DPP v Jacobs (a pseudonym) - [2023] VSC 610

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2023 0067

DIRECTOR OF PUBLIC PROSECUTIONS

SEAN JACOBS (a pseudonym)[1]

[1]Because this is a ruling for the purpose of a pre-trial hearing, a pseudonym has been used in place of the name of the accused and the reasons have been revised in a form which omits identifying details of the accused, the deceased, and their children.

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JUDICIAL REGISTRAR:	FREEMAN JR
WHERE HELD:	Melbourne
DATE OF HEARING:	15 August 2023
DATE OF RULING:	18 October 2023
CASE MAY BE CITED AS:	DPP v Jacobs (a pseudonym)
MEDIUM NEUTRAL CITATION:	[2023] VSC 610 (1^st revision 8 December 2023)

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CRIMINAL LAW – Practice and procedure – Accused charged with murder and intentionally causing injury - Application for the appointment of an intermediary for a witness – Whether witness eligible for an intermediary – Where witness under the age of 18 years when the proceeding commenced, but is now aged 18 years – Part 8.2A of the Criminal Procedure Act 2009 – Inconsistent definition of ‘witness’ in Divisions 1 and 2 of Part 8.2A – Whether the power to appoint an intermediary is discretionary – Application granted - Criminal Procedure Act 2009 (Vic), Part 8.2A – Interpretation of Legislation Act 1984 (Vic), ss 35, 45.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Gibson KC	Office of Public Prosecutions
For the Accused	Mr J Desmond	KPT Legal

FREEMAN JR:

Introduction

The accused is charged with the murder of his wife AB[2] on 3 December 2022. He is also charged with intentionally causing injury to CD[3], the son of the accused and deceased, during the same incident.
[2]Ibid.
[3]Ibid.

The prosecution makes application for the appointment of an intermediary for CD, who has made a statement to police and is to be called as witness in the prosecution of the accused. As at the date of the alleged offence, and the date on which the proceeding commenced, CD was aged under 18 years. He is now 18 years of age.

This application is made in the context of the hearing of preparatory cross-examination of a number of prosecution witnesses, pursuant to s 198B of the Criminal Procedure Act 2009 (‘CPA’), as part of the Court’s fast-track process for homicide prosecutions.

The application is opposed by the accused, who submits that the Court does not have power to appoint an intermediary for CD now that he is over the age of 18 years. The prosecution, on the other hand, submits that not only does the Court have power to appoint an intermediary for CD, but the exercise of that power is not discretionary and must be exercised by the Court if it is satisfied that the witness is eligible for an intermediary.

Accordingly, the determination of the present application requires consideration of three primary issues:

(a) Does the Court have power to appoint an intermediary for CD, a witness who was under the age of 18 years…

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 Jacobs (a pseudonym)

Details

AGLC: Director of Public Prosecutions v Jacobs (a pseudonym) [2023] VSC 610
Case: [2023] VSC 610
Decision Date: 18 October 2023

CaseChat Overview and Summary

The respondent, Jacobs, was charged with the murder of an individual and with intentionally causing injury to another person. The Director of Public Prosecutions applied for the appointment of an intermediary for a witness under section 50 of Part 8.2A of the Criminal Procedure Act 2009. The witness, who was under 18 years of age when the proceeding commenced, is now aged 18. The primary issue before the court was whether the witness was eligible for an intermediary under section 50 of Part 8.2A of the Act, given that the witness was under 18 when the proceeding commenced but is now 18 years of age.

The court found that there was an inconsistency in the definition of ‘witness’ in Divisions 1 and 2 of Part 8.2A of the Act. The court held that, based on the language of the Act, the power to appoint an intermediary was discretionary. In interpreting the Act, the court found that the object of Part 8.2A was to protect witnesses, including those who are vulnerable. The court further found that the witness in this case was vulnerable and required an intermediary to give evidence. Accordingly, the court granted the application for the appointment of an intermediary.

The court concluded that the witness was eligible for an intermediary under section 50 of Part 8.2A of the Criminal Procedure Act 2009, despite being 18 years of age, as the court found that the witness was vulnerable and required an intermediary to give evidence. The court granted the application for the appointment of an intermediary for the witness.

Orders