and CJD v The Queen
[2012] VSCA 329
•21 August 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2012 0177 | |
| CJD | Applicant |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | BUCHANAN and OSBORN JJA | |
WHERE HELD: | MELBOURNE | |
DATES OF HEARING: | 21 August 2012 | |
DATE OF JUDGMENT/ORDER: | 21 August 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 329 | |
JUDGMENT APPEALED FROM: | DPP v CJD (Unreported, County Court of Victoria, Judge Gucciardo, 15 August 2012) | |
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APPLICATION FOR REVIEW OF REFUSAL TO CERTIFY UNDER
SECTION 295(3)
APPLICATION FOR LEAVE TO APPEAL AGAINST INTERLOCUTORY DECISION
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G J Traczyk | Serratore Legal Pty Ltd |
| For the Crown | Mr R A Elston SC with Ms J L Piggott | Mr C Hyland, Solicitor for Public Prosecutions |
BUCHANAN JA:
I invite Osborn JA to deliver the first judgment.
OSBORN JA:
Section 295(2) and (3)(a) of the Criminal Procedure Act 2009 provide:
(2)Subject to this section, a party to a proceeding referred to in subsection (1) may appeal to the Court of Appeal against an interlocutory decision made in the proceeding if the Court of Appeal gives the party leave to appeal.
…
(3)A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies—
(a)if the interlocutory decision concerns the admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case …
In the present case, the trial judge has refused to certify that evidence, comprised by certain answers in the accused’s record of interview, if rendered inadmissible would eliminate or substantially weaken the prosecution case.
Section 296 provides that a refusal to certify may be reviewed by the Court of Appeal.
In turn, s 296(4) provides:
(4) On a review under subsection (1), the Court of Appeal—
(a)must consider the matters referred to in section 295(3); and
(b)if satisfied as required by section 297, may give the applicant leave to appeal against the interlocutory decision.
Section 297(1) and (2) provide:
(1)Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to—
(a)the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b)whether the determination of the appeal against the interlocutory decision may—
(i)render the trial unnecessary; or
(ii)substantially reduce the time required for the trial; or
(iii)resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv)reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and
(c) any other matter that the court considers relevant.
(2)The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.
The ruling here in issue was made just prior to the empanelment of the jury on 15 August 2012. The indictment contains 15 charges of alleged criminal conduct by the accused against his former de facto, being two charges of common law assault; nine charges of intentionally causing injury; one charge of making threat to kill; four charges of stalking; and one charge of rape.
When interviewed with respect to the charge of rape, the accused, among other things, said:
(1) ‘She did say stop and I didn’t until I blew’ (answer 124).
(2) ‘[She] told me to stop’ (answer 129).
(3) ‘She didn’t really – she said no’ (answer 181).
(4) ‘And has told me to, sort of, stop towards the end, but I never’ (answer 183).
(5) ‘She did sorta, say, “stop”. As she sorta said “stop”, I was as good as done’ (answer 203).
(6) ‘To her saying “no”, sorta “no” to me going a little bit harder, like, into one of them – two of them no, to blowing’ (answer 209).
(7) ‘She did say “stop” and I didn’t, no’ (answer 402).
It was submitted on behalf of the accused to the trial judge that these were in effect admissions of rape in the second sense contemplated by s 38(2)(b) of the Crimes Act 1958, namely:
(2) A person commits rape if - …
(b)after sexual penetration he or she does not withdraw from a person who is not consenting on becoming aware that the person is not consenting or might not be consenting.
On the other hand the answers could not (it was submitted) be regarded as admissions of rape in the first sense identified by s 38(2)(a):
(2) A person commits rape if -
(a)he or she intentionally sexually penetrates another person without that person’s consent –
(1)while being aware that the person is not consenting or might not be consenting; …
It was further submitted that if the evidence were admitted it would not be possible to frame appropriate directions to the jury ensuring that it was not used in effect to convict the accused of an offence with which he was not charged. In my view, this submission was misconceived. The evidence was admissible as evidence tending to confirm:
(a) that the complainant did say ‘no’; and
(b) that the accused did have non-consensual intercourse with the complainant.
As the trial judge said:
The accused has given a different version of the interaction between the parties but has nevertheless referred to the incident in issue and has proceeded, in answers to questions, to in effect make admissions to rape on this very occasion.[1]
[1]T66-7.
Further, the trial judge subsequently invited the prosecution to frame an alternative charge relying both on s 38(2)(a) and (b). His Honour held to proceed otherwise would be ‘discreditable’.[2] This amendment has now occurred. In my view, the evidence is directly probative of the alternative formulated under s 38(2)(b) and, as I have said, might properly be regarded as indirectly probative of the charge under s 38(2)(a) when coupled with the evidence comprised in the Crown case as a whole.
[2] Reid v R (2010 VSCA 234, [26] per Nettle, Harper and Hansen JJA.
I turn then to the question whether the trial judge was correct to refuse to certify pursuant to s 295(3)(a) of the Criminal Procedure Act 2009. It is submitted on behalf of the accused that without the alleged admissions the prosecution case depends entirely on the jury accepting the uncorroborated allegations of the complainant and the exclusion of the alleged admissions would substantially weaken the prosecution case. There is some tension between this submission and the basis on which exclusion of the evidence was initially sought. Moreover, as the trial judge noted, the Crown case with respect to the alleged rape relied on the following evidence:
(a) the complainant’s evidence;
(b) the complaint to her boyfriend the day after the alleged rape;
(c) pretext calls in which the accused made what might be regarded as admissions of guilt to the rape, the accused saying among other things ‘and I tried to be a sex machine and it turned into a rape that went wrong’, ‘I’m so upset. I’ve never done anything like that towards you before, or any girl’;
(d) tendency evidence of physically overpowering violence towards the complainant; and
(e) the record of interview.
In my view, the trial judge was correct to conclude that the Crown case was a strong one without the admissions.
Nevertheless, the better view is that a Crown case may still be strong following the exclusion of evidence, but that does not mean it has not been ‘substantially weakened’.[3] As Spigelman CJ said in Shamouil,[4] ‘even a case which is otherwise likely, even very likely, to succeed, may still be “substantially weakened”, if evidence of cogency or force is withheld.’
[3]ZL v The Queen [2010] VSCA 345 (per Nettle JA, [15]-[19] with whom Bongiorno JA and Ross AJA agreed).
[4]R v Shamouil (2006) 66 NSWLR 228, 234 [37].
For present purposes, I will assume that it is at least arguable that the exclusion of the evidence would ‘substantially weaken’ the prosecution case in the relevant sense.
Nevertheless, the s 297 considerations make it clear that leave should not be granted.
The overarching test for the grant of leave to appeal against an interlocutory decision is whether it is in the interests of justice to do so. It is convenient to deal with this question by reference to the stipulated statutory factors:
(a) the trial process has only just begun and is not advanced to a point which renders its progress a material factor;
(b) the point in issue, however determined, will not render the trial unnecessary; or
(c) substantially reduce the time required for the trial;
(d) nevertheless, the point raises an issue of evidence which the accused submits is necessary for the proper conduct of the trial; and
(e) it is further submitted will reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial;
(f) the residual considerations invoked by s 297(1)(c) properly include a consideration of the question whether the point raised has any seriously arguable merit.[5]
[5]R v DG [2010] VSCA 173 (Buchanan, Weinberg and Bongiorno JJA).
In the present case, no leave to appeal should be granted because:
(a) as counsel for the accused concedes, the first premise of the accused’s submission to the trial judge has been removed by the amendment of the indictment;
(b) the evidence is directly relevant to the alternative charge of rape and no discretionary basis for its exclusion arises with respect to that claim;
(c) for the reasons I have explained, the evidence is also relevant to the initial charge of rape in that it constitutes admissions, first, that the complainant said ‘no’ and, secondly, that the accused had non-consensual intercourse with her and those admissions are capable of being regarded as tending to confirm the truth of the prosecution case as a whole;
(d) insofar as (despite its relevance to the initial charge) it was submitted to the trial judge that the admission of the evidence would unfairly prejudice the accused, that argument is deprived of all force if the evidence is admissible in any event with respect to the alternative charge. Further, I do not accept that a trial judge could not properly direct a jury that insofar as s 38(2)(a)(1) was concerned the evidence could only be used as part of the circumstantial evidence as a whole.
In my view, it is not seriously arguable that the evidence should be excluded pursuant to either s 135 or s 137 of the Evidence Act 2008 in respect of either of the alternative charges of rape and accordingly, in my view, the applications should be refused.
BUCHANAN JA:
I agree. The order of the Court is that leave to appeal is refused.
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