New South Wales Court of Criminal Appeal CITATION : Regina v Simon DAHER Regina v Tod TOCHEL [2004] NSWCCA 458 HEARING DATE(S) : 14 December 2004 JUDGMENT DATE : 14 December 2004 JUDGMENT OF : Wood CJ at CL at 1, 14; Simpson J at 2; Barr J at 3 DECISION : Applications dismissed. Matters remitted to the District Court. CATCHWORDS : Criminal law - appeal - whether decision appealed from a judgment or order. LEGISLATION CITED : Criminal Appeal Act 1912 s5F Regina (Respondent) PARTIES : Simon Daher (1st Applicant) Tod Tochel (2nd Applicant) FILE NUMBER(S) : CCA 2004/2840; 2004/2845 G Rowling (Respondent) COUNSEL : J Korn (1st Applicant) J Korn (2nd Applicant) S Kavanagh (Respondent) SOLICITORS : Christopher Raheb Solicitor (1st Applicant) Christopher Raheb Solicitor (2nd Applicant) LOWER COURT District Court JURISDICTION : LOWER COURT 04/31/0178; 04/31/0181 FILE NUMBER(S) : LOWER COURT Gibson QC ADCJ JUDICIAL OFFICER : - 4 - IN THE COURT OF CRIMINAL APPEAL 2004/2840 2004/2845 WOOD CJ AT CL SIMPSON J BARR J 14 DECEMBER 2004 REGINA v SIMON DAHER REGINA v TOD TOCHEL Judgment 1 WOOD CJ AT CL: I agree with Barr J. 2 SIMPSON J: I agree with Barr J. 3 BARR J: This is an application for an extension of time within which to appeal under s5F Criminal Appeal Act against what is said to be an interlocutory judgment or order of Gibson QC ADCJ. 4 The applicants, Simon Daher and Tod Tochel, were committed to the District Court for trial, each on charges including a charge that at a particular time and place he manufactured an amount of a prohibited drug, namely methylamphetamine, which was not less than the commercial quantity applicable to that drug. The facts were that the police entered the applicants' premises and found them in the process of manufacturing the drug by heating the contents of a flask. The police seized the flask and its contents and sent them for analysis. The contents weighed 998.7grams and were analysed to contain 23.1per cent pure methylamphetamine. 5 By s4 Drug Misuse and Trafficking Act 1985 a reference to a prohibited drug includes a reference to any preparation containing any proportion of the prohibited drug. 998.7grams exceeds the commercial quantity of methylamphetamine, which is 250grams. 6 Each applicant wished to mount an argument that if he had been permitted to finish manufacturing the drug he would have had less than 250grams for sale. Each applicant wished to argue that s4 of the Act did not apply to preparations produced during the course of manufacture. That would have involved a challenge to the decision of this Court in R v R (No.2) (1990) 19 NSWLR 573. 7 There was frank discussion from the bar table and defence counsel as good as told his Honour that there was no defence to the charge and that a plea of guilty would be entered by each applicant. The only matter of contention was whether the Crown could prove the commercial quantity. The parties wanted his Honour's view about that and each of defence counsel and the Crown Prosecutor told his Honour that if he took a view contrary to the one he or it wished to put, he or it would wish to test the matter on appeal before the matter went any further. Discussion followed about whether the applicants should be required to enter their intended pleas of guilty, but that never happened. The parties put the relevant statements and certificates of analysis before the Court. It thus appears that, although evidence was tendered, the sentencing proceedings were never entered upon and no order adverse to either applicant was made. 8 Counsel for the parties then put their arguments. His Honour gave an opinion in what was called - Judgment on application of whether Court of Criminal Appeal decision still binding. 9 In that decision his Honour observed that the two applicants had been charged or were to be charged with producing the commercial quantity of methylamphetamine. There was a reference to the evidence tendered. His Honour observed that the question to be answered was whether the decision in R v R (No.2) was binding. His Honour expressed the opinion that it was. 10 Mr Korn, who appeared for the applicant Daher, invited his Honour to certify under s5F(3)(b) Criminal Appeal Act that the judgment or order was a proper one for determination on appeal. His Honour said - I'll certify that the judgment or order is a proper one for determination on appeal. 11 The scheme set up by the Criminal Appeal Act contemplates that before rights to appeal or to seek leave to appeal arise from proceedings on indictment in the District Court the proceedings should be completed. So persons who are convicted and sentenced may appeal against their convictions and seek leave to appeal against their sentences. The Crown may appeal against sentences. The Attorney General or the Director of Public Prosecutions may state a question for the opinion of the Court of Criminal Appeal after there has been an acquittal: see ss5, 5D, 5A Criminal Appeal Act. The only contemplation of an appeal or of an application for leave to appeal during the currency of proceedings on indictment lies under s5F. There is no provision for a judge of the District Court who is unsure about the law to state a question for determination by the Court of Criminal Appeal. There is no provision, where the parties wish to test a judge's opinion of the law before the proceedings are carried through, for the judge to state a question of law for determination. 12 Section 5F does not contemplate appeals against advisory opinions or decisions made in advance of a trial on matters affecting the conduct of the trial such as the admissibility of evidence, the sufficiency of evidence to prove the charge or questions of law which will arise during the course of the trial: R v Edelsten (1989) 18 NSWLR 213. It seems to me that that is what happened in the present case. Although his Honour's determination is called a judgment it is not in my opinion a judgment for the purposes of s5F. All his Honour was doing, in my opinion, was indicating to the parties what view he would take if the case proceeded and evidence in accordance with that tendered to him were put before the Court. It seems to be that what the parties are really doing is asking this Court to answer a question of law as though on a stated case. In my opinion, even if the question were stated with sufficient particularity, the Court would have no power to answer it. 13 In my opinion these applications are incompetent and should be dismissed. Both matters should be remitted to the District Court. 14 WOOD CJ AT CL: The Court makes orders accordingly. Last Modified: 12/15/2004 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.