Marston v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2022 0061

CHRISTOPHER MARSTON	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, T FORREST and TAYLOR JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 November 2022
DATE OF JUDGMENT:	18 November 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 253
JUDGMENT APPEALED FROM:	DPP v Marston (Unreported, County Court of Victoria, 27 April 2022, Judge Carlin); DPP v Marston (Ruling) No 1 (Unreported, County Court of Victoria, 16 May 2022, Judge Carlin)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Applicant charged with intimate partner rape and assault offence – Trial judge refused to exclude evidence of admissions made to intimate partner and to child – Trial judge refused to certify that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case – Routine evidentiary ruling – Trial judge’s refusal to certify and evidentiary ruling correct – Application to review refused.

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Counsel
Applicant:		Mr C Hooper
Respondent:		Mr D Porceddu
Solicitors
Applicant:	Ann Valos Criminal Law
Respondent:	Mr L Winter, Solicitor for Public Prosecutions

PRIEST JA
T FORREST JA
TAYLOR JA:

Introduction

In a pending trial in the County Court in which the applicant is charged with rape (six charges – charges 1 to 6) and common assault (one charge – charge 7), his counsel sought the exclusion of evidence of four admissions allegedly made by the applicant upon which the prosecution relies.
By a ruling given on 27 April 2022, the trial judge refused to exclude the evidence (‘the interlocutory decision’ or ‘the admissibility ruling’).
Subsequently, by a ruling dated 16 May 2022, the trial judge refused to certify under s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’) that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case (‘the certification ruling’).
By a notice filed 16 May 2022, the applicant seeks review of the certification ruling; and, if that application is granted, seeks leave to appeal against the interlocutory decision.
Since they concern a routine evidentiary ruling, neither application was suitable for determination in this Court. The application for review of the certification ruling will be refused.

Interlocutory appeals and routine evidentiary rulings

It is an unhappy reality that some appear not to have paid attention to this Court’s repeated pronouncements that interlocutory appeals under the CPA are not designed to challenge routine evidentiary rulings. In the fervent hope that the message will eventually sink in, however, we venture to repeat what was said in Harris:[1]
[1]Harris (a pseudonym) v The Queen [2017] VSCA 316, [56]–[59] (Maxwell P, Priest and Kyrou JJA). See also DPP v Pace (2015) 45 VR 276, 284 [26] (Priest and Beach JJA); Peterson (a pseudonym) v The Queen (2019) 57 VR 521, 523 [7]–[8] (Maxwell P and Taylor AJA); Cano (a pseudonym) v The Queen [2020] VSCA 308, [50] (Niall , T Forrest and Weinberg JJA).
[56] It must be said again — and, it is to be hoped, in future heeded — that interlocutory appeals are not suitable vehicles with which to challenge routine evidentiary rulings. As Weinberg JA observed recently in Paulino:[2]
[2][DPPvPaulino (2017) 54 VR 109, 111–2 [7]–[10]]. See also MA v The Queen (2011) 31 VR 203, 207 [12] (Redlich, Weinberg and Bongiorno JJA).
This Court has, on a number of occasions, referred to the undesirability of interlocutory appeals being brought on evidentiary questions. That is so irrespective of whether it is the Crown or the accused who seeks leave to appeal. In Wells v The Queen [No 2][3] I spoke out against the bringing of such appeals when all that was in issue were ‘evidentiary rulings of a kind which are routinely made every day’. Other members of this Court have, from time to time, expressed similar views.
When the legislature in this State first made provision for interlocutory appeals in criminal matters, it was careful to stipulate that a trial judge should be satisfied, before certifying, that the exclusion of any item of evidence in dispute would ‘eliminate or substantially weaken’ the prosecution case. In erecting that barrier to certification, the legislature expressly distinguished challenges to evidentiary rulings from challenges to non-evidentiary decisions.
It is important to emphasise the significance of that distinction. It is worth repeating that, before certifying, a trial judge must be satisfied that the exclusion of the evidence would ‘eliminate or substantially weaken the prosecution case’. The word ‘eliminate’ has only one possible meaning. It connotes that there must be no case at all without that evidence. The alternative limb, namely ‘substantially weaken’, clearly involves questions of degree, and matters of discretion. The word ‘substantial’ is not a word with fixed meaning in all contexts. It is susceptible of ambiguity, and can conceal a lack of precision.[4] On any view, it should be read in context and, in accordance with the Latin maxim, noscitur a sociis.[5] Thus, ‘substantially weaken’, in the context in which that expression is used, suggests something not very far short of elimination, rather than merely significant, or important.[6]
Before a trial judge certifies in relation to an evidentiary ruling, he or she must be satisfied that if the evidence is ruled inadmissible, its exclusion could realistically be expected to affect the outcome of the trial. In my view, having regard to the strong public policy reasons for discouraging interlocutory appeals in criminal matters in general, and particularly those involving nothing more than points of evidence, nothing short of a test approached with that degree of rigour will suffice.
[57]Similar views were expressed in Director of Public Prosecutions v Pace (a pseudonym):[7]
The common law set its face against the fragmentation of criminal proceedings.[8] In our view, the introduction of a regime for interlocutory appeals in criminal cases, introduced as recently as 1 January 2010, was not intended to derogate from the overarching notion that fragmentation of criminal proceedings is undesirable. Indeed, one may readily discern from the text of the statute governing interlocutory appeals that it was not the legislature’s intention that fragmentation of criminal proceedings should ordinarily be contemplated. Thus, once a trial has commenced, leave to appeal may only be granted if the reasons for doing so clearly outweigh any disruption of the trial.[9] Moreover, leave may only be granted if it is in the interests of justice to do so, having regard to the extent of any disruption or delay to the trial process that may arise if leave is given.
Indeed, the language of the statute makes it plain that interlocutory appeals should not be the norm, and should be reserved for unusual cases where the determination of an appeal against an interlocutory decision may render the trial unnecessary; substantially reduce the time required for the trial; resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial. These fetters on appellate intervention emphasise, in our view, that Parliament intended to uphold the authority of the trial judge,[10] and that such authority should not lightly be interfered with. Thus, in our view, without seeking to be overly prescriptive, leave to appeal an interlocutory decision should not readily be granted, and should only be granted if, for example, it can clearly be discerned that there has been some error of principle which may lead justice to miscarry, or which may be permeated unless corrected. This case does not come close to fitting that mould.
The regime for interlocutory appeals was not designed to cater for appeals against routine evidentiary rulings — as the impugned ruling is — made in the ordinary course of a criminal trial. It must be said — and cannot be ignored — that the already overloaded system of criminal justice in this State simply cannot cope with, and should not have to tolerate, interlocutory appeals directed to issues of little moment.
[58]The present case involved routine evidentiary rulings concerning evidence which, if excluded, would not have eliminated or substantially weakened the prosecution case. This was neither a suitable case for certification, nor for further challenge to the evidentiary ruling by way of interlocutory appeal.
[59]Appeals against interlocutory evidentiary rulings under s 137 (and other provisions) of the Evidence Act 2008 are — as the applicant’s counsel acknowledged — governed by House[11] principles.[12] Hence, a judge considering certification, and a party considering whether to seek leave to appeal, must bear steadily in mind that, absent specific error, an interlocutory appeal cannot succeed unless it is demonstrated that it simply was not open to the judge to reach the decision that he or she did. It needs to be understood that the clear legislative intention is that interlocutory appeals on evidence should be strictly confined, and that there must be an insistence upon appellate restraint at an interlocutory stage.[13] Interlocutory appeals based on routine evidentiary rulings are antagonistic to those imperatives.
[3][2010] VSCA 294 (Weinberg JA).
[4]In Re Bonny [1986] 2 Qd R 80, Ambrose J said at 82: ‘In my view, when considered in the context of a definition that talks of a person who is “wholly or substantially dependent on” another, the term “substantially” connotes “in the main” or “essentially”.’
[5]The meaning of a word is known from the accompanying words.
[6]See [DPP v Paulino (2017) 54 VR 109, 119–20 [50]] and footnotes contained therein.
[7](2015) 45 VR 276, 283–4 [24]–[26] (Priest and Beach JJA) (emphasis added).
[8]R v Elliott (1996) 181 CLR 338, 257. See also Smith v The Queen (1994) 181 CLR 338, 346.
[9]CPA, s 297(2).
[10]Cf R v Steffan (1993) 30 NSWLR 633.
[11]House v The King (1936) 55 CLR 499.
[12]KJM v The Queen [No 2] (2011) 33 VR 11, 13 [12] (Maxwell P, Buchanan, Neave, Redlich and Bongiorno JJA) (‘KJM’); McCartney v The Queen (2012) 38 VR 1, 11 [47]–[48] (Maxwell P, Neave JA and Coghlan AJA).
[13]KJM (2011) 33 VR 11, 13 [13]; CGL v DPP [No 2] (2010) 24 VR 482, 483 [4]–[5] (Maxwell P, Buchanan and Bongiorno JJA).
As we have said, the judge in the present case refused certification. She was entirely correct to do so.

The impugned admissions

As outlined in the Summary of Prosecution Opening for Trial (‘Opening’), the prosecution alleges that the applicant raped his then partner, ‘WA’, on four separate occasions over an approximately four-week period in September and October 2010. The first of those occasions allegedly involved penile-oral and penile-vaginal penetration (charges 1 and 2); the second occasion involved penile-vaginal penetration (charge 3); the third occasion involved penile-vaginal penetration (charge 4); and the fourth occasion involved penile-oral and penile-vaginal penetration (charges 5 and 6). It is also alleged that the applicant assaulted WA on Boxing Day 2010 (charge 7), by grabbing WA by the throat and throwing her against a wall.
The first admission upon which the prosecution relies was allegedly made by the applicant about a week after the activities which form the basis of charges 5 and 6. It is described in the Opening as follows:
For the next week the complainant and accused did not speak to each other. The accused then approached the complainant in the kitchen and apologised. He said ‘I’m sorry for what I did to you. Can we start afresh and put this behind us?’
According to the prosecution, the second admission was made three or four weeks after the first. The Opening describes it in the following way:
About 3–4 weeks later the complainant did a pregnancy test and was confirmed as pregnant with their third child. At this time the second child [‘DM’] was 3 months old. She told the accused she was pregnant, and he responded ‘is it because of what I did to you?’ … She did not respond.
The third and fourth admissions were allegedly made after the applicant and WA separated in about January 2015. They were made when the applicant was in custody on unrelated matters, and are described in the Opening as follows:
In October 2015 the complainant took the children to visit the accused. The accused said he wanted to talk to [their child ‘GM’] and explain ‘why mummy won’t take daddy back, because he hurt mummy and that’s why [their child ‘JM’] is here’ …
[GM] recalls going to visit his father when he was in about grade 2. The accused told [GM] ‘I think I hurt your mum too much, that’s why [JM] is here’, and he promised not to do it again.

The applicant’s submissions to the trial judge

Counsel for the applicant submitted to the trial that the first and second alleged admissions do not meet the threshold of relevance and are therefore inadmissible. In the alternative, counsel submitted that the evidence fell to be excluded under s 137 of the Evidence Act 2008 (‘the Act’) because the danger of unfair prejudice outweighed its probative value. The unfair prejudice relied upon was the risk that the jury would overvalue the evidence, engage in circular or bootstraps reasoning and be confused by directions. As to the third alleged admission, counsel for the applicant submitted that, although it is capable of being viewed as an admission of an act of violence leading to JM’s conception and is therefore relevant, it should be excluded under s 137 on the basis that the jury may overvalue it and treat it as a complete confession (in circumstances where the applicant does not know the precise circumstances of JM’s conception). With regard to the fourth alleged admission, counsel argued that it is in reality an expression of an opinion by the applicant — rather than an admission — and is therefore irrelevant. Alternatively, counsel submitted that it should be excluded under s 137 for the same reasons as the alleged third admission.

The admissibility ruling

Holding the first alleged admission to be admissible, the judge was satisfied that the evidence was reasonably capable of being viewed by a jury as relating to at least one, if not all, of the occasions of rape. In particular, the judge held the evidence is reasonably capable of being viewed as an acknowledgement by the applicant that he had non-consensual sexual intercourse with WA on at least one, if not all, of those occasions. The judge considered that the words ‘all of this’ were significant in that regard. As to exclusion under s 137, the judge said that she was
not persuaded there is a real risk of the jury misusing the evidence or giving it undue weight or that it is unfairly prejudicial for any other reason, let alone a risk that could not be cured by appropriate directions, or which would outweigh the probative value. In that regard I note that the probative value of the evidence extends beyond its capacity to be regarded as an admission. It is also relevant and probative to explain why the complainant resumed her relationship with the accused, something which, in the absence of that explanation, may be baffling to a jury and significantly undermine her credibility.
The fact the evidence of the alleged admission comes from the complainant does not increase the risk of prejudice in my view. A jury will be unlikely to accept that the statement was made if they do not accept the complainant’s evidence about the rapes in the first place. The jury will, if requested, be given clear directions as to how they might use the statement if they find it was said.
As to the second alleged admission, the judge was of the view that the applicant’s words were reasonably capable of being viewed by the jury as an admission of knowingly engaging in non-consensual sexual intercourse with the complainant on at least one occasion in the relevant timeframe and is therefore relevant. Further, although the statement ‘what I did to you’ stands on its own, that interpretation is bolstered by the next two alleged admissions. For the same reasons as in the case of the first admission, the judge refused to exclude the evidence under s 137.
With respect to the third and fourth alleged admissions, the judge said:
In my view there is nothing in [defence counsel’s] submissions. It does not matter that the accused does not know the precise act of intercourse that resulted in the complainant’s pregnancy. The value of the statements and the reason they are admissions, rather than confessions, is that they are an acknowledgement that he did something hurtful to the complainant which could have resulted in her pregnancy. In other words, they are capable of being regarded by the jury as an acknowledgment or admission that he had non-consensual sexual intercourse around the time that [JM] was conceived. They are clearly relevant and admissible on that basis, and I see no reason to exclude them …

The certification ruling

In declining to certify under s 295(3)(a) of the CPA, the judge observed (among other things):
[The prosecutor] submitted that since the source of alleged admissions one to three was the complainant herself, their exclusion would not substantially weaken the prosecution case as the jury would be unlikely to find the admissions were made unless they found her to be a credible witness in the first place. She conceded it was arguable that exclusion of alleged admission four would substantially weaken the prosecution case.
I agree with [the prosecutor’s] analysis in respect of alleged admissions one to three. In respect of alleged admission four, which is ostensibly independent of the complainant, although its exclusion might arguably have a greater impact on the Crown case, I am still not of the view that it would substantially eliminate it or likely result in a different outcome. Whilst accepting there may be inconsistencies in the evidence, the complainant gives a reasonably coherent account of the offending which appears capable of acceptance by a jury with or without the alleged admissions, including specifically, alleged admission four.

The applicant’s submissions in this Court

In support of the application to review the judge’s refusal to certify, the applicant contended that the judge ‘erred in finding that exclusion of the alleged admissions would not substantially weaken the prosecution case because reliance on those statements is predicated upon an acceptance of the complainant’s evidence in respect of the alleged offences’.
Counsel for the applicant submitted that WA is the sole source of the first, second and third admissions, in circumstances where the jury’s acceptance of her evidence will depend entirely on its assessment of her credibility and reliability. Permitting the prosecution to elicit uncorroborated evidence from WA on both the alleged admissions and substantive allegations would have the effect of artificially reinforcing her credibility and reliability in a manner that invites the jury to engage in bootstrap reasoning. The alleged admissions are thus of significant force in bolstering WA’s credibility. Counsel submitted that excluding evidence of the alleged admission in circumstances where the prosecution case depends on the credibility of the complainant is capable of substantially weakening the case against the applicant, even where the case might be regarded as ‘strong’ without that evidence.
On the assumption that review of the refusal to certify was granted, counsel for the applicant submitted that the judge erred in determining that it was reasonably open to conclude that the impugned statements were ‘admissions’. The first statement cannot be regarded as an admission by the applicant to any fact rationally capable of affecting the assessment of the probability of the existence of a fact in issue that is adverse to the applicant’s interests in the proceedings and so is irrelevant and inadmissible. As to the second statement, counsel submitted that, in determining that it amounted to an admission, the judge erroneously had regard to WA’s opinion that her pregnancy must have resulted from one of the four alleged acts of rape.

Furthermore, counsel for the applicant submitted that the judge erred in failing to exclude each of the four alleged admissions under s 137 of the Act. In finding that admitting the first and second statements does not give rise to unfair prejudice because the jury’s acceptance of them is predicated on accepting her evidence of the offences, the judge failed to have regard to the circularity of this reasoning process. Counsel submitted that, because the proposed evidence involves circular reasoning and speculation, the judge ought to have found that their probative value was greatly reduced and excluded it under s 137, since there is a real risk the jury would overvalue the evidence.
The third and fourth alleged admissions are of minimal probative value, counsel submitted, because the circumstances in which it is said they were made are unclear and the applicant on each occasion does not express a concluded view that any action by him gave rise to the conception of the child in question. The judge erred in finding otherwise and in determining that the probative value of the alleged statements is bolstered by their capacity to be regarded as confessions.
Counsel further submitted that the judge erred in finding that the alleged statements individually and together were capable of being regarded as admissions to some adverse fact from which a jury might infer guilt of the charges since WA’s evidence is that the only sexual encounters between her and the applicant during the relevant time were non-consensual and thus the subject of a charge. Thus, the only way any of the alleged statements can hold probative value is if they are treated as confessions. The evidence in respect of each alleged admission is not, however, capable of supporting that interpretation. It is likely to be overvalued. Any directions given would likely inflate the perceived significance of the disputed evidence.

Discussion

Risking some repetition, s 295(2) of the CPA provides that a party to a trial on indictment may only appeal to this Court against an interlocutory decision by leave. Where, as does this case, an interlocutory decision concerns the admissibility of evidence, s 295(3)(a) provides that a party may not seek leave to appeal unless the judge who made the interlocutory decision certifies (among other things) ‘that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case’.
If a judge refuses to certify under s 295(3), s 296 provides a mechanism for the party requesting certification to apply for review. Upon such a review, the Court is required by s 296(4) to ‘consider the matters referred to in section 295(3)’; and ‘if satisfied as required by section 297, [the Court] may give the applicant leave to appeal against the interlocutory decision’. The requirement that the Court ‘consider’ the matters as set out in s 295(3) — in particular, whether the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case — means that the Court ‘must give them genuine and realistic consideration’.[14]
[14]Tuite v The Queen (No 2) [2015] VSCA 180, [25] (Weinberg and Whelan JJA, and Croucher AJA) (‘Tuite’).
Section 297 of the CPA provides:
297 When leave to appeal may be given
(1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to —
(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b) whether the determination of the appeal against the interlocutory decision may —
(i) render the trial unnecessary; or
(ii) substantially reduce the time required for the trial; or
(iii)resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv)reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and
(c) any other matter that the court considers relevant.
(2) The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.
…
Given the provisions of s 297, the Court could only grant leave to appeal in the present matter if the exclusion of the evidence would eliminate or substantially weaken the prosecution case; and only if the Court is satisfied that ‘it is in the interests of justice to do so’, having regard to whether the determination of the appeal against the interlocutory decision may resolve an issue of law or evidence necessary for the proper conduct of the trial (or having regard to ‘any other matter the court considers relevant’). Plainly, by making separate provision in s 295(3)(a) for interlocutory decisions concerned with the admissibility of evidence, Parliament intended that decisions of that kind be treated as a ‘special category’ for the purposes of interlocutory appeals.[15] It was obviously thought to be necessary for there to be a threshold test before evidentiary questions could be the subject of consideration on an interlocutory appeal lest this Court be inundated with applications for leave to appeal ‘regarding evidentiary decisions of the multifarious kinds which are made every day in many criminal trials’.[16]
[15]CGL v DPP (No 2) (2010) 24 VR 482, 483 [4] (Maxwell P, Buchanan and Bongiorno JJA).
[16]Ibid 483 [5].
For present purposes, the Dictionary to the Act defines an admission to be a previous representation made by a defendant in a criminal proceeding which is ‘adverse to the [defendant’s] interest in the outcome of the proceeding’. Subject to exclusionary rules, in order to be admissible an alleged admission must — if accepted — have the capacity rationally to directly or indirectly affect the assessment of the probability of the existence of a fact in issue in the proceeding.[17] Section 88 of the Act provides that, for the purpose of determining whether evidence of an admission is admissible, ‘the court is to find that a particular person made the admission if it is reasonably open to find that he or she made the admission’.
[17]See ss 55(1) and 56 of the Act.
In our view, it was open to the judge to conclude that the four alleged admissions were admissible.
As to the first alleged admission, we agree with the judge’s finding that the evidence is reasonably capable of being viewed as an acknowledgement by the applicant that he had non-consensual sexual intercourse with WA on at least one occasion. In that regard, the temporal connection between the last occasions of rape and the alleged admission is important.
Similarly, given when it was made, we consider it was also open to the judge reasonably to conclude that the second alleged admission was capable of being viewed as an admission of recently engaging in non-consensual sexual intercourse with WA on at least one occasion.
With respect to the third and fourth alleged admissions, we consider that it was reasonably open to the judge to conclude that the applicant’s statements amounted to an acknowledgement that he did something hurtful to WA which could have resulted in her pregnancy; that is, that he had non-consensual sexual intercourse with her which resulted in the child JM’s conception.
Moreover, we agree with the judge’s conclusion that s 137 of the Act was not engaged. Although we regard the probative value of the evidence of the first, second and third alleged admissions to be low, such probative value as the evidence has is not outweighed by the risk of unfair prejudice. The frailties inherent in the evidence will be obvious to any reasonable jury, and there is little likelihood that a jury will use WA’s evidence as a form of self-corroboration. As to that, it might be expected that the trial judge will, by appropriate directions, make it clear to the jury that WA’s evidence of the applicant’s admissions will not be capable of providing independent support for her account.
The fourth alleged admission stands in a different position. Given that the evidence that it was made will come from GM — a source independent of WA — it does not suffer from the same weaknesses attending the evidence of the other admissions.
Given the foregoing, the applicant’s challenge to the admissibility ruling, and to the certification ruling, must fail.
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[2022] VSCA 253

18 November 2022