R v Nona

Case [2015] ACTSC 175 21 November 2014

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v Dennis Michael Nona
Citation:	[2015] ACTSC 175
Hearing Date(s):	10 November 2014
DecisionDate:	21 November 2014
Date for delivery of reasons:	13 July 2015
Before:	Refshauge J
Decision:	Under section 65(3) of the Evidence Act 2011 (ACT): (i) The audio recording of the evidence of JG given in the trial of Dennis Michael Nona on 30 and 31 July 2012 be admitted as evidence in his re-trial to commence on 1 December 2014; (ii) The audio recording of the evidence of HT given in the trial of Dennis Michael Nona on 31 July 2012 be admitted as evidence in his re-trial; and (iii) The audio recording of the evidence of AD given in the trial of Dennis Michael Nona on 31 July 2012 be admitted as evidence in his re-trial.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Practice and procedure – Evidence – Pre-trial Application – Admission of audio recordings of the evidence – Interlocutory proceedings – Hearsay – Maker not available – Unavailability – Mental health – Depression – Anxiety – Suicidal ideation – Attempt to commit suicide – Inability to give evidence without an unacceptable risk of serious mental harm
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 5F Evidence Act 1977 (Qld), ss 93B Evidence Act 2011 (ACT), ss 65(3), 67, 75, 142, Cl 4 Pt 2 Sch 1, Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 43A, Div 4.2A, 4.2B Indictable Offences Act 1848 (UK) Court Procedures Rules 2006 (ACT), rr 6000, 6703
Cases Cited:	Clarkson v The Queen (2011) 32 VR 361 Director of Public Prosecutions (Victoria) v BB (2010) 204 A Crim R 85 Ex parte Britt [1987] 1 Qd R 221 Gilbert v Endean (1878) 9 Ch D 259 Nona v The Queen (2013) 8 ACTLR 168 R v Alchin (2006) 200 FLR 204 R v Nona (2012) 6 ACTLR 203 R v Powch (1988) 14 NSWLR 136 R v Rogerson (1990) 45 A Crim R 253 R v Sarbandi (2012) 229 A Crim R 39 R v Scarife (1851) 2 Den 281 R v Steffan (1993) 30 NSWLR 633 R v Suteski (2002) 56 NSWLR 182 Société d’Alliances Commercialtes (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palantina”) [1924] 20 LI L Rep 140 Suteski (2002) 128 A Crim R 275 Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd trading as “Uncle Bens of Australia” (1992) 27 NSWLR 326 Tsang v Director of Public Prosecutions (Commonwealth) (2011) 255 FLR 41
Texts Cited:	Australian Law Reform Commission, the New South Wales Law Reform Commission and Victorian Law Reform Commission, Uniform Evidence Law Report (ALRC, NSWLRC, VLRC; Sydney, 2005) Wellborn O, “Demeanour” (1991) 76 Cornell L Rev 1075
Parties:	The Queen (Crown) Dennis Michael Nona (Defendant)
Representation:	Counsel Ms M Jones (Crown) Mr F J Purnell SC (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) Porters Lawyers (Defendant)
File Number(s):	SCC 447 of 2009

Refshauge J:

Introduction

Dennis…

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 Nona

Details

AGLC: R v Nona [2015] ACTSC 175
Case: [2015] ACTSC 175
Decision Date: 21 November 2014

CaseChat Overview and Summary

Dennis Michael Nona was on trial for criminal offences, including sexual assault, and faced a re-trial. The court had to decide on the admissibility of audio recordings of the evidence given by three witnesses during the original trial, who were now unavailable to testify. The witnesses, JG, HT, and AD, had suffered from depression, anxiety, and suicidal ideation at the time of the original trial, making it unsafe for them to testify again.

The legal issues before the court involved the admissibility of hearsay evidence under the Evidence Act 2011 (ACT). The court had to determine whether the witnesses' unavailability and the risk of serious mental harm to them if they were to testify again met the criteria for admitting the audio recordings under section 65(3) of the Act. The court also had to consider the reliability and probity of the audio recordings as evidence.

The court found that the witnesses' unavailability was due to their serious mental health conditions, which posed an unacceptable risk of serious mental harm if they were required to testify again. The court concluded that the audio recordings met the criteria for admission as evidence under section 65(3) of the Act, as the witnesses were unavailable due to circumstances beyond their control and the recordings were reliable and probative. The court therefore admitted the audio recordings of the witnesses' evidence as evidence in the re-trial.

The court's orders were that the audio recordings of the evidence of JG, HT, and AD given in the trial of Dennis Michael Nona on 30 and 31 July 2012 be admitted as evidence in his re-trial. The re-trial was scheduled to commence on 1 December 2014.

Orders

Orders of the court

Under section 65(3) of the Evidence Act 2011 (ACT):

(i) The audio recording of the evidence of JG given in the trial of Dennis Michael Nona on 30 and 31 July 2012 be admitted as evidence in his re-trial to commence on 1 December 2014;

(ii) The audio recording of the evidence of HT given in the trial of Dennis Michael Nona on 31 July 2012 be admitted as evidence in his re-trial; and

(iii) The audio recording of the evidence of AD given in the trial of Dennis Michael Nona on 31 July 2012 be admitted as evidence in his re-trial.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Nona [2015] ACTSC 175

Most Recent Citation

Roberts-Smith v Fairfax Media Publications Pty Limited (No 30) [2022] FCA 266

Cases citing this decision · 5 of 5 shown

Scott v Equatorial Launch Australia Pty Ltd (Application to Set Aside Subpoena)
[2025] FCA 109 Para 9

…In Roberts-Smith , Besanko J explained the test, as to non-availability applied by Refshauge J R v Nona [2015] ACTSC 175; (2015) 254 A Crim R 301: [70] The judge in Nona formulated the test which he went on to apply as follows (at [144]): In my view, the provision does permit the evidence to be given as proposed wh…
Roberts-Smith v Fairfax Media Publications Pty Limited (No 30)
[2022] FCA 266 Para 18

…er of a previous representation is “not available to give evidence about an asserted fact” within the exceptions to the hearsay rule. In R v Nona [2015] ACTSC 175; (2015) 254 A Crim R 301 ( Nona ), Refshauge J considered the meaning of “a person who made a previous representation [being] not available to give evide…
Douglas Gordon Johnston v The Queen
[2021] VSCA 11 Para 1

…different from that of the witness the subject of the ruling by J Forrest J in R v McDermott [Ruling No 5] .[5] [5][2015] VSC 652. See also R v Nona [2015] ACTSC 175, [170] (Refshauge J).…
R v CN
[2019] ACTSC 50

…R v Nona [2015] ACTSC 175; 254 A Crim R 301 R v Cruz [2016] ACTSC 19…
R v Hamilton
[2018] ACTSC 336 Para 1

…test of whether a potential witness is mentally unable to give evidence for the purpose of that definition what was stated by Refshauge J in R v Nona [2015] ACTSC 175; 254 A Crim R 301.…

View all 5 citing cases →

Cases cited in this decision · 10 of 10 shown

Nona v The Queen; R v Nona
[2015] ACTCA 34 Para 1

…ed. I shall call these counts the first charges . On 22 October 2013, however, the Court of Appeal overturned the convictions and ordered a re-trial: Nona v The Queen (2013) 8 ACTLR 168.…
R v Alchin
[2015] NSWSC 2112 Para 1

…the NSW Court of Criminal Appeal in R v Suteski (2002) 56 NSWLR 182 at 197; [98]-[99] and, in this jurisdiction, by Connolly J in R v Alchin (2006) 200 FLR 204 at 205; [3].…
Tsang v DPP (Cth)
[2011] VSCA 336 Para 1

…account of the way a witness gives evidence in deciding the facts of a case. See, for example, Tsang v Director of Public Prosecutions (Commonwealth) (2011) 255 FLR 41 at 66; [108]. Many of the elements, mentioned by the court, of the reasons for the requirement, will be evidence in the audio recording: delay in res…
Clarkson v The Queen
[2011] VSCA 157 Para 1

…sexual intercourse with Mr Nona, it is not irrelevant for me to bear in mind the well-known trauma that sexual abuse of children is known to cause ( Clarkson v The Queen (2011) 32 VR 361 at 371; [33]), and that I should not ignore this fact in evaluating the evidence of JG’s mental state without pre-judging the issue in the…
R v Alchin
[2006] ACTSC 53 Para 1

…accepted by the NSW Court of Criminal Appeal in R v Suteski (2002) 56 NSWLR 182 at 197; [98]-[99] and, in this jurisdiction, by Connolly J in R v Alchin (2006) 200 FLR 204 at 205; [3].…
R v Suteski
[2002] NSWSC 596 Para 1

…ble. It appears that the witness was not punished for contempt. This approach was accepted by the NSW Court of Criminal Appeal in R v Suteski (2002) 56 NSWLR 182 at 197; [98]-[99] and, in this jurisdiction, by Connolly J in R v Alchin (2006) 200 FLR 204 at 205; [3].…
Effem Foods Pty Ltd v Trawl Industries of Australia Pty Ltd
[1993] FCA 488 Para 1

…els JA surveyed some of the relevant research in Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd trading as “Uncle Bens of Australia” (1992) 27 NSWLR 326 at 348. Professor Olin Guy Wellborn, the William Liedtke Senior Professor of Law at the University of Texas School of Law wrote in an article “Demeanour”…
Powch v The Queen
[1987] HCA 41 Para 1

…It is not necessary to refer to them or trace the court’s analysis of them. It is useful, however, to refer to the court’s reference to R v Powch (1988) 14 NSWLR 136, where the court noted the distinction drawn in that case between “a ruling on a procedural matter and a judgment or order”.…
Gilbert v Endean
(1978) 9 ChD 259 Para 1

…ther the proceedings were interlocutory. The seminal case and the source of modern authority on whether an application is interlocutory appears to be Gilbert v Endean (1878) 9 Ch D 259. In that case, Cotton LJ said at 268-9:…
169 ER 505
169 ER 505 Para 1

…mitted at trail if the witness who made it was unavailable, though such arrangements were available before then: R v Scarife (1851) 2 Den 281 at 286; 169 ER 505 at 507.…

Legislation cited in this decision · 7

Evidence Act 2011 (ACT)
142, 65(3), 67, 75 5 mentions (from Para 1)
Court Procedures Rules 2006 (ACT)
6000, 6703 3 mentions (from Para 1)
Evidence (Miscellaneous Provisions) Act 1991 (ACT)
4.2B, 43A 3 mentions (from Para 1)
Criminal Appeal Act 1912 (NSW)
5F 2 mentions (from Para 1)
Evidence Act 1977 (Qld)
93B 2 mentions (from Para 1)
Halliday v Nevill
1 mention (from Para 1)
Indictable Offences Act 1848 c.42
1 mention (from Para 1)