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

v

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:

1. 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.

1. 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;…

1. 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.

1. 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]

1. 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 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,[5] 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.[6]

   [3] (2010) 28 VR 84, 90 [27].

   [4]            Bongiorno JA and Hansen AJA agreeing.

   [5] (2010) 26 VR 242.

   [6] Ibid, 245 [14].

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 pressures on the justice system. Unless there is a compelling reason to the contrary, the fragmentation of individual trials will be avoided. The trial judge must assess the importance of the decision to the trial and should 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.[7]

   [7]            Stannard v DPP (2010) 28 VR 84, 90 [29].

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.[8] 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’.

   [8] Ibid.

1. Recently in Director of Public Prosecutions v Baker,[9] an interlocutory appeal followed an accused’s unsuccessful application for a permanent stay of proceedings against him. Due to his turning 18 years of age and the timing of the charges against him the accused had lost the opportunity to be dealt with as a child in the Children’s Court. The Court of Appeal granted leave to appeal but dismissed the appeal.[10] Beach JA made the following comments regarding the certification:[11]

Having dismissed Baker’s application for a permanent stay, the trial judge certified pursuant to s 295(3) of the CPA that his decision was of sufficient important to the trial to justify it being determined on an interlocutory application. The judge was, with respect, correct to so certify, and leave to appeal should be granted because it is in the interests of justice to do so having regard to the potential for the appeal to resolve issues of law that are necessary for the proper conduct of the proceeding. The grant of leave to appeal does not mean that the decision made by the judge is attended with any doubt. Quite the contrary. On the arguments put to his Honour, his Honour’s decision was plainly correct.

[9] [2017] VSCA 58.

[10] Ibid, [124] (Tate JA, Maxwell P agreeing); [125] (Beach JA, dismissing the appeal on different

grounds).

[11] Ibid, [126].

1. On this application the accused submitted that the area of coercive public examinations by an institution such as IBAC is a new and developing area of law and the implications for a fair trial following coercive examinations and attendant publicity when charges arise out of such an investigation is a question of some significance on which there may be different views. Further, the accused submitted that this is the first occasion on which the operation of the IBAC Act and its impact on a fair trial in this context will be considered by the Court of Appeal. I accept that submission.

1. The prosecution submitted that I ought not grant a certificate except in rare and exceptional circumstances, which require that the accused demonstrate that there was a real question of law to be resolved. In particular, having regard to the discretionary nature of the application that task involved the accused satisfying me that there was at least some element, on traditional review grounds of discretionary decisions, of merit in the appeal. This submission places the bar a little higher than my reading of the cases would put it.

1. Turning to the task identified in Stannard, I will give some consideration to the merits of the proposed appeal.

1. A point of principle is taken and it is an important point. The issue raised is not evidentiary. It does not concern the running of the trial itself, or the potential fragmentation of the trial, but rather, whether the accused’s trial ought be allowed to proceed at all. If a certificate is provided, and the accused is successful in his interlocutory appeal there will be no trial of the charges presently brought against him.[12] That would result in a very substantial saving of resources for both the court and the parties. I accept that, if my decision proved erroneous and was not immediately appealed, the waste of court time and resources would far outweigh the resources to be applied to consideration of the interlocutory appeal.

1. I have not invited the accused to develop his submissions as to the merits of the proposed appeal. As the prosecution submitted, I expect there will be some challenges for the accused in demonstrating error in a discretionary decision not to stay the proceeding. That is not something I am presently concerned with. If I am satisfied that there is some merit it is appropriate to grant leave. It is not the case that the Accused’s submissions would be hopeless in the sense referred to in McDonald or that they appear obviously foredoomed to fail. I accept that the contentions that were put to me on the application bore some complexity and that there may be merit in the appeal that cannot be wholly discounted.

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. The trial of this proceeding is to commence in a little over two months’ time, before which, in all likelihood, the Court of Appeal will be able to hear an appeal and give reasons for its decision, so as to preserve the trial date if still required.

1. Taking all of these matters into consideration, I am satisfied that my interlocutory decision in this proceeding 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.