R v Rossi (Ruling No. 1) - [2010] VSC 459

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1666 of 2009

THE QUEEN

GIOVANNI ROSSI

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JUDGE:	LASRY J
WHERE HELD:	Melbourne
DATES OF HEARING:	11 & 12 October 2010
DATE OF RULING:	13 October 2010
CASE MAY BE CITED AS:	R v Rossi (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2010] VSC 459

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CRIMINAL LAW – Evidence – Notice of Hearsay Evidence – Section 65 & 67 of the Evidence Act – Dictionary Clause 4(2)(e) & (f) – “All reasonable steps” – Whether taken – Witness threatened - Witness avoiding subpoena – Subpoena not served - Evidence of police in trying locate witness – Charter of Human Rights and Responsibilities Act 2006 – Section 25(2)(g) – Evidence Act s 137 – Risk of unfair prejudice – Previous representations admitted.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P D’Arcy	Office of Public Prosecutions
For the Accused	Mr R Edney	Robert Stary & Associates

HIS HONOUR:

Giovanni Rossi is charged with the attempted murder of Peter D’Amore and also with three other counts as alternatives to attempted murder, including intentionally causing serious injury to Peter D’Amore, recklessly causing serious injury to Peter D’Amore and recklessly engaging in conduct that placed Peter D’Amore in danger of death.

The prosecution case is based upon an incident that occurred on 16 April 2009 when, after a dispute, the accused man threw diesel fuel over Mr D’Amore and ignited the fuel with a blowtorch. There is no issue in the trial that the accused caused the injuries to Mr D’Amore but rather whether or not he was acting in self-defence.

Several people saw what occurred and one of those was a proposed witness Sally Marie Pearce, a friend of Mr D’Amore. According to her police statement, on 16 April 2009, she had been visiting Mr D’Amore’s house with her daughter, Tamara Burrell, who is also a prosecution witness. Others were also present. Ms Pearce observed Mr D’Amore becoming angry about some incidents that had occurred out in the driveway of his house and said that he went outside and then returned inside.

Later Ms Pearce witnessed the incident which was a confrontation between Mr D’Amore, the accused and the accused’s accomplice, Kim Emery, who recently pleaded guilty to intentionally causing serious injury. Ms Pearce saw the accused man carrying a white plaster bucket in one hand and a blowtorch in the other. Ms Emery was yelling “I’m gonna fuckin’ kill ya”. Something was yelled back. From her car as she was leaving, Ms Pearce later saw the bucket (which contained diesel fuel) being tipped toward Mr D’Amore and then the blowtorch applied to him following which he “…[lit] up in flames from his chest up”.

On 16 April 2009 after the incident had occurred, Ms Pearce made a statement to Senior Constable Dean Delle-Vergini detailing what she had seen.

On 9 and 10 December 2009, committal proceedings were conducted both in relation to the accused man and also…

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 Rossi (Ruling No. 1)

Details

AGLC: R v Rossi (Ruling No. 1) [2010] VSC 459
Case: [2010] VSC 459
Decision Date: 13 October 2010

CaseChat Overview and Summary

In the matter of the Commonwealth of Australia versus Rossi, the defendant faced criminal charges, and the issue at hand was the admissibility of certain hearsay evidence. The case was heard in the Supreme Court of Victoria. The crux of the dispute revolved around whether the prosecution had taken all reasonable steps to secure the attendance of a witness and the subsequent admissibility of hearsay evidence in light of the witness's unavailability.

The court was required to determine whether the prosecution had fulfilled the obligations set out in sections 65 and 67 of the Evidence Act. This included examining whether the police had taken all reasonable steps, as defined in the Dictionary clause 4(2)(e) and (f), to locate and serve a subpoena on a threatened witness. The court also needed to assess if the evidence was admissible under the Charter of Human Rights and Responsibilities Act 2006, section 25(2)(g), and whether it risked unfair prejudice as per Evidence Act section 137.

The court concluded that while the prosecution had made efforts to locate the witness, they had not taken all reasonable steps as required by the statute. Given the witness's threat and subsequent avoidance of the subpoena, the court found that the evidence in question was not admissible. The court held that the risk of unfair prejudice outweighed any probative value the evidence might have had. The court further noted that the witness's previous representations were admitted under specific provisions of the Evidence Act, which permitted the admission of such evidence despite the primary hearsay objection. The court's decision underscored the importance of adherence to statutory requirements for the admissibility of evidence, particularly in cases involving threats to potential witnesses.

Orders