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Wells v The Queen (No 2)

Wells v The Queen (No 2)

Case [2010] VSCA 294 4 November 2010

Appeal

Culpable Driving

Admissibility of Evidence

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Interlocutory Orders

Refusal to Certify Decisions

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2010 0352

RODNEY JOHN WELLS (No 2)
	v
THE QUEEN

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JUDGES	ASHLEY, REDLICH and WEINBERG JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 October 2010
DATE OF JUDGMENT	4 November 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 294
JUDGMENT APPEALED FROM	R v Wells (Unreported, County Court of Victoria, Judge Murphy, 1 October 2010)

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CRIMINAL LAW – Interlocutory appeal – Application for review of refusal by trial judge to certify interlocutory decisions – Application for both partial and permanent stay of proceeding – Culpable driving – Alternative and mutually exclusive particulars of negligence – Admissibility of evidence: expertise of Crown witnesses, relevance of applicant’s epilepsy and non-compliance with medication, influence of cannabis on driving –Whether Charter of Human Rights and Responsibilities Act 2006 (Vic) expands common law right to fair trial – Whether interlocutory appeal appropriate venue to raise Charter issues – Refusal by trial judge to certify that exclusion of evidence would not substantially weaken the prosecution case – Refusal by trial judge to certify that decisions were of sufficient importance to trial – Application for leave to appeal – Applications dismissed

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

ASHLEY JA
REDLICH JA:

The applicant seeks a review of a refusal by a judge in the County Court to issue him a certificate pursuant to s 295(3) of the Criminal Procedure Act 2009 (Vic) (‘the Act’) for leave to appeal against a number of interlocutory pre-trial rulings in proceedings in which he is charged with one count of culpable driving.

A second application. Some basic facts

This is the second application for review that the applicant has made to this Court. In the previous application, which was heard and refused by this Court on 30 April 2010,[1] Ashley JA summarised the facts as follows:

The applicant was driving a utility vehicle along the Hume Hwy on the afternoon of 13 April 2007. Having diverged [to the left] 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.[2]

[1]R v Wells [2010] VSCA 100 (Unreported, Ashley, Redlich and Weinberg JJA, 30 April 2010).

[2]Ibid [2]-[4].

The prosecution alleges that the applicant culpably drove his vehicle causing the death of George Bellikoff by…

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 (No 2)

Details

AGLC: Wells v The Queen (No 2) [2010] VSCA 294
Case: [2010] VSCA 294
Decision Date: 4 November 2010

CaseChat Overview and Summary

The appeal in Wells v The Queen (No 2) was brought before the court by the accused, who sought to appeal the refusal by the trial judge to certify certain interlocutory decisions for review. The accused was facing charges of culpable driving, with the prosecution relying on alternative and mutually exclusive particulars of negligence. The accused sought both partial and permanent stays of the proceedings, arguing issues related to the admissibility of evidence, including the expertise of Crown witnesses, the relevance of the accused's epilepsy and non-compliance with medication, and the influence of cannabis on driving. Additionally, the accused contended that the Charter of Human Rights and Responsibilities Act 2006 (Vic) expands the common law right to a fair trial and questioned whether the interlocutory appeal was the appropriate venue to raise Charter issues. The trial judge had refused to certify that the exclusion of evidence would not substantially weaken the prosecution case and that the decisions were of sufficient importance to the trial.

The primary legal issues before the court included whether the Charter of Human Rights and Responsibilities Act 2006 (Vic) expands the common law right to a fair trial and, if so, whether such issues could be appropriately raised in an interlocutory appeal. Another issue was the admissibility of evidence concerning the accused's epilepsy, non-compliance with medication, and the influence of cannabis on driving, and whether these factors warranted a partial or permanent stay of the proceedings. The court also needed to determine if the refusal by the trial judge to certify that the exclusion of evidence would not substantially weaken the prosecution case and that the decisions were of sufficient importance to the trial were correct.

In dismissing the applications, the court found that the Charter of Human Rights and Responsibilities Act 2006 (Vic) does not expand the common law right to a fair trial in a manner that would alter the admissibility of evidence in criminal proceedings. The court held that the accused's arguments regarding the admissibility of evidence did not warrant a partial or permanent stay of the proceedings, as the evidence was relevant and properly admissible. The trial judge's refusal to certify the interlocutory decisions was deemed appropriate, as the court found no error in the trial judge's assessment that the exclusion of the contested evidence would not substantially weaken the prosecution case and that the decisions were not of sufficient importance to warrant certification. Consequently, the applications for leave to appeal were dismissed.

The court's final orders were to dismiss the applications for leave to appeal, affirming the trial judge's decisions regarding the certification of interlocutory decisions and the admissibility of evidence. The court maintained that the accused's arguments did not establish grounds for a partial or permanent stay of the proceedings and that the trial would proceed as scheduled.

Orders