Ruiz (a pseudonym) v The Queen - [2021] VSCA 154

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0033

ROGER RUIZ (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]To prevent any risk of prejudice in the proper administration of justice, 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, KYROU and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 June 2021
DATE OF JUDGMENT:	4 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 154
JUDGMENT APPEALED FROM:	DPP v Ruiz(a pseudonym) [2021] VCC 247 (Judge Dyer)

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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 pleaded guilty to cultivating a narcotic plant (cannabis) in a commercial quantity — Applicant not properly advised as to elements of the offence — Judge refused application to change plea — Judge refused to certify under s 295(3) of the Criminal Procedure Act 2009 — Application for review of refusal to certify refused as incompetent.

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APPEARANCES:	Counsel	Solicitors
For the Applicant:	Mr C M Terry	James Dowsley & Associates
For the Respondent:	Ms A M Moran	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KYROU JA
T FORREST JA:

On 27 February 2020, the applicant pleaded guilty in the County Court to cultivating a narcotic plant, Cannabis L, in not less than a commercial quantity, in breach of s 72A of the Drugs, Poisons and Controlled Substances Act 1981 (‘the Drugs Act’). For the purposes of s 72A, a commercial quantity of cannabis is 100 plants in number, or 25 kilograms in weight.[2]
[2]Drugs Act, Schedule 11, Part 2, column 2.

The prosecution case is that the applicant cultivated a total of 26 Cannabis L plants (somewhat fewer in number than would constitute a commercial quantity), with an approximate total weight of 103.8 kilograms (a somewhat greater weight than constitutes a commercial quantity).[3]
[3]Summary of Prosecution Opening at Plea Hearing, dated 2 March 2020, [10].

The offence created by s 72A of the Drugs Act, which attracts a maximum penalty of 25 years’ imprisonment, is an indictable offence. Significantly, the offence of cultivating a commercial quantity of a narcotic plant under s 72A is, by virtue of s 3(1) of the Sentencing Act 1991, a category 2 offence. Hence, by reason of s 5(2H) of the Sentencing Act 1991, a sentencing judge must impose a sentence of imprisonment for the offence unless one of the exceptions in the subsection is engaged.

On 12 February 2021, the applicant applied to a judge of the County Court to change his plea to not guilty. Despite being satisfied, however, that the applicant’s legal practitioner was confused as to what constituted a commercial quantity of cannabis, and that before he pleaded guilty on arraignment ‘there was as a matter [scil, of] probability an absence of accurate legal advice given to the applicant as…

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 Ruiz (a pseudonym) v The Queen

Details

AGLC: Ruiz (a pseudonym) v The Queen [2021] VSCA 154
Case: [2021] VSCA 154
Decision Date: 4 June 2021

CaseChat Overview and Summary

Ruiz (a pseudonym) has applied for review of the trial judge's decision to refuse to certify that an interlocutory decision was of sufficient importance to warrant an appeal. Ruiz pleaded guilty to cultivating a narcotic plant in a commercial quantity but contended he was not properly advised as to the elements of the offence. The trial judge refused to permit the applicant to change his plea and declined to certify the interlocutory decision under section 295(3) of the Criminal Procedure Act 2009. The court was required to decide whether the trial judge's refusal to certify was reviewable, and whether it was in fact a decision of sufficient importance to warrant an appeal.

The court considered that the trial judge's decision to refuse to certify was not a decision that could be reviewed under section 294 of the Act. The court held that the trial judge's decision was not a "decision in the proceedings" as required by section 294, as it was not a decision that would result in a determination of the merits of the applicant's case. The court also held that the trial judge's decision was not a decision of sufficient importance to warrant an appeal, as the applicant had not demonstrated that the decision had caused or was likely to cause injustice or a miscarriage of justice.

The court dismissed the application for review as incompetent. The court found that the trial judge's decision was not a decision that could be reviewed under section 294 of the Criminal Procedure Act 2009, and that the decision was not of sufficient importance to warrant an appeal. The court held that the applicant had not demonstrated that the decision had caused or was likely to cause injustice or a miscarriage of justice.

Orders