The Use of the Victorian Charter in Criminal Interlocutory Proceedings

Wells v The Queen (No 2) [2010] VSCA 294 (4 November 2010)

The Court of Appeal dismissed this interlocutory criminal appeal.  The applicant in part sought a permanent stay of a criminal trial on the basis that the Charter rights relating to criminal proceedings (ss 24 and 25) were breached.  In dismissing the appeal, the Court of Appeal commented that it would rarely entertain Charter arguments in interlocutory appeals, due to their complexity and the prospect of causing delays in criminal trials.


The applicant was charged with one count of culpable driving, following a collision on the Hume Highway in 2007.  The prosecution case alleges that the applicant drove his car either negligently, or while under the influence of cannabis to such an extent as to be incapable of having proper control of the vehicle.

The applicant had unsuccessfully sought pre-trial rulings by the trial judge that certain expert evidence relating to his epilepsy and to the effect of cannabis on motor function was inadmissible.  He also sought a permanent stay of the trial because of disadvantage caused by the destruction of certain evidence, specifically his vehicle and certain blood samples.

The applicant sought leave to appeal against rulings from the trial judge pursuant to the new Criminal Procedure Act and, having failed to get leave, sought review of that decision in the Court of Appeal.  This proceeding was the second application brought by the applicant in relation to pre-trial rulings in this case.

In the earlier interlocutory application, the Court had rejected arguments relating to the stay similar to those advanced in this application.  However, on this occasion the applicant sought to buttress his argument by referring to the rights in criminal hearings provided in ss 24 and 25 of the Charter, arguing that these rights provide greater protection than the common law principles applicable to a stay application.  However, as the judgment notes, the Charter argument was not supported by authority or reasons.


The Court refused the application.  They held that the relevant evidence was admissible, and that there was no justification for granting a permanent stay of the trial.  The Court further held that, unless it is perfectly plain that a fair trial cannot be had, the assessment whether there was a fair trial is best undertaken by reference to the trial as a whole, after the trial, not in an interlocutory appeal.

The Court remarked that the Court should generally not be expected to entertain arguments involving the application of the Charter on interlocutory criminal appeals.  They gave two reasons for this:

  • Charter arguments will ‘usually involve complex questions’ including substantial research of international cases and lengthy consideration
  • Charter issues require the notification and possible involvement of the Attorney-General and other entities causing further delay.

The Court was concerned that the fragmentation of trials should be avoided unless there is a compelling reason to the contrary.


If followed, this decision will limit the use of the Charter in interlocutory criminal appeals.

In this case, it appears that the Court was concerned about the use of interlocutory applications to delay the trial.  The Charter point was not elaborated, and on the whole repeated arguments already rejected by the Court in the earlier application.

It is understandable that the Court was concerned to avoid the fragmentation of criminal trials, and to leave complex or lengthy points about the fairness of a trial as a whole for criminal appeals after trial.  It is, however, disappointing that the Court appeared to limit the use of any Charter arguments in interlocutory criminal appeals.

As a matter of Victorian law, the Charter is to be used as an interpretive aid in the interpretation of all statutory provisions, and in regulating all relevant conduct by public authorities.  It should be part of everyday decision-making, and not limited to particular cases.  Not all Charter arguments need to be lengthy or refer to extensive international jurisprudence.  The remarks on the Charter in this judgment perhaps reflect the fact that judges are still finding the Charter foreign and complicated.

The remarks also reflect the need for Charter advocates to find a balance in making what are, after all, still novel submissions.  Clearly, there is a need to clearly articulate Charter arguments and to refer to the more developed international human rights jurisprudence from other jurisdictions.  There is, however, a danger in every Charter case turning into a lengthy and complex case and becoming disconnected in the minds of judges from the ordinary business of the courts.

The decision is at

Hugh Mannreitz is a Melbourne-based lawyer.