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sets out the right of appeal against interlocutory decisions. An interlocutory decision is defined in clause 3. It is defined broadly to avoid technical arguments about what judgments or orders and other types of decisions are capable of being appealed. This clause applies to proceedings in the County Court or the Trial Division of the Supreme Court for the prosecution of an indictable offence and allows a party to appeal, with leave, to the Court of Appeal against an interlocutory decision made in the proceeding. However, a party cannot seek leave to appeal a decision on the admissibility of evidence unless that evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case. Subclause (3) limits a party's ability to seek leave to appeal after the trial has commenced without the judge who made the interlocutory decision certifying the following matters—
with respect to an appeal of a decision on the admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case or, in any other case, the interlocutory decision must be of sufficient importance to the trial to justify it being determined on an interlocutory appeal. The words "is otherwise of sufficient importance" in (3)(b) confirm that a decision which passes the evidential threshold in (3)(a) will inevitably pass the sufficient importance test;
if the interlocutory decision is made after the trial commences the relevant issue must not have been reasonably able to be identified before the trial or the party must not have been at fault in failing to identify the relevant issue.
The requirement for certification is designed to reflect the desired balance between hearing appeals that are genuinely likely to reduce overall delays and avoiding the fragmentation of individual trials without good reason. Restricting access to appeals during trials encourages earlier resolution of important issues pre-trial. Certification in accordance with this clause is a necessary but not sufficient step for a grant of leave to appeal and the Court of Appeal must still grant or refuse leave based on the factors in clause 297. The new sections 15A and 15B of the Appeal Costs Act 1998 in Part 9.6 of the Bill apply to interlocutory appeals.