The Court was highly critical [Ashley and Redlich JJA at 4, Weinberg JA even more so at 47] that the first interlocutory appeal had been brought before the making of all preliminary rulings prior to the commencement of evidence.
4 Subsequent to the previous application being refused, the judge conducting the trial was called upon, before empanelment, to make numerous further rulings as to the admissibility of certain evidence; and further stay applications were made. Given the interruption to the trial which inevitably results if there is an interlocutory appeal, and the strain which is imposed on the limited resources of this Court when such appeals are pursued, the Court expressed its concern to applicant’s counsel that his client did not wait until all issues had been raised with the trial judge, and rulings obtained, before making an application. All of the pre-trial rulings could have been sought and obtained before any interlocutory appeal was undertaken. In another case, it may well be necessary for this Court to consider whether the interests of justice would be served by granting leave where compelling reasons were not present which justified pursuit of pre-trial issues in a fragmented and disruptive way.
The trial judge's rulings admitting evidence from the Crown case were upheld, and the application for a permanent stay dismissed. The Court of Appeal declined to revisit issues of fairness relating to the destruction of the accused's vehicle that had been central to Wells v The Queen (No 1) VSCA 100.
The Court also had little patience with an argument that the Charter of Human Rights and Responsibilities Act 2006 extends the right to a fair trial beyond the existing common law. It wasn't that the Court discounted this was possible. The Court wasn't happy about the way the issue was raised.
Redlich and Ashley JJA [at 38; Weinberg JA 'specifically aligned' himself with the majority on this point, at 48]:
Further in support of his application for a permanent stay, counsel for the applicant submitted that Charter provisions intended to ensure that an accused receives a fair trial, provide greater protection to the accused against an unfair trial than do the common law principles applicable to a stay application. Counsel did not proffer any authority for that proposition to the trial judge, nor did he do so before us. In short, counsel advanced no reason, as distinct from mere assertion, in support of his submission that the Charter confers a right more extensive than the common law right that, so far as possible, the accused be afforded a fair trial.
This Court should generally not be expected to entertain arguments involving the application of the Charter on interlocutory appeals. As counsel for both parties to this application conceded, such arguments will usually involve complex questions. The construction of the provisions of the Charter often require substantial research of international jurisprudence and resulting lengthy consideration. The raising of a Charter issue requires the notification, and the possible involvement, of additional entities (including the Attorney-General); and most often significant delay in the trial below. For these reasons, it can be expected that arguments involving the Charter will rarely be appropriate for determination on an interlocutory appeal. The fragmentation of individual trials should be avoided unless there is a compelling reason to the contrary.
Further, in circumstances where it is not perfectly plain that a fair trial cannot be had, assessment whether there was not in fact a fair trial - by reference to the common law, or to the Charter if and insofar as applicable principles differ - is best undertaken by reference to the trial as a whole. In this case, it was not demonstrated to be perfectly plain that a fair trial could not be had. None of the factors relied upon by the applicant, either individually or in combination, justified a permanent stay of proceedings. The trial judge was right to conclude that he should not certify that his decision to refuse to grant a permanent stay was of sufficient importance to the trial to justify it being determined on an interlocutory appeal.
I'm guessing it will be a while before anyone takes up a Charter point on an interlocutory appeal (and when they do, they better have their powder dry).