Dertilis v The Queen - [2010] VSCA 360

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0439

STEPHEN DERTILIS
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE and BONGIORNO JJA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 December 2010
DATE OF JUDGMENT:	13 December 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 360

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CRIMINAL LAW – Interlocutory appeal –- Application for review of refusal to certify – Applicant tried jointly with co-accused – Whether evidence to be led against co-accused would unfairly prejudice applicant – Whether jury should have been discharged – Whether separate trials should have been ordered – Decisions of trial judge not attended by sufficient doubt – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr L C Carter with Mr S K E Anger	Cameron Marshall & Associates
For the Crown	Mr G Silbert SC with Mr J B B Lewis	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

I invite Bongiorno JA to deliver the first judgment.

BONGIORNO JA:

This application for leave to appeal pursuant to s 297 of the Criminal Procedure Act 1999 concerns two decisions of his Honour Judge Tinney sitting in a trial in the County Court at Ballarat. The applicant, Stephen Dertilis, is being tried together with a co‑accused, Zarb, on one count of aggravated burglary and one count of intentionally/recklessly causing serious injury. This trial is the second trial of this presentment, the first having been aborted by the then trial judge, Judge Howard, in circumstances to which reference will be made. The decisions now sought to be appealed are, first, a refusal to discharge the jury without verdict and, secondly, consequent upon the first, a refusal to grant the applicant a separate trial.

The trial commenced on 6 December 2010 with the accused being arraigned and a jury empanelled. It then proceeded until a witness, one Galvin, who was serving a prison sentence, was called. Galvin gave substantive evidence concerning the case against the accused and was then asked to describe something which happened in a prison van in which he, Dertilis and Zarb were being brought to court during Dertilis and Zarb’s committal hearing of the charges the subject of their trial. He said that when he got into the van, presumably at the place of his incarceration, he realised that the two people he was to give evidence against were also in the van. The prosecutor had expected, and presumably hoped, that Galvin would give evidence of a conversation between him and Zarb upon which the Crown would rely as an implied admission of guilt, it being in the nature of a threat to Galvin not to implicate him when giving his evidence. He did not expect Galvin’s evidence to mention Dertilis, much less describe him as someone he, Galvin, was going to give evidence against.

The applicant, who was not implicated in Zarb’s alleged threatening conduct towards Galvin, but who was mentioned in front of the jury as being present in…

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 Dertilis v The Queen

Details

AGLC: Dertilis v The Queen [2010] VSCA 360
Case: [2010] VSCA 360
Decision Date: 13 December 2010

CaseChat Overview and Summary

The case of Dertilis v The Queen involved an interlocutory appeal by the applicant, who was tried jointly with a co-accused in the Supreme Court of Victoria. The central issue was whether the evidence that was to be led against the co-accused would unfairly prejudice the applicant. The applicant argued that the evidence against the co-accused could potentially prejudice the jury against him, thereby affecting the fairness of his own trial. The appeal was brought before the Court of Appeal to review the refusal to certify the case for appeal. The legal issues before the court included whether the jury should have been discharged and whether separate trials should have been ordered to prevent potential prejudice.

The Court of Appeal carefully considered the submissions and evidence presented. It was determined that the trial judge's decisions were not attended by sufficient doubt to warrant an appeal. The court found that the trial judge had appropriately weighed the risks of prejudice against the efficiency and fairness of conducting a joint trial. The evidence against the co-accused, while potentially prejudicial, did not rise to the level where a discharge of the jury or a separate trial was necessary. The court held that the trial judge's handling of the matter was within the bounds of reasonable decision-making, and thus, the application for review was refused.

In light of the above, the Court of Appeal upheld the trial judge's decisions and dismissed the applicant's application for review. The court's reasoning was grounded in the balance between the need to avoid prejudice and the practicalities of conducting joint trials. The final orders of the court were that the application for review be refused, and the trial would proceed as originally determined by the trial judge. This decision underscored the importance of judicial discretion in managing complex trials and the deference owed to trial judges in such matters.

Orders