C G L v DPP

2 The issue sought to be ventilated if leave to appeal were granted concerns the conclusion arrived at by the trial judge in applying s 85(2) of the Evidence Act 2008 (Vic). It has been conceded by the prosecution that s 85 is applicable, by reason of sub-s (1)(b). In the course of a recorded conversation, it is common ground, the accused is heard to make an admission of sexual offending against Complainant B, though it is an admission in the most general of terms. The question debated before the judge was whether 'the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected'. The judge was satisfied that the truth of the admission was unlikely to have been adversely affected, and it is that conclusion which is sought to be challenged.

3 An application for leave to appeal against an interlocutory decision is not available unless a certificate has been given under the applicable part of s 295(3). Since the interlocutory decision concerned the admissibility of evidence, the judge was required to decide whether the evidence 'if ruled inadmissible would eliminate or substantially weaken the prosecution case'. Accordingly, when counsel for the applicant told the trial judge that he had instructions to make an application for leave to appeal, he sought from the judge the necessary certificate under sub-s (3) of CPA s 295. His Honour evidently considered that the evidence had the requisite character, as he certified in the terms of the sub-section. His Honour did not give any reasons for having come to that view.

4 It is clear that Parliament, in dealing separately in s 295(3)(a) with interlocutory decisions concerning the admissibility of evidence, intended that decisions of that kind be treated as a special category for the purposes of interlocutory appeals. Moreover, Parliament clearly intended that, before a certificate was granted under that sub-section, the judge would evaluate the significance of the evidence in question.

5 It was obviously necessary to establish a threshold test before evidentiary questions could be the subject of an interlocutory appeal. Otherwise this Court would be inundated with applications for leave to appeal regarding evidentiary decisions of the multifarious kinds which are made every day in many criminal trials. It is important, therefore, that trial judges and prosecutors exercise very real vigilance as to how s 295(3)(a) is applied, lest the work of this Court become bogged down, in a way Parliament cannot possibly have intended, with applications for leave to appeal against evidentiary rulings.

6 The threshold test is whether the evidence 'if ruled inadmissible would eliminate or substantially weaken the prosecution case'. The provision is not confined to decisions which rule evidence inadmissible. Rather, it is applicable to evidentiary rulings either to admit or to exclude evidence. In either case, the statutory question which must be addressed is as follows: is this evidence of such significance that its exclusion would eliminate or substantially weaken the prosecution case?

7 Here the judge admitted the evidence. He had therefore to ask himself this question: if the evidence had been excluded, would that have eliminated or substantially weakened the prosecution case?

8 It is not appropriate in a ruling given ex tempore, particularly not on the first occasion on which this Court has had to consider the scope of s 295(3)(a), to attempt to give any authoritative guidance as to how this threshold test is to be applied.[1] The jurisprudence will develop on a case-by-case basis. It is sufficient to record my view that, whatever the scope of the phrase 'substantially weaken' might be, the present case falls outside that scope.[2]

9 The prosecution case against the accused on this presentment is founded on the evidence of Complainant B, and on evidence of recent complaint by her. The evidence of the admission is, as the prosecutor properly conceded before us, quite powerful evidence for the prosecution, particularly in the context of uncorroborated allegations of sexual offending many years ago. Senior counsel for the applicant went so far as to say that there was 'no more powerful weapon' in the hands of a prosecutor, at least in a case like this, than evidence of an admission by the accused.

10 It is unnecessary for the purpose of these reasons to express any view about just how significant a piece of evidence the admission might be. The prosecutor properly concedes that it is of real assistance to the prosecution case to have the confession evidence. But the foundation of the prosecution case is the evidence of the complainant who, the Crown consider, is a credible witness. It would seem likely that, if the evidence of the complainant were accepted by the jury, the prosecution case would be made out. In the circumstances, the exclusion of the admission would clearly not have eliminated the prosecution case, nor can it be said that its exclusion would have 'substantially weakened' the prosecution case.

11 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.

12 Whether that is in the end an appropriate way to test this question will require further consideration. His Honour having raised that question, however, the prosecutor indicated to the court that, as the prosecutor responsible for this case, she would have had no hesitation at all in proceeding with the case had the confession evidence been excluded. With respect, that seems to me to be an unsurprising response in the circumstances. Taking the evidence of the complainant at face value, the prosecution case would have retained very real strength, and would not have been 'substantially weakened', had the admission evidence been excluded.

13 The certificate under s 295(3)(a) is an important element in the management of this new procedure. Although we have no formal function of reviewing the grant of a certificate (in contrast to our function under s 296 of reviewing a refusal to certify), it will ordinarily be relevant on an evidentiary application of this kind to examine the significance of the evidence by reference to the test in s 295(3)(a). If, as here, this Court comes to a different view about the significance of the evidence in question, that is likely to bear heavily on the exercise of the discretion under s 297(1) to grant or refuse leave to appeal. Accordingly, it seems to me to be important that a judge who certifies that the evidence is of the requisite character should give this Court some indication of why he or she came to that view. The reasons can be quite short but should be sufficient to explain how the judgment about the importance of the evidence was arrived at.

14 This interlocutory decision was made after the trial had commenced. The judge said so in his orders. That circumstance brings into operation the provisions of s 297(2), which prohibit this Court from giving leave to appeal 'unless the reasons for doing so clearly outweigh any disruption to the trial'. We have been told that, after making this ruling and evidently in anticipation of the time he expected it would take to have the application for leave to appeal heard, his Honour discharged the jury and the trial came to an end. (A new jury has been empanelled, however, and for that reason we have heard this application urgently.)

15 This Court will need to develop a means of dealing with applications for leave to appeal, made after trials have commenced, in a way which does not make the termination of the trial almost inevitable upon the making of the application for leave to appeal. We will do so in consultation with our colleagues in the trial division and in the County Court. Naturally a judge does not want to keep a jury sitting around. On the other hand, the clear contemplation of Parliament in s 297(2) is that the trial should be capable of being continued if leave to appeal is refused.

16 Finally, I should mention that we had some submissions directed at the criteria in s 297(1)(b). The only criteria of relevance were those in sub-ss (b)(iii) and (b)(iv). It is unnecessary on this application to consider those discretionary criteria since, for the reasons I have given, this was not an evidentiary ruling of the kind which should have come to this Court on an application such as this.

17 For those reasons I would refuse the application for leave to appeal.

18 I agree. If the admission were ruled inadmissible there remains the core of the Crown case, that is, the direct evidence of the complainant of the offences admitted by the accused. I do not think that the prosecution case would be substantially weakened if the Crown case proceeded without the admission.

19 In general terms I am of the view that interlocutory appeals should not be automatically available to rule on every contested admission of probative but not essential evidence.

20 I agree with the presiding judge and would simply add that certificates by a trial judge must not be seen as a mere formality. A certificate should only be granted when the trial judge is satisfied that the appropriate criteria for certification have been met. The certificate should be accompanied by concise but adequate reasons

articulating why the criteria have been met and why the certificate should be given. If that cannot be done there should be no certificate.

21 The order of the court will be: application for leave to appeal refused.

[1] The same phrase appears in s 5F(3A) of the Crimes Act 1900 (NSW). Under that provision, however, only the Crown can bring an interlocutory appeal on an evidentiary ruling.

[2] Cf R v SJRC [2007] NSWCCA 142, where a similar question arose in quite different factual circumstances, and a different conclusion was reached.