Finn v The Queen - [2011] VSCA 120

SUPREME COURT OF VICTORIA

COURT OF APPEAL

Nos 81 and 82 of 2011

MATTHEW FINN
V
THE QUEEN
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…

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 Finn v The Queen

Details

AGLC: Finn v The Queen [2011] VSCA 120
Case: [2011] VSCA 120
Decision Date: 29 April 2011

CaseChat Overview and Summary

Finn applied for review of decisions refusing to certify interlocutory appeals. The appeals concerned the refusal to vacate a trial date, the refusal to certify an application to separate the trial from a co-accused, and the refusal to certify an application for funding to enable private legal representation. The High Court was asked to consider the refusal to certify interlocutory appeals under sections 295 and 296 of the Criminal Procedure Act 2009.

The legal issues before the court were whether the refusals to certify the interlocutory appeals were so unreasonable as to be unjust. The court was asked to determine whether there was sufficient time to arrange private funding, whether any delay in applying for legal aid justified vacating the trial date, and whether the prejudice caused by a joint trial would be curable by jury directions.

The court held that none of the applications met the threshold for certification. The court found that there was sufficient time to arrange for private funding and that the delay in applying for legal aid did not justify vacating the trial date. The court also held that any prejudice caused by a joint trial would be curable by jury directions. The court found that the decisions to refuse certification were not so unreasonable as to be unjust.

The applications for review were dismissed.

Orders