W O v DIRECTOR OF PUBLIC PROSECUTIONS [2009] NSWCCA 275 | Case summary

No ground was specified. 6 The notice of appeal, which together with the certificate was filed on 17 August 2009, identified the judgment or order appealed against in the following terms: "Attempted sexual intercourse without consent … is not a crime of specific intent." "The provisions of s 61(h)(a) [sic] apply. The application to have the defence excluded is upheld." 7 In written submissions, senior counsel for the appellant conceded that "[b]oth the procedure adopted and the ruling given are beset with … problems". Nevertheless, he submitted that the Court had power to deal with the appeal under s 5F of the Criminal Appeal Act. 8 In the event that the Court held otherwise, he took the precautionary step of filing in the Court of Appeal a summons for judicial review under s 69 of the Supreme Court Act 1970 (NSW). That summons has been listed together with the criminal appeal, and is dealt with in a separate judgment. 9 Although the Director had, in an informal manner, sought the rulings of the trial judge in respect of the matters which are now in contention, and had not objected to an adjournment to allow her Honour's rulings to be challenged on appeal, he disputed the jurisdiction of this Court to deal with the appeal under s 5F. Senior counsel for the Director also filed submissions in the civil proceedings, contending that there was "no judgment or order made or given that is amenable to the relief sought". 10 In order to consider the jurisdictional issues, it is necessary to explain briefly what happened before her Honour. Procedural background 11 At the commencement of the trial on 3 August 2009, the prosecutor indicated that there was "just one matter that needs to be ventilated": Tcpt, p 2(5). After clarification with respect to the availability of interpreters, and after noting the charges on the indictment, counsel for the Director continued: "As I understand there is an issue in the trial that whether or not the accused has a defence of honest and reasonable mistake of fact. And as I understand the position that is the defence that he's been putting forward in his record of interview to police and I think … that was the defence that he intended to rely on in the trial. What the Crown says is that because of the amendments to the Crimes Act , s 61HA that occurred on 1 January 2008, that defence simply isn't open to the accused in this trial." 12 The prosecutor then outlined the facts, by way of "background". The incident in question arose following a party at the appellant's house, in the course of which one of the guests (the complainant) had become intoxicated and had been helped by a friend to the bedroom used by the appellant and his wife and placed on the bed. Later that evening, the appellant who was also highly intoxicated, had gone to his bedroom, undressed and attempted to have sexual intercourse with the complainant who was, at the time, both intoxicated and asleep. When the female friend of the complainant who had helped her to the bedroom, came in she found the appellant lying on top of the complainant, who was lying on her stomach and was still asleep. The appellant apologised and explained that he thought the complainant was his wife. The prosecutor continued (Tcpt, p 4(5)): "It's on that factual scenario that I understand [the appellant] to be arguing that the defence of honest and reasonable mistake of fact, that being that the complainant was in fact the accused['s] wife, is raised and something that must be rebutted by the Crown in the course of the trial." 13 The prosecutor then outlined the elements of the offence and referred specifically to s 61HA(3)(c). It is convenient to set out the relevant parts of s 61HA: " 61HA Consent in relation to sexual assault offences (1) Offences to which section applies This section applies for the purposes of the offences under sections 61I, 61J and 61JA. … (3) Knowledge about consent A person who has sexual intercourse with another person without the consent of the other person knows that the other person does not consent to the sexual intercourse if: (a) the person knows that the other person does not consent to the sexual intercourse, or (b) the person is reckless as to whether the other person consents to the sexual intercourse, or (c) the person has no reasonable grounds for believing that the other person consents to the sexual intercourse. For the purpose of making any such finding, the trier of fact must have regard to all the circumstances of the case: (d) including any steps taken by the person to ascertain whether the other person consents to the sexual intercourse, but (e) not including any self-induced intoxication of the person. (4) Negation of consent A person does not consent to sexual intercourse: … (b) if the person does not have the opportunity to consent to the sexual intercourse because the person is unconscious or asleep, … (6) The grounds on which it may be established that a person does not consent to sexual intercourse include: (a) if the person has sexual intercourse while substantially intoxicated by alcohol or any drug, … (8) This section does not limit the grounds on which it may be established that a person does not consent to sexual intercourse." 14 The prosecutor, having referred to the terms of sub-s (3) and sub-s (4)(b), continued: "So if I can then move to what the Crown sees as the common law in relation to the defence of an honest and reasonable mistake. It's always in the Crown's submission [been] the case that 'at common law an honest and reasonable belief in the existence of circumstances which [if] true would make the act for which the prisoner is indicted an innocent act.'" 15 The prosecutor made reference to the English authority of R v Tolson (1889) 23 QBD 168 and the decision of the High Court in CTM v The Queen [2008] HCA 25; 236 CLR 440. From those authorities, the prosecutor derived two propositions relating to the "defence" of honest and reasonable mistake of fact. As the plurality noted in CTM, the characterisation of a "defence" was better described as "a ground of exculpation", as to which an evidentiary burden lay upon an accused, but which ultimately the prosecution bore the legal onus of displacing: at [8]. The term "defence" as used in the argument and judgment in the District Court should be understood in its colloquial sense and not as a term of art indicating where the legal onus of proof lay. In this context, the prosecutor asserted, first, that the availability of such a ground of exculpation depended upon the particular statutory scheme. Secondly, he submitted that the fact mistakenly believed by the accused must be such as to take his conduct outside the scope of criminality, so as to render it an "innocent" act. The prosecution case was that the statutory regime, and in particular s 61HA(3), rendered the common law defence "unnecessary" because all the relevant matters were stated in the statute: Tcpt, p 6(40)-(45). That submission was extended, after reference to the second reading speech of 7 November 2007 in relation to the new section, so that the final position put by the prosecutor was that a defence under the common law was unavailable, given the terms of s 61HA(3)(c): Tcpt, p 7(45). 16 It is apparent from this summary that the prosecutor did not raise as an issue for preliminary consideration whether the offence was one of specific intent. That issue was raised by counsel for the appellant (Tcpt, p 8(10)-(15)) and was addressed in reply by the prosecutor: Tcpt, p 9. 17 The prosecutor did not object to the issue as to whether the offence charged was one of specific intent being raised in this manner: indeed, he treated the issue as requiring a resolution of two provisions, by giving priority to the operation of s 61HA: Tcpt, p 13. Counsel for the appellant, by contrast, identified the application of s 61HA and the issue as to whether the offence was one of specific intent as being separate and independent of each other: Tcpt, p 14. 18 On 4 August 2009 the trial judge delivered what is described as a "judgment". The judgment did not identify an issue raised by the prosecution for determination but noted that: "[t]he accused seeks to raise as a defence, an honest and reasonable belief as to the identity of the complainant and argues that the provisions of s 61(H)(A) [sic] do not apply. The accused admits, as I understand the facts of the case to be, that he was highly intoxicated and he thought it was his wife who was in his bed at the relevant time. That he has an honest and mistaken belief as to the identity of the person in his bed": pp 1-2. 19 Her Honour further stated at pp 4-5: "Of course, if it was his wife in bed, who was asleep or unconscious or incapable of consenting due to a level of intoxication, he would have no such defence. The issue to be determined, as I see it, is whether the offence of attempted sexual intercourse without consent is a crime of specific intent." 20 Having posed the issue in that way, her Honour held that it was not a crime of specific intent and continued: "That being so, his level of intoxication is not a relevant consideration and inadmissible in respect of his intention and he is precluded from relying upon intoxication as some kind of a defence to the substantive act. The provisions of s 61(H)(A) apply. The application to have the defence excluded is upheld." Jurisdiction of the Court 21 The appeal to this Court is brought under s 5F of the Criminal Appeal Act, which, so far as relevant, reads: " 5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings … for the prosecution of offenders on indictment in the Supreme Court or in the District Court …. (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. … (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." 22 The present appeal is brought pursuant to sub-s 5F(3), not being an appeal brought by the Attorney-General or the Director. The trial judge having certified that the judgment or order is a proper one for determination on appeal, there is no occasion for this Court to consider whether or not to grant leave to appeal. 23 The grant of the certificate by the trial judge was not necessary, as her Honour appears to have believed, in order for the application to proceed. Rather, the act of the trial judge in certifying under sub-s (3)(b) effectively removes from this Court the power to control, through grant or refusal of leave to appeal, its own procedures. As this Court indicated in Pellegrino v Director of Public Prosecutions (Cth) [2008] NSWCCA 17; 71 NSWLR 96 at [8], it is "usually desirable that leave be sought in this Court". The Court continued at [9]: "The power of the trial judge to certify may properly be exercised in circumstances where the appropriateness of an interlocutory appeal is not in doubt and particularly where that factor is combined with lack of opposition from the Director. Similarly, it may properly be exercised where the trial judge feels that he or she has obtained a particular insight into the proceedings which may not readily be shared by this Court. In other cases caution should be exercised …." 24 One consideration which supports that approach is that where an appeal is available under s 5F, there may nevertheless be discretionary reasons for declining to grant leave, including factors relating to the interruption of criminal proceedings and the possibility that intervention might be premature. In such a case, the position of the applicant will be protected by sub-s 5F(6). If the question of leave does not arise, because the trial judge has certified that the matter is an appropriate one for an appeal, there may be consequences as to the bases on which a conviction can be challenged. No such issue arises for determination in the present case: rather, this is merely an occasion for emphasising the need for caution on the part of trial judges in considering whether to certify a matter under sub-s (3)(b). Scope of s 5F(3) 25 The jurisdiction of the Court depends on the scope of the phrase "interlocutory judgment or order" in s 5F(3), a phrase which does not readily lend itself to precise delimitation. 26 Although particular words must be construed in their statutory context, the fact that the words adopted by the legislature have an established history of legal usage is not to be disregarded: see The King v Snow [1915] HCA 90; 20 CLR 315 at 321-322 (Griffiths CJ). Thus, it was not inapt for this Court, in Bozatsis & Spanakakis (1997) 97 A Crim 296 at 303, to refer to The Commonwealth v Mullane [1961] HCA 28; 106 CLR 166 at 169, dismissing as outside the terms of s 73 of the Constitution a purported appeal from a ruling by a trial judge as to the effect of a certificate in particular proceedings: see also Lethlean (1995) 83 A Crim R 197 at 205-206 (Sheller JA, Allen and Hulme JJ agreeing); cf Salter v Director of Public Prosecutions [2009] NSWCA 357 at [17] (Spigelman CJ, McColl and Campbell JJA agreeing) and [32](Campbell JA) . 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]. This Court has reached a similar conclusion in respect of rulings on evidence, namely that such rulings, made in advance of or in the course of a trial, are not within the scope of s 5F: see R v Steffan (1993) 30 NSWLR 633 at 639G (Hunt CJ at CL, Grove and Sharpe JJ). 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)". The term "judgment" in this context 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. 28 Such broad statements must be viewed with caution, as 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, it has been recognised that the test of whether a judgment or order is interlocutory or final may depend either upon the legal effect or 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 appropriate approach in respect of s 5F of the Criminal Appeal Act. Both approaches have been treated as relevant in the latter 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. The reason for the difference in approach flows from the fact that 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 The unavailability of an appeal under s 5F against rulings on the admissibility of evidence has now been qualified by the inclusion of sub-s (3A), which permits a representative of the State to appeal against any such decision or ruling in the limited circumstances there identified. The inclusion of that additional power also explains the reference in sub-s (5), dealing with the powers of the Court on appeal, not only to the judgment or order, but also to the "decision or ruling". 30 Although in the present case the judgment given by the trial judge will no doubt have consequences in respect of the admissibility of evidence at a later stage in the trial, assuming it is not varied, it was not in terms a ruling on the admissibility of specific evidence. Rather, it 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. In that respect, this case bears similarities to R v Adamson [2005] NSWCCA 7 and Regina v Piper [2005] NSWCCA 134. 31 In Adamson, the accused had invited the trial judge to decide at an interlocutory stage whether the offences with which he had been charged were offences of specific intent, thus permitting him to rely on evidence that he was intoxicated and did not have the necessary intention, being an application of s 428C of the Crimes Act. The trial judge ruled that the offences in question were not offences of specific intent. The accused then made application to this Court under s 5F to have that determination reviewed. Spigelman CJ (Dunford and Hidden JJ agreeing) held that the trial judge had done "no more than to indicate what he would do, if he were the trial judge, if evidence of intoxication were sought to be adduced over objection, or if such evidence was otherwise before the Court, what direction he would give to the jury on the issue of intention": at [6]. His Honour concluded that this was not a judgment or order within s 5F because it did "not have the requisite element of finality in terms of resolving an issue in the proceedings in a binding manner": at [7]. Rather, the indication was closely analogous to a ruling on the admissibility of evidence which, on the authorities was not within the scope of s 5F: at [8]. 32 In Piper, the trial judge had made a ruling on admissibility of evidence sought to be tendered in support of a defence of mental illness under s 38 of the Mental Health (Criminal Procedure) Act 1990 (NSW). In a judgment with which Spigelman CJ and Studdert J agreed, Greg James J stated at [11] after referring to Bozatsis: "Allowing for a rare case where a ruling on evidence, which might form the basis of a stay of proceedings, or would have the effect of determining the fate of the prosecution case, as being possibly the subject of a s 5F appeal, the court held that a mere ruling lacks the quality of finally determining the rights of the parties such as to partake of being a judgment or order. … That decision and the line of authority that was examined in Lethlean (supra) to me makes clear that what occurred here, even though the trial judge was examining the ambit of a legal doctrine possibly applicable, was concerned with the rejection or admission of evidence in the defence case, so that his decision did not fall within any such exception to how rulings on evidence are to be regarded so that the right of appeal for which the Crown contends under s 5F(2) exists." 33 In both Adamson and Piper, the appeals were dismissed as incompetent. The question is whether a similar course should be taken in the present case. 34 In determining the scope of s 5F, for present purposes, two matters of practice and procedure, which are distinct and separate in their purposes, need to be considered. The first is that a final judgment or order may be challenged on any basis arising in the course of the proceedings which materially affected the final determination of the proceedings. The wrongful admission of evidence, the failure of the judge to order separate trials and numerous other decisions and rulings which may be made in the course of a trial will all be available, if erroneous, as a basis on which to challenge the final order. So much is recognised by s 5F(6). 35 How, as a matter of practice, this principle should operate in particular circumstances gives rise to a separate question. On the one hand, the availability of a challenge to the final order may be said to militate against the disruption of the orderly running of the criminal process. On the other hand, an error at an early stage of a trial may benefit from immediate correction, so as to avoid the waste of time and resources required by the need to complete the trial, even if it were to result in an acquittal. 36 These conflicting considerations have led to the second matter of practice and procedure. In a number of respects, the legislature has now provided for mechanisms by which legal issues can be determined prior to the commencement of a trial, no doubt primarily to allow for the smooth running of a trial and the minimum disruption of the hearing before a jury. In one sense, the purpose underlying the provision of pre-trial hearings is in step with the principle that a trial should not be disrupted by attempts to run interlocutory appeals. What is less clear is whether the availability of pre-trial mechanisms has had the effect of expanding the scope of s 5F, thus allowing for the final resolution of questions not to be left to a jury, although perhaps at the expense of some delay in resolving such matters prior to the empanelling of the jury. The answer to this question must be resolved by having regard to the mechanisms available for pre-trial determination of issues. 37 The appellant drew attention to three specific mechanisms which, although not expressly invoked in the present proceedings, might be relied upon to justify the course taken and which may give a particular character to the determinations of the trial judge. The first was s 192A of the Evidence Act 1995 (NSW) which reads: " 192A Advance rulings and findings Where a question arises in any proceedings, being a question about: (a) the admissibility or use of evidence proposed to be adduced, or (b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced, or (c) the giving of leave, permission or direction under section 192, the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings." 38 A provision in such terms was introduced to remedy a procedural defect identified in TKWJ v The Queen [2002] HCA 46; 212 CLR 124. 39 In its terms, s 192A does not speak of a judgment or order of the Court, but rather a ruling or finding. Furthermore, there is nothing in the section which provides any additional element of finality in respect of such a ruling or finding, beyond that which would attach to a ruling made in the course of the trial absent that provision. Indeed, it is not clear precisely how s 192A was intended to operate. TKWJ concerned the scope of cross-examination of a prosecution witness and the likely consequences with respect to character evidence called for the accused. Use of the phrase "advance ruling" in TKWJ was apparently intended to cover requests for rulings well in advance of any attempt to adduce evidence, and not at the point of presentation of the evidence. In any event, this fresh mechanism for determining such matters gives rise to no new factor, such as might suggest an extended scope for s 5F with respect to evidential rulings. 40 Secondly, counsel for the appellant referred to the District Court Rules 1973 (NSW), Pt 53, rr 10 and 11. Part 53 has application in relation to criminal proceedings. Rule 11 relevantly provides: " Evidence 11(1) The Court may order that an enquiry by way of a voir dire into the admissibility of any evidence or as to the capacity of a witness to give evidence be had, before the trial Judge, at any stage of any proceedings whether before or after the jury is empanelled." 41 Rule 10, which covers a number of kinds of applications, including applications for an adjournment, separate trials and for an order r 11(1), states: " 10 Pre-trial applications (1) Any application to the Court in relation to any proceedings which may practicably be made before the day appointed for the hearing of the proceedings shall be made before that day." 42 This provision more clearly provides the opportunity for "advance rulings" in respect of evidence and other matters. These provisions have been varied since TKWJ, but not in a manner which affects the likely operation of s 5F in respect of orders made pursuant to applications under these rules. The rules were in a largely similar form in 1993 and were considered in Steffan at 638-639. The requirement under r 10 that the court "may make orders with regard to the application" was not treated in Steffan as rendering the outcome of the application in relation to admissibility an interlocutory order for the purposes of s 5F. Nor was it thought that r 12, which required that any "judgment, order, sentence, direction or recommendation given or made by a Judge in any proceedings" be entered, required the entry of an "order" under r 11. The argument that each ruling on evidence made by a trial judge pursuant to such a pre-trial application was an order which should be entered on the indictment or other court record, was expressly rejected. 43 Lethlean (above at [26]) held that a ruling on a point of law raised during the hearing of a criminal trial, that the accused had a case to answer, did not give rise to an interlocutory judgment or order for the purposes of s 5F(3). In his agreement with the judgment of Sheller JA, Hulme J remarked that the case of Rees v Kratzmann [1965] HCA 49; 114 CLR 63 indicated that "whether, in a particular case, there is an order may often be a matter of form": at 207. The reason for his Honour's comment was that in Rees, the High Court had granted special leave to appeal in respect of a ruling made by a judge in the course of a liquidator's examination of a company director that a particular subject matter lay beyond the scope of the inquiry. As explained by Kitto J, 114 CLR at 67: "In order to give the liquidators an opportunity to test the ruling, his Honour then made a formal order directing that counsel for the liquidators be not allowed to put the question, and that Kratzmann be not required to answer it, 'on the ground that such question does not arise from the matters which are set out in the said report'. His Honour gave the liquidators leave to appeal to the Full Court, and an appeal pursuant to that leave was taken." 44 An application was made in Rees to rescind the grant of special leave, as recorded at p 64. Reliance was placed on The Commonwealth v Mullane (see above at [26]). However, the recision application was dismissed without the Court giving reasons: at 65. Whether s 5F would be engaged in circumstances where a trial judge, having ruled on a point of law, adopted the course of making a formal order, need not be determined, as that step was not taken in the present case. 45 Thirdly, and more significantly, the appellant relied on s 130A of the Criminal Procedure Act 1986 (NSW), which came into force on 1 December 2005. That provision reads as follows: " 130A Pre-trial orders bind trial Judge in sexual offence proceedings (1) A pre-trial order made by a Judge in sexual offence proceedings is binding on the trial Judge in those proceedings unless, in the opinion of the trial Judge, it would not be in the interests of justice for the order to be binding. … (4) For the purposes of this section: pre-trial order means any order made after the indictment is first presented but before the empanelment of a jury for a trial. sexual offence proceedings means proceedings on indictment in respect of a prescribed sexual offence. trial Judge means the Judge before whom the trial proceedings, following empanelment of a jury, are heard." 46 The phrase "prescribed sexual offence" is defined in s 3(1) of the Criminal Procedure Act so as to include an offence of attempting to commit an offence under s 61I: definition, pars (a) and (d). Accordingly, to the extent that the determinations made by the trial judge constituted "orders" they were pre-trial orders within the meaning of s 130A and were, subject to the qualification expressed in the section, binding on the trial judge, whether or not the person who made the order was the trial judge. (The effect of sub-ss (2) and (3) (not set out above) was to accord a similar status to such orders in any fresh trial proceedings after an appeal or after discontinuance of the original trial proceedings.) Those provisions, the appellant contended, conferred on such pre-trial orders a status and degree of finality sufficient to take them beyond the category of mere "rulings" such as those held in Steffan not to constitute interlocutory judgments or orders. In this respect, the appellant contended, the scope of operation of s 5F had been expanded by the procedural change wrought by s 130A. 47 In terms of procedure, there is no doubt a difference between an interlocutory order (which is any order other than a final order) and a "pre-trial order", which is an order made after the indictment is presented but before the jury is empanelled. That difference is, however, temporal. Section 130A seeks to carve out, and give binding effect to, orders made in this limited pre-trial stage from orders made during the course of the trial. 48 Although that provision may confer a greater degree of finality on pre-trial orders, it is nevertheless premised upon the existence of an "order" and the question is whether a different approach should be taken to the construction of that term in s 130A, and, as a consequence, in the operation of s 5F. 49 There are now numerous provisions in the Criminal Procedure Act conferring powers on a court to make orders regulating not merely matters traditionally made by order, such as amendment of an indictment, change of venue or separate trials, but also orders (which might equally have been described as directions) with respect to pre-trial disclosure (s 136), orders relating to the disclosure of documents (s 302) and in relation to the giving of evidence by "vulnerable persons" generally (ss 306W, 306Y, 306Z and 306ZM). In other circumstances, the power of the court is described in terms of "directions", such as powers in relation to the closing of the court (ss 291 and 291A). 50 The characterisation of the action of a court as an "order" in the Criminal Procedure Act is not necessarily definitive of the scope of the term "order" in the Criminal Appeal Act. Nevertheless, in circumstances where the Criminal Procedure Act imposes a degree of finality upon pre-trial orders, which they might not otherwise have had, that is a factor which should be taken into account in determining whether a right of interlocutory appeal arises under s 5F. Thus, when read in context, the scope of the term "order" in s 130A is obscure. It is therefore permissible to take into account the Ministerial statement of the mischief to which s 130A was directed, in accordance with s 34 of the Interpretation Act 1987 (NSW). 51 The second reading speech in relation to the Criminal Procedure Amendment (Sexual Offence Case Management) Bill, which introduced s 130A, reveals two further considerations. The first relates to the purpose of the provision; the second to its scope. 52 In relation to the first, the Minister stated: "Delay in criminal proceedings, in particular sexual assault trials, is always a concern. Delay can cause secondary traumatisation of the complainants, who prepare themselves to give evidence on each occasion the matter is fixed for trial. The delay may be caused by legal and procedural issues not determined prior to the hearing date. That is particularly traumatic in sexual assault cases, where there may be multiple offenders or multiple victims. The proposed legislation will serve to minimise the stress and trauma of giving evidence for these witnesses, and is part of the on-going process of reform in relation to improving the process surrounding sexual assault prosecutions for complainants." 53 There is some confusion as to how the provision would promote that purpose, but some clarification is obtained by reference to the second question, namely the intended scope of the proceeding. In that regard the Minister stated: "Rulings on the admissibility of evidence by a judge other than the trial judge are not currently binding and it is not possible to ensure that the same judge will deal with both the pre-trial hearing and trial. … One of the key issues in sexual offence trials is effective case management to ensure that all preliminary matters are resolved in advance of the commencement of the trial and to avoid unnecessary legal argument. Effective case management of sexual assault trials would require the court to resolve issues such as the admissibility of evidence and the use and availability of technology prior to the trials commencing." 54 This statement indicated with some clarity that rulings on evidence and other procedural directions were expected to be made prior to the commencement of the trial and were expected now to be binding on the judge conducting the trial. The Minister gave an example: "Where, for example, a ruling was made to admit the police electronic recorded interview with a child as their evidence in chief, this earlier ruling will bind the judge hearing the re-trial, unless the Court of Criminal Appeal ordered that the ruling was in error." 55 It is not entirely clear why rulings made in the course of a trial, but not successfully challenged on appeal, were not also covered by the new provision. However, there was clearly an expectation, although the section did not in terms make such provision, that wherever possible disputes with respect to evidence would be identified and addressed before the jury was empanelled. It may have been assumed that this would follow from the diligent application of Pt 53, r 10(1) of the District Court Rules. By inference from its place in the Criminal Procedure Act, s 130A was no doubt expected to operate with respect to orders made pursuant to s 130, although that provision was directed to the timing of "any orders that may be made by the court for the purposes of the trial in the absence of a jury": s 130(2). 56 The appellant's reliance upon the scope of s 130A, ultimately requires consideration by reference to the terms of the "orders" made by the trial judge in the present case. As they did not constitute rulings on evidence, it is not necessary to decide whether such rulings now constitute "orders" for the purposes of s 130A, nor any consequence which may flow from the conclusion that they did, in terms of the operation of s 5F of the Criminal Appeal Act. Jurisdiction: application of principles 57 It is unfortunate that, in seeking to ventilate certain issues of law prior to the empanelment of the jury, the prosecutor did not attempt to identify any specific procedure which was being invoked, nor state whether he was seeking any form or order, ruling or determination. It is also unfortunate that, in delivering a "judgment" her Honour did not seek to identify the precise terms of any matter requiring determination, or the procedural mechanism by which the determination was sought. 58 There is no doubt that her Honour reached a view about one or two questions of law, in a manner which could, in a practical sense, have ramifications for other steps taken in the trial. For example, her Honour's views as to the legal principles discussed in the judgment would no doubt affect the manner in which the prosecutor opened the case before the jury, the evidence called by both the prosecution and the defence and the instructions given to the jury. However, in accordance with the approach adopted by this Court in both Adamson and Piper, these matters cannot be said to constitute "orders", nor was there any "judgment" in the sense of a formal determination of issues in dispute between the parties. 59 Despite the desirability of obtaining an advance ruling on matters of law, so that the trial may proceed before the jury with a minimum of disruption, the availability of a right of appeal in respect of such rulings is not self-evidently appropriate. The fact that such rulings may affect the outcome does not provide a sufficient basis for permitting an interlocutory appeal. If an appeal were available in such circumstances, many rulings on evidence and disputed directions to the jury would become the potential subject of an interlocutory appeal. That the phrase "interlocutory judgement or order" in s 5F does not extend so far is well-established. Many, but not all of the pre-trial application orders envisaged by Pt 53, r 10 will result in interlocutory orders. Similarly, an order for production of documents by a stranger to proceedings and a non-publication order, may become the subject of an interlocutory appeal under s 5F: see Attorney General (NSW) v Stuart (1994) 34 NSWLR 667; Nagi v Director of Public Prosecutions (NSW) (No 2) [2009] NSWCCA 198. However, the expression of an opinion on an issue of law does not fall into that category. 60 It follows that the appeal should be dismissed as incompetent. In the event that the Court was of that view, neither party suggested that the fact of the certificate given by the trial judge required any different outcome: R v Lavender [2002] NSWCCA 511 at [1] (Giles JA, James and Hidden JJ agreeing). Substantive issues 61 Against the possibility that the foregoing analysis may be wrong, it is appropriate to say something about the substantive issues raised on the appeal: cf Kuru v State of New South Wales [2008] HCA 26; 236 CLR 1 at 12. 62 The issues debated before the trial judge concerned the application of s 61HA to an attempt to commit an offence under s 61I and whether the attempt was an offence of specific intent. The second issue had significance in relation to the reliance the appellant might be able to place on his state of self-induced intoxication in relation to his state of mind. However, the second issue was also potentially related to the first. If, to commit the attempt, the appellant needed to intend to commit the offence of having intercourse without consent, knowing the woman was not consenting, then an actual intent to cause that consequence (or even recklessness as to that consequence) would not be satisfied by an absence of a belief based on reasonable grounds that she was consenting. On the other hand, if it were sufficient for the attempt that he had the state of mind sufficient to commit the completed offence a lack of belief as to the consent, based on reasonable grounds, would suffice. 63 It may be accepted that the answer to that question turned on the application of s 61HA to the offence of attempt. On one view, even if s 61HA did not expressly state that it applied to attempts, if, under the general law, the state of mind sufficient for the substantive offence was sufficient for an uncompleted attempt, then any statutory provision defining the elements of the substantive offence would necessarily operate with respect to an attempt. The alternative view is that a statutory provision which modifies the requisite state of mind in relation to the substantive offence need not operate in relation to an attempt; whether or not it does will be a matter of statutory construction. That question will not necessarily be answered by asking whether an attempt is an offence of specific intent, unless the statute identifies that as the criterion conditioning its operation. 64 Although they will not provide the answer with respect to the question of statutory construction, general law principles provide the background against which the statute must be read. It is appropriate to look first at the general law principles. Some of the cases to which this Court was referred turned in part on the operation of statutory provisions in other jurisdictions, none of which was identical with s 61HA. Attempt as an offence of specific intent 65 The issue is whether the element of intention in respect of an attempt to commit an offence such as rape, is satisfied where the offender has a state of mind less than intention, but sufficient to commit the substantive offence. The point may be demonstrated by reference to the offence of murder. While it is sufficient for an accused to intend to cause grievous bodily harm, where death eventuates, it is not sufficient for the offences of attempt to murder, to intend to cause grievous bodily harm where the act does not occur and, as a result, death does not eventuate: see Knight v The Queen [1992] HCA 56; 175 CLR 495. With respect to sexual intercourse where the victim does not consent, the accused knowing that she does not consent, knowledge may be satisfied under the common law by recklessness as to consent, and under s 61HA by a lack of reasonable grounds for believing that the person consented, where she did not in fact consent. 66 In R v Zorad [1979] 2 NSWLR 764 at 773 this Court considered a direction given on a charge of attempted rape as involving an intention on the part of the accused to have intercourse where "either he was aware that the woman was not consenting, or he realised that she might not be consenting and he was determined to have intercourse with her whether she was consenting or not": at 773B, in the judgment of Street CJ. The Court rejected criticism of that direction on the basis that it was correct to direct the jury that they must be satisfied that the accused "intended to commit those acts which would go to make up the crime of rape, including, of course, such elements of intent as must be associated with the act referable to making up the crime of rape": 773D (Street CJ, Reynolds JA and O'Brien J agreeing). 67 The matter was also addressed by the South Australian Court of Criminal Appeal in Evans (1987) 30 A Crim R 262 at 266-268 (King CJ, Jacobs J agreeing) at 273-275 (Bollen J, Jacobs J agreeing). The Chief Justice, after referring to offences including attempted murder and attempting by wanton driving to cause bodily harm, noting that recklessness was insufficient, continued at 267: "Those cases were concerned with unintended consequences of conduct in the sense that the accused person did not intend the consequence which was required by the definition of the complete crime. … … The problem in the present case is different. It concerns the accused's state of mind not as to the consequences of his conduct but as to a state of facts the existence of which renders his action criminal. The state of facts, the existence of which renders the act of sexual penetration criminal, is the non-consent of the person penetrated. The mental state of the accused in relation to that state of facts, required by the definition of the crime in the section, includes reckless indifference to its existence. There cannot be an attempt to commit a crime involving particular consequences where those consequences are not intended, because the notion of unintended consequences is inconsistent with the notion of attempt to bring about those consequences. That reasoning does not apply, however, to an accused's state of mind as to the existence of circumstances which render an act criminal. There is no reason in principle or logic why steps which are sufficiently proximate to sexual penetration should not constitute an attempt to rape, consent being in fact absent, if the accused has either of the states of mind relative to the consent of the alleged victim which would be sufficient for the complete crime." 68 In R v L the New Zealand Court of Appeal considered a similar issue to that which will arise in the present case, in relation to the offence of attempted sexual violation, which could, pursuant to a statutory provision equivalent to s 61HA(3)(c), be committed where the complainant did not consent and the accused did not have reasonable grounds for believing that she consented: R v L [2006] 3 NZLR 291. The Court of Appeal accepted the approach referred to above, in Zorad and Evans. The Court's judgment in this respect was approved on appeal to the Supreme Court of New Zealand: R v L [2006] NZSC 18; [2006] 3 NZLR 306 at [8]-[21] (Tipping J). 69 There is also discussion of Pt 11A of the Crimes Act, including the definition in s 428B of "offence of specific intent" and the consequences in relation to evidence of intoxication, in R v Grant [2002] NSWCCA 243; 55 NSWLR 80 by Wood CJ at CL, Spigelman CJ and Kirby J agreeing. However, it is the general discussion of intent in relation to an attempt which should inform the construction of s 61HA. 70 In relation to the application of s 61HA, it appears to have been the prosecution case that any evidence that the appellant gave concerning his belief as to the identity of the person with whom he was said to have sought intercourse, was irrelevant. That was because, even if it had been his wife, being unconscious or asleep, she had not had the opportunity to consent to sexual intercourse and therefore did not consent, in accordance with the terms of s 61HA(4). 71 That argument (apparently accepted by her Honour) was not self-evidently correct: in the case of a stable relationship, the circumstances may allow for a factual finding that the partner had had an "opportunity to consent" whether or not she was asleep at the time sexual intercourse was attempted. 72 The question of the knowledge of the appellant arose once it was found that the complainant did not consent, in which case the prosecution could establish that the accused knew that she did not consent if he had "no reasonable grounds for believing" that the other person consented. 73 The operation of s 61HA is expressly dealt within in sub-s (1). Relevantly, it applies "for the purposes of the [offence] under [section] 61I". However, the appellant was not charged with an offence under s 61I, but with an attempt to commit an offence under that provision, which is an offence under s 61P. Accordingly, the appellant submitted, it had no operation in relation to an attempt. 74 There is some internal textual support for that conclusion. Thus, sub-s (3) operates where a person "has sexual intercourse" with another person: it does not in terms address circumstances where sexual intercourse does not occur. 75 Section 61P states that any person who "attempts to commit an offence under section 61I … is liable to the penalty provided for the commission of the offence". Before the trial judge, the prosecutor argued that this was not the creation of an offence but merely the statement of the penalty applicable to a common law attempt in respect of specified offences. As a matter of construction, that argument should be rejected. Section 61P is in the common form of provisions in the Crimes Act identifying particular conduct rendering a person liable to a specified penalty. (Section 61I is another provision in the same form.) 76 It was also suggested that there would have been problems for the drafter in incorporating s 61P into s 61HA(1), because s 61P deals with attempts to commit numerous offences, including those under provisions other than the three specified in s 61HA(1). That argument is unpersuasive: it would have been a simple matter to include a reference to s 61P, "to the extent that it applies to the other sections identified in this subsection". 77 Reference was made in the Director's submissions to the fact that an attempt to commit an offence is itself an offence at common law and that s 344A of the Crimes Act makes provision effectively in the same terms as s 61P, though with general application. Neither of these factors affects the conclusion that s 61HA(1) in its terms does not apply to attempts to commit offences under the sections which it identifies. 78 More persuasively, the Director contended that s 61HA would operate because, in order to establish the offence of attempting to commit an offence under s 61I, the prosecution would need to make good the elements of an offence under s 61I, including the question of consent and the question of the accused's knowledge as to consent. In answering those questions, it would be necessary to apply the terms of s 61HA. Such an approach, it was submitted, would be consistent with the general law, discussed above. 79 It may be accepted that this is a possible construction of s 61HA(1), which states that s 61HA applies "for the purposes of" an offence under s 61I, rather than applying 'to a prosecution for' an offence under the specified provisions. There is a degree of ambiguity as to the operation of s 61HA. 80 To the extent that s 61HA affects principles applicable under the general law, it does so, relevantly for present purposes, by defining the circumstances in which a complainant "does not consent" and the circumstances in which an accused will be found to "know" that the person does not consent, including the circumstance that he has "no reasonable grounds for believing that the other person consents". These provisions lower the bar with respect to a successful prosecution for the identified offences. They thereby diminish the rights of an accused under the general law. Such a curtailment of the rights of an accused in a criminal trial call for a clear expression of intention to that effect: see Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437 and other authorities referred to in Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at [2] and [6]-[7] (Spigelman CJ, Beazley JA agreeing) and at [214]-[216]. The contention of the Director in this case is by no means irrational or implausible, but it does not reach the level of clarity required to overcome the express language and textual support for the proposition that s 61HA does not operate with respect to attempts to commit offences identified in sub-s (1). 81 The next question of significance is what her Honour meant by stating that it was appropriate to exclude "the defence" sought to be relied upon. However, there appears to have been a degree of agreement between the parties (as appeared from the submissions before the trial judge and in this Court) that what was in issue was the relevance of the appellant's state of "self-induced" intoxication. 82 This was undoubtedly a highly fact-specific issue. How it would arise at the trial was not entirely clear, nor fully articulated either in her Honour's reasons or in the argument before her Honour. For example, under s 61HA(3) (which was presumed to be relevant at this stage of the argument) in considering the state of knowledge of the accused the jury was required to take into account all of the circumstances of the case "not including any self-induced intoxication" of the accused: sub-s (3)(e). One might have thought that it would be the prosecution that would wish to rely upon such a state of intoxication to demonstrate either recklessness as to consent or the absence of any belief as to consent, or even in support of the proposition that the accused took no steps to ascertain whether the person consented. On one reading of s 61HA(3), such an approach would be illegitimate. On the other hand, an accused might seek to rely upon his state of intoxication to establish a reasonable doubt that he had the necessary intention to commit the offence. In that respect, the Court might need to consider whether the offence was one of specific intent, for the purpose of applying either ss 428C or 428D of the Crimes Act. 83 Of critical importance in the context of the trial will be the evidence of intoxication and the evidence as to the state of mind of the appellant. On the basis of the authorities governing the trial judge, including Zorad and Evans, it will no doubt be necessary for the jury to be directed as to the intention of the appellant at the time of the offence and as to his state of mind with respect to the consent or otherwise of the complainant. The legal issue of significance in this respect has already been noted, namely the inapplicability of s 61HA for the purposes of an attempt to have sexual intercourse with a person who does not consent, knowing that she does not consent. Beyond that it is neither necessary nor appropriate to go. Conclusion 84 Because the jurisdiction of this Court under s 5F did not arise in the circumstances of the case, the appeal must be dismissed. 85 FULLERTON J: I agree with Basten JA. 86 McCALLUM J: I agree with Basten JA.

W O v DIRECTOR OF PUBLIC PROSECUTIONS

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