R v Moodoonuthi - [2020] QSC 387

SUPREME COURT OF QUEENSLAND

CITATION:

R v Moodoonuthi [2020] QSC 387

PARTIES:

R

v

MOODOONUTHI, Raynard Gregory

(defendant)

FILE NO/S:

Indictment No 16 of 2020

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:
Supreme Court of Queensland

DELIVERED EX TEMPORE ON:
9 December 2020

DELIVERED AT:

Cairns

HEARING DATE:

7 December 2020, 8 December 2020

JUDGE:

Henry J

RULING:

I will instruct the jury they may act upon the content of exhibit 6, as if it were evidence given before them in this trial, and may act upon such parts of its content as they find to be reliable as evidence of the truth of its content.

CATCHWORDS:

EVIDENCE – ADMISSIBILITY – HEARSAY – EXCEPTIONS: MISCELLANEOUS – where, at a re-trial, the defendant pleaded not guilty to a charge of attempted murder – where at the previous trial the jury failed to reach verdict in relation to the charge of attempted murder – where the Crown was unable to locate a witness who gave evidence at the previous trial – where the Crown and the defence seek to rely upon an audio recording of the witness’ evidence at the previous trial for the truth of its contents – whether the audio recording can be relied upon for the truth of its contents despite its hearsay character

Criminal Code 1899 (Qld), s 644
Evidence Act 1977 (Qld), s 21A, s 93
Justices Act 1886 (Qld) s 111

Pallante v Stadiums Pty Ltd (No 2) [1976] VR 363, applied

R v Austen (1856) 7 Cox CC 55, cited
R v Cohen (1899) 34 LJ 623, cited
R v Coombes[2012] QCA 157, considered
R v Radford (1993) 66 A Crim R 210, cited
R v Trieu[2008] QCA 28, considered

Reg v Hall [1973] 1 QB 496, applied
Reg v Thompson [1982] 1 QB 647, applied

COUNSEL:
P McCarthy QC, with C Georgouras, for the Crown

T Grau for the defendant

SOLICITORS:
Office of the Director of Public Prosecutions (Queensland) for the Crown

Cuthbertson & Co for the defendant

HIS HONOUR: A question has arisen on the accused's retrial as to the use to which the jury can put the recorded evidence of a witness given at the accused’s first trial.

The accused is charged on indictment with:

Count 1 – Indecent assault;
Count 2 – Assault occasioning bodily harm;
Count 3 – Attempted murder, alternatively, wounding with intent to do grievous bodily harm.

In September 2020, the accused pleaded guilty to count 2 and went to trial on counts 1 and 3. The jury convicted him on count 1 but were unable to agree and were discharged in respect of count 3.

In summary, the prosecution case is that the accused indecently assaulted a Chilean tourist in the kitchen at a backpacker hostel. She described it as obviously deliberate touching, whereas he, in evidence at the trial in September, claimed it was accidental. In any event, she reacted by striking him on the head with a teacup.…

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 Moodoonuthi

Details

AGLC: R v Moodoonuthi [2020] QSC 387
Case: [2020] QSC 387
Decision Date: 9 December 2020

CaseChat Overview and Summary

The defendant in the case, Moodoonuthi, was re-tried for the offence of attempted murder after the jury in the initial trial failed to reach a verdict. The Crown was unable to locate a witness who had testified at the first trial. Both the Crown and the defence sought to rely on an audio recording of the witness's testimony from the previous trial for the truth of its contents. The central legal issue in this case was whether the audio recording could be admitted as evidence despite its hearsay nature.

The court considered the exceptions to the hearsay rule and determined that the recording could be admitted under the miscellaneous exception for statements previously made in the course of a proceeding. The court noted that the witness's availability was not due to the fault of the Crown and that the recording accurately captured the witness's testimony. The court held that the recording was admissible for the truth of its contents because it was relevant to the issue at hand and its probative value outweighed any prejudicial effect. Consequently, the court ruled that the audio recording could be relied upon as evidence in the re-trial.

The court's decision to admit the audio recording of the witness's testimony from the previous trial was based on the miscellaneous exception to the hearsay rule. The court found that the witness's unavailability was not due to the Crown's fault and that the recording accurately reflected the witness's testimony. As a result, the court concluded that the probative value of the recording outweighed any prejudicial effect. This ruling allowed the audio recording to be used as evidence in the re-trial of the defendant for the offence of attempted murder. The final orders of the court would depend on the outcome of the re-trial, which was not specified in the text provided.

Orders