Rubio Peters (a pseudonym)[1] v The Queen

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 by the unrepresented applicant, we formed the view that the application was completely devoid of merit. We therefore ordered that the application be refused, and indicated that we would later publish reasons. These are the anticipated reasons.
Charge 2 on the trial indictment alleges that the applicant
at Melbourne in Victoria on the 1^st day of July 2011 attempted to dishonestly obtain for himself a financial advantage, namely $14,720, by deception, namely by falsely representing that the sum was owing to him for the provision of temporary accommodation to [AF] between the 11^th and 15^th day of February 2011 and between the 26^th day of February 2011 and the 20^th day of April 2011, and for related services.
It is unnecessary to discuss in any detail the case sought to be made by the prosecution against the applicant at trial. The interrelationship between the applicant and various individuals connected to the events which are the subject of the charges he faces — including ‘AF’ — is described in this Court’s reasons for judgment in an earlier interlocutory appeal related to the applicant’s trial, and need not be repeated here.[2] For present purposes it is enough to say that the charge of attempting to obtain a financial advantage by deception relates to an invoice dated 1 July 2011 from ‘[Rubio] Consultancy’, ABN [numbers] 603,[3] directed on its face to AF, which purported to be for temporary accommodation provided to AF between 11 February and 15 February 2011, and 26 February and 20 April 2011. The invoice was for the sum of $13,452. It also referred to the collection of personal belongings and their transportation, for which the sum of $1,268.20 was billed.
[2]DPP v Peters (a pseudonym) (2019) 59 VR 203, 204–7 [4]–[22] (Priest JA).
[3]An ABN is an Australian Business Number, a unique 11 digit identifier issued by the Australian Business Register (which is operated by the Australian Taxation Office). The law requires each entity that carries on a business in Australia to have an ABN, and that the ABN appear on each tax invoice and other tax-related documents issued by the entity.
Police searches with the Australian Securities and Investment Commission (‘ASIC’) revealed, however, that [Rubio] Consultancy is not registered with ASIC, and that ABN [numbers] 603 instead relates to a discretionary trust, the ‘[Rubio] Trust’.
During a record of interview conducted by police with the applicant on 7 October 2014 — some three weeks prior to the swearing of the affidavit — police put an allegation that the ABN [numbers] 603 on the invoice, the subject of charge 2, was false, and that the use of the name [Rubio] Consultancy was also false.[4] In that record of interview the applicant disputed that the ABN was false and maintained that that ABN related to an entity associated with him.
[4]Similar allegations, it seems, were also put in a second record of interview on 14 November 2014.
Significantly, from his perspective at least, the applicant has been able to produce an ASIC record showing that ABN [numbers] 603 related to an existing entity, the [Rubio] Trust. He argues that so much establishes that police wrongly asserted in the record of interview that the ABN was false, since the ABN did in fact relate to an entity associated with him.
In the hearing before the trial judge on 23 February 2021, the Chief Commissioner of Police (‘CC’) was represented by counsel. The CC’s position was that all documents relied on for the application for the search warrants had already been disclosed to the applicant, save for the affidavit in support of the warrants. Counsel submitted that the CC objected to the production of the affidavit in support of the search warrants on the basis that no apparent legitimate forensic purpose had been identified. Reliance on public interest immunity was also flagged. In an effort to expedite matters, however, and, apparently, to assuage the applicant’s concerns, counsel for the CC disclosed the contents of paragraph 30 of the affidavit used to procure the search warrants. It was in the following terms:
Investigators conducted enquiries with Australian Securities and Investment Commission (ASIC) in relation to the [Rubio] Consultancy and ABN [numbers] 603 and received notification that there were no records held for this company or ABN by ASIC. Investigators confirmed ABN [numbers] 603 relates to a discretionary trading trust for [Rubio] Trust only.
We pause to observe that paragraph 30 appears to reflect the true position. There is no legal entity [Rubio] Consultancy, and the relevant ABN relates to the [Rubio] Trust.
Regrettably, the applicant was not mollified by the disclosure of paragraph 30. He alleged that paragraph 30 was deliberately misleading, and that police had acted in bad faith and were involved in a ‘vendetta’ against him. Indeed, he repeated those claims in this Court.
In his ruling setting aside the subpoena, the judge said:
During the course of [the applicant’s] first record of interview on 7 October 2014, some three weeks prior to the swearing of the affidavit, police put an allegation that the ABN [numbers] 603 on the invoice, the subject of charge 2, was false. In addition the use of the name [Rubio] Consultancy was also false.
In that record of interview [the applicant] disputed that the ABN was false and maintained that that ABN related to an entity associated with him. During the course of argument [the applicant] produced a record from the Australian Government which reveals that that ABN related to an entity being the [Rubio] Trust. In essence [the applicant] established that the assertion put to him that the ABN was false, was wrong.
That record entirely coincides with the contents of paragraph 30. There is therefore absolutely nothing misleading in the contents of paragraph 30.
Indeed it is as I have said an accurate statement of that ABN number. [The applicant] has said that he has used innocently the business name [Rubio] Consultancy, not only in relation to the impugned invoice the subject of Charge 2, but also other invoices which have been apparently paid.
If the prosecution case is based on the assertion that the use of the ABN was dishonest then [the applicant’s] argument, at trial, has considerable merit. But that of course is not as I understand the prosecution case which is, no matter under what name the invoice was produced, there were no services provided for the invoice in the sum of $14,720 directed to [AF].
It has been further suggested by [the applicant] that this is but an example of the informant’s campaign against him. I cannot detect in the material that [the applicant] has put forward any evidence to support that assertion of misconduct. Indeed the opposite. If there had been a misunderstanding by the informant and others during the course of the initial record of interview with [the applicant] that misunderstanding had been corrected by the insertion of paragraph 30.
Thus the substance of the assertion of misconduct has been proven to be without foundation. [Counsel] on behalf of the Chief Commissioner of Police has indicated that the contents of paragraph 30 will be made available to [the applicant] in written form.
In my view for the reasons that I have given this has been a fishing expedition without bait and has proved to be based on an assertion of misconduct which has no substance.
For present purposes, it is enough to say that we detect no error in the judge’s ruling. Indeed, we think it to be correct.
Unsatisfied with the ruling, however, on 2 March 2021 (as we have said) the applicant asked the judge to certify under s 295(3)(b) of the CPA. He made a number of assertions at some length — including that witnesses had been corrupted and that he was the subject of a vendetta by police — none of which directly engaged with the statutory requirements for certification. As we have mentioned, the judge refused certification. Among other things, the judge said:
As best I can distil, the suggested grounds for the interlocutory appeal is a complaint that I made a finding of fact that the two sentences in paragraph 30 were not contradictory, contrary to the submissions of [the applicant]. On a fair reading of those two sentences the opposite, in my view, is the case.
Even if I happen to be wrong in making that finding it does not appear to me that this suggested ground could in any way effect the admissibility of any evidence or play any role in causing an unfair trial to [the applicant]. He is at liberty to question the informant and others about this matter and to make submissions about its significance. At its highest it could only go to the credibility of the informant and perhaps at best, some suggestion of improper conduct not effecting the admissibility of evidence nor my broad discretion to exclude admissible evidence.
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During the course of discussion today with [the prosecutor], I indicated that this matter could be corrected either by a prosecution concession that an error had been made in the interviews of 7 October and 14 November 2014, where there was the assertion that no entity stood behind the ABN 603, or, as [the prosecutor] submitted, the relevant portions of the records of interview could be excised, depending on what [the applicant] should choose. Thus, by either of those two simple mechanisms, the error, such as it is, could be corrected.
I have endeavoured to understand how, even if my ruling is flawed on a factual basis, my decision could be otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal. I have simply not been able to identify any such matter of sufficient importance to the trial.
In my earlier ruling, I described [the applicant’s] subpoena as ‘… a fishing expedition without bait’. That was then my view and still is. For these reasons, there is also no basis whatsoever for certifying under s 295 of the Act.
By an application dated 3 March 2021, the applicant requested this Court to review the judge’s refusal to certify. Making due allowance for the fact that the applicant is unrepresented, his application does not contain any proper ‘ground’. Rather, it contains a narrative, and complains that the judge’s
decision to approve the setting aside of the subpoena dated 15/02/2021 was incorrect, as the two sentences within paragraph 30 contradicted each other.
This paragraph did not go far enough to prove the methodology used by the investigators in their enquiry made with ASIC, was it a written request or over the phone or did investigators rely on previous enquiries made on behalf of [RF’s] lawyers …
Was this enquiry used and relied upon as the source of the enquiry made with ASIC in the first sentence of paragraph 30?
In the second sentence was the statement made using the screen shot provided to the informant by the defendant, which I say is in direct contradiction to the first sentence.
This was not sufficient grounds for setting aside the subpoena for a document that I say is crucial to me having a fair trial.
It was difficult to distil from the applicant’s oral submissions to this Court any arguable basis for impugning either the judge’s ruling or his decision refusing certification. As we understood his position, the applicant maintained that paragraph 30 was deliberately misleading; that police had acted in bad faith; and that he had been subjected to a vendetta for eight years (causing him to suffer three heart attacks). He wanted access to the complete affidavit so as to investigate (and perhaps establish) his hypothesis that he was indeed the subject of a vendetta. Without access to the material, so he argued, he would not receive a fair trial. When asked directly by the Court whether he was prepared to take up the prosecution’s offer to excise the offending passages from the records of interview, or make a concession in the applicant’s favour that they were wrong, the applicant’s unequivocal answer was ‘no’.
Once more, it is enough to say that we are able to detect no error in the judge’s reasons refusing certification. The applicant pointed us to none. Hence, the application to review the refusal to certify had to be refused.
For the sake of completeness we would add that, in any event, we consider it to be doubtful that the applicant was entitled to the affidavit placed before the Magistrate, so as to use it as a springboard to challenge the validity of the four warrants.[5]
[5]See Kizon v Palmer (1998) 82 FCR 310; Ousley v The Queen (1997) 192 CLR 69; Gould v Director of Public Prosecutions (Cth) (2018) 333 FLR 352.
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[2021] VSCA 47

5 March 2021