DPP (Commonwealth) and Palliser Ruling No. 3

[2014] VCC 1282

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:	5 August 2014
DATE OF RULING:	5 August  2014
CASE MAY BE CITED AS:	DPP (Commonwealth) and Palliser Ruling No. 3
MEDIUM NEUTRAL CITATION:	[2014] VCC 1282

REASONS FOR RULING No. 3
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Subject:  CRIMINAL LAW

Catchwords:             Ruling – Application by the Crown to certify Interlocutory decision -

Legislation Cited:     Criminal Procedure Act 2009; Evidence Act 2008
:  

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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. I have heard submissions from the Crown as to an aspect of my ruling, insofar as my refusal to admit coincidence evidence pursuant to s.135(b) of the Evidence Act 2008 is concerned.

2. In light of these submissions, and Defence’s lack of opposition to the Crown’s application, I'm of the view that the evidence of coincidence, if ruled inadmissible, especially in circumstances where tendency evidence might also be ruled inadmissible, would substantially weaken the prosecution case- the Crown is concerned that, hypothetically, it is possible that the Court of Appeal might say that tendency evidence is not admissible but coincidence evidence is. In any event, the Crown is concerned as to the constraint that they may be placed under if only tendency reasoning is available to the jury because of my ruling. In these circumstances I am prepared to certify pursuant to s.295(3)(a) Criminal Procedure Act 2009, given that, again, reasonable minds may well differ as to this aspect of my ruling, and that therefore it may be attended with sufficient doubt so as to warrant the Court of Appeal examining this aspect of my ruling as well. In this regard, I note that Defence, in their application before the Court of Appeal, has raised both tendency and coincidence bases for the admissibility of the evidence, so it makes sense for the Court of Appeal to deal with both aspects of the ruling in any event.