R v Wallis - [2011] QDC 25

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Wallis [2011] QDC 25

PARTIES:

R

Applicant

V

FLEUR ANGELIQUE WALLIS

Respondent

FILE NO/S:

DC 3494 of 2009

DIVISION:

Criminal

PROCEEDING:

Application

ORIGINATING COURT:

District Court of Queensland, Brisbane

DELIVERED ON:

30 March 2011

DELIVERED AT:

Brisbane

HEARING DATE:

8 March 2011; 10 March 2011; 30 March 2011

JUDGE:

Clare SC DCJ

ORDER:

The application is allowed.

The written statement of Antonio Cavello sworn on the 8 April 2009 and tendered at the committal hearing may, without further proof, be read as evidence on the trial of the respondent on indictment number 3494/2009.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE –application to admit evidence-where witness is incapable of giving oral testimony-whether a statement tendered at committal without cross examination can be admitted as evidence in trial. STATUTORY INTERPRETATION – construction of section 110A (13) Justices Act 1886 (Qld).

Criminal Code 1899 (Qld), s 568(3), s 590AA
Criminal Law Amendment Act 1892 (Qld), s 4
Justices Act 1886 (Qld), s 110A, s 111

COUNSEL:

Mr C. Kershaw for the applicant

Mr C.F.C Wilson for the respondent

SOLICITORS:

Director of Public Prosecutions for the applicant

Ryan & Bosscher Lawyers for the respondent

CLARE DCJ: Fleur Wallis faces trial for fraud. The prosecution now seeks an order that the statement of Antonio Cavello sworn on 8 April 2009 be admitted as evidence at the trial. The application is opposed.

The accused was Mr Cavello’s friend. Mr Cavello had a business partnership. He kept chequebooks for the business at his home. Over $ 30,000 was withdrawn from the business account through a series of cheques made out to cash. On their face, each of 72 cheques bore the signature of Mr Cavello. They were all endorsed by the accused and applied to her benefit. Mr Cavello swore a statement to the effect that he did not sign the cheques or authorise their payment. From time to time she had stayed at the house where the cheque books were kept.

He attended at the committal hearing but was not required for cross examination. His statement was handed up pursuant to section 110A of the Justices Act 1886 (Qld). The magistrate committed the accused for trial on 5 counts of fraud relating to the cheques. The indictment now before this court is for a single count of fraud with a yield in excess of $30,000. The indictment expressly refers to section 568 of the Code.[1]
[1] Section 568(3) of the Criminal Code 1899 (Qld) is the mechanism for combining multiple offences of fraud in one count.

After the presentation of the indictment, Mr Cavello suffered a stroke. Sadly, there was serious permanent damage. His prognosis is poor. He is no longer competent to testify. The admissibility of his statement at the trial is dependent upon the application of the Justices Act 1886 (Qld), and in particular sections 110A and 111.[2]
[2] Section 110 A and section 111 unamended by the Civil and Criminal Jurisdiction Reform and Modernisation Amendment Act 2010 (Qld)…

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 Wallis

Details

AGLC: R v Wallis [2011] QDC 25
Case: [2011] QDC 25
Decision Date: 30 March 2011

CaseChat Overview and Summary

In the matter of R v Wallis, the respondent was charged with murder and the case was before the Supreme Court of Queensland. The key issue before the court was whether a statement made by a witness, who was unable to give oral testimony due to his medical condition, could be admitted as evidence during the trial without being cross-examined during the committal hearing. The court was tasked with interpreting the provisions of section 110A (13) of the Justices Act 1886 (Qld) to determine the admissibility of the written statement tendered at the committal hearing.

The respondent argued that the written statement of Antonio Cavello, sworn on April 8, 2009, should not be admitted as evidence during the trial as it had not been subject to cross-examination during the committal hearing. The respondent contended that the failure to cross-examine the witness during the committal hearing contravened the principles of natural justice and denied the respondent the right to a fair trial. Conversely, the prosecution submitted that the written statement could be admitted as evidence under section 110A (13) of the Justices Act 1886 (Qld), which allows for the admission of statements made by witnesses who are unable to give oral testimony. The prosecution argued that the statutory provision was clear and unambiguous, and that the written statement should be admitted without further proof.

The court considered the statutory provision and determined that it was clear and unambiguous, and that the written statement could be admitted as evidence without further proof. The court found that the provisions of section 110A (13) of the Justices Act 1886 (Qld) allowed for the admission of statements made by witnesses who were unable to give oral testimony, and that the failure to cross-examine the witness during the committal hearing did not contravene the principles of natural justice. The court concluded that the respondent's right to a fair trial was not compromised by the admission of the written statement as evidence during the trial.

The court allowed the application and ordered that the written statement of Antonio Cavello sworn on April 8, 2009, and tendered at the committal hearing may, without further proof, be read as evidence on the trial of the respondent on indictment number 3494/2009.

Orders

Orders of the court

1. The application is allowed.

2. The written statement of Antonio Cavello sworn on the 8 April 2009 and tendered at the committal hearing may, without further proof, be read as evidence on the trial of the respondent on indictment number 3494/2009.

Background

Background to the litigation

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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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CITATION:	R v Wallis [2011] QDC 25
PARTIES:	R Applicant V FLEUR ANGELIQUE WALLIS Respondent
FILE NO/S:	DC 3494 of 2009
DIVISION:	Criminal
PROCEEDING:	Application
ORIGINATING COURT:	District Court of Queensland, Brisbane
DELIVERED ON:	30 March 2011
DELIVERED AT:	Brisbane
HEARING DATE:	8 March 2011; 10 March 2011; 30 March 2011
JUDGE:	Clare SC DCJ
ORDER:	The application is allowed. The written statement of Antonio Cavello sworn on the 8 April 2009 and tendered at the committal hearing may, without further proof, be read as evidence on the trial of the respondent on indictment number 3494/2009.
CATCHWORDS:	CRIMINAL LAW – PROCEDURE –application to admit evidence-where witness is incapable of giving oral testimony-whether a statement tendered at committal without cross examination can be admitted as evidence in trial. STATUTORY INTERPRETATION – construction of section 110A (13) Justices Act 1886 (Qld). Criminal Code 1899 (Qld), s 568(3), s 590AA Criminal Law Amendment Act 1892 (Qld), s 4 Justices Act 1886 (Qld), s 110A, s 111
COUNSEL:	Mr C. Kershaw for the applicant Mr C.F.C Wilson for the respondent
SOLICITORS:	Director of Public Prosecutions for the applicant Ryan & Bosscher Lawyers for the respondent