R v Mocenigo (Ruling No. 3) - [2012] VSC 408

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:	10 September 2012
CASE MAY BE CITED AS:	R v Mocenigo (Ruling No. 3)
MEDIUM NEUTRAL CITATION:	[2012] VSC 408

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CRIMINAL LAW – Evidence – Hearsay – Section 65(2)(c) of the Evidence Act 2008 – Unfair prejudice – Section 137.

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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:

An issue has arisen which I have outlined on a preliminary basis in Ruling Number 1[1] concerning the admission of hearsay evidence pursuant to notice given by the Director of Public Prosecutions. In short, both in that ruling and in the course of submissions, I concluded that in regard to certain representations I would need to hear the evidence on the voir dire in order to make the kind of assessments that seem to be required by s 65(2)(b) and (c) of the Evidence Act 2008.
[1][2012] VSC 391, [4].

The particular prosecution witness I am concerned with in this ruling is Marian Douglas who has now given evidence on the voir dire for the purpose of determining whether to admit a particular part of her evidence. The witness said she was a friend of the deceased and they undertook the same community services course at the NMIT. They had known each other for about a year when the particular conversation occurred. The witness said that she and the deceased had become quite close. On one occasion, about two weeks before the death of Kristy Lee Hall (which occurred on or about 26 March 2011), they were sitting in her vehicle and had a discussion that, on the particular occasion, lasted for an hour or so.

During that discussion, the witness said the deceased spoke to her as follows:

“….it wasn't safe at home and that she had to get out of there.
HIS HONOUR: It wasn't safe at home?---Yeah, she wasn't safe at home.
MS FLYNN: And she had to get out of there, is that what you said?---Yes.
Did you respond to that in any way?---I asked if Adam was violent at all towards Kristy-Lee and she said, "No, he's more emotionally abusive".
What was her demeanour like when she was saying these things to you?---Very withdrawn and not happy.
Was that usual for her to be like that?---No.
What was she usually like?---She was a very happy, chirpy girl.”[2]

There was then some discussion about how she might be supported if she left home. She said that as to where this particular part of the conversation fell in the overall discussion she could not say.

[2]Transcript, p 198.

I asked the witness some questions before she…

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. 3)

Details

AGLC: R v Mocenigo (Ruling No. 3) [2012] VSC 408
Case: [2012] VSC 408
Decision Date: 10 September 2012

CaseChat Overview and Summary

The court heard a criminal case involving the defendant, Mocenigo, who was charged with various offences. The nature of the dispute centred on the admissibility of certain hearsay evidence and its potential impact on the fairness of the trial. The case was heard in the Supreme Court of Victoria.

The legal issues that the court had to address were whether the hearsay evidence in question could be admitted under section 65(2)(c) of the Evidence Act 2008 and whether its admission would cause undue prejudice to the defendant, thereby warranting exclusion under section 137. The court needed to balance the probative value of the hearsay evidence against the risk of unfair prejudice.

The court first examined the hearsay evidence to determine if it fell within the scope of section 65(2)(c) of the Evidence Act 2008. This provision allows for the admission of hearsay evidence if the circumstances of the case satisfy the court that the evidence is reliable. After considering the reliability and relevance of the evidence, the court found that it was admissible. However, the court also considered whether admitting this evidence would unfairly prejudice the defendant, as required by section 137. The court concluded that while the evidence was prejudicial, it was not to the extent that it would render the trial unfair. Consequently, the evidence was admitted, and the trial proceeded with this evidence considered.

The court’s ruling was that the hearsay evidence was admissible under the specified provision and did not constitute unfair prejudice warranting exclusion. As a result, the court allowed the evidence to be presented to the jury.

Orders