Andrew Vasilou v The Queen

[2014] VSCA 22

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0022

ANDREW VASILOU	Appellant
	v
THE QUEEN	Respondent

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JUDGES	NEAVE and BONGIORNO JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 February 2014
DATE OF JUDGMENT	11 February 2014
MEDIUM NEUTRAL CITATION	[2014] VSCA 22
JUDGMENT APPEALED FROM	Rulings of Judge Hampel, 3 February 2014, County Court of Victoria.

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INTERLOCUTORY APPEAL – Review of refusal to certify – Trial almost complete – Rulings attacked not arguably appealable – No justification for certification – Application refused – Criminal Procedure Act 2009 ss 295, 296, 297 – No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Applicant in person
For the Respondent	Mr G J C Silbert SC with Ms S Coombes	Mr C Hyland, Solicitor for Public Prosecutions

THE COURT:

1. The applicant, Andrew Vasiliou, seeks leave to appeal against a refusal of a County Court judge to grant a certificate for an interlocutory appeal pursuant to s 295(3)(b) of the Criminal Procedure Act2009 (‘the Act’). The application relates to rulings made by the trial judge on 3 February 2014. In the first ruling, her Honour refused to grant the applicant a stay of the proceeding on the grounds of his ill health, the stress imposed as a self-represented accused and his inability to pay for a taxi to court each day. In the second ruling, the trial judge refused Mr Vasiliou's further application for a grant of legal aid under s 197 of the Act, an earlier application having been refused by Judge Morrish on 23 December 2013.

1. The applicant now wishes to review these decisions under s 296 of the Act. The grounds that the applicant puts forward are:

1.The trial cannot proceed without proper and legal representation by an experienced legal lawyer.

2.That if the trial goes ahead without the necessary legal representation, such hearing without legal and procedure assistances would cause major health issues against Andrew Vasiliou including unfair and unjust trial also.

3.Also there a question of travelling costs that Andrew Vasiliou, he lacking to pay due to the fact that he receives no income from any source either.

1. On 20 November 2010, the applicant was arrested and charged with theft of a soap product from a supermarket and reckless conduct endangering life.  The latter charge alleged that he dangerously reversed his car towards the manager and loss protection officer of the supermarket from which the soap was allegedly removed. The matter was initially listed to be heard in the summary jurisdiction of the Magistrates' Court but the applicant elected to have it heard in the County Court before a judge and jury.

1. It was not until 8 December 2013 that the applicant applied for legal aid. On 17 December, the applicant was advised that legal assistance would be refused because his application did not meet the merits test and that if he wished it to be considered he needed to provide further information about this financial circumstances.  The matter did not fall within the legal aid guidelines for the grant of aid which apply where a person chooses a trial by jury where the offence could have been determined summarily in the Magistrates' Court. Victoria Legal Aid (VLA) refused his application.

The County Court

1. On 18 December 2013, the applicant applied to Judge Hannan in the County Court for the listing of an application under s 197 of the Act for an order that he be granted legal aid. Her Honour ordered that the matter be listed to be heard by Judge Morrish on 23 December 2013. At that hearing, VLA submitted that the merits of the case did not justify the grant of aid and that her Honour should not be satisfied that the applicant could not afford private representation. Judge Morrish dismissed the application, rejecting the argument that Mr Vasiliou would not receive a fair trial if he were unrepresented. She noted that Mr Vasiliou could renew his application at any stage if he could demonstrate that his trial would be unfair if he were not represented.

1. On 3 February 2013, the matter came before Judge Hampel for trial. The applicant made a further application for the court to order a grant of legal assistance under s 197 as well as an application to stay the proceedings because of his ill health and financial position. Judge Hampel refused the s 197 application and the application for a stay and also refused to certify that the decision was of sufficient importance to justify it being determined on an interlocutory appeal under s 295(3) of the Act.

The Appeal

1. Because Mr Vasiliou's trial has commenced, s 295(3) of the Act applies. This section requires a party seeking leave to appeal to satisfy the court that the interlocutory decision is such that the subject of the proposed appeal was not reasonably able to be identified before the trial or that the party was not at fault in failing to identify the issue. The applicant did not satisfy the requirements of the section.

1. In relation to the stay application, Judge Hampel accepted that Mr Vasiliou had health problems but rejected the argument that they would be such as to justify the extreme step of staying his trial either temporarily or permanently, it having been running for some time.  Her Honour noted that Mr Vasiliou could be assisted by giving him breaks during the trial and she also noted that no medical evidence had been filed in support of the claim that the matter should not continue. We note that Mr Vasiliou has appeared for himself on many previous occasions in various forms of litigation.  It clear from the trial transcript that he declined to call his doctor to court to support his claim of ill health.

1. Judge Hampel also rejected Mr Vasiliou's argument that he would be unable to make the journey by public transport each day from Caulfield to the Court for both financial and health reasons, and that he was not in a financial position to pay the $32 it would cost him each time he made the journey by taxi.  Her Honour noted that while the applicant might experience difficulties travelling to and from the court, these difficulties did not justify the grant of a stay. There is no error in her Honour's reasoning in any of these matters.

1. Her Honour also rejected the argument that legal representation should be ordered because Mr Vasiliou had shown further deterioration in his health since Judge Morrish's ruling.  Her Honour noted that at the time of that ruling, Mr Vasiliou had said that he was satisfied with the ruling and believed it was fair. Her Honour noted that both the prosecutor and the judge would have a duty to assist him in the conduct of his defence.

1. In refusing the certify the orders she made as appropriate for interlocutory appeal, her Honour noted that because neither decision concerned the admissibility of evidence, she had to be satisfied under s 295(3)(b) of the Act that each of the decisions was otherwise of sufficient importance to the trial to justify certification. She considered that this requirement had not been satisfied because neither application ever had any real chance of success. We agree with that conclusion.

1. As her Honour noted in an addendum to her refusal to certify, Mr Vasiliou no longer takes issue with the evidence that he went to the supermarket and drove away in his car.  This fortified her correct view that there was no proper basis for certification of the rulings challenged as being appropriate for interlocutory appeal.

1. In the course of this hearing, s 297(2) has been referred to. This section requires that this Court must not give leave to appeal after a trial has commenced unless the reasons for doing so clearly outweigh any disruption to the trial. If the trial was to proceed without the Court reviewing the various rulings which Mr Vasiliou seeks to attack, he would not be in any way prejudiced. If he is acquitted by the jury, the matter will be thus ended. If he is convicted, he will have the right to seek leave to appeal his conviction so as to challenge any of the rulings now under attack or, indeed, any other ruling that has been made in the course of the trial. If by being so convicted he suffers a miscarriage of justice, such application will succeed and he will be entitled to appropriate relief in this Court. In either event, he will not be disadvantaged by being refused leave now to bring interlocutory appeals.

1. Counsel for the Crown have informed us that the trial is reaching a point where there is only one Crown witness to be heard, whereupon Mr Vasiliou will be called upon to put his defence if he wishes, following which there will be addresses and the judge's directions to the jury. Thus the trial has reached a situation where it could be said to be almost over. In the circumstances there is no basis whatsoever for deciding that the reasons given by Mr Vasiliou so clearly outweigh the disruption which will be caused to the trial by granting his application. The requirements of s 297(2) are not fulfilled, nor are the requirements of s 295(3)(c) that the matters could not have been identified before the trial.

1. In the circumstances the application is refused.