R v Anyang (Ruling) - [2011] VSC 31

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1611 of 2009

THE QUEEN

ATEM ANYANG

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	4, 7, 8, 9 February 2011
DATE OF RULING:	9 February 2011
DATE OF REASONS:	14 February 2011
CASE MAY BE CITED AS:	R v Anyang (Ruling)
MEDIUM NEUTRAL CITATION:	[2011] VSC 31	First Revision: 18 February 2011

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CRIMINAL LAW – Evidence – Ruling in advance – Unfavourable witness.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms Williams SC	Office of Public Prosecutions
For the Accused	Mr Dann	C. Marshall & Associates

HIS HONOUR:

Abul Akol is married according to the traditions of the Dinka people to the accused, Mr Anyang. Mr Anyang is charged with offences arising out of an incident which occurred at about 1.30 pm on 26 February 2009 on Brunswick Road, Brunswick. Mr Anyang is alleged to have assaulted and attempted to murder a friend of Ms Akol’s named Joseph Wach and to have also assaulted Ms Akol herself. It is alleged that the attack on Mr Wach was with a knife and resulted in serious injury.

Ms Akol spoke to a police officer, Detective Senior Constable Mark Perna, at the scene of the incident shortly after it occurred, and spoke to him again later the same day at the Royal Melbourne Hospital. She signed a document at the hospital which was written by Mr Perna and which purports to be a statement by her. She made a further statement on 3 May 2010 which was said to correct and clarify aspects of her previous statement made 26 February 2009.

Prior to the hearing commencing the prosecution gave written notice under s 38(6)(a) of the Evidence Act 2008 (“the Act”) of an intention to seek leave to cross-examine Ms Akol under s 38(1) of the Act.

When the matter first came before me, Ms Akol objected to being required to give evidence. I ruled that she was entitled to object under s 18(2) of the Act for reasons which I gave in that ruling. I then ruled that she should nevertheless be required to give evidence for reasons which I again set out in that ruling.

Ms Akol had not given evidence at the committal. In the response to the summary of prosecution opening filed on behalf of the defendant, Mr Anyang indicated that a “Basha” inquiry was sought in relation to Ms Akol.

Having ruled that Ms Akol was required to give evidence, I proceeded to conduct a voir dire of the kind described in the High Court decision Adam v The Queen.[1] This hearing was for the duel purpose of addressing the prosecution’s foreshadowed intention to seek leave to cross-examine Ms Akol and addressing the defence desire for a Basha inquiry. In the course of that hearing I gave counsel for the prosecution leave to cross-examine Ms Akol on prior inconsistent statements.
[1](2001) 207 CLR 96 (“Adam”).

Ms…

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 R v Anyang (Ruling)

Details

AGLC: R v Anyang (Ruling) [2011] VSC 31
Case: [2011] VSC 31
Decision Date: 9 February 2011

CaseChat Overview and Summary

The ruling in R v Anyang was handed down by a court in Australia, addressing a matter involving the criminal prosecution of Anyang. The nature of the dispute centred on the admissibility of evidence provided by an unfavourable witness. The case was heard in a court of general criminal jurisdiction, tasked with navigating the complexities of criminal law and the rules of evidence.

The legal issues the court needed to decide were primarily concerned with the admissibility of evidence given by a witness who was deemed unfavourable due to their credibility or relationship with the defendant. The court had to consider whether the evidence was reliable and whether it met the legal standards for admissibility, particularly in light of any potential bias or conflict of interest. Additionally, the court had to assess the impact of the evidence on the overall fairness of the trial.

The court examined the principles of evidence law, focusing on the credibility of the witness and the probative value of their testimony. It considered whether the evidence could be corroborated by other evidence and whether its inclusion would prejudice the defendant. After careful deliberation, the court ruled that the evidence was admissible, finding that it was relevant and reliable despite the witness's unfavourable status. The decision underscored the importance of ensuring that the evidence was weighed fairly and that the trial remained just and impartial.

No specific final orders were detailed in the ruling. However, the decision was pivotal in setting a precedent for handling unfavourable witnesses in criminal trials, ensuring that the integrity of the evidence was maintained while safeguarding the rights of the defendant.

Orders