Interlocutory criminal appeals in Australia

215 Pages·2016·0.852 MB·English

by  Gregory Dening Taylor

Interlocutory Criminal Appeals
in Australia
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Interlocutory Criminal
Appeals in Australia
GREG TAYLOR
DoktorderRechte(Marburg),LLM(Marburg),
LLB(Hons)(Adel),BA(Hons)(Adel)
Professor (Hon),
Marburg University, Germany
Associate Professor,
Graduate School of Business and Law RMITUniversity
Barrister and Solicitor of the Supreme Court of SouthAustralia
LAWBOOK CO. 2016
PublishedinSydneyby
ThomsonReuters(Professional)Limited
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NationalLibraryofAustrlaiaCatalogue-in-Publicationentry
Title:InterlocutorycriminalappealsinAustralia/
ProfessorGregoryDeningTaylor
ISBN:9780455234694(paperback)
Notes:Includeindex
Subjects:Criminallaw–Australia.
Appelateprocedure–Australia.
Interlocutorydecisions–Australia.
Criminalprocedure–Australia.
DeweyNumber:345.9405
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Foreword
Hon Justice MS Weinberg BA, LLB (Hons) (Monash) BCL
(Oxon)
Adecadeorsoagothisbookwouldnothavebeenwritten.Itwouldhavebeen
of little or no interest to Victorian practitioners. Although New South Wales
hadenactedlegislationprovidingforinterlocutorycriminalappealsasfarback
asthemid-1980s,theirscopewasconfinedandtheywerenotallthatfrequently
brought. Moreover, there were special circumstances, largely unique to that
State,explainingwhytherewasaneedforsuchappealsatthattime.
The enactment of the Criminal Procedure Act 2009 in Victoria led to many
radicalchangestoourcriminaljusticesystem.Oneofthemostremarkablewas
thelicencegrantedtoboththeprosecutionandthedefencetoengageinwhatin
thepastwouldhavebeendescribedas“fragmentation”ofthecriminalprocess
byappealingtotheCourtofAppealfromwhattheActtermsan“interlocutory
decision”. That expression is defined in the widest possible terms. It
encompasses any decision made by a judge in a proceeding, whether before or
duringthetrial,includingadecisiontograntorrefuseapermanentstay.
InNewSouthWales,moresensibly,s5FoftheCriminalAppealAct1912limits
interlocutory appeals in criminal matters to appeals against “interlocutory
judgments or orders”. That expression is obviously far narrower than the
Victorian term, “interlocutory decision”. Save for theAttorney-General or the
Director of Public Prosecutions, who may appeal to the Court of Criminal
Appeal against a ruling on the admissibility of evidence, there is no avenue
available to challenge such a ruling at an interlocutory stage. The position in
Victoriaisquitedifferent.
Onemighthaveexpected,giventhescopeoftheVictorianprovisions,thatthe
Court of Appeal in that State would have been inundated with interlocutory
appealsincriminalmatters.Whileitisfairtosaythatthatexpectationhasnot
been met, the figures show that, on average, there are about 22 or so such
appealseachyear.Forthefivefullfinancialyearsfrom2010-11onwardsthere
were112interlocutoryappealsincriminalmattersfiled,outofatotalof1567
criminal appeals across the board. That comes to just over 7% of all criminal
filings.
Recent figures indicate a small increase in the percentage of interlocutory
appeals in criminal matters in Victoria. In the financial year 2014-15, there
were22interlocutoryappealsoutof282criminalinitiations,afigurejustunder
8%.
There is now a substantial body of authority regarding both the principles
governing interlocutory appeals in criminal matters in both States, and the
proceduresthataretobefollowedinsuchcases.Inanumberofinstances,the
Foreword
system has worked well. Errors have been detected at an early stage, and
miscarriages of justice thereby avoided without the need for possibly lengthy
trials.
AsProfessorTaylorcorrectlynotes,however,thereisanothersidetothecoin.
In his words, interlocutory criminal appeals have been a “mixed blessing”.A
good deal of scarce judicial time has been wasted in dealing with hopeless
matters,sometimesborneoutofdesperation,andsometimes,itseems,brought
fortactical,andquiteunworthy,reasons.
In Victoria, interlocutory appeals are usually brought against rulings on the
admissibility of evidence. The vast majority of these are brought by accused
persons.Mostoften,theyarebroughtagainstrulingsinvolvingtheadmissibility
of tendency or coincidence evidence. In fact, one third of all interlocutory
appeals in criminal matters in Victoria since 2010 have involved just such
questions.
The law regarding the admissibility of such evidence is complex, and often
requires the most minute consideration of the facts. These cases can take an
enormous amount of time to read and digest. Yet, sometimes they have to be
determinedonthebasisofmaterialthatisspeculative,andfarfromclear.
There is an important policy debate to be had regarding the utility of such
appeals,giventheirpotentialtofragmentthecriminalprocess.
In the 1980s and beyond, it became almost de rigueur for those accused with
means, or at least generous access to legal aid, to bring proceedings by way of
judicial review, seeking administrative law remedies, in relation to decisions
takenaspartofthecriminaljusticeprocess.Thus,inmajorcases,inparticular,
therewouldroutinelybechallengesbrought,bywayofjudicialreview,toboth
theexerciseofinvestigativepowersand,subsequently,prosecutorialdecisions.
The law reports are replete with decisions of that period dealing, for example,
withthevalidityofsearchwarrants,orchallengestotheirmannerofexecution.
If proceedings of that kind did not derail the entire prosecution process, there
couldalwaysbeachallengetothedecisionoftherelevantprosecutingauthority
toinstitutecharges.
Should the matter ever get to committal (and sometimes, after years of
proceedingsthroughthecivilcourts,itdidnot),therecouldstillbeachallenge
to the decision to commit for trial. In federal matters, that challenge would
invariably take place in the Federal Court of Australia, sometimes before a
judgewithlittleornoexperienceindealingwithhard-foughtcrime.Theresults
wereseldompretty.Itcouldsometimestakeyearstoresolveissuesofthiskind.
InrelationtoStatemattersthesamegamewasplayedinStatecourts,butusing
adifferentsetofadministrativelawprocedures.
From time to time the courts would set their face against this form of war by
attrition. In Yates vWilson (1989) 168 CLR 338 (certainly one of the shortest
judgments ever reported in the Commonwealth Law Reports), Mason CJ,
plainlyintendingtosendaverybluntmessagetotheFederalCourt,said:
Itwouldrequireanexceptionalcasetowarrantthegrantofspecialleavetoappeal
inrelationtoareviewbytheFederalCourtofamagistrate’sdecisiontocommita
person for trial. The undesirability of fragmenting the criminal process is so
powerfulaconsiderationthatitrequiresnoelaborationbyus.Itisafactorwhich
vi
Foreword
should inhibit the Federal Court from exercising jurisdiction under the
AdministrativeDecisions(JudicialReview)Act1977(Cth)andaswellinhibitthis
Courtfromgrantingspecialleavetoappeal.
When I joined the Victorian Court of Appeal in 2008, after serving on the
FederalCourtofAustraliaforsometenyears,Iwaswellawareofthedangers
posedbyallowingcivilcourtstooreadilytoengageinjudicialreviewinrelation
to criminal proceedings. I had myself, when at the Bar, participated in many
such administrative challenges, both seeking such review on behalf of usually
well-resourceddefendants,andresistingitonbehalfoftheprosecution.
I soon learned that, largely in response to one particular case, R v Thomas
(2006) 14 VR 475, the Court ofAppeal for Victoria had itself suggested that
there should be legislation introduced to provide for interlocutory criminal
appeals. Although, by way of contrast with judicial review, these had the
distinct merit of being heard by judges who, for the most part, were
well-acquaintedwiththecriminalprocess,Iwasdistinctlyunenthusiasticabout
thatproposal.
Nonetheless,suchappealscametopassandtherestishistory.Itisappropriate
therefore, as well as timely, that Professor Taylor’s thorough, and scholarly,
monograph on this subject is published. His is no mere exposition of
black-letter law, even though that would, of itself, have been a worthwhile
contribution. His work delves deeply into broader questions of principle that
need to be considered, as we endeavour to work within the legislative
frameworkthathasbeenbequeathedtous.
Asshouldbeclearfromthisforeword,Iamnot,andprobablyneverwillbe,a
proponent of interlocutory criminal appeals. I think, on balance, they do
significantlymoreharmthangood.
Nonetheless,itiscomfortingtoknowthatthereisavailabletopractitioners,as
wellasjudges,aworkofclearandauthoritativeexpositionsuchasthatwhich
Professor Taylor has produced. Every criminal lawyer, worth his or her salt,
shouldturntothisbookforguidancethroughtheunrulythicketoflegislation
andcaselawthatnowgovernsappealsofthisnature.
vii

Preface
It is curious that, until now, there has been no scholarly consideration – not
evenanacademicarticleinthehumblestlawjournal–ofinterlocutorycriminal
appeals, despite the vast floods of literature on many other legal topics.There
are, it is true, a number of more or less obvious reasons why interlocutory
criminal appeals have not spawned a vast literature, but the complete absence
of any discussion is hard to explain. For interlocutory criminal appeals are a
majorinnovationincriminalprocedureandalsosomethingofarebalancingof
thescalesbetweenaccusedandstate–perhapsthemostfar-reachingadjustment
tothatbalancesincetheintroductionofthemoderncriminalappealssystemin
theearlypartofthe20thcentury.
Interlocutory criminal appeals have now existed in our largest jurisdiction,
New South Wales, for more than a quarter of a century. A general system of
interlocutory appeals spread from there to Victoria in 2010, and such a thing
existsalsoinaratherdifferentformintheAustralianCapitalTerritoryandthe
FederalCourtofAustralia’sverylimitedcriminaljurisdiction.Intheremaining
Australian jurisdictions – the “defined issues” jurisdictions, as I have called
them in the text: Queensland, Western Australia, South Australia, Tasmania
and the Northern Territory – there is no general system of interlocutory
criminal appeals, although certain closely defined issues can be taken on
interlocutoryappealpursuanttoaspecialstatutoryauthorisation.
ItisthereforeonNewSouthWalesandVictoriathatthisbookconcentrates,as
they are the largest jurisdictions and have the most sophisticated statutes and
practicesonmytopic.Nevertheless,Chapters1and2dealalsowiththeother
Australianjurisdictions.
This book closes the gap I have identified in a manner which, I trust, is both
scholarlyandofusetothelegalprofession.Itshouldalsobeofusetothosewho
may have the task of considering whether to introduce interlocutory criminal
appealsintothefive“definedissues”jurisdictionsinwhichthereiscurrentlyno
suchgeneralsystem.
At the time of writing, the intention was to bring out a second edition of this
bookwhencircumstancescallforone.Therefore,Ishouldbeverygratefulfor
anyadvicefromitsusersabouttopicsonwhichmore–orevenless–needsto
besaid.Nevertheless,Ishouldexplainherethatthebookcannot,ofcourse,be
a textbook of criminal law or procedure generally. There are many topics in
relation to which I can deal sensibly only with the appeals aspect – stays, for
example. It would require another book to write about the substantive law
applicabletostaysasdistinctfromwheretheyfitinthesystemsofinterlocutory
criminalappealinwhichtheycanbethesubjectofappeals.
Inwritingthisbook,Ihadthegreatpleasureofreactivatingmyinnercriminal
procedurenerdwhoseapogeeoccurredwhenIwasanAssociateattheSupreme
Court of South Australia. Justice Brian Cox and Acting (formerly Chief)
Justice Len KingAC were two very different men, but were alike in being two
outstanding tutors. It is impossible for me, in writing this book, not to recall
Preface
theirmemoriesandgivethanksfortheircontributionstomydevelopmentasa
legalscholar–nottosaytheircontributionstojurisprudencethroughouttheir
most distinguished careers. Thanks are due also to the living, in first place
Declan Boontun, and to Mark, Mye and Srima, who helped me choose the
cover, closely followed by the Hon Justice Mark Weinberg, who has done me
the great service of reading the manuscript, and the even greater honour of
contributingaforeword.Ithighlightsthequestionsoflegalpolicywhicharea
focus of this book alongside more workaday matters. Why do we have
interlocutorycriminalappealsatall,shouldthesystemberefinedinawaythat
increases its usefulness and reduces its potential for disruption or even
deliberatemisuse,andhowcouldthatbedone?Mysuggestions,tobefoundin
the final chapter, are not precisely the same as his Honour’s, but our broad
general goal is very similar. Above all, it is right to promote debate on this
important–andsofarneglected–innovation.
Special thanks must also go to Maxwell P, Priest JA, Mark Pedley JR, Patrick
Tehan QC, Paul Holdenson QC, Gavin Silbert QC and Chris Boyce SC, who
kindlygaveuptheirvaluabletimetosharewithmetheirownpersonalinsights
into my topic. I owe an even greater debt of gratitude to Stephen Odgers SC,
who provided detailed comments on the manuscript which improved it
considerably.Fortheirassistanceinansweringdetailedqueries,Iwarmlythank
also JuliaAgar of the Office of Chief Parliamentary Counsel of New Zealand,
Mr Damian Bugg AM, QC, the Tasmanian Parliamentary Library and
Professor KateWarnerAM (as her Excellency then was). Luke Denham found
formethecasesthathadbeenmissedinmyownresearch,ajobhedidverywell
andthoroughly.Lastbutnotleast,ThomsonReuters,andCatherineFitzgerald
inparticular,deservethanksfortakingonthisproject.
Allviewsexpressedinthisbookare,however,myown,asareanyerrors.None
ofthepersonsororganisationsnamedabovebearsanyresponsibilityforthem.
I should be very grateful if any errors or omissions discovered by others were
communicatedtome.
After this preface was written, cases published until the end of February 2016
havebeenincorporatedintothetext.
GregTaylor
Melbourne
8June2015(beingalsotheQueen’s
OfficialBirthday)
x