R v Wells (No 2) - [2017] VSC 242

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S CR 2016 00184

THE QUEEN

BARRY WELLS

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JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 MAY 2017
DATE OF RULING:	5 MAY 2017
CASE MAY BE CITED AS:	R v WELLS (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 242

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CRIMINAL PROCEDURE – Interlocutory appeal – Application for certification following interlocutory ruling refusing accused’s application for a permanent stay of proceedings – Whether interlocutory decision is of sufficient importance to warrant expedited review – Criminal Procedure Act 2009 (Vic) s 295(3)(b).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M H Thomas with Mr P J Smallwood	Furstenberg Lawyers
For the Director of Public Prosecutions	Mr N Robinson QC with Mr K Armstrong and Mr A Sharp	John Cain, Solicitor for Public Prosecutions

HIS HONOUR:

The accused, Mr Barry Wells, who is charged with one count of conspiracy to defraud contrary to common law and ten counts of receiving a secret commission contrary to s 176(1) of the Crimes Act 1958, applied for a permanent stay of the proceeding against him on the ground of irremediable prejudice from pre-trial publicity that would preclude a fair trial of the charges made against him. On 1 May 2017, I refused his application for a permanent stay.[1]
[1] R v Wells [2017] VSC 199R.

Following my ruling, the accused applied 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 an interlocutory appeal. Section 295 relevantly provides as follows:

295 Right of appeal against interlocutory decision
(1)This section applies to a proceeding in 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 sub-section (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 –
…
(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;…

The trial of the accused, which is expected to take some three months, together with related charges against four other accused, is scheduled to commence on 17 July 2017.

Recently, in Director of Public Prosecutions v Garrett,[2] the Court of Appeal stated:

In order to determine whether the issue is of ‘sufficient importance’ to the trial, the trial judge must have regard to the nature of the issue and the relevant circumstances of the case.

[2] [2016] VSCA 31, [5]-[6]

In Stannard v Director of Public Prosecutions,[3] Redlich JA[4] stated that the provision allowing for certification of an interlocutory appeal, because the decision is of sufficient…

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 Wells (No 2)

Details

AGLC: R v Wells (No 2) [2017] VSC 242
Case: [2017] VSC 242
Decision Date: 5 MAY 2017

CaseChat Overview and Summary

The matter of R v Wells (No 2) was heard in the Supreme Court of Victoria, arising from an interlocutory appeal concerning a ruling that refused the accused's application for a permanent stay of proceedings. The primary focus of the dispute was whether the interlocutory decision was significant enough to warrant expedited review under section 295(3)(b) of the Criminal Procedure Act 2009 (Vic). The accused contested the interlocutory ruling, arguing that it involved substantial legal issues that necessitated immediate appeal and resolution before the trial proceeded.

The legal issues the court needed to address were primarily centred around the threshold for granting certification of an interlocutory decision under the specified statute. The court had to determine whether the decision in question was sufficiently important to warrant an expedited review, considering the potential impact on the accused's right to a fair trial and the broader implications for criminal procedure. The court also needed to consider the principles of justice and the balance between the expeditious resolution of significant legal issues and the overarching need for a fair and just trial.

In its reasoning, the court examined the specific criteria set out in section 295(3)(b) of the Criminal Procedure Act 2009 (Vic). It assessed the importance of the legal issues involved in the interlocutory decision and the potential consequences of not allowing an expedited review. The court concluded that the decision, while significant, did not meet the stringent requirements for certification, and thus the interlocutory appeal was not certified for review. The court emphasised the importance of adhering to the statutory criteria and the need to ensure that the certification process is reserved for matters of exceptional importance.

As a result of the court's decision, the interlocutory appeal was dismissed, and the ruling refusing the accused's application for a permanent stay of proceedings was upheld. The court's determination underscored the need for a cautious approach in granting certification for interlocutory decisions, balancing the interests of justice with the efficient administration of the criminal justice system.

Orders