District Court New South Wales Medium Neutral Citation: R v Joshua Veitch [2012] NSWDC 175 Hearing dates: 09/05/12 Decision date: 09 May 2012 Before: S Norrish QC DCJ Decision: Certificate under the Criminal Appeal Act refused. Catchwords: Certificate for Appeal Legislation Cited: Criminal Procedure Act 1986 Criminal Appeal Act 1912 Cases Cited: Pellegrino v Director of Public Prosecutions [2008] NSWCCA 17 Category: Interlocutory applications Parties: Director of Public Prosecutions Joseph Veitch (Offender) Representation: Mr D Jordan (Crown) Mrs C Taylor (Offender) Mr P M Skinner/Ms S Goodwin (KS) File Number(s): 2011/00176700 Judgment Appeal of decision; see transcript p 116 1HIS HONOUR: On Tuesday 8 May 2012 I gave judgment in relation to various applications relating to the production of documents under subpoena that related to the complainant in a proposed trial involving an accused, Joshua Veitich. The background to these matters is set out in my judgment. 2In circumstances already referred to on previous occasions, I have been advised that it would be the wish of the complainant to appeal my decision to the Court of Criminal Appeal pursuant to the provisions of s 5F(3AA) and now seeks a certificate under the Act. 3That provision states that: "A person who is not a party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against the decision in those proceedings to grant leave under Div 2 of Pt 5 of Ch 6 Criminal Procedure Act 1986, or a determination in those proceedings that a document or evidence does not contain a protected confidence within the meaning of that Division if the person is...a protected confider in relation to a protected confidence that may be produced or adduced because of the leave". 4I just pause for a moment, having just referred to that provision, to note one matter that has been raised in relation to this current application for a certificate pursuant to s 5F(3AB) Court Appeal Act 1912. Counsel for the applicant indicated, amongst other matters to which I will refer in a moment, a concern as to whether in effect as I understood the submission there was jurisdiction for me to deal with the application, as I did, pursuant to Ch 6, Pt 5, Div 2, Criminal Procedure Act 1986, when I handed my judgment on 8 May 2012. It was foreshadowed that some issue may arise in relation to the question of whether the documents ought to have been produced or not. I point out that in the determination of the matter over a day and a half that issue was not raised by any party at the bar table, nor was I asked to address it. I note, by reference to the terms of s 5F(3AA), to which I referred, that the subsection contemplates that a person who may appeal to the Court of Criminal Appeal is not just the 'protected confider', but may be the person who was required to produce documents or adduce evidence. I note that the producing party did not attend upon this Court to argue that it should not produce the documents. Nor was any information given to this Court that the producing party was claiming some privilege or some protection under the Evidence Act 1995 or under the Criminal Procedure Act. Of course if, in the argument before the Court of Criminal Appeal, the issue of the jurisdiction of this Court is to be raised, it will be a matter for that Court, with the matter properly argued before it, to determine whether, in fact, absent any claims of privilege or otherwise by the producing party, that was realistically a live issue for this Court to entertain had it been raised at all. I have not been aided by any submissions as to jurisdictional issues at any time. Jurisdiction was assumed by the parties. 5Coming back to the application. Apart from that preliminary matter, which counsel for the applicant, as I understood it, agreed that if it was to be argued was certainly not a matter litigated in this Court, the remaining issues for consideration by the Court would in very general terms fall to be determined by consideration of what are sometimes called "House v The King" principles. There was no issue raised in the course of submission to me relating to the construction given to the legislation, principally with which I was concerned in determining the third of the issues I determined. That is, whether access be granted in a limited way to documents produced by the Cumberland Hospital. 6The Crown's position is that it neither opposes nor supports the application. The application is opposed by the accused. Of course, determination of the issue of whether to grant a certificate does not turn upon, ultimately, the positions of parties who have an interest in the proceedings alone. 7The matter is not currently the subject of an "appeal", or "application", pursuant to the Criminal Appeal Act 1912. At the heel of the hunt, admittedly, bearing in mind this issue has really only been litigated over the last half an hour, I raised with learned counsel for the applicant whether I had jurisdiction to issue a certificate pursuant to s 5F(3AB), Criminal Appeal Act 1912, if no appeal had been lodged at this time. To delay decision until an appeal will result in more expense being "thrown away". . 8For the purposes of giving this decision, I accept, firstly, as I have earlier indicated, that the protected confider, that is the complainant in the proposed trial, would wish to appeal the decision I have made. I accept in good faith that inquiries have been made of the Registrar of the Court of Criminal Appeal to ascertain when the matter could be heard, to assist in the expeditious disposal of the trial, a matter about which this Court is anxiously concerned. I accept that an appeal in the formal sense can be lodged expeditiously. I have been given some information from the bar table about what attitude the Court may take to the listing of an appeal in respect of which either leave is required and/or a certificate has been issued that "the decision is a proper one for determination on appeal". 9Whilst I accept what information I have been given has been provided in good faith, I have received no firm indication that any advantage in the listing of the matter, to ensure ultimately that the trial can be expeditiously conducted, will be influenced significantly, or even substantially, one way or the other. I certainly would hope and I am sure this would be so that subject to the convenience of the Court of Criminal Appeal and its learned judges, the determination of the proposed appeal would occur expeditiously. 10With regard to the substance of this application, I decline to issue a certificate. My reasons are, firstly, there was no particular issue of a defined legal character identified, in my view, which warrants the issue of a certificate. 11I am mindful, I hasten to say, that I have been informed that no appeal has yet been lodged pursuant to s 5F(3AA) of the Act, but because this may be the first appeal does not mean that it is a fit and proper vehicle for the exercise of that right that is available to the "protected confider". I am not satisfied, further, that any greater expedition will occur by the granting of the certificate. But in any event, I doubt very much that the Court of Criminal Appeal would appreciate a judge issuing a certificate solely for the purposes of expedition, without regard to the merits of the matter for which the certificate is sought. I hasten to say by that comment I am not commenting upon the merits of any ultimate appeal in the conclusion, because that is properly not a matter for me to judge and I have little information in any event. It would be like Caesar sitting in judgment on his own reasoning. That is a matter for more senior judges. 12In Pellegrino v Director of Public Prosecutions [2008] NSWCCA 17, the Court of Criminal Appeal considered aspects of the exercise of jurisdiction pursuant to s 5F of the Act. I appreciate, of course, the matter in that appeal did not concern the provision with which I am now concerned because that provision only came into operation on 7 December 2010, according to the Butterworth's practice I have in front of me. The Court, in passing, made observations about the issue of certificates and the caution that should be exercised in considering the issue of a certificate under the Act. Their Honours said inter alia at [6]: "There are no doubt circumstances where it is entirely proper for a trial judge to certify that the matter is appropriate for determination in an interlocutory appeal under s 5F. Nevertheless the power should be exercised with caution. If the trial judge so certifies, this Court loses the opportunity to consider whether a grant of leave would be appropriate, which function provides an important control over the exercise of appellant jurisdiction in relation to interlocutory judgments or orders." 13I also note the observations of their Honours at paras [7] - [10], particularly the observations at para [9] referring to the High Court decision of DJL v The Central Authority (2000) 201 CLR 226. Thus in the circumstances as I outlined them, exercising the appropriate caution which I have been warned to exercise by their Honours, not personally but certainly indirectly, I decline to issue a certificate under the Criminal Appeal Act 1912. ********** 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. Decision last updated: 05 October 2012