Tuesday, July 31, 2012

When is a decision not a decision

The pressures of time on appellate judges create incentives for resolving cases quickly and delivering judgments, where possible, at the close of hearing. These ex tempore judgments obviously cannot have the benefit of the same level of reflection as reserved judgments, and can be forgiven for being not as sophisticated in their reasoning. After all, they provide the parties with the speedy and authoritative resolution of the issue they have brought to the court. But DPP v Singh seems to me to take that too far.

One of the innovations of the Criminal Procedure Act 2009 was to introduce interlocutory appeals. As indicated rather loosely in the second reading speech,
An interlocutory appeal essentially brings forward an issue that may otherwise become part of a post-conviction appeal or a DPP reference following an acquittal.
The procedure hinges on an 'interlocutory decision', which is defined as
a decision made by a judge in a proceeding referred to in section 295(1), whether before or during the trial, including a decision to grant or refuse to grant a permanent stay of the proceeding.
This definition is incredibly broad, as the Attorney-General acknowledged and, in a comparison to the equivalent process in NSW, "avoids technical arguments about the nature or description of the decision in question, for example, whether the decision was a ‘judgement’ or ‘order’".

Indeed, on its face, it is hard to conceive of a broader definition. Previously, I had thought that it captured any decision a judge could possibly make in a trial, with the safeguards against it being too broad provided by section 295, which limits interlocutory appeals to appeals against what may be described as significant decisions. It certainly seemed on its face broad enough to capture the decision described in section 241(2)(b):
(2) If
(b) at the close of the case for the prosecution, the trial judge decides that there is no case for the accused to answer in respect of a charge on the indictment-
the trial judge may discharge the jury from delivering a verdict on the charge and instead direct that an entry of not guilty be made on the record in respect of that charge.
Note that the section itself describes the process as being that a judge decides that there is no case to answer.

Despite this, the Court of Appeal held in Singh that this decision is not amenable to an interlocutory appeal, saying:
7 The Crown case is that the definition of ‘interlocutory decision’ in combination with the rights of interlocutory appeal conferred by the CPA are sufficiently wide to confer on the Crown a right of appeal in respect of a ruling which, without more, must lead to the acquittal of an accused on a charge to which the ruling refers. But the Crown, in this State, has never had a right of appeal in respect of an acquittal ― at least following a trial on indictment. To construe the definition such that a right of appeal has now been conferred would effect a fundamental change to the criminal justice system. Despite the width of the definition in s 3, there is no indication in the second reading speech or the Explanatory Memorandum accompanying the legislation to suggest that Parliament intended such a change of fundamental principle. That a change of fundamental principle must be expressed in irresistibly clear language is abundantly clear from a consideration of the numerous authorities on the point.
This demand for unmistakably clear language seems bizarre when the Act is read as a whole. The whole structure of the interlocutory appeal process is to ensure that wrong decisions are trial can be challenged on an interlocutory appeal before they result in any definitive legal consequences. To subject the definition of interlocutory decision to a fetter that it doesn't mean a decision to acquit when there is no textual basis in the legislation for retaining that fetter is to take the principle of legality too far. Similarly, the expressio unias argument the court makes at paragraph 9, which seeks to draw significance from the closing words of the definition "including a decision to grant or refuse to grant a permanent stay of the proceeding" is an invitation for unwieldy legislative drafting, as Parliament has already expressly overridden one common law authority which could have limited the scope of interlocutory appeals and now it is invited to expressly overrule another.

In my view, the better solution would have been to impose House v The King style fetters on the review of the decision (or whatever we call the process of engaging s241(2)(b), since Singh implicitly establishes that this decision is not, to use the language of section 3 "a decision") to accept a no case submission. This inevitably involves assessments of fact and degree which an appellate court would not lightly overturn. By avoiding that approach by adopting a strained reading of the legislation which limits the definition by words that are not present on its face, the court is preserving the potential for a judge to make a decision on a no case submission that is plainly wrong and for which the Crown has no remedy. The fact that this has always been the way has little to commend it on a level of policy. It also neglects the significant change the Criminal Procedure Act introduced by taking the final decision to acquit away from the jury and putting it in the hands of the judge. While it would have been a brave jury that rejected a judge's direction to acquit, the law recognised that the jury had this power. With this circuit breaker removed, there is no protection at all against a plainly wrong decision to enter a directed acquittal