Regina v Natoli

[2005] NSWCCA 292

CITATION:	Regina v Natoli [2005] NSWCCA 292
HEARING DATE(S):	17 August 2005
JUDGMENT DATE:	17 August 2005
JUDGMENT OF:	Sully J at 1; Hulme J at 11; Hall J at 12
DECISION:	Application for leave to appeal refused.

LEGISLATION CITED:	Criminal Appeal Act 1912 Crimes Act 1900 (NSW)
CASES CITED:	Prasad (1979) 23 SASR 161
PARTIES:	Regina John Natoli
FILE NUMBER(S):	CCA 2005/1519
COUNSEL:	P. Barrett - Crown P. Fisher - Appellant
SOLICITORS:	D.P.P. NSW - Crown Roderick Storie - Appellant

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	04/11/1265
LOWER COURT JUDICIAL OFFICER:	Backhouse ADCJ

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2005/1519

SULLY J
HULME J
HALL J

17 August 2005

REGINA v John NATOLI

Judgment

1 SULLY J: Mr John Natoli brings, pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912, an application for leave to appeal against what is said to have been an interlocutory order or judgment made or given by her Honour Backhouse ADCJ in the District Court at Sydney.

2 There is current before her Honour a trial upon indictment with a jury. Two accused have been jointly arraigned upon The indictment. They are arraigned in these terms: that on or about 1 November 2003 at a stated place they did maliciously inflict grievous bodily harm upon a named victim while each of the two accused was in the company of the other.

3 Such an offence contravenes s 35(2) of the Crimes Act and is, put simply but sufficiently for present purposes, to be understood as an aggravated form of the offence otherwise provided for by section 35(1) of the Crimes Act.

4 The trial commenced on the 2nd of this month; the jury was empanelled on the 3rd of this month. The trial has proceeded to the point where the closing address of the Crown has concluded and where the closing defence address has commenced but has not concluded. A very brief adjournment has been afforded by her Honour the trial Judge in order that the present application might be brought urgently before this Court.

5 It is submitted in support of the application for leave to appeal that the indictment is defective in law. No application to quash the indictment has been made; and in my view, in the absence of such application properly adjudicated, there is no interlocutory order or judgment in connection with the indictment as such, which it would be proper to allow to be brought up under s 5F.

6 In support of the present application there has been filed a notice which contains, in some 59 numbered paragraphs, a series of complaints about various aspects of the way in which the current trial has been conducted. It is said, in particular and in the oral submissions which the Court has heard this morning, that the learned trial Judge wrongly refused a defence application for a ruling that there was no case to answer; wrongly refused to intervene on the basis of an unfair Crown opening, although there was no application, as in such a case there certainly should have been, for a discharge of the jury; wrongly refused a Prasad direction both at the end of the Crown case and again at the end of the defence case; and refused to intervene at the end of a Crown closing address said to have been "pregnant with error".

7 It is trite that this Court will not interfere with the orderly progress of a first instance trial in the absence of wholly exceptional circumstances. That is a well entrenched position of the Court of Criminal Appeal; and its rationale is a proposition of high public policy: that is to say, the proposition that too freewheeling an interference by the Court of Criminal Appeal with a current trial at first instance, so far from promoting the rule of law and doing justice according to law, would promote a situation of curial and forensic chaos.

8 For myself, it suffices to say that I see nothing in the material that has been placed before this Court which would justify a finding that the given facts and circumstances have about them so particular, so exceptional, a character as would justify this Court in now intervening in a District Court trial which is in any event almost over.

9 Should it be that there is substance in any of the complaints that have been made about the conduct of the trial; and should it be that there is a conviction following upon a verdict of guilty returned by the jury; then the simple position is that on due cause being shown, the Court of Criminal Appeal will quash the conviction and order a new trial; and justice will be done in the new trial according to law as laid down by the Court of Criminal Appeal when dealing with errors in the first trial.

10 For myself I am wholly unpersuaded that there is any requirement of justice so exigent as to justify interference by this Court. I would refuse the application for leave to appeal.

11 HULME J: I agree.

12 HALL J: I also agree.

13 SULLY J: That is the order of the Court.

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