The proposed grounds of appeal as set out in the Notice of Application for Leave to Appeal Against Interlocutory Judgment of Order may be summarised:
1. His Honour erred in determining that the conduct of the deceased relied upon by the applicant was not capable of constituting a serious indictable offence under s 13 of the Crimes (Domestic and Personal Violence) Act.
2. His Honour erred in holding that "conduct towards or affecting the accused" in s 23(2)(a) requires conduct directed personally by the deceased towards the accused.
3. His Honour erred in holding that the "ordinary person" test in s 23(2)(d) is a purely objective test.
[2]
Competency of the proposed appeal
It was indicated to the parties that the Court wished to hear first on the question of whether the impugned rulings of Johnson J were interlocutory judgments (or orders) that were amenable to an appeal pursuant to s 5F(3) of the Criminal Appeal Act. Notwithstanding the efficiency with which the Registrar was able to arrange for the matter to come before the Court, the parties provided detailed written submissions in advance of the hearing that were supplemented by their oral submissions.
It is unnecessary to review the submissions in any detail. In short, Mr Alexis SC, on behalf of the applicant, sought to portray the rulings as having a sufficient degree of finality in respect of the subjects with which they dealt to be interlocutory judgments or orders befitting an appeal of this type.
In the end I find that I cannot distinguish the situation in this case to that which pertained in A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244. That case concerned an application for leave to appeal pursuant to s 5F(3) against a pre-trial ruling, coincidentally by Johnson J, as to the meaning of the word "mutilates" in the context of an offence of female genital mutilation in s 45 of the Crimes Act. With the concurrence of Beazley P and Bellew J I wrote at some length on the subject of whether this Court had jurisdiction to entertain the appeal (at [16]-[27]). The following points relevant to the present case are derived from that writing. (I will not attribute quotations or repeat the citations of authority; they are evident in the source.)
The existence of an "interlocutory judgment or order" is essential for review under s 5F(3).
A judgment determines the proceedings, or at least an identifiable part of them, and being capable of entry in the records of the Court. An order amounts to a command that something be done or not done.
There is no bright line test for discriminating between judgments or orders, on the one hand, and rulings which do not constitute judgments or orders, on the other.
Commonwealth v Mullane (1961) 106 CLR 166 provides an example of 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 primary judge might have altered his mind; he might have ruled otherwise; he might have qualified his ruling; there was no determination.
It is necessary to have regard to substance rather than form. It is the character of the question and the effect of the decision, that makes the difference.
The fact that the judgment in question might include a detailed assessment of evidence and submissions and the reasons might be lengthy. That is an irrelevant consideration.
The legal issue dealt with in the judgment might be "unique" and not the subject of any binding authority. That is not relevant, let alone determinative.
The rule might be characterised as "categorical" and it might be "of extreme importance to the trial". Again, that for present purposes is not a relevant matter.
The fact that rulings may affect the outcome does not provide a sufficient basis for permitting an interlocutory appeal. If an appeal was available in such circumstances, many rulings on evidence and disputed directions to the jury would become the potential subject of an interlocutory appeal.
Three examples of pre-trial determinations of legal issues that were held not to be interlocutory judgments or orders for the purposes of an appeal pursuant to s 5F were cited in A2 v R; KM v R; Vaziri v R. In W O v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 the ruling was concerned with whether an offence of attempting to have sexual intercourse without consent was an offence of specific intent which would impact upon the relevance of the accused's intoxication at the relevant time. The judge also ruled upon whether s 61HA of the Crimes Act applied. It was held (at [30]) that these "should be characterised as a preliminary determination of certain questions of law which were anticipated as likely to arise in the course of the proceedings". They were held not to be interlocutory judgments or orders.
R v Adamson [2005] NSWCCA 7 was also concerned with an application for leave to appeal pursuant to s 5F against a pre-trial ruling that a particular offence was not one of specific intent for the purpose of the intoxication provisions in Pt 11A of the Crimes Act. It was held by Spigelman CJ (at [7]) that this was not an interlocutory judgment or order: "It does not have the requisite element of finality in terms of resolving an issue in the proceedings in a binding manner".
R v Piper [2005] NSWCCA 134 was concerned with a ruling on the admissibility of evidence in relation to a proposed defence of mental illness. It was an appeal by the Crown pursuant to s 5F(2) but still turned on whether the ruling was an interlocutory judgment or order. It was held (at [11]) that it did not.
In A2 v R; KM v R; Vaziri v R, the pre-trial ruling of the trial judge bore upon how he would direct the jury as to the elements of the offence. It involved a question of statutory construction of a word in the offence-making provision. In the present case the pre-trial ruling bore upon whether a partial defence could be left to the jury. It, too, involves a question of statutory construction of aspects of the defence-making provision. I see little to distinguish between the two.
In A2 v R; KM v R; Vaziri v R, senior counsel for two of the applicants conceded in response to questioning from the bench that it was open to the trial judge to modify the direction he had indicated he would give to the jury. Notwithstanding this was suggested as being only a hypothetical possibility, the very existence of such a possibility was a concession that the ruling lacked the finality necessary for the ruling to be regarded as an interlocutory judgment or order amenable to appeal pursuant to s 5F(3).
The same applies in the present case. The judge gave a ruling on a statutory construction question in the context of his appreciation of the evidence that was perceived to be less than complete. Indeed, the defence had held back from disclosing all that it might tender or adduce at trial. As was his right, and as Mr Alexis pointed out at the hearing, the applicant wished to maintain his right to silence by not disclosing the evidence which he proposed to tender or adduce and the material before his Honour was only that provided by the Crown.
The ramification of this was that when his Honour indicated that to constitute an offence under s 13 of the Crimes (Personal and Domestic Violence) Act there would need to be evidence of conduct outside the exercise of the deceased's legitimate employment function, his Honour was speaking in the context only of prosecution evidence; being oblivious to any evidence to the contrary. His Honour was not excluding that the partial defence could be relied upon if there was such contrary evidence. His Honour specifically allowed for that possibility at the conclusion of his judgment (at [118] - see above).
Mr Alexis pointed to the provision in s 139(5) of the Criminal Procedure Act which provides that a pre-trial ruling is binding on the judge presiding at trial unless that judge determines that it would not be in the interests of justice. The "interests of justice" proviso to that provision is a clear indication that a pre-trial ruling, such as was made by Johnson J in the present case, is not final.
However, Mr Alexis sought to counter this by saying that it was not expected that there would be any evidence in the trial that the deceased was conducting himself outside the realm of his employment function. Accordingly, his Honour's determination was purely a matter of statutory construction that would abide notwithstanding whatever further evidence the applicant may tender or adduce at the trial. In this way he sought to distinguish the present case from the three examples I have mentioned above, W O v Director of Public Prosecutions (NSW), R v Adamson and R v Piper. With respect, I do not see the distinction.
As in the case of A2 v R; KM v R; Vaziri v R, senior counsel for the applicant conceded that if, hypothetically, prior to or during the applicant's trial another court at the same or at a higher level in the judicial hierarchy made a determination in relation to the offence in s 13 of the Crimes (Personal and Domestic Violence) Act being committed by a person carrying out an employment function that was contrary to Johnson J's determination, it was possible for him to argue that it was in the interests of justice for his Honour to revisit the issue and revise his decision. As in A2 v R; KM v R; Vaziri v R, I see this as an illustration of the lack of finality of the determination rendering it inapt to characterise it as an interlocutory judgment or order for the purposes of s 5F(3).
The "views" expressed by his Honour regarding s 23(2)(a) and (d) could even less be characterised as an "interlocutory judgment or order". For the defence to be left to the jury, his Honour said that there had to be evidence of each of the 4 elements. He indicated that there was no evidence (of which he was then aware) raising the matter in s 23(2)(b). As a result, it was unnecessary for his Honour to formally rule on whether the elements in s 23(2)(a) or (d) could be made out. However (it would seem in deference to the submissions that had been made) he indicated what he specifically referred to as his "views". At best, they could only be regarded as an indication based upon an incomplete evidentiary basis of what his Honour thought those provisions entailed. They can hardly be regarded as something that was a definitive judgment or order that finally disposed of some aspect of the proceedings.
[3]
Conclusion
The application for leave to appeal failed on the basis that it was incompetent. The proposed appeal did not concern an interlocutory judgment or order that was open to appeal pursuant to s 5F(3) of the Criminal Appeal Act.
The foregoing are my reasons for joining in the Court's order that leave to appeal be refused.
GARLING J: On 19 April 2016, I joined in with the orders which the Court pronounced that day. I did so because I was satisfied that there was no competent basis for the Court to grant leave to the applicant to appeal to the Court pursuant to s 5F of the Criminal Appeal Act 1912. This is clearly demonstrated in the reasons of R A Hulme J with which I agree.
WILSON J: I agree with R A Hulme J.
[4]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 10 June 2016
Solicitors:
Cole & Butler
Solicitor for Public Prosecutions
File Number(s): 2014/223920
Decision under appeal Court or tribunal: Supreme Court
Citation: R v Turnbull (No 5) [2016] NSWSC 439
Date of Decision: 15 April 2016
Before: Johnson J
File Number(s): 2014/223920
The judgment
Johnson J explained the need and purpose of his judgment of 15 April 2016 (R v Turnbull (No 5)) as follows:
"[6] In advance of the trial, a number of pretrial issues were raised. After the Court had ruled upon issues arising with respect to subpoenas issued on behalf of the Accused, the Crown submitted that a pretrial hearing should proceed with respect to the Accused's intended reliance upon extreme provocation and the tendency notice served by the Accused in connection with that issue.
[7] After hearing submissions, I ruled on 11 April 2016 that certain issues were appropriate for pretrial rulings: R v Turnbull (No. 4) (unreported, 11 April 2016). I observe that the partial defence of extreme provocation under s.23 Crimes Act 1900 came into existence on 13 June 2014. The provision only applies to events occurring after that date. The present trial appears to be the first case in which the proper construction and application of s.23 falls for consideration.
[8] Further, as will be seen, the context in which extreme provocation is sought to be raised in this case is highly unusual. I formed the view that a combination of factors rendered this matter appropriate for a pretrial hearing for the purpose of ss.130 and 139 Criminal Procedure Act 1986 and s.192A Evidence Act 1995.
[9] The matters to be addressed in this judgment arising from the pretrial hearing are as follows:
(a) ruling on a question of law that might arise at the trial, being the proper construction of s.23 Crimes Act 1900: s.139(3)(g) Criminal Procedure Act 1986;
(b) ruling concerning the admissibility or use of tendency evidence proposed to be adduced by the Accused: s.139(3)(e); s.192A Evidence Act 1995;
(c) arising from the ruling concerning the proper construction of s.23, a ruling concerning the possible operation of s.23 in the context of this trial upon the Court's present state of knowledge of the matter.
[10] At one point, the Crown submitted that the Court would be in a position to, in effect, make a final ruling that the partial defence of extreme provocation was not available to the Accused in the circumstances of this case. The Accused has elected not to place before the Court, at this pretrial hearing, the entirety of factual matters which may bear upon this topic. The Court has a considerable body of material provided by the Crown (and referred to by the Accused), to which reference will be made. I will proceed to consider known aspects of the case, including material which the Accused has put before the Court on the tendency issue, for the purpose of this judgment.
[11] I am conscious that caution must be exercised in taking a step in advance of the trial which would operate to reduce, or even remove, the basis upon which an accused person may seek to rely upon a partial defence such as extreme provocation: Lindsay v The Queen [2015] HCA 16; 89 ALJR 518 at 526 [27]-[28]. I am satisfied, however, that in circumstances where a new statutory provocation provision is being considered for the first time, and where the context in which it is said to arise is most unusual, that the course which I am taking is both open to the Court and appropriate." (Emphasis added)
The emphasised portions of the above extract are the first indication that his Honour's approach in relation to the issue concerning s 23 was somewhat indicative in that his determination was made without a complete appreciation of all of the evidence that may bear upon the issue.
His Honour's judgment then proceeded to review the relevant statutory provisions (s 23 of the Crimes Act and a number of sections of the Crimes (Domestic and Personal Violence) Act) (at [12]-[16]). He summarised "factual matters" including "evidence of contact between the [applicant] and Mr Turner" (at [17]-[54]). Next, his Honour discussed the new partial defence of "extreme provocation" with substantial reference to the Attorney General's second reading speech (at [55]-[66]).
The judgment then turned to a consideration of the submissions made by the parties as to the construction and operation of s 23 of the Crimes Act (judgment at [67]-[73]). The Crown's position was that the conduct relied upon by the applicant was conduct of the deceased in fulfilling his role in enforcing the law under the Native Vegetation Act 2003. The applicant's position was that there is nothing in s 13 of the Crimes (Domestic and Personal Violence) Act that required as an element of the offence therein that the person was acting without lawful power or authority. (The submissions are more fully summarised in his Honour's judgment.) His Honour ruled, in effect, in favour of the Crown (judgment at [74]-[88]).
His Honour's judgment mentioned at an early stage (at [10]-[11] - see above) that his ruling was made on the basis of material that was available to him at the pre-trial stage. Not all of that which might be relied upon by the applicant was known to him. His Honour's reasoning as to his conclusion was couched in terms which confirmed that he was adjudicating upon the issue on the basis of what might not be the full gamut of material relevant to the issue. The following statements extracted from his Honour's reasoning are further indicative of this:
"[74] … The material before the Court at this pretrial hearing … indicates …"
"[80] Looking at the factual material as presently identified at this pretrial hearing, …"
"[85] It must be observed, however, that the material before the Court at this pretrial hearing does not …"
On the construction of s 13 of the Crimes (Personal and Domestic Violence) Act, his Honour concluded:
"[76] I accept that a s 13 offence is not confined to conduct in a domestic setting. However, where the conduct sought to be relied upon as a s 13 offence is that of a public officer exercising compliance or enforcement functions, I consider that conduct is only capable of constituting a s 13 offence if it falls completely outside the exercise of the public officer's functions. By that I mean that the conduct in question must be detached entirely from the officer's employment functions."
At the hearing of the application, Mr Alexis SC for the applicant was pressed as to whether this should be construed as his Honour referring to the lawful exercise of the public officer's functions. In other words, if the officer was acting beyond the bounds of his or her lawful functions, it is possible that a s 13 offence could be committed. Mr Alexis resisted this interpretation but I believe it is the only sensible way to read it.
His Honour's conclusion is encapsulated in the following:
"[87] Having regard to all the material to which I have made reference, I am not persuaded that this material constitutes evidence that the conduct of Mr Turner was a serious indictable offence (a s 13 offence) for the purpose of s 23(2)(b) of the Act."
The judgment continued with his Honour expressing some "views" in respect of other aspects of the construction of s 23 ([89]-[99]). Those "views" included that "conduct towards or affecting the accused" in s 23(2)(a) requires conduct directed personally as between the deceased and the accused and excluded conduct towards other persons (such as the accused's relatives) that may affect the accused. They also included that the "ordinary person" test in s 23(2)(d) is a purely objective test.
His Honour then dealt with the tendency issue (at [100]-[116]) which is of no present moment.
The judgment concludes as follows:
"[117] The conclusions which I have reached in this judgment are that:
(a) the conduct of Mr Turner relied upon by the Accused and as identified in this judgment is not capable of constituting a serious indictable offence under s.13 Crimes (Domestic and Personal Violence) Act 2007 for the purpose of s.23(2)(b) Crimes Act 1900;
(b) the application of the Accused to rely upon tendency evidence is declined.
[118] As there is a possibility (perhaps theoretical) that the Accused will adduce evidence which is capable of raising the partial defence of extreme provocation under s.23 Crimes Act 1900 within the confines of this judgment, I cannot determine finally that such a partial defence should not be left to the jury. That said, I have had regard to all material before the Court at this pretrial hearing and, upon the construction of s.23 which I have adopted, it may be difficult to conceive a basis upon which this partial defence could be left to the jury."
The concluding paragraph is the final indication in the judgment that his Honour's conclusion was tentative because it was based upon a potentially incomplete knowledge of all the evidence that might be tendered or adduced at the trial that might be relevant to the s 23 issue.