Todd (a pseudonym) v The Queen - [2016] VSCA 29

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2016 0006

OLIVER TODD (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent
UPPER MURRAY CENTRE AGAINST SEXUAL ASSAULT	Intervening

[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:	WEINBERG, WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 March 2016
DATE OF JUDGMENT:	3 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 29	1^ST Revision: 24 March 2016: Correction of para nos [39] ff
RULING APPEALED FROM:	DPP v [Todd] (Unreported, County Court of Victoria, Judge Sexton, 17 December 2015)

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CRIMINAL LAW — Interlocutory appeal — Pending trial for sexual offences — Judge’s refusal to grant leave to compel production of confidential communication pursuant to s 32C of the Evidence (Miscellaneous Provisions) Act 1958 — Judge’s refusal to certify under s 295(3) of the Criminal Procedure Act 2009 — No error in judge’s refusal to certify.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Gillespie-Jones and Ms E McKinnon	Dawes & Vary Riordan Pty Ltd
For the Crown	Dr N Rogers SC and Mr B Sonnet	Mr J Cain, Solicitor for Public Prosecutions
For the Intervenor	Mr O P Holdenson QC and Ms M C Fox	Health Legal Pty Ltd

WEINBERG JA:

I invite Priest JA to deliver the first judgment.

PRIEST JA:

Introduction

In circumstances where a trial for sexual offences is pending in the County Court, the applicant sought leave under s 32C of the Evidence (Miscellaneous Provisions) Act 1958 (‘the Act’) to issue subpoenas directed to a number of organisations or individuals. Each application was refused, and the judge later refused to certify pursuant to s 295(3) of the Criminal Procedure Act 2009 (‘the CPA’).

The applicant now seeks to challenge the judge’s refusal to certify, and seeks leave to appeal the ruling[2] so far as it applies to two organisations and one individual.
[2]The ruling constitutes an ‘interlocutory decision’ within the meaning of s 3 of the CPA.

In my opinion, any proposed application for leave to appeal is without substance. For the reasons that follow, it must be refused. That conclusion, of course, seals the fate of the application to review the judge’s refusal to certify.

Background

By way of background, an indictment has been filed in the County Court charging the applicant with rape[3] (two charges – charges 1 and 4), indecent assault[4] (two charges – charges 2 and 3) and possessing a drug of dependence[5] (one charge – charge 5).

[3]Crimes Act 1958, s 38(1).

[4]Crimes Act 1958, s 39(1).

[5]Drugs Poisons and Controlled Substances Act 1981, s 73.

The applicant, who at relevant times was aged 42 years, ran a photography business from his home part-time. ‘TA’, the complainant, was aged 18 years, and was interested in pursuing casual photographic modelling. Essentially, the prosecution case is that, on 26 December 2013, TA went…

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 Todd (a pseudonym) v The Queen

Details

AGLC: Todd (a Pseudonym) v The Queen [2016] VSCA 29
Case: [2016] VSCA 29
Decision Date: 3 March 2016

CaseChat Overview and Summary

In the matter of Todd (a pseudonym) against The Queen, the appellant sought leave to appeal the refusal of the County Court judge to compel the production of a confidential communication. The appellant was awaiting trial for sexual offences and applied under section 32C of the Evidence (Miscellaneous Provisions) Act 1958 to compel the production of a communication between the appellant and his legal practitioner. The Crown opposed the application, and the judge refused leave to appeal the refusal to compel production. The appellant also sought certification to appeal the refusal to certify under section 295(3) of the Criminal Procedure Act 2009. The judge refused to certify, and the appellant sought leave to appeal that decision.

The court considered whether the judge erred in refusing to grant leave to appeal the refusal to compel production and whether the judge erred in refusing to certify the decision to refuse to compel production. The court examined the relevant statutory provisions and the criteria for granting leave to appeal and certification. The court also considered the nature of the communication and the interests of justice in compelling its production.

The court found no error in the judge's decision. The court held that the judge correctly exercised his discretion in refusing to grant leave to appeal the refusal to compel production. The court found that the communication was not relevant to the issues in the trial and that compelling its production would not assist in achieving a just outcome. The court also held that the judge correctly exercised his discretion in refusing to certify the decision to refuse to compel production. The court found that the decision did not involve a substantial question of law of general public importance and that the interests of justice did not require certification.

No orders were made as the appeal was dismissed.

Orders