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Clarke (a Pseudonym) v The Queen

Clarke (a Pseudonym) v The Queen

Case [2017] VSCA 115 18 May 2017

Admissibility of Evidence

Representations of Unavailable Witness

Judicial Review

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0169

ARCHIE CLARKE (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant and two respondents.

S APCR 2016 0171
S APCR 2016 0173

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
STEPHEN STANLEY (A PSEUDONYM)1	First Respondent
and
NICHOLAS WELLS (A PSEUDONYM)1	Second Respondent

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JUDGES:	REDLICH JA and BEALE AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 November 2016
DATE OF JUDGMENT:	18 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 115
JUDGMENT APPEALED FROM:	DPP v [Clarke, Stanley, Wells and MW] (Unreported, County Court of Victoria, Judge Gaynor, 16 August 2016).

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CRIMINAL LAW – Evidence – Interlocutory appeals – Complainant unavailable to give evidence – Ruling that representations by unavailable witness were admissible pursuant to s 65 the Evidence Act 2008 – Inability of accused to fully cross-examine witness – Whether danger that representations would be given undue weight – Complainant’s representation supports evidence of principal witness for prosecution – Refusal to exclude evidence in the trial of Clarke and exclusion of the evidence as unduly prejudicial in the trial of Stanley and Wells – Representations having substantial probative value – s 137 of the Evidence Act 2008 – Application for leave to appeal by Clarke refused – Applications for leave to appeal by the Director granted and the appeals allowed.

CRIMINAL LAW – Evidence – Reliability of representations of unavailable witness – s 65(2)(c) of the Evidence Act 2008 – Reliability to be evaluated by reference to the circumstances in which each representation was made – Irrelevant that representations tend to support other evidence as to facts in issue – Sio v The Queen (2016) 90 ALJR 963; Azizi v The Queen 224 A Crim R 325.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Clarke	Mr C F Thomson	Valos Black & Associates
For the Crown	Mr D Trapnell QC with Mr M D Stanton	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent Stanley	Mr R F Edney	Doogue O’Brien George
For the Respondent Wells	Mr L Barker	Turnbull Lawyers

REDLICH JA

BEALE AJA:

Overview

The accused, Clarke, Stanley, Wells and MW, face a joint indictment charging them with false imprisonment, extortion, causing injury intentionally and causing injury recklessly on the basis of joint enterprise. There is a single complainant, CW, who was unavailable to give evidence in the trial. The prosecution proposed to tender its evidence pursuant to s 65(2)(b) and (c) of the Evidence Act 2008 (‘the Act’). Each accused submitted that the trial judge should exclude the evidence pursuant to s 137 of the Act. The trial judge ruled the hearsay evidence admissible against Clarke and MW and inadmissible against Wells and Stanley. Her Honour then ruled that the trial of Wells and Stanley be separate from the trial of Clarke and MW.

By way of interlocutory appeal,…

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 Clarke (a Pseudonym) v The Queen

Details

AGLC: Clarke (a Pseudonym) v The Queen [2017] VSCA 115
Case: [2017] VSCA 115
Decision Date: 18 May 2017

CaseChat Overview and Summary

Clarke, a pseudonym, has appealed against a ruling allowing the admission of representations made by an unavailable witness. The Crown sought to rely on the representations of the complainant, who had been subjected to intimidation and threats, and was unable to testify. The appeal was heard in the High Court of Australia. The legal issues that arose in the case involved the admissibility of hearsay evidence, as well as the reliability of the representations under s 65(2)(c) of the Evidence Act 2008. The Court had to determine whether the representations were admissible, despite the unavailability of the witness and the inability of the accused to fully cross-examine the witness. Additionally, the Court needed to consider whether the danger that the representations would be given undue weight outweighed their probative value.

The Court held that the representations were admissible and had substantial probative value. The Court reasoned that the representations were reliable, as they were evaluated by reference to the circumstances in which each representation was made. The Court further held that it was irrelevant that the representations tended to support other evidence as to facts in issue. The Court also noted that the representations supported the evidence of the principal witness for the prosecution. The Court held that the danger that the representations would be given undue weight did not outweigh their probative value, and that the evidence was therefore admissible. The Court further held that the appeals by the Director of Public Prosecutions were allowed, and the applications for leave to appeal by Clarke were refused.

The Court’s decision highlights the importance of the reliability of hearsay evidence in criminal trials. The Court held that the representations were reliable, as they were evaluated by reference to the circumstances in which each representation was made. The Court also held that it was irrelevant that the representations tended to support other evidence as to facts in issue. The Court further held that the danger that the representations would be given undue weight did not outweigh their probative value, and that the evidence was therefore admissible. The Court’s decision has significant implications for the admissibility of hearsay evidence in criminal trials, particularly where the witness is unavailable to give evidence.

Orders