New South Wales Court of Criminal Appeal CITATION : R v Lavender [2002] NSWCCA 511 FILE NUMBER(S) : CCA 60456/02 HEARING DATE(S) : 16 December 2002 JUDGMENT DATE : 16 December 2002 PARTIES : R v Wayne Kelvin Lavender JUDGMENT OF : Giles JA at 1; James J at 15; Hidden J at 16 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 02/31/0066 (Newcastle) LOWER COURT JUDICIAL Coolahan DCJ OFFICER : COUNSEL : P J D Hamill - Applicant P E Barrett - Respondent SOLICITORS : D J Humphreys, Legal Aid - Applicant S E O'Connor - Respondent CATCHWORDS : Criminal law - appeal against interlocutory judgment or order - evidentiary ruling - submitted that evidence irrelevant because Crown case could not be made out in other respects - this submission not put to trial judge - no interlocutory judgment or order - appeal dismissed. ND CASES CITED: R v Bozatsis and Spanakarkis (1997) 97 A Crim R 296. DECISION : Appeal dismissed. IN THE COURT OF CRIMINAL APPEAL CCA 60456/02 DC 02/31/0066 (Newcastle) GILES JA JAMES J HIDDEN J Monday 16 December 2002 REGINA v WAYNE KELVIN LAVENDER Judgment 1 GILES JA: This is an appeal pursuant to s 5F of the Criminal Appeal Act 1912. The right of appeal is "against an interlocutory judgment or order", see s 5F(3), and requires either leave of this Court or the certificate of the trial judge that the judgment or order is a proper one for determination on appeal. The trial judge gave a certificate, but it is still necessary that the judicial act the subject of the appeal was an interlocutory judgment or order. For the reasons which follow, in my opinion it was not. 2 The appellant was charged with manslaughter and in the alternative with culpable driving. It is the charge of manslaughter which is presently relevant. He and another man were employed to operate front-end loaders at a sand mining site. The two employees were on a lunch break when they noticed a group of boys on the site. They drove their loaders in the direction of the boys, who ran in different directions. The appellant followed two of the boys, Michael Milne and Aaron Roddam, and drove his loader into an area of regenerating bushland. Michael hid in that area and Aaron ran elsewhere in the area. Michael was killed when the loader ran over him. 3 The Crown put its case of manslaughter on two alternative bases. First, it said that the act of the appellant caused Michael's death and that the appellant was guilty of manslaughter because it was an unlawful and dangerous act carrying with it an appreciable risk of serious injury. In the alternative, it said that the appellant was guilty of manslaughter by criminal negligence, which for present purposes need not further be considered. 4 In the course of the evidence of Aaron, after he had spoken of going into the bush a distance and seeing the loader go into the bush, he was asked how he felt when he saw that happen. Objection was taken to the question, although in fact an answer that he felt scared was recorded. That led to a debate over the relevance of the question, and the trial judge ruled that it was relevant. 5 His Honour noted that the unlawful and dangerous act on which the Crown relied was assault, and that the Crown submitted that it was not necessary to establish that the actions of the accused constituting an assault were directed at Michael or that Michael was put in fear at the time of his death. Rather, the Crown said, it was sufficient to establish that one or more of the boys accompanying Michael was put in fear and thereby to establish an assault which, together with other matters, would make out the case of manslaughter. The Crown relied on the evidence of Aaron for that purpose. 6 The trial judge ruled that it was not necessary that the victim of the appellant's actions was put in fear, and that it would be sufficient if it were shown that someone else was put in fear as part of an assault, the someone else being Aaron, and so that the Crown was entitled to the evidence of Aaron's state of mind. 7 Some little time later the trial judge dealt with an argument over the giving of a certificate pursuant to s 5F (3)(b) of the Criminal Appeal Act. His Honour had at the time of the ruling indicated that he would give a certificate, but the Crown later submitted that this should not be done. His Honour remained of his initial view, although stating that he had "some real degree of doubt". His Honour said - "This certificate, in my view, is appropriate because it seems to me that the ruling that I made, that the Crown was entitled to rely on the unlawful act ingredient of that leg of the manslaughter requirement, was a putting in fear of one or more of the surviving boys, is a matter which goes beyond a mere rule of evidence. It seems to me that the ruling does affect the rights of the parties. Whilst I take into account - and it has obviously been referred to in many of the decisions - the fact that the accused has a right of appeal should he be convicted, the reality is that in a situation where the Crown is entitled to rely on both legs of the manslaughter charge, that is to say unlawful and dangerous act and criminal negligence, and the jury is entitled to return a verdict of guilty with some being satisfied of one, and some being satisfied of the other, it seems to me that this is in the nature of an interlocutory judgment or order of the type contemplated by s 5F". 8 Many authorities establish that a ruling as to the admissibility of evidence is not an interlocutory judgment or order for the purposes of s 5F. It is also clear enough that there is no easy test for whether or not a judicial act is an interlocutory judgment or order for the purposes of that provision, and in the somewhat exceptional circumstances of rulings which have the effect of excluding all or substantially all the evidence to be led by the prosecution, so that the Crown case is effectively brought to nothing, it has been held that there can be an appeal under s 5F (see R v Bozatsis and Spanakarkis (1997) 97 A Crim R 296). The question is how one categorizes what the trial judge did in this case. 9 Prima facie what the trial judge did was simply rule on the admissibility of evidence. The appellant submitted that what his Honour did went further, in that the ruling was made in the course of considering how the Crown case could be put to the jury and involved whether or not there was a Crown case to go to the jury. 10 The argument before the trial judge had been on the basis of whether the assault had to be directed at Michael rather than Aaron, to put it in short and perhaps inaccurate terms. It was acknowledged before us that there was authority which on that basis justified, indeed mandated, his Honour's ruling as a matter of admissibility. This had not been acknowledged before his Honour. 11 It was submitted to us, however, that a problem in the Crown case arose because the other evidence to be led was insufficient to establish that the appellant had the mens rea necessary for manslaughter by the commission of an unlawful and dangerous act. There was reference to a record of interview in which the appellant was recorded as saying that he proposed to frighten the children off, and it was submitted that this was insufficient for the necessary mens rea. The evidence of Aaron that he was put in fear was inadmissible, it was said, because the Crown case could not otherwise be made out. It was inadmissible because it was irrelevant, and it was irrelevant because the Crown case failed in relation to mens rea. 12 When the argument is put in that way, it can be seen how far from the trial judge's ruling, and from a proper use of s 5F, we are asked to travel. The argument was not something put to his Honour, on any view. He gave no judgment and made no order in relation to it. He simply gave a ruling that the evidence was admissible, as it was in the manner the Crown put its case. 13 Whether or not it was open to the Crown to put its case in that way, and whether or not the other evidence on which the Crown sought to rely - not all of which had been tendered at the time of the ruling - could lead to submissions being put to his Honour as to how the case should be left to the jury or whether it should be left to the jury at all, were and are entirely different matters. They are not matters for us, nor are they matters arising as a result of the judicial act said to be the vehicle for the appeal to this Court. In my opinion, there was no relevant interlocutory judgment or order in relation to which this appeal lies. 14 The appeal should be dismissed, not on the merits but because there is not the necessary jurisdictional basis. 15 JAMES J: I agree with the judgment of the presiding judge and with the orders proposed by his Honour. 16 HIDDEN J: I also agree. ********** 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.