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R v Chaouk

R v Chaouk

Case [2013] VSCA 99 2 May 2013

Appeal

Stay of Proceedings

Dietrich v The Queen

R v Fuller & Cummings

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0042
THE QUEEN	Applicant
v
MATWALI CHAOUK	Respondent
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Interveners
THE VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION
THE CRIMINAL BAR ASSOCIATION
THE LAW INSTITUTE OF VICTORIA
VICTORIA LEGAL AID

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JUDGES	NETTLE AP, BUCHANAN and OSBORN JJA
WHERE HELD	MELBOURNE
DATES OF HEARING	1 and 2 May 2013
DATE OF JUDGMENT	2 May 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 99
JUDGMENT APPEALED FROM	[2013] VSC 48 (Lasry J)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Application for leave to appeal out of time – Stay of trial until counsel for respondent provided with solicitor to instruct counsel on day to day basis for duration of trial – Crown acquiescing in stay – Later application by Crown for leave to appeal out of time against stay despite previous acquiescence – Whether just to grant leave to appeal – Application for leave to appeal refused – Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, referred to.

CRIMINAL LAW – Criminal Procedure – Stay – Whether trial judge erred in finding that lack of instructing solicitor likely to make trial unfair – Dietrich v The Queen (1992) 177 CLR 292, considered; Attorney-General for New South Wales v Milat (1995) 37 NSWLR 370, distinguished; R v Fuller & Cummings (1997) 95 A Crim R 554, referred to.

HUMAN RIGHTS – Charter of Human Rights and Responsibilities – Whether appropriate to entertain Charter points on interlocutory criminal appeal – Wells v R (No 2) [2010] VSCA 294, applied – Charter of Human Rights and Responsibilities Act 2006 (Vic).

PRACTICE AND PROCEDURE – Application for leave to appear as amicus curiae – Whether court would be assisted by submissions of amicus – Roadshow Films Pty Ltd v iiNet Ltd (2011) 284 ALR 222, [2011] HCA 54, applied.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr J R Champion SC, DPP Mr P B Kidd SC Mr G Barr	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr R Merkel QC Mr A McL Jackson Ms J M Davidson	Haines & Polites
For the Attorney-General (Intervener)	Mr S McLeish SC, S-G Ms Kylie Evans	Victorian Government Solicitor’s Office
For the Victorian Equal Opportunity and Human Rights Commission	Ms R M Doyle SC	Victorian Equal Opportunity and Human Rights Commission
For the Criminal Bar Association	Mr P J Morrissey SC Mr S J Ginsbourg	Tony Hargreaves & Partners
For the Law Institute of Victoria	Mr N J Clelland SC Ms C E Currie	Maurice Blackburn Lawyers
For Victoria Legal Aid	Mr S Holt SC	Victoria Legal Aid

NETTLE AP

BUCHANAN JA
OSBORN JA:

This is an application by the Director of Public Prosecutions for leave to bring an interlocutory appeal out of time against an order of Lasry J made on 15 February…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Chaouk

Details

AGLC: and the Queen v Matwali Chaouk , Attorney-General for the State of Victoria , the Victorian Equal Opportunity and Human Rights Commission , the Criminal Bar Association , the Law Institute of Victoria and Victoria.. [2013] VSCA 99
Case: [2013] VSCA 99
Decision Date: 2 May 2013

CaseChat Overview and Summary

The decision of Chaouk concerns an interlocutory appeal against the refusal of an application for leave to appeal out of time from a stay of trial ordered by the County Court of Victoria. The applicant, the Crown, sought leave to appeal from an order staying the trial until a solicitor was provided to instruct counsel on the day-to-day basis for the duration of the trial. The respondent, Chaouk, had applied for a stay of trial based on the absence of a solicitor to instruct counsel. The Crown initially acquiesced in the stay, but later sought leave to appeal out of time against the stay order.

The legal issues before the court included whether it was just to grant the Crown leave to appeal out of time and whether the trial judge erred in finding that the lack of an instructing solicitor would likely make the trial unfair. The court considered the principles established in Dietrich v The Queen and Attorney-General for New South Wales v Milat, among other authorities. The court also examined whether it was appropriate to entertain Charter points on this interlocutory criminal appeal and whether the court would be assisted by submissions from an amicus curiae.

The court found that it was not just to grant the Crown leave to appeal out of time, as the Crown had acquiesced in the stay of trial. The court held that the trial judge did not err in finding that the lack of an instructing solicitor was likely to make the trial unfair. The court distinguished the case from R v Fuller & Cummings and found that the respondent's right to a fair trial under the Charter of Human Rights and Responsibilities was not engaged. The court also found that the amicus curiae would not assist in the determination of the application. The Crown's application for leave to appeal out of time was therefore refused.

Orders