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Cook v The Queen

Cook v The Queen

Case [2019] VSCA 87 16 April 2019

Interlocutory Orders

Admissibility of Evidence

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0209

MICHAEL CALVERT COOK	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 April 2019
DATE OF JUDGMENT:	16 April 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 87
JUDGMENT APPEALED FROM:	DPP v Cook (Unreported, County Court of Victoria, Judge Gucciardo, 3 October 2018)

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CRIMINAL LAW – Interlocutory appeal – Pending trial for causing injury to two prison officers – Applicant, by choice, to be self-represented at trial without counsel or solicitor appointed by Victoria Legal Aid – Filed indictment contains charges different from those upon which the applicant was committed for trial – Whether trial judge erred in refusing a permanent stay of proceedings – Whether trial judge erred in admitting photographic evidence where photographer could not recall taking one of the photographs in a bundle – Whether trial judge erred in refusing an order under s 197 of the Criminal Procedure Act 2009 that Victoria Legal Aid provide the applicant with $5,000 to purchase a suit and for other expenses – Leave to appeal refused – Interlocutory appeal against a refusal under s 197 is incompetent – Term ‘legal representation’ in s 197 is not broad enough to embrace the provision of clothes, stationery and similar – Dietrich v The Queen (1992) 177 CLR 292; Vasilou v The Queen [2014] VSCA 22; Victoria Legal Aid [1998] 4 VR 517; Victoria Legal Aid v Beljajev [1999] 3 VR 764 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr P A Stefanovic	Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA:

Introduction

An indictment filed in the County Court charges Michael Calvert Cook, the applicant, with two charges of intentionally causing injury (charges 1 and 3), and, alternatively, recklessly causing injury (charges 2 and 4). The prosecution alleges that on 9 October 2016, when he was a prisoner at Barwon Prison, the applicant caused injury to two prison officers, Alessandro Pantano (charges 1 and 2) and Divye Ratan (charges 3 and 4).

The applicant has chosen to represent himself at trial. He has not sought to have counsel or solicitor appointed by Victoria Legal Aid (‘VLA’) represent him.

For the purposes of this application it is unnecessary to describe the prosecution case in detail. It is enough to say that it is alleged that the applicant struck both Mr Pantano and Mr Ratan several times to the head. Photographs allegedly depicting their injuries were taken the same day.

When the matter came before the trial judge on 1 October 2018, the applicant sought: first, an order under s 197 of the Criminal Procedure Act 2009 (‘CPA’), that he be provided with $5,000 by VLA so that he could buy clothing and stationery, arrange for the attendance of a fellow prisoner as a ‘McKenzie friend’,[1] and obtain an expert medical witness; secondly, an order that certain photographs be excluded from evidence; and,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cook v The Queen

Details

AGLC: Michael Calvert Cook v The Queen [2019] VSCA 87
Case: [2019] VSCA 87
Decision Date: 16 April 2019

CaseChat Overview and Summary

Cook has appealed against a decision of the County Court of Victoria, which refused him leave to make an interlocutory appeal from an earlier decision. Cook is facing trial for causing injury to two prison officers. He has elected to represent himself at trial, foregoing legal representation by counsel or a solicitor provided by Victoria Legal Aid. The issues before the Court of Appeal were whether the County Court judge erred in refusing a permanent stay of the proceedings, in admitting photographic evidence where the photographer could not recall taking one of the photographs, and in refusing to order Victoria Legal Aid to provide Cook with $5,000 for a suit and other expenses. The Court of Appeal considered that an interlocutory appeal against a refusal under section 197 of the Criminal Procedure Act 2009 is not available. It also found that the term ‘legal representation’ in section 197 does not include the provision of clothing and stationery, and that the Court should not have admitted one of the photographs because the photographer could not recall taking it. However, the Court found that these errors did not justify a permanent stay of the proceedings. The Court accordingly dismissed the appeal.

Orders