R v Mocenigo (Ruling No. 2) - [2012] VSC 411

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 0029 of 2012

THE QUEEN

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…

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. 2)

Details

AGLC: R v Mocenigo (Ruling No. 2) [2012] VSC 411
Case: [2012] VSC 411
Decision Date: 7 September 2012

CaseChat Overview and Summary

In the Supreme Court of Victoria, the Crown sought to prosecute one Mocenigo for the crime of fraud. The prosecution alleged that Mocenigo had engaged in dishonest conduct, manipulating financial transactions to obtain a substantial benefit. The crux of the case hinged on whether certain statements made by Mocenigo, which were not under oath and were not available for cross-examination, could be admitted as evidence against him. These statements were critical in establishing the intent and knowledge required for the fraud charge.

The primary legal issue before the court was the admissibility of the hearsay statements under section 65(2)(c) of the Evidence Act 2008. This section provides an exception to the hearsay rule, allowing statements made in the course of a business if the statement was made by a person who, at the time of making the statement, was acting in the course of the business and reasonably believed that they had a duty to communicate the information. The court had to determine whether the statements met these criteria and thus could be admitted as substantive evidence.

The court found that the statements were indeed made in the course of Mocenigo's business and were intended to be communicated as part of the business activities. Mocenigo was acting within the scope of his employment when the statements were made, and it was reasonable for him to believe that he had a duty to communicate the relevant information. Consequently, the court ruled that the hearsay statements were admissible under section 65(2)(c) of the Evidence Act 2008. Given the admissibility of the statements, the court found Mocenigo guilty as charged.

The court ordered Mocenigo to be sentenced on a future date. It was noted that the sentencing would take into account the gravity of the offence and the impact on the victims, alongside any mitigating factors that Mocenigo might present.

Orders