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Craig Vitale v The Queen

Craig Vitale v The Queen

Case [2020] VSCA 237 14 September 2020

Appeal

Admissibility of Evidence

Hearsay Evidence

Criminal Law

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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,…

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 Craig Vitale v The Queen

Details

AGLC: Craig Vitale v The Queen [2020] VSCA 237
Case: [2020] VSCA 237
Decision Date: 14 September 2020

CaseChat Overview and Summary

Craig Vitale has appealed against his conviction for armed robbery and intentionally causing serious injury, arguing that the trial judge erred in admitting hearsay evidence from a co-offender. The appeal was heard in the High Court of Australia, which has jurisdiction to review decisions of the intermediate appellate courts in Australia. The central issue before the court was whether the trial judge made an error in admitting hearsay evidence from a co-offender who was not available to give evidence, and whether the co-offender's representations in their police statement were made in circumstances that made it likely that they were reliable.

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