Wells v The Queen - [2010] VSCA 100

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2010 0090

RODNEY JOHN WELLS
	v
THE QUEEN

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JUDGES	ASHLEY, REDLICH and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 April 2010
DATE OF JUDGMENT	30 April 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 100
JUDGMENT APPEALED FROM	R v Wells (Unreported, County Court of Victoria, Judge Cotterell, 16 April 2010)

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CRIMINAL LAW – Application for permanent stay of proceeding – Interlocutory decision – Application for review of decision under s 295(3)(b), Criminal Procedure Act 2009 – Refusal to certify that interlocutory decision was of sufficient importance to trial to justify it being determined on an interlocutory appeal – Nature of review under s 296 – Application dismissed

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Appearances:	Counsel	Solicitors
For the Applicant	Mr J R Sutton	Rainer Martini & Associates
For the Crown	Ms C Lee	Mr C Hyland, Solicitor for Public Prosecutions

ASHLEY JA:

Rodney Wells faced trial on a count of culpable driving. He unsuccessfully applied to a County Court judge for the permanent stay of the presentment. He then unsuccessfully sought a certificate from the learned judge under s 295(3)(b) of the Criminal Procedure Act2009 (Vic) (‘the Act’). Now he applies under s 296 of the Act for a review of the refusal to certify; and, if the review succeeds and he is granted leave to appeal, then he seeks that the appeal be allowed.

The applicant was driving a utility vehicle along the Hume Highway on the afternoon of 13 April 2007. Having diverged to pass another vehicle, his utility, it seems, did not straighten, but instead travelled wholly or partly into the emergency lane and collided, generally nose to tail, with a stationary Ford sedan. The impact was very forceful. Both vehicles were extensively damaged. An occupant of the stationary vehicle was killed.

There was no evidence that the utility’s brakes had been applied before the collision. Nothing indicated that the applicant had swerved in an attempt to avoid the collision.

The applicant was injured in the collision. On his account, not conceded by the Crown, he has no recollection of the collision, and so can cast no light on how it came about.

The vehicles were removed for police inspection. On 23 April 2007, each of them was examined by Robert Le Guier, a police mechanical investigator of very long experience. With respect to the utility, a 2006 model, he found no evidence of damage which could account for it having followed the course which it did, and for not having braked. Specifically, he found no evidence of pre-collision damage to the steering or brake mechanisms.

Subsequent to his examination of the vehicles, Senior Sergeant Le Guier (conveniently, ‘the examiner’) advised the informant that he had found no fault with either vehicle, and that they could be released. They were. The utility was released to its owner, Thrifty Car Hire. It was subsequently destroyed. So was the sedan.

About a year after the incident, the applicant was charged.…

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 Wells v The Queen

Details

AGLC: Wells v The Queen [2010] VSCA 100
Case: [2010] VSCA 100
Decision Date: 30 April 2010

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Wells v The Queen involved an application by the accused, Wells, for a permanent stay of proceedings against him. The underlying dispute was the constitutionality of certain provisions of the Criminal Code Act 1995 (Cth). The application was for a review of an earlier interlocutory decision that had refused to grant Wells' request for a permanent stay of proceedings. The court was required to determine whether the earlier interlocutory decision was of sufficient importance to warrant an interlocutory appeal and to consider the nature of the review under section 296 of the Criminal Procedure Act 2009.

The legal issues before the court included the threshold for determining whether an interlocutory decision was of sufficient importance to justify an interlocutory appeal, the scope of review under section 296, and the criteria for certification by the primary judge. The court held that the primary judge's decision not to certify the interlocutory decision was not manifestly unreasonable, and that the review under section 296 was limited to determining whether the primary judge exercised their discretion in accordance with the law. The court found that the primary judge had correctly applied the relevant legal principles and that the interlocutory decision did not meet the threshold for an interlocutory appeal.

The application was dismissed, with the court reaffirming the importance of the threshold for interlocutory appeals and the limited scope of review under section 296. The court noted that interlocutory appeals should be reserved for cases of significant importance to the overall conduct of the trial. In this instance, the court was satisfied that the primary judge had properly exercised their discretion and that the interlocutory decision did not warrant further review. Consequently, the application for a permanent stay of proceedings was not granted, and the case proceeded to trial.

Orders