Seabrook (a pseudonym) v The King

[2023] VSCA 29

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0010

CURTIS SEABROOK (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]Because the proceeding involves an application for leave to appeal against an interlocutory decision prior to trial, a pseudonym has been used in the place of the applicant’s name.

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JUDGES:	KYROU, McLEISH and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February 2023
DATE OF RULING:	24 February 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 29
JUDGMENT APPEALED FROM:	DPP v [Seabrook (a pseudonym)] (Ruling) (County Court of Victoria, Judge Rozen, 16 December 2022)

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PRACTICE AND PROCEDURE – Interlocutory appeal – Whether judge erred in rejecting application to exclude expert evidence – Where respondent disavowed reliance on expert evidence at hearing of leave to appeal application – Subject matter of appeal moot – Leave to appeal refused – No power to award costs – Criminal Procedure Act 2009 s 409(a).

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Counsel
Applicant:		Mr RW Taylor with Ms K Grinberg
Respondent:		Mr A Palmer KC with Ms AM French
Solicitors
Applicant:	HWL Ebsworth Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

KYROU JA
MCLEISH JA
KENNEDY JA:

1. The applicant is facing trial in respect of two charges under the Occupational Health and Safety Act 2004.[2] Pursuant to the particulars of each charge it is alleged that the ‘persistent and repeated negative behaviours’ of the applicant, in his role as the manager of the workplace, gave rise to ‘a risk of psychological injury’ to persons working at the workplace.

   [2]The first charge is that the applicant, as a person who had, to an extent, management or control of a workplace, failed between 1 January 2016 and 1 September 2016 to ensure so far as was reasonably practicable that the workplace was safe and without risks to health (contrary to s 26(1) of the Occupational Health and Safety Act). The second charge is that as an employee while at work the applicant failed, between 1 January 2016 and 1 September 2016, to take reasonable care for the health and safety of persons who may be affected by his acts and omissions at a workplace (contrary to s 25(1)(b) of the Occupational Health and Safety Act).

2. The respondent sought to lead expert opinion evidence from consultant psychiatrist Associate Professor Peter Doherty as to the risk of psychological injury. The applicant objected to the admission of this evidence.

3. On 16 December 2022, the trial judge rejected an application to exclude the expert evidence of Associate Professor Doherty. The judge certified the decision for the purposes of an interlocutory appeal, under s 295(3)(a) of the Criminal Procedure Act 2009.

4. By notice of application dated 19 January 2023, the applicant sought leave to appeal the judge’s decision. In particular, the applicant submitted that the evidence of Associate Professor Doherty should have been excluded pursuant to s 137 of the Evidence Act 2008 because he had been briefed with material that was inadmissible and prejudicial.[3]

   [3]That material was: first, an earlier expert opinion from an expert who is now deceased; secondly, two statements from employees who had worked with the applicant and who were not being called at trial.

5. The hearing of the application for leave to appeal was conducted on 17 February 2023. During the course of that hearing:

   •the Court queried why the issues concerning the evidence of Associate Professor Doherty could not be resolved by the engagement of a new expert in circumstances where the trial date had been vacated; and

   •immediately following the luncheon adjournment, senior counsel for the respondent advised the Court that, in the light of the matters which had been discussed in the morning, the respondent would no longer rely on the evidence of Associate Professor Doherty, and would seek to engage a new expert.

6. As a result of the respondent’s announcement, the Court invited the parties to provide submissions in respect of the orders that the Court should make, including any orders as to costs.

7. On 22 February 2022 the Court received further written submissions from the applicant and the respondent dealing with three issues: first, the disposition of the application; secondly, the appropriate costs order; and finally, whether an indemnity certificate might be granted under the Appeal Costs Act1998.

8. In respect of the disposition of the application for leave to appeal, the respondent submitted that, in the light of a number of matters, the Court should refuse the application. Those matters included that the subject of the appeal was now ‘moot’, and that the applicant had raised an argument before this Court which had not been clearly and squarely raised before the judge. Although the applicant did not concede the matters upon which the respondent relied, he conceded that the application for leave to appeal must be refused.

9. It is unnecessary for us to express a concluded view on all the matters upon which the respondent relied. Given that the respondent has disavowed any reliance on the evidence of Associate Professor Doherty, the subject matter of the interlocutory appeal has disappeared and the proposed appeal is now moot. It is therefore not in the interests of justice[4] to grant leave to appeal. Accordingly, leave to appeal will be refused.

   [4]Criminal Procedure Act s 297(1).

10. In respect of costs, the respondent submitted that the Court had no power to award costs by reason of s 409(a) of the Criminal Procedure Act. The applicant also conceded that s 409(a) disentitles him to an order for his costs.

11. Although costs are generally in the discretion of this Court, this is subject to any express provision of an Act.[5] Section 409 of the Criminal Procedure Act provides that no costs are to be allowed to a party in certain circumstances. Under para (a), those circumstances include where a person is a party to an appeal under pt 6.3. Given that pt 6.3 makes provision for interlocutory appeals (in div 4), it follows that this Court cannot make any order for costs, consistent with the position of both parties.

    [5]Supreme Court Act1986 s 24(1).

12. Finally, although s 15A(2) of the Appeal Costs Act makes provision for the grant of an indemnity certificate if an interlocutory appeal by an accused ‘succeeds’, this can have no application where leave to appeal is refused. The applicant did not contend that s 15A(2) entitled him to the grant of an indemnity certificate.

13. It follows that the only order we will make is that leave to appeal is refused.

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