Director of Public Prosecutions v Bottom & Ors (Ruling No 3)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2020 0178

THE DIRECTOR OF PUBLIC PROSECUTIONS

ALBERT THORN

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JUDGE:	Tinney J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 July 2022
DATE OF RULING:	24 July 2022
CASE MAY BE CITED AS:	DPP v Bottom & Ors (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2022] VSC 411

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CRIMINAL LAW – Trial – Refusal of separate trial application by accused - Interlocutory appeal to be instituted – Application for certification – Whether decision of sufficient importance to the trial to justify it being determined on an interlocutory appeal – Value judgment about decision – Certification refused – Frazier v The Queen [2017] VSCA 370; McDonald v DPP (2010) 26 VR 242; Cano v The Queen [2020] VSCA 308; Males v The Queen [2021] VSCA 159; Lindsey 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	Mr R Gibson QC with Ms B Goding and Mr T Bourbon	Abbey Hogan, Solicitor for Public Prosecutions
For the Accused Thorn	Mr A Pyne	Sullivan Braham Barristers & Solicitors

HIS HONOUR:

Introduction

Albert Thorn (the accused) is charged with two other accused Jordan Bottom (‘Bottom’) and Rikki Smith (‘Smith’) with murder and other offences. The trial of all three men is now listed to proceed in the Supreme Court at Melbourne, commencing on 15 August 2022.[1]
[1]The trial was previously listed to proceed in the Supreme Court at the Latrobe Valley. On 22 July 2022, an order was made under s 192 of the Criminal Procedure Act 2009 (‘the Act’) that the trial be held in Melbourne.
The accused made an application for a separate trial from Bottom and Smith. On 14 July 2022, I refused that application.[2]
[2]DPP v Bottom & Ors (Ruling No 2) [2022] VSC 401R.
I have been informed that the accused will seek to bring an interlocutory appeal against the decision refusing to grant a separate trial. Counsel for the accused, Mr Pyne, sought an order from the Court certifying that the interlocutory decision is of sufficient importance to the trial to justify it being determined on an interlocutory appeal.[3]
[3]The Act, s 295(3)(b).
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 (‘Frazier’),[4] 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.
[4][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.[5]
[5]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.[6]
[6]Ibid [29].
In McDonald v Director of Public Prosecutions,[7] 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).[8]
[7](2010) 26 VR 242.
[8]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.[9]
[9]Ibid [20]-[21].
In Cano v The Queen,[10] the Court of Appeal considered a refusal by the trial judge to certify an interlocutory appeal under s 295(3)(b) in circumstances where he had accepted that his decision met the statutory requirement of ‘sufficient importance’ but refused to certify because the decision was not attended by sufficient doubt to warrant certification. The Court stated:
In approaching the matter in that way, his Honour acted in accordance with a number of decisions of this Court in relation to interlocutory appeals in criminal matters. It is clear that even if one of the relevant limbs of s 295(3) is met, the judge must also consider whether the interlocutory decision is attended by sufficient doubt to warrant an appeal. A judge should refuse to certify any interlocutory decision where the appeal would be hopeless, or the decision is not attended by sufficient doubt.[11]
[10][2020] VSCA 308 (‘Cano’). See also Avalos v The Queen [2020] VSCA 56.
[11]Cano [53] (citation omitted).
In Males v The Queen,[12] in considering a case in which the trial judge had refused to certify an interlocutory appeal under s 295(3)(b) notwithstanding her finding that the decision was of sufficient importance, because she did not consider her decision to be attended by sufficient doubt to warrant an appeal, something which she took to be ‘a further restriction on certification’, the Court of Appeal stated:
With great respect, there is no ‘further restriction on certification’ once a judge is satisfied — as her Honour was — that the interlocutory decision meets the ‘sufficient importance’ requirement in s 295(3)(b). The statute neither permits nor requires any separate consideration of whether the decision is ‘attended with sufficient doubt’.
[12][2021] VSCA 159 (‘Males’).
The Court set out the passages from McDonald referred to above, and went on to state:
Subsequent decisions which applied McDonald stated the position more strongly. In Stannard v Director of Public Prosecutions, for example, it was said that a ‘certificate should not be granted unless the trial judge considers his or her decision is attended with sufficient doubt to warrant an expedited review of the decision’. With respect, however, those statements 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.
It should also be recalled that, in McDonald, the argument which the judge had rejected ‘lacked any legal merit’. In our view, that is the circumstance where a ‘value judgment’ about the merits of the point at issue is most likely to assist in answering the statutory question.
In the present case, as we have pointed out, the judge was satisfied that the interlocutory decision met the ‘sufficient importance’ requirement in s 295(3)(b). That was all that was required for certification. Having formed that view, it was not reasonably open to her Honour to refuse to certify. We therefore granted the application for review of the refusal.
In the more recent decision of Lindsey v The Queen,[13] 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.
[13][2021] VSCA 230 (Maxwell P, Kyrou and Niall JJA) (‘Lindsey’).
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.[14]
[14]McDonald, [57].
Defence submissions
Mr Pyne submitted that while it might be said that a decision whether to grant a separate trial or not might be said to be a routine decision by a trial judge, the particular decision in this case was far from routine. There were powerful reasons why the exposure to the jury of the prejudicial material in this case was of a ‘staggering order’,[15] in excess of the type of material referred to in the authorities.
[15]Transcript 20-1.
In respect of the seeming conflict in the authorities on the matter of whether or not a judge, even if satisfied of the ‘sufficient importance’ requirement, should go on to consider whether or not his or her decision was attended by sufficient doubt to warrant an appeal, Mr Pyne submitted that the clear words of the provision indicate that the only requirement for certification is a finding of sufficient importance, statutory construction beginning and ending with the text. He submitted that this proposition is supported by the decision in Males.
Mr Pyne submitted that even if he was wrong in this submission, the application before the Court does not require resolution of the question. In any event, he submitted, the strength of the argument put in support of severance, as reflected in some comments in the decision and the lengthy manner in which the defence arguments were summarised in the ruling, would indicate the decision should be viewed as being attended by sufficient doubt to warrant an appeal. He reiterated the powerful nature of the prejudicial material, including its ability to bolster the credit of an important prosecution witness.
Mr Pyne submitted that this was not an issue of little moment. Indeed, it would answer the description in the authorities of being an issue of very real significance for the trial, going ‘to the heart of the Court’s capacity to deliver a fair trial’.[16] He submitted that this is ‘precisely the type of question that ought to be resolved on an interlocutory appeal’.[17]
Prosecution submissions
[16]Transcript 23.
[17]Ibid 23.
In a brief written outline, the prosecution conceded that the decision in question is of ‘sufficient importance’ as required by s 295(3)(b), but contended that the decision is not attended by sufficient doubt to justify it being determined in an interlocutory appeal.
The ruling was described as a commonplace, routine ruling in the management of trials in the trial division of the Court. The relevant legal principles were not in dispute, and there was a wealth of authority upon which I was able to draw in making the decision. It was submitted that my detailed decision was well within the discretion of the Court.
A number of authorities were referred to on the test for certification, and it was submitted that the accused faces the additional burden of the principles in House v The King[18] to overcome.
[18](1936) 55 CLR 499.
In his oral submissions, Mr Gibson QC, who appeared with Ms Goding and Mr Bourbon for the Crown, submitted that the application should not be seen as an opportunity for Mr Pyne to re-argue or re-litigate why a separate trial should have been granted to the accused.
In dealing with the legal position, Mr Gibson submitted that, in circumstances where there are decisions of the Court of Appeal which have not been overruled which clearly indicate that an additional question to be considered by a judge asked to certify an interlocutory appeal is whether the decision is attended by sufficient doubt to warrant an appeal, even if I am satisfied that the decision passes the ‘sufficient importance’ requirement, I should go on to consider whether or not the decision is attended by sufficient doubt to warrant an appeal.
Mr Gibson reiterated the Crown position that my ruling is of a routine nature, of a type commonly required where there are joint accused. He described the ruling as thorough and detailed, referring to the relevant principles. He submitted that my decision, a discretionary one to which the principles in House v The King would apply, was not attended by any doubt. In the circumstances, he submitted that I should not certify under s 295(3)(b).
Analysis
It does seem that there is some conflict between the authorities on the question whether a judge contemplating whether to certify pursuant to s 295(3)(b) of the Act is required, as a separate and additional step to determining whether the decision passes the ‘sufficient importance’ test in the provision, to consider whether the decision is attended by sufficient doubt to warrant certification.
It would be neither appropriate nor possible for me to determine which position is correct. Nor would that be necessary in the determination of this application.
Some things are, of course, abundantly clear from the authorities to which I have referred above. Certification is no mere formality. It is a statutory pre-condition of the right to seek leave to appeal on an interlocutory basis. It is intended to place a barrier in the way of unworthy appeals. As for the question of whether a particular decision is attended by doubt, whilst it may be unclear on the authorities whether that should be considered independently of the central decision in s 295(3)(b), as an additional requirement, a value judgment as to the correctness of the decision can no doubt play an important part in the decision by the Court whether the decision passes the ‘sufficient importance’ test.
In this case, the Crown in its written outline conceded that the decision in question is of sufficient importance as required by s 295(3)(b), but strongly argued that it was not attended by any doubt, and that it would therefore be inappropriate to certify. This approach was no doubt made on the force of a number of the relevant authorities.
Of course, notwithstanding the position of the Crown, it is for me to decide whether the precondition set out in s 295(3)(b) is satisfied in this case.
As rightly contended by the Crown, the ruling made in this case was of a routine type where criminal trials are concerned. The relevant legal principles were not in any dispute, and as submitted by the prosecution, there was a wealth of authority guiding me along the path to the discretionary decision I made.
Whilst this may not be a case in respect of which it could be said that the interlocutory appeal contemplated by the accused is foredoomed to fail, it is difficult to see this routine decision in the management of a criminal trial being attended by such doubt as would warrant it being determined on an interlocutory appeal whether the decision is correct or not.
In the circumstances of this case, I am not satisfied that the decision is of sufficient importance to the trial of the accused to justify it being determined on an interlocutory appeal.
Conclusion
For the above reasons, I refuse to certify under s 295(3)(b) of the Act.

[2022] VSC 411

24 July 2022