New South Wales Court of Criminal Appeal CITATION: R v Adamson [2005] NSWCCA 7 HEARING DATE(S): 31 January 2005 JUDGMENT DATE: 31 January 2005 JUDGMENT OF: Spigelman CJ at 1; Dunford J at 10; Hidden J at 11 DECISION: Application for leave dismissed CATCHWORDS: CRIMINAL LAW - Appeal - When appeal lies - From interlocutory judgment or order - Opinion before trial on whether defence available - Not interlocutory judgment - Criminal Appeal Act 1912, s 5F. - JUDGMENTS AND ORDERS - Classification - Interlocutory judgment or order - Opinion before trial on whether defence available - Not appealable before conviction - Criminal Appeal Act 1912, s 5F. Crimes Act 1900 LEGISLATION CITED: Criminal Appeal Act 1912 CASES CITED: R v Staffan (1993) 30 NSWLR 633 Regina PARTIES: Darren William Adamson FILE NUMBER(S): CCA 2004/2322 J Girdham for Crown COUNSEL: GD Wendler for Adamson S Kavanagh for Crown SOLICITORS: Van Houten Solicitors for Adamson LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0386 LOWER COURT JUDICIAL OFFICER: Blackmore DCJ IN THE COURT OF CRIMINAL APPEAL 2004/2322 SPIGELMAN CJ DUNFORD J HIDDEN J MONDAY 31 JANUARY 2005 REGINA v DARREN WILLIAM ADAMSON Judgment 1 SPIGELMAN CJ: This is an application for leave to appeal pursuant to provisions of s 5F(3) of the Criminal Appeal Act 1912. 2 The applicant has been indicted on two charges. First, that he did break and enter a building and did steal certain property, contrary to the provisions of s 112(1) of the Crimes Act 1900. Secondly, that he did maliciously damage property by fire, contrary to s 195(6) of the Crimes Act 1900. 3 In an interlocutory application to the District Court, the applicant raised the topic of intoxication and particularly sought the court to consider whether he was entitled to the benefit of Pt 11A of the Crimes Act, on the basis that each of the offences with which he stood charged was an offence involving specific intent, within the meaning of that Part. If that were the case, then he would be entitled to the benefit of s 428C of the Crimes Act 1900 to the following effect: "Evidence that a person was intoxicated (whether by reason of self-induced intoxication or otherwise) at the time of the relevant conduct may be taken into account in determining whether the person had the intention to cause the specific result necessary for an offence of specific intent." 4 Blackmore DCJ heard argument on this matter and rejected the proposition for which the applicant contended before his Honour and for which the applicant continues to contend in this court. His Honour concluded: "Having considered the submissions of the accused in my view no basis has been shown for him to rely on intoxication as a defence to either of the charges in the indictment." 5 His Honour made no order. The submission in this court is that his Honour's reasons for decision constituted a judgment within the meaning of s 5F of the Act. Mr G Wendler, who appeared for the applicant, submitted that his Honour's judgment involved a final legal ruling on a discrete legal controversy which had arisen in the proceedings. Mr Wendler submitted that, in effect, what his Honour had done was to make a declaration that s 428C does not apply to ss 195(6) or 112(1) of the Crimes Act 1900. 6 There is no such declaration. In my view, what Blackmore DCJ did on the application of the applicant was no more than to indicate what he would do, if he were the trial judge, if evidence of intoxication were sought to be adduced over objection, or if such evidence was otherwise before the court, what direction he would give to the Jury on the issue of intention. It is clear that if his Honour was the trial judge that he would, in the latter case, direct the Jury that intoxication was not able to be taken into account on the issue of intention, on the basis that neither of the offences with which the applicant was charged was an offence of specific intent. 7 This, in my opinion, is not a judgment or order within s 5F of the Criminal Appeal Act. It does not have the requisite element of finality in terms of resolving an issue in the proceedings in a binding manner. It is closely analogous, in my opinion, to the admission of evidence. Indeed one of the two ways in which the conclusion to which Blackmore DCJ came could, in fact, be applied would be on a ruling relating to evidence of intoxication, if it were sought to be adduced over objection. 8 It is now well established that evidential rulings are not interlocutory judgments or orders within the meaning of s 5F. (See the list of authorities set out and considered in R v Steffan (1993) 30 NSWLR 633, especially at 636 to 639.) 9 In my opinion, the application for leave should be dismissed. 10 DUNFORD J: I agree. 11 HIDDEN J: I agree. 12 SPIGELMAN CJ: The order of the court is as I have indicated. ********** 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.