RJP v The Queen - [2011] VSCA 203

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0091

RJP	Applicant
	V
THE QUEEN	Respondent

---

JUDGES	BONGIORNO JA and BELL AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 May 2011
DATE OF JUDGMENT	20 May 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 203
JUDGMENT APPEALED FROM	R v Roper (Unreported, County Court of Victoria, Judge Gullaci, 4 May 2011)

---

CRIMINAL LAW – Interlocutory appeal – Application for review of trial judge’s refusal to certify – Whether charges on indictment foredoomed to fail – Proper construction of s 116 of Excise Act 1901 (Cth) – Powers v Maher (1959) 103 CLR 478 – Question raised by application inappropriate for determination on an interlocutory appeal – Application refused.

---

Appearances:	Counsel	Solicitors
For the Applicant	Mr C Thomson	Mr S English
For the Crown	Mr R Pirrie	Mr C Craigie SC, Director of Public Prosecutions (Commonwealth)

BONGIORNO JA

This is an application for review of a decision of his Honour Judge Gullaci to refuse to certify as appropriate for appeal an interlocutory decision made by his Honour on 4 May 2011. This application is made pursuant to s 296(1) of the Criminal Procedure Act 2009.

The interlocutory decision made by his Honour was a decision to refuse to permanently stay charges 3 and 7 on the indictment upon which the applicant is to be tried.[1]
[1]A refusal to permanently stay a proceeding is an ‘interlocutory decision’ for the purposes of the Criminal Procedure Act 2009.

Those charges allege that the applicant stole bales of tobacco leaf between September 2002 and January 2003. The tobacco leaf is alleged to have been the property of the Commonwealth. The charges were laid pursuant to s 131.1 of the Commonwealth Criminal Code.

The Crown contends that the Commonwealth’s proprietary interest in the tobacco leaf arose by operation of s 116 of the Excise Act 1901 (Cth). Section 116 provides as follows:

(1) The following goods shall be forfeited to the Crown:
(a)all excisable goods manufactured or partly manufactured by a person who is not a licensed manufacturer;
(b)all tobacco seed, tobacco plant or tobacco leaf found on any premises where the manufacture of excisable goods is unlawfully carried on;
(ba)all tobacco seed, tobacco plant or tobacco leaf that has been moved without permission under section 44;
(bb)all tobacco seed, tobacco plant (whether or not in the ground) or tobacco leaf found in the possession, custody or control of a person (other than a licensed producer, licensed dealer or licensed manufacturer) without permission;
(bc)all tobacco seed, tobacco plant (whether or not in the ground) or tobacco leaf kept or stored at a place that is not specified in a producer licence, dealer licence or manufacturer licence;

…

Mr Thomson, who appeared for the applicant, submitted before this Court that s 116 did not, in fact, operate to make the Crown the owner of the tobacco leaf. He argued that s 116, properly construed, does not automatically vest in the Crown a proprietary…

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 RJP v The Queen

Details

AGLC: RJP v The Queen [2011] VSCA 203
Case: [2011] VSCA 203
Decision Date: 20 May 2011

CaseChat Overview and Summary

The case of RJP v The Queen was heard in the High Court of Australia. The appellant, RJP, sought a review of the trial judge’s refusal to certify certain charges on the indictment as being foredoomed to fail, pursuant to section 116 of the Excise Act 1901 (Cth). The legal dispute centred on the interpretation of section 116 and whether the charges could be deemed incapable of success. The primary issue was whether the court should determine the appropriate construction of section 116 at an interlocutory stage or wait until the conclusion of the trial.

The court considered whether the question raised by the application was appropriate for determination at this stage of the proceedings. It noted that the application was seeking a determination on the proper construction of section 116 of the Excise Act 1901 (Cth), which is typically a question for the trial judge to decide at the conclusion of the trial. The court referenced the principles established in Powers v Maher (1959) 103 CLR 478, which held that interlocutory appeals should not be used to determine questions that are more appropriately reserved for the final trial. The High Court held that the application was inappropriate for determination on an interlocutory appeal and declined to review the trial judge’s decision.

Accordingly, the court dismissed the application for review. The reasoning was grounded in the need to preserve the finality and efficiency of trials by avoiding premature determination of complex legal questions. The court concluded that the question of whether the charges were foredoomed to fail should be left for the trial judge to decide at the appropriate stage in the proceedings. This decision reinforces the principle that interlocutory appeals should not be used as a means to determine substantive legal issues that are better addressed at the trial stage.

Orders