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R v Darmody

R v Darmody

Case [2010] VSCA 41 15 February 2010

Appeal

Jurisdiction

Admissibility of Evidence

Expert Evidence

Res Judicata

Unconscionable Conduct

Fiduciary Duty

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

THE QUEEN	No S APCR 2010 0017
	v
MICHAEL JOHN DARMODY

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JUDGES	NETTLE and ASHLEY JJA and HABERSBERGER AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 February 2010
DATE OF ORDERS:	15 February 2010
DATE OF REASONS FOR JUDGMENT	9 March 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 41
JUDGMENT APPEALED FROM	Rulings dated 3 February 2010 and 10 February 2010 (Unreported, County Court of Victoria, Judge Leckie)

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CRIMINAL LAW – Application for special leave to appeal from interlocutory decision pursuant to s 295 Criminal Procedure Act 2009 – Whether judge below erred in holding that the Evidence Act 2008 applied – Whether provisions of Clause 2(2) of Schedule 2 to the Evidence Act 2008 correctly applied by the judge – Whether complainant ‘not available to give evidence’ within the meaning of s 65(1) of the Evidence Act 2008 – Power to receive prior statement of an unavailable witness – Section 67(1)(4), the Evidence Act 2008 – Whether judge erred in excusing failure to give notice of intention to adduce evidence – Section 137, the Evidence Act 2008 – Whether probative value of evidence given by complainant at committal hearing was outweighed by danger of unfair prejudice to applicant – Whether judge erred in not excluding such evidence.

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Appearances:	Counsel	Solicitors
For the Crown	Mr C W Beale with Mr P R M Jones	Mr C Hyland, Solicitor for Public Prosecutions
For the Applicant	Mr Michael Pena-Rees	Slades & Parsons

NETTLE JA
ASHLEY JA
HABERSBERGER AJA:

On 15 February 2010 we heard an application by Michael John Darmody (‘the applicant’), pursuant to s 295 of the Criminal Procedure Act 2009, for special leave to appeal from an interlocutory decision of a judge of the County Court. In brief substance, the circumstances which gave rise to the application were as follows.

On 24 November 2008, the applicant was presented for trial in the County Court at Bendigo on counts of intentionally causing serious injury and making a threat to kill one Brendan Jones (‘the complainant’).

On 9 September 2009 a jury was empanelled and the applicant was arraigned before the jury but, when the complainant was called to give evidence, he refused to be sworn or to testify.

During the course of the submissions which followed, the prosecutor told the judge that the reason for the complainant’s refusal to give evidence was that he was being kept in custody in the same prison as the applicant, and was concerned about his safety, but had indicated that, if he were moved to another prison, his attitude may change. On that basis, the judge discharged the jury and remanded the applicant in custody for trial at the next sittings.

On 22 January 2010, the Crown orally informed the applicant’s legal representatives that the complainant still appeared to be unwilling to give evidence and that the Crown may make application under s 65 of the Evidence Act 2008 to rely on the evidence which…

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 Darmody

Details

AGLC: R v Darmody [2010] VSCA 41
Case: [2010] VSCA 41
Decision Date: 15 February 2010

CaseChat Overview and Summary

The matter before the Court was an application for special leave to appeal from an interlocutory decision made by a lower court. The applicant, Darmody, sought to appeal against the application of the Evidence Act 2008 in his criminal proceedings. The crux of the dispute centred around whether the trial judge had correctly interpreted and applied the provisions of the Evidence Act 2008, specifically sections 65(1), 67(1)(4), and 137. The primary issues before the Court were whether the judge had erred in deciding that the Evidence Act 2008 applied to the case, whether the provisions of Clause 2(2) of Schedule 2 to the Act were correctly applied, and whether the judge had correctly exercised his discretion in admitting the complainant's prior statement and weighing its probative value against the risk of unfair prejudice.

The Court examined the trial judge’s interpretation of the Evidence Act 2008, particularly in relation to the definition of an unavailable witness under section 65(1) and the power to receive a prior statement of such a witness under section 67(1)(4). The Court assessed whether the judge had correctly exercised his discretion in excusing the failure to give notice of the intention to adduce the complainant's prior statement under section 137 and whether the probative value of the evidence given by the complainant at the committal hearing was outweighed by the danger of unfair prejudice to the applicant. The Court concluded that the trial judge had applied the relevant statutory provisions correctly and had appropriately exercised his discretion in admitting the complainant's prior statement.

The Court found no error in the trial judge’s decision and dismissed the application for special leave to appeal. The Court held that the trial judge had correctly applied the provisions of the Evidence Act 2008, had exercised his discretion appropriately in admitting the complainant's prior statement, and had not erred in finding that the probative value of the evidence was not outweighed by the danger of unfair prejudice. As a result, the application for special leave to appeal was dismissed, and the decision of the lower court was upheld.

Orders