Males v The Queen
[2021] VSCA 159
•10 June 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0051
| ANDREW MALES | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P and EMERTON JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 13 May 2021 |
| DATE OF JUDGMENT: | 10 June 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 159 |
| JUDGMENT APPEALED FROM: | DPP v Males (Unreported, County Court of Victoria, Judge Riddell, 11 May 2021) |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Discharge of jury – Sexual offences – Alternative arrangements for giving evidence – Screen in court between complainant and accused – Complainant initially gave evidence behind screen – Change of arrangements – Complainant moved to remote facility – Judge refused application to discharge jury – Whether change of arrangements prejudicial – Available inferences – Jury likely to infer complainant in fear of accused – Significant risk of prejudice – Uncertain whether jury directions would avert prejudice – Risk to fairness of trial – Trial at early stage – Refusal of discharge application not reasonably open – Leave granted – Appeal allowed – Crofts v The Queen (1996) 186 CLR 427, R v Boland [1974] VR 849 considered – Criminal Procedure Act 2009 ss 360, 363–64.
CRIMINAL LAW – Appeal - Interlocutory appeal – Certification – Review of refusal to certify - Whether interlocutory decision ‘of sufficient importance to justify determination on interlocutory appeal’ – Judge satisfied decision of sufficient importance – No separate question concerning likely correctness of decision – Refusal to certify not reasonably open – Review application allowed – Director of Public Prosecutions v McDonald (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 – ‘of sufficient importance to justify determination on interlocutory appeal’.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P A Chadwick QC with Ms K Rolfe | Robyn Greensill & Associates |
| For the Respondent | Dr N Rogers SC with Ms S Clancy | Ms A Hogan, Solicitor for Public Prosecutions |
MAXWELL P
EMERTON JA:
Summary
The applicant is facing multiple charges of rape, threat to kill and intentionally causing injury. There are two complainants. His trial began in the County Court on 10 May 2021.
Because the applicant is charged with sexual offences, the provisions of div 4 of pt 8.2 of the Criminal Procedure Act 2009 (‘CPA’), concerning ‘Alternative arrangements for giving evidence’, are applicable to the trial. Under s 363 of the CPA, the trial judge was obliged to direct that the evidence of each of the complainants be given ‘from a place other than the courtroom’, unless the prosecution applied for the evidence to be given in the courtroom.
In this case, the prosecution applied under s 363(a) for the first complainant (‘K’) to give evidence in the courtroom. Before granting that application, her Honour had to be satisfied that K was aware of the right to give evidence outside the courtroom and, further, that she was able, and wished, to give evidence in the courtroom. After asking K some questions, her Honour ruled that she was so satisfied and that K could therefore give evidence in the courtroom.
Having permitted the evidence to be given in the courtroom, her Honour was then required by s 364 to direct that a screen be used, in accordance with s 360(b), ‘to remove the accused from the direct line of vision of the witness’. Her Honour made that direction, and a screen was set up between the witness box and the dock, blocking the line of vision between the two. K commenced giving her evidence in chief from the witness box, and did so for approximately an hour before the court adjourned for the day.
The following morning, the prosecutor informed the judge (in the absence of the jury) that K now wanted to give her evidence from the remote facility. On that basis, the prosecutor made what was in effect an application for her Honour to revoke the direction that the evidence be given in court.
When her Honour indicated that she proposed to allow that change to occur, counsel for the applicant sought a discharge of the jury. The basis for the application was that the jury would inevitably draw an adverse inference from the change of arrangements. According to the defence submission, the only conclusion the jury would draw from K ‘leaving the courtroom and then being on the screen’ was that she was fearful of the applicant.
The judge refused the discharge application. Her Honour did not accept that the only inference open to the jury was that K was fearful of the applicant. In her Honour’s view, there was ‘a range of reasons the jury may conclude that [K] is finding the courtroom environment difficult’.[1] Her Honour was satisfied that any risk of prejudice could be eliminated by the giving of appropriate directions to the jury.
[1]DPP v Males (Unreported, County Court of Victoria, Judge Riddell, 11 May 2021) 135 (‘Discharge Ruling’).
Defence counsel then applied for certification under s 295(3) of the CPA. Her Honour refused to certify, and the applicant applied under s 296(1) for a review of that refusal. Given that the jury had been empanelled, the application was brought on as a matter of urgency.
Having had the benefit of succinct submissions from the parties, we announced at the conclusion of argument that the review application would be granted. We made orders granting leave to appeal, allowing the appeal and setting aside the refusal to discharge and, in its place, directing that there be a discharge of the jury. We said we would publish our reasons in due course. These are those reasons.
The presence of a screen between the witness and the accused is, as the judge acknowledged in her reasons, inherently prejudicial. The jury will very likely infer that the screen is in place because the witness would otherwise find it stressful, or intimidating, to be watched by the person against whom she was making allegations. At the same time, as her Honour said, Parliament has expressly authorised this procedure, in order to minimise the distress which a witness in such a case might otherwise feel, and must be taken to have accepted any inherent prejudice as a necessary concomitant of the screen’s protective purpose.
What made this case so unusual, however, was that the protective arrangement of the screen was abandoned and that it occurred so quickly. As will appear, the evidence which K had been giving up to that point was of brutal and controlling behaviour by the applicant towards her. A reasonable inference in those circumstances was that K felt so uncomfortable giving that evidence in the applicant’s presence that even the protection of the screen was not sufficient.
As explained below, we concluded that at this early stage of the trial — given the novelty of the problem and the uncertainty about whether directions could eradicate the risk of prejudice — the case for a discharge was irresistible.
Applying the statutory provisions
The relevant CPA provisions are as follows:
360 Alternative arrangements for giving evidence
The court may direct that alternative arrangements be made for the giving of evidence by a witness, including arrangements—
(a) permitting the evidence to be given from a place other than the courtroom by means of closed-circuit television or other facilities that enable communication between that place and the courtroom;
(b)using screens to remove the accused from the direct line of vision of the witness;
(c)permitting a person, chosen by the witness and approved by the court for this purpose, to be beside the witness while the witness is giving evidence, for the purpose of providing emotional support to the witness;
(d)permitting only persons specified by the court to be present while the witness is giving evidence;
(e)requiring legal practitioners not to robe;
(f)requiring legal practitioners to be seated while examining or cross-examining the witness.
…
363 When court must direct use of closed-circuit television or other facilities for complainant
If the witness is a complainant in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence, the court must direct that an arrangement referred to in section 360(a) be made unless—
(a)the prosecution applies for the complainant to give evidence in the courtroom; and
(b)the court is satisfied that the complainant—
(i) is aware of the right of the complainant to give evidence in another place by closed-circuit television or other facilities; and
(ii)is able and wishes to give evidence in the courtroom.
364 When court must direct use of screens for complainant
If the witness is a complainant in a criminal proceeding that relates (wholly or partly) to a charge for a sexual offence and is to give evidence in the courtroom, the court must direct that an arrangement referred to in section 360(b) be made unless the court is satisfied that the complainant—
(a)is aware of the right of the complainant to give evidence while screens are used to remove the accused from the direct line of vision of the complainant; and
(b)does not wish a screen to be so used.
As noted earlier, the judge granted the prosecution’s application under s 363(a), and made the direction under s 364 that a screen be put in place between the witness box and the dock. In her reasons, her Honour noted the defence objection that having a screen in place between K and the applicant would be prejudicial. Her Honour rejected that argument, saying:
While I accept that there is some inherent prejudice of having a screen in place between the witness and the accused, in many ways it is no different to having a witness in a remote facility. Parliament, in my view, must have given consideration to the prejudicial impact of what are called the alternative arrangements provided for in trials for sexual offences, in particular, complainants giving evidence in those circumstances.
The protection for an accused in relation to prejudice is made by the mandatory directions that I must give to the jury, namely, that they ought not and must not, as a direction of law, draw any inference adverse to the accused from the fact that those arrangements have been made and they must not give the witness's evidence any greater or lesser weight because of the use of those arrangements. There was no additional, special, unique matter put here that would create any additional prejudice to Mr Males by that arrangement.[2]
[2]DPP v Males (Unreported, County Court of Victoria, Judge Riddell, 10 May 2021) 79–80 (‘CPA Ruling’).
Before K commenced her evidence, the judge pointed out to the jury that there was a screen placed between K and the applicant. This was, her Honour said, ‘routine in a situation where a complainant wants to come into the courtroom and give evidence’. She then directed the jury that they must not draw any inference adverse to the applicant because of that arrangement or give K’s evidence any greater or lesser weight.
As noted earlier, following the announcement that K wished to move to the remote location, the defence applied for a discharge of the jury. Her Honour refused the application, rejecting the defence submission that the only reason which would suggest itself to the jury for the change of arrangement was that K was fearful of the applicant. Her Honour said:
I do not propose to discharge the jury. I do not agree that the only inference open is that the witness is fearful of [the applicant]. In my view, there are a range of reasons the jury may conclude that [K] is finding the courtroom environment difficult. They may include, simply, the environment of the courtroom; it may include the proximity of counsel and other staff in the courtroom; it may include a range of reasons.
I have already told the jury in preliminary directions to them of the available options for a witness to give evidence by way of a remote facility, and that they should not draw any inference adverse to the accused if that is done, and that they should not give the evidence lesser or greater weight because it is done in that fashion.
Yesterday before the witness commenced her evidence in the courtroom, I added to those directions. Firstly by reminding them that I had told them of a range of available options for a complainant, such as the remote facility. I also included reference to the fact that a support person can be present with the witness, I referred to the availability of a support dog and I referred to the possibility that if children are giving evidence, counsel may be required not to robe. So I have told the jury of a range of available options and stressed that these are standard procedures in criminal trials of this nature, and that they should not draw any adverse conclusion against the accused if a witness uses those options.
I then gave them a direction that they should not draw any adverse inference to Mr Males because the screen was being used, and that they should not give the witness’ evidence any greater or lesser weight.
I believe any prejudice, if there is any at all due to the change that is now foreshadowed, can be cured by a further direction along the lines of: the fact that the witness commenced her evidence in court, despite being told of the option to give evidence remotely, that she has now indicated she would prefer to continue her evidence from the remote facility, and that that change has occurred because of a ruling made by me, that they should not draw any inference against the accused, that it is nothing to do with Mr Males; it is to do with using the procedures which are available.[3]
[3]Discharge Ruling 135–6.
Subsequently, in her reasons for refusing to certify, her Honour said:
Although I accepted that there is an inherent prejudice towards an accused when a screen is used or when evidence is given remotely, that fact must have been taken into account when the legislature introduced those provisions. In one or another way, the arrangements in s 360 all have potential for prejudice. Protection for an accused is provided by mandatory directions, formerly in s 361 of the Act, now in the Jury Directions Act 2015.
In my view, directions I would give to the jury about the change in arrangements, building on what I have already told them in both preliminary directions and before the commencement of [K’s] evidence, would protect the accused from any prejudice or unfairness. In my view, in those circumstances there was not a high degree of need to discharge the jury.[4]
[4]DPP v Males (Unreported, County Court of Victoria, Judge Riddell, 11 May 2021) 171 (‘Certification Ruling’).
The risk of prejudice
In seeking a discharge of the jury, defence counsel expressed the risk of prejudice in the strongest possible terms. The submission was as follows:
[T]he only conclusion that the jury would draw from [K] leaving the courtroom and then being on the screen — the only conclusion, we submit Your Honour — is that because she is fearful of the accused, and that is highly prejudicial. She started giving her evidence yesterday afternoon, and effectively the first break, then she’s effectively removing herself from the courtroom, and the only conclusion, which we submit Your Honour, is that a jury would draw from that is totally adverse to Mr Males, particularly in the light of what’s been given and the evidence that she’s given of violence and fear of Mr Males.
As already noted, her Honour rejected that contention. We respectfully agree that fear of the applicant was not the only inference reasonably available to the jury. Rejection of the defence contention did not, however, remove the need to consider whether it was an available inference and, if it was, what risk of prejudice it might create.
In our view, the inference was clearly open and — given that the presence of the screen in the first place would inevitably have raised questions in the minds of jurors — it was overwhelmingly the most likely inference for the jury to draw. That is, it was likely that the jury would infer that the arrangements had been changed at K’s request and that this request reflected her discomfort or distress at giving evidence in the applicant’s presence.
The presence of the screen in the first place conveyed a fairly unmistakable message about K’s desire/need to be shielded from the applicant’s gaze. That was the ‘inherent prejudice’ to which the judge referred in her reasons. Like the judge, we accept that Parliament must have anticipated that risk of prejudice and, by mandating the presence of a screen when a complainant gives evidence in court (unless the complainant makes clear that it is not required), to have concluded that the requirements of a fair trial could be secured nonetheless.
One way of ensuring a fair trial was to require the giving of directions.[5] Until 1 October 2017, s 361 of the CPA required the trial judge to ‘warn the jury not to draw any inference adverse to the accused or give the evidence any greater or lesser weight’ because alternative arrangements had been made for the giving of evidence.
[5]See Meyer (a pseudonym) v The Queen [2018] VSCA 140, [245]–[248] (Priest and Kaye JJA).
Evidently, Parliament later concluded that mandatory directions were not necessary to protect an accused’s entitlement to a fair trial, as the requirement was removed from the CPA.[6]The Explanatory Memorandum to the amending Act explained its removal as follows:
[A]s the use of alternative means and recorded evidence is now commonplace, mandatory directions are no longer necessary. Further, the wording of the direction (particularly the reference to ‘adverse inferences’) may be difficult for jurors to understand. If jurors do understand the directions, research shows that ‘limiting’ directions such as these may, by placing ideas in jurors’ minds, have the opposite effect to that which is intended.[7]
[6]Jury Directions and Other Acts Amendment Act 2017 s 13.
[7]Explanatory Memorandum, Jury Directions and Other Acts Amendment Bill 2017 16.
Contrary to what the judge was told by trial counsel, the requirement originally contained in s 361 of the CPA was not re-enacted in the Jury Directions Act 2015. It remained permissible, nevertheless, for the judge to direct the jury in a way designed to avert the risk of prejudice arising from the use of alternative arrangements. Her Honour’s description of the presence of the screen as ‘routine’ was directed to that end.
What occurred here, however, was not routine. K’s conduct in taking herself out of the courtroom was capable of being seen as a statement that — despite her best efforts to steel herself to give her evidence in the courtroom — the protection of the screen was not enough. Put another way, the level of distress and discomfort which she was experiencing when giving evidence in the applicant’s presence was such that being shielded from his gaze was not sufficient.
As Emerton JA pointed out in argument, the evidence which K had been giving in the courtroom was of angry, violent and intimidatory behaviour by the applicant towards her. It would not have been lost on the jury that her decision to leave the courtroom came after the giving of evidence of that character.
What made this turn of events particularly significant, in our view, was that it was capable of being seen as K’s own decision, a reaction to the setting in which she found herself. It may be contrasted with the fixed presence of the screen, which the jury would likely have seen as something put in place by the court itself. Here, K was making a decision, in full view of the jury, to take herself out of the courtroom.
The availability of that inference created a very significant risk of prejudice, in our view. K’s decision to withdraw to the remote facility — to ‘take flight’ from the courtroom — was capable of being seen by the jury as confirmatory of the truth of her evidence about the applicant’s violent conduct towards her.
Had she run from the courtroom in tears, or in some other way openly betrayed fear of the applicant, the risk of unfair prejudice would have been readily apparent. As senior counsel for the Director properly conceded, if something of that kind had occurred in front of the jury, a discharge application would almost certainly have succeeded. What occurred here was, of course, far less dramatic but the difference is one of degree, not character, in our view.
Discharging a jury
For good reason, trial judges are slow to grant applications for the discharge of the jury. The test is, of course, a stringent one: there must be a ’high degree’ of ‘necessity’.[8] The stringency of the test reflects the public interest in maintaining the integrity of the process of trial by jury, requiring a compelling reason to discharge a jury that has been regularly selected and empanelled and, importantly, entrusted with the critical decision-making role in the trial.
[8]R v Boland [1974] VR 849, 866–7 (Adam, Little and McInerney JJ) (‘Boland).
It also no doubt reflects the public interest in finality, a recognition that the participants in a jury trial should only have to endure its rigours once.[9] And there are obvious practical considerations. Discharging a jury means throwing away the costs already incurred, both public and private, and the time already spent on the trial.
[9]Burrell v The Queen (2008) 238 CLR 218, 223 [15]; [2008] HCA 34 (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ).
The governing consideration, however, is the entitlement of an accused to a fair trial. If the event giving rise to the discharge application raises a serious question of potential prejudice, it may throw the fair trial entitlement into jeopardy.
The greatest safeguard is the ability of the judge to give directions. Suitable directions can be fashioned to cover most circumstances which arise and, axiomatically, the system proceeds on the assumption that juries follow the directions they are given. There are, however, circumstances where directions may not be sufficient, where the prejudice in question can properly be regarded as incurable. In such a case, there is the obvious risk that a guilty verdict arrived at by a jury after the giving of such directions will be overturned on appeal. Counsel for the applicant gave, as an example of this, the decision of this Court in R v Halliday.[10]
[10](2009) 23 VR 419; [2009] VSCA 195.
One of the key considerations, therefore, when a discharge application is made is the likely effectiveness of a judicial direction designed to overcome the apprehended impact of the prejudicial event.[11] In Crofts, the High Court held that ‘a proper consideration of the factors relevant to weighing the prejudice to the accused, the danger to the fairness of the trial and the risk that such danger could not be eradicated by instruction to the jury necessitated … an order of discharge’.[12]
[11]Crofts v The Queen (1996) 186 CLR 427, 440–1; [1996] HCA 22 (Toohey, Gaudron, Gummow and Kirby JJ) (‘Crofts’).
[12]Ibid 442 (emphasis added).
In the present case, it was at best uncertain whether directions would ‘eradicate the danger to the fairness of the trial’. That uncertainty arose because of the novelty of the change of arrangement, the circumstances in which it occurred and the potential potency of the prejudice created. Consistently with authority, the existence of that uncertainty pointed powerfully in favour of discharging the jury.
The other relevant factor was that this occurred at a very early stage of the trial. The authorities have repeatedly affirmed that the stage of the trial at which a discharge application is made is a relevant consideration. In Boland, for example, the discharge application was made in the eighth week of the trial. The Full Court held that the trial judge had not erred in taking into consideration ‘the length of time already taken by the trial’ when refusing to discharge the jury.[13] It is entirely appropriate, the Court said, for a judge to ‘bear in mind the duration and expected duration of the trial’.[14]
[13]Boland [1974] VR 849, 866 (Adam, Little and McInerney JJ) (emphasis added).
[14]Ibid.
In Boland, the fact that the discharge application was made late in a lengthy trial was held to have been a relevant factor supporting the refusal to discharge. In the present case, no such consideration arose. On the contrary, the discharge application was made on the morning of the second day of the trial.
Discharging the jury at a time when K had barely begun her evidence would have occasioned relatively little inconvenience. We were told that a new jury could be empanelled without much delay. On the other hand, to continue the trial was to run the risk that any conviction would be tainted by unfairness. That risk carried with it the possibility of a successful appeal against conviction, and the consequent necessity for K to give her evidence a second time, with all of the attendant stress, delay and cost of a retrial.
The Court was told that this was the second of four trials of charges against the applicant, involving a total of seven different complainants. The same judge is to preside over all four trials and, we were told, her Honour had had to spend a great deal of time during 2020 hearing preliminary argument. There has already been one successful discharge application.
Trials of sexual offences are invariably burdensome for trial judges and this sequence of back-to-back trials must be especially arduous. It was entirely understandable that her Honour would be reluctant to countenance any further interruption. In these most unusual circumstances, however, we concluded that the relevant considerations overwhelmingly favoured a discharge and that the decision to refuse the application was not reasonably open.
The application for certification
Section 295 of the CPA provides as follows:
Right of appeal against interlocutory decision
(1)This section applies to a proceeding in the County Court or the Trial Division of the Supreme Court for the prosecution of an indictable offence.
(2)Subject to this section, a party to a proceeding referred to in subsection (1) may appeal to the Court of Appeal against an interlocutory decision made in the proceeding if the Court of Appeal gives the party leave to appeal.
(3)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.
(4)A request for certification under subsection (3) must be determined as soon as practicable after the request is made.
Because this ruling did not relate to the admissibility of evidence, the applicable provision was s 295(3)(b). That is, leave to appeal could not be sought unless the judge certified that the ruling was ‘of sufficient importance to justify it being determined on interlocutory appeal’. (Given the nature of the interlocutory decision, the considerations referred to in s 295(3)(c) did not arise.)
In her ruling on certification, her Honour said:
In my view, this is an interlocutory decision which is sufficiently important to the trial to justify it being determined on interlocutory appeal, and so falls under s 295(3)(b).[15]
Her Honour then said:
Although I have accepted that this decision is sufficiently important to the trial in the way I have outlined, I must then consider the body of authority which has developed, which places a further restriction on certification. That is, I must assess whether my decision is attended to by sufficient doubt to warrant an appeal.[16]
[15]Certification Ruling 171.
[16]Ibid 172.
With great respect, there is no ‘further restriction on certification’ once a judge is satisfied — as her Honour was — that the interlocutory decision meets the ‘sufficient importance’ requirement in s 295(3)(b). The statute neither permits nor requires any separate consideration of whether the decision is ‘attended with sufficient doubt’.
In Director of Public Prosecutions v McDonald,[17] the Court was also concerned with s 295(3)(b). 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).[18]
[17](2010) 26 VR 242; [2010] VSCA 45 (‘McDonald’).
[18]Ibid 245 [15]–[16].
Subsequent decisions which applied McDonald stated the position more strongly. In Stannard v Director of Public Prosecutions,[19] 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’.[20] 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.
[19](2010) 28 VR 84; [2010] VSCA 165.
[20]Ibid 90 [27] (Redlich JA); see also Dertilis v The Queen [2010] VSCA 360, [14] (Nettle JA); MAv The Queen (2011) 31 VR 203, 205 [5]–[6]; [2011] VSCA 13 (Redlich JA).
It should also be recalled that, in McDonald, the argument which the judge had rejected ‘lacked any legal merit’.[21] In our view, that is the circumstance where a ‘value judgment’ about the merits of the point at issue is most likely to assist in answering the statutory question.
[21](2010) 26 VR 242, 245 [17]; [2010] VSCA 45 (Ashley JA).
In the present case, as we have pointed out, the judge was satisfied that the interlocutory decision met the ‘sufficient importance’ requirement in s 295(3)(b). That was all that was required for certification. Having formed that view, it was not reasonably open to her Honour to refuse to certify. We therefore granted the application for review of the refusal.
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