Nicholson v The Queen [2017] NSWCCA 38

Nicholson v The Queen [2017] NSWCCA 38

There was no interlocutory judgment or order made by the trial judge capable of being subject to interlocutory appeal. The refusal to allow a Basha inquiry lacked the character and legal effect required under s 5F(3) of the Criminal Appeal Act, being merely an indicative evidentiary ruling, not an order with finality or compelling effect.

Parties
Applicant: Bruce Frederick Nicholson; Respondent: The Queen
Jurisdiction
Australia
Judgment Date
14 March 2017
Procedural Posture
Criminal Appeal / Application for Leave to Appeal (interlocutory)
Outcome
Application for leave to appeal dismissed
Legal Topics
Appeals, Interlocutory Orders, Basha Inquiry, Sexual Assault Communications Privilege
Criminal Law Appeals Interlocutory Orders Basha Inquiry Sexual Assault Communications Privilege

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Parties

Bruce Frederick Nicholson

Applicant

The Queen

Respondent

Procedural Posture

Criminal Appeal / Application for Leave to Appeal (interlocutory)

Legal Issues

  1. 1 Whether refusal to permit a Basha inquiry constitutes an interlocutory judgment or order for purposes of s 5F(3) Criminal Appeal Act 1912
  2. 2 Jurisdiction to appeal procedural ruling about witness interrogation prior to trial

Ratio Decidendi

There was no interlocutory judgment or order made by the trial judge capable of being subject to interlocutory appeal. The refusal to allow a Basha inquiry lacked the character and legal effect required under s 5F(3) of the Criminal Appeal Act, being merely an indicative evidentiary ruling, not an order with finality or compelling effect.

Court Disposition

Application for leave to appeal dismissed

Orders

  • Application for Leave to Appeal filed 7 December 2016 be dismissed
  • Application for Leave to appeal filed 1 February 2017 be dismissed