- Section 5F of the Criminal Appeal Act 1912 (NSW) provides for interlocutory appeals to the Court of Criminal Appeal.
- Parties should consider whether the ruling sought to be appealed constitutes a ‘judgment’ or ‘order’ for the purposes of the section.
- Parties should address the competency of their appeal in their written submissions and be prepared to address the issue before the Bench.
Section 5F of the Criminal Appeal Act 1912 (NSW) (‘the Act’) provides for interlocutory appeals to the Court of Criminal Appeal (CCA) from judgments or orders made in indictable proceedings in the District and Supreme Court (including committal proceedings). The Attorney-General and Director of Public Prosecutions (DPP) have a right of appeal under this section (s 5F(2)) and other parties to proceedings may appeal with leave of the CCA (s 5F(3)(a)), or if the judge or magistrate certifies that the judgment or order is a proper one for determination on appeal (s 5F(3)(b)).
Before filing an appeal under section 5F, it is important to consider whether the appeal is competent; that is to say, whether the CCA has jurisdiction to hear the matter under the relevant section. The key to understanding whether s 5F is an appropriate vehicle for the issue at hand is the phrase ‘judgment or order’. For an appeal under s 5F to be competent, the appeal must relate to a ruling that constitutes an ‘interlocutory judgment or order’ for the purposes of the section.