Sajanesh Easwaralingam v Director of Public Prosecutions

[2011] HCASL 99

SAJANESH EASWARALINGAM
v
DIRECTOR OF PUBLIC PROSECUTIONS
[2011] HCASL 99
M9/2011

1. The applicant was summoned to appear in the Magistrates' Court of Victoria on charges of unlawful assault, using indecent language in a public place, stalking in a way that could reasonably be expected to arouse apprehension or fear and behaving in an offensive manner in a public place. All four counts (of which the third was ultimately withdrawn) arose out of events on 26 October 2007 involving a Ms Kelly Venner, the principal witness for the prosecution. On 22 February 2010, two days before the matter was due to be heard as a contested hearing, the informant became aware that Ms Venner would not be available to attend the hearing as she had been admitted to hospital to undergo emergency surgery. On 23 February 2010, counsel for the applicant was notified of Ms Venner's unavailability for the following day and of the informant's intention to seek an adjournment or, alternatively, to make an application to rely upon Ms Venner's statement to police as an exception to the hearsay rule under s 65 of the Evidence Act 2008 (Vic) ("the Act"). Written notice of the respondent's intention to adduce hearsay evidence under s 65 of the Act was dated 22 February 2010 and served on the applicant's instructing solicitor on 24 February 2010.

2. On 24 February 2010, Magistrate Fleming refused the respondent's application for an adjournment. The Magistrate refused to admit Ms Venner's statement into evidence and dismissed the three remaining charges. Pursuant to s 272(1) of the Criminal Procedure Act 2009 (Vic), the respondent appealed to the Supreme Court of Victoria in respect of the Magistrate's refusal to admit the statement into evidence under s 65 of the Act. By originating motion (heard at the same time as the appeal) the respondent sought judicial review of the decision not to grant the adjournment. On 1 October 2010, Pagone J allowed the appeal, held that the Magistrate erred in law in not granting the adjournment and remitted the matter to the Magistrates' Court. His Honour found that the Magistrate had failed to apply the definition of "not available to give evidence" under Pt 2, cl 4(1)(g) of the Act's Dictionary and had erroneously concluded that the respondent had not, pursuant to s 67 of the Act, given reasonable notice of its intention to adduce the evidence and that the notice was otherwise deficient.

3. The applicant sought leave to appeal Pagone J's decision to the Court of Appeal.  The Court of Appeal (Buchanan and Tate JJA) granted leave but dismissed the appeal.

4. It is not in the interests of justice generally, or in this particular case, that there be a grant of special leave to appeal.  There is no reason to doubt the correctness of the actual orders made by the Court of Appeal.

5. Pursuant to r 41.11.1 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
7 June 2011 S.M. Crennan