Gony v The King

[2023] VSCA 201

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2023 0140

NYACHUOL GONY	Applicant
v
THE KING	Respondent

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JUDGES:	PRIEST, BEACH and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2023
DATE OF ORDERS:	17 August 2023
DATE OF REASONS:	28 August 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 201
JUDGMENT APPEALED FROM:	CDPP v Gony (Unreported, County Court of Victoria, 14 August 2023, Judge Allen)

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CRIMINAL LAW – Interlocutory appeal – Conspiracy to dishonestly cause a loss to the Commonwealth – Whether previous representations in documents of health care providers admissible as business records – Whether previous representations inadmissible hearsay – Representations admissible as business records – Leave to appeal refused – Evidence Act 2008, ss 69, 81, 82, 90 and 137 – Criminal Procedure Act 2009, s 297(2).

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Counsel
Applicant		Mr R de Vietri
Respondent		Mr J Shaw and Ms C Nicholson
Solicitors
Applicant	Victoria Legal Aid
Respondent	Commonwealth Director of Public Prosecutions

PRIEST JA
BEACH JA
WALKER JA:

1. At the time this application for leave to appeal was heard and determined, Nyachuol Gony, the applicant, was on trial before a judge and jury in the County Court, charged with conspiring with her mother, Nyakukuth Osula Anyang Alama (‘Alama’), between 19 September 2014 and 15 November 2016, to dishonestly cause a loss to the Commonwealth.[1]  The Court has since been informed that the applicant was found not guilty by a jury on 24 August 2023.

   [1]Criminal Code (Cth), s 135.4(3).

2. As part of its case, the prosecution had tendered a number of business records from the City of Casey Maternal and Child Health Service; the Cardinia Shire Maternal and Child Health Service; Ambulance Victoria; and Monash Health Hospitals. Although no objection initially had been raised as to their admissibility as business records under s 69 of the Evidence Act 2008 (the ‘Act’), on day 20 of the trial the judge raised with the parties what he perceived to be an issue ‘that may go to the very root of the fairness of this trial’.  The judge informed the parties that it had occurred to him that ‘several, if not, numerous of the documents relied upon by the Crown as business records, purport to contain admissions made by the accused’.  Referring to Glowacki v The King,[2] the judge said that it seemed to him ‘that that material should never have been admitted because it is second-hand hearsay and is therefore not amenable to admission pursuant to the exception in relation to admissions under the Evidence Act’.  Thereafter, the applicant’s counsel sought exclusion of the records.

   [2][2023] VSCA 176 (Priest, T Forrest and Kennedy JJA).

3. Despite his expressed qualms about the admissibility of the records, after hearing full argument, on 14 August 2023 (day 21 of the trial), the judge refused to exclude evidence of representations contained in various business records (the ‘interlocutory decision’). That same day, the judge provided certification under s 295(3)(a) of the Criminal Procedure Act 2009 (‘CPA’) with respect to the interlocutory decision described as follows:

   Application to exclude evidence of admissions on the basis that it was not first-hand, pursuant to s 82 of the Evidence Act. Application refused on the basis that the evidence had been admitted as admissible hearsay evidence under the business records exception under s 69(2)(b) of the Act.

4. Following certification, the jury was informed that they would not be required to attend court again until 16 August 2023.  Discussions between the judge and counsel canvassed the possibility that, depending on how quickly this Court was able to hear and determine the application and any appeal, the trial might be able to continue, but also that it may be that the jury would need to be discharged.

5. Pursuant to the judge’s certification, the applicant sought leave to appeal against the interlocutory decision on a ground that contended that the trial judge erred in admitting evidence of admissions contained in certain business records.  The particulars of the ground of appeal were as follows:

   [The judge] erred in a matter of statutory construction by concluding that the business records exception (s 69 of the Evidence Act) to the hearsay rule (s 59 of the Evidence Act) operated such as to completely circumvent the ‘first-hand’ requirement that usually applies to admissions in criminal proceedings (s 82 of the Evidence Act); …[3]

   [3]A second part of the proposed ground of appeal was abandoned during the hearing in this Court.  It was formulated as follows:

   b.In the alternative [the judge] erred by failing to exclude the evidence of admissions pursuant to s 90 or s 137 of the Evidence Act, in circumstances which included that those admissions were hearsay that was more remote than ‘first-hand’ hearsay.

6. On 17 August 2023, following the hearing of the application for leave to appeal, the Court made an order refusing leave to appeal against the interlocutory decision.  These are the reasons for the Court's orders.

7. Section 297 of the CPA sets out when leave to appeal against an interlocutory decision may be given. Section 297(2) provides that this Court ‘must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial’.

8. In the present case, the trial had commenced and had occupied 21 days of court time. A grant of leave to appeal, followed by the resolution of an appeal in this Court, may have required the jury to be discharged and, depending on the outcome of the appeal and the attitude of the prosecution, a fresh jury empanelled. In contrast, if the trial proceeded, and if the applicant had been convicted of the offence with which she was charged, she would have had an opportunity to seek leave to appeal on the basis that the impugned evidence ought not have been admitted (whether by reason of ss 81 and 82 of the Evidence Act, or by reason of an allegation that the judge erred in not excluding the impugned evidence under s 90 or s 137). In those circumstances, we did not consider that the reasons for granting leave to appeal advanced by the applicant clearly outweighed the disruption to the trial associated with this interlocutory appeal. To the contrary, we considered that the disruption to the trial clearly outweighed the reasons advanced for the grant of leave.

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