A2 v R; KM v R; Vaziri v R

1. [1]

   BEAZLEY P: I agree with R A Hulme J.

2. [2]

   R A HULME J: On 27 August 2015, Johnson J delivered a judgment in a trial which was soon to commence with a jury: R v A2; R v KM; R v Vaziri (No 2) [2015] NSWSC 1221. Later that afternoon, on behalf of each of the accused there was filed a Notice of Application for Leave to Appeal against Interlocutory Judgment or Order (“the Notice”) pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW).

3. [3]

   The Court convened on 28 August 2015 to deal with an issue of whether the judgment is properly the subject of an appeal pursuant to s 5F(3); in other words whether the proposed appeal is competent. At the conclusion of the hearing an order was made refusing the application for leave to appeal on the basis that it was incompetent. The following are my reasons for joining in the making of that order.

4. [4]

   Section 5F of the Criminal Appeal Act relevantly provides:

5. [5]

   It was intimated before Johnson J following the delivery of his judgment that an application may be made for him to issue a certificate pursuant to s 5F(3)(b). His Honour subsequently indicated that he would defer this issue given the matter was to be before this Court the next day.

6. [6]

   The Notice indicated that the “Judgment or Order Appealed Against” was:

7. [7]

   The “Judgment or Order Sought” from this Court was:

8. [8]

   The proposed grounds of appeal were:

An issue as to the meaning of “mutilates” in s 45 of the Crimes Act

1. [9]

   A2, KM and Mr Vaziri have each pleaded not guilty to charges under the Crimes Act 1900 (NSW): female genital mutilation contrary to s 45(1)(a) and, in the alternative, assault occasioning actual bodily harm in company, contrary to s 59(2).

2. [10]

   The relevant provision of s 45 is:

3. [11]

   A2 and KM are charged as principals and Mr Vaziri is charged as an accessory after the fact with the alleged mutilation of the clitoris of a child, identified as C1, between specified dates and of the clitoris of another child, identified as C2, between other specified dates.

4. [12]

   Johnson J had been involved in this matter for some weeks dealing with a number of pre-trial applications. At the time the matter came before this Court, it was anticipated that empanelment of a jury would occur on Monday 7 September 2015. The trial was anticipated to run for four weeks.

5. [13]

   According to the judgment in question (at [2]) the parties persuaded his Honour that a particular issue was of significance to the proceedings generally and requested that it be dealt with as a matter of priority. His Honour acceded to that request. His Honour described the issue as follows:

6. [14]

   His Honour outlined the competing submissions of the parties as follows:

7. [15]

   His Honour then set out his consideration of the issue before expressing his conclusion ("the ruling") as follows:

Was the proposed appeal competent?

1. [16]

   A fundamental issue in this proceeding was whether the ruling of Johnson J set out above is an "interlocutory judgment or order" that is amenable to appeal under s 5F(3) of the Criminal Appeal Act. Senior counsel for the applicants A2 and Vaziri clarified at the outset of the hearing that he sought to establish that the Court had jurisdiction because the matter concerned an interlocutory "judgment", as opposed to an "order".

2. [17]

   In AF v R [2015] NSWCCA 35 I set out the following concerning the meaning of "interlocutory judgment or order" in s 5F:

3. [18]

   Senior counsel submitted that the authorities recognise that it is necessary to have regard to substance rather than form. This may be accepted as Gleeson CJ said in the passage from R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 at 303 extracted above that: "it is the character of the question, and the effect of the decision, that makes the difference". See also R v Cheikho [2008] NSWCCA 191; 75 NSWLR 323 at [25] (Spigelman CJ).

4. [19]

   Senior counsel emphasised that the ruling by Johnson J followed a detailed assessment of evidence and submissions and that the reasons are lengthy and considered; the judgment itself running to 85 pages or 273 paragraphs. That, with respect, is an irrelevant consideration. The judgment of the Court (Hunt CJ at CL, Grove and Sharpe JJ) in R v Steffan (1993) 30 NSWLR 633 included an observation that a ruling on the admissibility of evidence may be accompanied (as it was in that case) by elaborate reasons which have been expressed in a document called a "judgment". But that involved an entirely different usage of the word "judgment" and was concerned with the reasons which have been expressed rather than the formal act of the court.

5. [20]

   Emphasis was placed upon the fact that the issue as to the meaning of "mutilates" in s 45(1)(a) is "unique" and not the subject of any binding authority. It was submitted that if it had been determined in the applicants' favour, it might have led to the making of applications for orders that would be clearly amenable to appeal pursuant to s 5F(3), such as for a stay of proceedings on the basis that, having regard to the evidence available to the Crown, the prosecution was foredoomed to fail: see, for example, Walton v Gardiner (1993) 177 CLR 378. However, contemplating what might have followed if the ruling had been other than what it was is a distraction.

6. [21]

   Senior counsel sought to characterise the ruling as "categorical" and suggested there was some significance in it concerning a point which he described as being "of extreme importance to the trial". Again, however, the importance of the ruling for the trial is not a relevant matter, at least in the context of this case. In W O v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 at [59], Basten JA (Fullerton and McCallum JJ agreeing) said the following about pre-trial rulings that may concern important issues in a trial and appeals against interlocutory judgments or orders:

7. [22]

   The significance of the issue the subject of the ruling explains why Johnson J was prepared to accede to the request of the parties to deal with it as a pre-trial issue. But the fact that it was determined pre-trial, whereas most rulings on the manner in which a jury will be directed are made during a trial, does not convert the ruling into something which it is not. Senior counsel for the applicant conceded that an application for leave to appeal pursuant to s 5F(3) would not be an option if the ruling had been made during the trial.

8. [23]

   The ruling was akin to the decision of the trial judge that was held by this Court not to be an interlocutory judgment or order in W O v Director of Public Prosecutions (NSW). In that case, the trial judge determined prior to empanelment of a jury whether an offence of attempting to have sexual intercourse without consent (s 61P of the Crimes Act) was an offence of specific intent which would impact upon the relevance of the accused's intoxication at the relevant time. Her Honour also ruled on whether s 61HA of the Crimes Act (which is concerned with knowledge about consent in relation to certain sexual assault offences) applied. The judge ruled that the offence was not a crime of specific intent and that the provisions of s 61HA applied. Basten JA (Fullerton and McCallum JJ agreeing) held:

9. [24]

   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 (Dunford and Hidden JJ) that:

10. [25]

    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". The Crown had objected to proposed psychiatric evidence on the basis that the offence in question did not require proof of a guilty intent and therefore a defence of mental illness was not available. Greg James J (Spigelman CJ and Studdert J agreeing) referred to R v Adamson and continued:

11. [26]

    On the characteristic of a judgment or order being "final" (R v Bozatsis and Spanakakis at 303), senior counsel submitted that there were types of interlocutory judgments or orders that have been found to be amenable to an appeal pursuant to s 5F(3) that could be reconsidered during the course of a trial and potentially changed. He cited, as an example, a ruling in respect of a subpoena. The case counsel had in mind was not stated but he mentioned the name of the trial judge, Norrish QC DCJ. A search of Caselaw reveals only one such case meeting that description: KS v Veitch [2012] NSWCCA 186. That case, however, concerned an application for leave to appeal pursuant to s 5F(3AA) which is not concerned with interlocutory judgments or orders. Another case which did concern an appeal pursuant to s 5F(2) in relation to a subpoena is Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667. It does not assist the applicants. It concerned a ruling by a magistrate in committal proceedings rejecting a claim of public interest immunity asserted in answer to parts of a subpoena served upon the Commissioner of Police and thereby requiring the Commissioner to produce the documents to the court. Hunt CJ at CL explained (at 673) why the ruling amounted to an interlocutory order:

12. [27]

    During the course of submissions, senior counsel found it necessary to concede in response to questioning from the bench that it was open to Johnson J to modify the direction he has indicated he will give to the jury. He contended, however, that this was only a hypothetical possibility. The concession, nonetheless, was fatal.

Conclusion

1. [28]

   The ruling of Johnson J as to how he would direct the jury as to the meaning of "mutilates" for the purposes of an offence in s 45(1)(a) of the Crimes Act is not a judgment. It did not determine the proceedings or an identifiable part of them and is not capable of being entered in the records of the court: R v Steffan (1993) 30 NSWLR 633 at 636. It lacks finality as, at least in theory, it can be changed: R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 at 303. It was in the nature of a ruling on a question of law: Commonwealth v Mullane (1961) 106 CLR 166 at 169.

2. [29]

   Moreover, what his Honour did was only to outline in very broad terms the nature of the direction he presently proposes that he will give to the jury. The detail of the direction will undoubtedly be formulated and refined in the light of the evidence and submissions in the trial.

3. [30]

   For these reasons it is abundantly clear, in my respectful view, that the pre-trial ruling as to the meaning of "mutilates" in s 45(1)(a) of the Crimes Act and the indication that the judge will direct the jury accordingly is not an interlocutory judgment (or order) that is amenable to appeal pursuant to s 5F(3) of the Criminal Appeal Act.

Order

1. [31]

   It is for the foregoing reasons that I joined in the order of the Court that the application for leave to appeal be refused.

2. [32]

   BELLEW J: I agree with R A Hulme J.