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


  1. Hi Caen, I agree with your general concern about the lousy quality of ex tempore judgments in in interlocutory appeals. But I don't share your concern about the correctness of this particular one. Actually, I'm shocked that the DPP even brought this argument.

    I completely share the VCA's intuition (and not yours?) that allowing any appeal from an acquittal is a fundamental change to Victorian law. In other jurisdictions (notably NSW), specific legislation has been passed to allow such appeals under the rubric of repeal of the double jeopardy rule, in the midst of detailed, explicit debate about their merits. The NSW law is subject to an express 'question of law alone' constraint, which several courts have ruled is crucial to its constitutionality. That's, of course, a similar constraint to the one you propose, but it's not a constraint that otherwise applies to the interlocutory appeals regime.

    Given that (and anyway), I think it would be horrible if it turned out that the Parliament changed the rule when it enacted the Criminal Procedure Act, where no-one made any reference to such a change. I'm surprised the VCA didn't refer to the Statement of Compatibility, which specifically addressed Charter s. 26 (right against retrial following final acquittal) and stated: "There are no provisions in the bill that raise this right. The pleas of autrefois convict and autrefois acquit (which are the primary procedural protection of this right) are specifically referred to in clause 220 (although the language has been modernised)". Section 220(3) also seems to me to be a complete answer to the DPP's argument. That is, even if the interlocutory appeal was allowed, there could be no answer to a plea of autrefois acquit at any retrial.

    As you say, ' 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. ' BEFORE, not after. You may be right that that's a bad policy constraint, but that's a debate about double jeopardy and the issue should be explicitly raised in that context, as it was in NSW.

    Finally, I'm not sure you're right that the law recognised that the jury had to the power to convict in the face of a direction to acquit: see R v LK [2010] HCA 17, [31], [88].

    Disagreements aside, any idea why this only just got released? There's an earlier decision from the same case at [2011] VSCA 263 that has been online for some time. The facts described there give some hint of why the matter was no cased, though it's also clearly a tricky case indeed.

  2. Hi Jeremy,

    I agree that allowing an appeal against an acquittal would be a fundamental change, but I disagree with the particular application of that notion here. I also agree that it was surprising that the DPP bothered to bring the appeal - It must always have been a long shot to think an appellate court is going to overturn a trial judge's decision about a no case submission.

    As Bongiorno JA recognised here, the full rigour of the rule has only applied to trials on indictment and it seems to me that the logical basis for a distinction is the presence of a jury.

    Once the Criminal Procedure Act took the jury out from the process of entering a directed acquittal, the deference to the jury rationale for judicial restraint about interfering with an acquittal fell away. If s241(2) did not exist and the process was still governed by the common law, I would expect that a decision to direct a jury to return an acquittal could be challenged on an interlocutory appeal, like any other direction to the jury. It is, then, surprising that the effect of that section (which has the good policy basis of removing the farce of a judge telling the jury that it must return a particular verdict, rather than the judge doing so him or herself) is to carve out from the otherwise exceptionally broad definition of 'interlocutory decision' a decision of this character.

    I also tend to favour your argument that the same result could be achieved by focussing on the timing of the decision. That is, the only decision that is available to be challenged is the decision to enter a verdict of acquittal and due to the operation of sections 220, 241 and common law principles of double jeopardy, it is not possible to separate the decision to enter the verdict from the act of entering the verdict, and that entry cannot be reversed even by a superior court. This gives appropriate weight to the process laid down in section 241 which treats the decision to enter an acquittal and the consequent entry of that acquittal as linked - Under view, there is no chance to interupt the interlocutory decision before it has definitive legal consequences. Then, the challenge would be whether it is correct to aggregate the decision and the entry, and the there is a hint of this issue in the judgment at [7] when Bongiorno JA refers to a decision "which, without more, must lead to the acquittal ". But to say that a decision under s241(2)(b) is not an "interlocutory decision" is in my view to adopt an unbelievably strained meaning of the definition of an interlocutory decision.

    As far as the LK point goes, I cannot currently find the cases I was thinking of when I wrote this post - But I do remember reading a number of mid to late 19th century UK decisions that look at the question of just what a judge is to do if a jury refuses to comply with an instruction to return a directed acquittal and I thought the result was that the court just needed to persevere until the end of the trial. Now, I suspect there is the procedural solution of discharging the jury and, regardless of whether I can find those old decisions, LK is a clear modern statement of the correct position under Australian law.

    Finally, the release of the decision only now is very surprising and I have no idea why the court needed to wait 5 months.

  3. That analysis all seems correct.

    I agree that a direction under s241(2)(b) is clearly a 'decision made by a judge'. But maybe it can still be argued that it isn't a decision 'before or during the trial', but rather at the end of the trial. After all, sentencing orders (presumably) aren't interlocutory decisions, so the 'trial' (for the purposes of interlocutory appeals) must have stopped at the verdict. And that's what s242(3) says a 241 decision is. Of course, it'd be better if that was part of the VCA's reasoning.

    BTW, for an example of how the regime for appeals against directed acquittals is going in NSW, see here: http://www.smh.com.au/nsw/twice-acquitted-now-its-triple-jeopardy-20120324-1vqvx.html and http://www.dailytelegraph.com.au/news/sydney-jeweller-philip-leung-to-face-trial-for-third-time-over-death-of-partner-mario-guzzetti/story-e6freuy9-1226309217912.