Finn v The Queen [2011] VSCA 68

2 Before us, counsel for the applicant submitted that the various representations were not made, as s 65(2)(b) requires, 'when or shortly after' the asserted facts occurred. The judge had erred in finding the contrary.

3 Counsel argued, second, that the circumstances were not such as to make it unlikely that the representation was a fabrication. Here again - although counsel conceded that the judge had identified relevant considerations - it was submitted that his Honour had erred in finding the contrary.

4 Third, counsel submitted that the judge had erred in not excluding the evidence under s 137 of the Evidence Act 2008.

5 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.

6 In refusing leave to appeal, I would, however, draw attention to the apparent form of the judge's ruling. Having examined the various statements made by the deceased Corbett, including his sworn statement, it appears to me that only fragments of them could be admitted as representations pursuant to s 65(2)(b), Evidence Act 2008. So far as the judge's ruling might suggest the contrary, it ought be read down. It will remain a matter for the judge at trial to consider, consistently with the judge's ruling, what representations within the various statements are to be admitted pursuant to s 65(2)(b). It may be that other parts of the statements are

admissible on different bases. But whether that is so is not before this Court on this application.

7 I agree with Ashley JA and I would only add the following observation.

8 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.

9 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. Otherwise, I agree entirely with Ashley JA.

10 I agree with their Honours in what they have said and I would add only the following few comments. Further to the observations of Bongiorno JA, in my view, this case was not appropriate for an interlocutory appeal, both for the reason that his Honour mentioned, that there was not to be had here, by resort to the

interlocutory appeal process, such an appreciable saving of cost, time and resources as to warrant it, but there is also the fact that, as became apparent, if there was to be an interlocutory appeal, it was brought too early and without consideration of the extent to which the relevant materials were truly to be admitted at the trial.

11 It is incumbent upon those participating in these exercises to actually think the whole matter through to the end conclusion. The potential prospect, I suppose, was that, following this present interlocutory appeal, there may then have been another interlocutory appeal sought, in respect of particular rulings as to what parts of the representations were or were not to be admitted.

12 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[1] 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.

13 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.

14 The formal order of the Court is that the application for leave to appeal

against the interlocutory decision of the County Court dated 14 February 2011

[1] [2000] FCA 1868; (2000) 119 A Crim R 490.