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

v

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:

1. 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.

1. 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.

1. 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 with authority, I am obliged to decide whether my decision is attended by sufficient doubt to warrant an appeal. He further submits that there is no such doubt.

1. Mr John Desmond of Counsel, who appears for the accused, submits that I should certify.

1. The ‘sufficient doubt’ overlay arises from what was said by the Court of Appeal in MA v R:[2]

Accordingly, where the trial judge has ruled evidence admissible, the trial judge must make a judgment as to whether his or her interlocutory decision is attended by sufficient doubt. Both parties accepted that it must have been intended by Parliament that the judge make some evaluation of the likelihood that the evidence could be ruled inadmissible. When it is concluded that the prospect that the evidence would be ruled inadmissible is hopeless, or that the decision to admit the evidence is not attended by sufficient doubt, certification should be refused.[3]

[2]MA v R (2011) 31 VR 203, Redlich JA with whom Weinberg and Bongiorno JJA agreed.  His Honour relied upon what had been said by Ashley and Redlich JJA in McDonald v DPP (2010) 26 VR 242 and what had been said by Maxwell P and Buchanan JA in CGL v DPP (2010) 24 VR 482 and with what had been said by Ashley and Redlich JJA in Wells v R (2010) VSCA 294.

[3]MA v R (2011) 31 VR 203, [6].

1. Mr Desmond accepted in both his written and oral argument that Mr Sonnet’s submission as to the law was correct.  He sought to persuade me that because the ruling was so significant to the prosecution case, as conceded by Mr Sonnet, it was desirable to certify because my ruling could not be said to be clearly correct.  He supported that argument by repeating the arguments he had earlier advanced which are set out in my ruling.[4]

   [4]Re Griffith [2021] VSC 316.

1. I do not regard my decision as attended by sufficient doubt to warrant certification.  I am satisfied that the ruling is routine in the sense that this is the type of evidence for which the provisions of the Evidence Act are designed and which would be admitted in most, if not all, instances.

1. After hearing oral argument I announced that I would not certify and that I would publish brief reasons.  These are those reasons.