R v Aujla (Ruling No 5) - [2012] VSC 602

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0146 of 2011
No. 0147 of 2011

THE QUEEN

SIMARPAL AUJLA

and

AMANDEEP SINGH

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	9, 10, 11, 14, 15 and 16 May 2012
DATE OF RULING:	29 May 2012
CASE MAY BE CITED AS:	R v Aujla & anor (Ruling No 5)
MEDIUM NEUTRAL CITATION:	[2012] VSC 602

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CRIMINAL LAW – Hearsay – Section 65 of the Evidence Act 2008 – Whether maker of statement unavailable – Maker of statement overseas – Reasonable efforts to obtain attendance – Satisfied maker not available – Where highly probably that the representations were reliable – Section 137 of the Evidence Act 2008 – Danger of unfair prejudice outweighs probative value.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Peter Rose SC Raelene Sharp	Office of Public Prosecutions
For the Accused Mr Aujla	Campbell Thomson	Emma Turnbull Criminal Lawyers
For the Accused Mr Singh	Peter Matthews	Dr Martine Marich Criminal Law Specialists

HIS HONOUR:

The accused men are charged with conspiring to kidnap Parmjit Singh, aggravated burglary upon his house, intentionally or in the alternative recklessly causing him serious injury and intentionally or in the alternative recklessly causing his wife injury.

In short, it is alleged that the accused men agreed to kidnap Parmjit in order to hold him to ransom. Part of the execution of that plan involved, on 7 December 2010 at 4.30am, breaking into his house, beating him until he was disabled, immobilising him with duct tape restraints and removing him to a secure location. The Crown case is that Aujla drove to near Parmjit’s house in his black Holden Caprice and that Amandeep Singh drove to near Parmjit’s house in his white Mazda 3 tonne van.

Aujla ran a small business installing fire alarms and for a time house insulation. Amandeep Singh worked for him. A potential witness in this case, Harpreet Singh, also worked for Aujla. He is the author of a statement made to the informant, Detective Senior Constable Joshua Morgan, on 4 January 2011. That statement is annexed to this ruling. This statement was made through an interpreter, Surabjit Singh. It was signed by Harpreet Singh and acknowledged by him as being true and correct in the usual form.

This statement, if the witness were to swear up to it, contains powerful evidence in support of the prosecution. In very short compass, it provides, inter alia, evidence of the following propositions:

(a)He worked for Aujla at relevant times.
(b)Aujla owned a black Holden Statesman.
(c)On the morning of 7 December 2010 (some hours after the break in), he drove this car with Aujla as a passenger to Amandeep Singh’s house. Amandeep entered the car and all three drove back to Aujla’s house.
(d)Aujla told him to take a Volkswagen van (a work van) and to drive Amandeep to a location.
(e)Amandeep directed him to Wood Road, a location near 288 Centre Road,…

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 Aujla (Ruling No 5)

Details

AGLC: R v Aujla (Ruling No 5) [2012] VSC 602
Case: [2012] VSC 602
Decision Date: 29 May 2012

CaseChat Overview and Summary

The case of R v Aujla involved the Crown prosecuting the defendant on various charges, including conspiracy to commit murder. The primary issue before the court was the admissibility of hearsay evidence provided by a key witness who was located overseas. The defendant contested the admissibility of this evidence, arguing that it contravened the hearsay rule and that the statutory exceptions under the Evidence Act 2008 were not satisfied.

The court was required to determine whether the statutory exceptions for hearsay applied, particularly under section 65 of the Evidence Act 2008, which allows for the admission of hearsay if the maker of the statement is unavailable, and the representations in the statement are reliable. The court also needed to assess whether the probative value of the hearsay evidence was not substantially outweighed by the danger of unfair prejudice, as per section 137 of the Evidence Act 2008. The primary focus was on whether the Crown had made reasonable efforts to secure the witness's attendance and whether the witness could be deemed unavailable due to being overseas.

The court found that the Crown had indeed made reasonable efforts to secure the attendance of the witness, who was overseas and thus unavailable. The court further found that it was highly probable that the representations made by the witness were reliable. However, the court held that the danger of unfair prejudice substantially outweighed the probative value of the hearsay evidence. Consequently, the hearsay evidence was excluded from being presented to the jury. The court concluded that the reliability and probative value of the evidence, while sufficient to meet the statutory exceptions, did not justify its admission under the balancing test of section 137.

The final orders of the court were that the hearsay evidence in question was inadmissible, and the jury was instructed not to consider this evidence in their deliberations. The court's ruling underscored the importance of ensuring that the admissibility of hearsay evidence aligns with both the statutory exceptions and the overarching principles of fairness and reliability in criminal trials.

Orders