SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0105
| CRAIG VITALE | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, BEACH and T FORREST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 10 September 2020 |
| DATE OF JUDGMENT: | 14 September 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 237 |
| JUDGMENT APPEALED FROM: | DPP v Vitale (Unreported, Supreme Court of Victoria, Croucher J, 7 August 2017) (Conviction) |
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CRIMINAL LAW — Appeal — Armed robbery and intentionally causing serious injury — Whether judge erred in admitting hearsay evidence of co-offender — Whether co-offender’s hearsay representations in police statement made in circumstances that make it likely that they were reliable.
EVIDENCE – Admissibility – Hearsay evidence – Maker of representations not available – Where maker of representations was accomplice – Whether representations made in circumstances that made it likely that representations reliable – Evidence Act 2008 s 65(2)(d) – Sio v The Queen (2016) 259 CLR 47 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | |
| For the Respondent | Mr G Hughan | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
Introduction
Craig Vitale, the appellant, pleaded not guilty at a trial in the Supreme Court on 19 July 2017 to reckless conduct endangering serious injury to Thi Kim Luong (charge 1); armed robbery of Ms Luong (charge 2); attempted murder of Noel Kennedy (charge 3); and in the alternative, causing Mr Kennedy serious injury intentionally (charge 4) or causing him serious injury recklessly (charge 5). The prosecution alleged that he had committed these offences with his brother, Wayne Vitale.
At trial, the appellant’s ‘defence’ was that he was not involved in the offences. On 7 August 2017, however, the jury found him guilty of armed robbery and intentionally causing serious injury (acquitting him of reckless conduct endangering serious injury and attempted murder).[1]
[1]On 27 April 2018, the trial judge imposed a sentence of nine years’ imprisonment on the charge of intentionally causing serious injury, and six years’ imprisonment on the charge of armed robbery, two years of which was to be served cumulatively. The total effective sentence was thus 11 years’ imprisonment, upon which the judge fixed a non-parole period of seven years.
Of critical importance to the present application, the prosecution sought to have Wayne Vitale give evidence, but he refused to testify. As a result, he was declared to be ‘unavailable’, and the major parts of a statement he made to police — containing a number of representations supporting the prosecution case against the appellant — were admitted into evidence (over objection).
Pursuant to leave granted by a judge of this Court,[2] the appellant now appeals against his convictions for armed robbery and intentionally causing serious injury, on a single ground which asserts that the trial judge
erred in admitting into evidence parts of Wayne Vitale’s statement made to Police, which caused a substantial miscarriage of justice.
[2]Vitale v The Queen [2018] VSCA 212 (Niall JA).
In my opinion, the trial judge’s decision to admit the statement — or,…
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- AGLC
- Craig Vitale v The Queen [2020] VSCA 237
- Case
- [2020] VSCA 237
- Decision Date
CaseChat Overview and Summary
The court considered whether the trial judge was correct in admitting the hearsay evidence under section 65(2)(d) of the Evidence Act 2008, which provides an exception to the hearsay rule for statements made by a person who is unavailable to give evidence and who was an accomplice at the time the representation was made, if the representation was made in circumstances that make it likely that the representation was reliable. The court found that the trial judge did not err in admitting the hearsay evidence, as the co-offender's representations were made in circumstances that made it likely that they were reliable. The court considered the case of Sio v The Queen (2016) 259 CLR 47, which held that the exception to the hearsay rule in section 65(2)(d) of the Evidence Act 2008 is not limited to situations where the maker of the representation is unavailable due to death, and that the exception applies where the maker of the representation is unavailable for any reason, including where the maker is an accomplice who is not available to give evidence. The court held that the trial judge was correct in admitting the hearsay evidence, as the co-offender's representations were made in circumstances that made it likely that they were reliable, and the exception to the hearsay rule in section 65(2)(d) of the Evidence Act 2008 applied.
The appeal was dismissed, and the conviction was upheld. The court did not make any orders as the appeal was dismissed. The court held that the trial judge did not err in admitting the hearsay evidence, and that the exception to the hearsay rule in section 65(2)(d) of the Evidence Act 2008 applied in this case. The court found that the co-offender's representations were made in circumstances that made it likely that they were reliable, and that the trial judge was correct in admitting the hearsay evidence. The appeal was dismissed, and the conviction was upheld.
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
Legal Principle Established
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