R v McMahon

[2008] VSC 615

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1639  of 2008

THE QUEEN
v
BEAU McMAHON	Accused

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JUDGE:	COGHLAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 & 30 September 2008
DATE OF RULING:	29 September 2008
CASE MAY BE CITED AS:	R v McMahon
MEDIUM NEUTRAL CITATION:	[2008] VSC 615

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Criminal law – Application pursuant to s.42E of the Evidence Act 1958 - Witness to give evidence via remote facility.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms G. Cannon	Office of Public Prosecutions
For the Accused	Mr S. Langslow	Revill & Papa Lawyers

HIS HONOUR:

1. The evidence of Anthony Hills was taken in the form of a tape recorded statement on 30 June 2007.  He was then 16 years of age, he is now 17.

1. In accordance with the provisions of s.37B of the Evidence Act, his statement, taken by means of a recording may be used as his evidence in chief, pursuant to s.37B(2). That provision is an enabling provision.

1. As Anthony Hill was 16 at the time his evidence was taken, his statement was obtained in a form accepted within s.37B. That recording contained a number of matters which constitute hearsay and I have excluded those matters having ruled firstly, that they are hearsay and secondly, that no exception to the hearsay rule applies to them.

1. I do not appear to have a general discretion in terms of the way the matter is expressed, but I am conscious of the proposition of the words used in s.37B(2) “may be given”. That may be as a result of a mixture of the view of those who are calling the witness and of the witness. It simply does not mean that it must because it was taken in the particular form, be given in that form.

1. In many cases of statements taken in the form of the present statement, they suffer from difficulties of being absolutely riddled with leading questions and with inadmissible material that is simply not the case in the present case and, as I have already indicated, I have excluded those matters that ought to have been excluded.

1. Secondly, I have been asked to rule on whether or not the same witness be permitted to give evidence from a remote facility, that application being made pursuant to s.42E of the Evidence Act 1958. Again, the provisions are enabling provisions.

1. It seems to me from both what the witness has said in his statement and a number of matters that arose in cross-examination at the committal proceeding, this case has potential for it to be fraught with difficulties relating to witnesses to be simply free of any interference or notion of it in relation to the giving of their evidence.  That two witnesses who are both children within the meaning of the legislation, have made an application, seems to me to not only be justified, but to be wise.  There is more likelihood in the circumstances of this case of the truth emerging by the use of remote facilities than otherwise.

1. Since I am satisfied that the provisions for remote facilities are such that all the technical requirements pursuant to s.42G are met, I will order that in addition to the witness Nathan Hills.  In relation to him I have already ruled that the witness Anthony Hills be able to give evidence from a remote location, and I so rule.