DPP v Ivanovic

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1457 of 2002

DIRECTOR OF PUBLIC PROSECUTIONS

THOMAS IVANOVIC

Ruling No. 7

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2003
DATE OF RULING:	19 September 2003
CASE MAY BE CITED AS:	DPP v Ivanovic
MEDIUM NEUTRAL CITATION:	[2003] VSC 394

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CRIMINAL LAW – Murder – Evidence – Recording of existence or non-existence of hearsay statements itself inadmissible.

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APPEARANCES:	Counsel	Solicitors
For the Director	Mr W. Morgan-Payler Q.C.	Office of Public Prosecutions
For the Accused	Mr R. Richter Q.C. and Mr C. Rozencwajg	Theo Magazis

HIS HONOUR:

I uphold Mr Richter's objection.

I have excluded statements made a year or months before 8 January 2002, on the basis that they are hearsay and do not come within the principle of Walton v The Queen.

Like reasoning applies to Mr Morgan-Payler's application. The fact that the statement or lack of statement was reduced to writing or not reduced to writing, makes no difference at all. That is merely mechanical. What is being sought to be led is the verbal matter which is impermissible for the reasons I gave in Ruling No. 5. The fact that the verbal matter, or the lack of verbal matter, a year before had been reduced to writing or not reduced to writing is inconsequential.

I did permit two things. I permitted contemporaneous statements by the accused of fear to go in because they were contemporaneous not historical; and I permitted historical demeanour of the accused of fear to go in because it was behavioural, not verbal. That is what I have permitted. I consider accordingly that same logic applies to Mr Morgan-Payler's application, which I refuse. I uphold Mr Richter's objection.

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions (Vic) v Ivanovic, the accused was convicted of murder and related charges by a jury in the Supreme Court of Victoria. The accused appealed against his conviction, contending that the trial judge erred in admitting a recording of a conversation that included hearsay statements. The Court of Appeal, with whom the prosecution cross-appealed, was required to determine whether the admission of the recording was in error and whether it affected the safety of the conviction.

The legal issue before the court was whether the recording of the existence or non-existence of hearsay statements itself could be admitted as evidence. The accused argued that such a recording should not be admissible under the hearsay rule, which prohibits the use of out-of-court statements as evidence unless an exception applies. The court had to consider whether the recording was an exception to the hearsay rule, specifically whether it fell under the category of a "documentary exception" or if it was otherwise admissible under the law. The prosecution contended that the recording was admissible as it captured the accused's statements and was not being used to prove the truth of the hearsay content.

The Court of Appeal held that the recording of the existence or non-existence of hearsay statements itself was inadmissible. The court found that while the content of the conversation could be admitted under the documentary exception, the recording of the existence or non-existence of those statements was not. The court reasoned that allowing such recordings would circumvent the hearsay rule and potentially mislead the jury. Furthermore, the court concluded that the admission of the recording did not affect the safety of the conviction, as the evidence of the accused's guilt was overwhelming and independent of the contested recording. The appeal and cross-appeal were dismissed.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established