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Fletcher v The Queen

Fletcher v The Queen

Case [2015] VSCA 146 15 June 2015

Conviction

Admissibility of Evidence

Causation

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2014 0185

TIMOTHY DOUGLAS FLETCHER	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and PRIEST JJA and DIXON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 April 2015
DATE OF JUDGMENT:	15 June 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 146
JUDGMENT APPEALED FROM:	DPP v Fletcher (Unreported, County Court of Victoria, Judge Gucciardo, 12 August 2014)

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CRIMINAL LAW – Conviction – Intentionally causing serious injury – Crown witness (applicant’s de facto partner) objected to giving evidence under s 18 of Evidence Act 2008 – Crown sought to tender witness’s statement to police pursuant to s 65 – Whether trial judge erred in allowing statement to be admitted – Whether witness ‘not available’ to give evidence within meaning of s 65 – Whether tendering statement amounted to witness being ‘required to give evidence’ contrary to s 18(6) – No error in admission of statement – R v B O (No 2) (2012) 15 DCLR (NSW) 317 and Haddara v The Queen [2014] VSCA 100 considered.

CRIMINAL LAW – Conviction – Evidence from applicant’s de facto partner regarding applicant’s bad character – Whether evidence admissible as credibility evidence under s 108A of Evidence Act 2008 – Evidence not admissible – Whether admission of evidence resulted in substantial miscarriage of justice – Conviction inevitable – Baini v The Queen (2012) 246 CLR 469 – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P F Tehan QC with Mr T R Alexander	Stephen Andrianakis & Associates
For the Crown	Ms F L Dalziel	Ms V Anscombe, Acting Solicitor for Public Prosecutions

WEINBERG JA:

I agree, for the reasons given by Dixon AJA, that leave to appeal should be refused.

PRIEST JA:

Having had the considerable advantage of reading the draft reasons of Dixon AJA, I agree with the orders he proposes. And, subject to what follows, I agree with his Honour’s reasons for those orders.

Ground 1 — Witness not available to give evidence

As appears from the reasons of Dixon AJA, Imogen Li, who was not required to give evidence at committal proceedings, did not answer a subpoena to give evidence at trial. A warrant was thus issued for her arrest. In the face of her non-attendance, however, the prosecutor sought an advance ruling pursuant to s 65(2) of the Evidence Act 2008 (‘the Act’) with respect to the tender of Ms Li’s statement to police. Showing some prescience, the prosecutor also foreshadowed that, should Ms Li be located, and should she then seek to invoke s 18 of the Act, the prosecution would seek to rely on s 65(2), on the basis that Ms Li — if excused from giving evidence under s 18 — was to be regarded as ‘not available to give evidence about an asserted fact’.[1]
[1]See Evidence Act 2008 s 65(1).

Of importance to my conclusion that ground 1 cannot be upheld, is the course later adopted by defence counsel.

Ms Li was located.…

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 Fletcher v The Queen

Details

AGLC: Fletcher v The Queen [2015] VSCA 146
Case: [2015] VSCA 146
Decision Date: 15 June 2015

CaseChat Overview and Summary

The appellant, Fletcher, was convicted of intentionally causing serious injury and appealed against the conviction. The central issue in the case was whether the trial judge erred in admitting a statement made by the Crown’s witness, the appellant’s de facto partner, to the police under section 65 of the Evidence Act 2008. The Crown sought to tender this statement after the witness objected to giving evidence in court under section 18 of the same act. The court had to determine if the witness was ‘not available’ to give evidence within the meaning of section 65 and whether tendering the statement amounted to the witness being ‘required to give evidence’ in contravention of section 18(6).

The Court of Appeal considered that there was no error in the admission of the witness’s statement. It relied on the precedents of R v B O (No 2) (2012) 15 DCLR (NSW) 317 and Haddara v The Queen [2014] VSCA 100, which provided that where a witness is not available to testify, their prior statement may be admitted under section 65. The court found that the witness’s objection to testifying did not equate to the witness being ‘required to give evidence’ under section 18(6). Furthermore, the court determined that even if there had been an error in admitting the statement, it did not result in a substantial miscarriage of justice, as the evidence against the appellant was overwhelming.

The court also addressed the admissibility of evidence regarding the appellant’s bad character as provided by the de facto partner. It was held that such evidence was not admissible as credibility evidence under section 108A of the Evidence Act 2008. However, the court found that the admission of this evidence did not result in a substantial miscarriage of justice, as the conviction would have been inevitable in any event, as per Baini v The Queen (2012) 246 CLR 469. Therefore, the appeal was dismissed, and leave to appeal was refused.

Orders