| 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]
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.
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…
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- AGLC
- Arnautovic v The King (No 2) [2024] VSC 270
- Case
- [2024] VSC 270
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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