Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244 Hearing dates: 28 August 2015 Decision date: 28 August 2015 Before: Beazley P at [1]; R A Hulme J at [2]; Bellew J at [32] Decision: Application for leave to appeal refused Catchwords: CRIMINAL LAW – appeal – s 5F Criminal Appeal Act –pre-trial ruling concerning direction to be given to jury about the meaning of 'mutilates' in s 45 Crimes Act – whether ruling an interlocutory judgment or order under s 5F(3) Criminal Appeal Act – ruling not determinative of an identifiable part of the proceedings – ruling lacks finality – ruling is on a question of law – ruling not an interlocutory judgment or order – appeal incompetent Legislation Cited: Crimes Act 1900 (NSW) ss 45, 59, 61HA, 61P Criminal Appeal Act 1912 (NSW) s 5F Cases Cited: AF v R [2015] NSWCCA 35 Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667 Commonwealth v Mullane (1961) 106 CLR 166 KS v Veitch [2012] NSWCCA 186 R v A2; R v KM; R v Vaziri (No 2) [2015] NSWSC 1221 R v Adamson [2005] NSWCCA 7 R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 R v Cheikho [2008] NSWCCA 191; 75 NSWLR 323 R v Piper [2005] NSWCCA 134 R v Steffan (1993) 30 NSWLR 633 Walton v Gardiner (1993) 177 CLR 378 W O v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 Category: Principal judgment Parties: A2; KM; Shabbir Mohammedbhai Vaziri ( Applicants) Regina Representation: Counsel: Mr R F Sutherland SC (A2 and Vaziri) Mr S Bouveng (KM) Ms N L Williams (Crown) Solicitors: Armstrong Legal Office of the Director of Public Prosecutions File Number(s): 2012/2800812012/2854552012/285639 Decision under appeal Court or tribunal: Supreme Court Date of Decision: 28 August 2015 Before: Johnson J Judgment 1. BEAZLEY P: I agree with R A Hulme J. 2. R A HULME J: On 27 August 2015, Johnson J delivered a judgment in a trial which was soon to commence with a jury: R v A2; R v KM; R v Vaziri (No 2) [2015] NSWSC 1221. Later that afternoon, on behalf of each of the accused there was filed a Notice of Application for Leave to Appeal against Interlocutory Judgment or Order ("the Notice") pursuant to s 5F(3) of the Criminal Appeal Act 1912 (NSW). 3. The Court convened on 28 August 2015 to deal with an issue of whether the judgment is properly the subject of an appeal pursuant to s 5F(3); in other words whether the proposed appeal is competent. At the conclusion of the hearing an order was made refusing the application for leave to appeal on the basis that it was incompetent. The following are my reasons for joining in the making of that order. 4. Section 5F of the Criminal Appeal Act relevantly provides: "(3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal." 1. It was intimated before Johnson J following the delivery of his judgment that an application may be made for him to issue a certificate pursuant to s 5F(3)(b). His Honour subsequently indicated that he would defer this issue given the matter was to be before this Court the next day. 2. The Notice indicated that the "Judgment or Order Appealed Against" was: "The judgment of Johnson J concerning the statutory construction of 'mutilates' for the purposes of s 45 Crimes Act 40/1900 (NSW), cited as R v A2; R v KM; R v Vaziri (No 2) [2015] NSWSC 1221." 1. The "Judgment or Order Sought" from this Court was: "Re-determine the definition of 'mutilates' in accordance with submissions by the Applicants." 1. The proposed grounds of appeal were: 1. His Honour erred in accepting the Crown submission as to the direction to be given to the jury in this case being that "any injury to any extent for non-medical reasons" is the definition of 'mutilates' for the purposes of s 45 Crimes Act 40/1900 (NSW). 2. His Honour's determination is wrong as a matter of statutory construction. 3. His Honour's determination is infected with error as a result of applying the facts of this case to the question of statutory interpretation of the decision. An issue as to the meaning of "mutilates" in s 45 of the Crimes Act 1. A2, KM and Mr Vaziri have each pleaded not guilty to charges under the Crimes Act 1900 (NSW): female genital mutilation contrary to s 45(1)(a) and, in the alternative, assault occasioning actual bodily harm in company, contrary to s 59(2). 2. The relevant provision of s 45 is: "45 Prohibition of female genital mutilation (1) A person who: (a) excises, infibulates or otherwise mutilates the whole or any part of the labia majora or labia minora or clitoris of another person, or (b) … is liable to imprisonment for 21 years." 1. A2 and KM are charged as principals and Mr Vaziri is charged as an accessory after the fact with the alleged mutilation of the clitoris of a child, identified as C1, between specified dates and of the clitoris of another child, identified as C2, between other specified dates. 2. Johnson J had been involved in this matter for some weeks dealing with a number of pre-trial applications. At the time the matter came before this Court, it was anticipated that empanelment of a jury would occur on Monday 7 September 2015. The trial was anticipated to run for four weeks. 3. According to the judgment in question (at [2]) the parties persuaded his Honour that a particular issue was of significance to the proceedings generally and requested that it be dealt with as a matter of priority. His Honour acceded to that request. His Honour described the issue as follows: "[3] This issue concerns the directions to be given to the jury, in the circumstances of the present case, concerning the meaning of certain words in s.45 Crimes Act 1900. In particular, attention was focused upon the meaning of the words 'otherwise mutilates' in s.45(1). [4] In the circumstances of this case, the Court was satisfied that it was appropriate to deal with this topic as a pretrial issue. In doing so, the Court is not considering an application for the exceptional remedy of a permanent stay based upon a claim that the charges are foredoomed to fail: Agius v R [2011] NSWCCA 119; 80 NSWLR 486 at 490 [15]-[19]. Nor is the Court engaging in a process of fact finding in advance of the trial or seeking to determine whether the Crown has a case that should be left to a jury: Doney v The Queen [1990] HCA 51; 171 CLR 207 at 212, 214-215. [5] Rather, the Court is construing relevant words in s.45, a legal function, with some reference to evidence to be adduced in the trial to provide some context, meaning and understanding to the elements of the s.45 offence in this case. This is being done to aid the formulation of directions to be given to a jury concerning the elements of the offence." 1. His Honour outlined the competing submissions of the parties as follows: "[110] The Crown submits that any physical injury to any extent to the female genital organs, which is done for non-medical reasons, can amount to mutilation for the purposes of s.45. The Crown submits that a nick or cut to the genitalia for the purposes of FGM is capable of falling within the concept of mutilation in s.45. The Crown says that, at the very least, the procedure performed by KM on C1 and C2 was a cutting or nicking (including pricking or piercing) of the clitoris so as to be capable of falling within the terms of s.45. The Crown submits that the jury should be directed that any injury to any extent for non-medical reasons falls within the meaning of 'mutilation' for the purpose of s.45 Crimes Act 1900. [111] Mr Sutherland SC, for A2 and Mr Vaziri, and Mr Bouveng, for KM, joined in a submission that a jury should be directed that the word 'mutilates' in s.45 means to cut off, destroy, or alter radically a part of the body, in the present case (given the terms of the Indictment), the clitoris." 1. His Honour then set out his consideration of the issue before expressing his conclusion ("the ruling") as follows: "[272] For the reasons expressed in this judgment, I am satisfied that the jury should be directed at the trial of the Accused persons, with respect to the word 'mutilates' in s.45(1)(a) Crimes Act 1900, in accordance with the submission advanced by the Crown." Was the proposed appeal competent? 1. A fundamental issue in this proceeding was whether the ruling of Johnson J set out above is an "interlocutory judgment or order" that is amenable to appeal under s 5F(3) of the Criminal Appeal Act. Senior counsel for the applicants A2 and Vaziri clarified at the outset of the hearing that he sought to establish that the Court had jurisdiction because the matter concerned an interlocutory "judgment", as opposed to an "order". 2. In AF v R [2015] NSWCCA 35 I set out the following concerning the meaning of "interlocutory judgment or order" in s 5F: "[30] In R v F [2002] NSWCCA 125; 129 A Crim R 126, an appeal by both Crown and accused on a joinder/severance issue which arose as a consequence of evidentiary rulings, Wood CJ at CL said the following about the jurisdiction of this Court under s 5F: '[10] Essential to a review under s 5F of the Criminal Appeal Act is the existence of an 'interlocutory judgment or order'. A wide range of matters have been held to fall within the ambit of this expression, including orders for, or refusal of, separate trials (R v Saunders and R v Georgiou (1999) NSWCCA 125). However, rulings on the admissibility of evidence have been held not to be interlocutory judgments or orders within the meaning of the section: R v Powch (1988) 14 NSWLR 136, R v Rogerson (1990) 45 A Crim R 253, R v Steffan (1993) 30 NSWLR 633 and R v Bailey (1988) 36 A Crim R 30; save where the consequence of the judgment is to rule out all of the Crown evidence leaving it without a case: R v Bozatis and Spanakakis (1997) 97 A Crim R 296. [11] The distinction, it seems, depends in the case of a judgment, upon it determining the proceedings, or at least an identifiable part of them, and being capable of entry in the records of the Court: R v Steffan at 636; or in the case of an order, upon it amounting to a command that something be done or not done: The King v Snow (1915) 20 CLR 315 at 324, 361, and Steffan at 636. In Steffan it was said that it was not immediately self-evident how a ruling upon the admissibility of evidence could answer either description. Additionally it was noted that an evidentiary ruling lacks finality, in that it can be changed in the course of the trial.' [31] It has been acknowledged that there is no bright line test for discriminating between judgments or orders, on the one hand, and rulings which do not constitute judgments or orders, on the other. After referring in this respect to the judgment of Sheller JA in R v Lethlean (1995) 83 A Crim R 197, Gleeson CJ continued in his judgment in R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 at 303 as follows: 'King CJ, in Legal Practitioners' Complaint Committee v A Practitioner (1987) 46 SASR 126 drew a distinction between judgments or orders and what he called "incidental rulings". A judgment or order, he said, is a 'judicial act which decides the question or one of the questions which is raised for decision in the particular proceedings'. However, rulings also decide questions. It is the character of the question, and the effect of the decision, that makes the difference. One of the reasons given for denying to a ruling on evidence, in the ordinary case, the quality of a judgment or order is that it can be changed during the course of the proceedings. It lacks finality. It does not require a decision of an appellate court to reverse it; at least in theory the judge can be persuaded to alter it. In Commonwealth v Mullane (1961) 106 CLR 166 the High Court had to consider whether a decision under review, which involved a ruling on a point of law, amounted to a judgment, decree, order or sentence. In a passage at 169, cited by Sheller JA in Lethlean, the court said: 'What his Honour did was simply to give a ruling on a point of law which was raised. It did not conclude the rights of the parties before the hearing of the case was completed. The County Court judge might have altered his mind, he might have ruled otherwise, he might have qualified his ruling, there was no determination.'" [Emphasis added.] 1. Senior counsel submitted that the authorities recognise that it is necessary to have regard to substance rather than form. This may be accepted as Gleeson CJ said in the passage from R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 at 303 extracted above that: "it is the character of the question, and the effect of the decision, that makes the difference". See also R v Cheikho [2008] NSWCCA 191; 75 NSWLR 323 at [25] (Spigelman CJ). 2. Senior counsel emphasised that the ruling by Johnson J followed a detailed assessment of evidence and submissions and that the reasons are lengthy and considered; the judgment itself running to 85 pages or 273 paragraphs. That, with respect, is an irrelevant consideration. The judgment of the Court (Hunt CJ at CL, Grove and Sharpe JJ) in R v Steffan (1993) 30 NSWLR 633 included an observation that a ruling on the admissibility of evidence may be accompanied (as it was in that case) by elaborate reasons which have been expressed in a document called a "judgment". But that involved an entirely different usage of the word "judgment" and was concerned with the reasons which have been expressed rather than the formal act of the court. 3. Emphasis was placed upon the fact that the issue as to the meaning of "mutilates" in s 45(1)(a) is "unique" and not the subject of any binding authority. It was submitted that if it had been determined in the applicants' favour, it might have led to the making of applications for orders that would be clearly amenable to appeal pursuant to s 5F(3), such as for a stay of proceedings on the basis that, having regard to the evidence available to the Crown, the prosecution was foredoomed to fail: see, for example, Walton v Gardiner (1993) 177 CLR 378. However, contemplating what might have followed if the ruling had been other than what it was is a distraction. 4. Senior counsel sought to characterise the ruling as "categorical" and suggested there was some significance in it concerning a point which he described as being "of extreme importance to the trial". Again, however, the importance of the ruling for the trial is not a relevant matter, at least in the context of this case. In W O v Director of Public Prosecutions (NSW) [2009] NSWCCA 275 at [59], Basten JA (Fullerton and McCallum JJ agreeing) said the following about pre-trial rulings that may concern important issues in a trial and appeals against interlocutory judgments or orders: "The fact that rulings may affect the outcome does not provide a sufficient basis for permitting an interlocutory appeal. If an appeal were available in such circumstances, many rulings on evidence and disputed directions to the jury would become the potential subject of an interlocutory appeal. That the phrase 'interlocutory judgment or order' in s 5F does not extend so far is well-established." [Emphasis added] 1. The significance of the issue the subject of the ruling explains why Johnson J was prepared to accede to the request of the parties to deal with it as a pre-trial issue. But the fact that it was determined pre-trial, whereas most rulings on the manner in which a jury will be directed are made during a trial, does not convert the ruling into something which it is not. Senior counsel for the applicant conceded that an application for leave to appeal pursuant to s 5F(3) would not be an option if the ruling had been made during the trial. 2. The ruling was akin to the decision of the trial judge that was held by this Court not to be an interlocutory judgment or order in W O v Director of Public Prosecutions (NSW). In that case, the trial judge determined prior to empanelment of a jury whether an offence of attempting to have sexual intercourse without consent (s 61P of the Crimes Act) was an offence of specific intent which would impact upon the relevance of the accused's intoxication at the relevant time. Her Honour also ruled on whether s 61HA of the Crimes Act (which is concerned with knowledge about consent in relation to certain sexual assault offences) applied. The judge ruled that the offence was not a crime of specific intent and that the provisions of s 61HA applied. Basten JA (Fullerton and McCallum JJ agreeing) held: "[30] Although in the present case the judgment given by the trial judge will no doubt have consequences in respect of the admissibility of evidence at a later stage in the trial, assuming it is not varied, it was not in terms a ruling on the admissibility of specific evidence. Rather, it should be characterised as a preliminary determination of certain questions of law which were anticipated as likely to arise in the course of the proceedings. In that respect, this case bears similarities to R v Adamson [2005] NSWCCA 7 and Regina v Piper [2005] NSWCCA 134." 1. R v Adamson [2005] NSWCCA 7 was also concerned with an application for leave to appeal pursuant to s 5F against a pre-trial ruling that a particular offence was not one of specific intent for the purpose of the intoxication provisions in Pt 11A of the Crimes Act. It was held by Spigelman CJ (Dunford and Hidden JJ) that: "[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." 1. R v Piper [2005] NSWCCA 134 was concerned with a ruling on the admissibility of evidence in relation to a proposed defence of mental illness. It was an appeal by the Crown pursuant to s 5F(2) but still turned on whether the ruling was an "interlocutory judgment or order". The Crown had objected to proposed psychiatric evidence on the basis that the offence in question did not require proof of a guilty intent and therefore a defence of mental illness was not available. Greg James J (Spigelman CJ and Studdert J agreeing) referred to R v Adamson and continued: "[10] That decision sat squarely within a long line of authority, which included R v Steffan (1993) 30 NSWLR 633 and R v Neil Joseph Lethlean (1995) 83 A Crim R 197, in which latter decision are set out a number of the cases concerning rulings on the admissibility of evidence being held not to found a right of appeal under s 5F(2) or (3). Particularly those cases include: Powch (1988) 14 NSWLR 136; Rogerson (1990) 45 A Crim R 253 and Steffan (supra). In Lethlean (supra), the court's attention was drawn to an early seminal case in the High Court of Australia R v Snow (1915) 20 CLR 315, concerning what was said to be an error at trial and its ability to be corrected by the High Court. On an application for special leave regard was had to the terms "judgment or order" in legislation and in the Constitution. The Court of Criminal Appeal held, consonant with that decision that a ruling on admissibility does not answer the statutory requirements for appeal under section 5F (3). [11] In R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 the Crown brought an appeal pursuant to s 5F (2) against what were said to be interlocutory judgments or orders, and the court examined, in some detail, the ambit of the term 'judgment or order'. Allowing for a rare case where a ruling on evidence, which might form the basis of a stay of proceedings, or would have the effect of determining the fate of the prosecution case, as being possibly the subject of a s 5F appeal, the court held that a mere ruling lacks the quality of finally determining the rights of the parties such as to partake of being a judgment or order. It held that it is only where the Crown is effectively refused the opportunity to make a case against a respondent that such a decision is properly to be categorised as a judgment or order coming within the scope of s 5F(2). That decision and the line of authority that was examined in Lethlean (supra) to me makes clear that what occurred here, even though the trial judge was examining the ambit of a legal doctrine possibly applicable, was concerned with the rejection or admission of evidence in the defence case, so that his decision did not fall within any such exception to how rulings on evidence are to be regarded so that the right of appeal for which the Crown contends under s 5F(2) exists." 1. On the characteristic of a judgment or order being "final" (R v Bozatsis and Spanakakis at 303), senior counsel submitted that there were types of interlocutory judgments or orders that have been found to be amenable to an appeal pursuant to s 5F(3) that could be reconsidered during the course of a trial and potentially changed. He cited, as an example, a ruling in respect of a subpoena. The case counsel had in mind was not stated but he mentioned the name of the trial judge, Norrish QC DCJ. A search of Caselaw reveals only one such case meeting that description: KS v Veitch [2012] NSWCCA 186. That case, however, concerned an application for leave to appeal pursuant to s 5F(3AA) which is not concerned with interlocutory judgments or orders. Another case which did concern an appeal pursuant to s 5F(2) in relation to a subpoena is Attorney General for New South Wales v Stuart (1994) 34 NSWLR 667. It does not assist the applicants. It concerned a ruling by a magistrate in committal proceedings rejecting a claim of public interest immunity asserted in answer to parts of a subpoena served upon the Commissioner of Police and thereby requiring the Commissioner to produce the documents to the court. Hunt CJ at CL explained (at 673) why the ruling amounted to an interlocutory order: "An order to a stranger to the proceedings that documents be produced to the court following the rejection of a claim of public interest immunity is one which commands the stranger to do something. It may be entered in the court record, and action may be taken upon it in the event that it is disobeyed. For myself, I have no doubt that is an interlocutory order with the meaning of s 5F." 1. During the course of submissions, senior counsel found it necessary to concede in response to questioning from the bench that it was open to Johnson J to modify the direction he has indicated he will give to the jury. He contended, however, that this was only a hypothetical possibility. The concession, nonetheless, was fatal. Conclusion 1. The ruling of Johnson J as to how he would direct the jury as to the meaning of "mutilates" for the purposes of an offence in s 45(1)(a) of the Crimes Act is not a judgment. It did not determine the proceedings or an identifiable part of them and is not capable of being entered in the records of the court: R v Steffan (1993) 30 NSWLR 633 at 636. It lacks finality as, at least in theory, it can be changed: R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 at 303. It was in the nature of a ruling on a question of law: Commonwealth v Mullane (1961) 106 CLR 166 at 169. 2. Moreover, what his Honour did was only to outline in very broad terms the nature of the direction he presently proposes that he will give to the jury. The detail of the direction will undoubtedly be formulated and refined in the light of the evidence and submissions in the trial. 3. For these reasons it is abundantly clear, in my respectful view, that the pre-trial ruling as to the meaning of "mutilates" in s 45(1)(a) of the Crimes Act and the indication that the judge will direct the jury accordingly is not an interlocutory judgment (or order) that is amenable to appeal pursuant to s 5F(3) of the Criminal Appeal Act. Order 1. It is for the foregoing reasons that I joined in the order of the Court that the application for leave to appeal be refused. 2. BELLEW J: I agree with R A Hulme J. ********** 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: 13 November 2015