R v Bufton (Ruling No 2)

[2019] VSC 264

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2018 0283

THE QUEEN
v
JANICE JOY BUFTON	Accused

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JUDGE:	TINNEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 April 2019
DATE OF RULING:	26 April 2019
DATE OF REASONS	29 April 2019
CASE MAY BE CITED AS:	R v Bufton (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2019] VSC 264

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CRIMINAL LAW – Murder – Evidence – Interlocutory decision to admit evidence – Interlocutory appeal – Application for certification - Evidence if ruled inadmissible would eliminate or substantially weaken prosecution case – Decision not attended by sufficient doubt to warrant appeal – Appeal hopeless – Certification refused – Criminal Procedure Act 2009 s 295(3)(a).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K Armstrong	Mr J Cain, Solicitor for Public Prosecutions
For the Accused	Mr T Danos	Irwin & Irwin Law

HIS HONOUR:

Introduction

1. The accused faces a charge of having murdered her former partner by deliberately running him over with a motor car on the driveway of her property in country Victoria. Benjamin Weston, an eye witness to the event, made a statement to the police on the day of the event as to his observations of the fatal incident and related matters. The day after making the statement, the witness took part in a video-recorded walk-through and interview with police at the scene of the alleged crime.

1. Weston is now deceased. Weston died on 8 October 2018, before the committal hearing was held in this case.

1. The prosecution filed and served a hearsay notice pursuant to section 67 of the Evidence Act 2008 in respect of the evidence of the witness. The notice specified section 65(2)(b) and (c) as the relevant exceptions to the hearsay rule upon which the prosecution intended to rely. The defence sought the exclusion of the evidence on the basis that the representations did not come within the exceptions to the hearsay rule relied on, and alternatively on the basis that the evidence should be excluded under section 135 or 137 of the Evidence Act.

1. On 11 April 2019, I ruled the evidence admissible.[1]

   [1]R v Bufton [2019] VSC 232.

1. On 23 April 2019, the defence solicitors notified the Office of Public Prosecutions that the accused intended to launch an interlocutory appeal, and would seek certification by the Court pursuant to section 295(3) of the Criminal Procedure Act 2009 (‘the Act’).

1. The matter came on for hearing before me on 26 April 2019. Mr Danos, for the accused, made an application for certification. The application was opposed by the Crown, for whom Mr Armstrong appeared. Following a relatively brief hearing, I indicated that I would refuse to certify, for reasons which I would spell out in more detail at a later time. These are those reasons.

The law

1. Section 295(3) of the Act relevantly provides:

(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;

(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;

…

1. It has long been recognised that interlocutory appeals concerning evidentiary issues should be ‘strictly confined’.[2]

   [2]Peterson (a pseudonym) v The Queen [2019] VSCA 12.

1. The Court of Appeal in Peterson (a pseudonym) v The Queen(‘Peterson’)[3] had this to say in respect of s 295(3) of the Act:

   [3]Ibid (‘Peterson’).

The requirement of certification in s 295(3) of the Act was intended to limit interlocutory appeals to questions of ‘very real significance’. First, the mechanism of interlocutory appeals was not designed to fragment the criminal process. 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.’

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.

That is why s 295(3) of the Act erects a ‘barrier of certification’ in the stringent terms it does. Certification is not a ‘mere formality’. [4]

[4]Peterson (n 2) [7]-[9] (citations omitted).

1. In MA v R (‘MA’),[5] Redlich JA, in whose judgment Weinberg and Bongiorno JJA agreed, stated:

   [5](2011) 31 VR 203 (‘MA’).

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 or so essential that its exclusion would eliminate or substantially weaken the prosecution case?

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 Director of Public Prosecutions (No 2), 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 and prosecutors exercise very real vigilance as to how s 295(3)(a) is applied, lest the work of this court become bogged down, in a way Parliament cannot possibly have intended, with applications for leave to appeal against evidentiary rulings.

In McDonald v Director of Public Prosecutions, it was said that the judge, in deciding whether the issue possessed the quality of ‘sufficient importance to the trial’ to warrant certification as required by s 295(3)(b) of the Act, had to make a judgment as to whether the rejected argument was without merit so that the appeal would be hopeless or was attended by sufficient doubt. In Wells v R (No 2), it was stated in the joint judgment that the approach stated in McDonald v Director  of Public Prosecutions was ‘relevant by analogy’ to the second aspect of the appeal in Wells, where the question was one of admissibility under s 295(3)(a) of the Act. Because certification had there been refused, the court went on to consider, in compliance with s 296(4)(a), whether the admissibility rulings were attended with sufficient doubt to warrant a grant of leave.

Accordingly, where the trial judge has ruled evidence admissible, the trial judge must make a judgment as to whether his or her interlocutory decision is attended by sufficient doubt. Both parties accepted that it must have been intended by Parliament that the judge make some evaluation of the likelihood that the evidence could be ruled inadmissible. When it is concluded that the prospect that the evidence would be ruled inadmissible is hopeless, or that the decision to admit the evidence is not attended by sufficient doubt, certification should be refused. It appears that certification was here granted without her Honour making any judgment as to the likelihood that either piece of the evidence of identification might be ruled inadmissible before determining whether its exclusion would eliminate or substantially weaken the prosecution case. [6]

[6]MA (n 5) [3]-[6] (Citations omitted).

The defence submissions

1. Mr Danos submitted that this was a very clear-cut case where the evidence in question, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.

1. When confronted, however, with the additional hurdle to certification constituted by the law as spelt out in MA, Mr Danos continued to focus on the considerable importance of the evidence and what he asserted were the inconsistencies between the account of the deceased witness and other evidence in the case, rather than on anything about my ruling which would indicate it was attended by any doubt.

The prosecution submissions

1. Mr Armstrong, in his oral submissions and a written outline he also filed, conceded that the evidence in question would, if ruled inadmissible, substantially weaken the prosecution case.

1. He submitted, however, that I should refuse to certify because of the additional requirement set out in MA. He submitted that the interlocutory decision I had made was not attended by sufficient doubt to warrant certification, for two reasons. First, where s 65 of the Evidence Act 2008 was concerned, because the accused had failed to refer to anything relevant about the circumstances of the making of the representations which would raise the prospect of their being either fabrications or unreliable. Secondly, as to ss 135 and 137 of the Evidence Act, because the only unfair prejudice relied upon by the accused was the inability to cross examine the witness.

Analysis

1. Acknowledging the very high barrier to certification constituted by the terms of s 295(3)(a) of the Act, I consider that the interlocutory decision here concerns evidence of sufficient importance to meet that test.

1. However, in my view, the other requirements of the law as it applies to the issue of certification dictate that certification would not be appropriate in this case. In making the judgment required of me as to the likelihood that the evidence in question could be ruled inadmissible, I am left with the strong impression that not only was my decision one that was open to me, but that it was in fact the only appropriate decision to be made in the circumstances.

1. For reasons I spelt out as clearly as I could in the ruling, I believe all of the representations came squarely within one or other or both of the exceptions to the hearsay rule relied on by the prosecution. Mr Danos, in his submissions during the pre-trial hearing, did not draw my attention to anything about the circumstances of the making of the representations which would raise the prospect of their being either fabrications or unreliable.

1. As for ss 135 and 137 of the Evidence Act 2008, there was nothing by way of unfair prejudice that came anywhere near outweighing the very substantial probative value of the evidence. Exclusion under either or those provisions would have been entirely inappropriate.

1. I do not believe that my decision is attended by sufficient doubt to warrant an appeal. Whilst of course I acknowledge that it will be the view of the Court of Appeal which is important in the end, performing the judgment that the law requires me to carry out at this stage, I consider that any appeal in this matter will be hopeless.

Conclusion

1. For the reasons set out above, I refuse to certify under s 295(3) of the Act.