SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0241
| GILBERT LEWIS (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | 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 name of the applicant.
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| JUDGES: | FERGUSON CJ, WEINBERG JA and KIDD AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 February 2018 |
| DATE OF JUDGMENT: | 27 February 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 40 |
| JUDGMENT APPEALED FROM: | DPP v [Lewis (a pseudonym)] [Rulings] (Unreported, County Court of Victoria, Judge Wilmoth, 26 and 30 October 2016, 1, 2, 8, 9 and 10 November 2017) |
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CRIMINAL LAW – Interlocutory Appeal – Application for review of judge’s refusal to certify – Applicant being tried in County Court for domestic violence related charges and attempting to pervert course of justice – Applicant’s partner exempted from obligation to give evidence as witness for prosecution – Reliance by prosecution on statements made to police – Whether hearsay evidence admissible under s 65 of Evidence Act 2008 – Whether applicant’s attempt to conceal ‘hoodie’ constituted incriminating conduct – Whether severance ought to have been granted – Application dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J Sutton | Paul Vale Criminal Law |
| For the Crown | Mr C B Boyce SC with Mr D Porceddu | Mr J Cain, Solicitor for Public Prosecutions |
FERGUSON CJ
WEINBERG JA
KIDD AJA:
The applicant is currently on trial in the County Court on a single indictment containing 12 charges. The first nine of these charges arose out of a confrontation that took place on 8 June 2016, at the home of the applicant’s partner.
Charge 1 alleges aggravated burglary. Charges 2 and 7 allege intentionally cause injury while charges 3 and 8 allege recklessly cause injury. These are alternatives to charges 2 and 7. Charge 4 is one of intentionally damaging property. Charge 5 alleges extortion with a threat to kill. Charge 6 is one of false imprisonment. Charge 9 is making a threat to kill.
Charge 10 alleges that between 28 July and 1 September 2016, the applicant persistently contravened a family violence intervention order by contacting SW by phone from prison.
Charge 11 alleges an attempt, between 10 and 23 August 2016, to pervert the course of justice. Charge 12 alleges a further such attempt, on 28 August 2016. Both charges involved the applicant seeking to dissuade SW or other witnesses to the events of 8 June 2016, from giving evidence against him.
On 25 October 2017, the applicant’s trial commenced. There were several weeks of preliminary argument, concluding on 10 November 2017. There are more than 500 pages of transcript thus far, and it seems there is more to come. No jury has yet been empanelled.
In summary, what occurred was this. SW was to be the central witness for the prosecution in relation to charges 1–9. She had made two statements to police concerning the events of the day in question, one dated…
Continue reading Lewis (a pseudonym) v The Queen
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- AGLC
- Lewis (a pseudonym) v The Queen [2018] VSCA 40
- Case
- [2018] VSCA 40
- Decision Date
CaseChat Overview and Summary
The central legal issues in this case revolved around the admissibility of the statements made by the applicant's partner to the police and whether these statements constituted hearsay evidence under section 65 of the Evidence Act 2008. Another issue was whether the applicant's attempt to conceal a ‘hoodie’ constituted incriminating conduct, and if severance should have been granted to address any potential prejudice that might arise from the joint trial of related charges. The court had to carefully consider these issues in the context of the applicant's right to a fair trial and the principles of justice.
In dismissing the application, the court held that the statements made by the applicant’s partner to the police were admissible as they were not hearsay evidence under section 65 of the Evidence Act 2008. The court found that the statements were not being used to prove the truth of the matter asserted but rather to establish the context and circumstances of the events in question. Regarding the applicant’s attempt to conceal the ‘hoodie’, the court determined that this conduct did not constitute incriminating conduct that warranted severance. The court concluded that the joint trial would not result in a miscarriage of justice and that the applicant's right to a fair trial was not prejudiced by the exemption of his partner from giving evidence.
The court’s final orders were to dismiss the application for review of the judge’s refusal to certify the interlocutory matter. The court found no grounds to interfere with the judge’s decision, affirming that the trial could proceed without severance and that the hearsay evidence was properly admissible. The decision underscored the importance of maintaining the integrity of the trial process and ensuring that justice is administered fairly and efficiently.
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