Regina v Li [2002] NSWCCA 215

New South Wales Court of Criminal Appeal

CITATION : Regina v Li [2002] NSWCCA 215 FILE NUMBER(S) : CCA 60080/02 HEARING DATE(S) : 22 May 2002 JUDGMENT DATE : 22 May 2002

PARTIES : Alan Siu Lun Li (Appellant) Regina (Cth) (Respondent) JUDGMENT OF : Ipp AJA at 1; Dunford J at 7; Burchett AJ at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 99/11/0532 LOWER COURT JUDICIAL Shadbolt DCJ OFFICER :

COUNSEL : P Bodor QC and G Stanton (Appellant) K A Chapple (Crown/Respondent) SOLICITORS : J Rigg (Appellant) Commonwealth DPP (Crown/Respondent)

LEGISLATION CITED : Criminal Appeal Act 1912, s 5F(3) CASES CITED: Regina v Matovski (1989) 15 NSWLR 720 DECISION : Leave to appeal refused.

IN THE COURT OF CRIMINAL APPEAL 60080/02

IPP AJA DUNFORD J BURCHETT AJ

Wednesday 22 May 2002 REGINA (CTH) v ALAN SIU LUN LI Judgment 1 IPP AJA: In this matter I ask Burchett AJ to deliver the first judgment. 2 BURCHETT AJ: This is an application for leave to appeal from an interlocutory decision in a criminal prosecution pending in the District Court. Shadbolt DCJ, whose order is sought to be challenged, dismissed an application "for a permanent stay of the indictment to be presented against the [applicant]". 3 Leave is required by s 5F(3)(a) of the Criminal Appeal Act 1912. In Regina v Matovski (1989) 15 NSWLR 720, this Court dealt with a similar application, though the circumstances said to support it were different. When refusing leave, Gleeson CJ (with whom Lee CJ at CL and Grove J agreed), referred to the Court's discretion exercisable in the interests of justice, but added (at 723): "Equally, however, it is necessary to attend to the statutory requirement that leave be granted where an appeal against an interlocutory judgment is contemplated by a party to proceedings other than one of the persons mentioned in s 5F(2). The present case is not in my view one in which leave to appeal should be granted. I can see no error of law or discretionary principle in the reasons for judgment of the learned trial judge. He took a particular view of the facts after hearing detailed evidence and argument and it seems to be a view of the facts which was at least open to him. The case is not one in which in my view the interests of justice require intervention by this Court at this stage and I would propose that the application for leave to appeal be dismissed." 4 The applicant's counsel here quite properly concedes: "Clearly, it was open to his Honour to find the facts that he did."

To that should be added that the findings, based on oral evidence and lengthy cross-examination, led directly to the dismissal of the application for a stay. In that situation, leave would not generally be appropriate. Counsel urged that the interlocutory decision, if left standing, will impede the applicant's defence at trial. But I do not accept that this is so. 5 In my opinion, leave should be refused. 6 IPP AJA: I agree. 7 DUNFORD J: I also agree. 8 IPP AJA: The order of the court will be that leave is refused.

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