New South Wales Consolidated Acts

CRIMINAL APPEAL ACT 1912 - SECT 5F

5F Appeal against interlocutory judgment or order

(1) This section applies to--

(a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and

(b) proceedings under sections 97 and 99 and Division 9 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 , and

(c) proceedings in Class 5 of the Land and Environment Court's jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979 ).

(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.

(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.

(3AA) A person who is not a party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against a decision in those proceedings to grant leave under Division 2 of Part 5 of Chapter 6 of the Criminal Procedure Act 1986 or a determination in those proceedings that a document or evidence does not contain a protected confidence within the meaning of that Division, if the person is--

(a) a person who, because of the leave, is required to produce a document or adduce evidence that contains a protected confidence, or

(b) a protected confider in relation to a protected confidence that may be produced or adduced because of the leave, or

(c) a person who claims the document or evidence does, despite the determination, contain a protected confidence in relation to which the person is a protected confider.

(3AB) An appeal under subsection (3AA) may be made whether or not an appeal has been made by a party to the proceedings, but only if--

(a) the Court of Criminal Appeal gives leave to appeal, or

(b) the judge or magistrate of the court of trial certifies that the decision is a proper one for determination on appeal.

(3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case.

(4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.

(5) The Court of Criminal Appeal--

(a) may affirm or vacate the judgment, order, decision or ruling appealed against, and

(b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against.

(6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.

(7) A person may not appeal to the Court of Criminal Appeal under this section against an interlocutory judgment or order if the person has instituted an appeal against the interlocutory judgment or order to the Supreme Court under Part 5 of the Crimes (Appeal and Review) Act 2001 .