Finn v The Queen

[2011] VSCA 68

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR  2011 0032
JASON CRAIG FINN	Applicant
v
THE QUEEN	Respondent

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JUDGES:	ASHLEY, BONGIORNO AND HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 March 2011
DATE OF JUDGMENT:	11 March 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 68

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CRIMINAL LAW – Interlocutory appeal – Certification granted pursuant to s 295(3)(a) of the Criminal Procedure Act 2009 – Admissibility of hearsay evidence – Exception to hearsay rule - Evidence of previous representation - Section 65(2)(b) of the Evidence Act 2008 – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G Casement	Sullivan Braham Pty Ltd
For the Respondent	Mr D Trapnell SC with Mr G Barr	Mr C Hyland Solicitor for Public Prosecutions

ASHLEY JA:

1. Before the Court is an application for leave to appeal from an interlocutory decision made by a judge in the County Court on 14 February 2011. The import of the impugned order is that all representations made by the now deceased complainant, Corbett, on 17 September 2009, including a sworn statement made that day, should be admitted on trial, pursuant to s 65(2)(b) of the Evidence Act 2008. 

1. Before us, counsel for the applicant submitted that the various representations were not made, as s 65(2)(b) requires, ‘when or shortly after’ the asserted facts occurred. The judge had erred in finding the contrary.

1. Counsel argued, second, that the circumstances were not such as to make it unlikely that the representation was a fabrication.  Here again – although counsel conceded that the judge had identified relevant considerations – it was submitted that his Honour had erred in finding the contrary.

1. Third, counsel submitted that the judge had erred in not excluding the evidence under s 137 of the Evidence Act 2008. 

1. In my opinion, the judge’s ruling is not attended by sufficient doubt as would justify a grant of leave to appeal.  In that connection, I note that:  (1) several issues of statutory interpretation which counsel sought to raise do not require investigation in the particular circumstances;  and (2) the matter is not one which is suitable for an interlocutory appeal, particularly having regard to what should be a short trial. 

1. In refusing leave to appeal, I would, however, draw attention to the apparent form of the judge’s ruling. Having examined the various statements made by the deceased Corbett, including his sworn statement, it appears to me that only fragments of them could be admitted as representations pursuant to s 65(2)(b), Evidence Act 2008. So far as the judge’s ruling might suggest the contrary, it ought be read down. It will remain a matter for the judge at trial to consider, consistently with the judge’s ruling, what representations within the various statements are to be admitted pursuant to s 65(2)(b). It may be that other parts of the statements are

admissible on different bases.  But whether that is so is not before this Court on this application. 

BONGIORNO JA: