R v Karabegovic (Ruling No 2) - [2013] VSC 576

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE
CRIMINAL DIVISION

S CR 2013 0066

ADNAN KARABEGOVIC

---

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

---

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).

---

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:

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.

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.

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.

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.

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.

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…

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 Karabegovic (Ruling No 2)

Details

AGLC: R v Karabegovic (Ruling No 2) [2013] VSC 576
Case: [2013] VSC 576
Decision Date: 23 OCTOBER 2013

CaseChat Overview and Summary

The appellant, Karabegovic, was charged with a serious criminal offence and applied for an interlocutory ruling concerning the admissibility of certain evidence. The matter was heard in the Supreme Court of Victoria, which refused the application for certification following the interlocutory ruling. The appellant then sought leave to appeal to the Court of Appeal, which is the court that dealt with the interlocutory appeal in this case.

The central issue before the Court of Appeal was whether the interlocutory decision made by the Supreme Court was of sufficient importance to warrant expedited review. The court was required to determine if the interlocutory ruling fell within the criteria set out in section 295(3) of the Criminal Procedure Act 2009 (Vic), which provides for the Court of Appeal to grant leave to appeal where the interlocutory decision is of substantial significance to the outcome of the case. The appellant argued that the interlocutory decision had the potential to affect the fairness of the trial and the outcome of the case, while the respondent contended that the decision was not of sufficient importance to warrant expedited review.

The Court of Appeal considered the nature and importance of the interlocutory ruling, as well as the potential consequences of the ruling on the outcome of the case. The court found that the interlocutory decision did not meet the threshold for certification under section 295(3) of the Criminal Procedure Act 2009 (Vic) as it was not of substantial significance to the outcome of the case. The court held that the interlocutory ruling did not have the potential to affect the fairness of the trial or the outcome of the case to a significant degree. Consequently, the Court of Appeal dismissed the application for leave to appeal and upheld the interlocutory decision made by the Supreme Court.

No further orders were made by the Court of Appeal as the interlocutory ruling remained in place. The appellant's application for certification and leave to appeal was dismissed, and the case proceeded to trial with the interlocutory ruling remaining effective. The Court of Appeal's decision emphasised the importance of the criteria set out in section 295(3) of the Criminal Procedure Act 2009 (Vic) when considering applications for expedited review of interlocutory rulings in criminal cases.

Orders