Director of Public Prosecutions v Al Hamza (Ruling No 2)
[2021] VSC 586
•14 September 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2019 0199
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AHMED AL HAMZA |
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JUDGE: | Tinney J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 September 2021 |
DATE OF RULING: | 14 September 2021 |
DATE OF REASONS: | 15 September 2021 |
CASE MAY BE CITED AS: | DPP v Al Hamza (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 586 |
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CRIMINAL LAW – Murder – Ruling that defence response did not comply with legal requirements – Interlocutory appeal to be instituted by accused – Application for certification – Whether decision of sufficient importance to the trial to justify it being determined on an interlocutory appeal – Value judgment about decision – Limited prospects of success at appeal – Certification refused – Frazier v The Queen [2017] VSCA 370; McDonald v DPP (2010) 26 VR 242; Lindsay v The Queen [2021] VSCA 230 considered – Criminal Procedure Act 2009 s 295(3)(b).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms K Churchill with Ms C Foot | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Mr A Sheales with Mr A Chernok | City Legal Group |
HIS HONOUR:
Introduction
The accused is charged with murder. His trial is listed to commence on 18 October 2021.
An issue has arisen as to the adequacy of the defence response filed. I have now ruled on two occasions, most recently on 14 September 2021,[1] that the defence response does not comply with the requirements of s 183 of the Criminal Procedure Act 2009 (‘the Act’).
[1]DPP v Al Hamza (Ruling No 1) [2021] VSC 576.
Mr Sheales, who appears with Mr Chernok for the accused, informed me that there will be an interlocutory appeal in respect of my most recent decision. He requested that I certify under s 295(3)(b) of the Act.
Having heard submissions on both sides, I determined that it would not be appropriate to certify, and I refused to do so. I indicated that I would publish detailed reasons for this decision at a future time. These are those reasons.
The law
Section 295(3) of the Act relevantly provides:
(3)A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies –
(a)if the interlocutory decision concerns the admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case;
(b)if the interlocutory decision does not concern the admissibility of evidence, that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal;
…
In Frazier v The Queen,[2] the Court of Appeal dealt with a review of a refusal of a trial judge to certify under s 295(3)(b) of the Act. The judge had refused a defence application for a stay on the basis that the prosecution had not provided sufficient particulars of the charges. Having made the interlocutory ruling, the trial judge refused to certify, saying that:
the arguments that were put in support of a stay were without merit and I regard the prospects of appeal as hopeless.
[2][2017] VSCA 370 (‘Frazier’).
The Court of Appeal considered that in light of the fact that the arguments put in support of the stay were, indeed, without merit and rightly rejected, the trial judge had been ‘entirely correct’ to refuse to certify. The Court went on to say:
The requirement for certification is no mere formality. Certification is a statutory precondition of the right to seek leave to appeal. As discussed more fully below, the requirement for certification reflects Parliament’s recognition that the judge who made the interlocutory ruling will usually be best placed to decide whether the applicable precondition to certification in s 295(3) of the Act – in this case, whether the subject-matter was ‘of sufficient importance to the trial to justify it being determined on interlocutory appeal’ – is satisfied.
Accordingly, on an application to review a refusal to certify, this Court will ordinarily attach considerable weight to the judge’s decision regarding the applicable precondition. In any case, such an application is governed by the principles in House v The King. Accordingly, appellate intervention is only justified if specific error is established or the Court is persuaded that the decision to refuse certification was not reasonably open in the circumstances.[3]
[3]Ibid [7]-[8] (citations omitted).
The Court in Frazier later observed:
It is, of course, no accident that the responsibility for certification rests with the judge whose ruling is sought to be challenged. Parliament clearly recognised that the judge will usually be in the best position to judge whether the ruling – or, more accurately, the subject-matter of the ruling – satisfies the applicable precondition to certification.[4]
[4]Ibid [29].
In McDonald v Director of Public Prosecutions,[5] the Court of Appeal considered an interlocutory appeal in which the trial judge had refused an application by the accused man to, in effect, quash an indictment charging him with drug offences on the basis that he was an Aboriginal person, and the Parliament did not have power to make laws affecting Aboriginal people. Having made that decision, the trial judge, in spite of his view that an interlocutory appeal would be hopeless, certified under s 295(3)(b) of the Act. In refusing leave to appeal, the Court held that the trial judge should not have certified. Ashley JA, in whose judgment Neave and Redlich JJA agreed, stated:
In my opinion, the court ought not grant leave to appeal in this matter. The arguments which Mr McDonald pursued before the judge below and which he now wishes to pursue again, were – and I intend no disrespect to Mr McDonald – hopeless in law, for the reasons which the judge gave. The interests of justice would not be served by further agitating a point the inevitable resolution of which would not render the trial unnecessary.
…
It is, I think, correct to say that if the judge concludes that the decision meets the statutory description in par (b) – that is, ‘that the decision is…of sufficient importance to the trial to justify it being determined on an interlocutory appeal’ – then the judge must certify. At that point, no question of the exercise of a discretion arises. But in determining whether the circumstances fit the description in para (b), the judge is required, as I see it, to make what may be called a value judgment.
In this case, the judge was rightly of the opinion that an appeal would be quite hopeless. In those circumstances, it could not have been concluded, and should not have been concluded by his Honour, that the decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal. An argument, if accepted, may be such as would render a trial unnecessary. But if the argument is without merit, it cannot be said that it possesses the quality of ‘sufficient importance to the trial’ which is required by para (b).[6]
[5](2010) 26 VR 242 (‘McDonald’).
[6]Ibid [13], [15]-[16].
Redlich JA, in his brief judgment agreeing with the decision of Ashley JA, stated:
The words ‘otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal’ contained in s 295(3)(b) require the trial judge, among other things, to make a value judgment about the interlocutory decision which he or she has given.
As this case indicates, where the trial judge is of the view that the interlocutory decision is so plainly correct that the argument to the contrary is hopeless or foredoomed to fail, it is not an appropriate case in which to grant a certificate. In other circumstances, the trial judge is required to assess the relative merit of his or her conclusion and the degree to which it could be said that his or her decision is attended by doubt. I would not wish it to be understood that because a trial judge concludes that their decision may be attended by some doubt, that it necessarily follows that a certificate should be granted.[7]
[7]Ibid [20]-[21].
In the recent decision of Lindsay v The Queen,[8] the Court of Appeal held that the ‘attended by sufficient doubt’ consideration had no application to an interlocutory appeal pursuant to s 295(3)(a). Once the trial judge had been satisfied that the evidence the subject of the interlocutory decision met the test in s 295(3)(a), there was no further step for her to have taken.
[8][2021] VSCA 230 (Maxwell P, Kyrou and Niall JJA) (‘Lindsay’).
The Court considered the decision in McDonald and observed that some subsequent decisions had contained statements which:
went beyond what had been held in McDonald which correctly linked – and confined – the making of such a ‘value judgment’ about the correctness of the decision to the judge’s statutory task of deciding whether the requirement of ‘sufficient importance’ had been met.[9]
[9]McDonald, [57].
Defence submissions
Mr Sheales relied on the decision of the Court of Appeal in GP v The Queen [10] in support of the contention that I should certify in this case. He submitted that this decision was authority for the proposition that s 295(3)(b) is to be read ‘very broadly’.[11]
[10][2010] VSCA 142 (‘GP’).
[11]Transcript 4.
He also drew the attention of the Court to the decision of DPP v Zheng.[12] Having done so, Mr Sheales submitted that the case was ‘not particularly helpful’. In the circumstances, I will say no more about it.
[12][2013] VSCA 304.
In support of certification, Mr Sheales submitted that the case, being one of murder, is an important one. The subject matter of my decision, he submitted, is of high public importance because there is no authority in support of it, and if the decision is wrong, the trial will necessarily miscarry. He asserted that in his long experience as counsel he had never heard of any Court taking the approach indicated by my decision. He submitted that as the issue at hand has never been the subject of a decision, as a matter of prudence, I should certify.
In the course of his submissions, Mr Sheales made little reference to s 295(3)(b) beyond that indicated above in connection with GP. He submitted, rather, that I should have regard to the considerations in s 297.
Prosecution submissions
The prosecution opposed certification. It was submitted by Ms Churchill that my ruling is correct and that there is no basis to certify. She referred me to the test in s 295(3)(b) and submitted, on the authority of Lewis v The Queen[13] that the certification requirement limits interlocutory appeals to cases of ‘very real significance’.[14] Ms Churchill submitted that the subject matter of my decision is a procedural question and that the observations made in the decision ‘may well answer the question why there’s no authority on this point’.[15] She submitted that my decision is not attended by sufficient doubt as to warrant certification.
[13][2018] VSCA 40 (‘Lewis’).
[14]Ibid [42].
[15]Transcript 20.
Analysis
The terms of s 295(3)(b) of the Act represent, and are intended to represent, a barrier to certification under the provision. I must not certify unless satisfied that my decision that the defence response does not comply with the law and requiring the accused to file a further defence response is ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.[16]
[16]Section 295(3)(b).
It was observed by the Court of Appeal in Lewis:
As this Court has repeatedly made clear, the requirement of certification was introduced into the legislation that made provision for interlocutory appeals in criminal matters for the purpose of limiting such appeals to questions of very real significance. The notion of ‘sufficient importance’ in s 295(3)(b) must be approached in accordance with that underlying principle. Accordingly, an application to review a refusal to certify faces a greater hurdle than does an application for leave to appeal where certification has been granted.[17]
[17]Lewis, [42].
In considering the question of certification, the authorities make it clear that I am required to make a value judgment about my decision as a part of the process of determining whether or not the decision is of sufficient importance to the trial to justify it being determined on an interlocutory appeal. It can readily be accepted that a decision about something as important as the meaning and scope of s 183 of the Act is an important decision. That does not mean, however, that any such decision will necessarily qualify for certification. If the argument in support of the proposed appeal would be without merit, then the ‘sufficient importance to the trial’ test will not be passed.
Whilst of course I acknowledge that it will be the view of the Court of Appeal which is important in the end, performing the judgment that the law requires me to carry out at this stage, I am of the view that my decision about the requirements of s 183 of the Act and whether or not the defence response complies with these is plainly correct, and will be found to be so by the Court of Appeal.
In the circumstances, I am not satisfied that my decision is of sufficient importance to the trial to justify it being determined on an interlocutory appeal, pursuant to s 395(3)(b).
Conclusion
For the reasons set out above, I refuse to certify under s 295(3)(b) of the Act.
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