SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0055
| AAMIR NORRIS (A PSEUDONYM)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
| S APCR 2018 0056 | |
| RUARIRI ROSS (A PSEUDONYM) | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicants.
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| JUDGES: | PRIEST, NIALL and ASHLEY JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 May 2018 |
| DATE OF JUDGMENT: | 24 May 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 137 |
| RULING APPEALED FROM: | DPP v [Norris & Ross] (Unreported, County Court of Victoria, 5 March 2018) |
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CRIMINAL LAW — Interlocutory appeal — Applicants charged with aggravated burglary, intentionally cause injury and theft — Witnesses not available to give evidence — Whether judge erred in not excluding committal evidence of witnesses — Application for leave to appeal refused — Evidence Act 2008, ss 65, 137 — Haddara v The Queen (2014) 43 VR 53.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Norris | Ms F H Todd | Slades and Parsons Solicitors |
| For the Applicant Ross | Mr M Page | Leanne Warren & Associates |
| For the Respondent | Mr C B Boyce SC with Ms C J Duckett | Mr John Cain, Solicitor for Public Prosecutions |
PRIEST JA
NIALL JA
ASHLEY JA:
Introduction
An indictment filed in the County Court charges each applicant with aggravated burglary[2] (charge 1), intentionally causing injury[3] (charge 2) and theft[4] (charge 3).
Save that the applicant Norris has indicated that he intends to plead guilty to intentionally causing injury, both applicants have indicated that they will plead not guilty.
Although they each made statements to the police and gave evidence at committal proceedings against the applicants, the two complainants in the case, Ms Hilina Gezahegn and Mr Abdullahi (‘Abdul’) Addo, have been excused from giving evidence in the applicants’ trial. Both complainants gave evidence on voir dire before the trial judge that they feared for their safety if they gave evidence. Having received their evidence, the judge was ‘satisfied that they are both genuinely in fear for their personal safety if they were to give evidence’, and he purported to excuse them from doing so.
Pursuant to s 65 of the Evidence Act 2008 (‘the Act’), the prosecution then sought to rely on the evidence that both complainants gave in the committal proceedings. Although counsel for both applicants conceded that, within the meaning of s 65, each of the complainants ‘is not available to give evidence about an asserted fact’, they contended that the evidence ought to be excluded pursuant to s 137 of the Act, or pursuant to the common law unfairness discretion.[5]
[5]See Haddara v The Queen (2014) 43 VR 53 (Redlich, Weinberg and Priest JJA) (‘Haddara’).
By a ruling dated 5 March 2018 (‘the ruling’ or ‘the interlocutory decision’) the trial judge refused…
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- AGLC
- Aamir Norris (a pseudonym)[1] v The Queen , , Ruariri Ross (a pseudonym) and the Queen [2018] VSCA 137
- Case
- [2018] VSCA 137
- Decision Date
CaseChat Overview and Summary
The court examined whether the judge was required to exclude the committal evidence of the witnesses who were not available to give evidence at trial. This involved an analysis of the statutory provisions and relevant case law, particularly Haddara v The Queen, which provided guidance on the application of these provisions. The applicants argued that the judge should have excluded the committal evidence due to the unavailability of the witnesses. However, the court considered whether the judge's decision was an error that warranted an appeal.
The court concluded that the judge's decision not to exclude the committal evidence was not an error. It found that the statutory provisions and case law did not require the exclusion of the committal evidence in these circumstances. The court held that the judge had correctly exercised their discretion in considering the availability of the witnesses and the admissibility of the committal evidence. Consequently, the application for leave to appeal was refused.
The court did not make any further orders beyond refusing the application for leave to appeal. The decision reinforced the principle that the exclusion of committal evidence is not mandatory and depends on the specific circumstances of each case. This outcome highlights the importance of judicial discretion in determining the admissibility of evidence in criminal trials.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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