Dilan Avalos (a pseudonym)[1] v The Queen - [2020] VSCA 56

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0032

DILAN AVALOS (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]Because this is an interlocutory appeal, a pseudonym has been used in place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.

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JUDGES:	PRIEST, NIALL and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 February 2020
DATE OF ORDERS:	28 February 2020
DATE OF REASONS:	19 March 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 56
JUDGMENT APPEALED FROM:	DPP v [Avalos] (Unreported, County Court of Victoria) Judge Riddell, 18 February 2020)

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CRIMINAL LAW – Interlocutory Appeal – Evidentiary ruling – Pending trial of applicant for rape, intentionally causing injury, making threats to kill, and making threats to inflict serious injury – Multiple complainants – Tendency notice filed by prosecution – Whether evidence of non-consent cross-admissible in relation to credibility of each other complainant – Tendency evidence admissible – Application for certification – Trial judge refused to certify – Decision not attended by sufficient doubt to warrant certification – Trial judge’s evidentiary ruling plainly correct – Application to review refusal to certify refused – Phillips v The Queen (2006) 225 CLR 303 and Jacobs (a pseudonym) v The Queen [2017] VSCA 309 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr P A Chadwick QC with Ms K Rolfe	Robyn Greensill & Associates
For the Respondent:	Dr N Rogers SC with Ms S Clancy	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA

NIALL JA
WEINBERG JA:

Introduction

On 28 February 2020, this Court heard an application to review a trial judge’s refusal to certify under s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’), and for leave to appeal against an interlocutory decision of that judge.

As will appear, we considered the judge’s ruling to be plainly correct. There was no occasion for the judge to certify under s 295(3)(b) of the CPA. At the conclusion of oral argument, the Court made orders to the effect that the application to review the judge’s refusal to certify was refused. In those circumstances, leave to appeal against the interlocutory decision cannot be granted.

The Court indicated that reasons for that decision would be published in due course. These are those reasons.

Background facts

The applicant faces trial in the County Court on an indictment charging him with rape[2] (eight charges — charges 1, 2, 3, 10, 11, 14, 17 and 18); intentionally causing injury[3] (six charges — charges 5, 6, 8, 9, 12 and 15); common assault (two charges — charges 4 and 13); making threats to kill[4] (two charges — charges 7 and 16); and making threats to inflict serious injury[5] (two charges — charges 19 and 20). The charged offences are alleged to have been committed against four complainants, all of whom were former intimate partners of the applicant.
[2]Crimes Act 1958, s 38(1) (‘Crimes Act’).
[3]Crimes Act, s 18.
[4]Crimes…

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 Dilan Avalos (a pseudonym)[1] v The Queen

Details

AGLC: Dilan Avalos (a pseudonym)[1] v The Queen [2020] VSCA 56
Case: [2020] VSCA 56
Decision Date: 19 March 2020

CaseChat Overview and Summary

The matter before the court was an interlocutory appeal by the applicant, Dilan Avalos, against the refusal of the trial judge to certify for appeal an evidentiary ruling. Avalos was awaiting trial for serious charges including rape, intentionally causing injury, and making threats to kill. The prosecution had filed a tendency notice seeking to introduce evidence of non-consent from multiple complainants to challenge the credibility of each other. The trial judge ruled that such evidence was admissible as cross-admissible tendency evidence. Avalos applied to the court for certification to appeal this ruling, which was refused by the trial judge. The court was required to determine whether the trial judge's decision not to certify was correct.

The central legal issue was whether the trial judge's ruling on the admissibility of cross-admissible tendency evidence was plainly correct, and thus not warranting certification for appeal. The court considered the principles outlined in Phillips v The Queen and Jacobs (a pseudonym) v The Queen, which establish that certification should only be granted if there is sufficient doubt about the correctness of the trial judge's decision. The court found that the trial judge had correctly applied the relevant legal principles in determining the admissibility of the tendency evidence. The evidence was relevant to the credibility of each complainant, and the potential prejudice to the applicant did not outweigh its probative value.

In light of the above, the court held that the trial judge’s decision not to certify the evidentiary ruling was not attended by sufficient doubt to warrant certification. The court concluded that the trial judge’s reasoning was sound and the ruling was plainly correct. The application for certification was therefore refused. The court emphasised the importance of ensuring that only cases with significant legal issues are certified for appeal to prevent unnecessary delays and resource use in the judicial system.

No further orders were made beyond the refusal of the application for certification. The case serves as a reminder of the stringent criteria that must be met for a trial judge's decision to be certified for appeal, particularly in complex evidentiary matters.

Orders