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An appealing procedure

Cover Story

Cite as: December 2009 83(12) LIJ, p.32

The introduction of interlocutory appeals through the Criminal Procedure Act aims to reduce the disadvantages of post-trial appeals against conviction.
 

By Philip Priest QC and Bruce Gardner

Criminal & civil law 2010

On 1 January 2010 the Criminal Procedure Act 2009 (CPA) and the Evidence Act 2008 will come into force.

The CPA, which aims to reduce delays in the justice system, provides modern, clear, efficient and fair procedures, while the Evidence Act, which will apply to all proceedings (both civil and criminal) in all Victorian courts, will bring Victoria into line with uniform evidence laws across much of Australia.

The new legislation means a significant amount of change for people working in the justice system.

To educate practitioners about these changes, the LIJ presents three articles in this edition which look at aspects of the new legislation.

In “An appealing procedure”, Philip Priest QC and directorate manager of policy and advice, Victorian Office of Public Prosecutions Bruce Gardner look at interlocutory appeals in criminal cases under the CPA; in “Faster access to justice revisited”, Victoria Legal Aid senior solicitor Paul Jansen explains two new processes introduced in the CPA which are intended to reduce the time it takes to get a matter to court; and in “Clarity evident in new Act”, barrister Douglas James gives an overview of the changes to evidence law, particularly in relation to civil proceedings.

In the June 2009 LIJ article “Modernising Victoria’s criminal laws”, Victorian Attorney-General Rob Hulls explained that the CPA addresses a number of current limitations with criminal procedure in Victoria including:

  • inconsistency and inaccessibility of procedure located in three different acts – the Crimes Act 1958, the Crimes (Criminal Trials) Act 1999 and the Magistrates’ Court Act 1989;
  • antiquated language carried over from 1864, such as “mute of malice” and “deemed to have put himself upon the country for trial”; and
  • obsolete and redundant provisions that no longer serve any useful purpose.

Mr Hulls said reforms to evidence and criminal procedure represented major initiatives of his Justice Statement commitment to modernise Victoria’s criminal justice system.

The Evidence Act is intended to cut red tape for Victorian businesses, government and the not-for-profit sector as it brings Victoria into line with evidence laws in other jurisdictions.

The LIV has been closely involved with the Victorian government and other stakeholders in revising and refining the Acts.

It has provided valuable member feedback to the DoJ in relation to a trial of the new preliminary brief process in the Ballarat and Heidelberg Magistrates’ Courts, which will help refine the process before the statewide rollout of the scheme in 2010. It has also contributed to the development of ancillary legislation and training materials which will enable Victorian lawyers to work with the new legislation in 2010.

The Department of Justice (DoJ) and the Judicial College of Victoria (JCV) have prepared a number of tools for lawyers, including “ready reckoners” and practice guides, which will be available on the DoJ and JCV websites (www.justice.vic.gov.au and www.judicialcollege.vic.edu.au) when they are finalised.


With the introduction of the Criminal Procedure Act 2009 (CPA) on 1 January 2010, interlocutory appeals will be available in Victoria in criminal cases. Previously this was not so, as s17A(3) of the Supreme Court Act 1986 provided:

“(3) Except as provided in Part VI of the Crimes Act 1958, an appeal does not lie from a determination of the Trial Division constituted by a Judge made on or in relation to the trial or proposed trial of a person on indictment or presentment”.

Part VI of the Crimes Act 1958 in turn permitted appeals and applications for leave to appeal against conviction or sentence only with respect to persons “convicted on indictment”1 or for a relevant summary offence heard and determined under s359AA of that Act.2 In the case of the prosecution, the Director of Public Prosecutions was empowered under s567A to appeal against a sentence passed on a person convicted on indictment or for a relevant summary offence.3 There was no power in the Crown to appeal4 against evidentiary rulings of a trial judge,5 or an order of a trial judge staying a criminal trial.6

Policy underpinning the previous position

According to the High Court in Smith,7 s17A(3)8 “was intended to avoid the fragmentation of criminal trials9 by appeals brought from rulings before or during the course of a trial, while allowing appeals where there was a conviction by a single judge”. Section 17A(3) was thought to give greater weight to despatch of criminal trials than to the prosecution’s ability to appeal incorrect rulings. The High Court made this point in Elliott,10 where it observed that, “The legislative scheme gives greater weight to the despatch of criminal trials than it has given to protecting the prosecution’s ability to appeal against rulings which it thinks to be incorrect”.

The Victorian Parliament has now sought to alter the legislative scheme so as to permit – in limited circumstances – interlocutory challenges to the rulings of trial judges.

Legislative intention behind the new provisions

When introducing the CPA, Attorney-General Rob Hulls emphasised that the new interlocutory appeal provisions may be of benefit in reducing the stress and trauma of court proceedings for victims, witnesses and the accused. Since interlocutory appeals will deal with issues earlier in the proceedings than a successful post-conviction appeal, they may prevent the guilty from being acquitted, the innocent from being wrongly convicted and prevent retrials flowing from errors at the accused’s trial.11

Appeals against interlocutory decisions

Section 295 of the CPA provides for appeals from interlocutory decisions made by the County Court or the Trial Division of the Supreme Court in the prosecution of an indictable offence. Such appeal is to the Court of Appeal by leave. “Interlocutory decision” is defined by s3 of the CPA to be “a decision made by a judge in a proceeding referred to in s295(1), whether before or during the trial, including a decision to grant or refuse to grant a permanent stay of the proceeding”.12

The use of the expression “interlocutory decision” avoids many of the difficulties which have been encountered in other Australian jurisdictions where interlocutory appeals are permitted. For example, a party to a proceeding in NSW may appeal against “an interlocutory judgment or order given or made in the proceedings”.13 It has been held that rulings on evidence made in advance or in the course of trial are not interlocutory judgments or orders.14

Certification by the trial judge

By s295(3), a party to a prosecution for an indictable offence (that is, either prosecution or accused) cannot – subject to review under s296 of refusal to do so – seek leave to appeal unless the trial judge certifies. If the impugned interlocutory decision concerns the admissibility of evidence, the judge must certify that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case: s295(3)(a).

If the decision does not concern the admissibility of evidence, the judge must certify that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal: s295(3)(b). And if the interlocutory decision is made after the trial commences,15 the judge must certify either that the issue that is the subject of the proposed appeal was not reasonably able to be identified before the trial, or that the party was not at fault in failing to identify the issue that is the subject of the proposed appeal: s295(3)(c).

Ruling that evidence is inadmissible

As already observed, where the interlocutory decision relates to the admissibility of evidence, a judge must certify “that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case”.

At first glance, this provision might appear to give a right of appeal on evidentiary rulings only to the prosecution. However, this is not so.

For example, in Thomas16 the trial judge refused to exclude an interview on the application of the accused. An appeal against conviction was later allowed.

Had the trial in Thomas occurred after the introduction of the CPA, it is obvious that an interlocutory appeal would have been desirable. In that case, however, the trial judge did not rule the evidence inadmissible (which, clearly, could have been the foundation of an appeal by the prosecution), but instead ruled that the confession was admissible. Nevertheless, it is clear that an appeal would have been available to the accused, since the right to appeal is animated if the evidence – if ruled inadmissible – would eliminate or substantially weaken the prosecution case.

It has been held in NSW that whether or not the excluded evidence substantially weakens the Crown case is a jurisdictional issue, which must be determined on the whole of the evidence in the prosecution case. The Crown bears the onus.17

Where an interlocutory appeal does not concern the admissibility of evidence

In NSW, where a party other than the Attorney-General or Director of Public Prosecutions seeks to appeal, a judge or magistrate is required to certify that “the judgment or order is a proper one for determination on appeal”. (As observed above, under the CPA the judge must certify that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal.) Guidance has been given as to the circumstances in which such certification should be made under the NSW Act.

In R v Lethlean Sheller JA said, “A certificate [under s5F] should be granted only if the trial judge considers there is substantial doubt about the interlocutory judgment given or order made and that it is convenient that the Court of Criminal Appeal resolve that doubt before the trial proceeds further. The trial judge should bear in mind the general disadvantages of appeals on interlocutory matters. These include that the appeal may ultimately have been either unnecessary or an unnecessary duplication of the appeal process”.18 Although the statutory formula differs, it may be expected that the kinds of considerations referred to in Lethlean will inform the decision of a judge to grant or refuse a certificate under the CPA.

Bearing these considerations in mind, it is clear that there will be cases where an interlocutory appeal which does not involve an admissibility question will be convenient. For example, in Petroulias19 the accused was on trial for defrauding the Commonwealth and associated offences. It was a retrial, an earlier jury being unable to reach a verdict. The case had a tortured history, which had seen it find its way into appellate courts on three occasions. On day 25 of the trial a juror failed to attend the trial. Inquiries revealed that he had been arrested, and that he was ineligible to serve on a jury. Discharge of the jury was refused by the trial judge. However, leave to appeal was granted by the NSW Court of Appeal and an order made discharging the jury.

Refusal to certify

Should the trial judge refuse to certify, a party may apply to the Court of Appeal for a review of the decision.

If the trial has not commenced, the application for review must be filed within 10 days after the day on which the judge refuses to certify: s296(2)(a). If the trial commences within 10 days after the refusal to certify, the application for review must be filed within two days after the day on which the trial commences: s296(2)(b). And if the trial has commenced when the judge refuses to certify, the application for review must be made within two days after the refusal: s296(2)(c). (Each of these limitation periods may, however, be extended by the Court of Appeal or the Registrar of Criminal Appeals: ss296(2)(a), (b) and (c) and 313.)20 On review, the Court of Appeal is required to consider the matters set out in s295(3), and may give leave to appeal “if satisfied as required by s297”: s296(4).

It may be assumed that the time limits set out in the CPA are deliberately tight so as to ensure that the parties act expeditiously. No time constraints are, however, imposed on the Court of Appeal. Thus there are no time limits imposed on the conduct of a review under s296, the granting of leave under s297 or the determination of the appeal under s300. However, given that by their very nature interlocutory appeals have the capacity to fragment the ordinary course of criminal process, it might be expected that the Court of Appeal – even absent legislative command – will act with appropriate expedition in determining such appeals.

Section 296(1) deals with the situation where a trial judge “refuses to certify”. What of a failure to certify? No time limits are imposed on a judge within which they must certify. Cases may be imagined where, for one reason or another, a judge does not refuse to certify at a party’s request, but simply fails to do so in a timely manner. Although the position is not free from doubt, and although each case will fall to be determined according to its own facts, it might be argued in such a case that the failure to certify ought to be viewed as a constructive refusal to certify, enlivening the powers in s296. In the absence of such a construction, there appears to be no mechanism for bringing an appeal where there is a mere failure to certify.

Fetters on the grant of leave to appeal

Section 297(1) provides fetters on the grant of leave to appeal. The Court of Appeal may only grant leave if it is in the interests of justice to do so, having regard to the extent of any disruption or delay to the trial process that may arise if leave is given (s297(1)(a)), and whether the determination of the appeal may –

  • render the trial unnecessary; or
  • substantially reduce the time required for the trial; or
  • resolve an issue of law, evidence or procedure necessary for the proper conduct of the trial; or
  • reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial: s297(1)(b).

The Court of Appeal may also have regard to “any other matter that the court considers relevant”: s297(1)(c). It must not, however, give leave to appeal after the trial has commenced “unless the reasons for doing so clearly outweigh the disruption of the trial”: s297(2). From these provisions it can be seen that the undesirability of the fragmentation of the trial process remains an important factor to be considered when deciding whether to grant leave to appeal against an interlocutory decision.

Appellate courts in NSW have emphasised the difference between applications for leave to appeal and appeals as of right.21 It has been held that leave to appeal “should not readily be granted unless there has been shown to be an error of principle apt to cause irregularity or injustice”.22 The requirement of leave evinces a legislative intention to uphold the authority of the trial judge.23 Moreover, it has been held to be generally undesirable that the ordinary course of criminal proceedings should be interrupted by interlocutory appeals prior to conviction and sentence.24 It may be expected that similar considerations will inform decisions of the Victorian Court of Appeal when dealing with interlocutory appeals under the CPA.

A subsequent appeal

Particular mention should be made of s297(3). It provides that if the Court of Appeal refuses leave to appeal, “the refusal does not preclude any other appeal on the issue that was the subject of the proposed appeal”.

Clearly the sub-section is designed to ensure that refusal of leave to appeal will not preclude pursuit of an appeal on the same subject matter once the proceeding is concluded.25

But what about where leave is granted? Is a later appeal precluded on the same subject matter? For example, a trial judge grants a separate trial to an accused from his co-accused. The prosecution succeeds on an interlocutory appeal, the trial proceeds as a joint trial and the particular accused is convicted. Can the accused appeal against his conviction based on the failure to order a separate trial, given that leave was not refused but was granted? The CPA does not answer that question. It might well be predicted, however, that the Court of Appeal will be reluctant to permit re-agitation on an appeal, following conviction, of the same or similar subject-matter of an interlocutory appeal. Presumably, the kinds of arguments advanced in cases involving res judicata would be persuasive.26

Course of an interlocutory appeal

Once leave to appeal is given after a trial has commenced, the trial judge must adjourn the trial without discharging the jury, if reasonably practicable, until the appeal has been determined: s299.

An appeal against an interlocutory decision is – subject to leave to adduce additional evidence – to be determined on the evidence (if any) given in the proceeding to which the appeal relates: s300(1). On the appeal, the Court of Appeal may affirm or set aside the interlocutory decision. If the Court sets aside the decision, it may either make any other decision that it considers ought to have been made, or remit the matter to the court which made the decision: s300(2). If it remits the matter, it may give directions concerning the basis on which the matter is to be determined and the court to which the matter is remitted must hear and determine the matter in accordance with any such directions.

The Registrar of Criminal Appeals is required to transmit the decision of the Court of Appeal to the trial court, which must enter the decision on the court record: s301.

Conclusion

The policy rationale underlying this important new appellate procedure is clear enough – to promote the speedy and authoritative resolution of disputed legal issues arising before or during a trial in a manner which reduces or eliminates the many disadvantages of post-trial appeals against conviction (whatever the outcome of the appeal). These disadvantages include the cost and inconvenience to all parties; the prolonged uncertainty of outcome for victims and accused alike; in the case of successful appeals resulting in retrials, the trauma to victims and witnesses of having to give evidence yet again, and the trauma to the accused in enduring another trial; and the exacerbation of the already unsustainable delays and backlogs within trial courts.

What is less clear is whether the effect of interlocutory appeals will be to achieve those policy goals in practice, or whether instead they will compound the existing problems. The suggestion that those problems – including the current unacceptable delays in higher court appeals – may be ameliorated by introducing yet another type of appeal is defensible only if the new procedure can be shown to significantly obviate post-trial appeals which would otherwise have been instituted, and to do so at a rate which helps to bring the already heavy appeals lists within acceptable limits.

As the common factor in the equation is delay, the success or otherwise of the interlocutory appeals experiment will lie in the willingness and ability of practitioners and the courts to use these provisions in a fashion which is both just and expeditious. Causing or permitting undue delay in the administration of interlocutory appeals will render the provisions self-defeating.

On the other hand, a cooperative commitment by all parties to conduct interlocutory appeals in accordance with their obvious purpose will help ensure the success of this most significant procedural reform in Victorian appellate law in many decades.


PHILIP PRIEST QC is a Victorian barrister practising in criminal law, including appellate work. He holds a Master of Laws degree (Melbourne, 1992). BRUCE GARDNER is the manager of the Policy and Advice Directorate, Victorian Office of Public Prosecutions.

1. Indictment includes presentment: Crimes Act 1958 s566.

2. See now s278 of the CPA.

3. See now ss287 and 291 of the CPA.

4. Although there existed limited power to seek prerogative relief – see Rozenes v Beljajev [1995] 1 VR 533; Rozenes v Judge Kelly [1996] 1 VR 320.

5. R v Elliott (1996) 185 CLR 250.

6. Smith v R (1994) 181 CLR 338; R v Garth [2008] VSCA 252.

7. Smith v R, note 6 above, at 346.

8. At the time of judgment the relevant section was s14(3) of the Supreme Court Act 1986, which was in the same terms as s17A(3).

9. Many authorities, in differing contexts, deprecate the fragmentation of the criminal process, e.g. Sankey v Whitlam (1978) 142 CLR 1 at 25, 82; Barton v R (1980) 147 CLR 75 at 104; Lamb v Moss (1983) 49 ALR 533 at 545; Anderson v Attorney-General for New South Wales (1987) 10 NSWLR 198 at 200; Rozenes v Beljajev [1995] 1 VR 533 at 571; Herald & Weekly Times Ltd v Mokbel (2006) 161 A Crim R 238; [2006] VSCA 9.

10. R v Elliott (1996) 185 CLR 250 at 257.

11. Hansard, Legislative Assembly, 4 December 2008, 4986–7.

12. Since the time of writing, the Justice Legislation Miscellaneous Amendments Bill 2009 has been introduced into Parliament. It is expected that it will pass. Clause 6 of that Bill substitutes “judge” for “trial judge” in the definition of interlocutory decision in s3 of the CPA.

13. See s5F of the Criminal Appeal Act 1912 (NSW).

14. R v Steffan (1993) 30 NSWLR 633.

15. By s210 of the CPA a trial commences when the accused is arraigned in the presence of the jury panel.

16. R v Thomas (2006) 14 VR 475.

17. R v Arvidson (2008) 185 A Crim R 428. See also R v Shamouil (2006) 66 NSWLR 228 at [27].

18. (1995) 83 A Crim R 197 at 206. 

19. Petroulias v R [2007] NSWCCA 134.

20. Time limits for service are set out in s296(3). The Criminal Procedure Amendment (Consequential and Transitional Provisions) Bill 2009 s30 amends this section.

21. R v Matovski (1989) 15 NSWLR 720; R v Rogerson (1990) 45 A Crim R 253.

22. R v Stig (unreported, 17 October 1996, CCA, NSW).

23. R v Steffan, note 14 above.

24. Note 14 above.

25. See R v Natoli [2005] NSWCCA 292; Potier v R [2006] NSWCCA 300; R v O’Meara [2003] NSWCCA 206.

26. See Rogers v R (1994) 181 CLR 251.

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