Craig Vitale v The Queen - [2018] VSCA 212

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2018 0105

CRAIG VITALE	Applicant
v
THE QUEEN	Respondent

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JUDGE:	NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	23 August 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 212
JUDGMENT APPEALED FROM:	DPP v Vitale (Unreported, Supreme Court of Victoria, Croucher J, 7 August 2017 (Conviction))

APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION DETERMINED BY A SINGLE JUDGE PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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CRIMINAL LAW – Application for leave to appeal against conviction – Armed robbery and intentionally causing serious injury – Whether judge erred in admitting hearsay evidence of co-offender – Leave granted.

EVIDENCE – Admissibility – Hearsay evidence – Maker of representations not available – Where maker of representations was co-offender – 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
No appearances

NIALL JA:

On 7 August 2017, following a trial in the Supreme Court of Victoria, the applicant was convicted by a jury of the offences of armed robbery and intentionally causing serious injury. The jury acquitted him of attempted murder and reckless conduct endangering persons. On 27 April 2018, the applicant was sentenced to a term of imprisonment of 11 years with a non-parole period of seven years. He has applied for leave to appeal against his conviction.

The single proposed ground of appeal is that the trial judge erred in admitting into evidence, pursuant to s 65(2)(d) of the Evidence Act 2008, parts of a statement made to police by the applicant’s brother, Wayne Vitale.

For convenience, and without intending any disrespect, I shall refer to the applicant’s brother as Wayne.

The offending

The prosecution case at trial was as follows.

On 1 October 2011, the applicant and Wayne drove to a bottle shop in Kingsville, Victoria in a vehicle belonging to their mother. The car was a white Saab sedan with registration number YHS 479. At approximately 7:48pm, Wayne entered the shop, with his face obscured, and walked to the rear of the shop, where it was intended he would distract the shopkeeper. Shortly thereafter, the applicant entered, his face also obscured, holding a sawn-off shotgun.

Shortly after entering the shop, the applicant pointed the shotgun directly at the shopkeeper and forced her to walk behind the service counter. The applicant then aimed the shotgun in the direction of the cash register and discharged a single shot. This shot hit the cash register frame. The applicant then said ‘money, money’. The shopkeeper told the applicant there was no money and the applicant unsuccessfully attempted to prise open the cash register, which had become jammed by the shot.

Meanwhile, Wayne had taken two slabs of Jim Beam cans from the rear of store, moved quickly towards the front door, and exited the shop. The shopkeeper managed to activate an…

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 [2018] VSCA 212
Case: [2018] VSCA 212
Decision Date: 23 August 2018

CaseChat Overview and Summary

In the matter of Craig Vitale, the applicant, versus The Queen, the respondent, the High Court considered an application for special leave to appeal against the applicant's conviction for armed robbery and intentionally causing serious injury. The applicant was found guilty based on a range of evidence, including hearsay statements made by a co-offender who was not available to testify. The case revolved around the admissibility of this hearsay evidence under the Evidence Act 2008, specifically section 65(2)(d).

The primary legal issue before the Court was whether the trial judge erred in admitting the hearsay evidence of the co-offender. The applicant argued that the judge should not have allowed such evidence as it violated his right to confront witnesses under the common law and the Australian Constitution. The Court needed to determine whether the hearsay evidence was sufficiently reliable under section 65(2)(d) of the Evidence Act, which requires the representations to have been made in circumstances that made it likely that they were reliable. This involved examining the principles established in Sio v The Queen, where the High Court set out criteria for assessing the reliability of hearsay evidence.

The Court held that the trial judge had erred in admitting the hearsay evidence as it did not meet the reliability threshold required by section 65(2)(d) of the Evidence Act. The co-offender's statements were not made in circumstances that made it likely that they were reliable, particularly as they were made by someone who was not available for cross-examination and had a significant interest in the outcome of the case. The Court noted that the maker of the representations, being a co-offender, had a strong incentive to provide false information to minimise their own liability. The decision in Sio v The Queen was considered, and it was found that the evidence did not satisfy the reliability requirements. Consequently, the Court granted the applicant leave to appeal, finding that the admission of the hearsay evidence was a significant error that affected the safety of the conviction.

Orders