New South Wales Court of Criminal Appeal CITATION : R v Pera [1999] NSWCCA 348 FILE NUMBER(S) : CCA 60503/99 HEARING DATE(S) : 6 September 1999 JUDGMENT DATE : 6 September 1999 PARTIES : Regina v Benjamin Pera JUDGMENT OF : Meagher JA at 1; James J at 4; Sperling J at 5 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 98/11/0502 LOWER COURT JUDICIAL OFFICER : Keleman DCJ COUNSEL : Crown: R. Ellis. Respondent: E. Baskerville SOLICITORS : Crown: S E O'Connor CATCHWORDS : Evidence Act, ss114,115 - Criminal Appeal Act, s5(f). ACTS CITED : Criminal Appeals Act - Evidence Act. DECISION : 1. Notice of Motion returnable instanter; 2. The trial of the Respondent, listed to commence before his Honour Judge Keleman SC of the District Court, Campbelltown at 10.00am on 6 September 1999, be stayed until this Court has heard and determined the Appellant's application under section 5F of the Criminal Appeal Act, 1912; Service of the Court's order in relation to this Notice of Motion may be effected by way of facsimile to the Registrar of the District Court Campbelltown. - 1 - IN THE COURT OF CRIMINAL APPEAL CCA: 60503/99 MEAGHER JA JAMES J SPERLING J Monday, 6 September 1999 REGINA v Benjamin PERA JUDGMENT 1 MEAGHER JA: In this matter his Honour Kellerman DCJ, of senior counsel, in the course of hearing a case, made some evidentiary rulings under ss 114 and 115 of the Evidence Act, the total effect of which will be to preclude the Crown from further proceeding in the case, or at least to prevent it from proceeding further in the case with any hope of success. For those reasons the Crown has put on an appeal under s 5(F) of the Criminal Appeal Act. It is, in my view, entitled to do that. 2 We are not concerned whether that appeal is likely to be successful or not. The Crown has a right to lodge such an appeal, unlike the accused. The District Court Judge concerned has indicated an intention to proceed with the case before him now, notwithstanding the existence of the Crown's appeal. This seems a somewhat unusual position to take and it is perhaps due to the fact that his Honour did not appreciate that the Crown had a statutory right to appeal. In any event, that is the attitude his Honour did take. The appeal which the Crown has commenced will obviously become nugatory, unless his Honour's decision to proceed with the case is stayed. 3 We have been the beneficiaries of some very interesting argument from counsel on both sides, but fortunately we do not have to decide any issue other than the issues which I have outlined. In my view, therefore, the Crown is entitled to the orders which it seeks and in my view orders 1, 2 and 3, as set out in the notice of motion dated 3 September 1999, should be made. 4 JAMES J: I agree with the judgment of the presiding judge and with the orders proposed by his Honour. 5 SPERLING J: For myself, I would find it unnecessary to decide whether, in every case, a trial judge would err in the exercise of his discretion, in failing to adjourn the criminal trial, by reason only of the circumstance that the Crown had instituted an appeal pursuant to s 5(F). In the present case, I would be satisfied that the Crown has at least an arguable case on appeal to test the merit of the trial judge's determination as to the admissibility of the evidence. That being a factor in the present case, it would be my view that this Court should, in the exercise of its discretion, grant the stay that is sought in order to preserve to the Crown the opportunity of appealing against the determination which would otherwise be lost. For those reasons, I agree with the orders proposed by the presiding judge. 6 MEAGHER JA: The orders of the Court therefore are the orders which I have suggested. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.