of its processes, it also had implied (or inherent) power to order the applicants to pay the respondents' costs: at [32]. 43 None of the authorities relied upon to support this conclusion dealt with the Criminal Appeal Act, nor did any deal with a statutory regime which contained an express prohibition on the award of costs to either side. Two cases, Darcey v Pre-Term Foundation Clinic [1983] 2 NSWLR 497 and R v Barbaro (1992) 106 FLR 387 each involved the costs of an application to set aside a subpoena which was shown to be an abuse of process. Each of the four authorities relied on involved a question of the power of the court making the order as to costs, but none supported the proposition that an application purportedly made in relation to a statutory jurisdiction, but found to fall outside the jurisdiction, was not an application "under" the relevant Act. 44 Indeed, the circumstances of the authorities support a contrary conclusion to that reached in Markisic. An application in this Court to set aside a subpoena as oppressive and an abuse of process, in respect of a pending appeal, would appear to involve proceedings preliminary or incidental to the appeal. The fact that the ground on which the subpoena might be set aside was described as "an abuse of process" would not take the matter outside the terms of s 17. 45 It is one thing to say that an administrative decision purportedly made under a statutory power, but tainted by jurisdictional error, is not a decision "under [the] Act" so as to obtain the protection of a privative clause - see Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476 at [81] - it is quite another to say that an application purportedly invoking the jurisdiction of this Court under the Criminal Appeal Act, but which is held to fall outside the jurisdiction, does not involve "an appeal … under this Act". 46 The Court was not taken to any case in which the principle in Markisic had been applied. By contrast, the analysis undertaken by Spigelman CJ (with whom Mason P, McClellan CJ at CL, Hidden and Howie JJ agreed) in R v JS (No 2) [2007] NSWCCA 309; 179 A Crim R 10 casts significant doubt on the scope, if not the legitimacy, of the principle. After referring to the fact that the Court is a statutory court, but has such "incidental statutory powers" as may, by implication, arise from the express conferral of jurisdiction upon and grant of powers to it (at [3]), the Chief Justice continued: "[4] The Respondent submitted that, subject only to s 17 of the Criminal Appeal Act 1912 , … this Court's power to award costs is 'generally at large'. This submission should be rejected. It is necessary to identify an express or implied statutory power to make such an order. [5] At a time when the powers conferred on this Court were to be found only in the Criminal Appeal Act 1912 , this Court held that it 'has no powers except those conferred upon it by that statute'. … Subsequently, other statutes have conferred powers on this Court. … The Respondent has failed to identify any relevant statutory provision. [6] As part of its implied jurisdiction this Court has power to control abuse of its process and, as an incident of that power, may order a person who has abused that process to pay the other party's costs, at least where s 17 of the Criminal Appeal Act does not apply. (See Markisic … at [31]-[33].) … … [16] The Respondent contends that the present case is not a proceeding 'under this Act' and, accordingly, s 17 has no direct application. This submission should be rejected. The words 'under this Act' appear within a distinct clause between the commas immediately before the word 'or' and after the word 'Act'. As a matter of grammar the words 'under this Act' refer to the words 'proceedings preliminary or incidental thereto'. … [17] It may be the case that when the Criminal Appeal Act 1912 was first enacted all appeals to this Court proceeded pursuant to that Act. However, the Act regulated the general procedure of this Court and is, generally, readily adaptable to the conferral of appeal rights to this Court under other legislation. The reference to 'an appeal' does not, as a matter of textual analysis, need to be restricted to an appeal solely under the Criminal Appeal Act itself and should not be. The procedural provisions of the Act, including s 17, should be applied to any scheme pursuant to which appeals are brought to this Court. (As distinct from proceedings which cannot be called an appeal at all, as in Markisic ….)" 47 If Markisic has any vitality, it has no application in the present case. The case has turned upon the scope of an interlocutory appeal under s 5F(3), by construction of the phrase "interlocutory judgment or order". The application before the Court is an application for leave to appeal pursuant to that provision. It is an application under the Criminal Appeal Act, whether it be successful or not. The fact that it has proved unsuccessful because of the proper construction of the Act does not mean that the application was not brought under the Act, nor that the proceedings which have been held to determine whether or not leave should be granted are not proceedings preliminary to or incidental to the proposed appeal. The rejection of leave has taken place in the exercise by the Court of its implied jurisdiction to determine whether it has jurisdiction. That is the exercise of a jurisdiction conferred (by implication) by the Act. The application which sought to invoke that jurisdiction is an application under the Act. Therefore the prohibition in s 17 operates and no order for costs can be allowed to the successful party.

[48]

Leave to appeal refused 66 Section 5F of the Criminal Appeal Act provides: 5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and (b) proceedings under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, and (c) proceedings in Class 5 of the Land and Environment Court's jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979). (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (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 or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal. (3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case. (4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates. (5) The Court of Criminal Appeal: (a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against. (6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.

[50]

Whether or not an adjournment should be granted is a matter which lies within the discretion of the trial judge. ( Conroy v Conroy (1917) 17 SR 680 at 682) An appeal based upon the judge's refusal to grant an adjournment is thus one against the exercise of a discretion, and it will be allowed only where it has been established that the judge has erred in the proper exercise of that discretion. (Ibid (at 684); Collier-Garland (Properties) Pty Ltd v Northern Transport Co Pty Ltd (1964) 82 WN (Pt1) 125 at 127). There is a strong presumption in favour of the correctness of the decision, but that presumption will be overcome where it is shown that the judge has acted on some wrong principle, or has given weight to extraneous or irrelevant matters, or has failed to give weight or sufficient weight to relevant considerations, or has made a mistake as to the facts. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise that discretion. ( House v The King (1936) S5 CLR 499 at 504-505; Lovell v Lovell (1950) 81 CLR 573 at 532-534; Rodgers v Rodgers (1964) 114 CLR 608 at 619-620) An appellate court may not, however, substitute its own findings of fact for those of the primary judge unless there was no evidence to support a particular finding, or the evidence is all one way or the judge has misdirected himself in relation to those facts. ( Regina v O'Donoghue (1988) 34 ACrimR 397 at 401) If the appellate court is satisfied that there has been an injustice to one of the parties as a result of the judge's exercise of discretion, it is under a duty to review the order made. ( Maxwell v Keun [1928] 1 KB 645 at 653; Collier-Garland (Properties) Pty Ltd v Northern Transport Co Pty Ltd (at 127); Bloch v Bloch (1981) 37 ALR 55 at 58-59, Walker v Walker [1967] 1 WLR 327 at 330) 68 In this case no error was shown. Her Honour was entitled to proceed on the basis of the position put to her for the respondent about the witnesses' situation, without objection from the applicant. There was no complaint made that the respondent ought to have led evidence as to the matters advised in relation to the witnesses' residence, that of her doctor and that it would take her some days to obtain an appointment. It is too late to advance the complaint now sought to be made on appeal in relation to this issue. 69 Even if her Honour's view of the facts had been mistaken, that would not necessarily result in leave being granted. In R v Matovski (1989) 15 NSWLR 720 at 723 Gleeson CJ, with whom Lee CJ at CL and Grove J agreed, observed that :

[52]

I would not suggest that there may not be cases in which substantial factual error could form the basis of a successful application for leave to appeal under s 5F. I do not intend to suggest that the only cases in which this Court would give leave to appeal would be cases where the applicant can point to some error of law or mistake in principle concerning the way in which a discretion of the kind involved in an application such as that presently in question should be exercised. No doubt there may always be cases where the interests of justice would require the granting of leave to appeal even in the absence of some specific error of the kind to which reference has already been made. Accordingly, it is not appropriate to circumscribe the discretion which this Court has in deciding whether to grant or withhold leave to appeal. Equally, however, it is necessary to attend to the statutory requirement that leave be granted where an appeal against an interlocutory judgment is contemplated by a party to proceedings other than one of the persons mentioned in s 5F(2). The present case is not in my view one in which leave to appeal should be granted. I can see no error of law or discretionary principle in the reasons for judgment of the learned trial judge. He took a particular view of the facts after hearing detailed evidence and argument and it seems to be a view of the facts which was at least open to him. The case is not one in which in my view the interests of justice require intervention by this Court at this stage and I would propose that the application for leave to appeal be dismissed. 70 In this case the complaint is not factual error, but an absence of evidence as to those facts. In the circumstances there can be no question that the conclusion reached as to the adjournment was well within her Honour's discretion. Her Honour was entitled to reject the position urged for the applicant in determining what justice demanded in the situation which had presented itself. 71 As to the leave sought in relation to Ms Kim's evidence, as it was explained for the applicant, this hinged on the success of the appeal in respect of the adjournment. No case for granting leave to appeal from the decision of Chief Judge Blanch was pressed on any basis other than the consequences, in the particular circumstances, of the adjournment having been granted by Sweeney J. That, as a matter of justice between the parties, cannot be a proper basis for granting the applicant leave to appeal his Honour's decision to grant the respondent leave to call evidence from Ms Kim on the hearing of the appeal from the Local Court. 72 As to the leave granted to call Ms Kim's evidence by use of video link, it may not be overlooked that s 5F(3) of the Criminal Appeal Act confines the leave which the applicant might seek of this Court to 'interlocutory judgments or orders' of the District Court. The section does not permit an appeal to this Court in relation to procedural rulings or directions made during the course of a hearing, such as that involved in permitting Ms Kim to give her evidence by video link. Under the Evidence (Audio and Audio Visual Links) Act 1998 that was a matter for the District Court's directions in the particular circumstances of the case before it. That direction is not amenable to review under s 5F of the Criminal Appeal Act. 73 While s 5F(5) of the Criminal Appeal Act refers to the Court's powers in respect of a 'decision or ruling', that is a reference to the provision made in s 5F(3A), which gives the Attorney General or the Director of Public Prosecutions the right to appeal against any decision or ruling on the admissibility of evidence. The applicant is given no such right under s 5F(3), much less a right to seek leave to appeal in respect of a direction as to the manner by which particular evidence is to be received. 74 Finally, it was argued that the order sought finally disposing of the proceedings was available to be made under s 5F(5) of the Criminal Appeal Act. It is doubtful that the section envisaged such relief being granted in circumstances where there is no judgment or order of the District Court, which is sought to be made the subject of an appeal. The practical result of the order would be to uphold the appeal, without a hearing on the merits by way of rehearing by the District Court, as envisaged by the Crimes (Appeal and Review) Act. That does not appear to be an order contemplated by s 5F of the Criminal Appeal Act. Given however, that such an order would plainly only be entertained if the applicant succeeded in obtaining the orders sought in respect of the adjournment and Ms Kim's evidence, it is unnecessary to consider this question further.

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