McDonald v DPP [2010] VSCA 45

1 There is an application before the Court for leave to appeal[1] against an interlocutory decision made by a judge in the County Court at Ballarat on 10 February this year. The notice of application states that the learned judge -

...mistakenly relied on case from NSW, and the NSW Constitution.... His Honour... had only relied a Court case in NSW Walker v State of New South Wales County, and the Legislature of New South Wales, has power to make laws for the Aboriginal People, in making his final findings.

2 On 11 February 2010 the learned judge certified, pursuant to s 295 (3)(b) of the Criminal Procedure Act 2009 (Vic) that his decision was -

...otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

3 His Honour described his interlocutory decision as follows:

The accused was presented on two counts of cultivation of a narcotic plant contrary to s 72B of the Drugs, Poisons and Controlled Substances Act 1981. The accused appeared in person and demurred to the presentment on the ground that the allegations contained in Counts 1 and 2 did not make him guilty of any crime because he is of aboriginal descent. He argued that Parliament does not have power to make laws affecting aboriginal people which are inconsistent with aboriginal law. He submitted that cultivating cannabis is permitted under aboriginal law. His application was effectively a motion to quash the presentment. The application was refused, applying s 16 of the Constitution Act 1975 and the dicta of Gibbs J in Coe v Commonwealth 1979 HCA 68 and Mason J (sic) in Walker v New South Wales [1994] HCA 64; (1994) 182 CLR 45.

4 The matter arises this way. The applicant, Mr McDonald, is an indigenous person. About that there is no issue. At the outset of the criminal proceedings against him in the County Court, the applicant, who appeared unrepresented, submitted that as an indigenous person he was not subject to the provisions of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). He alternatively argued that there was a coexisting body of Aboriginal law which had not been broken by cultivating cannabis. He made it clear that he had, indeed, cultivated the small amounts of cannabis in respect of which the two counts on the presentment were laid.

5 In response to his arguments, the Crown relied upon s 16 of the Constitution Act, which provides that -

The Parliament shall have power to make laws in and for Victoria in all cases whatsoever.

6 The Crown also relied upon what was said by Sir Harry Gibbs in Coe v The Commonwealth[2] and what was said by Sir Anthony Mason in Walker v New South Wales[3] - the authorities upon which his Honour in due course relied in his ruling. In each of those cases it was said that the Parliament of New South Wales had power to make laws affecting, inter alia, Aboriginal people. In the latter case it was also held that customary Aboriginal criminal law was not recognised by the common law of New South Wales. All people should stand equal before the law. A construction which would result in different criminal sanctions applying to different persons would offend that basic principle. Thus, 'Australian criminal law does not accommodate an alternative body of law operating alongside it.'[4]

7 After the learned judge had published his ruling, adverse to the applicant, a question arose whether Mr McDonald ought appeal against the decision. It was not in dispute that the decision was an interlocutory decision.[5]

8 His Honour stated on more than one occasion, in the course of the discussion which followed, that it seemed to him that the law was very clear, and entirely opposed to the applicant's contentions. In a way that was evidently intended to be helpful to the 69 year old applicant, his Honour told Mr McDonald that it seemed to him that the law was 'as clear as crystal'. It was the judge's opinion that -

...if you went off to the Court of Appeal they would say that what I've said, that the law is clear. There is no room for any argument and so they'd send you back here.

You understand that in my opinion, if you take the interlocutory appeal route inevitably you will be back here next week.

9 His Honour discussed with counsel for the Crown whether the circumstances fell within s 295(3)(b) of the Criminal Procedure Act 2009 (Vic), which relevantly provides -

A party may not seek leave to appeal unless the judge who made the interlocutory decision certifies -

(b) ....that the interlocutory decision is ... of sufficient importance to the trial to justify it being determined on an interlocutory appeal.

10 Counsel submitted that the likelihood of success was very low. His Honour responded - 'Yes but that doesn't seem to be encompassed.' Counsel then conceded that the point was 'fundamental to [the applicant's] case', whilst restating his argument that an appeal would have, 'an extraordinarily small chance of success'. But then counsel appeared to concede that to bring prospects of success to account when considering the application of s 295(23)(b) 'seems to be stretching, or distorting perhaps, the terminology in the section.'

11 It was in those circumstances that his Honour certified the interlocutory decision.

12 The judge having so certified, this Court must consider whether leave should be given to Mr McDonald to appeal against the decision. It may only give leave if it is satisfied that it is in the interests of justice to do so; see s 297(1) of the Act. In determining where the interests of justice lie, the Court is to have regard to the matters set out in paragraphs (a) to (c) of s 297(1).

13 In my opinion the Court ought not grant leave to appeal in this matter. The arguments which Mr McDonald pursued before the judge below and which he now wishes to pursue again, were - and I intend no disrespect to Mr McDonald - hopeless in law, for the reasons which the judge gave. The interests of justice would not be served by further agitating a point the inevitable resolution of which would not render the trial unnecessary.

14 This should be added: his Honour was correct when he told Mr McDonald that, despite the latter's strong feelings about the matter, the law was simply not his way. In the circumstances, as it seems to me, the judge should not have given a certificate in this matter under s 295(3)(b).

15 It is, I think, correct to say that if the judge concludes that the decision meets the statutory description in paragraph (b) - that is, 'that the decision is...of sufficient importance to the trial to justify it being determined on an interlocutory appeal' - then the judge must certify. At that point, no question of the exercise of a discretion arises. But in determining whether the circumstances fit the description in paragraph (b), the judge is required, as I see it, to make what may be called a value judgment.

16 In this case, the judge was rightly of the opinion that an appeal would be quite hopeless. In those circumstances, it could not have been concluded, and should not have been concluded by his Honour that the decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal. An argument, if accepted, may be such as would render a trial unnecessary. But if the argument is without any merit, it cannot be said that it possesses the quality of 'sufficient importance to the trial' which is required by paragraph (b).

17 I should finally make this observation. Nothing that I have said should be taken to mean that, if a judge considers an unsuccessful argument to have been something better than absolutely hopeless, the statutory description will necessarily be satisfied. Nor should it be taken to imply that the value judgment must necessarily be confined to consideration of prospects of success. Simply, there should not have been certification in the present case because, as the learned judge rightly concluded, the point raised lacked any legal merit.

18 I agree with Ashley JA, for the reasons he gives, that leave to appeal should be

refused. I refer only to Mr McDonald's argument that Coe v The Commonwealth[6] and Walker v New South Wales,[7] are inapplicable in Victoria because those cases were concerned with the power of the New South Wales Parliament to enact laws for the peace, order and good government of New South Wales.

19 As the learned trial judge correctly recognised, the reasoning in Coe and Walker applies across Australia, despite the fact that the Constitution Act 1975 does not refer to 'peace, order and good government', but confers power on the Parliament to 'make laws in and for Victoria'.[8] It follows that Mr McDonald's claim that the Drugs, Poisons and Controlled Substances Act 1981 does not apply to indigenous people in Victoria was, as Ashley JA has said, entirely hopeless. In these circumstances it would not be in the interests of justice for this Court to grant leave to appeal from the interlocutory decision of the judge below. Leave to appeal should be refused.

20 I agree for the reasons given by the learned presiding judge and Justice Neave, that leave to appeal should be refused. I also agree with the conclusion expressed by Justice Ashley that this is a case in which the learned trial judge ought not to have certified. The words 'otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal' contained in s 295(3)(b) require the trial judge, amongst other things, to make a value judgment about the interlocutory decision which he or she has given.

21 As this case indicates, where the trial judge is of the view that the interlocutory decision is so plainly correct that the argument to the contrary is hopeless or foredoomed to fail, it is not an appropriate case in which to grant a certificate. In other circumstances, the trial judge is required to assess the relative

merit of his or her conclusion and the degree to which it could be said that his or her decision is attended by doubt. I would not wish it to be understood that because a trial judge concludes that their decision may be attended by some doubt, that it necessarily follows that a certificate should be granted.

22 The order of the Court is that the application for leave to appeal is refused.

[1] And, if leave was granted, then the appeal itself.

[2] [1979] HCA 68; (1979) 24 ALR 118.

[3] [1994] HCA 64; (1994) 182 CLR 45.

[5] Neither was that in debate in this Court.

[6] [1979] HCA 68; (1979) 24 ALR 118 ('Coe').

[7] [1994] HCA 64; (1994) 182 CLR 45 ('Walker').

[8] Section 16.