Tran v Stevenson
[2021] VSCA 198
•14 July 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2021 0056
| ANTHONY TRAN | Applicant |
| v | |
| ANDREW STEVENSON | Respondent |
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| JUDGES: | NIALL and WALKER JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 14 July 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 198 |
| JUDGMENT APPEALED FROM: | Tran v Stevenson (Unreported, County Court, Judge Doyle, 31 March 2021) |
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CRIMINAL LAW – Interlocutory appeal – Application for review of refusal to certify interlocutory decisions under s 295 of Criminal Procedure Act 2008 – Where decisions made by County Court judge in course of an appeal from Magistrates’ Court – Whether Court of Appeal has jurisdiction to entertain application for review – Application incompetent – Ruizv The Queen [2021] VSCA 154, considered – Criminal Procedure Act 2008 ss 295, 296, 297.
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| APPEARANCES: | Counsel | Solicitors |
| No appearances |
NIALL JA
WALKER JA:
On 21 September 2019, following a hearing in the Melbourne Magistrates’ Court, the applicant, Mr Tran, was convicted of eight offences. The offences were indictable offences but were tried summarily. Mr Tran subsequently appealed against his conviction and sentence in the County Court.
Prior to the hearing of the appeal in the County Court, Mr Tran contended that the judge had made certain interlocutory decisions, to which Mr Tran objected. He wished to appeal those interlocutory decisions pursuant to div 4 of pt 6.3 of the Criminal Procedure Act 2009 (‘the Act’) and so he sought certification of those decisions pursuant to s 295 of the Act. The trial judge did not certify the decisions. Mr Tran then sought to file an application in this Court, through RedCrest, for review of the trial judge’s refusal to certify, pursuant to s 296 of the Act.
The Judicial Registrar of this Court (‘the Registrar’) refused to accept Mr Tran’s application for filing, pursuant to r 1A.04(2)(a) of the Supreme Court (Criminal Procedure) Rules 2017 (‘the Rules’). That was because the Registrar considered that this Court has no jurisdiction to hear an interlocutory appeal in relation to a decision taken in the course of an appeal from the Magistrates’ Court to the County Court. Mr Tran has objected to the Registrar’s decision. Pursuant to r 1A.04(4) of the Rules, we directed that the Registrar accept the document for filing. However, because the Registrar had raised a question as to the Court’s jurisdiction to entertain an interlocutory appeal of this kind, we also directed that the parties file submissions on the question of jurisdiction. The parties were informed that the Court would decide the question of jurisdiction on the papers.
Having considered the parties’ submissions, we have concluded that the Court lacks jurisdiction to entertain Mr Tran’s application and that the application should therefore be refused. This Court has no jurisdiction to hear an appeal from an interlocutory decision made in the course of an appeal from the Magistrates’ Court to the County Court. Our reasons for that conclusion are set out below.
Background
As noted above, Mr Tran, was convicted of various offences in the Magistrates’ Court; he then appealed against his conviction and sentence in the County Court. Before the matter was set down for hearing in the County Court, an individual purporting to act on behalf of Mr Tran, Mr Drew Scott, applied to the Court seeking consent orders for further testing of the substances seized by Victoria Police by an independent expert. The matter was assigned to Judge Doyle and a directions hearing was listed for 19 March 2021.
In the lead up to that hearing, a number of emails were exchanged between Mr Scott and the chambers of Judicial Registrar Phillips and Judge Doyle regarding changes to the proposed consent orders. During those communications, the associate to Judge Doyle acknowledged that a ‘Notice of Acting Practitioner’ had been emailed to the County Court and informed Mr Scott that a notice in the correct form was to be filed before the consent orders would be considered. In his responding email, Mr Scott explained that he was ‘neither a self-representing party, nor technically a current “practitioner”’. A search of the Legal Services Board’s register confirmed that no one with the name ‘Drew Scott’ was licensed to practice in Victoria. A correct version of the Notice of Acting Practitioner was never filed.
The directions hearing was held on 19 March 2021, as scheduled. According to the record of orders, Judge Doyle directed that the matter be adjourned to 31 March 2021 for mention.
On 29 March 2021, Mr Scott sent an email to Judge Doyle’s chambers (as ’Support Agent‘ for Mr Tran) seeking certification, pursuant to s 295(3) of the Act, of four interlocutory decisions, which he claimed had been made in the hearing; namely:
1.That the Learned Judge has no conflict of interest nor other compelling reason to recuse His Honour from the Appellant’s matter before this Court, and so validly constitutes the Court for the hearing on 19 March 2021 at 09:15 am.
2.That the Respondent is entitled to invoke Rule 2A.8 of [the County Court Criminal Procedure Rules 2019] without complying with subsections (2) and (3), or observing subsection (4), and without fulfilling subsection (5) of that Rule.
3.That this Court did not, at any time prior, grant leave to the Appellant’s Support Person, Drew Scott, Esq, to enter a Special Appearance or to act for the unrepresented Appellant, and all such requests are denied for the reason that the Esquire is not actually an Officer of this Court and so is not eligible to make a request for leave.
4.That this Court denies the Appellant’s request for an immediate adjournment pending his application for an Appeal of the interlocutory decision numbered 3 directly above, and directs Counsel for the Respondent to speak for the Appellant.[1]
[1]Emphasis in original.
A mention was held on 31 March 2021 before Judge Doyle, at which Mr Tran appeared in person and Mr Scott made no appearance. The request for certification was not raised. At the conclusion of the mention the judge made orders, inter alia, listing the appeal for hearing on 3 November 2021 and approving an agreed timetable for independent substance testing.
On 12 April 2021, Mr Tran sought to file in this Court a notice of application for review in respect of an apparent refusal by Judge Doyle to certify interlocutory decisions. The notice form was unsigned, but the details entered into the Court’s filing system nominated Mr Tran as a ‘self-represented litigant’ and Mr Scott as an ‘intervener’.
The relevant grounds of review, as they appear in the notice, are as follows:
1.The interlocutory decisions are of sufficient importance to the trial to justify it being determined on an interlocutory appeal, as the decisions impact the fundamental nature and validity of the trial in equity and at law, and specifically speak to significant and important features, including — the boundaries of the jurisdiction of the lower court (including constitution of same), the adversarial nature of our system which underpins the presumption of innocence, the definition and limits of exercises of sound judicial discretion, judicial conflicts of interest and bad faith, the right for an accused to be represented by competent and good faith counsel, the right of an accused to the opportunity to give evidence in defence, even if such evidence pertains to misconduct of a practitioner or unsworn court officer, and formal due process & bad faith abuses of process and their impact on the manifest fairness (and therefore validity) of the trial.
2.The determination of the appeal against the interlocutory decision may render the trial unnecessary or substantially reduce the time required for the trial, or avert a mistrial/retrial from being ordered on appeal, will reduce the likelihood of subsequent appeals, and therefore will best allocate the valuable and scarce resources of the courts, and most efficiently preserve the funds and rights of the taxpayer.
3.The determination of the appeal against the interlocutory decision will necessarily speak to issues of law, evidence and procedure that are necessary to be determined for the proper conduct of a valid trial.
The notice sought to be filed by Mr Tran did not identify the interlocutory decisions that were refused certification. Presumably, the notice was intended to be directed to Mr Tran’s application to certify dated 29 March 2021, and to Judge Doyle’s subsequent failure to mention that application in the 31 March 2021 hearing or to otherwise deal with the application.
First refusal to accept documents for filing
On 22 April 2021, the Registrar determined that the application lodged by Mr Scott, on behalf of Mr Tran, would not be accepted for filing. The Registrar gave the following reasons for the refusal:
The power to bring an interlocutory appeal is limited to interlocutory decisions. Section 3 of the Act defines interlocutory decision as a decision made by a Judge in a proceeding referred to in section 295(1) of the Act whether before or during the trial. Pursuant to s 295, a right of appeal against an interlocutory decision applies to a proceeding in the County Court or Trial Division of the Supreme Court for the prosecution of an indictable offence.
The proceeding before the County Court in AP-19-2273 is not a trial in respect of an indictable offence, it is an appeal against a decision of the Magistrates’ Court. The Court of Appeal therefore has no jurisdiction to hear an interlocutory appeal against the decisions identified by you as having been made in the County Court proceeding. Accordingly, your document has not been accepted for filing.
On 28 April 2021, Mr Tran (with the apparent assistance of Mr Scott) wrote to Registry by email objecting to the decision to refuse to accept the notice for filing. With respect to the claim that the proceeding was not a ‘trial in respect of an indictable offence’, Mr Tran responded:
Since nearly no direct or first-hand evidence was proffered in the lower court, and there was no consent to, or establishment of, jurisdiction, just about all the evidence that will be submitted during the county court proceedings will be new. Therefore, there is no way to categorise these proceedings as an appeal for the purposes of disqualifying it based on the dichotomy which is applied to the supreme court in the same provisions, but not to the county court. I am applying from a ’proceeding (not a trial as this is “before a trial”) in the County Court,’ and it is a proceeding ’for the prosecution of an indictable (as opposed to summary) offence.’ We have here specifically a hearing, the purpose of which was to further the prosecution of (i.e. ’for the prosecution of‘) of at least one (1) indictable offence. So this provision is also satisfied.
…
With all due respect, the legislation does not refer to a ’trial in respect of‘ but to a ’proceeding for the prosecution of‘ an indictable offence. As already stated above, the requirement cannot be a trial because this is ’before... a trial‘ which is expressly within the scope of the legislation.
Second refusal to accept documents for filing
On 6 May 2021, the Registry wrote again to Mr Tran and Mr Scott, as follows:
As previously advised, the reason that the document was not accepted for filing is because it purports to commence an interlocutory appeal against decisions made in a County Court proceeding that do not fall within the meaning of ‘interlocutory decision’ for the purposes of Part 6.3, Division 4 of the Criminal Procedure Act 2009. An interlocutory decision is a decision made by a judge in a proceeding referred to in s 295(1) of that Act, whether before or during the trial. A trial commences when the accused is arraigned in the presence of the jury panel‐ see s 210 of the Criminal Procedure Act 2009.
As you have stated, the proceeding in the County Court is a de novo appeal which must proceed by way of rehearing. The original proceeding in the Melbourne Magistrates’ Court was a summary hearing, involving indictable offences heard and determined summarily by the magistrate. As you have also noted, on the hearing of the appeal, the County Court may exercise any power which the Magistrates’ Court exercised or could have exercised in the summary hearing.
The definition of ‘interlocutory decision’ does not include decisions made before or during a summary hearing, it includes only those decisions made before or during a trial.
Mr Tran’s matter proceeded in the summary stream of the Magistrates’ Court and Mr Tran was not committed for trial. The interlocutory appeal regime does not apply to summary hearings or to de novo appeals from the Magistrates’ Court to the County Court. As previously advised, there is no right of interlocutory appeal open to Mr Tran under s 295 of the Act.
On 7 May 2021, Mr Tran sent a further email objecting to the Registrar’s decision, responding to the Registrar’s reasons, and setting out his views about the construction of s 295(1) of the Act. It is unnecessary to set out the contents of that email in detail.
The parties’ submissions
Mr Tran filed submissions that attached the contents of the emails he had sent to the Registry, which are discussed above. He made no new submissions.
The Office of Public Prosecutions, on behalf of the respondent, filed submissions contending that this Court lacks jurisdiction to entertain Mr Tran’s application on two bases:
(a) First, it was said that Mr Tran had not identified with sufficient precision any ‘decision’ that could properly be the subject of an application under s 296.
(b) Second, it was said that, even if there is a decision that could be the subject of an application under s 296, this Court lacks jurisdiction because any such decision would not be an ‘interlocutory decision’ capable of engaging the review processes in div 4 of pt 6.3 of the Act. Three reasons were given in support of that submission:
(i) section 295(1) refers to the County Court’s first instance criminal jurisdiction, not its appellate jurisdiction;
(ii) an ‘interlocutory decision’ capable of appeal under pt 6.3 div 4 is one made prior to or in a trial and an appeal lacks the definitive features of a trial; and
(iii) the procedure for appeals of interlocutory decisions contemplates such decisions made in trials in the County Court’s original jurisdiction only.
Resolution
In our opinion this Court lacks jurisdiction to hear an interlocutory appeal from a decision taken before or during an appeal from the Magistrates’ Court to the County Court.
It is trite to observe that an appeal is a creature of statute.[2] In particular, until the enactment of the Act in 2009, appeals from interlocutory decisions in criminal matters were not permitted.[3]
[2]Commissioner for Railways (NSW) v Cavanough (1935) 53 CLR 220, 225; [1935] HCA 45; Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, 619; [1976] HCA 62; Eastman v The Queen (2000) 203 CLR 1, 11 [14], 81–2 [248]; [2000] HCA 29.
[3]See, eg, Smith v The Queen (1994) 181 CLR 338; [1994] HCA 60.
Assuming, for present purposes, that one or more decisions of Judge Doyle can be identified, the decisions in issue were not ’interlocutory decisions‘ within the meaning of that term in the Act. They were not made in a proceeding referred to in s 295(1) of the Act.
Section 295 of the Act relevantly provides as follows:
295 Right of appeal against interlocutory decision
(1)This section applies to a proceeding in the County Court or the Trial Division of the Supreme Court for the prosecution of an indictable offence.
(2)Subject to this section, a party to a proceeding referred to in subsection (1) may appeal to the Court of Appeal against an interlocutory decision made in the proceeding if the Court of Appeal gives the party leave to appeal.
…
(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.
The term ‘interlocutory decision‘ is defined in s 3 of the Act, as follows:
interlocutory decision means a decision made by a judge in a proceeding referred to in section 295(1), whether before or during the trial, including a decision to grant or refuse to grant a permanent stay of the proceeding;
The key issue is whether the proceedings referred to in s 295(1) include an appeal from the Magistrates’ Court to the County Court.
It may be observed that s 295(1) uses the term ‘proceeding’, which ordinarily would be understood to include an appeal; thus, it might be said, an appeal to the County Court from a conviction in the Magistrates’ Court, which is a hearing de novo, is ‘a proceeding in the County Court for the prosecution of an indictable offence’. Read literally, such an approach might arguably be open. However, while the text of a provision is the starting point in statutory construction, the text is to be considered in light of its context and purpose.[4] The meaning of a provision must be determined by reference to the entire Act.[5] Consideration of purpose is required by s 35(a) of the Interpretation of Legislation Act 1984 (Vic); and s 35(b) provides for consideration of extrinsic materials in resolving the meaning of the text.
[4]SAS Trustee Corporation v Miles (2018) 265 CLR 137, 149 [20];[2018] HCA 55 (Kiefel CJ, Bell and Nettle JJ), 157 [41] (Gageler J), 162–3 [64] (Edelman J). See also Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) and the several cases referred to at n 105.
[5]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381 [69] (McHugh, Gummow, Kirby and Hayne JJ); [1998] HCA 28.
Text, context and structure
The respondent’s submission that an appeal to the County Court from the Magistrates’ Court is not a proceeding to which s 295(1) applies is correct. In our opinion that is apparent from the context in which s 295(1) appears, together with the underlying structure of the Act in relation to appeals from the Magistrates’ Court. That is so even where the offence concerned was an indictable offence. Rather, s 195(1) applies to the trial of the offence in the original jurisdiction of the County Court or Supreme Court, as the case may be.
Textually, we consider that this emerges from the following matters:
(a) Section 295(1) on its face applies to trials in the Supreme Court, and there is no basis to think that it is intended to apply more broadly, or differently, in relation to the County Court.
(b) The definition of ‘interlocutory decision’ in s 3 refers to such a decision ‘whether before or during the trial’, indicating that the type of proceeding in which the decision is made is a trial proceeding. That is supported, in particular, by the use of the definite article.
(c) Sections 295(3)(b) and (c), set out above, also refer to ‘the trial’, as do ss 296(2)(a)–(c), ss 297(1)(a) and (b), and s 297(2); these sections presuppose that div 4 of pt 6.3 applies to trials, rather than to appeals. Again, that is supported by the use of the definite article.
It is clear that for the purposes of the Act, a trial is a criminal proceeding on indictment. Chapter 5 of the Act is headed ‘Trial on Indictment’ and prescribes the procedure to be adopted for trial. A trial in the County Court commences ‘when the accused pleads not guilty on arraignment in the presence of the jury panel…’: s 210 of the Act. In contrast, a summary procedure does not involve a trial but a hearing of the charges under pt 3.3 of the Act. There is no indictment, the accused is not arraigned, and self-evidently, there is no jury. Those matters reinforce the proposition that an appeal in the County Court is not a ‘trial’.
Structurally, we also consider that a construction of s 295(1) that permitted an appeal from an interlocutory decision made in the course of an appeal to the County Court would be inconsistent with the scheme of the Act in so far as the Act provides for appeals from the Magistrates’ Court and County Court to the Supreme Court and Court of Appeal. That structure is as follows:
(a) Following conviction in the Magistrates’ Court, a person may decide to appeal to the County Court by way of a de novo appeal (s 254(1)),[6] or to the Supreme Court by way of an appeal on a question of law (s 272). A party that brings an appeal under s 272 abandons finally and conclusively the right to appeal to the County Court in relation to that proceeding (s 273).
(b) If the person appeals to the County Court, there is ordinarily no further appeal from the County Court to the Court of Appeal. That is because appeals to the Court of Appeal from the County Court are confined to appeals from the County Court in its original jurisdiction (s 274, read with the definition of ‘originating court’ in s 3).[7] On an appeal from the Magistrates’ Court, the County Court judge is sitting and exercising jurisdiction as a magistrate.[8]
(c) In those circumstances it would be anomalous for s 295 to permit an appeal from an interlocutory decision to the Court of Appeal in relation to a proceeding in which there is no final appeal to the Court of Appeal. In our view, Parliament would not have intended such an anomalous result.
[6]If the Magistrate who constituted the Magistrates’ Court held a dual commission, then the de novo appeal is to the Supreme Court, rather than to the County Court: s 254(2).
[7]There is an exception to this in s 283, which provides for a limited class of cases in which a person may appeal to the Court of Appeal from the County Court on appeal if the County Court imposed a sentence of imprisonment but the Magistrates’ Court had not ordered that the person be imprisoned. That exception supports, rather than detracts from, the proposition that there is ordinarily no appeal to the Court of Appeal from a County Court appeal.
[8]See Camilleri’s Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683; Builders Licensing Board v Sperway Constructions(Syd) Pty Ltd (1976) 135 CLR 616; [1976] HCA 62; Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73; [1931] HCA 34.
In further support of our construction of s 295(1), we note that s 302(1), in div 5 of pt 6.3, is in identical terms, but concerns the reservation of a question of law for determination by the Court of Appeal. But, in addition, s 302A provides for the reservation of a question of law for determination by the Court of Appeal in an appeal to the County Court from the Magistrates’ Court.
If the applicant’s construction of s 295(1) were correct, it would necessarily apply also to s 302(1), given that the language is identical. But if it applied to s 302(1), then a question could be referred to the Court of Appeal from a County Court appeal under that section. If that were so, s 302A would be otiose. Such a construction of s 302(1) should not be accepted,[9] and we see no basis to construe the language of s 295(1) differently from the identical language in s 302(1).[10]
[9]Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53, 62 [8]; [2003] HCA 75.
[10]Registrar of Titles (WA) v Franzon (1975) 132 CLR 611, 618; [1975] HCA 41.
It is apparent from ss 302 and 302A, as well as from other provisions of the Act concerning appeals, that the Act draws a distinction between the County Court in its appellate jurisdiction and the County Court in its original jurisdiction. Ultimately, where Parliament intended to enable the Court of Appeal to play some role in relation to County Court appeals, it has made clear and express provision to that effect by s 302A. No such intendment is to be found in s 295(1), especially when construed in light of the statutory context to which we referred above. Nor is there any analogue to s 302A in div 4 of pt 6.3. Rather, in our view s 302A provides exclusively for the role the Court of Appeal is to have in relation to County Court appeals.
Extrinsic materials
The extrinsic materials relevant to div 4 of pt 6.3 support this understanding of s 295(1).
It is apparent from a reading of the extrinsic materials for the CPA that the term ‘interlocutory decision’ was intended to have a broad operation. The Explanatory Memorandum for the Criminal Procedure Bill 2008 (the ‘EM’) stated:
Clause 295 sets out the right of appeal against interlocutory decisions. An interlocutory decision is defined in clause 3. It is defined broadly to avoid technical arguments about what judgments or orders and other types of decisions are capable of being appealed.[11]
[11]Explanatory Memorandum, Criminal Procedure Bill 2008 (Vic) 108.
However, it is also clear the defined term was not intended to be unrestricted. One limit that appears from the EM is the need for a decision to be connected to a ‘trial’, and not made during an appeal or some other judicial procedure. For example, the EM states:
Subclause (3) limits a party's ability to seek leave to appeal after the trial has commenced without the judge who made the interlocutory decision certifying the following matters—
…
· if the interlocutory decision is made after the trial commences the relevant issue must not have been reasonably able to be identified before the trial or the party must not have been at fault in failing to identify the relevant issue.[12]
[12]Ibid 108–9 (emphasis added).
Similarly, in the Second Reading Speech for the Criminal Procedure Bill 2008, the Minister introducing the Bill explained as follows:
The bill also provides, quite importantly, the introduction of a specified regime for the hearing of interlocutory appeals — that is, appeals that may be brought during the course of the trial process. The objective of that is that some matters may be more effectively resolved at an interlocutory stage — that is, before the original trial is concluded, rather than waiting until that trial is concluded and then having an appeal against the conviction at the end of it. [13]
[13]Victoria, Parliamentary Debates, Legislative Assembly, 3 February 2009, 36 (Robert Clark) (emphasis added).
In our view the reference in the EM to the breadth of the definition in cl 3 (now s 3) is properly understood as directed to the kinds of decisions capable of review, not the kinds of proceedings in which the decisions are made. That is, the terms applies to decisions made in the course of, or before, a trial that might not be reflected or crystallised in orders or a formal ruling.[14]
[14]In that regard we note that the New South Wales Court of Criminal Appeal in R v Rogerson (1990) 45 A Crim R 253 had held that s 5F of the Criminal Appeal Act 1912 (NSW), which provided for an appeal from ‘an interlocutory judgment or order made in the proceeding’, was narrow in scope and did not include a decision by a judge not to recuse him- or herself. A conclusion of that kind is precluded by reason of the wider words adopted in s 195(1): see discussion in GP v The Queen (2010) 27 VR 632, 638 [48]; [2010] VSCA 142.
It is also of assistance to refer to the Explanatory Memorandum to the Criminal Procedure Amendment Bill 2012, which inserted s 302A into the Act. It stated as follows:
Clause 18 inserts a new section 302A into Division 5 of Part 6.3 of the Criminal Procedure Act 2009 to provide a mechanism for reserving a question of law from the appellate jurisdiction of the County Court for determination by the Court of Appeal.
Division 5 of the Criminal Procedure Act 2009 currently provides a case stated process for the reservation of a question of law from a proceeding in the County Court in its original jurisdiction or the Trial Division of the Supreme Court for the prosecution of an indictable offence.[15]
[15]Explanatory Memorandum, Criminal Procedure Amendment Bill 2012 (Vic) 10.
That extract makes clear that s 302(1) — which, as we have pointed out, is in identical terms to s 295(1) — did not include an ability to reserve a question of law from the appellate jurisdiction of the County Court for determination by the Court of Appeal. As we have noted above, once s 302 is construed in that manner, it is all but impossible to construe s 295 differently.
Authorities concerning interlocutory appeals
We also note that this Court has observed that the interlocutory appeal provisions represent a departure from the common law opposition to the fragmentation of criminal proceedings. They are an exceptional process, should be strictly confined and should be reserved for unusual cases.[16] While some cases have referred to the broad nature of ‘interlocutory decisions’ under the Act,[17] this Court has also recognised that the interlocutory decision must be connected to a trial of an indicatable offence.[18]
[16]See, eg, DPP v Wise [2016] VSCA 173, [5]; DPP v Pace (2015) 45 VR 276, 283–4 [24]–[26]; [2015] VSCA 18; R v DG(2010) 28 VR 127, 132 [29]; [2010] VSCA 173; Peterson v The Queen (2019) 57 VR 521, 522–3 [6]–[8] [2019] VSCA 12.
[17]See GP v The Queen (2010) 27 VR 632 ,638–9 [46]–[50]; [2010] VSCA 142, where the Court held that a trial judge’s refusal to recuse himself was reviewable under div 4 of pt 6.3; see also Wells v The Queen [No 2] [2010] VSCA 294, [43].
[18]See, eg, Watkinsv Commissioner of Australian Federal Police [2015] VSCA 321, [12]–[13]; Cook v The Queen [2019] VSCA 87, [52]–[54].
This last point was recently expressed in clear terms in Ruizv The Queen.[19] In that case, the applicant had pleaded guilty in the County Court to the indictable offence of cultivating a commercial quantity of cannabis. Before his sentencing, however, the applicant applied to a judge of the County Court to change his plea to not guilty on the grounds that his lawyer had given him inaccurate advice. That application was refused, as was an attempt to have the refusal decision certified under s 295(3). The applicant then applied to this Court for review of the refusal to certify, pursuant to s 296(1).
[19][2021] VSCA 154.
The review application was dismissed by Priest, Kyrou and T Forrest JJA as being incompetent. Key to their conclusion was the fact that the decision in issue had not been made before or during a ‘trial’, as contemplated by ss 295(3), 296 and 297. Relevantly, with respect to s 295(3), their Honours said as follows:
[I]t is … 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.[20]
[20]Ibid [10].
They then noted that s 296 permits an application for review if the trial judge refuses to certify that ‘the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.[21] Similarly, in relation to s 297, their Honours said this:
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’.[22]
[21]Ibid [11] (emphasis in original).
[22]Ibid [13].
The understanding of div 4 of pt 6.3 expressed in Ruiz, as well as in the other cases mentioned above, further supports our conclusion that s 295(1) does not permit an appeal from an interlocutory decision made in an appeal to the County Court.
In light of that conclusion, it is not necessary for us to address the first argument made by the respondent, namely that the applicant had not identified with sufficient precision a ‘decision’ the subject of a refusal to certify.
Conclusion
No appeal to this Court lies from an interlocutory decision made in an appeal to the County Court from the Magistrates’ Court. Section 295 does not apply to such an appeal. It follows that there can be no certification under s 295(3) and no review of a refusal to certify under s 296. The application is incompetent and must be refused.
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