Commonwealth DPP and Stewart Ruling No. 2

[2014] VCC 1416

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-13-01576

Commonwealth Director of Public Prosecutions

v

David James Stewart

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JUDGE:	Cannon
WHERE HELD:	Melbourne
DATE OF HEARING:	25 and 26 August 2014
DATE OF RULING:	27 August 2014
CASE MAY BE CITED AS:	Commonwealth DPP and Stewart Ruling No. 2
MEDIUM NEUTRAL CITATION:	[2014] VCC 1416

RULING No. 2
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Subject:  CRIMINAL LAW

Catchwords: Ruling – Application to certify for Interlocutory appeal pursuant to s.295(3)(a) Criminal Procedure Act 2009 – Application refused

Legislation Cited:                Criminal Procedure Act 2009

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr J. Dickie	Commonwealth DPP
For the Accused	Mr M. Tovey QC with Mr S. Tovey	Stephen Andrianakis

HER HONOUR:

1 This is an application for certification by the Accused for an interlocutory appeal pursuant to s.295(3)(a) of the Criminal Procedure Act2009 in respect of a ruling which I made today, whereby I ruled that evidence of cocaine found on scales at the Accused's premises could be adduced by the Prosecution in a bid to rebut evidence relied on by Defence which, they would argue, indicated the Accused was associated with steroids.

2       The ‘scales evidence’ would be adduced in a bid to counter the ‘steroid evidence’ relied on by the Accused.  The Prosecution concedes that had I ruled otherwise, their case would be substantially weakened, as they would be deprived of an ability to counter Defence’s implied position that the Accused was solely associated with steroids, making it more difficult for the Prosecution to exclude as a reasonable possibility that the Accused believed the parcel which is the subject of Charges 1 and 2 contained steroids rather than cocaine.

3       I accept that, especially given the Prosecution's concession, that the ‘scales evidence’, if ruled inadmissible, would substantially weaken the Prosecution case. 

4       However, although the circumstances of this case may be ‘novel’, as was conceded by Mr Dickie, I have closely considered the way in which the Prosecution seek to use the evidence and their position that it is only in circumstances where Defence rely on the steroid evidence that they would seek to counter with the ‘scales evidence’ which is yet another circumstance in a circumstantial case, in my view.

5       I have considered the matters and arguments at some length in the ruling which I delivered earlier today and I have delivered a ruling of some length which, in my view, comprehensively deals with this pre-trial issue.  Whilst the issue might be somewhat novel, I am not of the view that my ruling is attended with sufficient doubt so as to warrant certification for an interlocutory appeal.

6       I have come to this view because when one analyses what Defence is trying to achieve in this case by reference to the steroid evidence and the Prosecution's entitlement to meet this, it really comes down to an analysis of the respective positions of the parties, and as I have already indicated, my analysis of this is that it is simply a case of the Prosecution being entitled to rebut or seek to rebut evidence that is relied on by Defence.

7       Therefore I refuse to certify.