More unenthusiasm for interlocutory appeals

Finn v R [2011] VSCA 68 continues the general trend of the Court of Appeal discouraging the routine use of interlocutory appeals. This time, the appellant sought to challenge a decision admitting evidence of statements by a deceased under s65(2)(b) of the Evidence Act 2008.

Ashley JA rejected the appeal on the following basis:

In my opinion, the judge’s ruling is not attended by sufficient doubt as would justify a grant of leave to appeal. In that connection, I note that: (1) several issues of statutory interpretation which counsel sought to raise do not require investigation in the particular circumstances; and (2) the matter is not one which is suitable for an interlocutory appeal, particularly having regard to what should be a short trial.

Bongiorno JA joined with a short concurring opinion, stating:

This case concerned a transaction that must have occurred within a very short period of time — a few minutes at the most. During the hearing, counsel for the applicant suggested that the trial would take as long as five days. This seems to me an inordinate length of time given the number of witnesses that the Crown proposes to call and the fact that the victim is dead. Even supposing, however, that the trial would take five days, this is not a case where the potential savings in terms of time and costs justified an appeal against the evidentiary ruling given by the trial judge.

Interlocutory appeals are designed to be cost effective, so far as the system of criminal justice is concerned, by eliminating points that may take a long time to determine at trial or by eliminating the need for a trial altogether. In this instance, whilst it was no doubt helpful for the parties to have the opinion of this Court at the time it was sought, the overall system of criminal justice would have been better served if the trial had proceeded, and, in the event of a conviction, the validity of the trial judge’s ruling on evidence had been tested on appeal in the ordinary way.

Hansen JA also made his own observations:

I would add only the further following observations: in the course of his submissions, counsel for the accused made reference to the following issues of interpretation of the Evidence Act; the presiding judge alluded to these matters but it is not necessary to deal with them. It should be clear that we express no view upon them. There were two matters: first, in relation to the proper interpretation and operation of the expression ‘shortly after’ in s 65(2)(b) of the Evidence Act, whether the notion of ‘proximate pressure’ referred to in Williams v R is a concept that is correctly to be included in the interpretation of that provision. I, for one, would not wish to assent to that proposition without consideration, and the present case is not an appropriate vehicle for doing so.

The second is whether reliability is a consideration in the application of s 137 of the Evidence Act. That involves, of course, consideration of the difference between decisions in the Supreme Court of New South Wales and Tasmania respectively and again is an issue upon which it is inappropriate to express a view in this case.

Dr Manhatten has already blogged about this case in the context of discussing when a statement is made 'shortly after'. As his excellent post demonstrates, there are live issues around the reasoning underlying s65(2)(b) and its operation. It's a pity the Court of Appeal wasn't inclined to consider those issues and all we got was that Hansen JA's passing recognition of the issues before pointedly not deciding those issues. The result is that County Court judges will need to continue operating in this environment of ambiguity and there is a risk that future trials will be undone by the two uncertainties that Hansen JA recognises.

While this decision is entirely consistent with the trend of authority, it is alarming that a provision introduced to reduce the trauma of re-trials, encourage parties to identify issues early and in time to resolve the matters prior to trial is being undermined by a restrictive interpretation by the Court of Appeal.. Especially disconcerting is the reasoning of Ashley and Bongiorno JJA that, because the trial would be so short, it is not economically efficient to have an interlocutory appeal and so the Court wouldn't allow one. While I accept the principal that statutes need to be interpreted in a way that gives them practical operation, I struggle to accept the notion that Parliament could not have intended for interlocutory appeals to be used in 'short cases' because that is not cost effective. Surely, even if that analysis were legitimate, the court would need to consider the flow-on costs of a failed trial, including the financial and emotional costs of a re-trial and the costs of any sentence imposed at first instance. These matters would potentially outweigh the cost of a brief, single issue, interlocutory appeal and deserve to be considered in any rejection of an application for leave to appeal on economic grounds.