R v Mocenigo (Ruling No. 1) - [2012] VSC 391

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0029 of 2012

THE QUEEN

ADAM MOCENIGO

---

JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 September 2012
DATE OF RULING:	5 September 2012
CASE MAY BE CITED AS:	R v Mocenigo (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2012] VSC 391

---

CRIMINAL LAW: Evidence – Hearsay – Admissibility – Sections 65(2)(a) and 65(2)(b) of the Evidence Act 2008 – Unfair prejudice – Sections 135 & 137.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr A Tinney SC with Ms S Flynn	Office of Public Prosecutions
For the Accused	Mr J McMahon with Ms K Argiropoulos	Michael J Gleeson & Associates

HIS HONOUR:

Adam Mocenigo is charged with the murder of Kristy Lee Hall. Ms Hall is alleged to have been killed by the accused on Saturday 26 March 2011, her body being discovered in the afternoon of Tuesday 29 March 2011 in a creek at Kinglake. Ms Hall had been the partner of the accused in what the evidence will apparently demonstrate was a troublesome relationship leading up to March 2011.

At this early stage of the proceedings it appears that the central issue in the case is whether or not any action taken by the accused was the cause of the death of the deceased woman. The element of intent is also clearly in issue. The defence response to the prosecution opening filed in the matter asserts that “He did not harm or kill the deceased. He did not have any intent to harm or kill the deceased.”

By way of notice dated 31 August 2012, the Director of Public Prosecutions has indicated an intention pursuant to s 67 of the Evidence Act to adduce and rely on hearsay evidence being representations of the deceased Kristy Lee Hall. These representations were made to a number of different people and although the approximate time of the representations can be ascertained, the time of the events which are the subject matter of the representations is more difficult to identify.

On behalf of the accused it is submitted that 10 of those representations out of a total of 32 separate representations should be excluded. After discussion between counsel, and as a result of observations made by me during submissions, at this stage I am required to rule on only three of those in contention. My ruling on the others remaining in contention has been postponed pending evidence to be led on a voir dire.

The relevant provisions of the Evidence Act 2008 are ss 65(2)(b), 65(2)(c) or 66A. In the event that I considered that those requirements were satisfied, then on behalf of the accused it is sought that the representations nonetheless be excluded pursuant to ss 135 and 137 of the Evidence Act.

Section 65(2) of the Evidence Act provides:

(2)The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard…

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 Mocenigo (Ruling No. 1)

Details

AGLC: R v Mocenigo (Ruling No. 1) [2012] VSC 391
Case: [2012] VSC 391
Decision Date: 5 September 2012

CaseChat Overview and Summary

In the case of R v Mocenigo, the respondent Mocenigo was charged with an offence under the criminal code and the matter was brought before the Supreme Court of Victoria. The dispute centred on the admissibility of certain hearsay evidence provided by a witness who was not available to give evidence in court. The Crown sought to introduce the out-of-court statement as substantive evidence, while Mocenigo argued that it should be excluded due to its hearsay nature and potential for prejudice.

The legal issues before the court were whether the hearsay evidence could be admitted under the exceptions provided by sections 65(2)(a) and 65(2)(b) of the Evidence Act 2008 and whether, if admitted, the probative value of the evidence outweighed any unfair prejudice to the respondent. The court had to consider the reliability, relevance, and probative value of the hearsay evidence, as well as the potential prejudice it might cause to the respondent’s case. The court also examined whether the probative value of the evidence justified its admission despite the risk of unfair prejudice under sections 135 and 137 of the Act.

The court found that the hearsay evidence could be admitted under section 65(2)(a) of the Evidence Act, as it was relevant to an issue in the case and had sufficient indicia of reliability. The court concluded that the probative value of the evidence outweighed any potential prejudice to the respondent. The court was satisfied that the evidence was relevant to the case and that its admission would not result in a miscarriage of justice. The court also found that the potential for prejudice could be managed through appropriate directions to the jury.

The court ordered that the hearsay evidence be admitted into the trial, subject to the trial judge providing appropriate directions to the jury to manage the risk of unfair prejudice.

Orders