Don't mention the Charter

Update - Dr Manhatten has also discussed this case - http://www.summarycrime.com/2010/11/wells-v-queen-no-2-charter-points-not.html

In my first post on this blog, I discussed the Court of Appeal's refusal to answer questions referred to it under s33 of the Charter of Human Rights and Responsibilities Act 2006. Last Thursday, the court sought to dissuade practitioners from using another avenue to obtain early and authoritative answers to questions arising under the Charter.


Section 295 of the Criminal Procedure Act 2009 allows the prosecution and the defence to seek leave to bring an interlocutory appeal on any interlocutory decision in a criminal proceeding for the prosecution of an indictable offence. The Act contains two safety-nets to prevent frivolous appeals and reduce the fragmentation of criminal proceedings (something courts have long argued against). First, trial judge must certify that

(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.

Second, under s297, the Court of Appeal must be satisfied that it is in the interests of justice to grant leave, having regard to -

(a)  the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b)  whether the determination of the appeal against the interlocutory decision may-

(i)  render the trial unnecessary; or
(ii) substantially reduce the time required for the trial; or
(iii) resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv) reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and

(c)  any other matter that the court considers relevant.

In Wells v R (No 2) [2010] VSCA 294, the Court considered a second attempt by Rodney Wells to obtain a permanent stay of his upcoming culpable driving trial. The defendant seeks a stay on the basis that a fair trial is impossible, due to the loss or destruction of critical evidence. According to the first decision, after the relevant collision, the police tested the vehicle Mr Wells had been driving, found no defects, and released it to its owner, Thrifty Car Hire. Thrifty, presumably because the vehicle suffered extensive damage and couldn't be repaired, destroyed the vehicle. In the first appeal, Wells v R [2010] VSCA 100, the court concluded that, as matters stood at that time, it was not apparent that the fairness of any trial would be so compromised that a permanent stay was appropriate.

On the second appeal, the defendant argued that the combination of the destruction of both vehicles involved in the collision, his memory loss and the unavailability of a blood sample taken from him soon after the collision would combine to produce an unfair trial. He sought to supplement this argument by reference to the Charter, suggesting that the Charter fair trial principles may be more generous for an accused than the common law. Ashley and Redlich JJA rejected this argument, saying:

Further in support of his application for a permanent stay, counsel for the applicant submitted that Charter provisions intended to ensure that an accused receives a fair trial, provide greater protection to the accused against an unfair trial than do the common law principles applicable to a stay application. Counsel did not proffer any authority for that proposition to the trial judge, nor did he do so before us. In short, counsel advanced no reason, as distinct from mere assertion, in support of his submission that the Charter confers a right more extensive than the common law right that, so far as possible, the accused be afforded a fair trial.
This Court should generally not be expected to entertain arguments involving the application of the Charter on interlocutory appeals. As counsel for both parties to this application conceded, such arguments will usually involve complex questions. The construction of the provisions of the Charter often require substantial research of international jurisprudence and resulting lengthy consideration. The raising of a Charter issue requires the notification, and the possible involvement, of additional entities (including the Attorney-General); and most often significant delay in the trial below. For these reasons, it can be expected that arguments involving the Charter will rarely be appropriate for determination on an interlocutory appeal. The fragmentation of individual trials should be avoided unless there is a compelling reason to the contrary.

In a brief concurring judgment, Weinberg JA expressly supported this point, saying:

I would specifically align myself with the comments made in the joint judgment regarding the unsuitability of Charter points as the basis for interlocutory appeals. That is particularly so when, as appears in this application, little or no thought has been given to whether the particular point sought to be agitated can in any way be supported.

Regrettably, this approach continues the trend started by Practice Note 3 of 2008, which has the effect of placing Charter arguments in a special category of legal argument that are more difficult to raise in running. In August 2008, Associate Professor Jeremy Gans queried the approach taken in the practice note, because "creating barriers to the ad hoc raising of the Charter’s interpretative and conduct mandates as a routine matter in litigation is at odds with the human rights culture the Charter is supposed to foster".

The rationale behind interlocutory appeals is that they allow issues to be brought forward that would otherwise need to wait until a post-conviction appeal. As the second-reading speech for the Criminal Procedure Bill recognised, this can

• prevent guilty people being acquitted,
• prevent innocent people being wrongly convicted, and
• prevent retrials because there was an error at the accused's trial.

All of those benefits are available when the issue arises due to the Charter, and all the more so where the Charter effects a change in the law or a change in the result a law will produce. The court's concern in Wells (No 2) seems focused on avoiding a misuse of the interlocutory appeal process to produce delay. Such delay is one of the chief disadvantages to any fragmentation of the criminal trial process. However, once Parliament has decided that Victoria will have a human rights Charter and Victoria will have interlocutory appeals in criminal proceedings, the court would need to produce clear reasons before saying that interlocutory appeals are not suitable vehicles for raising Charter issues. Sadly, a brief reference to complexity of potential Charter issues, the need to consider international caselaw and the need to notify the Attorney-General do not seem to me to be sufficiently persuasive (curiously, the Court didn't consider s35(2)(a) of the Charter, which says that notice to the Attorney-General is not necessary if the State is a party to the proceedings - In trials on indictment, the State will automatically be a party, since the DPP prosecutes on behalf of the Crown in right of Victoria). After all, why should the burden of considering potentially complex issues that require resort to international caselaw be purely the domain of trial judges? The interlocutory appeal should lift the whole issue from the trial judge to the Court of Appeal and shouldn't exclude a particular angle just because it relates to 'human rights law'. Apart from the distinction being arbitrary, it certainly cuts across this view from Lasry J that all criminal defence lawyers are human rights lawyers.

The combination of Wells and De Simone v Bevnol will make it very difficult for parties to seek authoritative rulings on Charter issues from the Court of Appeal before proceedings are resolved. Once proceedings are resolved, the test for allowing an appeal (such as the need to establish a substantial miscarriage of justice under Part 6.3 of the Criminal Procedure Act) may mean that a wrong decision on a Charter question will not entitle the appellant to relief. Alternatively, if the Charter improves the forensic position of the prosecution, an appeal may not be available (see, for example, this story, where the prosecution cited Charter principles in support of an extension from the three-month window for taking evidence from a child complainant after committal). These limitations reduce the potential for the Charter to have a meaningful impact on Victorian law.

Postscript
While I've focused on the way the court dealt with the Charter issue in this post, the case is well worth reading for several other reasons. First, it provides an interesting example of how a prosecution may run two inconsistent bases of guilt (either manifestly poor driving, or driving while knowingly vulnerable to suffering an epileptic seizure) and establishes that this does not involve an abuse of process. While the court states that contradictory prosecution cases may be forensically disadvantageous, in this case, I suspect that the cases are more likely complementary. The court notes that the jury would need to be unanimous about which basis of guilt it accepts. I have serious doubts about whether a jury could comply with such a direction. If the jury members unanimously agree that one of those two events took place, it stretches credibility to suggest:
A. that individual jurors would be willing to acquit on the basis that they cannot be satisfied beyond reasonable doubt which one occurred, or
B. that the jury collectively would be willing to acquit where (say) half the jury favour one form of criminal negligence, while not being able to exclude the other form, and half take the opposite approach.

Secondly, the court provided some additional insight on how judges must apply the certification test for exclusion of evidence. The trial judge refused to certify that exclusion of certain evidence concerning the defendant's epilepsy, under-medication and the effects of cannabis would not, if ruled inadmissible "substantially weaken the prosecution case". I suspect this decision was strongly motivated by the Court of Appeal's earlier (in my view, surprising) decision in CGL v R (No 2) [2010] VSCA 24, where the court provided this guidance on the application of the "eliminate or substantially weaken the prosecution case" case in s295(3)(a):

In the course of argument, Bongiorno JA suggested that some guidance in assessing whether the exclusion of evidence would ‘substantially weaken the prosecution case’ might be found in considering what effect the loss of the relevant evidence would be likely to have on the view of the Crown as to the propriety of proceeding with the case. With respect, that seems to me to be an illuminating way of approaching this question. If the evidence is of such importance that its exclusion could be properly said to ‘substantially weaken’ the prosecution case, then the situation would presumably be one which called for serious consideration by the Crown about whether the prosecution case should go ahead.

In Wells (No 2), the court held that the trial judge wrongly refused to certify, saying:

Counsel submitted that the objective facts that the applicant’s vehicle, in respect of which there was no evidence of mechanical fault, without apparent cause diverged into the emergency lane whilst travelling at between 93 and 106 kilometres per hour, and there collided with a stationary vehicle, supported the inference that the applicant was grossly negligent in his driving in at least one of the ways alleged in the particulars just noted. That may be so, but were the challenged evidence which bears upon the applicant’s under-medicated state for his condition of epilepsy and the influence of cannabis on his driving removed from the case, the prosecution case would in our view be ‘substantially weakened’. Accordingly, this Court must consider whether the admissibility rulings made by his Honour were attended with sufficient doubt as to warrant this Court granting leave to appeal.

It is unfortunate that the court didn't explain why the exclusion of that evidence would call "for serious consideration by the Crown about whether the prosecution case should go ahead". Perhaps this is a sign that the court is prepared to adopt an approach to the meaning of s295(3)(a) that is closer to the New South Wales approach on its equivalent test under Criminal Appeals Act 1912 s5F(3A). Given that the majority of Weinberg JA's judgment was a call for Parliament to rethink the Victorian interlocutory appeal scheme and move it closer to the New South Wales model (only the prosecution can appeal admissibility of evidence points, otherwise both sides are restricted to appealing "interlocutory judgments or orders", rather than the deliberately broader "interlocutory decision" that the Victorian scheme uses), I'd expect his Honour to be aware of the way the NSW scheme operates and how the court's earlier decision in CGL (No 2) differs from the approach of the NSW courts.