Lindsey (a pseudonym) v The Queen
[2021] VSCA 230
•24 August 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0042
| PHILLIP LINDSEY (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]Because this is an interlocutory proceeding, a pseudonym has been used in place of the name of the applicant.
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| JUDGES: | MAXWELL P, KYROU and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 23 July 2021 |
| DATE OF JUDGMENT: | 24 August 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 230 |
| JUDGMENT APPEALED FROM: | [2021] VCC 294 (Judge Hassan) |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Arson – Agreement to commit offences – Evidence – Hearsay – Co-conspirators rule – Admissibility of statements made by third parties in absence of applicant (accused) – Whether ‘reasonable evidence’ of applicant’s participation in criminal enterprise – Evidence admissible - Leave to appeal refused – Ahern v The Queen (1988) 165 CLR 87, Tripodi v The Queen (1961) 104 CLR 1, Tsang v The Queen (2011) 35 VR 240, Director of Public Prosecutions v Mariona [2019] VSCA 107 considered – Evidence Act 2008 s 87(1)(c).
CRIMINAL LAW – Appeal – Interlocutory appeal – Certification – Review of refusal to certify – Whether statutory test satisfied – Interlocutory decision concerned admissibility of evidence - Exclusion of impugned evidence would ‘eliminate or substantially weaken the prosecution case’ – No separate question concerning whether interlocutory decision ‘attended with doubt’ – Refusal to certify not reasonably open – Review application allowed – McDonald v Director of Public Prosecutions (2010) 26 VR 242, Stannard v Director of Public Prosecutions (2010) 28 VR 84 considered – Criminal Procedure Act 2009 s 295(3).
WORDS AND PHRASES – ‘eliminate or substantially weaken the prosecution case’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Page | Haines & Polites |
| For the Respondent | Mr A Grant | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
KYROU JA
NIALL JA:
Summary
The applicant is facing two charges of arson,[2] arising from the following circumstances. In the early hours of the morning on 14 February 2019, two motor vehicles were set on fire. The applicant was in prison at the time.
[2]Contrary to Crimes Act 1958 ss 197(1) and (6).
The case against him is that he entered into an agreement with others that the acts of arson be committed.[3] Although complicity is now governed by statute, the phrase ‘criminal enterprise’, as used by the trial judge in her ruling, aptly captures the basis of complicity relied on.[4]
[3]Ibid s 323(1)(c).
[4]DPP v [Lindsey] [2021] VCC 294, [39], [48], [50] (Judge Hassan) (‘Ruling’).
It is alleged that the applicant recruited a friend of his (‘MB’) and asked him to arrange for the vehicles to be set on fire. The applicant’s motive is said to have been revenge against a person (‘S’) with whom he had previously shared a house.
The Crown case is founded on two sets of recorded telephone conversations. The first set comprises conversations between the applicant and various individuals, including MB. The second set comprises conversations to which the applicant was not a party.[5] The key third party conversations are between MB and his twin sister (‘SB’) and between MB and the applicant’s partner (‘MW’).
[5]We will refer to the second set as the ‘third party conversations’.
There is no dispute about the admissibility of evidence of the first set of conversations. In a pre-trial application, however, the defence applied to have the third party conversations excluded in their entirety, on the ground that the evidence was hearsay.
The judge ruled that the third party conversations were admissible. The defence then sought certification under s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’), but her Honour refused to certify.[6] The applicant now applies under s 296(1) to review that refusal to certify.
[6]DPP v [Lindsey] (Unreported, County Court of Victoria, Judge Hassan, 23 March 2021) (‘Certification Ruling’).
Because the interlocutory decision concerned the admissibility of evidence, an application for leave to appeal could only be made if the judge certified — in accordance with s 295(3)(a) — that the exclusion of the evidence in question would ‘eliminate or substantially weaken the prosecution case’. In the course of argument on the application for certification, her Honour agreed with defence counsel that the evidence of the third party conversations satisfied that requirement.
Her Honour informed counsel, however, of her understanding that she could nevertheless refuse to certify if she were not ‘satisfied that the ruling is attended by sufficient doubt’. Both defence counsel and the prosecutor confirmed that this was correct. Her Honour then proceeded to refuse the application for certification, as she considered that her decision was ‘not attended by sufficient doubt’.[7]
[7]Ibid 54.
As will appear, we respectfully agree with her Honour’s ruling on the substantive admissibility question. It was plainly correct. As to certification, however, her Honour was not correct to proceed on the basis that there was a second, and separate, question about whether her ruling was attended by sufficient doubt. Once the statutory condition for certification was satisfied — as it was — certification should have followed as a matter of course. There was no separate question to be asked.
As will appear, the argument on admissibility centred on what is known as the ‘co-conspirators rule’. The rule applies where evidence is sought to be led against an accused person, to prove his/her participation in an alleged conspiracy, of things done or said outside the accused’s presence by other alleged co-conspirators.[8] The rule applies equally to a case like the present, where a substantive offence is charged on the basis that the accused entered into an agreement with others to commit the offence.[9]
[8]Ahern v The Queen (1988) 165 CLR 87; [1988] HCA 39 (‘Ahern’).
[9]Tripodi v The Queen (1961) 104 CLR 1; [1961] HCA 22 (‘Tripodi’).
On this application, as before the judge, counsel for the applicant argued that the third party conversations were not admissible under the co-conspirators rule unless there was ‘reasonable evidence’ — independent of the conversations — of the applicant’s participation in giving effect to the alleged agreement to commit the acts of arson. Her Honour concluded that there was ‘reasonable evidence’ of his participation. For reasons which follow, we respectfully agree with her Honour’s conclusion.
Counsel for the applicant conceded — properly, in our view — that if we came to that view, it would follow that the third party conversations were admissible. That is, counsel accepted that the statements made in the third party conversations could reasonably be viewed as having been made ‘in furtherance of [the] common purpose’.[10]
[10]Evidence Act 2008 s 87(1)(c) (‘Evidence Act’).
As there was a sound objection to the refusal to certify, we will grant the applicant an extension for time within which to file the application to review the refusal. Leave to appeal must, however, be refused.
The prosecution case
As summarised in the judge’s ruling, the prosecution case is as follows. The applicant and S shared a rented house before the applicant was incarcerated on 18 December 2018. After going into custody, the applicant became angry with S over the way he had (allegedly) mistreated the rental property and the applicant’s personal property.
The applicant recruited his friend MB to seek revenge against S by setting fire to vehicles at his home. The arson was arranged through various telephone calls and text messages between the applicant, MB, JS (the sister of MB’s partner), SB, MW (the applicant’s partner), and a man referred to as ‘David’, who has not been identified.
On 12 February 2019, MB contacted JS by telephone to obtain the address of S’s girlfriend. That evening, JS sent a text message containing the address to MB.
On 13 February, the applicant called MB and told him he had booked a visit to the prison for him at 4:00 pm the next day. MB said he could not attend. The applicant said that the police listened to all his calls from prison and that, if he had anything ‘serious’ to tell MB, he would tell MW and she would tell MB.
At 5:53 pm, MB called SB and asked, ‘Who’s better to fuckin’ do this thing for me tonight? Fraps or Dave?’ SB replied, ‘Dave’. SB said, ‘He was excited last night waiting for it’, and MB said, ‘It needs to be done tonight’. The prosecution contends that ‘the thing’ and ‘it’ were references to the arson.
At 6:25 pm, the applicant called MB and said, ‘Hey, get him — remember what I told ya? Do you know what [MW] told ya? … Show some dash … Get it done’. MB said, ‘I’m getting it done ... I’m having a barbecue tonight’. The applicant said, ‘I know’. The prosecution contends that MB was advising the applicant that he had arranged for the arson to take place that night.
Later in the conversation, the applicant asked MB to ‘do three’, but then said, ‘just do two’. MB said he would ‘try and do three’. The prosecution contends that the applicant and MB were referring to the number of cars to be destroyed by fire. The applicant also asked MB to put money into a bank account, and to ‘ring in the morning’.
At 6:44 pm, MB spoke to SB about what time ‘Dave’ was going to come. MB said, ‘I need to give him this address, show him a photo and make sure it gets done tonight because these orders are coming from gaol’. MB said, ‘I’m gettin’ a phone call in the morning and I’ve gotta say, yes, it’s been done’. SB’s call charge records show that, after this telephone call, SB and ‘David’ exchanged five text messages and one telephone call of 82 seconds’ duration.
At 7:30 pm, SB told MB that she was waiting for ‘Dave’ to pick her up. SB and ‘David’ had two more telephone calls at 9:22 pm and 11:33 pm.
On 14 February at 12:15 am, MB spoke to SB and told her to ‘make sure it gets done’. MB said, ‘Don’t say nothing. Just message saying … thanks for the barbecue tonight or last night … not as soon as it’s done. Just, like, in the morning.’
The prosecution alleges that at 3:00 am, ‘David’ drove to S’s address, poured petrol onto two vehicles in the driveway, and then set the petrol alight. The fire was reported by a neighbour who called ‘000’. Firefighters attended the scene and extinguished the fire, but the vehicles were damaged beyond repair.
At 3:06 am, ‘David’ made a 63 second phone call to SB. At 3:15 am, SB sent a text to MB stating: ‘Hey sorry it’s late but I forgot to say thank u for the bbq’.
At 9:27 am, MB and JS spoke on the telephone. MB asked, ‘Was there any — any barbecues?’. JS said, ‘No, there wasn’t’, but MB said, ‘I’m telling you there was … You know where I’m talkin’ about, don’t ya?’. JS said, ‘yeah’.
At 9:57 am, MB spoke to MW, who said she would be visiting the applicant. MB said, ‘When you see him … let him know I had a — fuckin’ wish he was out ‘cause I had a good barbecue last night’. At 10:40 am, MB spoke to the applicant about not having the applicant’s bank account details. He then said, ‘You could’ve come and had a fuckin’ barbie with us last night’.
At 1:49 pm and 4:23 pm, the applicant made two phone calls to MB to organise for MB to deposit money into his bank account. At 5:55 pm, the applicant again called MB. They discussed the applicant missing the ‘barbecue’, and MB said he had deposited ‘three twenty’ into the bank account.
‘Reasonable evidence’ of common purpose
The argument, both at first instance and in this Court, was conducted by reference to the 2011 decision of this Court in Tsang v The Queen (‘Tsang’).[11] In that case, the Court (Nettle and Neave JJA and Sifris AJA) explained by reference to the High Court decisions in Tripodi[12] and Ahern[13] that there were three bases under which evidence of statements made by a third person co-accused in the absence of the accused may be admissible against the accused.
[11](2011) 35 VR 240; [2011] VSCA 336.
[12](1961) 104 CLR 1; [1961] HCA 22.
[13](1988) 165 CLR 87; [1988] HCA 39.
Submissions on this application focused on the third of the three bases of admissibility, identified in Tsang in these terms:
Thirdly, such statements may be admitted under the co-conspirators’ principle, which permits their admission as evidence of truth of the statements made in the absence of the accused, that is as an exception to the hearsay rule. In conspiracy cases, such evidence may be admitted to prove the accused person’s participation in conspiracy to do an unlawful act.[14]
[14](2011) 35 VR 240, 250 [38]; [2011] VSCA 336 (Nettle and Neave JJA and Sifris AJA).
The conditions of admissibility under this rule were clearly defined by the High Court in Ahern, as follows:
Where an accused is charged with conspiracy, evidence in the form of acts done or words uttered outside his presence by a person alleged to be a co-conspirator will only be admissible to prove the participation of the accused in the conspiracy where it is established that there was a combination of the type alleged, that the acts were done or the words uttered by a participant in furtherance of its common purpose and there is reasonable evidence, apart from the acts or words, that the accused was also a participant.[15]
[15]Ahern (1988) 165 CLR 87, 100; [1988] HCA 39 (Mason CJ, Wilson, Deane, Dawson and Toohey JJ).
On the basis of Ahern, the Court in Tsang concluded as follows:
The trial judge must find that there is reasonable evidence (other than the evidence sought to be admitted) of the existence of the conspiracy and of the accused’s participation in it, before the statements made in the absence of the accused by other conspirators in furtherance of the conspiracy can be left to the jury as evidence of these matters.[16]
[16](2011) 35 VR 240, 251 [40]; [2011] VSCA 336 (citations omitted).
It was common ground that the co-conspirators rule was now embodied in s 87(1)(c) of the Evidence Act,[17] which provides as follows:
[17]Elomar v The Queen [2014] NSWCCA 303, [288] (Bathurst CJ, Hoeben CJ at CL and Simpson J); Beqiri v The Queen [2017] VSCA 112, [92]–[93] (Weinberg, Osborn and Whelan JJA) (‘Beqiri’); Schanker v The Queen [2018] VSCA 94, [118] n 26 (Tate and McLeish JJA and Kidd AJA).
(1) For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that—
….
(c) the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.
It was also common ground that the ‘reasonable evidence’ requirement — as defined at common law — was a precondition to the engagement of this provision. That is, before addressing the ‘reasonably open’ condition defined by the statute, the judge first needed to be satisfied — without reference to the third party conversations — that there was reasonable evidence of the applicant’s participation in the alleged criminal enterprise.[18]
[18]At times, the parties also directed argument at whether there was ‘reasonable evidence’ of the existence of the agreement to commit the offence — and the two are obviously closely related — but the judge’s decision was confined to the question of whether there was evidence of participation.
As noted earlier, her Honour was satisfied that this requirement was met. It is appropriate to set out the relevant part of her Honour’s reasons, as follows:
In my view, there is ‘reasonable evidence’ beyond the statement ‘show some dash’ and the [applicant]’s general malice towards [S] which supports a finding that the [applicant] was a participant in the arson which occurred at 3:00 am on 14 February 2019.
In determining whether or not there is reasonable evidence of an accused’s participation in a criminal enterprise, it is not for the judge to make an assessment of the truth or reliability of any evidence; that remains the role of the jury, and any alleged shortcomings in the evidence may be the subject of appropriate directions to the jury.
The evidence which supports the [applicant]’s participation, before one considers the impugned conversations, is as follows.
First, the evidence of malice or motive on the part of the [applicant] is significant and well-demonstrated by the [applicant]’s own statements from 11 February. It is the [applicant], and the [applicant] alone, who repeatedly expresses ill-will towards [S]. These conversations are capable of supporting the inference that the [applicant] is seeking to recruit others, in particular [MB], to act on his behalf and enact retribution against [S].
There is evidence that [MB] owed the [applicant] money, and this is evidence capable of supporting the inference that the [applicant] had a hold over [MB], and was in a position to exert some control or influence over him.
On 12 February, the [applicant] discussed [MB] coming to meet with him in prison with his (that is, the [applicant]’s) partner [MW] at 4:00pm the following day. Again, on 13 February at 9:52 am, the [applicant] is trying to organise [MB] to come to the prison to see him the next day. When [MB] tells the [applicant] he can’t come because it is Valentine’s Day, the [applicant] responds by telling him that if he has anything ‘serious’ he needs to communicate, he will tell his partner [MW], and get her to pass it on. The evidence of organising prison meetings and organising communication with [MB] via his partner [MW] is, in my view, capable of supporting the inference that the [applicant] is making arrangements with others in preparation for retribution against [S].
The critical conversation involving the [applicant] is that of 13 February at
6:25 pm with [MB]. It is in this conversation that, when discussing [S], the [applicant] says to [MB], ‘show some dash, man. Get it done’, which the defence argue is the only statement made by the [applicant] that may be characterised as a directive to [MB]. But in response to being told by the [applicant] to ‘get it done’, [MB] says, ‘It’s getting done … I’m having a barbecue tonight’, to which the [applicant] responds, ‘Yeah, I know. Yeah’.
The prosecution case is that ‘barbecue’ is the code used for arson. It is hardly the most subtle or cryptic code, and the [applicant]’s response, ‘Yeah, I know’, indicates both knowledge and participation.
Further in the conversation, the [applicant]’s statement ‘Just do two’ is capable of being treated as a directive to [MB] to destroy two vehicles, which is precisely what occurred at 3:00 am the following morning.
Subsequent to the arson, the [applicant] in phone calls expresses his regret at having missed ‘the barbecue’.
In my view, the evidence outlined of conversations involving the [applicant], and about which there is no dispute in regard to their admissibility, is ‘reasonable evidence’ of the [applicant]’s participation in a criminal enterprise, and that being the arson of 14 February 2019 in which
[S]’s vehicles were destroyed.[19]
[19]Ruling [38]–[48].
Consideration
In our respectful view, her Honour was right to conclude that there was ‘reasonable evidence’ of the applicant’s participation in the alleged criminal enterprise. Her conclusions about the inferences open on the evidence of the conversations in which the applicant participated are unimpeachable.
As counsel for the prosecution submitted, her Honour was right to view the applicant’s repeated expressions of animosity towards S as significant. For the reasons given in Director of Public Prosecutions v Mariona,[20] those statements were capable of supporting the inference that the applicant had a motive to take hostile action against S and — as her Honour said — that he was ‘seeking to recruit others … to act on his behalf and enact retribution’ against S.[21]
[20][2019] VSCA 107, [36]–[39] (Maxwell P and Weinberg JA), [52]–[53] (Priest JA) .
[21]Ruling [41].
The correctness of her Honour’s conclusion can be further illustrated by a closer examination of extracts from one of the conversations between the applicant and MB. This is what her Honour described as the ‘critical conversation’,[22] which took place in the early evening of 13 February, only hours before the cars were burned.
[22]Ibid [44].
The relevant part of the conversation began with MB telling the applicant that a certain person (N) had tried contacting him. When the applicant asked what the contact had been about, the conversation continued as follows:
MB:No, [N] said he —
APPLICANT: What’s up?
MB:Was in with you.
APPLICANT: Yeah, he was. He was.
MB:And — and he tried contacting me about [S].
APPLICANT: Oh, yeah, yeah.
MB:Did you —
APPLICANT: Watch out —
MB:Ask him to —
APPLICANT: He doesn’t go to my house.
MB:Contact me?
APPLICANT: Yeah, I did. Hey, get him — remember what I told ya? Do you know what [MW] told ya? Mate, get a — like, you know what I mean. Fuck, show some dash, man. Get it done. Like, hey.
MB:It’s getting done. Fuck you. I’m having a —
APPLICANT: (Laughs).
MB:Barbeque tonight.
APPLICANT: Yeah, I know. Yeah. Um, yeah, what are you doin’? I need — hey, can you — can you, um, do two or three for me for three [hundred].
MB:When?
APPLICANT: Like, tomorrow or tonight if you can if you go out.
MB:Uh, to who?
APPLICANT: Whatever. Like, they’ll — they’ll ring ya or message ya with details. What’s your mobile?
The Crown case is that, when the applicant said to MB, ‘Get him’, this was a reference to S, whom MB had just mentioned by name. The words ‘Get it done’ were words of instruction, direction or command to MB from the applicant.
There was extensive debate in this Court about what was to be made of the next exchange between MB and the applicant. As can be seen, MB’s response to the instruction ‘Get it done’ was to say ‘It’s getting done … I’m having a barbeque tonight’. The applicant’s response was, ‘Yeah, I know’.
As can be seen from the extract from the reasons set out above, the judge accepted the prosecution submission that ‘barbeque’ was a code word being used by MB to refer to the proposed arson. In her Honour’s view, it was ‘hardly the most subtle or cryptic code’.[23] Crucially, in her Honour’s view, the applicant’s response indicated ‘both knowledge and participation’.[24]
[23]Ibid [45].
[24]Ibid.
Counsel for the applicant submitted that it would not be open to a jury to infer that what MB and the applicant were here discussing was the proposed arson. According to the submission, there was nothing in the recorded conversations involving the applicant to indicate what was being referred to when he said ‘Get it done’. And, as to the word ‘barbeque’, there was nothing to show that the applicant understood it to being used in anything other than its ordinary sense.
We disagree. It should be pointed out that both MB and SB have admitted to arranging for the arson to take place. Counsel for the applicant acknowledged that, when speaking to each other, MB and SB had used the word ‘barbeque’ to refer to the burning of the cars. That being so, counsel for the applicant made the entirely proper concession that, when MB said to the applicant that he was ‘having a barbeque tonight’, he was using the word in its coded sense, that is, to indicate that he would be committing arson or arranging for it to be committed.
Counsel maintained, nevertheless, that it did not follow from this that the applicant would have understood its coded meaning. In our view, that contention strains credulity. So far from indicating any puzzlement at MB’s use of the word ‘barbeque’, the applicant responded by saying, ‘Yeah, I know’. Moreover, the word was used in subsequent conversations to which the applicant was a party, in contexts which support the inference that it was not being used to refer to an ordinary barbeque. For example, on the following day (after the arson had occurred), the applicant said to MB that he ‘missed out’, before referring to ‘the barbeque’. MB responded by saying that ‘it was a good barbeque’.
Her Honour was therefore correct to proceed on the basis that the applicant understood the coded meaning. As Niall JA pointed out in argument, once the word ‘barbeque’ as it appears in the transcripts is replaced by words such as ‘car burning’, the fact of the applicant’s participation is laid bare.
It is less clear what the applicant was referring to when he asked MB if he could ‘Do two or three for me for three [hundred]’. The prosecution contention was that the reference to ‘two or three’ meant the number of cars which were to be burned and that the reference to ‘three [hundred]’ conveyed that, in return, there would be a reduction of $300 in an existing debt owed by MB to the applicant. This characterisation was said to be supported by the following exchange later in the same conversation, just after MB had given the applicant his mobile telephone number:
APPLICANT: … All right, sweet. Just if you can do three, can ya?
MB:Yeah, if I can, I’ll do three. If I can’t, I’ll do two.
APPLICANT: All right, sweet. Done.
MB:All right.
APPLICANT: Just do [inaudible] if you want. Just do two.
MB:Hey?
APPLICANT: Anyway, what are you doin’? Do two. Just do two then.
The submission for the applicant was that these were references to a payment of $200 or $300, to be made by MB into the applicant’s bank account, the details of which were to be provided to MB. Reliance is placed on conversations between MB and the applicant the following day, in which MB indicated that he had received the applicant’s bank details and would ‘go to the bank soon’. Later MB said to the applicant that ‘the bank was closed so I just done the cardless deposit … I put 320’.
Understood as the applicant contends it should be, the critical question from the applicant to MB was therefore as follows: ‘Could you do [pay] $200 or $300 for me for $300?’ A question thus expressed seems highly implausible, if not unintelligible. Ultimately, however, it is unnecessary to reach a concluded view on this aspect of the conversation. Assuming in the applicant’s favour that these were indeed references to money rather than cars, the significance of the exchanges about the ‘barbeque’ is unaffected.
As noted earlier, counsel for the applicant conceded that, if the judge’s conclusion on ‘reasonable evidence’ were upheld, there was no further obstacle to admissibility. That is, he accepted that the statutory condition in s 87(1)(c) of the Evidence Act was satisfied, it being ‘reasonably open to find’ that the statements made in the third party conversations were made ‘in furtherance of [the] common purpose’.[25] This was a very sensible and commendable concession.
[25]Beqiri [2017] VSCA 112, [94] (Weinberg, Osborn and Whelan JJA).
Certification
Section 295(3) of the CPA provides as follows:
A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies—
(a)if the interlocutory decision concerns the admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case; and
(b)if the interlocutory decision does not concern the admissibility of evidence, that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal; and
(c)if the interlocutory decision is made after the trial commences, either—
(i)that the issue that is the subject of the proposed appeal was not reasonably able to be identified before the trial; or
(ii)that the party was not at fault in failing to identify the issue that is the subject of the proposed appeal.
As noted earlier, the applicable provision was s 295(3)(a). Accordingly, the bringing of an application for leave to appeal depended on the judge certifying that the exclusion of the impugned evidence ‘would eliminate or substantially weaken’ the prosecution case.
In the course of his application for certification, defence counsel submitted to her Honour that the case ‘fits squarely in that category’. Her Honour agreed that it did but then informed counsel of her understanding that she could refuse to certify if she were not satisfied that the ruling was ‘attended by sufficient doubt’. Both counsel confirmed that this was the correct approach. Her Honour then informed counsel that she would refuse to certify on the basis that ‘in my view, the ruling is not attended by sufficient doubt’.[26]
[26]Certification Ruling 54.
With great respect, there is no further step to be taken once a judge is satisfied — as her Honour was — that the evidence the subject of the interlocutory decision meets the ‘eliminate or substantially weaken’ requirement in s 295(3)(a). The statute neither permits nor requires any separate consideration of whether the decision is ‘attended with sufficient doubt’.
The idea of a ‘sufficient doubt’ hurdle to certification first emerged in McDonald v Director of Public Prosecutions,[27] where the Court was concerned not with s 295(3)(a) but with s 295(3)(b). Under that provision, the statutory question is whether the decision is ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.
[27](2010) 26 VR 242; [2010] VSCA 45 (‘McDonald’).
Ashley JA (with whom Neave JA agreed) said that consideration of the merits of an appeal may be required in order for the judge to decide whether the ‘sufficient importance’ requirement is met. His Honour said:
It is, I think, correct to say that if the judge concludes that the decision meets the statutory description in paragraph (b) — that is, ‘that the decision is … of sufficient importance to the trial to justify it being determined on an interlocutory appeal’ — then the judge must certify. At that point, no question of the exercise of a discretion arises. But in determining whether the circumstances fit the description in paragraph (b), the judge is required, as I see it, to make what may be called a value judgment.
In this case, the judge was rightly of the opinion that an appeal would be quite hopeless. In those circumstances, it could not have been concluded, and should not have been concluded by his Honour that the decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal. An argument, if accepted, may be such as would render a trial unnecessary. But if the argument is without any merit, it cannot be said that it possesses the quality of ‘sufficient importance to the trial’ which is required by paragraph (b).[28]
[28]Ibid 245 [15]–[16].
Subsequent decisions which applied McDonald stated the position more strongly. In Stannard v Director of Public Prosecutions,[29] for example, it was said that a ‘certificate should not be granted unless the trial judge considers his or her decision is attended with sufficient doubt to warrant an expedited review of the decision’.[30] With respect, however, those statements went beyond what had been held in McDonald, which correctly linked — and confined — the making of such a ‘value judgment’ about the correctness of the decision to the judge’s statutory task of deciding whether the requirement of ‘sufficient importance’ had been met.
[29](2010) 28 VR 84; [2010] VSCA 165.
[30]Ibid 90 [27] (Redlich JA); see also Dertilis v The Queen [2010] VSCA 360, [14] (Nettle JA); MA v The Queen (2011) 31 VR 203, 205 [5]–[6]; [2011] VSCA 13 (Redlich JA).
In the present case, of course, the ‘sufficient importance’ question did not arise at all. The only question was whether exclusion of the evidence of the third party conversations would ‘eliminate or substantially weaken the prosecution case’. Her Honour was clearly satisfied that it would. Having formed that view, it was not reasonably open to her Honour to refuse to certify.
Conclusion
Although her Honour was in error in refusing to certify, the interlocutory decision was correct, for the reasons we have given. Having regard to the requirements of s 296(4) of the CPA, we therefore refuse leave to appeal.
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