Cook v The Queen [2019] VSCA 87 (16 April 2019)

Last Updated: 16 April 2019

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0209

MICHAEL CALVERT COOK Applicant v THE QUEEN Respondent

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CRIMINAL LAW – Interlocutory appeal – Pending trial for causing injury to two prison officers – Applicant, by choice, to be self-represented at trial without counsel or solicitor appointed by Victoria Legal Aid – Filed indictment contains charges different from those upon which the applicant was committed for trial – Whether trial judge erred in refusing a permanent stay of proceedings – Whether trial judge erred in admitting photographic evidence where photographer could not recall taking one of the photographs in a bundle – Whether trial judge erred in refusing an order under s 197 of the Criminal Procedure Act 2009 that Victoria Legal Aid provide the applicant with $5,000 to purchase a suit and for other expenses – Leave to appeal refused – Interlocutory appeal against a refusal under s 197 is incompetent – Term ‘legal representation’ in s 197 is not broad enough to embrace the provision of clothes, stationery and similar – Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292; Vasilou v The Queen [2014] VSCA 22; Victoria Legal Aid [1998] 4 VR 517; Victoria Legal Aid v Beljajev [1999] 3 VR 764 considered.

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APPEARANCES: Counsel Solicitors For the Applicant In person For the Respondent Mr P A Stefanovic Mr J Cain, Solicitor for Public Prosecutions

PRIEST JA

BEACH JA:

Introduction

1 An indictment filed in the County Court charges Michael Calvert Cook, the applicant, with two charges of intentionally causing injury (charges 1 and 3), and, alternatively, recklessly causing injury (charges 2 and 4). The prosecution alleges that on 9 October 2016, when he was a prisoner at Barwon Prison, the applicant caused injury to two prison officers, Alessandro Pantano (charges 1 and 2) and Divye Ratan (charges 3 and 4).

2 The applicant has chosen to represent himself at trial. He has not sought to have counsel or solicitor appointed by Victoria Legal Aid (‘VLA’) represent him.

3 For the purposes of this application it is unnecessary to describe the prosecution case in detail. It is enough to say that it is alleged that the applicant struck both Mr Pantano and Mr Ratan several times to the head. Photographs allegedly depicting their injuries were taken the same day.

4 When the matter came before the trial judge on 1 October 2018, the applicant sought: first, an order under s 197 of the Criminal Procedure Act 2009 (‘CPA’), that he be provided with $5,000 by VLA so that he could buy clothing and stationery, arrange for the attendance of a fellow prisoner as a ‘McKenzie friend’,[1] and obtain an expert medical witness; secondly, an order that certain photographs be excluded from evidence; and, thirdly, a permanent stay of proceedings.

5 On 3 October 2018, the judge refused each of the orders that the applicant had sought (‘the ruling’ or ‘the interlocutory decision’). The judge also refused the applicant’s request for certification under s 295(3) of the CPA.

6 Pursuant to s 295(2) of the CPA, the applicant seeks leave to appeal the interlocutory decision; and, under s 296(1), also seeks a review of the decision to refuse certification.

7 There are three handwritten ‘grounds’ in the notice of application for leave to appeal as follows:[2]

NO COMMITTAL FOR 2 CHARGES OF INTENTIONAL NO CONTINUITY IN FOTOS FAIRNESS, TO BE ON A LEVEL PLAYING FIELD WITH MY COMPETITOR

8 In his handwritten notice of application for review of the refusal to certify, the grounds of the application for review are:

REFUSAL OF FUNDING

REFUSAL OF FUNDING REFUSAL OF A STAY PERMANENT

REFUSAL OF A STAY PERMANENT REFUSAL TO EXCLUDE FOTO’S

9 And in his handwritten Summary of Contentions, the applicant states:

The basis of the interlocutory [appeal] is to challenge 3 rulings/decisions made by Judge F. Gucciardo. They are: Refusal to grant $5000 via s 197 in CPA, refusal to exclude photos & refusal to grant a permanent stay.

10 We understood the applicant’s essential contentions in this Court to be that:

• first, the proceeding against him should be permanently stayed, since it was an abuse of process to file an indictment containing charges upon which he had not been committed;

• secondly, since the prosecution are unable to provide the identity of the person who took photographs of Mr Ratan’s alleged injuries, the photographs should not be admitted into evidence; and

• thirdly, the trial judge was wrong to conclude that s 197 of the CPA did not empower him to order VLA to provide the applicant with the financial resources necessary to obtain clothing, stationery and ‘an assistant’.

11 In our opinion, these contentions are without merit. Moreover, we consider that the purported appeal against the refusal of the order under s 197 is incompetent. Our reasons for those conclusions follow.

Refusal of a permanent stay

12 To understand the applicant’s arguments concerning a permanent stay, it is necessary to understand some of the history of the proceeding.

13 Initially, the applicant faced two charges of recklessly causing injury. On 14 June 2017, a magistrate commenced to conduct a summary hearing of those charges. In the course of that hearing, witnesses were called and cross-examined by the applicant. After the summary hearing had been proceeding for some time, however, the magistrate realised that the applicant’s consent to a summary hearing had not first been obtained, so that she was without jurisdiction to determine the charges in a summary manner.[3] (By that stage, Mr Pantano had given evidence and been cross-examined by the applicant, and the applicant was part way through his cross-examination of Mr Ratan.) When the magistrate then asked the applicant whether he consented to a summary hearing and determination of the charges, the applicant said that he did not.

14 In the result, the matter was adjourned and an order was made that a hand-up brief be served by 26 July 2017. Thereafter, at committal mention on 21 September 2017, the applicant entered a plea of guilty to the charge of recklessly causing injury to Mr Pantano, and not guilty to recklessly causing injury to Mr Ratan. He did not seek a contested committal involving the cross-examination of witnesses. The magistrate committed the applicant to a directions hearing at the County Court on 31 October 2017. At that stage the applicant was not charged with intentionally causing injury.

15 The present indictment containing the charges of intentionally causing injury was signed by a Crown Prosecutor on 30 October 2017. At the directions hearing which had been fixed for the next day, 31 October 2017, various administrative and other matters were discussed, although the form of the indictment was not one of them. At a subsequent directions hearing on 20 November 2017, however, the applicant complained that he had not been committed on charges of intentionally causing injury and that those charges should not be on the indictment.

16 When the matter came before the trial judge on 1 October 2018, the applicant sought a permanent stay of proceedings. Although his arguments are a little difficult to follow, he argued that he had been denied procedural fairness. The charges of intentionally causing injury were not contained in the ‘brief’ that he received. Had they been, he could have chosen to cross-examine witnesses, and the magistrate could have reviewed the evidence to determine whether it was sufficient to commit him for trial on those charges. He had been denied the right to possibly have the charges ‘thrown out’ by the magistrate.

17 Prior to ruling, the judge had the applicant arraigned. When asked how he pleaded on the charges of intentionally causing injury, charges 1 and 3, the applicant said on each occasion, ’I’m not acknowledging that charge’, so that the judge recorded pleas of not guilty on those charges. The applicant also pleaded not guilty to charge 4, recklessly causing injury to Mr Ratan, but pleaded guilty to charge 2, recklessly causing injury to Mr Pantano.

18 When refusing the application for a permanent stay, the judge said:

This is my brief ruling on his application to a stay. The obligation on a court is to provide a fair trial in accordance to law, in order that the court’s processes are not tools or causes of oppression or injustice. The obligation is not to provide a perfect trial, but to provide a fair trial. The concept of abuse of process overlaps with the obligation to provide a fair trial. In this case the purported abuse as identified by Mr Cook is centred on the indictment which has been filed and upon which he has been arraigned and pleaded. Where proceedings have been regularly commenced an obligation arises on the court to exercise its jurisdiction and determine the matter to which the proceedings give rise to. In my view the trial on the current presentment [scil, indictment] can be conducted fairly irrespective of the way in which the matters proceeded in the Magistrates’ Court. In my view Mr Cook was not deprived of an opportunity to have charges of intentionally cause injury struck out. They had not been laid by the time of the proceedings before the magistrate. When the matter came for committal Mr Cook made a choice not to further cross-examine witnesses. His assertion that at that stage he may have taken a different course if the charges he faced included intentional cause injury as well as reckless cause injury and therefore that he lost an opportunity [d]oes not sustain an application for a stay of the current proceedings. ... The Director of Public Prosecution may file an indictment for more serious or different offences as to the mental element and has done so here. And they are different from what the accused was committed for. This is a proper exercise of prosecutorial discretion [and] does not justify a stay of proceedings. The process of preparing and filing indictments is not susceptible to judicial review. And the court has no role to play until the indictment is filed. In this sense, Mr Cook misconceives a permanent stay as an opportunity to review the prosecutorial decision to commence proceedings in a particular form. The court can only properly focus on the then continuation of proceedings on whether the continuation of proceedings would be an abuse of process. In my view it would not. In this sense a permanent stay [was] sought to punish the prosecution as a remedy for what is perceived to be unfair case management. There is here no abuse of process and I refuse to exercise my discretionary power to grant a stay.

19 In our opinion, the trial judge’s decision to refuse a stay was undoubtedly correct.

20 By s 5 of the CPA, a criminal proceeding may be commenced by filing or signing a charge sheet,[4] or by filing a direct indictment[5] in accordance with s 159 of the CPA.[6]

21 In this case, the proceeding on the charges of recklessly causing injury was commenced by filing the charges in the Magistrates’ Court (resulting in the applicant’s committal to the County Court), and the proceeding on the charges of intentionally causing injury was commenced by the filing of the present indictment. As we have said, the applicant complains that, as a result of being directly indicted on the charges of intentionally causing injury (charges 1 and 3), there has been an abuse of process.

22 A court cannot examine the exercise of power to file a direct indictment. Thus, Latham J (with whom Whealy J agreed) said in Director of Public Prosecutions (NSW) v PM:[7]

23 In some circumstances — an indictment being filed without antecedent committal proceedings being recognised as potentially one such circumstance[8] — a direct indictment may be stayed as an abuse of process. But it has also been recognised that a trial without an antecedent committal will not necessarily be unfair.[9] Thus, Coldrey J observed in Dupas:[10]

[A]s was made clear in Barton v R,[11] although the decision by an Attorney-General (and now by analogy a Director of Public Prosecutions) to initiate proceedings by direct presentment is not susceptible to examination by a court, once the criminal proceeding is before the court it has the power to control that proceeding in order to ensure that an accused receives a fair trial.[12] The theme of the judgments in Barton’s case is of the capacity and responsibility of a court to regulate the criminal process in order to accord an accused person a fair trial. The question with which the High Court grappled in that case was whether the conduct of a committal hearing was a necessary prerequisite for a fair trial. Despite the fact that this decision was prior to the introduction of the hand-up brief containing statements of prosecution witnesses on oath and was before the adoption of the Basha inquiry, none of the judges expressed the view that a committal hearing was essential for a fair trial.

24 In the well-known and oft-cited case of Basha, the respondent had been committed for trial on a drug charge after the supply of heroin to an undercover officer. At committal, the undercover officer was not called, but other police who observed the relevant meeting between the undercover officer and the respondent gave evidence. Prior to the respondent’s trial in the District Court (NSW), the prosecution indicated its intention to call the undercover officer as a witness. The trial judge regarded this move by the prosecution as prejudicial to a fair trial and directed that the case be returned for fresh committal proceedings, prompting an appeal by the DPP to the Court of Criminal Appeal (NSW). Hunt J (with whom Carruthers and Grove JJ agreed) held that the District Court judge had no jurisdiction to direct that there be a fresh committal. The power to prevent an abuse of process by staying an indictment was, however, recognised. Hunt J said:[13]

There can be no doubt that the District Court has power to ensure the fair trial of charges to be heard before it and, where it is necessary to do so to prevent an abuse of process, to stay proceedings on the indictment: Barton [1980] HCA 48; (1980) 147 CLR 75 at 95–96. The onus is upon the accused in such cases to demonstrate that the disadvantage or prejudice which he would suffer during the course of such a trial is in the relevant sense unacceptable to the extent that the trial would be unfair: Barron v A-G (1987) 10 NSWLR 215 at 219, 233; 29 A Crim R 230 at 233, 247. The exercise of that power is not limited to cases in which there have been no committal proceedings. The power to stay may be exercised where, for example, the Crown has failed to supply proper particulars and thereby created prejudice to the accused. In such a case, the stay would continue until such particulars have been supplied. Similarly, if there has been a committal by the magistrate but the trial judge concludes that for some reason those committal proceedings were not properly conducted and that, as a result, there has been unacceptable prejudice to the extent that the trial would be unfair, the judge may stay proceedings upon the indictment until that prejudice has been removed. ...

25 Hunt J went on to observe that one way a trial judge might ameliorate prejudice to an accused in the absence of an adequate committal is by permitting a new witness to be cross-examined on a voir dire. He said:[14]

... But a trial judge before whom an indictment is to be presented (be it in the Supreme Court or the District Court) does have power to stay proceedings upon that indictment until the prejudice created by the insufficiency of the committal proceedings already undertaken has been removed. In the appropriate case, the exercise of that power may indirectly force the Crown either to lay a fresh information or to apply to the Supreme Court to set aside the committal order already made. It is obvious, however, that there would usually be many other, more efficient, ways in which that prejudice might be removed. I have myself in the past permitted an accused to cross-examine a new witness on a voir dire before he was called in the trial. We have been told that other judges have also done so, prior to any evidence being called in the trial. Just how the prejudice is to be removed is for the Crown, not the courts, to determine. On the other hand, of course, the issue of whether the prejudice has in fact been removed will in the end be for the trial court, not the Crown, to decide.

26 Although the common law procedure described in Basha has been abolished by s 198C of the CPA, a not dissimilar mechanism is now provided for by s 198B. Under s 198B, an accused may apply to the court for an order before or during trial that he or she cross-examine a witness. The court must not make the order sought in the application unless the court is satisfied that it is necessary to do so in order to avoid a serious risk that the trial would be unfair (s 198B(3)). In determining whether it is necessary to make the order sought in the application in order to avoid a serious risk that the trial would be unfair, the court must have regard to the purposes of a committal proceeding and the limitations that apply in relation to cross-examination of a witness at a committal hearing (s 198B(4)).

27 The power to grant a permanent stay is one to be exercised only in the most exceptional circumstances,[15] and only in circumstances where there is a fundamental defect confronting the trial such that nothing the trial judge can do in the conduct of the trial can relieve against its unfair consequences.[16]

28 Insofar as the applicant in effect complains that he was denied a full opportunity to cross-examine witnesses at committal, any unfairness in the conduct of the trial flowing from that supposed denial is plainly capable of being remedied by the trial judge permitting the applicant a further limited opportunity to cross-examine those witnesses whose evidence has not yet been adequately tested in a preliminary way. A permanent stay could not be granted in the circumstances of this case based on the denial of an opportunity to cross-examine.

29 Furthermore, the applicant’s contention that he was denied the opportunity of being discharged at committal by the magistrate had the charges of intentionally causing injury been before the Magistrates’ Court is somewhat chimerical. In the circumstances of this case, there is absolutely no prospect that a magistrate might have discharged the applicant on those charges whilst at the same time committing him on the charges of recklessly causing injury (intention and recklessness pre-eminently being jury questions).

30 Finally, insofar as the applicant may have contended that the charges of intentionally causing injury and the alternative charges of recklessly causing injury were not properly joined, that contention is without substance. Clause 5(1) of Schedule 1 of the CPA permits an indictment to contain charges for related offences, defined in s 3(1) to be ‘offences that are founded on the same facts or form, or are part of, a series of offences of the same or a similar character’. It cannot sensibly be advanced that charges 1 and 3, and charges 2 and 4, are other than related offences.

Admissibility of photographs

31 There is nothing in the applicant’s complaints concerning photographs.

32 The prosecution seeks to rely on a bundle of 16 photographs of the injuries allegedly caused by the applicant to the two prison officers, Mr Pantano and Mr Ratan. It is anticipated that another prison officer, Alistair Leach, will give evidence that on 9 October 2018 he took photographs numbered 1 to 4 of Mr Pantano, and photographs 11 and 13 of Mr Ratan, showing injuries to them. He cannot, however, recall taking photograph numbered 12 (depicting an elbow). It is also anticipated that the informant Detective Senior Constable Daryl Crosthwaite will give evidence that he took others in the bundle.

33 Since Mr Leach cannot say that he took photograph 12, the judge ruled that photograph inadmissible. All of the other photographs were held to be admissible, however, in circumstances where the two photographers were to be called to give evidence of their taking. The judge rejected the applicant’s arguments, first, that photos 11, 12 and 13 should be excluded because there is an ‘unknown photographer’ who took photo 12, and because 11 and 13 appear to be ‘in a series with No.12’; and, secondly, that there should be corroborative evidence from other witnesses as to taking of all photos.

34 Given that it is anticipated that the photographs (other than number 12) will be verified by the photographers, there can be no sensible argument that they are inadmissible.

An interlocutory appeal against a refusal under s 197 is incompetent

35 In our opinion, the purported application for leave to appeal against the refusal of an order under s 197 of the CPA is incompetent.

36 Before turning to the reasons for that conclusion, however, it is necessary to say a little about the application made to the trial judge. With respect to his application under s 197 of the CPA, the applicant put the following submissions to the judge (among others):

I might get away with my charm half the time, but I don’t think it’s going to suffice in a criminal trial where looks and appearances from jury members looking on, trying to maybe build rapport or maybe just try and understand and maybe even respect the words that come out of my mouth, aren’t going to have the same effect as [prosecuting counsel] here with the full power of the state and the government and his assistant in his $5000 suit, shirt and tie and books and all that at the Bar table, with me in the dock in greys and whites. That’s essentially — that’s part of the funding request I have. Also that I be able to have an expert witness of my own to be able to combat their expert witness — their two expert witnesses, [named doctor] and the other doctor. So I would like to have an expert witness of my own — medical expert witness, perhaps a nurse or other — which otherwise would be able to refute or battle their testimony. And the third part of my funding is that I have money for — a suitable amount of money for stationary (sic), so I can put money on the phone, correspond with people on the outside, you know friends and/or family to be able to assist me with my case, ‘cause I’m representing myself. You know, I find it hard to — some weeks to buy a cup of coffee — to buy coffee and other things and all I need all I want is just what’s fair. You know, that’s what I’m fighting for. I’m just fighting for what’s fair, for me to receive a trial. And I need — I need you to order there alone — under that section I just said before those three things for me to receive a fair trial.

37 A representative of VLA informed his Honour that VLA had not ‘received any request for funding for legal representation’, but ‘did receive a letter enclosed from the court on behalf of Mr Cook asking for those items that he has already specified today; clothing, expert witness, stationery, et cetera’. She also told the judge that a managing lawyer at VLA had specifically advised the applicant that VLA was ‘not able to assist with the funding that has been requested’. VLA’s position was that the expression ‘legal representation’ in s 197 of the CPA was not so broad as to cover the things sought by the applicant.

38 The judge refused the application, observing that ‘what the court may order under that section is legal representation to an accused, understood as a person, a lawyer or legal practitioner’.

39 Plainly, the judge was correct. Read in context, the expression ‘legal representation’ embraces only the process by which legal practitioners represent the accused facing trial for an indictable offence. It is not broad enough to embrace the provision of clothes, stationery, a ‘McKenzie friend’ or an expert witness (except as an incident of providing legal representation).

40 If it were to be assumed that an appeal against the interlocutory decision relating to s 197 was competent, this conclusion would be sufficient to dispose of the present application. But as we have indicated, there is a more fundamental obstacle in the applicant’s way, since, for the reasons that follow, we consider that the purported appeal is incompetent.

41 The starting point of any analysis must be s 197 of the CPA, and its forerunner, the repealed s 360A of the Crimes Act 1958.

42 Section 197(3) of the CPA permits both the County Court and the Supreme Court to order that VLA provide legal representation to an accused facing trial on indictment; and s 197(7) provides a legislative mechanism by which VLA may appeal to this Court from an order under s 197(3).

43 Hence, if a judge of the Trial Division of the Supreme Court orders VLA to provide legal representation to an accused under s 197(3), VLA may appeal by leave to this Court under s 197(7), which provides:

(7) Despite anything to the contrary in this or any other Act, Victoria Legal Aid may appeal to the Court of Appeal, if the Court of Appeal gives leave to do so, from an order under subsection (3) made by the Trial Division of the Supreme Court constituted by a Judge.

44 Significantly, s 197 gives no corresponding right of appeal to an accused person who is refused an order under subsection (3). And also significantly, no right of appeal is reserved by s 197 to either VLA or an accused person with respect to an order under subsection (3) made by a judge of the County Court. To understand the reason for that state of affairs, it is necessary to trace the history of s 197.

45 In Dietrich,[17] the High Court held that the power of a trial judge to stay criminal proceedings that will result in an unfair trial extended to the case of an indigent accused charged with a serious offence who, through no fault on his or her part, is unable to obtain legal representation. The Court held that, if representation by counsel on the trial of a serious offence is necessary to avoid an unfair trial, a trial judge should adjourn, postpone or stay the trial until legal representation is available. In that case, the appellant had applied unsuccessfully to the Legal Aid Commission of Victoria for legal assistance on his trial for importing not less than a trafficable quantity of heroin, and was also unsuccessful in seeking reconsideration of the Commission’s refusal on a review of its decision. The appellant was unrepresented at his trial, and an application by him for an adjournment was refused. It was held that the failure to adjourn the trial resulted in an unfair trial.[18]

46 Dietrich provoked a legislative response, resulting in the enactment of s 360A of the Crimes Act 1958 (since repealed).

47 Section 360A(2) of the Crimes Act 1958 — which was expressed in terms very similar to s 197(3) of the CPA[19] — became the previous repository of a court’s power to order VLA to provide representation to an accused person. It was considered by this Court in Victoria Legal Aid v Lewis.[20] In that case, the Court determined that VLA enjoyed no right of appeal against an order of a judge of the Supreme Court made pursuant to that section. At the time that Lewis was decided, s 360A contained no provision equivalent to s 197(7). Further, no legislation contained any power akin to those found in ss 295 to 301 of the CPA to appeal against an interlocutory decision in a criminal case. A judge of the Supreme Court had ordered VLA to provide legal representation to an accused facing trial for murder. VLA purported to appeal against the decision, relying on ss 17(1) and (2) of the Supreme Court Act 1986, which at that time were in the following terms:

(1) The Trial Division constituted by a Judge may hear and determine all matters, whether civil or criminal, not required by or under this or any other Act or the Rules to be heard and determined by the Court of Appeal. (2) Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge.

48 The Court was of the view, however, that an appeal was precluded by s 17A(3) of the Act, observing:[21]

We are content to assume, without expressing any opinion on the question, that the order made in this case is a ‘determination’ within the meaning of s 17(2), upon the footing — which again we simply assume to be correct — that there has been the determination of a ‘matter’ within the meaning of s 17(1). We further assume that VLA is to be regarded as a party and so is competent to appeal without leave. On these assumptions, in our opinion the appeal is incompetent because there is an express provision otherwise within the meaning of the introductory words of s 17(2). This provision is s 17A(3): Except as provided in Part VI of the Crimes Act 1958, an appeal does not lie from a determination of the Trial Division constituted by a Judge made on or in relation to the trial or proposed trial of a person on indictment or presentment.[[22]]

And also:[23]

In our opinion neither VLA nor an accused person can appeal against the making or refusal or terms of an order under s 360A. For, on the assumption on which we proceed (that there has been a ‘determination’), the determination was one made on or in relation to the trial or proposed trial of a person on indictment or presentment. The determination is one very closely related to the trial or proposed trial. ...

49 In a later case, Victoria Legal Aid v Beljajev,[24] a County Court judge had made an order under s 360A of the Crimes Act 1958 that VLA provide assistance to an accused person in relation to complex drug trafficking charges on the sole condition that a nominated firm of solicitors act for the accused. VLA sought judicial review of the decision of the County Court judge. Pursuant to s 17B(1) of the Supreme Court Act 1986, the judge in the proceeding for judicial review referred questions of law to the Court of Appeal (the terms of which it is unnecessary to set out). Winneke P (with whom Vincent JA agreed, Callaway JA dissenting) held that s 360A authorised a court to specify whatever conditions were relevant to the exercise of the power to make an order ensuring a fair trial, whether they were conditions imposed on VLA or the accused, although no condition could be imposed under s 360A which limited the capacity of VLA to provide assistance which a court had ordered it to provide. Thus, a judge had no power to make a binding order that particular counsel or solicitors be engaged.

50 As a legislative response to Beljajev,[25] s 360A was amended so as to insert subsections (4), (5) and (6).[26] And although the Parliamentary debates do not explicitly reflect this, it would appear that subsection (5) was introduced so as to overcome perceived difficulties flowing from Lewis. Subsection (5) — which was expressed in terms resembling those of the current s 197(7) of the CPA — provided:

(5) Despite anything to the contrary in section 17A of the Supreme Court Act 1986, Victoria Legal Aid may appeal to the Court of Appeal, with leave of the Court of Appeal, from an order under sub-section (2) of the Trial Division constituted by a Judge.

51 It is significant that s 360A(5) reserved to VLA a right to appeal to the Court of Appeal against an order of a judge of the Trial Division of the Supreme Court. It otherwise left undisturbed the existing regime for challenging orders of County Court judges under s 360A by way of judicial review. That is a strong indication, in our view, that Parliament’s intention was to restrict appeals solely to orders under s 360A made by the Supreme Court — which are not amenable to judicial review — and to give a right of appeal to VLA alone. In the case of orders under s 360A made by a judge of the County Court, we consider that Parliament’s intention was that such orders would remain capable of challenge by way of judicial review.

52 Moreover, we consider it to be plain from the statutory language that the right to appeal an interlocutory decision provided for under s 295 of the CPA does not extend to an order made or refused under s 197.

53 By virtue of s 3(1) of the CPA, an interlocutory decision is a decision made by a judge in a proceeding referred to in section 295(1), whether before or during the trial, including a decision to grant or refuse to grant a permanent stay of the proceeding. Section 295(1) provides that it ‘applies to a proceeding in the County Court or the Trial Division of the Supreme Court for the prosecution of an indictable offence’; and s 295(2) provides that ‘a party to a proceeding referred to in subsection (1) may appeal to the Court of Appeal against an interlocutory decision made in the proceeding if the Court of Appeal gives the party leave to appeal’.

54 We consider that although the kinds of orders contemplated by s 197 of the CPA may be very closely related to the proposed trial, they are not made in the proceeding; that is, in the trial. Orders under s 197 are incidental to a trial, and, when made, are intended to ensure that ‘the accused will receive a fair trial‘.

55 We do not consider that Vasilou[27] dictates a different conclusion. In that case, the unrepresented applicant was on trial in the County Court for theft and reckless conduct endangering life. He had made an application under s 197 of the CPA, and had also made an application that the proceedings be stayed because of his ill-health and financial position. Both applications were refused, and the trial judge also refused to certify under s 295(3). In relation to the stay application, the trial judge accepted that the applicant had health problems but rejected the argument that they would be such as to justify the extreme step of staying his trial, it having been running for some time. The judge also rejected the argument that legal representation should be ordered, noting that both the prosecutor and the judge would have a duty to assist the applicant in the conduct of his defence.

56 Pursuant to s 296 of the CPA, the applicant applied to this Court seeking review of the trial judge’s refusal to grant a certificate under s 295(3)(b). The application related to both the refusal of the stay of the proceeding and the refusal of the application under s 197 of the CPA. Plainly, insofar as the application related to the refusal of the stay, it was competent.[28] No issue was, however, raised as to the competence of the application with respect to the refusal of the application under s 197, the members of the Court seemingly assuming that the matter was properly before them. Significantly, the Court did not distinctly consider the issue of competence, let alone decide that question. Vasilou cannot, therefore, be considered to be authority for the proposition that an interlocutory appeal against the refusal of an order under s 197 is competent. That issue simply was not the subject of decision.

57 For these reasons, we consider that a refusal of legal representation under s 197 of the CPA is not amenable to an interlocutory appeal.

Conclusion

58 None of the applicant’s contentions has merit.

59 The application to review the judge’s refusal to certify, and the application for leave to appeal the interlocutory decision made by the County Court on 3 October 2018, must be refused.

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[1] McKenzie v McKenzie [1971] P 33; [1970] 3 All ER 1034; [1970] 3 WLR 472.

[2] Spelling, grammar and syntax as in originals.

[3] See CPA, s 29(1)(b).

[4] The proceeding is commenced in the Magistrates’ Court. See CPA, s 6.

[5] By s 5(c), a criminal proceeding may also be commenced by a direction under s 415 of the CPA that a person be tried for perjury.

[6] See also CPA, s 161.

[7] DPP (NSW) v PM [2006] NSWCCA 297; (2006) 67 NSWLR 46, 65 [82]. See also Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, 94–95 (Gibbs ACJ and Mason J); 103 (Stephen J); 109 (Wilson J) (‘Barton’); R v Ngalkin (1984) 71 FLR 264; Pepper v Western Australia [2005] WASCA 177; (2005) 30 WAR 447; Christianos v DPP (WA) (1992) 9 WAR 345.

[8] Barton, 100–1 (Gibbs ACJ and Mason J); 109 (Aickin J); R v Siugzdinis (1984) 32 NTR 1; R v Haslett [1987] NTSC 68; (1987) 50 NTR 17; R v Gagliardi (1987) 45 SASR 418; R v Basha (1989) 39 A Crim R 337, 338–9 (Hunt J) (‘Basha’) .

[9] Barton, 104 (Stephen J); 107–8 (Murphy J); 109 (Wilson J).

[10] R v Dupas [2006] VSC 481; (2006) 14 VR 228, 231 [17] (citations as in original).

[11] [1980] HCA 48; (1980) 147 CLR 75.

[12] Gibbs ACJ and Mason J at 95–6; Aickin J agreeing at 109.

[13] Basha, 338–9 (emphasis added).

[14] Ibid 339.

[15] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 529 (Mason CJ, Dawson, Toohey and McHugh JJ).

[16] Barton, 111 (Wilson J); Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, 34 (Mason CJ); R v Glennon [1992] HCA 16; (1992) 173 CLR 592, 605–6 (Mason CJ and Toohey J); Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237, 245 [18].

[17] Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292.

[18] Ibid 314–5 (Mason CJ and McHugh J); 337 (Deane J); 361–2 (Toohey J); 376–7 (Gaudron J).

[19] Section 360A(2) provided:

(2) If a court is satisfied at any time before or during the trial that —

(a) it will be unable to ensure that the accused will receive a fair trial unless the accused is legally represented in the trial; and

(b) the accused is in need of legal assistance because he or she is unable to afford the full cost of obtaining from a private practitioner legal representation in the trial —

the court may order Victoria Legal Aid to provide assistance to the accused, on any conditions specified by the court, and may adjourn the trial until such assistance has been provided.

[20] Victoria Legal Aid v Lewis [1998] 4 VR 517 (Brooking, Charles and Batt JJA) (‘Lewis’).

[21] Ibid 520.

[22] Section 17A(3) of the Supreme Court Act 1986 currently provides:

(3) Except as provided in Part 6.3 of Chapter 6 of the Criminal Procedure Act 2009, an appeal does not lie from a determination of the Trial Division constituted by a Judge of the Court or constituted by an Associate Judge made on or in relation to the trial or proposed trial of a person on indictment.

[23] Lewis, 521.

[24] Victoria Legal Aid v Beljajev [1999] 3 VR 764 (‘Beljajev’).

[25] Hansard, Legislative Assembly, 22 October 1998, 660.

[26] See Crimes (Amendment) Act 1998 (No 65/1998), s 6.

[27] Vasilou v The Queen [2014] VSCA 22 (Neave and Bongiorno JJA) (‘Vasilou’).

[28] The definition of ‘interlocutory decision’ in s 3(1) of the CPA includes ‘a decision to grant or refuse to grant a permanent stay of the proceeding’.