R v Cerantonio (Ruling No 19)
[2018] VSC 725
•22 November 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2017 0078; S CR 2017 0079
S CR 2017 0080; S CR 2017 0081
S CR 2017 0082; S CR 2017 0104
Between:
THE QUEEN
-and-
ROBERT EDWARD CERANTONIO
PAUL JAMES DACRE
ANTONINO ALFIO GRANATA
SHAYDEN JAMIL THORNE
KADIR KAYA &
MURAT KAYA
Accused
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JUDGE: | Croucher J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 November 2018 | |
DATE OF RULING: | 22 November 2018 | |
CASE MAY BE CITED AS: | R v Cerantonio & Ors (Ruling No 19) | |
MEDIUM NEUTRAL CITATION: | [2018] VSC 725 | |
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CRIMINAL LAW – Application by Crown for certification for application for leave to appeal against interlocutory decision – Six men charged jointly with offence of engaging in conduct preparatory to offence of entering a foreign country with intention of engaging in a hostile activity in that country – Court ruled, over objection of Crown, that evidence of mere fact of utterances or actions of an accused (i.e. shorn of any beliefs that may be inferred from such behaviour at time of occurrence) is not admissible, against that accused, in proof of belief, motivation or intention of that accused at time of charged conduct – Court left open other bases of admissibility of same evidence to be argued and ruled on – Whether interlocutory decision “otherwise of sufficient importance to the trial to justify its being determined on an interlocutory appeal” – Whether “the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case” – Whether application without merit – Whether application misconceived – Whether application premature – Application for certification refused – Criminal Procedure Act 2009 (Vic), s 295; The Queen v Cerantonio & Ors (Ruling 18) [2018] VSC 698.
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Appearances: | Counsel | Solicitors |
| For the Crown | Mr R Maidment QC with Ms R Sharp and Ms A Peek | Solicitor to Commonwealth Director of Public Prosecutions |
| For Robert Cerantonio | Mr J Williams with Dr G Boas | Stary Norton Halphen Criminal Lawyers |
| For Paul Dacre | Mr J McMahon SC with Ms G Morgan | Slades & Parsons Criminal Lawyers |
| For Antonino Granata | Mr C Farrington with Mr C Terry | Patrick W Dwyer Barristers & Solicitors |
| For Shayden Thorne | Mr S Moglia with Ms G Connelly | Doogue O’Brien George Barristers & Solicitors |
| For Kadir Kaya | Mr D Hallowes SC with Ms F Todd | Galbally & O’Bryan Defence Lawyers |
| For Murat Kaya | Mr D Dann QC with Mr M Goldberg | James Dowlsey & Associates Criminal Law |
HIS HONOUR:
Overview
The Crown applies, pursuant to s 295(2) of the Criminal Procedure Act 2009 (Vic) (“the CPA”), for certification for an application for leave to appeal to the Court of Appeal against an interlocutory decision.
The interlocutory decision against which the Crown wishes to appeal concerns my most recent pre-trial ruling in this matter (“Ruling 18”).[1] In particular, I ruled that evidence of the mere fact of certain utterances or actions by an accused (i.e. utterances or actions completely shorn of any belief or state of mind of that accused as may be inferred from such utterances or actions at the time of their occurrence) is inadmissible, or should not be admitted, against that accused in proof of the belief, motive or intention he held at the time of entry into the alleged agreement the subject of the charged offence.[2]
[1]The Queen v Cerantonio & Ors (Ruling 18) [2018] VSC 698 (delivered 15 November 2018).
[2]The Queen v Cerantonio & Ors (Ruling 18) [2018] VSC 698 at [1] & [43].
I formed the view that, put in that very narrow way against the accused who made the utterance or engaged in the action, and against him only, the evidence is of no probative value, and therefore fails the test of relevance set out in s 55 of the Evidence Act 2008 (Vic) (“the Evidence Act”) with respect to proof of any fact in issue in the trial of that accused. I also concluded, in the alternative, that, if, contrary to my view, there could be any probative value in the mere utterances or actions of an accused, in the case against him alone, it must be so low, and the risk of a jury’s finding the Crown’s suggested chain of reasoning misleading or confusing is so high, or the risk of their misusing the evidence in a manner contrary to the Crown’s disavowal of its use for any hearsay, admission, belief or state of mind purpose is also so grave, that the evidence must be excluded pursuant to either or both of ss 135 and 137 of the Evidence Act in any event.[3]
[3]The Queen v Cerantonio & Ors (Ruling 18) [2018] VSC 698 at [1]-[6] & [33]-[43].
On the application for certification, the Crown submits, first, that the interlocutory decision in Ruling 18 is “otherwise of sufficient importance to the trial to justify its being determined on an interlocutory appeal”[4] and, in the alternative, that “the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case”,[5] within the meaning of those words in s 295(3)(b) and (a) of the CPA respectively. Accordingly, the submission continues, the application for certification should be granted. While the accused support the correctness of Ruling 18, they, somewhat curiously, also support the Crown’s application for certification, albeit only on the latter of those two bases.
[4]Crown’s Summary of Contentions in Support of Certification (20 November 2018) at [1].
[5]Crown’s Summary of Contentions in Support of Certification (20 November 2018) at [2].
My initial view was that certification should be refused. Now, having had time to reflect on the matter more carefully, I am even more firmly of that view.
My reasons for refusing certification are as follows.
Section 295 of the CPA
Relevantly, s 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
…
(4)A request for certification under subsection (3) must be determined as soon as practicable after the request is made.
The task of considering certification
Before addressing the submissions in more detail, I wish to make the following observations about the task of considering an application for certification for an application for leave to appeal to the Court of Appeal against an interlocutory decision.
The requirement for certification is no mere formality. The requirement reflects Parliament’s recognition that the judge who made the interlocutory ruling will usually be best placed to decide whether the applicable pre-condition to certification in s 295(3) of the CPA is satisfied.[6]
[6]Frazier (a pseudonym) v The Queen [2017] VSCA 370 at [7] (Maxwell P & Kyrou JA), citing CGL v DPP [No 2] (2010) 24 VR 482 at 484[13].
That said, it is, in a sense, an awkward task for a trial judge to undertake. This is because part of the task involves considering whether one’s own interlocutory decision might be wrong. While most of us are brought up with a level of humility that might be summed up in the aphorism “self-praise is no praise at all”, it is also important to recognize that it is perhaps natural to have a bias in favour of believing in the correctness of one’s own decision, particularly when that decision is the product of (at least an attempt at) careful, considered and detached analysis of the problem at hand according to law and according to the oath or affirmation of judicial office.
Overview of reasons for refusing certification
Bearing those things in mind, I make the following summary points as to why I consider that certification must be refused.
First, for the reasons I gave in the ruling, I am satisfied that the evidence is plainly inadmissible, or should not be admitted, against the accused who made the utterance or engaged in the action, on the very narrow basis for admissibility urged by the Crown and dealt with (exclusively) in the ruling. There is a simple and conventional route to potential proof of the relevant belief or state of mind of any accused both at the time of the utterances or actions and at the time of the charged behaviour. Yet the Crown, with breathtaking obstinacy, have chosen to eschew that argument. Instead, the Crown, for its own confounding reasons, attempts to prove the relevant belief or state of mind at the time of the charged behaviour by something akin to a sleight of hand. For, on the argument advanced, a jury would be required to consider what the accused said or did on earlier occasions, but shorn of any belief or state of mind that might be inferred at the time of those utterances or actions, and yet then, from those mere words or actions, infer that same accused’s belief or state of mind at the time of the charged behaviour. As I have said, the Crown’s approach renders the evidence irrelevant, on the basis for admissibility urged. Nor, if there be any probative value in that neutered evidence, could any reasonable jury make sense of the Crown’s path of reasoning, let alone resist the temptation to reason precisely in the fashion eschewed by the Crown, despite any directions to the contrary. Accordingly, I consider the application for certification to be without sufficient merit at the threshold.
Secondly, the application for certification is also premature.[7] Ruling 18 concerned a very narrow issue. In that ruling, I made it clear that there might be other bases for admissibility of the same evidence that have not been the subject of argument (or at least argument by all parties) or ruling.[8] I reiterated this, repeatedly, during the oral argument on the certification application.[9] Indeed, during argument prior to the ruling, the Crown expressly conceded that, following the ruling, there would need to be further argument on whether the evidence might be admissible on other bases, including “in the cases of all of the accused as part of the circumstantial picture”.[10] (I shall set out the relevant extracts shortly.) Yet, now, the Crown wishes to renege and instead bypass that further argument in this Court and go directly to the Court of Appeal. But it is only after submissions have been made by all parties on those outstanding issues, and only after I have ruled on those issues, that it will be possible to determine:
[7]See, e.g., KJM v The Queen [2011] VSCA 151 (Maxwell P, Neave & Bongiorno JJA); and Russell (a pseudonym) v The Queen [2016] VSCA 196 (Maxwell P, Whelan & McLeish JJA).
[8]The Queen v Cerantonio & Ors (Ruling 18) [2018] VSC 698 at [5]-[6], [19] & [43].
[9]See, e.g., T 3310.6-24; 3311.13-3312.29; 3314.4-3315.21; 3316.26-3320.6; 3321.18-3322.6; 3327.2-10; 3329.14-31; 3331.14-24; 3333.25-3336.5; 3341.8-3342.8; 3344.11-3345.1; & 3346.5-3347.10 (20 November 2018).
[10]T 3248.8-9 (9 November 2018). See also T 3246.8-3249.29, parts of which are extracted below.
a) precisely what evidence will be admitted or not, and for what purpose, and therefore whether, in the result, to adapt the words of s 295(3)(a), the prosecution case has been “eliminate[d] or substantially weaken[ed]” and, in turn, whether at that stage the matter might be fit for certification; and
b) as a further result, whether the stated concerns of the Crown with respect to the fate of a joint trial have any validity – which concerns, at present, seem to me to be far-fetched, to say the least – and, in turn, whether what would then be a series of interlocutory decisions are “otherwise of sufficient importance to the trial to justify [their] being determined on an interlocutory appeal”, within the meaning of s 295(3)(b).
Whether “otherwise of sufficient importance” (s 295(3)(b))
Introduction
I turn now to address the major submissions made by the Crown under each of the limbs of s 295(3) of the CPA. I shall address the alternative arguments in paragraphs (a) and (b) of that provision in the order in which they were raised in the Crown’s written and oral submissions.
So, first, to the arguments under s 295(3)(b).
“Secondary effect” of ruling
The first basis for the Crown’s submission under this provision is that the “secondary effect of Ruling 18 is that the … evidence [the subject of the ruling] is not available in this joint trial as circumstantial evidence of the facts in issue against any of the accused”.[11]
[11]Crown’s Summary of Contentions in Support of Certification (20 November 2018) at [4]; see also [5]-[8] & [10].
But the argument is both flawed and premature. As indicated earlier, in Ruling 18, I have answered a very narrow question concerning the evidence in question, but I have not yet ruled on other possible bases for admissibility of the same evidence. In particular, in Ruling 18, after summarizing my reasons for rejecting the Crown’s arguments for admissibility on the very narrow basis urged, I said this:[12]
[5] None of this is to say that the evidence caught by this ruling is necessarily inadmissible for any purpose whatsoever. As discussed in the course of oral argument, there may be reasons why at least some aspects of these utterances or actions may be admissible on other bases. For example, as I have indicated, the Crown previously argued, but now eschews, reliance on the evidence in proof of the belief or the state of mind of the particular accused at the time he made the utterances or engaged in the actions, which in turn might be relevant to proof of that accused’s belief or state of mind at a later time. Similarly, depending upon the circumstances of the alleged acts or utterances, some of the evidence might be admissible against co-accused as original evidence of an agreement. There may be other examples as well. I await the parties’ submissions on those issues.
[12]The Queen v Cerantonio & Ors (Ruling 18) [2018] VSC 698 at [5].
As I also made plain in Ruling 18, the parties’ submissions were delivered principally by reference to the paradigm of utterances by Mr Cerantonio in the course of his several lectures or pronouncements on various matters in the years leading up to the charged behaviour.[13] As to the other items of evidence the subject of the ruling, which included other utterances or behaviour by all of the accused, and sometimes in the presence of two or more of them, I expressly said:[14]
[19] No separate argument was developed by the parties as to how the analysis that was urged by the Crown in respect of Mr Cerantonio’s lectures, tweets and posts might apply to these other pieces of evidence.
[13]The Queen v Cerantonio & Ors (Ruling 18) [2018] VSC 698 at [16].
[14]The Queen v Cerantonio & Ors (Ruling 18) [2018] VSC 698 at [19].
Without pre-judging things, it is obvious that there could be reasonable arguments for admissibility of much of that evidence on bases other than the failed basis urged by the Crown for the purposes of Ruling 18.
Further, as the following extract of transcript reveals, prior to Ruling 18, after an initial misunderstanding about the scope of the argument being considered, the Crown expressly acquiesced in my confining the ruling to the very narrow issue on which I ruled. It is also plain that the Crown acquiesced in the understanding that, following the ruling, there would need to be further argument and a separate ruling on whether the same evidence might be admissible on other bases. Thus, after counsel on behalf of all accused framed the very narrow question upon which I ruled,[15] the following exchanges occurred:[16]
[15]T 3245.11-3246.28 (9 November 2018).
[16]T 3246.29-3249.24 (9 November 2018); emphasis added.
[CROWN] … [J]ust on the last matter raised by [counsel for the accused]. The question of admissibility of circumstantial evidence, of course, doesn’t go just to the admissibility against the accused who is the actor or declarant.
[HIS HONOUR]: But that is all I’m being asked to rule upon at the moment.
[CROWN]: No, Your Honour.
[HIS HONOUR]: Yes, is the answer, because I cannot sensibly rule on the other side of the coin unless and until I’ve heard argument on that, and I’ve not heard argument on that from the other parties.
[CROWN]: I’m sorry, …, maybe we’re talking at cross-purposes. The Crown position is that the circumstantial evidence is admissible in the cases of all accused. I thought we had been arguing about that, because otherwise we wouldn’t have been concerned about the hearsay issue, and that is the threshold point. …
[HIS HONOUR]: That throws a spanner in the works completely and we need to start again, sadly. They’re different points … I’ve been at pains to point out that I understand that the evidence of something said by an accused might be admissible in the case of another accused because what is said by the first accused might be capable of informing the state of mind of the second accused in those examples. That’s a different question from the question we’ve been debating ad nauseam …
[CROWN]: … [T]he order in which Your Honour deals with these issues is entirely a matter for Your Honour and we don’t want to interfere with that, but we don’t want to be misunderstood in terms of what will need to be ruled upon, which is not just whether the evidence is admissible, for instance, against Mr Cerantonio in respect of the sermons, as to whether it is admissible in the cases of all of the accused as part of the circumstantial picture. And we say that the whole threshold question really revolves around the use by the Crown of each act and declaration of all of the accused as circumstantial evidence in the cases against all accused.
[HIS HONOUR]: I understand you’re saying that, but that’s not what counsel have been addressing. …
[CROWN]: No. It is for Your Honour to determine what order these matters are heard and we will obviously await Your Honour’s ruling on the first matter before going on to the second, because that is a matter for Your Honour.
[HIS HONOUR]: I’m not wedded to doing it that way necessarily. The accused want to do it that way.
[CROWN]: Exactly. I haven’t assented to that, but I am assenting to it because if that is what Your Honour wishes to do, we’re content with that.
[HIS HONOUR]: You might want to persuade me it makes more sense to argue the thing holus-bolus.
[CROWN]: I’m sorry, I thought we had been. I must have completely missed the point. I thought we were arguing the admissibility of circumstantial evidence in relation to the cases against all accused, not just the utterer of the declaration.
[HIS HONOUR]: Well, what do you want to do about it?
[CROWN]: I don’t want to do anything about it, because if Your Honour is minded to rule on the narrower issue, then we will obviously proceed from there to the next issue.
[HIS HONOUR]: I was minded to, because I understood that’s what the accused wanted to do and what you wanted me to do as well. But you’re saying you want a ruling on more than that. I can’t give you a ruling on more than that at the moment because I haven’t heard the argument from the accused yet as to whether or not the admissibility as against other accused is appropriate or justified, as the case may be, and it seems to me … that that sort of analysis about individual accused is going to vary – there will be some broad things that render it admissible [but] [t]here will be other sections, because of s 137 questions or other difficulties, it might not be admissible, and it will be more a case-by-case basis, I expect, sadly, because you don’t seem to be able to agree, but anyway. I’m happy to rule on the narrow point that [counsel for the accused] has framed, helpfully, this morning.
[CROWN]: Yes, all right. If Your Honour is content to do that, we’ll rest on that, but there will be further argument.
[HIS HONOUR]: There has to be, plainly there has to be. I understand from your point of view, that is clearly not the end of the penny section if you were to fail on this point; there is much more to it than that.
In circumstances where the Crown has acquiesced both in the narrow scope of the ruling and in the need for further argument and ruling upon those outstanding issues, and also where this Court’s ruling under challenge has been confined because of that acquiescence, it seems to me that, at the very least, the further argument and ruling should be had and given in this Court before any sensible consideration could be given to how the Crown case ultimately might look and to any application for certification.
Further, as I have already indicated, I regard the application for certification as premature and inapt for other related reasons. If certification were granted, the Court of Appeal would not have any ruling on at least some of the matters about which the Crown is presently concerned. It would be a scandalous waste of that busy Court’s scarce resources to send a case there on such an incomplete footing.
While this next point also goes to the test under s 295(3)(a), to which I shall return shortly, unless and until that further argument and ruling occurs, neither this Court nor the Court of Appeal would be able adequately to assess what evidence will be admitted or not, and for what purpose, and therefore whether, in the result, the prosecution case has been “eliminate[d] or substantially weaken[ed]”.
Unable to run a joint trial
The second basis for the application under s 295(3)(b) is that “a consequence of Ruling 18 is that the Crown is unable to run a joint trial”.[17] That argument is also misconceived and premature.
[17]Crown’s Summary of Contentions in Support of Certification (20 November 2018) at [11]; see also [6]-[10] & [12]-[14].
First, the argument is flawed because, again, it wrongly assumes that the evidence in question is not admissible for any purpose at all, when that simply has not been determined yet.
Secondly, strangely, the argument also proceeds, at least in part, on the assumption that the evidence of Mr Cerantonio’s acts and declarations – in the form of lectures, tweets or pronouncements – might be admitted against him in proof of his state of mind at the time of such utterances. Yet this is the (far more conventional) basis for admissibility that was once pressed but, in a confounding turn of events, was then said to be eschewed by the Crown for the purposes of Ruling 18.
Further, while the Crown maintains its disavowal of that (conventional) basis for admissibility of the actions or utterances on a joint trial, at the conclusion of the oral argument on certification, the Crown announced that it would press that basis for admissibility if there were separate trials.[18] This, of course, has come in circumstances where, only very recently, the Crown proclaimed, as if it were a badge of honour, that “[a] trial is a movable feast, it is never set in concrete”.[19] Remarks of this kind tend to leave me with little confidence that the Crown will not attempt to change the way in which it puts these matters of admissibility yet again.
[18]T 3347.19-3348.16 (9 November 2018).
[19]T 3185.5-6 (8 November 2018). See also T 3328.16-19 (9 November 2018).
Thirdly, and in any event, whether (if the Crown took yet another about-face) the evidence were sought to be admitted on that more conventional basis against Mr Cerantonio and the others, or whether it were admitted on some other (as yet undetermined) basis or bases against him and/or others, none of that, at least as a starting point, would preclude the fair running of a joint trial. It is commonplace to have a joint trial in which evidence is admissible against one or more accused but not against another or others. The classic example is the case of an accused’s police interview or admissions to a third party. Judges in joint trials commonly give juries directions that some evidence (such as an accused’s police interview) is admissible against (and for) that accused and not another or others, and must not be used against (or for) that other or others. Juries are expected to follow such directions, and it is accepted that they do.
Fourthly, depending upon the particular circumstances of any case, while there may always be room for argument about whether there should be a separate trial or trials of co-accused, again, whether such arguments might have any merit simply cannot be assessed unless and until the state of the evidence is known. And the state of the evidence in this case will not be known until after the further argument and ruling upon the outstanding issues of admissibility left in contemplation both before and after Ruling 18, as well as most (if not all) other outstanding issues of admissibility of other evidence. Thus, again, the application for certification is premature.
“Does not concern the admissibility of evidence”
Thus far, I have proceeded on the assumption that, despite the fact that this argument under s 295(3)(b) appears to turn on questions of the admissibility of evidence, and despite the terms of that paragraph (namely, “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”), there is still jurisdiction to consider the application for certification under this provision.
To this end, the Crown relied on the reasoning in PNJ v DPP.[20] As the Crown pointed out,[21] in that case, the Court (Maxwell P, Buchanan and Bongiorno JJA) held that:[22]
where the question of cross-admissibility is bound up with the question of separate trials, the interlocutory decision should not be characterised as a decision concerning evidence. In substance, if not in form, the decision concerns the whole conduct of the trial. Thus, when an application for a certificate is made in respect of such a decision, the question to be addressed is that raised by s 295(3)(b), namely whether the interlocutory decision is:
… of sufficient importance to the trial to justify it being determined on an interlocutory appeal.
[20]PNJ v DPP (2010) 27 VR 146.
[21]Crown’s Summary of Contentions in Support of Certification (20 November 2018) at [11].
[22]PNJ v DPP (2010) 27 VR 146 at 153[33].
However, in the circumstances that obtain here, I find it unnecessary to decide whether the present case strictly does concern an interlocutory decision of the type that would fall within the reasoning in PNJ v DPP and the terms of s 295(3)(b).
Conclusion on s 295(3)(b)
This is because, even if Ruling 18 is (or includes) an interlocutory decision of the relevant type, for the foregoing reasons, I am not satisfied that that interlocutory decision is otherwise of sufficient importance to the trial to justify its being determined on an interlocutory appeal.
Discretion
The parties conceded that the decision whether or not to certify involves the exercise of a discretion. If indeed the decision does involve an exercise of discretion, I would exercise my discretion to refuse certification for the same reasons. Chief among those reasons would be my view that the application for certification is premature. Further, in my respectful opinion, the Crown should not be heard to apply for certification when previously it has acquiesced both in the narrow scope of Ruling 18 and in the need for further argument and ruling on the same evidence, which matters were left unresolved, and deliberately so, by Ruling 18.
Whether “would eliminate or substantially weaken the prosecution case” (s 295(3)(a))
Introduction
Finally, I turn to the Crown’s alternative argument (which the accused supported) under s 295(3)(a) of the CPA. That argument is to the effect that certification is warranted because, if the evidence the subject of Ruling 18 remains ruled inadmissible, that interlocutory decision would eliminate or substantially weaken the prosecution case.[23]
Submissions
[23]Crown’s Summary of Contentions in Support of Certification (20 November 2018) at [2] & [15]-[26].
In particular, the Crown submits that “the effect of Ruling 18 is … in effect [to] eliminate the Crown case”.[24] After setting out a summary of the evidence absent the items of evidence the subject of Ruling 18,[25] the Crown submits that “there is no [remaining] evidence from which a jury could infer the motivation for either the aborted plan to launch a boat from Darwin or the trip to Far North Queensland” and that “the Crown cannot prove the only element in dispute: intentions with which the accused agreed to do the acts in preparation”.[26]
[24]Crown’s Summary of Contentions in Support of Certification (20 November 2018) at [20].
[25]Crown’s Summary of Contentions in Support of Certification (20 November 2018) at [21]-[23].
[26]Crown’s Summary of Contentions in Support of Certification (20 November 2018) at [24] & [26].
Principles
In DPP v Paulino,[27] Weinberg JA said the following about interlocutory appeals brought under s 295(3)(a):[28]
[7] 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)[29] 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.
[8] 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.
[9] 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.
[10] 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.
[27]DPP v Paulino (2017) 54 VR 109.
[28]DPP v Paulino (2017) 54 VR 109 at 111[7]-112[10] (footnotes omitted apart from one, the next, citation).
[29]Wells v The Queen (No 2) [2010] VSCA 294 (Weinberg JA).
In the same case, Priest JA said this:[30]
[50] … [I]t should be observed that, in order for it to be concluded that the exclusion of evidence will substantially weaken the prosecution’s case, it is not enough that the exclusion of the evidence may ‘significantly’ weaken the case, since in context, the use of the adverb ‘substantially’ suggests something more than ‘significantly’. In context, the adverb ‘substantially’ connotes evidence which is of ‘major importance’, or, at least, ‘very important’ to the prosecution case.
Analysis
[30]DPP v Paulino (2017) 54 VR 109 at 120[50] (footnotes omitted).
Applying those tests, on the current state of pre-trial argument as to the admissibility of evidence, I am unable to conclude that, if Ruling 18 stands, the prosecution case will be “eliminate[d]” (i.e. that there will be “no case at all without that evidence”). Nor am I able to conclude that the prosecution case will be “substantially weaken[ed]” (i.e. reduced to “something not very far short of elimination”) or that the excluded evidence is of “major importance” or, at least, “very important” to the prosecution case.
Again, this is because there is much argument, and at least one ruling, still to be had about the admissibility, on other possible bases, of the very evidence the subject of Ruling 18. True it is that, pursuant to that ruling, that same evidence has been ruled inadmissible, but only on the very narrow basis argued by the Crown. As I indicated earlier when dealing with the submissions under s 295(3)(b), so too here, under s 295(3)(a), unless and until the further argument is had, and a ruling is given, on the admissibility of the same evidence the subject of Ruling 18, but on other bases, which argument and ruling were expressly left in abeyance at the instance of the Crown (and the accused) prior to that ruling, neither this Court nor the Court of Appeal will be able adequately to assess precisely what evidence will be admitted or not, and for what purpose, and therefore whether, in the result, the prosecution case has been “eliminate[d] or substantially weaken[ed]”.
Discretion
Even if I am wrong in my view that it cannot be said at this stage that the prosecution case has been eliminated or substantially weakened, I still would refuse certification on the same two discretionary grounds I mentioned earlier. First, absent the further argument and ruling, the application is still premature. The Court of Appeal should not be burdened with interlocutory appeals brought on a manifestly incomplete and inappropriate footing, as this one would be. Secondly, the Crown should not be heard to apply for certification when previously it has acquiesced in the narrow scope of Ruling 18 and in the need for further argument and ruling on related matters left unresolved, and deliberately so, by that very ruling.
Conclusion and order
Thus, for the foregoing reasons, I refuse the Crown’s application for certification for an application for leave to appeal to the Court of Appeal against the interlocutory decision in Ruling 18.
I shall hear the parties on what is to occur next.
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