Crawford (a pseudonym) v The King

[2023] VSCA 173

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0095

MARIE CRAWFORD (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]So as to prevent any risk of prejudice to the proper administration of justice, these reasons for judgment have been anonymised by the adoption of pseudonyms in place of certain names.

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JUDGES:	PRIEST and KENNEDY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	24 July 2023
DATE OF JUDGMENT:	3 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 173
JUDGMENT APPEALED FROM:	DPP v [Marie Crawford] (County Court of Victoria, Judge O’Connell, 26 April 2023)

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CRIMINAL LAW – Interlocutory appeal – Indictment containing ten charges of theft – Application by prosecution to adduce hearsay representations – Where trial judge found representations were hearsay but admissible pursuant to Evidence Act 2008, s 66A – Whether representations are hearsay – Whether danger of unfair prejudice outweighs probative value – Evidence Act 2008, ss 59, 60, 65, 66A, 137 – Leave to appeal granted – Appeal dismissed.

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Counsel
Applicant:		Mr A Palmer SC and Mr D Mence
Respondent:		Mr JCJ McWilliams and Mr ES Dober
Solicitors
Applicant:	Garde Wilson Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
KENNEDY JA:

Introduction

1. The applicant applies for an extension of time[2] in which to seek leave to appeal the interlocutory decision of a judge to admit three ‘hearsay’ representations (‘the three representations’).[3]

   [2]The respondent accepted that the notice was filed five days out of time.

   [3]DPP v [Marie Crawford] (County Court of Victoria, Judge O’Connell, 26 April 2023) (‘Hearsay Ruling’).

2. The applicant is charged with 10 counts of theft. Relevant to this application, it is alleged that, between July 2018 and March 2021, the applicant paid herself $118,856.55 in unauthorised commissions from her employer, XYZ (the ‘Company’).

3. By a Notice filed pursuant to s 67 of the Evidence Act 2008 (the ‘Act’) (‘Hearsay Notice’), the respondent gave notice that he intended to adduce hearsay evidence in the form of six representations (‘R1–R6’). These representations were allegedly made by the Company’s managing director, Mr A (who is now deceased). Only the three representations are the subject of this appeal,[4] and are set out below.

   [4]The judge held that representations 4 and 6 were inadmissible: Hearsay Ruling, [68]–[69], [85]. Representation 5 was admitted by the judge but is not the subject of this appeal: Hearsay Ruling, [88].

4. The judge ultimately determined that the three representations were admissible pursuant to s 66A of the Act, but not ss 65(2)(b) or 65(2)(c).[5] The judge refused an application to exclude the three representations pursuant to s 137.

   [5]Hearsay Ruling, [79], [101].

5. The applicant seeks leave to appeal on the following proposed grounds:

   Ground 1. The judge erred in ruling that the hearsay evidence was admissible as a contemporaneous representation about the deceased’s knowledge under s 66A of the Act.

   Ground 2. The judge erred in finding that the probative value of the evidence outweighed the danger of unfair prejudice to the applicant under…