Sajanesh Easwaralingam v Director of Public Prosecutions

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

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 All four counts (of which the third was ultimately withdrawn) arose out of events on 26 October 2007 involving a Ms Kelly Venner, the principal witness for the prosecution.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.
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.
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.
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.
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

CaseChat Overview and Summary

The High Court was presented with a case where Sajanesh Easwaralingam challenged the decision of the Court of Appeal, which had dismissed his appeal against the Supreme Court's order that remanded the case to the Magistrates' Court. The Supreme Court had ruled that the Magistrates' Court had erred in its decision to not admit a police statement under s 65 of the Evidence Act 2008 (Vic) and to not grant an adjournment when the key witness was unavailable. The applicant was facing charges of assault, using indecent language, stalking, and offensive behaviour, all stemming from an incident on 26 October 2007. The principal witness, Ms Kelly Venner, was unexpectedly unavailable due to emergency surgery, prompting the prosecution to seek an adjournment or to rely on her police statement as an exception to the hearsay rule. The Magistrate initially denied both requests, leading to the dismissal of the charges.

The legal issues the Court needed to address were whether the Court of Appeal correctly dismissed the applicant's appeal and whether special leave to appeal to the High Court should be granted. Specifically, the Court had to determine if the Magistrates' Court properly applied the statutory definitions and procedural requirements when deciding not to admit the police statement and to not grant the adjournment. The applicant argued that the Magistrates' Court's decision was correct and that the Supreme Court's reversal of that decision was erroneous. Conversely, the prosecution contended that the Magistrates' Court had misinterpreted the statutory provisions and that the Supreme Court's findings were sound.

The High Court found that the Court of Appeal's dismissal of the applicant's appeal was correct and that there was no basis to doubt the orders made by the Court of Appeal. The Court was satisfied with the reasoning and the outcome of the Court of Appeal, affirming that the Magistrates' Court had indeed erred in its interpretation of the statutory provisions. Consequently, the High Court ruled that there were no grounds to grant special leave to appeal, and the application was dismissed. The Court directed the Registrar to prepare the formal order dismissing the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established