The Queen v Watson [1999] NZCA 110; [1999] 3 NZLR 257; (1999) 16 CRNZ 678 (29 July 1999)

Last Updated: 1 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND CA237/99

THE QUEEN

V

SCOTT WATSON Hearing: 29 July 1999

Coram: Richardson P Gault J Thomas J

Appearances: P J Davison QC and J C Pike for Crown

B Davidson, N Levy and I M Antunovic for Respondent

Judgment: 29 July 1999

_{JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P}

[1] The short point argued before us today is whether the court has jurisdiction after a trial has started to hear an application under s379A for leave to appeal against a ruling of the trial Judge as to the admissibility of evidence.

The essential background

[2] On 15 December 1998 Mr Scott Watson was committed for trial on two charges of murder. On 12 April 1999 the Crown filed an application under s344A for a pre-trial ruling as to the admissibility of certain evidence proposed to be called at trial. The application was part heard on 5 and 6 May and a decision in respect of those matters was given on 13 May 1999. They were not appealed. On 8 June the balance of the application was heard and the decision reserved. On 10 June

Mr Watson was arraigned and the jury was empanelled. On 24 June, in the course of the trial which is expected to take three months, Heron J gave the decision in respect of which the Crown on 5 July 1999 filed the present application for leave to appeal.

The appeal jurisdiction

[3] Prior to trial a Judge may be called on to give rulings on a wide range of matters. And in the course of the trial the Judge may be required to rule on questions of the admissibility of evidence and other matters which may arise.

[4] As an appellate court created by statute our jurisdiction is confined to matters for which a right of appeal is provided for by statute. Some rulings are appealable under s379A; others are not. The legislation contemplates that where a ruling which is not within the defined and limited appeal provisions of s379A is given, the trial will then proceed but that in appropriate cases the matter may be reviewed by way of appeal against conviction or as a question of law reserved at the request of the prosecutor or the accused (R v B [1995] 2 NZLR 172, 180) . In R v Coleman [1996] 2 NZLR 525 Henry J, delivering the judgment of a court of five Judges, said at

527-528:

There are good reasons for confining the availability of s379A and restricting appeals against pretrial rulings. The importance of trials being processed expeditiously is now well recognised. The achievement of that aim is not helped by the proliferation of pretrial applications, sometimes not designed to that end, and the need to accommodate subsequent appeals if the intermediate right to appeal is generally available. Further, issues which are not within the strict confines of s379A may well require an assessment of fairness and overall justice which can best be undertaken in the context of a trial. Section 379A has no doubt been drafted carefully so as to avoid its very purpose being frustrated.

[5] Similarly, where a ruling is susceptible to appeal under s379A but an application is not brought, in appropriate cases the matter may be reviewed in this court by way of appeal against conviction (s383) or as a reserved question of law (s380).

Section 379A

[6] Section 379A(1) and (2) list 14 categories of rulings coming within the provisions of the section. The Crown relies on para (aa) of subs (1) and the relevant provisions for present purposes are s379A(1), (4) and (6) which read:

(1) At any time before the trial either the prosecutor or the accused person, with the leave of the Court of Appeal, may appeal to that Court--

(aa) Against the making of an order under section 344A of this Act, or against the refusal of a Judge to make such an order:

(4) Where a person desires to obtain the leave of the Court of Appeal to appeal to that Court under this section, he shall give notice of his application for leave to appeal in such manner as may be directed by rules of Court within 10 days after the decision of the [Court or Judge] is given, irrespective of whether reasons for the decision are given at a later date and irrespective of whether any formal steps to sign, enter, or otherwise perfect the decision are necessary or are afterwards taken.

(6) Notwithstanding that an application for leave to appeal under subsection (1) (aa) of this section has been made, the Court may, if it is satisfied that it is in the interests of justice to do so, proceed with the trial without awaiting the determination of the application.

The s344A point

[7] The first question is whether a ruling on admissibility given after the trial has started, following a pre-trial hearing, is an order under s344A. That section provides for the making of an application "at any time before the trial ... for an order to the effect that the evidence is admissible" (s344A(1). And subs (4) provides that: "Nothing in this section nor in any order made under this section shall affect the right of the prosecutor or the accused to seek to adduce evidence that he claims is admissible during the trial". The subsection recognises the reality that it is quite possible that the material at trial may be different to a greater or lesser degree from the pre-trial material ruled on or in its wider context may be seen in a different light or that further considerations of law or fact may justify revisiting admissibility. As the Court of Criminal Appeal of New South Wales said in R v Steffan

(1993) 30 NSWLR 633, 639, rulings on evidence may always be altered. They may be altered because the circumstances in which the ruling was first made have altered, or simply because the Judge has had a change of mind.

[8] In R v Grace [1989] 1 NZLR 197, 199, this court per Barker J observed that "s379A(6) of the Crimes Act 1961 gives a discretion to a trial Judge, when his or her pre-trial admissibility ruling is to be challenged, to proceed with the trial 'if it [the Court] is satisfied that it is in the interests of justice to do so' "; and the ensuing discussion proceeded on the premise that the ruling would be given and a decision then made as to whether the trial would be adjourned to allow a s379A appeal or whether, in the interests of justice, the trial would proceed. And the Practice Note issued by the Chief Justice on 12 February 1990 proceeds on the footing expressed in para 4 that s344A may be used "to decide issues of admissibility pre-trial".

[9] On that approach any ruling given after the trial started, whether the argument as to admissibility was heard before or during the trial, would be reviewable in an appropriate case after trial on an appeal against conviction or as a question of law reserved. But because the point was not fully argued before us today and we have reached a clear view on the primary jurisdiction question we do not have to reach a final view on this s344A point.

Section 379A: discussion

[10] Counsel for the Crown submitted that if time remains to hear and determine the matter in a manner helpful to the trial process it would be appropriate to do so and, if necessary, the trial Judge may consider adjourning the trial, as indeed is proposed in this case. He suggested that there was a gap in the law if s379A(1) is literally applied, invoked Northland Milk Vendors Association Inc v Northern Milk Ltd [1988] 1 NZLR 530, and suggested that a phrase should be imported into s379A(1) to the effect that "other than in any case where a s344A decision is given after the trial has commenced, at any time before trial ...".

[11] In oral amplification of the written submissions Mr Pike emphasised that the language of the opening words of s379A(1) was "before the trial" not "before the trial

commenced" and submitted that they could properly be read as meaning "before or during the trial". That would recognise, he said, that where the ruling on admissibility had practical effect during the trial rather than at the outset it could be appropriate, particularly in a long trial, to have a pre-trial ruling to hear evidence called during the trial reviewed on appeal during the trial.

[12] In plain terms s379A(1) (and it is repeated in s379A(2)) confines the right of appeal to cases where "at any time before the trial either the prosecutor or the accused", with the leave of the Court of Appeal, appeals to that court. Subsection (4) assumes that pre-trial rulings should be able to be given sufficiently in advance of the trial to allow 10 days to seek leave to appeal. Clearly, too, pre-trial issues such as change of venue and joinder of counts and accused may require a significant lead time between decision and trial. Subsection (6) goes on to provide that in a s344A matter, notwithstanding that an application for leave to appeal has been made, the court may proceed with the trial without awaiting the determination of that application. It presupposes that to come within s379A the application must be made before the trial starts. As well, it forecloses any appeal in such a case against the refusal of the Judge to rule on the s344A application. It also follows that where a timely application is made but in the overall interests of justice the court proceeds with the trial, the applicant, whether the prosecutor or the accused, is left to his or her post-trial remedies.

[13] We are sympathetic to the pressures on the Judge and other participants in trials as highlighted by this case but we are satisfied that the language and scheme of s379A are too clear to allow the expansive meaning urged on us by the Crown. As Salmon LJ, delivering the judgment of the Court of Appeal in R v Collins [1971] QB 710, 714 responding to an argument for appellate jurisdiction in that case, said: "even if we agree with [counsel] that it would be desirable that we should have the powers to which he refers, we cannot call them into existence by assuming them". To accede to the Crown's submission would involve legislating, not interpreting s379A. When that section was originally enacted and before the 1980 amendment included pre-trial admissibility rulings under s344A, the controlling words "at any time before a trial" could only have meant before the trial started, given the rulings to

which the appeal rights applied, such as change of venue and joinder of counsel or accused.

[14] Applied across the board to all of the paragraphs, those words must continue to have the same meaning in their application to pre-trial admissibility rulings. Further, if Parliament addressed its attention to the question of the jurisdiction of the court under s379A to hear appeals during trial it would have to consider the boundaries of the jurisdiction given the need to ensure the expeditious disposal of trials without unjustifiable disruptions to hear applications.

[15] For the reasons given we hold that the court has no jurisdiction to hear the application. That does not, of course, preclude the trial Judge from revisiting the ruling in question if circumstances make it desirable to do so in the interests of justice.

Solicitors

Crown Law Office, Wellington

Greig Davidson Gallagher & Co, Wellington, for respondent