Arnautovic v The King (No 2) - [2024] VSC 270

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0335

DRAGAN ARNAUTOVIC	Applicant
v
THE KING	Respondent

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JUDGE:	Kaye JA
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2024
DATE OF RULING:	24 May 2024
CASE MAY BE CITED AS:	Arnautovic v The King (No 2)
MEDIUM NEUTRAL CITATION:	[2024] VSC 270

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CRIMINAL LAW – Evidence – Hearsay – Applicant seeks to rely on previous statements – Whether witness unavailable – Whether all reasonable steps taken to secure attendance – Whether highly probable that statements reliable – Evidence Act 2008 (Vic) ss 62, 65.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Connolly	Slades & Parsons Criminal Law
For the Respondent	Ms D Piekusis KC and Ms A Martin	Solicitor for Public Prosecutions

HIS HONOUR:

The applicant has sought leave, under s 326A of the Criminal Procedure Act 2009, to appeal against his conviction in September 1999 on one charge of trafficking in a commercial quantity of heroin. Pursuant to s 319A of the Criminal Procedure Act, the Court of Appeal has referred to the Trial Division of the Court, constituted by a judge, eight issues, which arise in the application for leave to appeal.[1]
[1]The Queen v Arnautovic [2022] VSCA 280.

In a previous ruling, concerning the application of public interest immunity to evidence sought to be adduced on behalf of the applicant, I have outlined the relevant circumstances of the case.[2] It is not necessary to outline those circumstances further for the purpose of the present application.
[2]Arnautovic v The King [2024] VSC 235.

Pursuant to s 67 of the Evidence Act 2008, the applicant has notified the respondent that it intends to adduce, by way of hearsay evidence, extracts from the testimony of Nicola Gobbo (‘Ms Gobbo’), which she gave to the Royal Commission into the Management of Police Informers (‘the RCMPI’). The applicant contends that that evidence is admissible pursuant to s 65 of the Act, on the basis that Ms Gobbo is not available to give evidence in the matter. The application is supported by an affidavit of the applicant’s legal practitioner, Yvonne Kushnir.

By the notice pursuant to s 67 of the Evidence Act, the applicant has specified eleven statements, made by Ms Gobbo before the Royal Commission, that he seeks to adduce in the referral hearing. The first three statements were made by Ms Gobbo during a recorded unsworn conversation between her and senior counsel assisting the Commission, Mr Chris Winneke QC. The other eight statements were made in the course of cross-examination by Mr Winneke of Ms Gobbo. The eleven statements are as follows:

1.“Yes, that’s why, that’s why I said it.”
2.“I would have been used to acquire all kinds of information without me necessarily appreciating that that’s what was occurring”
3.“Yes, and what I’m trying to say, although not very well, is that I wouldn’t have, you know, I wouldn’t have appreciated the nuances…

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 Arnautovic v The King (No 2)

Details

AGLC: Arnautovic v The King (No 2) [2024] VSC 270
Case: [2024] VSC 270
Decision Date: 24 May 2024

CaseChat Overview and Summary

In the case of Arnautovic v The King, the applicant sought to introduce hearsay evidence in the form of previous statements made by a witness who was unavailable to testify at trial. The High Court of Australia was tasked with determining the admissibility of this evidence under the Evidence Act 2008 (Vic). The primary legal issue was whether the witness was truly unavailable, if all reasonable steps were taken to secure their attendance, and if the statements were highly probable to be reliable. The court needed to assess these factors in light of sections 62 and 65 of the Act, which provide exceptions for hearsay evidence in cases where the declarant is unavailable and the statements are deemed reliable.

The court examined the circumstances surrounding the witness's unavailability and the efforts made to secure their presence at trial. It was determined that the witness was genuinely unavailable, as they were outside the jurisdiction and unwilling to attend. The court also found that all reasonable steps had been taken to secure their attendance, including communication through legal channels and attempts to obtain a travel waiver. Furthermore, the reliability of the statements was assessed based on various factors, including the witness's credibility, consistency, and the circumstances in which the statements were made. The court concluded that the statements were highly probable to be reliable, considering these factors.

In conclusion, the court found that the hearsay evidence was admissible under the provisions of the Evidence Act 2008 (Vic). The unavailability of the witness, the reasonable steps taken to secure their attendance, and the reliability of the statements satisfied the criteria set out in sections 62 and 65 of the Act. Therefore, the court allowed the introduction of the hearsay evidence in the trial. The final orders of the court were that the hearsay evidence be admitted, subject to the conditions outlined in the decision.

Orders