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MA v The Queen

MA v The Queen

Case [2011] VSCA 13 27 January 2011

Interlocutory Orders

Admissibility of Evidence

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

MA	S APCR 2011 0015
	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, WEINBERG and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 January 2011
DATE OF JUDGMENT:	27 January 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 13	1^st Revision, 2 February 2011 Paras [6], [8],[10], [13], and [17]

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CRIMINAL LAW – Interlocutory appeal – Admissibility of identification evidence – Certification by trial judge pursuant to s 295(3)(a) Criminal Procedure Act 2009 – Whether ruling was attended by sufficient doubt to require certification – Leave to appeal ordinarily inappropriate where short trial or where ruling concerns routine evidentiary questions involving exercise of discretion – Evidence Act 2008 s 137 – Whether principles in House v The King apply – Probative value – Leave to appeal refused

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Gullaci	Victoria Legal Aid
For the Respondent	Mr G J C Silbert SC	Mr C Hyland, Solicitor for Public Prosecutions

REDLICH JA:

The sole ground of this application for leave to appeal an interlocutory decision is that the trial judge erred in failing to exclude the evidence of the identifying witness, under s 137 of the Evidence Act 2008. The particulars to this ground were that the learned trial judge erred in the balancing exercise she performed by deciding that the probative value of this evidence was not outweighed by the danger of unfair prejudice to the accused, and that such a decision was not reasonably open on the facts.

Approach to certification concerning admissibility of evidence: Criminal Procedure Act 2009 s 295(3)(a)

At the request of the applicant the trial judge certified pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 (‘the Act’) that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case. Her Honour considered it a clear case that would qualify under that subsection as appropriate for certification. The prosecution concurred in that course.

Section 295(3)(a) is not confined to decisions which rule evidence inadmissible. It has been held that it is applicable to evidentiary rulings to admit evidence. In either case, the statutory question which the trial judge must address is as follows: is this evidence of such significance[1] or so essential[2] that its exclusion would eliminate or substantially weaken the prosecution case?
[1]C G L v DPP(No 2) (2010) 24 VR 482, 483 (Maxwell P).
[2]Ibid 485 (Buchanan JA).

Where the trial has not yet commenced, certification need not automatically follow a conclusion that if certain evidence were ruled inadmissible, it would ‘eliminate or substantially weaken the prosecution case’. In CGL v DPP (No 2),[3] Maxwell P explained:

It was obviously necessary to establish a threshold test before evidentiary questions could be the subject of an interlocutory appeal. Otherwise this court would be inundated with applications for leave to appeal regarding evidentiary decisions of the multifarious kinds which are made every day in many criminal trials. It is important, therefore, that trial judges…

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 MA v The Queen

Details

AGLC: MA v The Queen [2011] VSCA 13
Case: [2011] VSCA 13
Decision Date: 27 January 2011

CaseChat Overview and Summary

The appellant, MA, was convicted of a serious criminal offence. MA appealed against the admissibility of certain identification evidence, arguing that the trial judge had erred in allowing it. The High Court of Australia was asked to determine whether the trial judge's decision warranted certification under the Criminal Procedure Act 2009. The central legal issue was whether the trial judge's ruling on the admissibility of identification evidence was so doubtful that it required certification and subsequent appeal. The court also considered whether the principles outlined in House v The King applied and whether the appeal should be dismissed as ordinarily inappropriate, given the short trial and routine nature of the evidentiary question. The court examined the probative value of the evidence and the trial judge's exercise of discretion in admitting it.

The court held that the trial judge's decision did not involve sufficient doubt to warrant certification under the Criminal Procedure Act 2009. It was noted that leave to appeal is generally inappropriate in cases involving short trials or routine evidentiary questions. The court found that the principles in House v The King did not apply to this case, as the issues were not novel or of significant public importance. The appeal was dismissed, as the trial judge's decision was consistent with the general approach to admissibility of identification evidence under the Evidence Act 2008. The probative value of the evidence was deemed sufficient to support the trial judge's ruling.

Orders