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…
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- AGLC
- Wells v The Queen (No 2) [2010] VSCA 294
- Case
- [2010] VSCA 294
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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