R v McDermott (Ruling No 5) - [2015] VSC 652

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
DATE OF HEARING:	16 November 2015
DATE OF RULING:	17 November 2015
DATE OF PUBLISHED RULING:	18 November 2015
CASE MAY BE CITED AS:	R v McDermott (Ruling No 5)
MEDIUM NEUTRAL CITATION:	[2015] VSC 652

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CRIMINAL LAW – Evidence – Whether witness is unavailable – Application to discharge jury – Whether risk of unfair prejudice to accused – Sufficient degree of necessity requiring the discharge of the jury – Evidence Act 2008 (Vic) s 65, 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

The trial has been in progress for one week. P, who is 11 years of age, is the second witness to give evidence. P gave evidence from a remote location by videolink. P commenced being cross-examined by counsel for Mr McDermott. In the course of cross-examination P ran from the room and was unable to give any further evidence.

For reasons I will explain in a moment, it is clear that P is incapable of giving any further evidence on this trial. The prosecution now want the trial to continue, notwithstanding that the defence has not had a proper opportunity to cross-examine P before the jury. It contends that by the tender of the video and or transcript of the Basha inquiry[1] (which was conducted last week) any risk of unfair prejudice is minimised.
[1]Codified under s 198 of the Criminal Procedure Act 2009 (Vic).

The defence contends that the evidence available does not satisfy s 65(3) of the Evidence Act 2008 (Vic) and therefore the Basha evidence is inadmissible. Secondly that, whether it is admitted or not, there is such a degree of prejudice to Mr McDermott that the jury should be discharged without verdict.

Some background

It is not necessary to set out the background to the application in any detail as it is covered in my first ruling at paragraphs [101] to [152].[2]
[2]R v McDermott (Ruling No 1) [2015] VSC 615.

For the purpose of this application, the following is relevant:

(a) P, in P’s VARE interview made the day after P’s mother’s death, said that P’s father made a threat to kill P’s mother on 24 March in a car shortly prior to P’s handover (with her siblings) to P’s mother and uncle.

(b) There is evidence from several other family members (including P’s uncle, Joshua, and siblings, T and S) that P told them shortly afterwards of the making of the threat.

(c) The defence disputes that the threat was ever made. It relies particularly on statements made by Fiona Warzywoda (the victim), both to teachers and in court testimony, to infer that the first time P mentioned…

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 5)

Details

AGLC: R v McDermott (Ruling No 5) [2015] VSC 652
Case: [2015] VSC 652
Decision Date: 17 November 2015

CaseChat Overview and Summary

In the matter of the Crown versus McDermott, the accused faced a serious criminal charge in the County Court of Victoria. The dispute centred around the admissibility of evidence provided by a key witness, who claimed to be unavailable to testify in person. The Crown sought to introduce the witness's statement under the provisions of the Evidence Act 2008 (Vic), specifically sections 65 and 137. The defence argued that the absence of the witness would result in an unfair prejudice to the accused, warranting the discharge of the jury. The court was tasked with determining whether the circumstances met the criteria for deeming a witness unavailable and whether the risk of unfair prejudice was such that it necessitated the discharge of the jury.

The legal issues before the court involved interpreting the statutory provisions concerning the unavailability of witnesses and the potential prejudice to the accused if the witness's statement was admitted. The court had to assess whether the witness was indeed unavailable and if the statement could be admitted under the Evidence Act. Additionally, the court needed to balance the necessity of the statement against the potential unfairness it could cause to the accused, considering the overarching principles of a fair trial as enshrined in the common law and statutory provisions.

The court found that the witness's unavailability was substantiated, satisfying the requirements under section 65 of the Evidence Act. The court further determined that the admission of the witness's statement would not result in an unfair prejudice to the accused that would undermine the fairness of the trial. The court ruled that the evidence was sufficiently necessary to warrant its admission and did not reach a level of unfairness that would require discharging the jury. Consequently, the court allowed the witness's statement to be admitted as evidence, and the trial proceeded as planned.

The court did not issue any orders for the discharge of the jury, and the trial continued with the evidence presented, including the witness's statement.

Orders