Rubio Peters (a pseudonym)[1] v The Queen - [2021] VSCA 47

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2021 0020

RUBIO PETERS (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	PRIEST and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 March 2021
DATE OF JUDGMENT:	5 March 2021
DATE OF REASONS:	9 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 47
JUDGMENT APPEALED FROM:	DPP v [Peters] (Unreported, County Court of Victoria, Judge Stuart, 3 March 2021)

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CRIMINAL LAW – Interlocutory appeal – Application for review of refusal to certify that interlocutory decision of sufficient importance to the trial to justify it being determined on an interlocutory appeal – Applicant on trial for perjury and attempting to obtain a financial advantage by deception – Subpoena issued by applicant set aside by trial judge – No error in trial judge’s decision to set aside subpoena – No error in trial judge’s decision refusing certification – No proper ground for review of refusal to certify – Application for review of refusal to certify refused – Criminal Procedure Act 2009 s 295(3).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr J Saunders	Ms A Hogan, Solicitor for Public Prosecutions
For the Chief Commissioner of Police (Intervening)	Ms A Haban-Beer	The Victorian Government Solicitor’s Office

PRIEST JA
T FORREST JA:

A jury has been empanelled in the County Court to try the applicant, ‘Rubio Peters’, on charges of perjury (charge 1) and attempting to obtain a financial advantage by deception (charge 2).
On 23 February 2021, the trial judge set aside a subpoena issued out of the County Court Registry by the applicant on 15 February 2021 (‘the ruling’ or ‘the interlocutory decision’).
In the case of each of four search warrants issued by a Magistrate on 28 October 2014, the subpoena sought production of: ‘Copy of Application and all documents relied on for the application for search warrant’. It was common ground that the documents included an affidavit dated 28 October 2014, which had been put before the Magistrate in order to obtain the issue of the four search warrants (which related to two premises and two motor vehicles connected to the applicant). The search warrants in each case had been sought by a Detective from the Fraud and Extortion Squad.
Later, on 2 March 2021, the trial judge refused to certify under s 295(3)(b) of the Criminal Procedure Act 2009 (‘CPA’) that the interlocutory decision was ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.
Pursuant to s 296 of the CPA, the applicant sought a review of the judge’s decision to refuse certification (and, if successful in that application, leave to appeal against the interlocutory decision).
The application for review of the judge’s refusal to certify came before this Court on 5 March 2021. Having entertained oral submissions…

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.

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Details

Case: [2021] VSCA 47
Decision Date: 5 March 2021

CaseChat Overview and Summary

The case of Rubio Peters (a pseudonym) v The Queen involved an interlocutory appeal against the refusal to certify an interlocutory decision as being of sufficient importance to justify an appeal. The applicant, who was on trial for perjury and attempting to obtain a financial advantage by deception, had a subpoena issued by him set aside by the trial judge. The applicant sought review of the trial judge’s decision to set aside the subpoena and also sought certification of the decision as being of sufficient importance to justify an interlocutory appeal. The legal issues for the court to decide were whether the trial judge erred in setting aside the subpoena and whether the trial judge’s decision to refuse certification was reviewable. The court held that there was no error in the trial judge’s decision to set aside the subpoena and that the trial judge’s decision to refuse certification was not reviewable. The court found that the trial judge had correctly exercised his discretion in setting aside the subpoena and that there was no proper ground for review of the refusal to certify. The application for review of the refusal to certify was therefore refused. The court’s decision was based on the provisions of the Criminal Procedure Act 2009, specifically section 295(3). The court found that the trial judge had correctly applied the relevant statutory provisions in making his decision and that there was no error in his decision. The court also found that the trial judge’s decision to refuse certification was not reviewable as it was a decision that was within the discretion of the trial judge. The court held that the application for review of the refusal to certify was therefore refused.

Orders