Director of Public Prosecutions v Woolf

[2013] VCC 1119

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-02001

DIRECTOR OF PUBLIC PROSECUTIONS

v

URIEL WOOLF

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	3 September 2013
DATE OF RULING:	3 September 2013
CASE MAY BE CITED AS:	DPP v Woolf
MEDIUM NEUTRAL CITATION:	[2013] VCC 1119

RULING NO 5
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Subject:  CRIMINAL LAW      

Catchwords: RULING – Application for certification pursuant to s.295 Criminal Procedure Act 2009 – Application refused

Legislation Cited:     Criminal Procedure Act 2009

Cases Cited:Dupas v R (2012) 218 A Crim R 507; Semaan v The Queen [2013] VSCA 134

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr N. B. Batten	Mr C. Hyland Solicitor for Public Prosecutions
For the Accused	Mr T. Danos	PICA Criminal Lawyers

HER HONOUR:

1 Application has been made by Mr Danos, Counsel for the accused, for certification in relation to a tendency ruling which I handed down yesterday 2 September 2013 on the basis of s.295(3) paragraphs (a) and (b) Criminal Procedure Act 2009 (hereafter “The Act”).

2 Mr Batten of Counsel, having sought instructions from the Crown, opposes the application for certification. He has conceded that sub-s(3) paragraph (a) of s295 of the Act would apply. However, he submits that neither the decision that I made in relation to tendency; nor the decision in relation to having the tendency argument ahead of the special hearing in this matter, are attended with sufficient doubt to justify certification.

3       Mr Danos argues that the decision in Dupas v R (2012) 218 A Crim R 507 in conjunction with remarks made by Priest JA in the decision of R v. Semaan [2013] VSCA 134 really amount in this case to requiring me to hear the special hearing and make a qualitative assessment of the evidence in terms of the reliability of the evidence of uncharged acts after the special hearing takes place.

4       In my view, certification on the basis agitated for by Mr Danos is not justified.  Neither my decision to hold the special hearing after argument on tendency for the reasons which I set out in a previous ruling and which I recited in the tendency ruling; nor the tendency ruling itself, (which was given on the basis that the complainant's special hearing evidence had not taken place) are attended with sufficient doubt to justify certification. 

5       There was nothing indicated to me in the course of argument which would point to the need, in my view, to have a special hearing ahead of the tendency ruling in this case. In circumstances where the complainant is 16 years of age and there are prohibitions against the complainant being cross-examined at committal, I was and am of the view that it was not appropriate to subject the complainant to cross-examination in respect of matters which may have then been ruled out after that special hearing had taken place.

6       The defence are not deprived of asking that I revisit the tendency ruling once the special hearing has taken place, as I have already indicated, and therefore in those circumstances I take the view that neither the matters raised in relation to the tendency ruling; nor the matters raised which seemed to me to apply to the ruling I gave before the tendency ruling (as to the order in which proceedings should occur) are attended with sufficient doubt to justify certification.

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