DPP and Palliser Ruling No. 2

[2014] VCC 1215

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-12-01102

DPP

v

KENNETH PALLISER

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JUDGE:	Cannon
WHERE HELD:	Melbourne
DATE OF HEARING:	30 July 2014
DATE OF RULING:	30 July 2014
CASE MAY BE CITED AS:	DPP and Palliser Ruling No. 2
MEDIUM NEUTRAL CITATION:	[2014] VCC 1215

Ruling No. 2
REASONS FOR RULING
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Subject:  CRIMINAL LAW
Catchwords:            Ruling – Application for certification of ruling
Legislation Cited:     Criminal Procedure Act 2009
Cases Cited:            MA v. R (2011) VSCA 13; Velkoski v. The Queen  [2014[ VSCA 121

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Mandy	Commonwealth Director of Public Prosecutions
For the Accused	Mr N. Papas QC with Mr K McDonald	Michael Gleeson Lawyers

HER HONOUR:

1 Defence have applied for me to certify in respect of my ruling to admit tendency evidence in this trial pursuant to s.295(3)(a) of the Criminal Procedure Act 2009 on the basis that if the evidence were ruled inadmissible it would substantially weaken the Crown case.

2       The evidence concerns proven acts by the accused to which he pleaded guilty in 2007.  In my view, it is powerful evidence which the Crown relies on to help prove Charges 1 to 5 and which they would rely on to exclude innocent explanation on the part of the accused that his computer was hacked.  In its absence, although the Crown would still have a number of circumstances which they would rely on to prove the accused's guilt, their case would be substantially weakened, albeit that they submit it would not be a weak case. 

3 Given the nature of the evidence, and the purpose for which it will be relied upon by the Crown, I accept that s.295(3)(a) is made out.

4       I must then consider whether my ruling (Ruling No.1) is attended with sufficient doubt in accordance with the principles enunciated in MA v. R (2011) VSCA 13.

5       The ruling I have made was reached after a good deal of anxious thought and it is a qualitative assessment of the evidence upon which reasonable minds might differ.  Also Mr Papas' argument in respect of Paragraph 4(b) of the tendency notice, and Paragraph 73(f) of Velkoski v. R  [2014[ VSCA 121 and I will give the citation later - is something that I have rejected, and it may be that again reasonable minds might differ as to whether the principle enunciated by the court in Paragraph 73(f) might cover the present situation.

6       In the circumstances, while this is not the test, I consider that it would be in the interests of justice for the ruling to be examined at this stage rather than perhaps much later down the track given the power of the evidence which I have ruled admissible, and so I will grant the defence's application to certify,  on the basis that I accept that reasonable minds might differ in the respects that I have indicated and, therefore, on that basis  I would regard my ruling (Ruling No. 1) as attendant with sufficient doubt.