Abernethy & Hawkins v The Queen - [2020] VSCA 96

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0281

STUART ABERNETHY	Applicant
v
THE QUEEN	Respondent

S APCR 2018 0282

GABIEN HAWKINS	Applicant
v
THE QUEEN	Respondent

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JUDGES:	MAXWELL P, NIALL and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 February 2020
DATE OF JUDGMENT:	27 April 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 96
JUDGMENT APPEALED FROM:	DPP v Hawkins & Anor (Unreported, County Court of Victoria, Judge Wischusen, 23 November 2018).

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CRIMINAL LAW – Appeal – Conviction – Intentionally causing injury – Each applicant made statement to police – Applicants tried together – Applicants sought cross-admissibility of statements pursuant to Evidence Act 2008 s 83 – Each applicant consented to use of statement by the other applicant – Whether substantial miscarriage of justice by reason of judge refusing to permit each applicant to rely upon statement made by the other applicant – Statements did not contain admissions – Evidence of representations not ‘reasonably necessary’ to refer to in order to understand an admission – Statements not admissible pursuant to Evidence Act 2008 s 65(8) – No substantial miscarriage of justice – Leave to appeal refused – Evidence Act 2008, ss 17, 65, 81, 83; Barry v Police (2009) 197 A Crim R 445, Bannon v The Queen (1995) 185 CLR 1, considered; Power v The Queen (2014) 43 VR 261, applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicants:	Mr C Carr with Ms F Fox	Tony Hargreaves & Partners
For the Respondent:	Mr C Boyce QC with Mr M Wilson	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P:

I have had the advantage of reading in draft the reasons for judgment of Niall and Emerton JJA (‘joint judgment’). Their Honours have set out in full the circumstances giving rise to the applicants’ convictions for intentionally causing injury, making it unnecessary for me to repeat any of those matters. As their Honours have noted, the sole ground of appeal turns on the admissibility in the trial of each applicant of the statement made to police by the other applicant.

The submission advanced, both at trial and in this Court, was that the statements made by the applicants on the day of the incident were cross-admissible. That is, the statement by Hawkins was admissible in Abernethy’s trial, and his statement was admissible in her trial. The submission relied on ss 81 and 83 of the Evidence Act 2008 (the ‘Act’), which relevantly provide as follows:

81Hearsay and opinion rules—exception for admissions and related representations
(1)The hearsay rule and the opinion rule do not apply to evidence of an admission.
(2)The hearsay rule and the opinion rule do not apply to evidence of a previous representation—
(a)that was made in relation to an admission at the time the admission was made, or shortly before or after that time; and
(b)to which it is reasonably necessary to refer in order to understand the admission.

…
83 Exclusion of evidence of admissions as against third parties

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abernethy & Hawkins v The Queen

Details

AGLC: Stuart Abernethy v The Queen [2020] VSCA 96
Case: [2020] VSCA 96
Decision Date: 27 April 2020

CaseChat Overview and Summary

In Abernethy & Hawkins v The Queen, the applicants were convicted of intentionally causing injury and appealed against their convictions to the High Court of Australia. The central issue was whether the trial judge had erred in refusing to allow the applicants to rely on statements made to police by the other applicant, despite both applicants having consented to the use of each other’s statements. The applicants argued that the refusal of cross-admissibility of their statements amounted to a substantial miscarriage of justice.

The legal issues revolved around the interpretation of the Evidence Act 2008, specifically sections 81, 65(8), and 83. The applicants sought to argue that their statements should have been admissible under section 83, which allows for the admission of statements made by co-accused where certain conditions are met. The trial judge had ruled that the statements were not admissions and thus not subject to the cross-admissibility provisions. The applicants contended that the statements were necessary to avoid a substantial miscarriage of justice, but the High Court disagreed, finding that the statements did not constitute admissions and were not reasonably necessary to understand the admissions made by the applicants.

The High Court held that the statements did not meet the criteria for admissibility under the Evidence Act 2008, as they were not admissions of a fact in issue and were not reasonably necessary to refer to in order to understand an admission. The Court applied Power v The Queen to determine that the statements were not admissions and were not reasonably necessary to understand the admissions made by the applicants. The Court concluded that the refusal to admit the statements did not result in a substantial miscarriage of justice, and thus dismissed the appeal. The Court denied leave to appeal, affirming the conviction of the applicants.

Orders