Lucas Reeves (a pseudonym)[1] v The Queen - [2017] VSCA 343

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2017 0221

LUCAS REEVES (A PSEUDONYM)[1]	Applicant
V
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant and certain other people.

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JUDGES:	SANTAMARIA and COGHLAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 October 2017
DATE OF JUDGMENT:	22 November 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 343

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CRIMINAL LAW – Appeal – Interlocutory ruling – Using carriage service to procure person under 16 years of age for sexual activity – Using carriage service to groom person under 16 years of age for sexual activity – Using carriage service to transmit indecent communications to person under 16 years of age – Trial judge refused application to recall prosecution witnesses for cross-examination – Refusal to certify – Leave to review refusal to certify refused – Criminal Procedure Act 2009 ss 295, 296, 297.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr S Ginsbourg	Mr J Cain, Solicitor for Public Prosecutions

SANTAMARIA JA
COGHLAN JA:

Introduction

The applicant is currently facing trial in the County Court at Melbourne. He is charged with:

(a) four counts of using a carriage service to procure a person under 16 years of age for sexual activity (contrary to s 474.26 Criminal Code Act 1995 (Cth) (‘the Code’));

(b) four counts of using a carriage service to groom a person under 16 years of age for sexual activity (contrary to s 474.27(1) of the Code); and

(c) four counts of using a carriage service to transmit indecent communications to a person under 16 years of age (contrary to s 474.27A of the Code).

There are four complainants. The applicant is charged with committing each of the three types of offences against four early teenage girls: SW, PC, TB and RH. As at the date of the present applications, a jury had not yet been empanelled.

On 23 October 2017, the trial judge delivered a ruling in which he refused an application brought by the defence to recall several prosecution witnesses for cross-examination (‘the recall ruling’).

On 24 October 2017, the applicant requested the trial judge to certify under s 295(3) of the Criminal Procedure Act 2009 (Vic) (‘the Act’) that one or other of the preconditions for certification within that subsection had been met in respect of the recall ruling. The trial refused to certify.

The applicant applied to this Court under s 296 of the Act for a review of the trial judge’s refusal to certify. He also gave notice under s 295 of the Act that he sought leave to appeal the recall ruling.

On 26 October 2017, this Court refused the application for a review of the trial judge’s refusal to certify. At the time of making that order, we indicated that we would publish reasons in due course. These are our reasons.

Summary of prosecution opening and…

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.

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Details

Case: [2017] VSCA 343
Decision Date: 22 November 2017

CaseChat Overview and Summary

The appeal in Lucas Reeves (a pseudonym) v The Queen involved the appellant, who was on trial for various serious offences including procuring a person under 16 years of age for sexual activity, grooming a person under 16 years of age for sexual activity, and transmitting indecent communications to a person under 16 years of age using a carriage service. The trial judge had ruled that prosecution witnesses need not be recalled for cross-examination, a decision that the appellant challenged by seeking leave to appeal against the interlocutory ruling. The appellant also sought a certification of the ruling under the Criminal Procedure Act 2009, which was refused. The appellant subsequently sought leave to review the refusal to certify, which was also denied.

The legal issues before the court involved the interpretation and application of the Criminal Procedure Act 2009, specifically sections 295, 296, and 297. The primary issue was whether the trial judge's refusal to recall prosecution witnesses for cross-examination was an error of law warranting the grant of leave to appeal or the certification of the interlocutory ruling. The court had to determine if the trial judge's decision was in accordance with the law and whether there was a sufficient ground of appeal or a significant question of law involved.

The court considered the principles established in previous cases such as R v T; Ex parte DPP (UK), which highlight the exceptional nature of interlocutory appeals and the necessity for significant questions of law. The court examined the trial judge's reasons for refusing to recall the witnesses and found that the judge had exercised discretion properly, considering the nature of the evidence and the risk of prejudice to the prosecution witnesses. The court held that the trial judge's decision was not an error of law, and therefore, there was no sufficient ground for leave to appeal or certification under the Criminal Procedure Act 2009. Consequently, the appeal was dismissed.

No specific orders were made beyond the dismissal of the appeal and the refusal of leave to review the interlocutory ruling. The court's decision confirmed the trial judge's discretion in managing the proceedings and the stringent criteria required for interlocutory appeals and certifications.

Orders