Peterson (a pseudonym) v The Queen
[2019] VSCA 12
•7 February 2019
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0263
| JEFFREY PETERSON (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]Because this is a interlocutory proceeding, a pseudonym has been used in place of the name of the applicant and the reasons have been prepared in a form which omits identifying details.
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| JUDGES: | MAXWELL P and TAYLOR AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 December 2018 |
| DATE OF ORDERS: | 10 December 2018 |
| DATE OF JUDGMENT: | 7 February 2019 |
| MEDIUM NEUTRAL CITATION: | [2019] VSCA 12 |
| JUDGMENT APPEALED FROM: | DPP v [Peterson] (Unreported, County Court of Victoria, Judge Wilmoth, 4 December 2018) |
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CRIMINAL LAW – Appeal – Interlocutory appeal – Review of refusal to certify – Evidence – Tendency evidence – Judge admitted tendency evidence – Judge refused to certify for interlocutory appeal – No error – Application dismissed – Criminal Procedure Act 2009 ss 295, 296.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr S Gillespie-Jones | Cinque Oakley Senior |
| For the Respondent | Dr N Rogers QC | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
TAYLOR AJA:
Summary
The applicant was charged on indictment with four charges in respect of the complainant ‘MB’, who is his niece. Charges 1, 2 and 4 allege indecent assault. Charge 3 alleges gross indecency as a course of conduct charge. The trial of that indictment was listed before the County Court sitting in a circuit location.
On 30 November 2018, following argument the previous day, the trial judge ruled that evidence from the applicant’s natural daughter (‘LK’) was admissible in the trial as tendency evidence. The applicant has previously pleaded guilty to indecent assault and incest with respect to LK.
The respondent sought to rely upon the evidence relating to LK to establish that the applicant had a tendency to have a particular state of mind — namely, a sexual interest in young female family members in his care — and to act on that interest and in a particular way, by engaging in sexual acts with young female family members.
On 4 December 2018, the applicant asked the trial judge to certify under s 295(3)(a) of the Criminal Procedure Act 2009 (the ‘Act’) that this tendency evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case. The trial judge refused to do so. On 6 December 2018, pursuant to s 296(1) of the Act, the applicant applied for review of the refusal to certify.
So as to accommodate and preserve the circuit listing of the trial, we heard the application on 10 December 2018. After hearing argument, we announced that the application to review the refusal to certify would be rejected, and that our reasons would be published later. These are those reasons.
Review jurisdiction to be invoked sparingly
This Court has, for some years, stated that interlocutory appeals concerning evidentiary issues should be ‘strictly confined’.[2] This Court has also stated its expectation that practitioners will act responsibly in deciding whether to seek to review the refusal of a trial judge to certify such interlocutory decisions.[3]
[2]KJM v The Queen (2011) 33 VR 11, 13 [13] (‘KJM’); Wells [No 2] v The Queen [2010] VSCA 294 [46] (‘Wells [No 2]’); CGL v DPP [No 2] (2010) 24 VR 482, 483 [5] (‘CGL [No 2]’); (2015) 45 VR 276, 284 [26] (‘Pace’); DPP v Paulino (2017) 54 VR 109, 111–112 [7] (Weinberg JA) (‘Paulino’); Harris (a pseudonym) v The Queen [2017] VSCA 316 [56].
[3]Frazier (a pseudonym) v The Queen [2017] VSCA 370 [31] (‘Frazier’); Lewis (a pseudonym) v The Queen [2018] VSCA 40 [42] (‘Lewis’).
The requirement of certification in s 295(3) of the Act was intended to limit interlocutory appeals to questions of ‘very real significance’.[4] First, the mechanism of interlocutory appeal was not designed to fragment the criminal process.[5] Rather, the mechanism was designed to achieve a balance between ‘hearing appeals that are genuinely likely to reduce overall delays and avoiding the fragmentation of individual trials without good reason.’[6]
[4]Lewis [2018] VSCA 40 [42].
[5]Wells [No 2] [2010] VSCA 294 [43]–[46].
[6]Explanatory Memorandum, Criminal Procedure Bill 2008, 109.
Second, Parliament did not intend that the work of this Court would be inundated with evidentiary applications. As Priest and Beach JJA said in Director of Public Prosecutions v Pace:
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.[7]
[7]Pace (2015) 45 VR 276, 284 [26]. See also Paulino (2017) 54 VR 109, 111–112 [7].
That is why s 295(3) of the Act erects a ‘barrier to certification’[8] in the stringent terms it does. Certification is not a ‘mere formality’.[9] As Weinberg JA said in Director of Public Prosecutions v Paulino:
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. On any view, it should be read in context and, in accordance with the Latin maxim, noscitur a sociis. 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.
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.[10]
[8]Paulino (2017) 54 VR 109, 112 [8].
[9]CGL [No 2] (2010) 24 VR 482, 485 [20].
[10]Paulino (2017) 54 VR 109, 112 [8]–[10] (citations omitted).
An application to review a refusal to certify faces a greater hurdle than does an application for leave to appeal where certification has been granted.[11] As was emphasised in Frazier (a pseudonym) v The Queen:
this Court will ordinarily attach considerable weight to the judge’s decision regarding the applicable precondition.[12]
[11]Lewis [2018] VSCA 40 [42].
[12][2017] VSCA 370 [8].
Applications under s 296 for leave to review a refusal to certify, like applications under s 295 for leave to appeal, are determined according to the principles outlined in House v The King.[13] Thus, in both ss 295 and 296 applications, this Court will intervene only if specific error is established or if the impugned decision — either the refusal to certify, where certification has not been granted, or the evidentiary ruling itself, where certification has been granted — was not reasonably open in the circumstances.
[13](1936) 55 CLR 499.
The jurisdiction to review a refusal by a trial judge to certify ‘is to be invoked responsibly and sparingly’.[14] It is axiomatic that evidence ruled admissible by a trial judge is probative of the prosecution case and that, accordingly, if it were excluded, it would weaken that case. But that is not nearly sufficient to meet the onerous test of ‘eliminate or substantially weaken’ in s 295(3) of the Act.
[14]Frazier [2017] VSCA 370 [36].
As explained by Weinberg JA in Paulino, those words have considerable work to do. And the trial judge will usually be in the best place to decide whether the test has been met. Where, as here, the judge decides that it has not been met, this Court will be slow to conclude that the decision was not reasonably open.
The present case
In the present case, the tendency evidence to be given by LK is powerful evidence in the prosecution case. In its absence, however, the prosecution case would certainly not be eliminated, nor weakened substantially.
Absent the tendency evidence with respect to LK, the trial, like many in this State concerned with sexual offences, would comprise evidence of a similar kind — evidence from the complainant MB, evidence of complaint made by MB to the then wife of the applicant, and other circumstantially relevant material. Additionally, the trial judge has ruled, without objection by the applicant, that the evidence of MB herself can be used as single complainant tendency evidence.
That being so, it could not be said that the exclusion of the tendency evidence would have left the prosecution case ‘not very far short of elimination’.[15] The trial judge was therefore entirely correct to refuse to certify the evidentiary ruling.
[15]Paulino (2017) 54 VR 109, 112 [9].
For these reasons, we concluded that the review application was without merit.
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