R v McDermott (Ruling No 1) - [2015] VSC 615

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0195

THE QUEEN
v
CRAIG McDERMOTT	Accused

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	26, 27, 28, 29 and 30 October 2015
DATE OF RULING:	9 November 2015
CASE MAY BE CITED AS:	R v McDermott (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2015] VSC 615

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CRIMINAL LAW – Evidence – Admissibility – Hearsay – Exceptions to the hearsay rule Whether evidence is ‘visual identification evidence’ – use of CCTV for identification – circumstantial identification evidence – Whether evidence is second-hand hearsay – Application of the principles in Subramaniam v Public Prosecutor – Whether evidence is a representation that is a ‘fabrication’ – Whether witness is unavailable – Exclusion of evidence – Application of Dupas v R – relevant evidence – Evidence Act 2008 (Vic) ss 13, 55, 65, 66, 66A, 114, 115, 137.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B Kissane QC with Ms E Ruddle	Office of Public Prosecutions
For the Accused	Ms C Randazzo SC with Mr J Desmond	Doogue O’Brien George

HIS HONOUR:

Introduction

Craig McDermott has been committed to stand trial for the murder of Fiona Warzywoda. Prior to the commencement of the trial, counsel for Mr McDermott made a series of applications relating to the admissibility of evidence. This ruling deals compositely with those applications.

Circumstances surrounding the death of Ms Warzywoda

Mr McDermott and Ms Warzywoda had been in a relationship for approximately 18 years. They had four children together: T, P, S and R.

In mid-February 2014, the relationship broke down after a family gathering in Bendigo.

On 17 February 2014, an intervention order was made against Mr McDermott at the Magistrates’ Court at Sunshine under the Family Violence Protection Act 2008 (‘FVPA’). Ms Warzywoda and the four children are identified as protected persons in the order.

On 24 March 2014, orders were made by the Federal Circuit Court in Melbourne, on Ms Warzywoda’s application, in relation to the residence of the four children and Mr McDermott’s contact with them.

Two days later, on 26 March 2014, a further intervention order was made against Mr McDermott at the Magistrates’ Court at Sunshine under the FVPA. This time the order was to remain in place until a final hearing set down for 16 April 2014.

On 15 April 2014, Ms Warzywoda and Mr McDermott attended the Federal Circuit Court in William Street, Melbourne, where, after hearing the evidence of a social worker, Manuela Galvao, orders were made by Judge Curtain in relation to the residence of the four children and the terms of Mr McDermott’s contact with them. Pursuant to the orders, Ms Warzywoda was permitted to reside in Bendigo with the children, and Mr McDermott’s contact was suspended until he complied with a series of conditions imposed by the Court.

The following day, 16 April 2014, Ms Warzywoda and Mr McDermott attended the Sunshine Magistrates’ Court for the…

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 McDermott (Ruling No 1)

Details

AGLC: R v McDermott (Ruling No 1) [2015] VSC 615
Case: [2015] VSC 615
Decision Date: 9 November 2015

CaseChat Overview and Summary

In the matter of R v McDermott, the defendant was on trial for armed robbery, and the prosecution sought to introduce CCTV footage as evidence. The footage depicted a person matching the defendant's description committing the robbery, but the footage itself was not directly witnessed by any of the prosecution's witnesses. The case was heard in the Supreme Court of Victoria. The central issue was the admissibility of the CCTV footage, which the defence argued was inadmissible hearsay. The court had to determine whether the CCTV footage constituted 'visual identification evidence' and if it fell under any exceptions to the hearsay rule.

The court considered the principles established in Subramaniam v Public Prosecutor to assess whether the CCTV footage was a representation that could be considered a fabrication. The court also examined whether the evidence was second-hand hearsay and if the person who would have been the declarant was unavailable. The court applied the principles from Dupas v R to determine whether the CCTV footage was relevant and if its probative value outweighed any prejudicial effect. The court found that the CCTV footage was not second-hand hearsay, as the evidence was not a representation made by someone other than the person visually identifying the accused. The footage was considered direct visual identification evidence, which was admissible under the Evidence Act 2008 (Vic).

The Supreme Court of Victoria held that the CCTV footage was admissible as it was not hearsay and was relevant to the facts in issue. The probative value of the footage outweighed any prejudicial effect it might have had on the jury. The court found that the CCTV footage was a direct visual identification of the accused and therefore did not fall under the hearsay rule. The court also determined that the footage was not a fabrication and that the person who would have been the declarant was not unavailable. The court ruled that the CCTV footage was admissible and could be considered by the jury in determining the defendant's guilt. The final orders of the court were that the CCTV footage would be admitted as evidence in the trial.

Orders