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DPP v Pace (a Pseudonym)

DPP v Pace (a Pseudonym)

Case [2015] VSCA 18 13 February 2015

Appeal

Jurisdiction

Admissibility of Evidence

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DPP v Pace (a Pseudonym)

Details

AGLC: Revised: Director of Public Prosecutions v Pace, Collins and Baker (pseudonyms) [2015] VSCA 18
Case: [2015] VSCA 18
Decision Date: 13 February 2015

CaseChat Overview and Summary

This is an application for leave to appeal an interlocutory decision from the County Court of Victoria in a criminal trial. The respondents have pleaded not guilty to charges of intentionally and recklessly causing serious injury to the complainant in circumstances of gross violence. The prosecution sought to adduce evidence from an expert witness regarding the complainant's blood alcohol concentration (BAC) at the time of the alleged assault and on the morning of the following day. The trial judge ruled that the evidence was speculative and irrelevant, and refused to permit the prosecutor to ask the expert witness about the amount of alcohol required to achieve a certain BAC or to argue that the complainant's BAC on the morning of the assault might have resulted from alcohol consumption that morning.

The applicant, the Director of Public Prosecutions, sought leave to appeal the interlocutory decision under section 295 of the Criminal Procedure Act 2009. The Court of Appeal found that the application should be refused. The trial judge's ruling was correct, as there was no evidentiary basis for the prosecution's argument, and the ruling did not eliminate or substantially weaken the prosecution case. The Court of Appeal emphasized that interlocutory appeals should not be the norm, and should only be granted in unusual cases where the determination of the appeal may render the trial unnecessary, substantially reduce the time required for the trial, resolve an issue of law, evidence, or procedure necessary for the proper conduct of the trial, or reduce the likelihood of a successful appeal against conviction if the accused is convicted at trial. None of these requirements were met in this case. The Court of Appeal concluded that the application for review of the trial judge's refusal to certify under section 295(3) of the CPA must be refused, and leave to appeal the interlocutory decision should also be refused insofar as it may be necessary.

The final orders of the Court of Appeal were to refuse the application for review of the trial judge's refusal to certify under section 295(3) of the CPA, and to refuse leave to appeal the interlocutory decision insofar as it may be necessary.

Orders