Ruiz (a pseudonym) v The Queen
[2021] VSCA 154
•4 June 2021
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 to the elements of the offence’, the judge nevertheless refused the application on 12 March 2021 (‘the ruling’ or ‘the interlocutory decision’).[4] Importantly, on 24 March 2021, the judge refused certification under s 295(3) of the Criminal Procedure Act 2009 (‘CPA’) (‘the certification decision’).
[4]DPP v Ruiz(a pseudonym) [2021] VCC 247 (Judge Dyer).
The application before this Court, made under s 296(1) of the CPA, is for review of the judge’s certification decision. For the reasons that follow, the application for review of the certification decision must be refused.
As we have said, the offence of cultivating a commercial quantity of cannabis is an indictable offence, triable by judge and jury. When, as occurred in this case, an indictment for the offence has been filed, an arraignment takes place. Section 215(1) of the CPA provides that an accused is arraigned when the court ‘asks the accused whether the accused is the person named on the indictment’, and ‘reads out each charge on the indictment and asks the accused whether [he or she] pleads guilty or not guilty to the charge’. The purpose of an arraignment is to determine whether an accused disputes the charge (or charges) in the indictment,[5] and it concludes with the plea of the accused. It is only after arraignment that it is known whether there will be a trial.[6] A plea of not guilty on arraignment marks the joinder of issue by the accused and his or her consent to trial by jury.[7] Upon a plea of guilty, however, no trial is necessary, for the plea of guilty is the conviction.[8] Crucially, s 210(1) of the CPA provides:
[5]R v Talia [1996] 1 VR 462, 472.
[6]R v Vickers (1975) 61 Cr App R 48, 50.
[7]Caruso v The Queen [2012] VSCA 138, [18].
[8]Ibid.
210 When trial commences
(1) A trial commences when the accused pleads not guilty on arraignment in the presence of the jury panel in accordance with section 217.
As we will explain, we consider the application for review of the certification decision to be incompetent.
It is necessary to turn first to s 295 of the CPA, which gives a party to a proceeding for the prosecution of an indictable offence in the County Court a right to appeal against an interlocutory decision. By virtue of s 3(1), an interlocutory decision is ‘a decision made by a judge in a proceeding referred to in section 295(1), whether before or during the trial’. A party may not seek leave to appeal against the interlocutory decision, however, without the certification of the judge who made the decision. Thus, s 295(3) provides:[9]
[9]Emphasis added.
(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.
Given that the ruling sought to be impugned in this case does not concern the admissibility of evidence, it is plain that sub-s (3)(a) is not engaged.
Moreover, it is equally plain that sub-ss (3)(b) and (c) are not engaged, since they are premised on there being a ‘trial’. In this case, however, there is no trial — extant or anticipated — in relation to which ‘the interlocutory decision is otherwise of sufficient importance … to justify it being determined on an interlocutory appeal’. A trial could only have commenced in the instant case if the applicant had entered a plea of not guilty on arraignment in the presence of a jury panel. That did not occur. He did not join issue. His plea of guilty rendered a trial unnecessary.
Turning next to s 296 of the CPA, if — as occurred here — a judge refuses to certify under s 295(3) that ‘the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal’, s 296(1) permits ‘the party which requested certification [to] apply to the Court of Appeal … for review of the decision’. Subsection (4) provides that on such a review the Court:
(a) must consider the matters referred to in section 295(3); and
(b) if satisfied as required by section 297, may give the applicant leave to appeal against the interlocutory decision.
So far as relevant, s 297 provides:[10]
[10]Emphasis added.
297 When leave to appeal may be given
(1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to—
(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b) whether the determination of the appeal against the interlocutory decision may—
(i) render the trial unnecessary; or
(ii) substantially reduce the time required for the trial; or
(iii)resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv) reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and
(c) any other matter that the court considers relevant.
(2) The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.
Once more, the power to give leave to appeal against an interlocutory decision under s 297 is premised on there being a trial. Self-evidently, in circumstances in which the applicant pleaded guilty on arraignment, no trial commenced. There is thus no ‘trial process’ that may be disrupted if leave to appeal is given, and no possibility that the determination of an interlocutory appeal might render ‘the trial’ unnecessary; substantially reduce the time required for ‘the trial’; resolve an issue of law, evidence or procedure that is necessary for the proper conduct of ‘the trial’; or reduce the likelihood of a successful appeal against conviction if the applicant is convicted ‘at trial’.
For these reasons, we regard the application for review of the certification decision to be incompetent. Before concluding, however, there are two previous decisions of this Court to which we should make reference.
The first is UR.[11] In that case, the applicant had pleaded guilty in the County Court to possessing child pornography and indecent assault. After a plea hearing had begun (but not concluded), the applicant sought leave to change his pleas to not guilty, but a judge of the County Court refused the application, and also refused certification under s 295(3). The applicant sought a review of that decision in this Court. Harper JA (Whelan JA agreeing) said:[12]
No trial in this case has yet begun. The court is therefore in a position where it must ask itself whether the interlocutory decision is of sufficient importance to justify the interlocutory appeal being determined before the commencement of the trial. I assume, for the purposes of the present judgment, that that is sufficient to enliven the jurisdiction under the relevant provisions of the legislation; and I proceed, without deciding the point, upon that assumption.
[11]UR v The Queen [2011] VSCA 152.
[12]Ibid [5].
As is plain, the Court in UR did not decide any issue of competency, instead being content to assume that the Court’s jurisdiction was enlivened.
The second decision is Stannard.[13] That case differed from UR, in that the judge — whether correctly or not — did purport to certify under s 295(3). In that case, the applicant pleaded guilty on arraignment in the County Court to a number of offences concerned with the alleged sexual penetration of a child under the age of 16 years. Before a plea hearing was conducted, the applicant made an application to withdraw his pleas of guilty. A judge refused to allow the applicant to withdraw his pleas, but, in purported compliance with s 295(3), granted a certificate ruling that the decision was of sufficient importance to justify it being determined on an interlocutory appeal. It does not appear that this Court specifically turned its mind to whether the judge in that case was without power to grant a certificate under s 295(3), albeit that Redlich JA (with whom Bongiorno and Hansen JJA agreed) did observe that the interlocutory appeals process primarily ‘is designed to reduce the number of retrials (and the overall pressure on the justice system) by allowing a contentious interlocutory decision to be considered by the Court of Appeal prior to the commencement or conclusion of the trial’.[14] Redlich JA also observed:[15]
In the present case, the refusal to certify would have had the consequence that the proceedings would have proceeded to a plea hearing on sentence. Hence the only proceeding that might have been rendered unnecessary was a plea in mitigation. Following sentencing, the applicant may have proceeded directly to an appeal against conviction and sought to challenge the ruling on the ground that it would constitute a miscarriage of justice if the plea were allowed to stand. This consideration was relevant to a determination whether an interlocutory appeal was sufficiently important to justify the grant of a certificate. The trial judge evidently entertained some reservation about the correctness of his decision, but that doubt in my opinion was unjustified. As there was to be no trial which would be put at risk as a consequence of his Honour’s ruling, it was not in any event a decision that warranted the granting of a certificate for an interlocutory appeal.
[13]Stannard v Director of Public Prosecutions (2010) 28 VR 84.
[14]Ibid 90 [29].
[15]Ibid 90 [30] (emphasis added).
Once more, the Court in Stannard did not specifically address the issue of competency. It is important to note, however, that Redlich JA (with the concurrence of the other members of the Court) observed that the primary judge should not have certified under s 295(3), given that ‘there was to be no trial which would be put at risk as a consequence of his Honour’s ruling’.
For these reasons, the application to review the certification decision must be refused.
Should he wish to challenge the conviction that resulted from his plea of guilty, the applicant will need to invoke this Court’s powers under Division 1 of Part 6.3 of the CPA.[16]
[16]See, for example, Gurappaji v The Queen [2018] VSCA 187; Kohari v The Queen [2017] VSCA 33.
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