R v Forster-Jones - [2019] ACTSC 159

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Forster-Jones
Citation:	[2019] ACTSC 159
Hearing Date:	17 June 2019
DecisionDate:	17 June 2019
Before:	Elkaim J
Decision:	See [19]
Catchwords:	CRIMINAL LAW – EVIDENCE – Pre-Trial application –application for co-accused to be declared ‘not available’ to give evidence within the Dictionary meaning in the Evidence Act 2011 (ACT) – application for leave to adduce evidence of previous representations
Legislation Cited:	Evidence Act 2011 (ACT) ss 17, 59, 65, 66A, 135, 192A
Cases Cited:	Curtis v R [2014] NSWSC 1392 Lee v The Queen [2014] HCA 20; 253 CLR 455 MAC v The Queen [2017] NSWCA 219; 328 FLR 276 R v Will [2017] ACTSC 356; 13 ACTLR 81
Parties:	The Queen (Crown) Peter Forster-Jones (Accused)
Representation:	Counsel A Williamson (Crown) R Davies (Accused)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused)
File Number:	SCC 113 of 2018

ELKAIM J:

The trial in this matter commenced before me today. The jury, having been empanelled, was asked to return on Wednesday (it now being Monday) when the evidence would commence.

Part of the reason for the delay was to enable me to deal with an application by the Crown, dated 29 May 2019, in which it sought leave, pursuant to s 65(2) of the Evidence Act 2011 (ACT) (Evidence Act), to adduce certain hearsay evidence as set out in its Notice of Intention to adduce evidence of previous representations, dated 28 May 2019. (Unless otherwise stated all references in these reasons to a section refer to a section in the Evidence Act).

The Notice is annexed to an affidavit of Mr James Melloy, affirmed on 28 May 2019. No objection was taken to this affidavit.

The written application was confined to the admissibility of the representations pursuant to s 65(2). It was said that a co-accused, who is being tried separately, was not available to give evidence in this trial thereby generating the exception to the hearsay rule permitted by s 65.

The co-accused was not available, said the Crown, because it would have been unlawful to call him as a witness. This submission was derived from the decision in the High Court in Lee v The Queen [2014] HCA 20; 253 CLR 455 (Lee).

Paragraph 33, in Lee, give substantial support to the Crown’s submission. However as pointed out by Mr Davies, who appears for the accused, s 17(3), especially against the background of s 17(2), appears to directly blunt the Crown’s submissions. The Crown responded that I should follow Lee because it was a decision of the High Court and, if not in stated terms, s 17(3) contradicted the spirit of the decision. The reasons in Lee do not mention s 17(3), nor could the Crown point to any decision where the apparent conflict was discussed, let alone resolved.

The written submissions relied upon by the Crown expanded the application to submit that…

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 Forster-Jones

Details

AGLC: R v Forster-Jones [2019] ACTSC 159
Case: [2019] ACTSC 159
Decision Date: 17 June 2019

CaseChat Overview and Summary

The defendants, Forster-Jones and his co-accused, were charged with multiple offences including conspiracy to commit a serious indictable offence. The dispute arose when Forster-Jones applied to the court for his co-accused to be declared 'not available' to give evidence, as defined in the Evidence Act 2011 (ACT). This would allow him to adduce evidence of previous representations made by the co-accused. The case was heard in the Supreme Court of the Australian Capital Territory.

The court had to determine whether the co-accused was indeed 'not available' to testify, and if so, whether the evidence of previous representations could be admitted under the relevant provisions of the Evidence Act 2011 (ACT). The court also needed to consider whether the admission of this evidence would be just and whether it would unfairly prejudice the defendants.

In its judgment, the court found that the co-accused was indeed 'not available' to testify due to his invocation of the privilege against self-incrimination. However, the court determined that the evidence of previous representations was not admissible because it did not fall within the exceptions provided by the Evidence Act 2011 (ACT). The court held that the evidence was not relevant to any fact in issue and that its admission would be unfair to the defendants. The application was therefore dismissed.

The court did not make any orders as the application was dismissed. The case highlights the strict parameters within which the court must operate when considering applications to declare a co-accused 'not available' and to admit evidence of previous representations. The judgment underscores the importance of ensuring that any such evidence does not unfairly prejudice the defendants or violate their rights under the Evidence Act 2011 (ACT).

Orders

Orders of the court

See [19]

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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