Aaron Bryant (a pseudonym)[1] v The Queen

[2016] VSCA 147

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0088

AARON BRYANT (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification of the applicant, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant

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JUDGES:	REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	10 June 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 147
JUDGMENT APPEALED FROM:	DPP v [Bryant] (Unreported, County Court of Victoria, Judge Maidment, 28 April 2016)

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PRACTICE AND PROCEDURE — Criminal proceeding — Interlocutory appeal — Application to review judge’s refusal to certify pursuant to Criminal Procedure Act 2009, s 296 — Application referred by Registrar to Court for dismissal under rule 2.13(1)(b) of the Supreme Court (Criminal Procedure) Rules 2008 — Application manifestly hopeless — Application dismissed.

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APPEARANCES:	Counsel	Solicitors
No appearances

REDLICH JA

PRIEST JA:

1. By a notice dated 3 May 2016, ‘Aaron Bryant’ seeks leave to appeal against an interlocutory decision of Judge Maidment made 28 April 2016, in which his Honour refused to stay a trial pending in the County Court.  The ground of appeal is:  ‘The County Court Judge erred in his decision made on 28/4/2016 to reject my Application for a stay of proceedings and the remitting of the proceeding back to the Magistrates Court for a fresh Committal Hearing dated 04/04/2016’.[2]

   [2]The ground is reproduced as it appears in the notice.

1. Pursuant to rule 2.13(1)(b) of the Supreme Court (Criminal Procedure) Rules 2008, the Registrar has referred the application for dismissal in accordance with rule 2.03(2).  By virtue of rule 2.03(2)(b), two Judges of Appeal are empowered to dismiss an application for leave to appeal if it is appropriate to do so.

1. The application for leave to appeal is, in our view, manifestly hopeless.  It is thus appropriate to ‘dismiss’ it without the necessity of further submissions, written or oral.

1. In brief compass, on 28 July 2014 Mr Bryant was charged with a number of offences which allegedly occurred the two days previously.  There were 12 charges laid, including attempted murder, reckless conduct endangering life, intentionally causing injury, recklessly causing injury, assault, threat to kill, threat to inflict serious injury, assault with a weapon (two summary charges), possess a controlled weapon (two summary charges) and stalking.  He was committed for trial in the Supreme Court on attempted murder and other charges on 17 April 2015.

1. Subsequently, an indictment was filed in the County Court containing four charges against Mr Bryant: being armed with criminal intent (charge 1);  reckless conduct endangering life (charge 2); attempted kidnapping (charge 3);  and threat to kill (charge 4).  For present purposes, it is enough to observe that the indictment does not contain a charge of attempted murder (which is within the exclusive jurisdiction of the Supreme Court[3]), but charges Mr Bryant with two ‘new charges’ upon which he was not committed — being armed with criminal intent and attempted kidnapping.

   [3]County Court Act 1958, s 36A(1)(c).

1. Mr Bryant contended before Judge Maidment that the proceedings against him in the County Court should be stayed until he has had a further committal on the two new charges.  He argued that s 96 of the Act — which provides that a ‘committal proceeding must be held in all cases in which the accused is charged with an indictable offence’ — entitles him to a committal hearing on the new charges.  His Honour rejected the application for a stay.  He was undoubtedly correct to do so.

1. Section 5 of the Criminal Procedure Act 2009 provides that — as occurred here — a criminal proceeding may be commenced by the filing or signing of a charge sheet.  Section 159 of the Act permits the DPP to file an indictment; and, as s 162 makes clear, ‘[t]he filing of an indictment other than a direct indictment does not commence a new criminal proceeding against the accused’.

1. It is plain that the new charges share the same factual foundation as the attempted murder and other charges upon which Mr Bryant was committed.  Accordingly, a committal proceeding was held with respect to charges for indictable offences that he faced.  The fact that there are two new charges does not alter that fact.

1. Judge Maidment was not persuaded that there was any actual or potential prejudice flowing to Mr Bryant on the basis that the new charges had not been laid when the committal was conducted.  He left open the possibility, however, of conducting Basha[4] hearings (if necessary) should the interests of justice so require.

   [4]R v Basha (1989) 39 A Crim R 337. See also Criminal Procedure Act 2009, s 198.

1. Mr Bryant’s claim that Judge Maidment was wrong to refuse a stay until a committal proceeding was held on the new charges is without merit.  It is thus appropriate to dismiss his application for leave to appeal on the papers, and we do so.