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Singh v The Queen

Singh v The Queen

Case [2011] VSCA 263 2 September 2011

Admissibility of Evidence

Appeal

Interlocutory Orders

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

RAJVEER SINGH	S APCR 2011 0119
	Applicant
v
THE QUEEN	Respondent

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JUDGES	BUCHANAN and BONGIORNO JJA and ALMOND AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 July 2011
DATE OF JUDGMENT	2 September 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 263
JUDGMENT APPEALED FROM	R v Singh (Unreported, County Court of Victoria, Judge Rizkalla, 15 June 2011)

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EVIDENCE – Admissibility – Criminal proceedings – Whether the maker of a previous representation is available – Evidence Act 2008 s 66, Dictionary cl 4(1) – Papakosmas v R (1999) 196 CLR 297 – Leave to appeal refused.

CRIMINAL LAW – Appeal – Interlocutory Appeal – Admissibility of hearsay evidence –Certification by trial judge pursuant to s 295(3) of the Criminal Procedure Act 2009 – Whether principles in House v The King apply – Evidence Act 2008 ss 136, 137.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr T F Danos	Mr M Blumenthal
For the Respondent	Ms A L Forrester with Mr T S Hoare	Mr C Hyland, Solicitor for Public Prosecutions

BUCHANAN JA:

I agree with Almond AJA.

BONGIORNO JA:

I also agree with Almond AJA.

ALMOND AJA:

The applicant, Rajveer Singh, seeks leave to appeal against an interlocutory decision of Judge Rizkalla made in the County Court on 15 June 2011. The judge ruled that representations made by the complainant to police officers and to her son on the morning after an alleged rape were admissible as evidence of previous representations made by the complainant shortly after the alleged incident. After the ruling, counsel for the defence made a request for certification under s 295(3) of the Criminal Procedure Act 2009 (Vic) that the evidence, if ruled inadmissible, would eliminate or substantially weaken the prosecution case. The judge found that the evidence, if ruled inadmissible, would substantially weaken the prosecution case and certified accordingly.

The applicant contends that her Honour’s ruling of 15 June 2011 did not accord with a proper interpretation of s 66 of the Evidence Act 2008 (Vic) (‘the Act’) and was contrary to High Court authority in Papakosmas v R.

Further, the applicant contends that her Honour ought to have exercised her discretion under s 135 of the Act to refuse to admit the evidence on the basis that its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the accused. Alternatively, the applicant relied on s 137 of the Act, which requires the Court to refuse to admit evidence if its probative value is outweighed by the danger of unfair prejudice to the accused.

Circumstances in which the allegations are made

The accused is a taxi driver charged with sexually penetrating the

complainant without her consent in a taxi on the morning of 21 November 2009. At the time of the alleged offence the complainant was extremely intoxicated.

The trial is to proceed on the basis that there was an act of sexual penetration between the accused and the…

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 Singh v The Queen

Details

AGLC: Singh v The Queen [2011] VSCA 263
Case: [2011] VSCA 263
Decision Date: 2 September 2011

CaseChat Overview and Summary

In the case of Singh v The Queen, the appellant, Mr Singh, appealed against a decision to admit hearsay evidence in his criminal trial. The trial judge had certified the decision as a matter of law under section 295(3) of the Criminal Procedure Act 2009, allowing for an interlocutory appeal. The central legal issue was whether the evidence was admissible under the Evidence Act 2008. Specifically, the court needed to determine if the maker of the previous representation was available, as per section 66 of the Evidence Act and the definition in the Dictionary clause 4(1).

The court examined the principles established in Papakosmas v R (1999) 196 CLR 297, which set out the conditions for admitting hearsay evidence. The appellant argued that the evidence should not have been admitted because the declarant was available to testify. The court considered whether the trial judge's certification aligned with the principles articulated in House v The King. It also scrutinised sections 136 and 137 of the Evidence Act 2008, which deal with the admissibility of hearsay and exceptions to hearsay rules. After thorough deliberation, the court concluded that the trial judge's decision was consistent with the statutory requirements and the relevant case law.

The appeal was dismissed, and leave to appeal was refused. The court found that the trial judge correctly admitted the hearsay evidence, considering the availability of the declarant and the statutory provisions. The court's reasoning emphasised the importance of adhering to legislative frameworks and established legal principles in criminal proceedings. The final orders confirmed the trial judge's decision, upholding the admissibility of the contested hearsay evidence.

Orders