R v Mocenigo (Ruling No. 2)
[2012] VSC 411
•7 September 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 0029 of 2012
| THE QUEEN |
| v |
| ADAM MOCENIGO |
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JUDGE: | LASRY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 September 2012 | |
DATE OF RULING: | 7 September 2012 | |
CASE MAY BE CITED AS: | R v Mocenigo (Ruling No. 2) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 411 | |
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CRIMINAL LAW – Evidence – Hearsay – s 65(2)(c) of the Evidence Act 2008.
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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:
I have already ruled in relation to this matter on the basis that the witness would be called on the voir dire.[1] I will just indicate at this stage that she has been, that is, the witness Adele Downs. She's given evidence in the course of the voir dire effectively in accordance with the statement that she made which was the subject of the original argument. Her description of the conversation is one which seems to indicate that during the conversation with the deceased, the deceased had told her that the accused had said if he wanted to kill her, he could do it easily. I have assumed, though she did not give this in evidence, that the balance of the conversation in relation to what would be done with her body was also said. The evidence she gave about this matter was in the following terms:[2]
[1]R v Mocenigo (Ruling No. 1) [2012] VSC 391R.
[2]Transcript, pp 179-181.
Did you then have a conversation with Kristy at that stage while watching Doctor Phil? --- Yes.
Do you recall what the content of that television program was on that day? --- I couldn't recall, no.
What conversation did you have with Kristy? --- Kristy told me that Adam Mocenigo - she mentioned that he'd said to her that maybe he could kill her easily if he wanted to.
Did she say when it was that Adam had said that to her? --- No.
HIS HONOUR: Well, how did that arise? How did you come to be talking about that? What did she actually say? --- I think it may have been something that obviously happened – the program on Doctor Phil. I'm not too sure what triggered it off. Then she mentioned that Adam had said to her that he could easily kill her if he wanted to.
When you say "mentioned", what do you mean? Is that what she actually said? --- That's what she actually said, yes.
MS FLYNN: What was her demeanour like when she told you this? --- She seemed quite normal but I think maybe a little bit distressed, obviously, that he'd mentioned that to her.
When you say a little bit distressed, what was your observations, how do you say that? --- Just, I suppose, a little bit of shock, like her facial expression.
What about the tone of her voice? Was there anything about the tone of her voice? --- I'd say maybe concerned.
Sorry, can you say that again? --- I'd say she was concerned.
Yes, but are you able to say anything about the tone of her voice when she was telling you about what Adam had said to her? --- No, not really.
What did you say when she told you this? --- I was quite shocked myself, I couldn't believe that he would say something like that to her.
Did the discussion end at that stage or - - -
HIS HONOUR: Just a minute. You're asked what you said. Did you actually say anything? --- Yes, I did. I said I couldn't believe - - -
You said that? --- Yes.
So she said - tell me again what she said? --- She said that Adam had mentioned to her that he could easily kill her if he wanted to.
And you said, "I can't believe he'd say that"? --- Yes.
MS FLYNN: And after you said that you can't believe it, did she respond in any way to what you had said? --- She agreed, she said, "Yeah, I know."
Was that the end of the conversation about that issue? --- Yes.
Did she remain in your company at the house for some hours after that? --- Yes.
But there wasn't any further conversation about what Adam had said to her? --- No.
In my opinion, it is an unusual result from such a statement. It appears this was the only occasion on which the deceased woman said anything like this and it was not the subject of any further discussion, which I find difficult to understand. It is inconceivable that if the witness thought that the statement by her sister was reliable and that such a threat was made, she would not have pursued it further and asked about it again subsequently.
I am willing to accept the witness's evidence that the conversation occurred, but given the observations I made in the ruling on these matters and in relation to the high onus that prevails, particularly in relation to s 65(2)(c) of the Evidence Act, which is now the only section under which this evidence is sought to be admitted, I cannot be satisfied that the evidence is sufficiently reliable to be put before the jury. I would therefore not admit it.
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