ZL v The Queen - [2010] VSCA 345

SUPREME COURT OF VICTORIA

COURT OF APPEAL

ZL	S APCR 2010 0425
ZL	Applicant
v
THE QUEEN	Respondent

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JUDGES:	NETTLE and BONGIORNO JJA and ROSS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 December 2010
DATE OF JUDGMENT:	14 December 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 345

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CRIMINAL LAW – Appeal – Interlocutory appeal – Evidence – Whether exclusion of evidence would substantially weaken Crown case – CGL v DPP (No 2) (2010) 24 VR 482, considered – Criminal Procedure Act 2009, s 295(3)(a).

CRIMINAL LAW – Evidence – Hearsay – Previous representation – Witness statement – Whether person who made statement not available to give evidence – Whether all reasonable steps taken to find person – Evidence Act 2008, s 65(2)(b), Dictionary, clause 4(1)(e).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr K J Doyle	Matthew White & Associates
For the Crown	Mr C Beale with Mr G Slim	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

This is an application for leave to appeal against an interlocutory decision of a County Court judge to admit as evidence two witness statements made by MZ, pursuant to s 65(2)(b) of the Evidence Act 2008 (‘the Act’).

Section 65(2)(b) provides that the hearsay rule does not apply to evidence of a previous statement given by a person who saw, heard or otherwise perceived the statement being made, if the maker of the statement is not available to give evidence about the asserted fact and if the statement was made when or shortly after the asserted fact occurred, in circumstances that make it unlikely that the statement is a fabrication.

The facts

The facts, in brief, are that the applicant, ZL, has pleaded not guilty to one count of aggravated burglary, one count of intentionally causing serious injury, and one count of recklessly causing serious injury, on 1 June 2009.

The Crown case is that the victim of the offending, XN, was living in a boarding house. The offending arose out of an altercation between XN and another resident of the boarding house, WT, during which XN punched WT in the mouth. The applicant was a former resident of the boarding house who entered the premises a short time later. He saw WT bleeding from the mouth and was told that XN was responsible. The Crown contends that the applicant then entered XN’s room unlawfully and stabbed XN with a kitchen knife, causing XN serious injury.

Although the applicant initially denied the attack, his defence has since changed to self-defence. He now claims that XN had a knife. To some extent he is supported in that version of events by WT, who claims that, before the incident, he saw XN holding a Stanley knife outside his door in the hallway.

Although MZ was only 18 years old at the time of the incident, and XN was 38, MZ was staying with XN in his room as his girlfriend at the time.…

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 ZL v The Queen

Details

AGLC: ZL v The Queen [2010] VSCA 345
Case: [2010] VSCA 345
Decision Date: 14 December 2010

CaseChat Overview and Summary

In the case of ZL v The Queen, the appellant sought an interlocutory appeal against the exclusion of certain evidence from their criminal trial. The court was required to decide whether the exclusion of the evidence would substantially weaken the Crown's case and whether the evidence was admissible under the hearsay exception. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria.

The legal issues before the court were whether the exclusion of the evidence would substantially weaken the Crown's case, and whether the hearsay exception applied to the evidence in question. The court considered the relevant statutory provisions, including section 295(3)(a) of the Criminal Procedure Act 2009 and section 65(2)(b) of the Evidence Act 2008. The court also considered the decision in CGL v DPP (No 2) (2010) 24 VR 482, which was relevant to the first issue.

The court held that the exclusion of the evidence would not substantially weaken the Crown's case, as there was other evidence available to support the case. The court also held that the hearsay exception did not apply to the evidence in question, as the person who made the statement was available to give evidence and all reasonable steps had been taken to find them. The court therefore upheld the trial judge's decision to exclude the evidence.

The appeal was dismissed, and the trial judge's decision to exclude the evidence was upheld.

Orders