DPP v Pace (a Pseudonym)
[2015] VSCA 18
•13 February 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0028
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| DEREK PACE (A PSEUDONYM) | Respondent |
| S APCR 2015 0028 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| SETH COLLINS (A PSEUDONYM) | Respondent |
| S APCR 2015 0028 | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| PATRICK BAKER (A PSEUDONYM)[1] | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the names of the Respondents.
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 February 2015 |
| DATE OF JUDGMENT: | 13 February 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 18 |
| RULING APPEALED FROM: | DPP v Pace & Ors (Unreported, County Court of Victoria, Judge Ryan, 11 February 2015) |
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APPLICATION FOR LEAVE TO APPEAL AGAINST INTERLOCUTORY DECISION UNDER S 295 OF THE CRIMINAL PROCEDURE ACT 2009
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| APPEARANCES: | Counsel | Solicitors |
| For the Respondent [Pace] | Mr I Polak | Revill & Papa Lawyers |
| For the Respondent [Collins] | Mr S Norton | Robert Stary Lawyers |
| For the Respondent [Baker] | Mr S Bayles | Mathew White & Associates |
| For the Crown | Mr N Batten | Mr C Hyland, Solicitor for Public Prosecutions |
THE COURT:
Introduction
This is another application for leave to appeal an interlocutory decision from what should have been a straightforward trial in the County Court.[2]
[2]See Pace (a pseudonym) v The Queen; Collins (a pseudonym) v The Queen [2014] VSCA 317 (Priest and Beach JJA) (‘Pace’).
Each of the respondents has pleaded not guilty to one charge of intentionally causing serious injury to ‘MA’ in circumstances of gross violence[3] (charge 1), and, alternatively, one charge of recklessly causing serious injury to MA in circumstances of gross violence[4] (charge 2). The ‘circumstances of gross violence’ pleaded in the indictment are said to be that each of them ‘in a joint criminal enterprise with two or more other persons caused the serious injury’.
[3]Crimes Act 1958, s 15A.
[4]Crimes Act 1958, s 15BA.
On 10 February 2015, the trial judge made a ruling concerning the admissibility of certain evidence that the prosecution wished to adduce from one of its witnesses, Dr [SG], the nature of which we will shortly refer to. The prosecution regarded his Honour’s ruling as adverse, and the following day asked the judge to reconsider it. His Honour refused, however, to ‘revisit’ his ruling, and further ruled that the prosecutor could not put a particular argument to the jury. The applicant then asked the judge to certify pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’). On 12 February 2015, his Honour refused to do so.
Pursuant to s 296 of the CPA, the applicant has made application to this Court with respect to the judge’s refusal to certify. In determining the application, this Court is required, by s 296(4), to ’consider the matters referred to in section 295(3)’; and ’if satisfied as required by section 297, [the Court] may give the applicant leave to appeal against the interlocutory decision’. Since the interlocutory decision concerns the admissibility of evidence, pursuant to s 295(3)(a) of the CPA the Court must be satisfied ‘that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case’.
Section 297 of the Act provides:
297 When leave to appeal may be given
(1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to –
(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b) whether the determination of the appeal against the interlocutory decision may–
(i) render the trial unnecessary; or
(ii) substantially reduce the time required for the trial; or
(iii)resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv)reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and
(c) any other matter that the court considers relevant.
(2) The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.
…
In the notice of application for leave to appeal, the interlocutory decision is described as follows:
1.Refusing to vacate a ruling upholding an objection from defence which precluded the Crown from asking an expert witness, Dr [SG], how much whisky would need to be consumed to achieve a particular blood alcohol concentration level.
2.Precluding the Crown from arguing in its final address to the jury that a possibility for the blood reading at 11:55 am is the consumption of alcohol by the complainant during the morning of 17 August 2013.
For the reasons that follow, we would refuse the application to review the trial judge’s refusal to certify under s 295(3) of the CPA. It is clear that any interlocutory appeal in this case would be wholly bereft of merit.
Summary of the evidence
For the purposes of the application in this Court, the parties have agreed on the following summary of evidence:[5]
[5]See also Pace, [5]–[10].
1.On the morning of Saturday, 17 August 2013, the complainant [MA] was found in an injured state by [LM] in the rear of a house in Geelong Road, Footscray. A call was made to emergency services at 10.36am and the first paramedics arrived at 10.42am. By that time the complainant was lying on the ground on the footpath or laneway running alongside the house.
2.[MA] has given evidence that he was assaulted by the three [respondents] at about 10pm the previous evening.
3.A blood sample taken from the complainant at 11.55am on 17 August 2013 at the Alfred Hospital had an alcohol concentration of approximately .072 to .088 [percent].
4.Prosecution witness Dr [SG] stated that –
(a)on the assumption that no alcohol was consumed after the assault at about 10pm, the alcohol in the complainant’s body at 10.25pm on Friday night was in the range .207 to .358 [percent] (evidence in chief); and
(b)a BAC [blood alcohol concentration] in that range is likely to significantly impair memory of events occurring at the time including distortion of memory and impairment of perception (detailed evidence in cross-examination).
5.The complainant stated that –
(c)he arrived at the house at about 6pm on Friday 16 August 2013;
(d)that seven persons were then present who were or had been drinking;
(e)in the living room he consumed one cup of red wine only prior to being assaulted (evidence in chief and repeatedly asserted in cross-examination);
(f)prior to the cup of red wine he was not drinking alcohol;
(g)he was assaulted at about 10pm by the accused men (described in detail), with others present, then slept in the living room;
(h)he awoke at about 7am (it was light) on 17 August 2013 and ‘crawled’ to the laundry but could go no further because he was in pain;
(i)he remained there conscious until found by LM;
(j)[LM] assisted him out to the laneway and arranged an ambulance;
(k)he was found by paramedics in the laneway;
(l)he did not consume any alcohol between waking in the morning and being taken to hospital.
6.[LM] (an unavailable witness) in a statement to be read to the jury, states that she caught a bus from Sunshine to Footscray at about 8am on 17 August 2013 to look for the complainant. She found him injured. He asked her to get an ambulance. She asked first one then another bystander, and the latter called an ambulance.
7.Other evidence before the jury is –
(m)evidence from two paramedics that they found the complainant lying in the laneway and next to him was a bottle of ‘Jim Beam’ whiskey;
(n)paramedic [DD] stated the bottle was empty; paramedic [MM] could not recall without recourse to his statement;
(o)a photograph of the complainant on the footpath showing the Jim Beam bottle upright on the ground nearby, its contents are not shown;
(p)paramedic [MM] stated he smelt alcohol on or near the complainant;
(q)[MM] stated the complainant told him he had drunk a lot of alcohol that night (referring to the previous night).
8.There is no evidence that the complainant drank from the Jim Beam bottle. Nor is there any evidence as to when the bottle was placed where it was found and by whom.
9.In the laneway the complainant was mildly hypothermic and had suffered severe head and back injuries –
(r)Dr [PP] will give evidence of the complainant’s injuries including extensive subdural haemorrhaging on the brain.
(s)Paramedic [MM] stated that there were no deficits in the complainant’s conscious state in the alley although he was drowsy, hypothermic, vague and unwilling or unable to answer some questions.
(t)Paramedic [DD] stated that the complainant’s conscious state was mildly impaired.
(u)Dr [SG] stated substantial traumatic injury to the brain suffered by the complainant may cause or contribute to impairment of memory including distortion (in relation to contemporaneous events).
The impugned interlocutory decision
Dr [SG] gave evidence in the prosecution case that, on the assumption that MA consumed no alcohol after the assault at about 10pm, the complainant’s blood alcohol concentration (‘BAC’) at 10.25pm on Friday night would have been in the range .207 to .358 per cent. A BAC in that range, Dr [SG] said, is likely to significantly impair memory of events occurring at the time, including distortion of memory and impairment of perception.
The prosecutor re-examined, and sought to ask Dr [SG], on the assumption that MA’s BAC was between .072 and .088 at 11.55am on 17 August 2013 — and assuming that was the ‘peak’ or the ‘highest level’ that his BAC reached — ‘how much whiskey would have been needed to achieve that concentration?’. The obvious purpose underlying the attempt to elicit this evidence was to try and raise the possibility that MA’s BAC at 11.55am on the Saturday morning might have been the result of recent consumption of Jim Beam whiskey, and so rebut the inference that MA’s BAC around the time of the assault on Friday night would have been in the order of .207 to .358 per cent. Self-evidently, if MA’s BAC was in the order of .207 to .358 at the time he was injured, his credibility and reliability would potentially be significantly compromised in the eyes of the jury.
Counsel for one of the respondents objected. He submitted that the question was ‘not consistent with the evidence that has been [given] at the trial’ and was irrelevant. It was said that the prosecutor’s proposed question ‘can only be the foundation for inviting speculation about matters that are contrary to the evidence in the trial and contrary to the prosecution's own witness and, in my submission, should not be allowed’.
The judge ruled peremptorily — that is not a criticism — on the question: ‘Yes, it’s speculative. I wont permit the question’.
When asked the next day to revisit his ruling, following debate the judge refused permission to the prosecutor to ask the question of Dr [SG] that he had sought to put the preceding day, and further ruled that the prosecutor would not be permitted to mount an argument in his final address to the jury that MA’s BAC at 11.55am on the Saturday morning might have been as a result of consumption that morning of Jim Beam whiskey (or bourbon). We set it out in full, since it encapsulates fully the evidence and submissions to which his Honour had regard, and because it plainly is correct. The judge said:[6]
[6]Our emphasis.
On 11 February [the prosecutor] who appears for the Crown sought to revisit a ruling that I made late in the day on 10 February in respect to a question that he asked Dr [SG] … In essence, [the prosecutor] sought by his question to establish that assuming that the blood alcohol level contained in a blood sample taken from the complainant at 11.55 a.m. on 17 August 2013 was the complainant’s peak or highest alcohol level, how much whiskey would need to be consumed to achieve that concentration.
The question was objected to on the basis of relevance as it was not consistent with the evidence of the complainant and it invited speculation about matters that were contrary to the evidence in the trial; namely, the amount of alcohol and the time at which that alcohol was consumed by the complainant. I ruled that such an inquiry and/or the expert evidence that would be elicited from such a question was speculative and I disallowed the question.
Save for an utterance made to the witness MM by the complainant that he had consumed ‘a lot’ of alcohol …; and the analysis of the blood sample taken from the complainant at hospital at 11.55 a.m. on 17 August 2013, the only evidence of the complainant’s alcohol consumption on 16 and 17 August 2013 came from him. In summary, the complainant maintains that prior to 6 p.m. on 16 August he had consumed no alcohol. He says at some time between 6 p.m. and the time that he was assaulted, 10 p.m., he consumed one cup of red wine. Of particular relevance is that the complainant maintained after waking after the assault he did not consume alcohol …
Upon waking, the complainant says that he made his way to a laundry area at 76 Geelong Road, Footscray. He says thereafter he was helped by his girlfriend to a nearby laneway. The complainant’s girlfriend caused the ambulance service to be summoned to the scene and two ambulances attended at 10.42 a.m. and 10.48 a.m. respectively.
In the laneway near to the complainant … was an open bottle of Jim Beam bourbon. There is no evidence as to what, if anything, it contained at any relevant time. It was not seized by the police.
[The prosecutor] complains that in accordance with my ruling he will be unable to put to the jury an argument that a possible explanation for the complainant’s blood alcohol level as at 11.55 a.m. was that he could have consumed alcohol in the morning after he awoke and possibly from the Jim Beam bottle.
[The prosecutor] submitted that he had in his opening made reference to the bottle of whiskey in the alley way and opened the issue of why it was that the complainant had a blood alcohol reading of about approximately .08 per cent as at 11.55 a.m. on 17 August 2013. He further submitted that it had never been the prosecution case that the only explanation for that blood alcohol reading was alcohol consumed at 76 Geelong Road, Footscray, prior to the alleged assault on the complainant. Further he submitted that it had always been his intention, and it was implicit in everything that he said, that the prosecution would go to the jury on the basis that there was another explanation for this reading …
With no disrespect to [the prosecutor], neither I nor any one of the three counsel for the accused understood that to be the case. There is no evidence to link the Jim Beam bottle to the complainant. There is no evidence to suggest that the Jim Beam bottle had been inside 76 Geelong Road, Footscray. There is no evidence to show how and when the Jim Beam bottle got to be in the laneway, nor what was in it at any relevant time.
The complainant was helped by his girlfriend to the laneway and left there whilst she summoned the ambulance. The complainant denies any alcohol consumption after waking in the house at 76 Geelong Road, Footscray. The complainant was in a semi-conscious state when he was attended on by ambulance officers and, in my view, this militates against the complainant consuming alcohol whilst in the laneway.
There is no evidentiary basis for [the prosecutor] to argue to the jury that the complainant’s blood alcohol reading at 11.55 a.m. on 17 August 2013 can possibly be explained by the consumption of alcohol in the morning of 17 August 2013. Accordingly, I will not vacate my ruling in respect of the question asked by[the prosecutor] , nor permit him to argue in his final address to the jury that a possibility for the blood reading at 11.55 a.m. is the consumption of alcohol by the complainant contrary to his evidence during the morning of 17 August 2013.
As we have said, when asked to do so, the judge refused to certify under s 295(3) of the CPA. His Honour said:[7]
[The prosecutor] on behalf of the Crown makes application under s.295(3)(a) and (b) of the Criminal Procedure Act 2009 for certification for an interlocutory appeal. Under subparagaph (a) he submits that my ruling prohibiting a question seeking to elicit an answer concerning the complainant’s blood alcohol level would eliminate or substantially weaken the prosecution case. I do not agree.
The question and the anticipated evidence ran contrary to the evidence of the complainant as to his alcohol consumption on 16 or 17 August 2013. To my mind it invited the jury to speculate about reasons for the complainant’s blood alcohol level at 11.55 a.m. on 17 August 2013. The ruling does not substantially weaken the prosecution case and is not attended by sufficient doubt to warrant the grant of a certificate.
[The prosecutor] independently seeks a certificate under subparagraph (b) in respect of my ruling prohibiting him from putting argument to the jury concerning the possibility that the complainant consumed alcohol in the morning of 17 August 2013. This ruling of course flows from my ruling in respect of the disallowed question.
The argument sought to be made is not based on the evidence in the trial. It runs contrary to the evidence of the complainant. Accordingly, it is not of sufficient importance to the trial to justify it being determined on an interlocutory appeal. In short, [the prosecutor] was prohibited from putting an argument to the jury which is based purely on speculation. I refuse to grant a certificate.
[7]Emphasis added.
The applicant’s grounds of appeal and submissions in support
The grounds in the application for review of the judge’s refusal to certify, and the proposed grounds of appeal in the application for leave to appeal against an interlocutory decision, are the same:
1.The Learned Trial Judge erred in finding that the enquiry and/or the expert evidence that would be elicited from the question asked of the witness Dr [SG] by the Prosecutor was speculative.
2.The Learned Trial Judge erred in finding that there was no evidentiary basis to argue that the complainant’s blood alcohol reading as at 11:55 am on 17 August 2013 could be explained by the consumption of alcohol in the morning of 17 August 2013.
In support of these grounds, in this Court the applicant argued that the prosecution case depends entirely on the evidence of MA. His credibility and reliability is, it is contended, now the only critical issue in the trial. The primary basis for attacking his credibility is the allegation, supported only by the BAC at 11.55am, that he was heavily intoxicated at the time of the assault 14 hours earlier. Thus, the significance to be given to that reading is the fundamental issue in the trial. The judge’s ruling, however, misapprehends the significance of the evidence.
The respondents at trial advance the hypothesis that the BAC arises from large amounts of alcohol consumed 14 hours earlier, but the complainant has been taxed with that hypothesis and ‘vehemently and repeatedly’ denied it. To rebut the defence hypothesis, the prosecution seeks to raise the obvious alternative hypothesis of the later ingestion of some alcohol. Both hypotheses, so the applicant submitted, are consistent with the BAC and are otherwise unsupported by evidence.
In developing these contentions, the applicant submitted that MA’s evidence of his alcohol consumption between 6pm on 16 August 2013 and 11.55am on 17 August 2013 cannot be correct. There was, so it was argued, opportunity for consumption of alcohol in the evening and the morning. In the morning, MA may have obtained it himself, or been given it by [LM] or another person, prior to arrival of paramedics. Notwithstanding that this is so, the trial judge proposes to direct the jury, in effect, that the complainant must be wrong about his alcohol consumption on Friday evening rather than Saturday morning, and to do so solely on the basis of his BAC on Saturday morning. There is, the applicant submitted, no reason for the judge to so direct.
The applicant also contended that MA’s evidence that he did not consume alcohol in the morning may be mistaken by reason of his physical and mental state at the time or for some other reason. It is no more likely that he is wrong about drinking on Friday night than drinking on Saturday morning.
It was argued that the prosecution hypothesis is open having regard to the BAC at 11.55am; the complainant’s evidence; the opportunity for ingestion of alcohol in the morning; the medical and paramedic evidence; and the location of the Jim Beam bottle. Indeed, the hypothesis remains open even if the Jim Beam bottle is ignored. The prosecution hypothesis is, it was submitted, no more directly contrary to the evidence than the defence hypothesis.
If the prosecution were seeking to prove that the complainant was drunk on Friday evening, the defence would be entitled to raise as a reasonable possibility the ingestion of alcohol in the morning. To do so would not be to speculate, it would be to raise a reasonable possibility open on the evidence.
The trial judge’s ruling forecloses the critical issue in the case and compromises the evidence of its chief witness, and thus the prosecution case, unfairly. In assessing MA’s credibility, it is open to the jury to consider the possibility his BAC at 11.55am arises from alcohol lately consumed. To do so is not to speculate, it was argued, but merely to fairly weigh the strength of the defence attack on credit.
The respondents’ submissions
Counsel for the respondents submitted that the ruling that the Crown seeks to challenge was plainly correct, and that there is no evidentiary foundation for the question the Crown seeks to ask Dr [SG], nor any foundation for the Crown’s argument. Further, it is submitted that the argument the Crown wishes to run at trial ‘has been expressly disavowed by [MA]’.
Discussion
The common law set its face against the fragmentation of criminal proceedings.[8] In our view, the introduction of a regime for interlocutory appeals in criminal cases, introduced as recently as 1 January 2010, was not intended to derogate from the overarching notion that fragmentation of criminal proceedings is undesirable. Indeed, one may readily discern from the text of the statute governing interlocutory appeals that it was not the legislature’s intention that fragmentation of criminal proceedings should ordinarily be contemplated. Thus, once a trial has commenced, leave to appeal may only be granted if the reasons for doing so clearly outweigh any disruption of the trial.[9] Moreover, leave may only be granted if it is in the interests of justice to do so, having regard to the extent of any disruption or delay to the trial process that may arise if leave is given.
[8]R v Elliott (1996) 181 CLR 338, 257. See also Smith v The Queen (1994) 181 CLR 338, 346.
[9]CPA, s 297(2).
Indeed, the language of the statute makes it plain that interlocutory appeals should not be the norm, and should be reserved for unusual cases where the determination of an appeal against an interlocutory decision may render the trial unnecessary; substantially reduce the time required for the trial; resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial. These fetters on appellate intervention emphasise, in our view, that Parliament intended to uphold the authority of the trial judge,[10] and that such authority should not lightly be interfered with. Thus, in our view, without seeking to be overly prescriptive, leave to appeal an interlocutory decision should not readily be granted, and should only be granted if, for example, it can clearly be discerned that there has been some error of principle which may lead justice to miscarry, or which may be permeated unless corrected. This case does not come close to fitting that mould.
[10]Cf R v Steffan (1993) 30 NSWLR 633.
The regime for interlocutory appeals was not designed to cater for appeals against routine evidentiary rulings — as the impugned ruling is — made in the ordinary course of a criminal trial. It must be said — and cannot be ignored — that the already overloaded system of criminal justice in this State simply cannot cope with, and should not have to tolerate, interlocutory appeals directed to issues of little moment.
Since the trial in this case is well underway, this Court could only grant leave to appeal if the reasons for doing so clearly outweighed any disruption to the trial. The Court would need to be satisfied that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.[11] Further, we would also need to be satisfied that it is in the interests of justice to grant leave, having regard to the extent of any disruption or delay to the trial process that may arise if leave is given; and whether the determination of the appeal against the interlocutory decision may render the trial unnecessary, substantially reduce the time required for the trial, resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial, or reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial.
[11]CPA, s 295(3)(a).
None of those requirements have been met since, in our opinion, the judge’s ruling refusing the prosecutor permission to ask the impugned question, and to mount an argument to the jury that MA’s BAC at 11.55am on 17 August 2013 might have been the result of alcohol consumption that morning, plainly is correct.
The prosecution seeks to elicit an opinion from Dr [SG] as to how much whiskey MA might have been required to consume to bring MA’s BAC to between .072 and .088 per cent at 11.55am on the Saturday morning. Such opinion, however, would be elicited on a flawed basis, and would be wholly irrelevant to the jury’s task, since a proper evidentiary foundation for it is lacking. Apart from a whiskey (or bourbon) bottle in some proximity to where MA was found in an injured state, there is not one jot of evidence to suggest that he had consumed any whiskey from the bottle. In order for an hypothesis to be available for the jury’s use, there must be some evidentiary support for it, beyond mere speculation or guesswork. In this case there is none.
Further, the judge discerned that the prosecution was seeking to put part of its case in a way that had not earlier been disclosed. The prosecutor asserted that it had always been his intention, and it was implicit in everything that he said, that he would go to the jury on the basis that there was another explanation for MA’s BAC reading. But the judge, who is very experienced in criminal cases, had not been able to divine from what had gone before, that this was the prosecution’s intention. Thus, so judge and defence counsel thought, the case had commenced, and had been conducted, on the basis that MA’s BAC when tested on the Saturday morning indicated that his BAC was very high at around the time he met with his injuries. Such a late change in the prosecution’s case should not be contemplated, and underscores the undesirability of granting leave.
Conclusion
For these reasons, the application for review of the trial judge’s refusal to certify under s 295(3) of the CPA must be refused. Insofar as it may be necessary, we would also refuse leave to appeal the interlocutory decision.
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