Finn v The Queen
[2011] VSCA 120
•29 April 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
Nos 81 and 82 of 2011
| MATTHEW FINN |
| V |
| THE QUEEN |
| WAYNE FINN |
| V |
| THE QUEEN |
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JUDGES: | NEAVE and WEINBERG JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 29 April 2011 | |
DATE OF JUDGMENT: | 29 April 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 120 | |
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CRIMINAL – Interlocutory Appeal – Application for review – Refusal to certify interlocutory decisions – Criminal Procedure Act 2009, ss 295, 296 – Application for vacation of trial date to allow for funding of private legal representation – Sufficient time to arrange for private funding – Delay in lodging application for legal aid – Application for separate trial from co-accused – Any prejudice curable by jury directions – Applications for review refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the First Applicant | In person | |
| For the Second Applicant | In person | |
| For the Respondents | Mrs C M Quin | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE JA
WEINBERG JA:
(Neave JA delivered the judgment of the Court)
This is an application for review of the decision of a Trial Division judge, refusing to certify that two interlocutory decisions made by her are of sufficient importance to the trial to justify their determination on an interlocutory appeal.[1] The relevant interlocutory decisions were:
[1]Criminal Procedure Act 2009 s 296.
(a) a decision made on 18 April 2011 refusing an application to vacate the trial date for a period of four months, to enable the applicants to acquire funds to pay for their private legal representation in their forthcoming trial for drug offences. The trial is currently listed to commence on 2 May 2011; and
(b) a decision made on 7 April 2011 refusing to order that the charges against the applicant, Matthew Finn, be tried separately from the charges against his brother, Wayne Finn.
On 14 November 2007, Wayne and Matthew Finn were charged with various drug offences, arising out of drug trafficking activities, some of which were alleged to have been conducted with a co-accused, Antonios Mokbel. Counts 3 and 4 presented Wayne Finn on trafficking a large commercial quantity of methylamphetamine at Toolern Vale between 1 January 2005 and 20 June 2005. The Crown case was that, on two occasions, Wayne Finn attended a methylamphetamine laboratory in Toolern Vale operated by Mr Mokbel to cook the drug. Counts 5 to 7 present Wayne Finn and Matthew Finn on counts of trafficking in various drugs of dependence at Springvale. These counts relate to a methylamphetamine laboratory which Wayne Finn is said to have operated in Springvale with the assistance of his brother. Counts 8 to 11 also relate to the Springvale operation and present the brothers on counts of possessing prescribed precursor chemicals and glassware and scientific apparatus.
Count 12 presents Wayne Finn on a count of dealing with the proceeds of crime, namely $67,700, knowing that it was the proceeds of crime, and count 13 presents Matthew Finn on a count of possessing an unregistered general category handgun at Springvale on 7 November 2007. The applicants were committed for trial in March 2009.
Each of these applications for review relate to decisions of the trial judge on matters of practice and procedure. As Spigelman CJ pointed out in DAO v The Queen,[2] it is the practice for appellate courts to exercise considerable restraint when making decisions on interlocutory appeals from such decisions. Because of the broad discretion conferred on trial judges to determine such questions, interlocutory appeals on such matters are subject to the principles in House v The King.[3]
[2][2011] NSWCCA 63, [55], [70]. See also [78] (Allsop P).
[3](1936) 55 CLR 499.
We will now discuss each of the applications for review in turn.
Vacating the trial date
The history of the proceedings is set out in her Honour’s ruling on the application to vacate the trial date. It is unnecessary to repeat that chronology in detail, though we will briefly refer to relevant matters.
As we have said, the applicants were initially charged with a number of others, including Mr Mokbel. In a directions hearing held before Whelan J on 9 September 2010, the Crown submitted that a number of the accused, including the applicants, might be concerned about delay and that it might be appropriate to consider applications for separate trials of some of the defendants. At that stage, counsel for the applicants foreshadowed that they would be seeking a separate trial from Mr Mokbel because ‘they were anxious to progress this matter as soon as possible’. A timetable was drawn up jointly by the Crown and the defence, and the application that Wayne Finn and Mathew Finn be tried separately from Mokbel was listed for hearing in late January 2011.
A directions hearing was held on 28 January 2011, in which the Crown said that it would not oppose the separation of Mr Mokbel’s trial, if earlier trial dates were available for other co-accused. At that stage, counsel for the applicants told the judge that Mr Michael Tovey QC had been briefed for Matthew Finn, and Mr Stephen Shirrefs SC had been briefed for Wayne Finn, that three to four months were required to secure funding for counsel and that neither counsel was available until mid-year. It was also indicated that there would be an application to separate the trial of Wayne Finn from the trial of Matthew Finn.
Whelan J was concerned about the possible delay in the applicants’ trial and said that separation of their trial from that of Mr Mokbel would permit their trial to be held earlier. He indicated that he was not prepared to accept ‘fairly vague assertions about funding problems and counsel availability’ and that he would therefore fix the matter for trial on Friday, 29 April 2011.
At a later directions hearing held before King J on 24 March 2011, her Honour told the applicants’ solicitor that the trial would proceed on 2 May. She was told by the applicants’ solicitor that the applicants would require approximately four months to secure funding for the trial, that they would be unrepresented if the trial proceeded on that date and that, in any case, they were not ready to proceed.
The judge then set a timetable requiring the applicants to serve on the Crown and file with the Court any affidavit material upon which they relied in support of their application to vacate the trial date by Friday, 1 April 2011, and to have any deponent available for cross-examination at the hearing of the application.
No material relating to the application to vacate the trial date was served on the Crown or filed with the Court by 1 April. Her Honour heard the application to vacate the trial on 18 April, that is, after she had heard the application for separate trials on 7 April. At that stage, it was submitted that the applicants required another four months to obtain funding for legal representation.
In her ruling, her Honour referred to an affidavit filed by Wayne Finn at the commencement of the hearing on 7 April, stating that he would be able to raise the necessary amount to fund representation by senior counsel for both his brother and himself by restoring and selling pinball machines and that it would take three to four months to do so. Her Honour noted that, before a trial date was set, the applicant, Wayne Finn, was working with Matthew Finn in his brother’s plumbing business and that that business would not be a provider of trial funds. She said that the applicants would have been aware from at least September 2010 that the Court considered that the trial should be heard as quickly as possible and that they had had more than adequate time to attempt to source the funds they required to brief their counsel of choice. Her Honour considered that they had failed to make any real or significant effort to obtain those funds in the four years since they were indicted for these offences.
Before us, the applicants submitted that her Honour should have vacated the trial date to give them time to obtain funds or, alternatively, should have made an order for legal aid. Presumably, the latter submission relates to the discretion which exists under s 197(3) of the Criminal Procedure Act 2009 to order Victoria Legal Aid to provide legal representation to the accused or to adjourn the trial until that legal representation has been provided.
We would refuse the application for review of the trial judge’s refusal to vacate the trial date. The applicants have been on bail since November 2007 and have known from at least January 2011 that the Court considered that their trial should proceed as soon as possible. Indeed, at the hearing before Whelan J, counsel for the applicants, on their behalf, professed the desire that that should occur. We were told from the bar table that no application for legal aid had been lodged with Victoria Legal Aid until 14 April 2011 and that no response has yet been received to that application.
If the applicants had the capacity to arrange private funding for their legal representation, we consider that they had had adequate time to do so or alternatively, to seek legal aid. If her Honour considers that it is necessary to make an order under s 197(3) of the Criminal Procedure Act 2009 that Victoria Legal Aid fund the applicants’ legal representation in order to ensure they receive a fair trial, she can do so at any stage during the trial.[4] It would be open to the applicants to seek such an order at the beginning of the trial.
[4]See R v Hoang (2007) 16 VR 369.
In our opinion, this Court should only interfere with the exercise of a trial judge’s discretion on matters of trial management in very exceptional circumstances, to prevent a manifest miscarriage of justice. In exercising her discretion as to whether to vacate the trial date, her Honour had to take account of matters such as availability of witnesses, the availability of court time, and the desirability of holding a trial which had been significantly delayed, as well as the ability of the applicants to obtain legal representation. Her Honour did not err in the exercise of her discretion and her refusal to certify that the decision was of sufficient importance to the trial to require determination on an interlocutory appeal cannot be impugned.
We now turn to the application for a separate trial by Matthew Finn.
Separate trial ruling
In her 7 April ruling on this matter, King J noted that the basis for the application was that a jury would not be able to consider the evidence admissible against each accused separately because they were brothers and the evidence against one would inevitably taint one with the evidence of the other. Her Honour noted that counts 3 and 4 pertained only to Wayne Finn and that there would be no difficulty in directing the jury that the evidence relating to Wayne Finn’s involvement in the Toolern Vale laboratory could not be taken into account in reaching a verdict on the counts on which the brothers were jointly presented.
Section 193(3) of the Criminal Procedure Act2009 provides that the court may make an order that charges against a specified accused be tried separately, if the court considers that ‘a trial with the co-accused would prejudice the fair trial of the accused’ or ‘for any other reason it is appropriate to do so’.[5] The section confers a broad discretion on the judge to order a separate trial.[6]
[5]The Criminal Procedure Act 2009 applies to this trial because the indictment was filed over in September 2010: see cl 8(1) of sch 4.
[6]As to the basis for their joint indictment, see cl 5(1) of Schedule 1 to the Criminal Procedure Act 2009.
The argument that Matthew Finn could not receive a fair trial because his brother was being tried on separate counts relating to the Toolern Vale laboratory is not persuasive. Indeed, as counsel for the Crown submitted at the directions hearing, the jury may very well take the view that ‘[i]t is Wayne Finn that is the drug trafficker and it may well assist Matthew Finn in his argument that he was unaware and had no knowledge of the manufacture and trafficking occurring at the Springvale premises’. Juries are commonly told that evidence which is admissible against one accused cannot be taken into account in considering the case against a co-accused. There is no reason to consider that they would disregard such a direction in the circumstances of this case.
The judge took account of all relevant considerations in deciding whether to order separate trials and there is no basis for interfering with the exercise of her discretion under s 193(3). As the judge said, any possibility of prejudice can be dealt with by appropriate jury directions. If, for some reason which has not yet become apparent, the failure to order separate trials results in a miscarriage of justice, as a consequence of which one of the applicants is convicted, that applicant will be able to seek leave to appeal against the conviction. There is no error in her Honour’s ruling and the judge appropriately refused to certify that the matter was of sufficient importance for the Court to determine it on an interlocutory appeal.
We would therefore dismiss the application for review of the decision of the trial division judge refusing to certify that the two interlocutory decisions were of
sufficient importance to the trial to justify their determination on an interlocutory appeal.
The order of the Court is that the applications for review are dismissed.
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