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Norris v The Queen

Norris v The Queen

Case [2018] VSCA 137 24 May 2018

Appeal

Jurisdiction

Admissibility of Evidence

Interlocutory Orders

Criminal Law

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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).
[2]Crimes Act 1958, s 77.
[3]Crimes Act 1958, s 18.
[4]Crimes Act 1958, s 74(1).

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…

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 Norris v The Queen

Details

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: 24 May 2018

CaseChat Overview and Summary

The applicants in Norris v The Queen sought leave to appeal against a decision made by a judge not to exclude the committal evidence of witnesses who were not available to give evidence at trial. The applicants were charged with aggravated burglary, intentionally causing injury, and theft. The High Court of Australia was called upon to determine whether the judge erred in not excluding the committal evidence under the Evidence Act 2008, sections 65 and 137.

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