Re Griffith - [2021] VSC 316

IN THE SUPREME COURT OF VICTORIA Not Restricted
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 306

DIRECTOR OF PUBLIC PROSECUTIONS

v

GENE CADELL GRIFFITH
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JUDGE:

Coghlan JA

WHERE HELD:

Melbourne

DATE OF HEARING:

6 May 2021

DATE OF RULING:

1 June 2021

CASE MAY BE CITED AS:

Re Griffith

MEDIUM NEUTRAL CITATION:

[2021] VSC 316

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CRIMINAL LAW – Murder – Representations by deceased – Evidence – Application to admit hearsay – s 65(2)(b) Evidence Act 2008 – Representations made when or shortly after the asserted fact – Unlikely to be fabrication – s 65(2)(c) Evidence Act 2008 – Highly probably representations are reliable – s 137 Evidence Act 2008 – Probative value not outweighed by danger of unfair prejudice – Evidence admitted.
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APPEARANCES:
Counsel Solicitors

For the Crown Mr B. Sonnett Ms A. Hogan, Solicitor of Public Prosecutions

For the Accused Mr J. Desmond Rainer Martini & Associates
HIS HONOUR:
Introduction

1 By notice pursuant to s 67 of the Evidence Act 2008 (‘the Act’) dated 22 December 2020, the Director of Public Prosecutions gave notice that the prosecution intends to use hearsay evidence. That is, evidence of a previous representation by a person to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

2 The previous representations are said to have been made by Mr Alan Wain who is now deceased. The unavailability of the witness Mr Wain is conceded by the defence.

3 The application is made pursuant to the relevant exceptions set out in s 65(2)(b) and (c) of the Act. The relevant statutory provisions are:

S 65 Exception—criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation—
…
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or
(c) was made in circumstances that make it highly probable that the representation is reliable;

4 The representations relied upon and the details of the person to whom it is said the representations were made are set out in Table A attached to the notice. A copy of Table A is Annexure One to this ruling.

Summary of alleged offending

5 The alleged facts which give rise to the accused, Mr Gene Griffith (‘the accused’), being charged with murder can be stated briefly. On 2 June 2019, Mr Wain and his wife Mrs Patricia Wain, were at home 311 Boronia Road, Boronia. At about 12.40pm Mrs Wain, who was in the backroom of her house heard her husband say ‘No this is not your house’. She heard her husband yell something out and went…

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 Re Griffith

Details

AGLC: Re Griffith [2021] VSC 316
Case: [2021] VSC 316
Decision Date: 1 June 2021

CaseChat Overview and Summary

In the matter of Re Griffith, the case came before the court where the primary issue was the admissibility of hearsay evidence under specific provisions of the Evidence Act 2008. The case involved the prosecution of a defendant charged with murder. The dispute centred on whether statements made by the deceased could be admitted as evidence under sections 65(2)(b) and 65(2)(c) of the Act, which pertain to representations made when or shortly after the fact and the reliability of those representations. The court was tasked with determining whether the probative value of the statements outweighed any danger of unfair prejudice, in accordance with section 137 of the Act.

The court examined the criteria outlined in section 65(2)(b) of the Evidence Act 2008, which requires that the representations were made when or shortly after the asserted fact, and section 65(2)(c), which demands that it is highly probable the representations are reliable. The deceased's statements, made during the incident, met these criteria as they were contemporaneous with the event and were unlikely to be fabricated. Additionally, the court considered the balance of probative value and the risk of unfair prejudice under section 137. The court concluded that the probative value of the statements substantially outweighed any potential for unfair prejudice to the accused.

Following its analysis, the court ruled that the hearsay evidence was admissible. The statements of the deceased were deemed reliable and relevant to the case, providing valuable insight into the circumstances surrounding the alleged crime. This decision allowed the prosecution to present crucial evidence that could aid in establishing the facts of the case. The admissibility of this evidence was pivotal in the proceedings, potentially influencing the outcome of the trial.

Orders