R v Vella - [2006] VSCA 248

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 198 of 2005

THE QUEEN
	v.
TREVOR DAVID VELLA

---

JUDGES:	BUCHANAN and NETTLE, JJ.A. and BONGIORNO, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	28 June 2006
DATE OF JUDGMENT:	22 November 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 248	1st Revision - 22 November 2006

---

Criminal law – Evidence – Cross-examination as to a document used to refresh memory – When tender may be compelled – Time at which application for compulsory tender may be made – Whether documents so tendered are proof of facts in issue or only evidence bolstering the credit of a witness.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms G. Cannon	Ms A. Cannon, Solicitor for Public Prosecutions
For the Applicant	Mr D.A. Dann	Doogue & O’Brien

BUCHANAN, J.A.:

I agree with Bongiorno, A.J.A.

NETTLE, J.A.:

I have had the advantage of reading, in draft the reasons for judgment of Bongiorno, A.J.A. and I agree with his Honour, for the reasons that he gives.

BONGIORNO, A.J.A.:

Trevor David Vella was convicted by a jury on 25 May 2005 of intentionally causing serious injury to Dean Robert Yeoman by stabbing or cutting him in the right upper arm. The event occurred at the Watergardens Shopping Centre at Taylors Lakes on 8 April 2004.

The day before this event, 7 April, Dean Yeoman, who was a security guard at the shopping centre had been involved in an incident with Vella in which Vella had produced a Stanley knife in the course of a relatively minor disagreement with staff at a Safeway store. In his capacity as a security guard Yeoman had assisted police to remove Vella from the store. At the time of this incident Vella had been riding a mountain bike.

The following day, 8 April, Yeoman was again on duty at the shopping centre when, at about 8.20 p.m., he was called by an elderly lady who told him that a male person was riding a bike through the car park heading towards Safeway. She said he was behaving abusively to some young girls in the area.[1] Yeoman saw this person and recognised him as the same person the police had arrested during his shift the night before. He was riding the same bike.
[1]The reason the lady gave for alerting Yeoman was excluded from Yoeman’s statement when it was eventually admitted into evidence.

With the assistance of two other security guards Yeoman then tried to find Vella and eventually did so near an underground car park. When he approached him Vella pushed him in the chest causing him to fall backwards. Yeoman then felt a sting in his right upper arm and observed that he had been stabbed or cut with a knife. He then saw Vella collect his bike from bushes behind the Safeway store and flee the scene. Yeoman subsequently required surgery to repair his right upper arm.

Early the following morning Vella was arrested and charged and on 23 May 2005 was…

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 Vella

Details

AGLC: R v Vella [2006] VSCA 248
Case: [2006] VSCA 248
Decision Date: 22 November 2006

CaseChat Overview and Summary

In the case of R v Vella, the respondent faced criminal charges before the court. The primary issue in this matter pertained to the admissibility of certain documents used to refresh the memory of a witness during cross-examination. The crux of the legal debate revolved around the timeliness of the application for the compulsory tender of these documents and the distinction between whether such documents could serve as proof of the facts in dispute or merely as supplementary evidence to bolster a witness's credibility.

The court was tasked with discerning whether the application for the compulsory tender of these documents was appropriately timed and whether the documents themselves were to be considered as substantive evidence of the facts in issue or merely as supportive evidence to enhance the witness's testimony. The court examined the legal precedents and statutory provisions governing the admissibility of documents tendered for the purpose of refreshing a witness's memory, particularly focusing on the timing and purpose of such tender.

In reaching its decision, the court found that the application for the compulsory tender of the documents was appropriately made at the relevant juncture during the trial. Furthermore, the court clarified that documents used to refresh a witness's memory could be admitted as evidence of the facts in issue if they were integral to the facts being testified to, rather than merely corroborative of the witness's credibility. The court emphasised the need for a clear distinction to be made between these two types of evidence to ensure the integrity and fairness of the trial process.

The court's ruling affirmed the admissibility of the documents in question as substantive evidence of the facts in issue, thereby allowing them to be properly considered by the jury in reaching their verdict. This decision underscores the importance of precise timing and clear evidentiary purpose in the presentation of documents used to refresh a witness's memory during cross-examination.

Orders