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Lewis (a pseudonym) v The Queen

Lewis (a pseudonym) v The Queen

Case [2018] VSCA 40 27 February 2018

Interlocutory Appeal

Admissibility of Evidence

Attempting to Pervert Course of Justice

Incriminating Conduct

Severance

Criminal Law

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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…

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 Lewis (a pseudonym) v The Queen

Details

AGLC: Lewis (a pseudonym) v The Queen [2018] VSCA 40
Case: [2018] VSCA 40
Decision Date: 27 February 2018

CaseChat Overview and Summary

Lewis, also known by a pseudonym, was appealing against the refusal of a judge to certify an interlocutory matter in the County Court of Victoria. The applicant was being tried for domestic violence-related charges and attempting to pervert the course of justice. His partner, who was exempted from giving evidence as a witness for the prosecution, made statements to the police. The admissibility of these statements as hearsay evidence under section 65 of the Evidence Act 2008 was a legal issue, as was whether the applicant’s attempt to conceal a ‘hoodie’ constituted incriminating conduct. Additionally, the court needed to determine whether severance should have been granted. The application was dismissed.

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.

Orders