R v Karabegovic (Ruling No 2)

[2013] VSC 576

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE
CRIMINAL DIVISION

S CR 2013 0066

R

v

ADNAN KARABEGOVIC

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 OCTOBER 2013
DATE OF JUDGMENT:	23 OCTOBER 2013
CASE MAY BE CITED AS:	R v KARABEGOVIC (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2013] VSC 576

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CRIMINAL PROCEDURE – Interlocutory appeal – Application for certification following interlocutory ruling -  Whether interlocutory decision is of sufficient importance to warrant expedited review - Criminal Procedure Act 2009 (Vic) s 295(3).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Rapke QC with Mr D. Gurvich	Mr D. Bahlen, Commonwealth Director of Public Prosecutions
For the Accused	Mr M. O’Connell SC with Ms G. Morgan	Robert Stary Lawyers

HIS HONOUR:

1. Following on my ruling yesterday, the Crown now applies pursuant to s 295(3)(b) of the Criminal Procedure Act 2009 for a certificate that my interlocutory decision is of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

1. In Stannard v DPP,[1] Redlich JA stated that the provision allowing for certification of an interlocutory appeal, because the decision is of sufficient importance to the trial to justify it, requires that the trial judge undertake some consideration of the merits of the proposed appeal, for as his Honour stated, following McDonald v Director of Public Prosecutions,[2] a certificate should not be granted unless the trial judge considers that his or her decision is attended by sufficient doubt to warrant an expedited review of the decision.

   [1] [2010] VSCA 165 (23 June 2010), [27]; (2010) 210 A Crim R 149.

   [2] [2010] VSCA 45.

1. In McDonald, Ashley JA described the statutory process for certification as not involving an exercise of discretion. Rather, the judge must make a value judgment. On doing so, if the judge is so satisfied, then he or she must certify.

1. In making that judgment, a trial judge should consider whether the question certified is capable of serving the purpose of reducing the prospect of a retrial, avoiding fragmentation of a trial, and reducing the overall pressure on the justice system. Accordingly, the value judgment which the trial judge must make about importance of the decision to the trial must take into account the extent to which time and resources, of both the court and the parties, would be wasted or rendered unnecessary if the decision proved erroneous and was not immediately appealed.

1. In McDonald, the Court of Appeal characterised the contentions to be advanced as hopeless in law. The court was satisfied that the interests of justice would not be served by further agitating a point the inevitable resolution of which would not render the trial unnecessary. An argument without any merit cannot possess the quality of ‘sufficient importance to the trial’. That is not this case.

1. In Wells (No 2) v The Queen,[3] a different issue was identified. The Court of Appeal refused to review the refusal of the trial judge to certify pursuant to s 295(3) of the Criminal Procedure Act.  One ground sought to raise a Charter point. The court said it should generally not be expected to entertain arguments involving the application of the Charter on interlocutory appeals, because such arguments will usually involve complex questions, require substantial research of international jurisprudence and result in lengthy consideration. The raising of a Charter issue requires the notification, and the possible involvement, of additional entities (including the Attorney-General).

   [3] [2010] VSCA 294 (4 November 2010).

1. The Court of Appeal recognised that complex issues raised on interlocutory appeals such as arguments involving the Charter of Human Rights and Responsibilities Act 2006 will most often occasion significant delay in the trial below. For these reasons, it can be expected that it will rarely be appropriate for Charter arguments to be determined on an interlocutory appeal. Unless there is a compelling reason to the contrary, the fragmentation of individual trials will be avoided. In circumstances where it is not perfectly plain that a fair trial cannot be had, assessment whether there was not in fact a fair trial is best undertaken by reference to the trial as a whole.

1. In some of the cases, and Dertilis v The Queen[4] is an example, an interlocutory appeal was sought after arraignment and during the trial on a procedural question.[5] Nettle JA stated that as a rule, it should be rare that such a decision of a trial judge is regarded as being of such sufficient importance to justify determination on an interlocutory appeal. That, too, is not this case.

   [4] [2010] VSCA 360 (13 December 2010).

   [5]           Refusal of an application to discharge a jury.

1. I accept that the same cannot be said about a genuine conflict in the authorities that may bind the court as to the proper interpretation of an essential element of the offence. The point is not procedural. I consider that the point being raised is important. Ruling on the correct interpretation of the connection element of the offence prior to commencing the trial is likely to achieve some of the objectives that I have noted. 

1. Although the argument does not appear to have the complexity of a Charter point, it will be complex because, on an interlocutory appeal, the correctness of a recent joint judgment of the Court of Appeal is to be challenged. The Court of Appeal’s practice, as I understand it, at least in the case of an appeal following a trial, would be to sit a bench of five judges if a bench of three judges is persuaded that there is merit in the application. Whether the ruling raises complexities that are inappropriate to an interlocutory appeal is, I think, not a matter that I need dwell on, but, of itself, suggests that there may be greater delay in the disposition of this interlocutory appeal than of other appeals.

1. There has not been significant delay in the progress of this matter to date and the accused is yet to be arraigned. He is on bail. There is then not the urgency that would press if the accused was in custody and in the charge of a jury. The prospective delay in the present circumstances, of itself, is not a sufficient reason not to certify. The accused’s counsel did not suggest otherwise.

1. I also accept that if my reasoning is attended with doubt, there is a prospect that a fair trial may not be had, although I do not have in mind that the trial is more likely to be unfair to the accused. It matters not in the consideration of whether to certify that the risk or prospect of unfairness in the trial may affect the prosecution more than the defence. There is some prospect that the presence of apparent conflict in the interpretation of an element of an offence or the meaning being attributed to the statutory language necessarily may continue to make the task facing a trial judge and trial counsel one of considerable difficulty. In that sense, the conduct of the trial may be affected in avoidable ways.

1. At present, as my ruling states, the summary of prosecution opening appears inadequate unless the jury is to be directed in accordance with The Queen v Khazaal.[6] The issue will likely affect further pre-trial disclosure, the resolution of some preliminary issues affecting the admissibility of proposed tendency evidence and also other evidence, including items seized from the accused’s home, electronic file documents found on a USB device and the accused’s laptop and issues arising out of the forensic examination, post committal, of the accused’s laptop.

   [6] (2012) 246 CLR 601; [2012] HCA 26.

1. These matters will influence how the trial proceeds, the time that it takes, and the allocation of resources to it. Counsel for the Crown informs me that the resolution of the proper interpretation of the connection element will also affect the Crown's decision as to how, or whether,  it may be able to prove all of the charges that are presently in the indictment. 

1. I conclude that there is a real prospect that court time and resources may be wasted or rendered unnecessary if my decision proved erroneous and was not immediately appealed.

1. I return then to the task identified in Stannard. I should undertake some consideration of the merits of the proposed appeal. I have set out in my ruling the arguments advanced by counsel and need not repeat them.

1. The Crown submitted and the accused agreed, that the point raised is one of importance to each of them. As my ruling makes clear, I accept that it is so. It is not the case that the Crown's submissions are hopeless or that they are foredoomed to fail. The circumstances of this trial differ from the facts of Benbrika & Ors v The Queen[7] and they differ from the facts of Khazaal. Counsel pointed out that this is the first occasion since Khazaal that this issue has arisen again. I note that the decision in the Court of Criminal Appeal in Khazaal shows that reasonable judicial minds may differ on the proper interpretation of this provision in the Criminal Code (Cth).

   [7] (2010) 29 VR 593; [2010] VSCA 281.

1. Taking all of these matters into consideration, I am satisfied that my interlocutory decision is of sufficient importance to warrant its expedited review by an interlocutory appeal. I propose to certify under s 295(3) of the Civil Procedure Act 2009 accordingly.

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