Dertilis v The Queen [2010] VSCA 360

3 The trial commenced on 6 December 2010 with the accused being arraigned and a jury empanelled. It then proceeded until a witness, one Galvin, who was serving a prison sentence, was called. Galvin gave substantive evidence concerning the case against the accused and was then asked to describe something which happened in a prison van in which he, Dertilis and Zarb were being brought to court during Dertilis and Zarb's committal hearing of the charges the subject of their trial. He said that when he got into the van, presumably at the place of his incarceration, he realised that the two people he was to give evidence against were also in the van. The prosecutor had expected, and presumably hoped, that Galvin would give evidence of a conversation between him and Zarb upon which the Crown would rely as an implied admission of guilt, it being in the nature of a threat to Galvin not to implicate him when giving his evidence. He did not expect Galvin's evidence to mention Dertilis, much less describe him as someone he, Galvin, was going to give evidence against.

4 The applicant, who was not implicated in Zarb's alleged threatening conduct towards Galvin, but who was mentioned in front of the jury as being present in the van, sought a discharge of the jury and a new trial on the ground that he was unfairly implicated or might have been thought to be implicated in his co-accused's action in threatening Galvin.

5 Judge Tinney refused the application. Upon that refusal the applicant sought a separate trial. That application was also refused. His Honour also refused to certify either of those decisions pursuant to s 295(3) of the Criminal Procedure Act 2009 for the purpose of an application for leave to appeal to this Court.

6 In his ruling refusing certification, his Honour described the trial as raising essentially the issue of the identity of the accused as participants in offences, the commission of which was not in issue. They both denied any involvement. Galvin, the witness referred to, implicated the applicant's co-accused, Zarb, as being involved in those offences. Although he had earlier made a statement concerning the events in the prison van which implicated both accused, at the first trial, before Judge Howard, he did not give any evidence which implicated Dertilis in the co-accused's threats. Judge Howard discharged the jury and ordered a new trial on the basis of unfairness to the applicant.

7 In the retrial before Judge Tinney, the prosecution intended to lead evidence of the van conversation only against the applicant's co-accused, Zarb. Galvin's inclusion of the applicant, at least by implication, in his co-accused's threats, led to the two applications to which reference has been made.

8 In his extensive and careful ruling Judge Tinney determined that the inclusion of the applicant in Galvin's evidence was inadvertent and that that inclusion did not raise a high degree of need for the jury to be discharged. He also thought that the fact that the jury knew that the applicant was in the prison van did not require the discharge of the jury. Both matters could be sufficiently dealt with by directions to the jury. His Honour outlined what these directions would be.

9 Upon Judge Tinney refusing to certify, counsel for Dertilis sought, and obtained, an adjournment of the trial until 14 December 2010. Hence this ruling has been expedited to enable the trial to resume, if it is to resume, as soon as possible.

10 The applicant commences this application by seeking a review of the refusal of the trial judge to certify and, if that review is successful, an application for leave to appeal. It requires consideration of ss 295(3) and 297 of the Criminal Procedure Act 2009. The first of those provisions provides the criteria for certification of an interlocutory appeal by the trial judge; the second provides the criteria upon which this Court grants leave to appeal. In this instance the only part of s 295(3) which could be relevant is that found in s 295(3)(b) - that the interlocutory decision does not concern the admissibility of evidence but is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal. As for s 297, the relevant provisions are those in ss 297(1)(b)(iv) and, of necessity, 297(2). Section 297(1)(b)(iv) concerns the likelihood of a successful appeal against conviction being reduced if the interlocutory appeal is determined and the accused is convicted. Sub-section (2) directs the Court to refuse leave to appeal in interlocutory circumstances after the trial has commenced unless the reasons for granting leave clearly outweigh any disruption to the trial which the appeal may cause.

11 Here it seems that there is no basis whatsoever upon which a successful challenge to the decision of Judge Tinney could be brought. The conclusion which his Honour reached, that there was not a high degree of need for the discharge of the jury, was a conclusion fully available. His Honour's reasons, as set out in his written ruling, make it clear that he has considered the relevant matters urged upon him in support of an order for discharge of the jury and that he rejected those in favour of the trial continuing.

12 The second application, which was for separate trials, was based essentially on the same matters but in the course of argument it became clear that if the application for a separate trial was granted, some injustice might well be occasioned to the remaining accused. In any event, Judge Tinney's reasons for rejecting that

application are as unimpeachable as his reasons for refusing the discharge application.

13 I would refuse the review sought under s 296 of the Criminal Procedure Act 2009, the effect of which would be that the trial continues without interruption.

14 The judge referred correctly to what was said by this Court in McDonald v DPP[1] and Stannard v DPP[2] as to when it is appropriate for a trial judge to refuse to certify pursuant to s 295(3) of the Act, and noted correctly that a judge should not grant a certificate unless he or she considers that his or her decision is sufficiently attended by doubt to warrant an expedited review of the decision.

15 In this case the judge did not consider that his decisions were so attended by doubt.

16 Like my brother Bongiorno, I consider that the judge was right to refuse to certify and as to whether or not his Honour's rulings were attended by doubt. As at present advised, I am not persuaded that they were.

17 As a rule, it should be rare that a decision of a trial judge to refuse an application to discharge a jury is regarded as being of such sufficient importance to justify determination on an interlocutory appeal. Despite the very forceful submissions put by counsel on behalf of the applicant, as to what were said to be the relatively rare circumstances of this case, I am not persuaded that it is one which warrants an exception. The same is true of his Honour's decision to refuse to order separate trials. In effect, it was the concomitant of his Honour's refusal to discharge the jury, as was ultimately conceded.

18 It is for those reasons, and those given by my brother Bongiorno, that I too would refuse the application for review.

19 For the reasons given I too would refuse the application for review.

20 The order of the Court is that the application pursuant to s 296 of the Criminal Procedure Act 2009 for a review of the decision of Judge Tinney to refuse certification is refused.

[1] [2010] VSCA 45, [15]-[17].

[2] [2010] VSCA 165, [27].