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DPP v Wise

DPP v Wise

Case [2016] VSCA 173 21 July 2016

Admissibility of Evidence

Interlocutory Orders

Criminal Liability

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0085

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
DAN WISE (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 name of the respondent.

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JUDGES:	WARREN CJ, WEINBERG and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 July 2016
DATE OF JUDGMENT:	21 July 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 173
RULING APPEALED FROM:	DPP v [Wise] (Unreported, County Court of Victoria)

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CRIMINAL LAW – Interlocutory appeal – Pending trial for a sexual offence – DNA evidence –Whether probative value of evidence outweighed by risk of unfair prejudice – Evidence ruled inadmissible – Judge’s refusal to certify under s 295(3) of the Criminal Procedure Act 2009 – No error in judge’s refusal to certify.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G J C Silbert QC	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr S Ginsbourg	Daniel Taylor & Associates

WARREN CJ
WEINBERG JA
PRIEST JA:

Introduction

An indictment filed in the County Court charges the respondent, ‘Dan Wise’, with the penile-oral rape of ‘MA’.[2]
[2]Crimes Act 1958, s 38(3).

By a ruling delivered on 10 May 2016, the trial judge ruled to be inadmissible certain DNA evidence upon which the prosecution sought to rely (‘the interlocutory decision’). Subsequently, when requested by the prosecutor to do so, the judge refused to certify under s 295(3) of the Criminal Procedure Act 2009 (‘CPA’) that the evidence ‘would eliminate or substantially weaken the prosecution case’.

Pursuant to s 296 of the CPA, the Director of Public Prosecutions (‘the Director’) seeks a review of the judge’s refusal to certify, and, if that application is successful, seeks leave to appeal against the interlocutory decision.

For the reasons that follow, we would refuse the application for review. There is thus no occasion to entertain the application for leave to appeal.

The statutory regime for interlocutory appeals

As this Court has observed more than once, the common law set its face against the fragmentation of criminal proceedings.[3] The introduction of a regime for interlocutory appeals in criminal cases was not intended to derogate from the overarching notion that fragmentation of criminal proceedings is undesirable.[4] As may be gleaned from the text of the statute governing interlocutory appeals, it was not the intention of the legislature that fragmentation of criminal proceedings should ordinarily be contemplated. Interlocutory appeals should be reserved for unusual cases. Statutory fetters on appellate intervention emphasise, in our view, that the legislature intended to uphold the authority of the trial judge, and contemplated that such authority should not lightly be interfered with.[5] The regime for interlocutory appeals was not designed to cater for appeals against routine evidentiary rulings made in the ordinary course of a criminal trial.[6]
[3]DPP v Pace (2015) 45 VR 276, 283 [24] (Priest and Beach JJA) (‘Pace’); R v DG; DG v…

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 Wise

Details

AGLC: DPP v Wise [2016] VSCA 173
Case: [2016] VSCA 173
Decision Date: 21 July 2016

CaseChat Overview and Summary

The matter of the Director of Public Prosecutions v Wise was heard in the court. The defendant, Wise, is awaiting trial on charges of sexual offences. The prosecution sought to introduce DNA evidence, which the defence opposed on the grounds that it was unfairly prejudicial. The High Court was asked to review the judge's decision not to certify the admissibility of the evidence under section 295(3) of the Criminal Procedure Act 2009. The court had to determine if the judge's decision was erroneous, focusing on whether the probative value of the evidence was outweighed by the risk of unfair prejudice.

The primary issue before the court was whether the judge had correctly exercised their discretion under section 295(3) of the Act, which allows the court to certify that certain evidence should be admissible despite its prejudicial nature if its probative value justifies it. The court examined the nature of the DNA evidence and its relevance to the charges, as well as the potential for it to unfairly prejudice the defendant's case. The defence argued that the evidence was highly prejudicial, potentially leading the jury to convict based on a mere association rather than on the strength of the prosecution's case. The prosecution contended that the evidence was crucial to establishing the defendant's involvement in the offences.

The court found that the judge had properly assessed the prejudicial nature of the evidence and determined that its probative value did not sufficiently outweigh the risk of unfair prejudice. The judge's detailed analysis of the evidence and the potential impact on the fairness of the trial was considered thorough and appropriate. The court concluded that the judge's refusal to certify the admissibility of the DNA evidence was not an error, as the evidence did not meet the necessary threshold under section 295(3) of the Act. Therefore, the appeal was dismissed, and the evidence remained inadmissible in the trial.

Orders