ae CATCHWORDS Criminal law - Interlocutory appeal - Jurisdiction of Federal Court - Criterion for exercise - Evidence implicating co-accused - Separate trials - Adjournment of trial - Federal Court of Australia Act 1976 (C'th) s,24(1) (b). PETER McNAMARA v. THE QUEEN NT No. TNG 5 of 1978 Coram : Brennan, Deane § Toohey JJ. Sydney 22 June 1978. CATCHWORDS Criminal law - Interlocutory appeal - Jurisdiction of Federal Court ~ Criterion for exercise - Evidence 'implicating co-accused - Separate trials - Adjournment of trial - Federal Court of Australia Act 1976 (C'th) s,24(1) (b). PETER McNAMARA v. THE QUEEN AT No. TNG 5 of 1978 Coram : Brennan, Deane § Toohey JJ. Sydney 22 June 1978. oo With great respect, therefore, I submit that it is not necessarily inimical to the interests of the administration of justice generally or in the Territory for it to be said that his Honour's discretion ought not to be reviewed by this court at this juncture, Thank you, your Honours, BRENNAN, J: The court will adjourn for a short time and will CWL/ x UPON R&SUMING: expect to resume in ten minutes. BRENNAN, J: We should have liked some time to formulate our JD/PS /2e Appara reasons in this matter but the circumstances make it desirable that we give judgment forthwith. The appellate jurisdiction of this Court under s.24(1)(b) of the Federal Court of Australia Act 1976 appears to be significantly larger than tne jurisdiction ordinarily conferred in criminal matters. At first impression, the jurisdiction extencs to appeals against interlocutory orders made by a court of a Territory in criminal proceedings pending before that court, and we were not invited to read the statutory provisions more narrowly. Section 24(1)'bd) in conferring appellate jurisdiction on this court does not differentiate between final and inter- 1ccutory orders, nor between criminal and civil cases. Assuming the jurisdiction extends to inter- locutory appeals in criminal matters, the jurisdiction is novel. - It is essential that a jurisdiction of that kind be exercised sparingly lest resort to this Court should interrupt the ordinary and desirable despatch of criminal charges in the Supreme Courts of the Territories. The jurisdiction is not sterile, but it should be exercised for the purpose for which the jurisdiction is conferred: to ensure that justice is done in the conduct of criminal trials, That purpose is not achieved by intervening in the conduct of a criminal trial unless it appears that intervention is necessary to prevent a miscarriage of justice. Intervention is not necessary to ensure the elimination of a mere possibility of improper prejudice at a trial; and that for two reasons, First, in the event of conviction, relief by way of appeal is available, when it can be shown that the possibility has become a reality in the course of the trial; and second, the securing o7 a fair trial is a duty which 100 22/6/78 nw ' wed Foe cee Fenians ed aay 4, buna OTT areerere 7 . Deeetlirsbene ny metas mene wane leew ee mA ee JD/PS/3e Appara a trial judge performs by tne making of orders which are in a sense reciprocal and which oftentimes cannot be considered in isolation. Thus, the possibility of improper prejudice in the course of a joint trial may be eliminated by rulings on evidence, by the terms of the judge's directions to the jury, and perhaps, by other means as the trial progresses. These considerations lead me to regard the jurisdiction now invoked as exceptional; that is to say, it is a jurisdiction which should not be exercised unless it appears that the order appealed from will effect an injustice, and that the injustice can be avoided by the intervention of this Court, I do not think that the appellant has dis- charged the onus of showing that this is a case of that kind, At the outset, there is the difficulty of identifying the evidence which will be admitted on the joint trial. Some of the statements allegedly made by Scott in the absence of the appellant implicate the appellant though they are inadmissible against him, but these prejudicial statements may or may not get into evidence. If some of them are admitted, the learned trial judge may or may not be able so to direct the jury as to give adequate protection to the appellant against their prejudicial effect. Rulings on evidence have not yet been sought from, nor yet been given by, the learned trial judge. Indeed, he assumed that such evidence of admissions by Scott as would be admitted would not : name the appellant as-a confederate, If we were to assume that the statements of those witnesses who were not called in the committal proceedings would be A admitted, then his Honour's assumption would be showm 3 to be incorrect, But his Honour has not vet ruled upon their admission, nor, it seems kas he considered the effect which they, or the adnitted parts of then, would have upon the continuation of a joint trial, We should not reach a final decision on a joint tria2 in advance of the imoortant rulings which his Honour must make as to evidence, It is simply not possible to predicate of the order under appeal that it will be productive of injustice, Much depends upon the course which the trial will take, and that is a course which remains under the control of the trial judge. 101 22/6/78 If, as I propose, we dismiss this appeal ' and subsequently it aopears to the trial judge that separate trials should be ordered, it is open to his Honour so to direct. fhe order under appeal ; is not perpetual, and the refusal vy this Court to i . intervene does not establish in advance that adherence to the order cannot produce an injustice. The dismissal of this appeal is the result ; of adopting the principle (to be found in a different * context in Sackville West v. Atvorney-General, 1910 - . 128 L.T. 265, and Maxwell v. Keune 1928 1 K.B.645), that the jurisdiction will not be exercised unless ! it can be predicated of the order that it will effect ' an injustice unless this Court intervenes. It is not desirable in these circumstances that I should make any further observations as to the facts. - I should add that I would not suggest that a trial judge should adjourn a trial on every occasion ' where an intimation is given'that an applicant wishes to appeal. Delay in a criminal case is itself an injustice, and a very strong case must be made to warrant an adjournment to prosecute an interlocutory appeal once the trial has commenced. This appeal should, in my opinion, be disnissed, DEANE, J: The consideraticns militating against a joint trial in the present matter are strong indeed. The Crowr propcses to lead a considerable body of oral evidence of conversations with the appellant's joint accused, ' Scott, which are alleged to have occurred, in the ' absence of the appellant, after commission of the ; offence charged. These conversations, if acceptec, ' implicate the appellant and expressiy rane him as a confederate in what the Crown alleges was an overall criminal enterprise. Examination of the proof of evidence which the Crown proposes to lead from a senior narcotics agent, O'Connor, discloses that the express implication of the appellant by Scott in his oral statements was the result of a deliberate steering of conversavion with Scott in a direction which would implicate 'She appellant and in a manner which was calculated to elicit information damaging to the appellant regardless of the nature or source of Scott's knowledge or belief. There is no dispute that signif. icent portions of these alleged conversations are : inadmissible against the appellant, JEFC/PS/4e 10z 22/6/78 Appara In these circumstances, the reasons for directing separate trials which found favour with | Mr. Justice Hood in The King v. Hodgsen ((1915) V.L.R. 119) and Mr. Jystace Connor in The Queen V. Donaldson and Williams (Supreme Court of Australian Capital ' Territory , 5 April 1978) were relevant to the question whether separate trisis should be ordered in the present matter. His Honour was, of course, entitled to weigh against the abovemertioned considerations the other considerations and matters to which he referred and to which he paid regard, The question whether separate trials should be ordered is not, however, before us. It is, in the Light of the conclusion to which I have come on the question which is before us, unnecessary that I form or express an independent opinion of my own on that matter. Tre question before uw is whether we should interfere , at this stage, with the refusai of the learned trial judge to exercise the discretion which he possessed to order separate trials. I entertain serious doubts as to whether, on their proper construction, the relevant provisions of the Federal Ccurt of Australia Act 1976 confer jurisdiction upon this court to near an appeal from the refusal of the trial judge to exercise a discretionary power to order separate trials. Hven assuming that such a refusal can properly be regaraed as an interlccutory "order", there is much to be said for the view thav, upon their proper constructicn in the contert of established principles relating to the nature of an appeal and the circumstances in which an appeal should ordinarily lie, the general provisions of s.2h of the Federal. Court of Australia Act do nut confer authority to institute, or jurisdiction to hear, an appeal fron an interlocutory order ina criminal preceeding. EU ny ttt gee pee en tyne nee ne, ween a) nesmennal ~— . eae ue The Crown has, however, expressly dis- claimed any submission that the court lacks juris- diction to hear the appeal. The other meabers of the Bench incline tc the view that jurisdiction does exist. It is clearly desirable that a decision ve given forthwith, In all the circumstances, and in view of the conclusion which I have in any event reached as to the merits of the appeal, I am prepared to concur in dealing with the matter on the basis thau jurisdiction to hear the appeal does exist, ETT CE Ah Ae yaey ) = PN earn eer weep f JD/PS/5e 103 22/6/78 Appara On the assumption that jurisdiction to hear and determine the aypeal does exist, I am in agreement with what Brennan J. has said as to the ' principles which should govern its exercise ina matter such as the present. Generally speaking, I i would apply to the present matter the principles ae enunciated, in the context of civil proceedings, by the Court of Appeal in Sackville-West v. Attorney- | approval in Maxwell v. Keune & Ors. (1910) 128 L.T.Jo. ' 265 and many other cases. I also agree for the "reasons which he has given with my brother Brennan's conclusion that the appellant has not made out a case for interfering with the refusal by the learned trial judge to exercise his discretion to order i a separate trial in the present matter. General (L.R. (1928) 1 K.B. 645) and cited with | ! I | | | In the result I agree that the appeal | - should be dismissei. In the event that the appellant ' subsequently renews his aoplication for a separate { | trial, the success or failure of that application ' should not be regarded as governed by the decision ; of this appeal. That will be a matter for the judge of the Supreme Court of the Northern Territory to whom such appiication is made, TOOHEY, J: I agree the appeal should be dismissed; I agree with the reasons of his Honour, Mr. Jystice Brennan, BRENNAN, J: The order of the Court is that the appeal is Cismissed,. | : AT 3,17 P.M. THE COURT ADJCURNED SINE DIF JFC/PS/Lc 104 22/6/78 Appara