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Luna (a Pseudonym) v The Queen

Luna (a Pseudonym) v The Queen

Case [2016] VSCA 10 19 February 2016

Appeal

Hearsay

Admissibility of Evidence

Probative Value

Unfair Prejudice

Common Law Fairness Discretion

Evidence Act 2008

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2015 0241

JOHNNY LUNA (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:	REDLICH, PRIEST and BEACH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 February 2016
DATE OF JUDGMENT:	19 February 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 10
JUDGMENT APPEALED FROM:	DPP v [Luna] (Unreported, County Court of Victoria, Judge Tinney, 27 November 2015)

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CRIMINAL LAW – Interlocutory Appeal – Hearsay – Trial of sexual offences – Complainant deceased – Whether complainant’s evidence in committal proceedings admissible – Evidence of complainant’s psychiatric condition became known after committal – Whether probative value of evidence is outweighed by danger of unfair prejudice – Whether common law unfairness discretion applies – Evidence Act 2008, ss 65 and 137 – Haddara v The Queen (2014) 43 VR 53.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T E Wraight QC with Ms K Argiropoulos	Lethbridges
For the Crown	Mr D A Trapnell QC with Ms C J C Parkes	Mr J Cain, Solicitor for Public Prosecutions

REDLICH
PRIEST
BEACH JJA:

Introduction

In a pending trial for serious sexual offences, the trial judge refused to exclude the committal evidence of an unavailable witness.

Pursuant to the trial judge’s certification,[2] the applicant sought to challenge the trial judge’s refusal in this Court, submitting that the evidence should have been excluded pursuant to s 137 of the Evidence Act 2008 (‘the Act’) or the residual common law unfairness discretion recognised in Haddara.[3]
[2]Criminal Procedure Act 2009, s 295(3)(b).
[3]Haddara v The Queen (2014) 43 VR 53 (‘Haddara’).

For the reasons that follow, in our opinion the applicant’s challenge must fail.

Background

It is necessary to say something about the background to the application in this Court.

An indictment filed in the County Court charges the applicant with the indecent assault[4] (two charges — charges 1 and 2) and rape[5] (two charges — charges 3 and 4) of ‘LE’.
[4]Crimes Act 1958, s 39(1).
[5]Crimes Act 1958, s 38(1).

The events leading to the first charge are alleged to have occurred between 1 and 18 January 2013, and those founding the remaining charges are said to have occurred on 1 February 2013. On 7 August 2013 the applicant was charged. At committal proceedings on 22 November 2013, LE and two other witnesses gave evidence and were cross-examined. Having heard the evidence, the examining magistrate committed the applicant for trial.

Initially, the applicant’s trial was listed to commence in the County Court on Monday, 17 November 2014. Less than a week before the listed trial date, on Tuesday, 11 November 2014, the prosecution solicitor notified the defence that LE was unwell. At a mention on Friday, 14 November 2014, due to LE’s ill-health, the trial was adjourned to…

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 Luna (a Pseudonym) v The Queen

Details

AGLC: Luna (a Pseudonym) v The Queen [2016] VSCA 10
Case: [2016] VSCA 10
Decision Date: 19 February 2016

CaseChat Overview and Summary

Luna, acting through a pseudonym, appealed against an interlocutory decision that allowed the admission of hearsay evidence from the deceased complainant in a sexual offences trial. The High Court was tasked with determining the admissibility of the complainant’s statements made in committal proceedings, particularly in light of the psychiatric condition that came to the court's attention post-committal. The core issue was whether the probative value of this hearsay evidence was outweighed by the potential for unfair prejudice, and if the common law discretion to exclude unfair evidence was applicable under the Evidence Act 2008.

The court considered the interplay between statutory provisions and the common law discretion to exclude evidence. It examined whether the deceased complainant’s psychiatric condition, which was unknown at the time of the committal proceedings, rendered her previous statements unreliable or prejudicial. The court deliberated on the principles set out in Haddara v The Queen, where it was held that the probative value of evidence could be substantially diminished by factors that came to light post-committal, thus potentially warranting exclusion under the common law discretion. In this case, the court needed to determine if the psychiatric condition of the complainant sufficiently impacted the reliability and probative value of her statements to warrant exclusion.

The court held that the probative value of the complainant's hearsay evidence was indeed outweighed by the danger of unfair prejudice due to her undisclosed psychiatric condition. The court exercised its discretion under the common law, finding that the unfair prejudice substantially outweighed the probative value. Consequently, the court ruled that the evidence should be excluded from the trial. The appeal was thus allowed, and the admission of the hearsay evidence was set aside.

No further orders were made in this interlocutory decision, and the matter was remitted to the lower court for further proceedings.

Orders