295. Right of appeal against interlocutory decision

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.

Note

See the definition of interlocutory decision in section 3.

(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.

(4) A request for certification under subsection (3) must be determined as soon as practicable after the request is made.

Sections 295 to 301 were introduced in an attempt to reduce the number of wasted trials and re-trials by granting the Court of Appeal the ability to decide evidentiary and other questions in the first instance, rather than reviewing the conduct of a concluded trial at a later date. See also the legislation and commentary concerning 'questions of law reserved' at s 302 and onwards.

Maxwell P forecast what was in mind in extra-curial remarks in an address to the Bar in 2009, where he said in part:

The most dramatic change to criminal appeal procedure under the new Act will be the introduction of interlocutory appeals. This potentially very significant law reform was initiated by the Court of Appeal itself, in circumstances to which I will refer later.

The object of the new procedure is to enable critical questions of law to be considered by the Court of Appeal before the trial starts or, in exceptional cases, after the trial has commenced.1 Traditionally, of course, the Court of Appeal does not become involved until the trial is over. If error is found at that stage, then (subject to the applicability of the proviso) the conviction must be quashed and a re-trial had – unless, of course, a verdict of acquittal is directed.

Let me give two recent examples to illustrate what we have in mind. In Thomas, the prosecution for the terrorism offence depended almost entirely on an interview with Mr Thomas, conducted by the Australian Federal Police, while he was in custody in Pakistan. Prior to the trial commencing, the judge ruled that the admissions in the interview had been made voluntarily and that the record of interview was admissible in the trial. Thomas was subsequently convicted. On the appeal, the Court of Appeal unanimously concluded that the confession was not voluntary and that the record of interview was inadmissible. The conviction was quashed. Had it not been for the remarkable circumstance that Mr Thomas had in the meantime given an interview to the ABC, in which he had said apparently incriminating things, there would inevitably have been a verdict of acquittal.

The moral of the story is clear. It should have been possible for the defence to come to the Court of Appeal before the trial started, to challenge the judge’s ruling that the interview was admissible. Had that occurred, the interlocutory appeal would have been upheld and there would have been no trial. And the Court of Appeal would have been required to consider only a single point, instead of having to deal with a full set of conviction appeal grounds.

My second example is the sex slavery case of Wei Tang. In that case, it was not until there had been two lengthy trials that the Court of Appeal was asked for the first time to rule on fundamental threshold questions regarding the slavery provisions in the Commonwealth Criminal Code, that is, whether the provisions were constitutionally valid and, if so, how they were to be interpreted. (Had the answer to the first question been no, then there should never have been a trial at all). Those same questions were, in turn, ruled on by a seven-member bench of the High Court.

As Eames JA noted in his judgment, the task facing the trial judge and trial counsel was one of considerable difficulty, there being no guiding case law on the elements of the offences, or on the meaning to be attributed to the statutory language. It ought to have been possible for those issues to be ruled on, including at appellate level, before the first trial started.

On the sentence appeal which followed the reinstatement of the convictions by the High Court, Buchanan and Vincent JJA and I said:

‘It is to be hoped that the new provisions of the Criminal Procedure Act 2009, introducing interlocutory appeals and greatly expanding the case stated procedure, will enable questions of fundamental importance to a trial to be decided – and, where necessary, considered by this court – before the trial begins’.

As flagged in that passage, the case stated provisions have also been much enlarged, to facilitate – and encourage – trial judges, and trial parties, to consider stating a case for the Court of Appeal when a fundamental issue is identified. The importance of early identification of issues is self-evident. As with interlocutory appeals, a case may be stated before – or, in exceptional cases, after – the trial has commenced.

Inevitably, these new procedures will - in the short term at least - impose an additional workload on the Court of Appeal. We are already overburdened by our conventional appeal work, both civil and criminal. But the clear view of the Court - which the Government has endorsed by enacting this legislation - was that to deal with ‘knock-out’ points at the start rather than at the end of a trial is likely, in due course, to pay a handsome dividend, by reducing the number of conviction appeals which have to be heard.

An appeal on an interlocutory question will be by leave, following certification by the trial judge. This double gateway is intended to confine this procedure to the cases where the issue truly warrants the Court of Appeal’s urgent attention. (We are drafting Rules which will ensure that these appeals are heard expeditiously). As in New South Wales, whose procedure has been the model for the Victorian initiative, we will have to develop jurisprudence on a case by case basis as to when leave will and will not be granted.

The first few years of operating under the new procedures will, of course, be exploratory – for the Court, for trial judges and for counsel. So, after two years, we will review the operation of the provisions, in consultation with trial judges and with other interested parties, including the Criminal Bar Association, to decide whether any alteration is required.

Interlocutory appeals do not exist from the Magistrates' Court, though logically a path may exist from a de novo proceeding in the County Court under s 254.

This section was first considered in CGL v DPP (No 2) [2010] VSCA 24. The Court declined to provide a thorough description of the meaning of eliminate or substantially weaken the prosecution case under (a), prompted to deliver an ex tempore judgment by the potential loss of an empanelled jury. The court found that the exclusion of a general admission said to have been made by the accused would not have that requisite effect and leave to appeal was refused, the s 85 Evidence Act 2008 issue then not needing to be considered.

The Court emphasised the need for a threshold test to exist, lest the Court of Appeal become, "bogged down, in a way Parliament cannot possibly have intended, with applications for leave to appeal against evidentiary rulings,": (Maxwell P at 5).

The point was developed further in McDonald v DPP [2010] VSCA 45, an interloctory to the Court of Appeal which was refused and the Court said the presiding judge should not have certified.

Ashley JA (Neave and Redlich JJA in agreement):

16 In this case, the judge was rightly of the opinion that an appeal would be quite hopeless. In those circumstances, it could not have been concluded, and should not have been concluded by his Honour that the decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal. An argument, if accepted, may be such as would render a trial unnecessary. But if the argument is without any merit, it cannot be said that it possesses the quality of ‘sufficient importance to the trial’ which is required by paragraph (b).

In DPP v BDX (No 2) [2010] VSCA 134 the Court of Appeal refused leave to appeal a trial judge's refusal to grant a permanent stay of proceedings based on delay. Counsel argued that a re-trial was commencing outside statutory time limits. The Court ruled [at 29] that no rights of an absolute kind are created upon the expiration of the periods referred to in the legislation.

A decision of a County Court judge to refuse to recuse themselves due to a reasonable apprehension of bias is an interlocutory decision: GP v The Queen [2010] VSCA 142. A refusal to grant a stay based on presumptive unfairness can be the subjective of interlocutory appeal: Aydin v The Queen [2010] VSCA 190.