Director of Public Prosecutions v Low (a pseudonym) (Ruling No. 6)

[2024] VCC 709

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised

Not Restricted

Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

JAMES LOW (a pseudonym)[1]

[1]     A pseudonym used to protect the identity of the accused who is awaiting trial.

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JUDGE:

His Honour Judge Trapnell

WHERE HELD:

Melbourne

DATE OF HEARING:

7 May 2024

DATE OF RULING:

DATE OF REASONS:

7 May 2024

22 May 2024

CASE MAY BE CITED AS:

DPP v Low (a pseudonym) (Ruling No. 6)

MEDIUM NEUTRAL CITATION:

[2024] VCC 709

RULING NO. 6
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Subject:Criminal Law – Interlocutory appeal      

Catchwords:              Applications to certify interlocutory decisions –

Legislation Cited:      Criminal Procedure Act 2009      

Cases Cited:

Ruling:  Applications granted

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr T C Wallwork with Mr J McCarthy	Ms A Hogan, Solicitor for Public Prosecutions
For the Accused	Mr J Blackley	SLKQ Lawyers

HIS HONOUR:

1The accused is charged on indictment with alleged offences involving two complainants, BR[2] and DW.[3] In relation to BR, he is charged with one charge of sexual assault of a child under the age of 16 (Charge 1) and one charge of false imprisonment (Charge 5). In relation to DW, he is charged with two charges of sexual penetration of a child under the age of 16 (Charges 2 and 3), one charge of trafficking a drug of dependence to a child (Charge 4), and one charge of false imprisonment (Charge 6). He intends to plead not guilty to all charges. The main issue in the trial is the identity of the alleged offender.

[2]     A pseudonym used to protect the identity of a complainant.

[3]     A pseudonym used to protect the identity of a complainant.

2On 2 May 2024, I dismissed the accused’s applications for orders excluding evidence that the prosecution intends to lead at his trial regarding:

(i)the complainant BR on 15 May 2019 identifying the accused from a photo board prepared by police; and

(ii)the complainant DW on 18 April 2019 identifying the accused from a photo board prepared by police.

3On 2 May 2024, I also refused the accused’s application for a permanent stay of the proceeding.

4The accused now requests certification of all three pre-trial rulings pursuant to Criminal Procedure Act 2009 (‘the Act’) s 295(3).

5On 7 May 2024, I granted the accused’s requests for certification of these interlocutory decisions. These are my reasons for so doing.

6I am satisfied my interlocutory decision to dismiss the accused’s application to exclude BR’s picture identification evidence concerns the admissibility of evidence and that the evidence, if ruled inadmissible, would substantially weaken the prosecution case. The prosecution accepts this is the case.

7I am satisfied my interlocutory decision to dismiss the accused’s application to exclude DW’s picture identification evidence concerns the admissibility of evidence and that the evidence, if ruled inadmissible, would substantially weaken the prosecution case. The also prosecution accepts this is the case.

8Accordingly, it is appropriate for me to certify both interlocutory decisions justify being determined on interlocutory appeals.

9I am satisfied that my decision to refuse the accused’s application for a permanent stay of the proceeding is an interlocutory decision within the meaning of the Act.[4] I am further satisfied that the interlocutory decision is of sufficient importance to the trial to justify it being determined on an interlocutory appeal. The prosecution accepts this is the case.

[4]     Criminal Procedure Act 2009 s 3 definition of ‘interlocutory decision’.

10It is for these reasons that I granted the accused’s requests for certification of all three interlocutory decisions.