FMJ v The Queen - [2011] VSCA 308

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0214

FMJ	Applicant
	v
THE QUEEN	Respondent

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JUDGES	WEINBERG & HANSEN JJA & BEACH AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	11 October 2011
DATE OF JUDGMENT	11 October 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 308

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CRIMINAL LAW – Interlocutory appeal – Admissibility of recording made by complainant’s mother containing admissions by accused – Judge refused to certify interlocutory decision for appeal – Crown case not dependent upon recording alone – Criminal Procedure Act 2009 s 295(3)

CRIMINAL LAW – Evidence – Application to exclude evidence of recording pursuant to Evidence Act 2008 ss 85, 90 and 137 – Judge misstated onus of proof with regard to s 85 – Error inconsequential in particular circumstances of case – Other grounds untenable – Leave to appeal refused

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Appearances:

Counsel

Solicitors

For the Applicant

Mr J Fronistas

Bediaga Xavier & Ramon

For the Respondent

Mr G J C Silbert SC with

Ms S G MacDougall

Mr C Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

The applicant, FMJ, seeks review of a judge’s refusal to certify, under s 295(3) of the Criminal Procedure Act 2009, that certain evidence sought to be led by the Crown, if ruled inadmissible, would eliminate or substantially weaken the prosecution case. The application for review is brought pursuant to s 296(1) of the Act.

The trial relates to six charges of incest, and five charges of indecent act with a child under the age of 16. The applicant is the father of the child. The interlocutory decision under challenge concerns the admissibility of an audio recording made by the child’s mother when the mother spoke to the applicant some three weeks or so after the child had complained to the police about the applicant’s conduct.

The judge refused to certify the interlocutory decision. Her ruling in that regard was delivered on 30 August 2011. At an earlier stage, there had been several days of preliminary argument regarding the admissibility of the audio recording. A ruling permitting that evidence to be led was delivered on the same day as the ruling refusing to certify. It should be noted that a jury has not yet been empanelled in this matter. The trial has been adjourned to next year pending the outcome of this application.

There is ultimately one issue to be resolved. The defence seeks to have excluded a recording of a conversation between the applicant and the child’s mother which took place on 24 April 2010. The mother recorded the conversation on her own initiative, without having been asked by the police to do so, and without the knowledge of the applicant. It may be described, for convenience, as the ‘pretext recording’.

It was originally submitted on behalf of the applicant that the pretext recording was inadmissible pursuant to s 84 of the Evidence Act 2008, as well as ss 85, 90 and 137 of that Act. The judge rejected all four bases upon…

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 FMJ v The Queen

Details

AGLC: F M J v The Queen [2011] VSCA 308
Case: [2011] VSCA 308
Decision Date: 11 October 2011

CaseChat Overview and Summary

The defendant, FMJ, appealed an interlocutory decision made by a trial judge refusing to certify the decision for appeal. The appeal pertained to the admissibility of a recording made by the complainant's mother, which contained admissions by the defendant. The Crown argued that the judge had refused to certify the interlocutory decision for appeal, despite the judge finding that the Crown's case was not dependent on the recording alone. The defendant contended that the judge misstated the onus of proof in relation to s 85 of the Evidence Act 2008, and that the error was consequential in the particular circumstances of the case. The appeal also challenged the judge's decision to exclude the evidence of the recording under ss 90 and 137 of the Evidence Act 2008.

The court needed to determine whether the trial judge erred in refusing to certify the interlocutory decision for appeal and whether the judge misstated the onus of proof in relation to s 85 of the Evidence Act 2008. The court also had to consider whether the error was consequential in the particular circumstances of the case, and whether the judge's decision to exclude the evidence of the recording under ss 90 and 137 of the Evidence Act 2008 was correct. The court had to weigh the probative value of the evidence against the potential for unfair prejudice, as required by s 137 of the Evidence Act 2008.

The court found that the trial judge did not err in refusing to certify the interlocutory decision for appeal, as the Crown's case was not dependent on the recording alone. The court also found that the judge's misstatement of the onus of proof in relation to s 85 of the Evidence Act 2008 was inconsequential in the particular circumstances of the case. The court found that the other grounds for appeal were untenable, and therefore refused leave to appeal. The court held that the exclusion of the evidence of the recording was not an error of law, and that the probative value of the evidence was outweighed by the potential for unfair prejudice.

The court refused leave to appeal and dismissed the appeal. The court held that the trial judge's decision to exclude the evidence of the recording was not an error of law, and that the probative value of the evidence was outweighed by the potential for unfair prejudice. The court found that the other grounds for appeal were untenable, and that the refusal to certify the interlocutory decision for appeal was not an error of law. The appeal was dismissed, and the decision of the trial judge stood.

Orders