Director of Public Prosecutions v Singh

[2012] VSCA 167

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2012 0033

DIRECTOR OF PUBLIC PROSECUTIONS
	Applicant
V
RAJVEER SINGH	Respondent

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JUDGES	BONGIORNO JA and ALMOND AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	17 February 2012
DATE OF JUDGMENT	17 February 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 167

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CRIMINAL LAW – Interlocutory appeal – Respondent charged with rape – Trial judge ruled following close of Crown case that respondent had no case to answer – Whether Crown entitled to bring interlocutory appeal in respect of ruling – Whether ruling fell within definition of ‘interlocutory decision’ in Criminal Procedure Act 2009 – Irresistibly clear language required to alter fundamental principle that Crown has no right of appeal in respect of acquittal – No specific reference in definition of ‘interlocutory decision’ to decision to uphold no case submission – Application incompetent and accordingly refused – R v Cheng (1999) 48 NSWLR 616 – Director of Public Prosecutions (Vic) v Garde-Wilson (2006) 15 VR 640.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G J C Silbert SC with Mr T S Hoare	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr A Shwartz	Mr M Blumenthal

BONGIORNO JA:

1. Rajveer Singh was arraigned in the County Court before his Honour Judge Gucciardo on one charge of rape on 2 February 2012.  He pleaded not guilty.  His trial commenced and continued until 8 February 2012 when the Crown closed its case, following which a no case submission was made on Singh’s behalf.  That submission was upheld by the trial judge on 10 February 2012.  In concluding his ruling on that submission, his Honour said:

I will discharge the jury from delivering a verdict on that charge and I will direct that a verdict of not guilty be entered on the record pursuant to s 241 of the Criminal Procedure Act 2009.

Thus, the trial judge stated that he intended to invoke the procedure set out in s 241 of the Criminal Procedure Act 2009 (‘CPA’) which has replaced the procedure formerly followed where, upon the upholding of a no case submission, the trial judge would direct the jury to return a verdict of ‘not guilty’.

1. After the trial judge delivered his ruling, the Crown sought to have the matter stood over until the following Monday, 13 February, to enable it to consider its position. Accordingly, nothing further was done with respect to the Court record. His Honour acceded to the Crown application, excused the jury until 13 February and adjourned. On 13 February, his Honour certified pursuant to s 295(3)(b) of the CPA that his ruling was of sufficient importance to the trial to justify its correctness being determined on an interlocutory appeal to this Court.  On the same day, the Crown filed an application in this Court seeking leave to bring an interlocutory appeal in respect of his Honour’s ruling.  The jury was then placed on standby by the trial judge pending the determination of the application for leave to appeal to this Court.  Thus, as at today, the jury has not been concerned with the trial for some ten days or so.

Application for leave to appeal

1. The parties to the application for leave to appeal filed submissions in accordance with the procedures of this Court. Those submissions proceeded on the assumption that the no case ruling was an ‘interlocutory decision’ for the purpose of Division 4 of Part 6.3 of the CPA ― the part of the Act concerned with interlocutory appeals.  As the question of the competence of the appeal had not been addressed, the Court provided the parties with references to two cases: R v Cheng[1] and Director of Public Prosecutions (Vic) v Garde-Wilson.[2]  The Court’s purpose in providing references to these authorities was to alert the parties to the possibility that a ruling of no case to answer upon a trial might not be an ‘interlocutory decision’ amenable to appeal under the CPA.

   [1](1999) 48 NSWLR 616.

   [2](2006) 15 VR 640.

1. By the time the matter came on for hearing today, the parties had agreed that the issue of the amenability to interlocutory appeal of a no case ruling was central to the question of leave to appeal and addressed their submissions accordingly.  They acceded to a suggestion from the Court that this question be determined before any argument was heard as to the merits of the ruling sought to be appealed.

1. In the event, the arguments put were relatively straightforward and concise. The Chief Crown Prosecutor contended that the definition of ‘interlocutory decision’ contained in s 3 of the Act was sufficiently wide to include a decision of a trial judge at the end of the Crown case that an accused had no case to answer. He referred to the Attorney-General’s second reading speech on the Bill for the CPA where it makes reference to interlocutory appeals.  He particularly relied upon the following statements:

An interlocutory appeal essentially brings forward an issue that may otherwise become part of a post-conviction appeal or a DPP reference following an acquittal.[3]

[3]Victoria, Parliamentary Debates, Legislative Assembly, 4 December 2008, 4986 (Rob Hulls, Attorney-General).

And:

in relation to pretrial decisions, an interlocutory appeal may be brought in certain circumstances against a ‘decision’ of a judge.  This broad description avoids technical arguments about the nature or description of the decision in question, for example, whether the decision was a ‘judgement’ or ‘order’.[4]

[4]Victoria, Parliamentary Debates, Legislative Assembly, 4 December 2008, 4987 (Rob Hulls, Attorney-General).

The Chief Crown Prosecutor also referred to the Explanatory Memorandum for the Bill which, with respect to the definition of ‘interlocutory decision’ contained in s 3, reads:

This refers to a decision made by a trial judge in a proceeding referred to in clause 295(1), whether before or during the trial, including a decision to grant or refuse to grant a permanent stay of the proceeding.

This specific reference to a stay of proceeding is for the avoidance of doubt and not intended to limit any other decisions which might otherwise fall within this general definition.[5]

He readily conceded, however, that this gloss on the statutory definition was not particularly helpful as an aid to its interpretation.

[5]Explanatory Memorandum, Criminal Procedure Bill 2008 4.

1. In the course of his submissions, the Chief Crown Prosecutor referred to Smith v The Queen,[6] Victoria Legal Aid v Lewis,[7] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic)[8] and Fernandez v Director of Public Prosecutions (Vic).[9]  It is not necessary, however, to refer to any of these decisions to resolve the question now before this Court.

   [6](1994) 181 CLR 338.

   [7][1998] 4 VR 517.

   [8](2001) 207 CLR 72.

   [9](2002) 5 VR 374.

1. The Crown case is that the definition of ‘interlocutory decision’ in combination with the rights of interlocutory appeal conferred by the CPA are sufficiently wide to confer on the Crown a right of appeal in respect of a ruling which, without more, must lead to the acquittal of an accused on a charge to which the ruling refers. But the Crown, in this State, has never had a right of appeal in respect of an acquittal ― at least following a trial on indictment. To construe the definition such that a right of appeal has now been conferred would effect a fundamental change to the criminal justice system. Despite the width of the definition in s 3, there is no indication in the second reading speech or the Explanatory Memorandum accompanying the legislation to suggest that Parliament intended such a change of fundamental principle. That a change of fundamental principle must be expressed in irresistibly clear language is abundantly clear from a consideration of the numerous authorities on the point. In Director of Public Prosecutions (Vic) v Garde-Wilson,[10] this Court considered the Crown’s right of appeal with respect to a sentence imposed for contempt of court in the Trial Division. As the Crown could point to no statutory basis for such right of appeal other than the general right of appeal conferred by s 17(2) of the Supreme Court Act 1986, which permitted an appeal ‘from any determination of the Trial Division constituted by a Judge’, the Crown’s attempt to appeal was held to be incompetent.  In reaching that conclusion, the Court referred to numerous authoritative statements, from those of O’Connor J in Potter v Minahan[11] in 1908 to those of Gleeson CJ in Plaintiff S157/2002 v Commonwealth[12] and Al-Kateb v Godwin[13] in more recent years.

   [10](2006) 15 VR 640.

   [11](1908) 7 CLR 277, 304.

   [12](2003) 211 CLR 476, 492.

   [13](2004) 219 CLR 562, 577.

1. In R v Cheng,[14] the New South Wales Court of Criminal Appeal (Spigelman CJ, Dunford and Kirby JJ) considered a similar question to that which arises in this case.  Although dealing with a different legislative provision which gave the Crown a right of appeal ‘against an interlocutory judgment or order given or made in proceedings to which this section applies’, their Honours held that the words ‘interlocutory judgment or order’ could not be interpreted so as to give the Crown a right of appeal where a trial judge had ruled that there was no case to answer in a trial on indictment.  To construe a provision granting such a right of appeal as permitting an appeal in respect of a no case ruling would offend the fundamental principle that the Crown does not have a right of appeal from an acquittal.[15]

   [14](1999) 48 NSWLR 616.

   [15]See also R v Stone (2005) 64 NSWLR 413.

1. The definition of ‘interlocutory decision’ in s 3 of the Act is indeed wide. However, the addendum to it which stipulates that a decision to grant or refuse a permanent stay of a proceeding is included within the definition might be seen as an indication that the legislature did not intend to alter the fundamental principle that the Crown has no right of appeal against an acquittal. A stay has neither the practical nor legal effect of an acquittal. The inclusion of a specific reference to a decision concerning a permanent stay and the lack of specific reference to a decision to uphold a no case submission suggests that it was not intended to change such a fundamental principle as that which confers finality on an acquittal in a trial on indictment, even when directed or entered by the judge following a ruling that there is no case to answer.

1. Accordingly, as a no case ruling is not an ‘interlocutory decision’ as defined in s 3 of the CPA, it cannot be the subject of an application for leave to appeal pursuant to Division 4 of Part 6.3 of the Act. The application before the Court is incompetent and should be refused.

ALMOND AJA:

1. I agree.

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