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Lindsey (a pseudonym) v The Queen

Lindsey (a pseudonym) v The Queen

Case [2021] VSCA 230 24 August 2021

Appeal

Admissibility of Evidence

Interlocutory Orders

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0042

PHILLIP LINDSEY (a pseudonym)[1]	Applicant
v
THE QUEEN	Respondent

[1]Because this is an interlocutory proceeding, a pseudonym has been used in place of the name of the applicant.

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JUDGES:	MAXWELL P, KYROU and NIALL JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	23 July 2021
DATE OF JUDGMENT:	24 August 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 230
JUDGMENT APPEALED FROM:	[2021] VCC 294 (Judge Hassan)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Arson – Agreement to commit offences – Evidence – Hearsay – Co-conspirators rule – Admissibility of statements made by third parties in absence of applicant (accused) – Whether ‘reasonable evidence’ of applicant’s participation in criminal enterprise – Evidence admissible - Leave to appeal refused – Ahern v The Queen (1988) 165 CLR 87, Tripodi v The Queen (1961) 104 CLR 1, Tsang v The Queen (2011) 35 VR 240, Director of Public Prosecutions v Mariona [2019] VSCA 107 considered – Evidence Act 2008 s 87(1)(c).

CRIMINAL LAW – Appeal – Interlocutory appeal – Certification – Review of refusal to certify – Whether statutory test satisfied – Interlocutory decision concerned admissibility of evidence - Exclusion of impugned evidence would ‘eliminate or substantially weaken the prosecution case’ – No separate question concerning whether interlocutory decision ‘attended with doubt’ – Refusal to certify not reasonably open – Review application allowed – McDonald v Director of Public Prosecutions (2010) 26 VR 242, Stannard v Director of Public Prosecutions (2010) 28 VR 84 considered – Criminal Procedure Act 2009 s 295(3).

WORDS AND PHRASES – ‘eliminate or substantially weaken the prosecution case’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Page	Haines & Polites
For the Respondent	Mr A Grant	Ms A Hogan, Solicitor for Public Prosecutions

MAXWELL P
KYROU JA
NIALL JA:

Summary

The applicant is facing two charges of arson,[2] arising from the following circumstances. In the early hours of the morning on 14 February 2019, two motor vehicles were set on fire. The applicant was in prison at the time.
[2]Contrary to Crimes Act 1958 ss 197(1) and (6).

The case against him is that he entered into an agreement with others that the acts of arson be committed.[3] Although complicity is now governed by statute, the phrase ‘criminal enterprise’, as used by the trial judge in her ruling, aptly captures the basis of complicity relied on.[4]
[3]Ibid s 323(1)(c).
[4]DPP v [Lindsey] [2021] VCC 294, [39], [48], [50] (Judge Hassan) (‘Ruling’).

It is alleged that the applicant recruited a friend of his (‘MB’) and asked him to arrange for the vehicles to be set on fire. The applicant’s motive is said to have been revenge against a person (‘S’) with whom he had previously shared a house.

The Crown case is founded on two sets of recorded telephone conversations. The first set comprises conversations between the applicant and various individuals, including MB. The second set comprises conversations to which…

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 Lindsey (a pseudonym) v The Queen

Details

AGLC: Lindsey (a pseudonym) v The Queen [2021] VSCA 230
Case: [2021] VSCA 230
Decision Date: 24 August 2021

CaseChat Overview and Summary

The case of Lindsey (a pseudonym) v The Queen involved an interlocutory appeal against the refusal of leave to appeal against a lower court's decision to admit certain evidence in a criminal trial. The appellant was charged with arson and conspiracy to commit arson. The primary legal issue was whether statements made by third parties in the absence of the accused, which implicated him in the conspiracy, were admissible under the hearsay rule for co-conspirators. The appellant argued that the evidence should have been excluded as it did not meet the threshold of 'reasonable evidence' of his participation in the criminal enterprise.

The court examined the statutory framework under the Evidence Act 2008 and relevant case law, including Ahern v The Queen, Tripodi v The Queen, and Tsang v The Queen. It concluded that there was reasonable evidence of the appellant's involvement based on the content of the third-party statements and other contextual factors. Consequently, the court found that the lower court's decision to admit the evidence was not in error. The appeal against the refusal to grant leave was also considered, focusing on whether the lower court's interlocutory decision satisfied the statutory test under the Criminal Procedure Act 2009. The court held that the statutory test was met, as the exclusion of the impugned evidence would eliminate or substantially weaken the prosecution case, and there was no separate question concerning whether the interlocutory decision was attended with doubt. Therefore, the application for review of the refusal to certify was allowed.

The final orders of the court involved the allowance of the review application, setting aside the refusal to certify the interlocutory decision. The case underscored the stringent criteria for admitting hearsay evidence under the co-conspirators exception and the high threshold for granting leave to appeal interlocutory decisions in criminal matters.

Orders