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DPP v Garrett

DPP v Garrett

Case [2016] VSCA 31 7 March 2016

Interlocutory Orders

Admissibility of Evidence

Expert Evidence

Discretion to give leave to cross-examine

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0235
DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
CASEY GARRETT (a pseudonym)[1]	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the respondent.

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JUDGES:	MAXWELL P and REDLICH and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 February 2016
DATE OF JUDGMENT:	7 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 31
JUDGMENT APPEALED FROM:	DPP v [Garrett] (Unreported, County Court of Victoria, Judge Lawson, 24 November 2015)

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CRIMINAL LAW – Interlocutory appeal – Intentionally causing injury – Evidence – Witnesses – Meaning of ‘unfavourable’ – Whether evidence given by witness is unfavourable to party calling witness – Judge not required to determine facts likely to be established by preponderance of evidence – Whether case of party clearly identifiable – Observations in Queen v Kneebone (1999) 47 NSWLR 450 concerning ‘case theory’ distinguished – Leave to cross-examine – Discretion to give leave to cross-examine – Evidence Act 2008, ss 38, 192 and 192A.

CRIMINAL LAW – Practice – Interlocutory appeal on question of evidence other than admissibility – Section 295(3)(b) Criminal Procedure Act 2009 – Observations in CGL v DPP (2010) 24 VR 482 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr K G Gilligan with Mr B Sonnett	Mr J Cain, Solicitor for Public Prosecutions
For the Respondent	Mr C J Winneke SC	Tony Hargreaves & Partners

MAXWELL P
REDLICH JA
BEACH JA:

Summary

The respondent (‘CG’) is facing trial in the County Court on a charge of intentionally causing injury. Before trial, the Crown applied for an advance ruling under s 192A of the Evidence Act 2008 (‘the Act’), seeking leave under s 38(1)(a) of the Act to cross-examine one of its own witnesses. The witness in question was an eyewitness whom the Crown were obliged to call.

The judge refused the Crown’s application, holding that the evidence of the particular witness was not ‘unfavourable’ to the Crown, within the meaning of that provision. The judge certified that the decision was ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’. The Crown by way of interlocutory appeal seeks leave to challenge the judge’s decision refusing the application.

When an interlocutory decision concerns the admissibility of evidence, the scope for interlocutory appeal is heavily circumscribed. Section 295(3)(a) of the Criminal Procedure Act 2009 provides that no application for leave to appeal may be made unless the judge who made the decision certifies that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case.

As Maxwell P pointed out in CGL v DPP [No 2]:[2]

It was obviously necessary to establish a threshold test before evidentiary questions could be the subject of an interlocutory appeal. Otherwise this court would be inundated with applications for leave to appeal regarding evidentiary decisions of the multifarious kinds which are made every day in…

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 DPP v Garrett

Details

AGLC: DPP v Garrett [2016] VSCA 31
Case: [2016] VSCA 31
Decision Date: 7 March 2016

CaseChat Overview and Summary

The case of the Director of Public Prosecutions (DPP) versus Garrett came before the court in an interlocutory appeal, addressing the matter of intentionally causing injury. The dispute centred around the interpretation of evidence provided by witnesses, specifically the meaning of ‘unfavourable’ in the context of witness testimonies. The court was required to decide whether a judge is mandated to ascertain facts likely to be substantiated by the preponderance of evidence, and whether the case of a party can be clearly identified when evidence is deemed unfavourable. This case also sought clarification on the judge's role in determining whether a witness's evidence is unfavourable to the party calling them, drawing distinctions from observations made in the case of Queen v Kneebone.

The court's reasoning involved a detailed analysis of the Evidence Act 2008, sections 38, 192, and 192A, which govern the leave to cross-examine a witness. The court held that a judge is not required to determine facts likely to be established by the preponderance of evidence when considering whether a witness's evidence is unfavourable. The court distinguished the observations in Queen v Kneebone, clarifying that a judge’s role is not to assess the likelihood of evidence being established but rather to determine if the evidence is unfavourable to the party calling the witness. This decision aligns with the principles outlined in CGL v DPP, where the court applied section 295(3)(b) of the Criminal Procedure Act 2009.

Consequently, the court denied the DPP’s request for leave to cross-examine, concluding that the evidence provided by the witness was not necessarily unfavourable to the party calling them. The court emphasised the importance of adhering to the statutory framework and the discretion afforded to judges under the Evidence Act. The final orders were made in line with the court’s interpretation, ensuring that the appeal process and evidence evaluation were conducted in accordance with the established legal principles.

Orders