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DPP v Madina

DPP v Madina

Case [2019] VSCA 73 21 March 2019

Appeal

Admissibility of Evidence

Criminal Liability

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2019 0036

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
LENNY MADINA (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 names of the respondents.

S APCR 2019 0037

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
FABIO DOUGLAS (A PSEUDONYM)	Respondent

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JUDGES:	PRIEST AP and T FORREST JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 March 2019
DATE OF JUDGMENT:	21 March 2019
DATE OF REASONS	4 April 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 73
JUDGMENT APPEALED FROM:	DPP v [Madina and Douglas] (Unreported, County Court of Victoria, Judge O’Connell, 18 February 2019)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Admissibility – Armed robbery and theft from Armaguard vans in 1994 and 2006 – Applicant Madina charged with armed robbery, false imprisonment and related offences – Applicant Douglas charged with theft – Prosecution reliance in each case on hearsay representations of deceased accomplice – Whether trial judge erred in ruling representations inadmissible – Whether representations made in circumstances that make it likely they are reliable – Whether probative value of evidence outweighs the danger of unfair prejudice to the accused – Whether jury directions could adequately ameliorate danger of unfair prejudice – Leave to appeal refused – Evidence Act 2008 ss 59, 62, 65(2)(c), 137 – Sio v The Queen (2016) 259 CLR 47; Asling v The Queen [2018] VSCA 132 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Shaw and Ms J Poole	Mr J Cain, Solicitor for Public Prosecutions
For the Respondents	Mr P Tehan QC with Mr A V Chernok	Melinda Walker, Criminal Law Solicitor

PRIEST AP
T FORREST JA:

Introduction

An audacious armed robbery was committed in Richmond on 22 June 1994, in the course of which $2,320,000 was stolen at gunpoint from an Armaguard van by a group of men posing as road workers. The respondent ‘Lenny Madina’ (for convenience, ‘Madina’) faces an indictment in the County Court charging him with armed robbery, false imprisonment and related money laundering offences arising out of this armed robbery.

More than a decade after the armed robbery, on 22 December 2006, $1,105,000 was stolen from another Armaguard van parked at Sunshine Market Place Shopping Centre, Sunshine. The respondent ‘Fabio Douglas’ (for convenience, ‘Douglas’) has been indicted in the County Court in relation to the Sunshine theft.

It is intended that Madina and Douglas will face separate trials in relation to the two indictments. They have each indicated that they will plead not guilty.

Apart from the fact that both sets of offences involved an Armaguard van, an element common to the two proposed trials is that the prosecution has sought to rely in each upon various hearsay statements of a man described as ‘Witness T’, who died in late 2013. The prosecution alleges that Witness T participated in both the 1994 armed robbery and the 2006…

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 Madina

Details

AGLC: Director of Public Prosecutions v Lenny Madina (a pseudonym)[1] [2019] VSCA 73
Case: [2019] VSCA 73
Decision Date: 21 March 2019

CaseChat Overview and Summary

In the case of the Director of Public Prosecutions v Madina, the applicant, along with Douglas, was charged with multiple offences including armed robbery, false imprisonment and related charges. The alleged crimes involved two armed robberies of Armaguard vans, one in 1994 and the other in 2006. The applicants sought an interlocutory appeal against the trial judge's ruling that hearsay representations made by a deceased accomplice, which the prosecution intended to rely upon, were inadmissible. The primary legal issue before the court was whether the trial judge erred in ruling that the hearsay representations were inadmissible under the Evidence Act 2008. The applicants argued that the representations were made in circumstances that made it likely they were reliable and that their probative value outweighed any danger of unfair prejudice to the accused. They also contended that the jury could be directed to mitigate any potential prejudice.

The court examined the applicable provisions of the Evidence Act 2008, including sections 59, 62, 65(2)(c), and 137, which deal with the admissibility of hearsay evidence. The court noted the principles established in Sio v The Queen and Asling v The Queen, which emphasise the importance of balancing the probative value of evidence against the risk of unfair prejudice. The court held that the trial judge was correct in finding that the representations were inadmissible, as they did not fall within an exception to the hearsay rule, and the danger of unfair prejudice to the applicants could not be adequately mitigated by jury directions. Consequently, the court refused leave to appeal, affirming the trial judge's decision.

Orders