U R v The Queen [2011] VSCA 152 (19 May 2011)

Last Updated: 20 May 2011

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0074

UR
	Applicant
v
THE QUEEN	Respondent

---

JUDGES:	HARPER JA and WHELAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 May 2011
DATE OF JUDGMENT:	19 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 152
RULING APPEALED FROM:	R v [UR] (Unreported, County Court of Victoria, Judge Coish, 18 April 2011)

---

CRIMINAL LAW – Interlocutory appeal – Application before trial judge to change plea – Application refused - Refusal by trial judge to certify an interlocutory decision - Application for review – Criminal Procedure Act 2009, ss 295(3)(b) and 296 - Whether the interlocutory decision of sufficient importance to the trial to justify it being determined on an interlocutory appeal - Middap v R (1989) 43 A Crim R 362 and Stannard v DPP [2010] VSCA 165 applied – Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr S Ginsbourg	Doogue & O’Brien
For the Respondent	Mr P Kidd with Mr J Ayres	Mr C Hyland, Solicitor for Public Prosecutions

HARPER JA:

1 On 4 May 2010, the applicant pleaded guilty in the County Court to one charge of possession of child pornography and two charges of indecent assault. The plea hearing began the following day, but was adjourned so that further evidence could be obtained. On 25 June, the applicant – his counsel having been given leave to withdraw - sought leave to change his pleas to pleas of not guilty. On 30 March this year a judge of the County Court refused the application. The applicant now seeks a review of that decision.

2 The relevant legislative provisions are ss 295 and 296 of the Criminal Procedure Act 2009. Section 296(1) relevantly provides that, if a judge refuses to certify an interlocutory decision made by that judge under s 295(3), the party which requested certification may apply to this Court for a review of that decision. This is such an application.

3 Subsection 296(4) is also relevant. It provides that, on a review under sub-s (1), the Court of Appeal must consider the matters referred to in s 295(3) and, if satisfied as required by s 297, may give the applicant leave to appeal.

4 This takes the Court to s 295(3)(b), which provides that a party may not seek leave to appeal unless the judge who made the interlocutory decision certifies, if the interlocutory decision does not concern the admissibility of evidence - and there is no such issue here - that the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

5 No trial in this case has yet begun. The Court is therefore in a position where it must ask itself whether the interlocutory decision is of sufficient importance to justify the interlocutory appeal being determined before the commencement of the trial. I assume, for the purposes of the present judgment, that that is sufficient to enliven the jurisdiction under the relevant provisions of the legislation; and I proceed, without deciding the point, upon that assumption.

6 A similar issue came before this Court in the matter of Stannard v DPP.[1] Redlich JA said in that case:

Primarily, the interlocutory appeals process is designed to reduce the number of retrials (and the overall pressure on the justice system) by allowing a contentious interlocutory decision to be considered by the Court of Appeal prior to the commencement or conclusion of the trial. Before granting a certificate, a trial judge should consider whether the question certified is capable of serving that overriding purpose. Accordingly, the value judgment ... which the trial judge must make as to whether the decision is 'of sufficient importance to the trial to justify it being determined on an interlocutory appeal' must take into account the extent to which court time and resources would be wasted or rendered unnecessary if the decision proved erroneous and was not immediately appealed.

In the present case the refusal to certify would have had the consequence that the proceedings would have proceeded to a plea hearing on sentence. Hence the only proceeding that might have been rendered unnecessary was a plea in mitigation. Following sentencing, the applicant may have proceeded directly to an appeal against conviction and sought to challenge the ruling on the ground that it would constitute a miscarriage of justice if the plea were allowed to stand. This consideration was relevant to a determination whether an interlocutory appeal was sufficiently important to justify the grant of a certificate. The trial judge evidently entertained some reservation about the correctness of his decision, but that doubt in my opinion was unjustified. As there was to be no trial which would be put at risk as a consequence of his Honour's ruling, it was not in any event a decision that warranted the granting of a certificate for an interlocutory appeal.[2]

7 I respectfully agree.

8 In putting submissions on behalf of the applicant, something he did with admirable thoroughness, Mr Ginsbourg argued that it was relevant and appropriate for this Court to examine the merits of the position of the applicant in the light of the likelihood of the defences which he now postulates being ultimately successful.

9 In my opinion, it is not appropriate for us to enter into that domain, given that some other court may, at some later time, be required to make a final determination of that issue. It is sufficient for us, in my opinion, to say that the case of Middap v R,[3] is in point. In that case, the Court of Criminal Appeal of this Court held that a judge,

when considering whether or not to allow an application to change a plea of guilty, has a wide discretion which must of course be exercised judicially but which when exercised can only be overturned by a higher court if the judge took into account irrelevant matters or failed to take into account relevant matters or otherwise acted upon a wrong principle, with the consequence that there was, or was likely to be, a miscarriage of justice.

10 So far as I am able to say, on the materials available to me, there has been no defect in his Honour's decision which would enable this Court to interfere with the exercise of his Honour's discretion. For these reasons, the application should in my opinion be refused.

WHELAN AJA:

11 I agree, and I have nothing to add.

---

---

[1] [2010] VSCA 165.

[2] Ibid [29]–[30].

[3] (1989) 43 A Crim R 362.