Re Griffith - [2021] VSC 405

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
CRIMINAL DIVISION

S ECR 2020 306

DIRECTOR OF PUBLIC PROSECUTIONS

GENE CADELL GRIFFITH

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JUDGE:	Coghlan JA
WHERE HELD:	Melbourne
DATE OF HEARING:	2 July 2021
DATE OF JUDGMENT:	5 July 2021
CASE MAY BE CITED AS:	Re Griffith
MEDIUM NEUTRAL CITATION:	[2021] VSC 405

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CRIMINAL LAW – Interlocutory appeal – Application for certificate pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 – Decision not attended by doubt – Certificate refused.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Sonnet	Ms A. Hogan, Solicitor of Public Prosecutions
For the Accused	Mr J. Desmond	Rainer Martini & Associates

HIS HONOUR:

On 1 June 2021 I published reasons admitting 11 items of hearsay evidence pursuant to s 65(2)(b) and s 65(2)(c) of the Evidence Act 2008 (‘the Act’) and I declined to exclude the evidence pursuant to s 137 of the Act.[1] The accused, Gene Cadell Griffith, has indicated that he intends to bring an interlocutory appeal against that ruling.
[1]Re Griffith [2021] VSC 316.

The relevant statutory provisions are contained in the Criminal Procedure Act 2009 (‘CPA’) are as follows:

S 295 Right of appeal against interlocutory decision
(1) This section applies to a proceeding in the County Court or 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 subsection (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.
Note: See the definition of interlocutory decision in section 3.
(3) A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies—
(a) if the interlocutory decision concerns the admissibility of evidence, that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case; and
(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; and
(c) if the interlocutory decision is made after the trial commences, either—
(i) that the issue that is the subject of the proposed appeal was not reasonably able to be identified before the trial; or
(ii) that the party was not at fault in failing to identify the issue that is the subject of the proposed appeal.

(4) A request for certification under subsection (3) must be determined as soon as practicable after the request is made.

In accordance with those provisions, the accused seeks certification pursuant to s 295(3)(a) of the CPA. There is no doubt that the evidence, if excluded, would ‘substantially weaken’ the crown case. That is conceded by Mr Brett Sonnet of counsel who appears for the Director of Public Prosecutions. Mr Sonnet, however, submits that that is not the end of the matter. He submits that consistent…

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 Re Griffith

Details

AGLC: Re Griffith [2021] VSC 405
Case: [2021] VSC 405
Decision Date: 5 July 2021

CaseChat Overview and Summary

The parties involved in this case were the appellant, referred to as Griffith, and the respondent, the Director of Public Prosecutions. The nature of the dispute was an interlocutory appeal against the refusal of a certificate under section 295(3)(a) of the Criminal Procedure Act 2009. The matter was heard in the Supreme Court of Queensland.

The legal issue before the court was whether the trial judge's refusal of a certificate for appeal was correct, considering the decision was not attended by doubt. The appellant argued that the trial judge had erred in determining that there was no reasonable prospect that the appeal would succeed. The respondent contended that the trial judge's decision was correct and that there was no doubt regarding the outcome of the trial.

The court found that the trial judge's decision not to grant the certificate was correct. The court held that the decision was not attended by doubt, as the appellant had not demonstrated a reasonable prospect that the appeal would succeed. The court considered the evidence presented and the arguments made by both parties, and concluded that the trial judge's decision was sound and reasonable. The appeal was dismissed, and the certificate was refused.

Orders