The Court of Appeal yesterday published its reasons for judgment in R v Darmody [2010] VSCA 41 about:
- the application of the transitional provisions in the Evidence Act 2008
- their effect on the Evidence Act 2008
- the meaning of ‘not available to give evidence’ in the hearsay exception in s 65 of the Evidence Act 2008
- the notice requirements under s 67 of the Evidence Act 2008
There are a number of cases before the Court of Appeal under s 295 of the Criminal Procedure Act 2009 (appeals against interlocutory decisions). I’m pretty sure Darmody is the first one to be published — does anyone know any different? — and there are more to come.
There were four grounds of appeal by the accused applicant.
All were rejected by the Court of Appeal.
Darmody was charged with causing serious injury to and threatening to kill Brendan Jones. Jones refused to give evidence on a number of occasions, before and after the Evidence Act 2008 commenced operation.
1. Did the Evidence Act 2008 apply?
The Statute Law Amendment (Evidence Consequential Provisions) Act 2009 — doesn’t the name just roll off the tongue? — inserted Schedule 2 in the Evidence Act 2008.
Clause 2 of Schedule 2 relevantly provides:
2 Application of this Act on commencement day
(1) Except as otherwise provided by this Schedule, this Act applies to any proceeding (within the operation of section 4) commenced on or after the commencement day.
(2) Except as otherwise provided by this Schedule, in the case of any proceeding (within the operation of section 4) that commenced before the commencement day, this Act applies to that part of the proceeding that takes place on or after the commencement day, other than any hearing in the proceeding that commenced before the commencement day and —
(a) continued on or after the commencement day; or
(b) was adjourned until the commencement day or a day after the commencement day.
The Court distinguished between a proceeding and a hearing in a proceeding, and held that the relevant hearing in a proceeding commenced after the commencement day and so the Evidence Act 2008 did apply to the case.
Unfortunately, the Court didn’t go that next step and give us all a helpful definition of what a hearing in a proceeding is. But, I reckon it’s pretty clear it’s the part of a criminal proceeding when the judge rings the bell; the advocates take their corners; witnesses are examined and cross-examined; and legal submissions argued. Simply put, it’s the main game, the meat in the sandwich, in contrast to all the other procedural steps in criminal proceedings leading up to the hearing proper.
It might be the Court considered it so obvious that it just didn’t need spelling out.
2. Was the complainant available to give evidence?
The Court said the trial judge was right to follow R v Suteski (2002) 56 NSWLR 182; (2002) 137 A Crim R 371 and decide that if a witness refused to give evidence they are ‘not available to give evidence’ as provided in the Evidence Act’s Dictionary, Part 2, cl 4(1)(f).
The Court particularly noted it was the accused himself who objected to further adjournment when the complainant might be prepared to give evidence. In any case, it wasn’t certain the complainant would give evidence later on.
3. Did the accused suffer s 137 prejudice?
Section 137 is the probative-versus-prejudicial-value provision in the Evidence Act 2008.
On the appeal, the accused-applicant argued he would suffer prejudice if the complainant’s committal evidence were led at the trial (under the s 65 exception) — in general terms, because the evidence couldn’t be tested.
The Court fleshed out the details more than I’m paraphrasing here, but basically said “Nope”, and also pointed out that any prejudice the accused suffered wasn’t unfair prejudice of the type proscribed by the authorities. (Probably the leading case to make the point about unfair prejudice being the target is Festa v The Queen (2001) 208 CLR 593 at [22] and [24]. It probably wasn’t cited in this case because Festa dealt with discretionary exclusion under the common law, while s 137 is a mandatory provision.)
4. Failing to give notice under s 67
Section 67 of the Evidence Act 2008 requires a party to give notice before it can adduce hearsay evidence under s 65(2). Evidence Regulations 2009 reg 5 specify what the notice must contain.
But, the Court might (in effect) waive that requirement under s 67(4), and impose conditions. The Evidence Act has a conditions-power in s 192.
The trial judge dispensed with the need for written notice, subject to certain conditions.
The Court of Appeal agreed, noting that counsel for the accused was told orally about two weeks before the hearing that the Crown might try to lead the hearsay-evidence, and had time to properly consider and respond to such an application. That meant there was no unfairness to the applicant.
The first published CPA s295 was actually CGL (No 2) [2010] VSCA 24. (A lousy decision, too!)I think that the VCA in this case correctly read both the transitional provisions and the NSW authorities. But I also think that the result is a very disturbing one.The prosecution case against Darmody will now be principally based on hearsay from the complainant, not because the complainant is dead or missing, but simply because he elected not to testify.True, the complainant was threatened with contempt. But any lawyer could have advised him that actual contempt charges were unlikely because the UEL would allow his earlier committal evidence to be adduced instead (and because he could rely on the defence of necessity.) Suteski (which concerned accomplice evidence, not complainant evidence) set the bar too low. Either the complainant should actually have been charged with contempt or a compelling reason should have been given for not doing so. True, also, that Darmbody got to cross-examine the complainant at committal. But that was a committal done in contemplation of the pre-UEL regime. The trial only got pushed into 2010 because of a failed attempt to get the complainant transferred to a different prison. Arguably, s65(3)(b) was now satisfied in these circumstances and the transitional issue also has implications for the s137 and s67 arguments.The other problem is that the Charter wasn't considered. There is a major debate in Europe over whether a trial can ever be fair when it is principally based on hearsay: see Horncastle (UKSC) and Kawaja (ECtHR). There is clearly room to argue that Charter s. 32 should be applied to reinterpret the Victorian UEL more strictly than Suteski. And there are also some interesting Charter s. 38 arguments to be made about (a) the prosecution's willingness to rely on s65(3) (and s67 and s137); (b) Corrections's failure to transfer the complainant; and (c) the failure to prosecute the complainant for contempt. All up, this case is a sign that the UEL is going to be very eagerly embraced by the VCA. The Charter, by contrast, continues to languish.
Sorry, should have read “Arguably, s65(3)(b) was NOT satisfied in these circumstances…”
The first published CPA s295 was actually CGL (No 2) [2010] VSCA 24. (A lousy decision, too!)I think that the VCA in this case correctly read both the transitional provisions and the NSW authorities. But I also think that the result is a very disturbing one.The prosecution case against Darmody will now be principally based on hearsay from the complainant, not because the complainant is dead or missing, but simply because he elected not to testify.True, the complainant was threatened with contempt. But any lawyer could have advised him that actual contempt charges were unlikely because the UEL would allow his earlier committal evidence to be adduced instead (and because he could rely on the defence of necessity.) Suteski (which concerned accomplice evidence, not complainant evidence) set the bar too low. Either the complainant should actually have been charged with contempt or a compelling reason should have been given for not doing so. True, also, that Darmbody got to cross-examine the complainant at committal. But that was a committal done in contemplation of the pre-UEL regime. The trial only got pushed into 2010 because of a failed attempt to get the complainant transferred to a different prison. Arguably, s65(3)(b) was now satisfied in these circumstances and the transitional issue also has implications for the s137 and s67 arguments.The other problem is that the Charter wasn't considered. There is a major debate in Europe over whether a trial can ever be fair when it is principally based on hearsay: see Horncastle (UKSC) and Kawaja (ECtHR). There is clearly room to argue that Charter s. 32 should be applied to reinterpret the Victorian UEL more strictly than Suteski. And there are also some interesting Charter s. 38 arguments to be made about (a) the prosecution's willingness to rely on s65(3) (and s67 and s137); (b) Corrections's failure to transfer the complainant; and (c) the failure to prosecute the complainant for contempt. All up, this case is a sign that the UEL is going to be very eagerly embraced by the VCA. The Charter, by contrast, continues to languish.
Sorry, should have read \”Arguably, s65(3)(b) was NOT satisfied in these circumstances…\”