Craig Vitale v The Queen

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.