Court of Appeal (Vic)|2010-08-25|Before: BONGIORNO, HARPER and HANSEN JJA

DPP v B B; DPP v Q N [2010] VSCA 211 (25 August 2010)

CRIMINAL LAW - Appeal - Crown appeal - Interlocutory appeal - Evidence - Hearsay - Admissibility of representations made by witness in evidence at committal concerning facts in issue - Evidence Act 2008, ss 59, (3), (6), , - , s 55AB - , s 203 - (U.K.).

1 This is an application by the Crown for leave to appeal from an interlocutory decision of her Honour Judge Harbison in the County Court refusing to admit certain Crown evidence in the criminal trial of BB and QN. These two men were arraigned on an indictment containing four counts - the kidnapping of TNV ('the complainant'), false imprisonment of the complainant and intentionally or recklessly causing injury to him whilst he was falsely imprisoned. A third man has, apparently, pleaded guilty to the same or similar offences.

2 In accordance with s 67 of the Evidence Act 2008 ('the Act') the Crown gave notice of its intention to adduce a number of pieces of hearsay upon BB and QN's trial. To use the terminology of the Act, the hearsay consisted of 'representations' made by the complainant who had since died, implicating the accused in the offences against him. After hearing pre-trial argument, her Honour excluded all of those representations. However, the Crown sought and obtained a certificate from the trial judge, pursuant to s 295(3) of the Criminal Procedure Act 2009, as a preliminary to seeking leave to appeal her Honour's decision in respect of each of the pieces of hearsay concerned. In the event, the Crown seek leave in respect of only one category of evidence, namely the complainant's evidence at the accuseds' committal. The complainant was the only eye witness to the offences allegedly committed against him.

3 Section 59 of the Act provides a statutory exposition of the hearsay rule as it now applies in Victoria. Section 59(1) provides:

Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

On its face, s 59(1) would exclude the admission of the complainant's evidence at committal whether in the form of a transcript or in some other recording of it - audio or video. However, s 65(3) is in the following terms:

(3) The hearsay rule does not apply to evidence of a previous representation made in the course of giving evidence in an Australian or overseas proceeding if, in that proceeding, the accused in the proceeding to which this section is being applied:

(a) cross-examined the person who made the representation about it; or

(b) had a reasonable opportunity to cross-examine the person who made the representation about it.

4 The trial judge ruled that s 65(3) enabled the complainant's evidence at committal to be used in the trial of these accused but then, applying s 137 of the Act, ruled it as inadmissible because its probative value was outweighed by the danger of unfair prejudice to the accused if it was admitted. Section 137 not merely permits a court in a criminal proceeding to exclude evidence if it reaches the conclusion which the trial judge did in this case; it requires such exclusion.

5 In reaching her conclusion that the evidence was prima facie admissible pursuant to s 65(3), the trial judge found that the complainant had been cross-examined at committal so as to satisfy s 65(3)(a), although her Honour said that there were significant difficulties in the way in which that cross-examination took place. Her Honour returned to these 'difficulties' when dealing with the factual basis upon which she held that s 137 required her to exclude the proffered evidence.

6 The evidence of the complainant to which her Honour applied s 65(3) consisted of a ten page police statement, in usual form, signed by him and containing a jurat as required by the Magistrates' Court Act 1989. The written statement was signed by a Vietnamese interpreter who, the complainant says (in the statement), read it to him in that language. The statement is also signed by a police officer acknowledging that he took the statement and witnessed the complainant's signature. The written statement was verified (again) at the committal, the complainant also attesting that he had read the statement with the assistance of an interpreter. Although he does not specifically say so, it can probably be inferred that that re-reading was then recent.

7 The transcript of the cross-examination of the complainant at the committal consisted of 54 pages of transcript taken on 15 April 2009 (pages 1-40) and 22 June 2009 (pages 41-54). It was authenticated by a person who has certified it as a true, accurate, and correct transcript of the proceedings. No issue was taken in this Court as to that authentication or of its effect having regard to s 65(6) of the Act.

8 The complainant's police statement, verified at committal on oath, is a clear, cogent and completely intelligible and logical account of his treatment at the hands of the two accused and their former co-accused. His cross-examination contains an explanation of those matters in his statement upon which he was questioned and, as well, contains a number of admissions which the jury would be able to use to assess his credibility.

9 In considering the question of the probative value of the hearsay sought to be admitted, the trial judge referred to the definition of probative value in the Dictionary appended to the Act. 'Probative value' is defined as 'the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue'. Her Honour rejected a submission that its importance to the Crown case played a part in assessing its probative value. Nor did she accept a submission that credibility and reliability were relevant matters to be taken into account by a judge in determining the probative value of evidence tendered pursuant to s 65(3). In doing so, she specifically preferred the reasoning of the NSW Court of Criminal Appeal in R v Shamouil[1] to a decision of the Tasmanian Court of Criminal Appeal in DPP v Lynch,[2] and a decision of a single judge of the Supreme Court of Tasmania, Porter J, in Tasmania v Mayne.[3] Having regard to the content of the hearsay sought to be adduced and the obvious ability of the complainant to attest to it and notwithstanding some deficiencies in the complainant's credibility as exposed in his cross-examination at committal, it is not necessary here to reconcile those authorities - if they need reconciliation. The trial judge concluded that the evidence proffered by the Crown would be highly probative because, if it was accepted, it implicated each of the remaining accused in the offences alleged against them in the indictment. Nothing that has been said before this Court makes it necessary to review her Honour's decision on this question.

10 On the basis that the evidence permitted to be adduced by s 65(3) of the Act was highly probative, her Honour proceeded to consider the question of unfair prejudice - a real risk that the evidence will be misused by the jury in some unfair way - if it was admitted. On this issue her Honour found that there was prejudice which outweighed the probative value of the evidence such that it must be excluded. Her Honour gave three reasons for reaching this conclusion. She said:

... the combination of effective inability to fully explore cross-examination because of pressure from the magistrate and lack of clarity as to the actual responses to cross-examination because of the difficulty raised by the interpreter, together with the inability of the jury to see the witness in my view, is properly to be characterised as unfair prejudice.

11 I have reached the conclusion that none of these reasons is capable of justifying the exclusion of the contentious hearsay sought to be adduced by the Crown. It is, accordingly, necessary to examine these findings of the trial judge to demonstrate that they were not open on the evidence available to her.

12 During the course of cross-examination of the complainant, the magistrate presiding at the committal made a number of interjections. The first of them, which appears at page 11 of the transcript, enquired of counsel as to whether he intended to 'spend any time at all on the particulars that actually constitute the allegations in this matter?' The transcript records that 'discussion ensued'. That discussion was not transcribed, although it was common ground in this Court that the parties had access to the audio recording of it and all other similar discussions to which the transcript refers. Neither of the respondents sought to put such discussion before the Court or to refer to it to re-enforce any submission that the magistrate had exerted pressure on them, as found by the trial judge.

13 The other interjections of the magistrate, were in similar vein. Each of them were expressions of frustration by his Honour as to the time being taken in what he clearly regarded as inutile cross-examination. Even though on two occasions his Honour threatened to stop counsel cross-examining by placing a time limit on him, it is clear that he never took any such step. Cross-examination continued after each of these interjections much as before. It ranged over a very wide field, although, as pointed out by counsel in this Court, neither of the respondents 'put their case' to the complainant as they might (or might not) have done on a trial had he been still available for cross-examination at that time. That they did not do so was their forensic choice. There is no justification for any conclusion that, had they wished to do so, even after the magistrate's interventions, they would have been stopped. I am satisfied that the contrary conclusion is more probable.

14 Having considered the transcript of the committal and the interjections of the magistrate as recorded in it, I am unable to agree with the conclusion of the trial judge that pressure from the magistrate hampered the respondents' ability to cross-examine the complainant to the full extent that they wished. I would go further. Her Honour's conclusion in this regard was not open on the evidence before her. The failure of either of the accused to put the recorded but not transcribed discussions referred to above before this Court reinforces my conclusion.

15 Mr Tehan QC for QN in this Court suggested 13 topics upon which the complainant might have been cross-examined at trial had his evidence been able to be put before the jury in the normal way. An analysis by counsel for the applicant, however, demonstrated that many of these topics were, in fact, the subject of cross-examination although, doubtless, some of them would, or at least could, have been further explored in cross-examination at trial. But this would almost always be the case where a witness is not available at trial but has produced prior material rendered admissible by s 65(3) of the Act.

16 In enacting s 65(3) in the form it is, the legislature placed alternative primary conditions on its application. Those conditions require that the accused has either cross-examined the relevant witness in an earlier proceeding about the 'previous representation' of which hearsay evidence is sought to be adduced or he had a reasonable opportunity of doing so. The legislature clearly anticipated a situation where hearsay would be rendered admissible by s 65(3) even where there was, in fact, no cross-examination at a previous proceeding of the relevant witness. In this case, the complainant was cross-examined by each of the accused about at least some of the statements of fact asserted by him in his police statements. Nothing the magistrate did prevented counsel for either of the accused from further cross-examining him in relation to any other statements of fact contained in that statement. His Honour's understandable expressions of frustration were no more than that and were designed, perhaps ineffectively, to direct counsel's attention to the real issues before him. Even allowing for the fact that counsel may have been able to continue cross-examination for some time longer, any suggestion that they were inappropriately curtailed by pressure from the magistrate cannot be accepted.

17 Section 65(3) is not the first Victorian statutory provision which permitted prior depositions to be tendered as evidence at trial. Section 55AB of the Evidence Act 1958, which has since been repealed, provided for the use of depositions taken at committal in a subsequent trial where a witness was unavailable. The conditions for use of such a deposition against an accused under that provision were that the accused must have been present when the deposition was taken and he (or his lawyer) must have had a full opportunity of cross-examining the witness. This section, in substance, if not in form, can be traced back, at least, to the Justices Act 1890 in this State and appears to have had its origin in the Indictable Offences Act 1848 (UK) (Jervis's Act), the first English provision which introduced the statutory exception to the hearsay rule rendering a deposition admissible at trial if a witness was unavailable for certain specific reasons set out in the statute. It could be argued that the substitution of the word 'reasonable' in the current Evidence Act for the word 'full' in earlier legislation compels a conclusion that the legislature intended the qualifying condition for admissibility to be now less onerous than it was before.

18 But even prior to 1848 there was recognised a common law exception to the hearsay rule which would permit the evidence of a witness in a trial to be read at a retrial if the witness was by then incapable of being called. In R v Thompson[4] the English Court of Appeal (Dunn LJ, Milmo and Butler-Sloss JJ) referred to a judgment of Coleridge J in R v Scaife[5] of 1851 which asserted that, even before Jervis's Act:[6]

... if a witness were absent, whether by reason of the death of the witness or by the procurement of the prisoner, the deposition was receivable in evidence against him.

The Court accepted that Jervis's Act merely clarified the position with respect to the reason for a witness' unavailability. Illness was included as a legitimate reason for non-availability after Jervis's Act, whereas it had not been such at common law. The common law exception to the hearsay rule and subsequent statutory provisions, in England and in this jurisdiction for over 150 years, have allowed depositions taken at committal to be admitted at trial in certain circumstances, including when a witness is dead.

19 The application of the provision which enabled a deposition to be tendered at trial as it existed in Victoria in 1951[7] may be illustrated by the judgment of Lowe ACJ in R v Horan.[8] Horan had been convicted of receiving by a jury in a Court of General Sessions. The case against him rested, as the acting Chief Justice said, principally, if not solely, upon the evidence of a witness unavailable because of illness. That witness' evidence was admitted by her deposition being tendered. Although Horan's appeal against conviction was upheld on two grounds, neither of them related to the inability of his counsel to cross-examine the absent witness at trial. One of the successful grounds was, though, that the Chairman of General Sessions, who presided at Horan's trial, did not: [9]

... [point] out to the jury that, the deposition being the principal if not the only evidence against the applicant, it was necessary for the jury to bear in mind that they had not seen the witness to judge of her credibility, and that there had been no opportunity to cross-examine her. In such a case, we think that a warning was in the highest degree desirable and that the jury should have been warned to scrutinise the evidence in the deposition with great care before acting upon it.

The significance of this decision is, of course, not the ground upon which the appeal was upheld but the fact that the inability of the accused to cross-examine the witness and the inability of the jury to see the witness giving her evidence at trial were clearly thought remediable by an appropriate judicial direction. A very similar situation was dealt with by the Privy Council in Henriques v R.[10] Their Lordships opinion as to the direction which ought to have been given was expressed as follows:[11]

In his summing up the judge directed the jury that they could disregard the evidence of [Dr Venugopal] if they did not think it sounded right. However, he did not warn the jury that deposition evidence was not necessarily of the same weight as evidence which they had heard tested before them by cross-examination. Their Lordships consider that this was a regrettable omission. When a judge allows deposition evidence to be admitted he should as a matter of course warn the jury that they have neither had the benefit of seeing the deponent nor of hearing his evidence tested in cross-examination and that they must take this into consideration when evaluating the reliability of his evidence. Furthermore as Lord Griffiths said in Scott v R [1989] AC 1242, 1259:

'in many cases it will be appropriate for a judge to develop this warning by pointing out particular features of the evidence in the deposition which conflict with other evidence and which could have been explored in cross-examination.'

20 With respect to the failure of counsel to cross-examine the subsequently absent witness before the committing magistrate they said: [12]

In his summing up the judge referred to the fact that Mr. Ramsay for Henriques had not cross-examined Dr. Venugopal before the magistrate. Their Lordships think it important that, if a judge in such circumstances refers to the lack of cross-examination of a deponent, he shall direct the jury that, in view of the many reasons which may exist for not cross-examining at that stage, no inference adverse to the accused should be drawn.

21 Whilst the inability to cross-examine a witness at trial is a factor to be taken into account in determining whether the admission of evidence taken in an earlier proceeding will lead to unfair prejudice to an accused, it can never be determinative.[13] Its weight on that issue in any particular case must take into account the legislative intent expressed in s 65(3) that the hearsay rule is not to apply to such evidence and the fact that the trial judge can always accompany its admission with appropriate directions to the jury.

22 The evidence sought to be admitted in this case was not rendered inadmissible by any non-compliance with either s 65(3)(a) or (b) of the Act. Nor did any action of the magistrate infringe the right of either of the accused to cross-examine the complainant at the committal as they might have been advised. Any possibility of unfair prejudice to the accused can be adequately avoided by appropriate judicial direction if the complainant's evidence at committal is admitted as evidence on their trial. It is for the purpose of having available such evidence, despite the unavailability of a witness, that s 65(3) and its statutory predecessors were enacted.

23 The second matter relied upon by the trial judge as justifying exclusion of the subject evidence from the accuseds' trial on the ground of unfair prejudice was that there was a '... lack of clarity as to the actual responses to cross-examination [of the complainant] because of the difficulty raised by the interpreter...'.

24 This conclusion would appear to be based on the fact that on about six occasions in the 54 pages of transcript comprising the complainant's cross-examination, the interpreter through whom he was cross-examined is recorded as having interjected. In those interjections he or she sought clarification of what the complainant said, explained why he or she needed assistance from the complainant to interpret an answer, asked the complainant to repeat his answer or referred to other similar matters of a relatively trivial nature. After each such interjection cross-examination continued. A perusal of the course of that cross-examination does not support a conclusion that the interpreter was having any unusual or extraordinary difficulty in translating the proceeding and there was no other evidence before her Honour which would suggest that he or she was having such difficulty.

25 In any proceeding involving the use of an interpreter it is commonplace for the interpreter to seek assistance from the witness, from counsel or from the Court in order to perform his or her function properly. It would be a rare situation for a court to produce 54 pages of transcript of cross-examination through an interpreter without such interruptions. Such interruptions are not always transcribed. Sometimes they are not transcribed in full but are noted. Here their substance is able to be fully examined. Her Honour's finding that these interruptions led to a conclusion that there was a lack of clarity as to the complainant's responses to cross-examination was not open on the evidence.

26 In any event, the audio recording of the complainant's cross-examination is still available and in the possession of all parties. Any errors in the translation of his answers can be readily checked and corrected by having the recording re-translated by another interpreter. If, as is extremely unlikely, such a re-translation results in a dispute as to what the evidence was, that dispute can be appropriately dealt with. It is not without significance on this question that no objection or complaint was made before the magistrate as to any problem with the competence of the interpreter and no error in translation was raised before the trial judge at any stage by either of the accused. They are both of Vietnamese origin and can be assumed (at least until the contrary is asserted) to be competent in that language, at least to a sufficient degree to be able to instruct their legal advisors appropriately if they considered the transcript departed from the audio recording of the proceeding.

27 There is nothing in the transcript concerning the interpreter which would justify a conclusion that his or her actions or inability to translate would cause any unfair prejudice to the accused if the transcript was used on their trial. Accordingly, it cannot be a basis for exclusion of this material pursuant to s 137 of the Act.

28 The third matter referred to by her Honour concerned the inability of the jury to see the witness giving his evidence because no video recording was made of his cross-examination. Her Honour explained that this meant that the capacity of the jury to properly assess the reliability or credibility of the complainant would be diminished which would lead to a real risk that the jury would misuse the evidence in some unfair way to the prejudice of the accused.

29 Section 65(3) was enacted as a modern version of earlier laws which provided a means of ensuring that a jury in a criminal trial was not deprived of otherwise relevant evidence merely because of the death of a witness, not excluding the principal witness or victim of the offence with which an accused is charged. Section 65(6) provides for the proof of that depositional material by the production of an appropriately authenticated transcript or recording of the evidence. The section specifically contemplates a case where the jury will not be able to see the witness giving evidence or see him cross-examined. Indeed, until the relatively recent use of audio or video recording became available, a written transcript, taken in shorthand by a court reporter, or even in longhand by a clerk of courts, would have been the only method of placing evidence such as this before a jury at trial. It is probable that that was how the deposition in Horan's case would have been created.

30 In this case, where the complainant gave his answers in cross-examination in a foreign language, any advantage which the jury might have had in seeing him give his evidence at trial would be considerably diminished by the linguistic and cultural barrier which inevitably and unavoidably exists in such cases. A wise trial judge would always caution a jury as to placing too much weight on a witness' demeanour and the like when directing them as to matters of credibility and veracity when evidence is given through an interpreter. If using demeanour as an indication of veracity is problematic when assessing the evidence of a person whose first language is English, it is much more so across a cultural divide.

31 The conclusion of the trial judge as to the effect on the jury of their being unable to see the complainant as going to the question of prejudice raises the same point as that which related to his being unable to be cross-examined. The problem has always been dealt with by judicial direction as required by cases such as Horan and Henriques. It can be so dealt with in this case. Her Honour's conclusion that the jury's inability to see the complainant would produce unfair prejudice in this case cannot be sustained.

32 In this Court, counsel for QN argued that this was 'an identification case' which necessarily increased the risk of prejudice to the accused. He said that the identification of his client depended upon the complainant's evidence and that, accordingly, the trial judge would have to give appropriate warnings to the jury pursuant to s 165(b) of the Act. He submitted that even with such warnings the jury would be likely to misuse the evidence of the complainant if admitted as the Crown sought.

33 That QN (referred to by the complainant as 'Jimmy' in his statement and in cross-examination) drove the car in which the complainant says he was abducted is not in issue. His case is that he drove the car but dropped the complainant and his two co-accused (D and BB) at D's house and then left. He says he had nothing further to do with the complainant. The complainant said in his statement that QN did not leave but took part in his subsequent assault and false imprisonment at D's house. This hardly makes it an 'identification case'. The complainant knew all the accused before the day of these alleged offences. In any event, even if this were an identification case there is no reason why the warnings the trial judge must give the jury as to the care with which they must scrutinise the evidence of the complainant at committal cannot include all appropriate warnings as the case requires. Section 165 of the Act applies to evidence admitted pursuant to s 65(3) as it does to any other evidence.

34 As well as relying on, and expanding, the arguments put by counsel on behalf of QN, Mr Ginsbourg for BB put a further argument concerning the hearsay nature of evidence given through an interpreter. He submitted that s 62 of the Act restricted the reception of hearsay evidence pursuant to s 65(3) to 'first-hand' hearsay. As the transcript of the committal recorded not what the witness said but what the interpreter said he said, it recorded what was already first-hand hearsay. When the Crown sought to prove the events described by the complainant by proving what the interpreter said he said at the committal, what was being adduced was second-hand hearsay. In the case of the complainant's evidence-in-chief, which was given by his verifying the truth of the statement which he had previously made and which he had recently read with the assistance of 'the interpreter', Mr Ginsbourg submitted that a further complication arises. The complainant, himself, cannot say whether the statement had been properly translated to him, so that it was inherent in his verification of it that the interpreter who assisted him tacitly informed him that it was a true translation, making the reception of the statement as involving, arguably, the admission of 'third-hand hearsay'.

35 In Gaio v The Queen[14] the High Court considered the status of evidence at common law of a confession made by a New Guinean native to a police officer through a native interpreter, who had given evidence that he had faithfully translated the words spoken by both the police officer and the appellant. The Court (Dixon CJ, Fullagar, Kitto and Menzies JJ, McTiernan J dissenting) held that the police officer's evidence of the confession was admissible. Dixon CJ, who agreed with the judgment of Fullagar J, summarised the matter thus:[15]

I think that the translation word by word or sentence by sentence by the interpreter is not an ex post facto narrative statement of an event that has passed within the rule against the admissibility of hearsay but is an integral part of one transaction consisting of communication through the interpreter. It is therefore enough if it is proved that what he did was to interpret faithfully.

Fullagar J considered that it was a necessary condition precedent to admission of the confession into evidence that the interpreter was called as a witness to say that he had made a correct oral translation of what was said by the appellant and by the interviewing police officer. Without that evidence the evidence of the police officer would have been insufficient to establish the fact of and the substance of the confession without reliance on hearsay, inadmissible at common law.

36 The High Court in Gaio was, in effect, holding that the intervention of an interpreter between two persons who do not share a common language for the purpose of permitting them to communicate does not mean that one person's report of the conversation is hearsay. The interpreter is, as it were, a translation device. But it is necessary to prove that the translation device is, in fact working. Accordingly, in order to make the witness's evidence admissible, it is necessary to prove that the interpreter provided a faithful interpretation in both directions.

37 In this case, the interpreter was not cross-examined at the committal nor was any objection taken to his or her translation. At trial, in order to make the evidence of the complainant at committal admissible, it will be necessary for the Crown to call the interpreter who interpreted the complainant's cross-examination before the magistrate and also to call (if it is not the same person) the interpreter who assisted the complainant to read his statement before he verified that it was true. If these steps are taken, or dispensed with by agreement, the evidence proffered pursuant to s 65(3) of the Act of what the complainant said in his statement and at committal will not be inadmissible hearsay.

38 Because of the nature of the errors made by the trial judge in applying s 137 of the Act to the hearsay sought to be adduced by the crown there is no need for this Court to concern itself with the question of what function it is actually performing in allowing the Crown appeal in respect of a decision by a trial judge under s 137 to exclude evidence. Whether it is giving the judgment which in its opinion ought to have been given in the first instance,[16] or whether it is reviewing the exercise by the trial judge of a function akin to the exercise of a discretion,[17] an error in the fact finding process, as has occurred here, will result in the decision being set aside. The trial judge was, unfortunately, in error in excluding the evidence proffered by the Crown of the representation made by the complainant as to the facts of this case. Accordingly, the decision must be set aside.

39 It should be noted, in conclusion, that the statement of the complainant and some of his cross-examination at committal when he refers to having met one of the accused in gaol or similar circumstances may need to be appropriately edited before admission. As that question was not part of the this appeal it can safely be left to the trial judge to ensure that any such material is removed from the jury's consideration unless, in its case, its probative value outweighs its unfair prejudicial effect.

40 Trial judges make numerous evidentiary rulings every day in trial courts across this state. Any ruling which excludes Crown evidence must, logically, weaken the Crown case. But that is not sufficient to justify the grant of a certificate pursuant to s 295(3) of the Criminal Procedure Act 2009. If this Court is to carry out its function under s 295 appropriately it is essential that the criteria in s 295(3) be carefully considered and strictly applied before a certificate is issued. In the case of a certificate in respect of a ruling concerning the admissibility of evidence, the reasons why the evidence meets one of the criteria in s 295(3)(a) must be able to be articulated.[18] It is not appropriate, normally, for a certificate to be provided by a trial judge merely because the parties agree that a decision should be certified. The judge must be satisfied that the criteria for a certificate exist, whether the parties agree or not. Unlike most rulings as to the admissibility of evidence, the ruling in this case was appropriate for certification by the trial judge pursuant to s 295(3)(a) because the evidence in question is the only evidence directly implicating the accused in the commission of the offences charged. This is the type of interlocutory ruling appropriate for appeal under the Criminal Procedure Act 2009. Most evidentiary rulings are not.

41 The following orders should be made on this application:

1. That the Crown have leave to appeal pursuant to s 295(2) of the Criminal Procedure Act 2009 against the exclusion by the trial judge in this case of the authenticated transcript of the complainant's evidence given at a committal proceeding concerning the respondents before Mr R McIndoe M at the Sunshine Magistrates' Court on 15 April 2009 and 22 June 2009, including the complainant's police statement dated 12 August 2008 verified and tendered in that proceeding.

2. That the appeal be heard instanter and allowed.

3. That the trial of the respondents on Presentment No C0806441.2 in the County Court proceed in accordance with this judgment and according to law.

[5] (1851) 2 Den 281; (1851) 169 ER 505.

[11] Ibid 242. The Jamaican Statute under consideration in this case was very similar to that considered in Horan. It included the same pre-requisite for admission of the deposition: a full opportunity to cross-examine before the magistrate.

[13] R v Suteski [2002] NSWCCA 509; (2002) 56 NSWLR 182, [126] (Wood CJ at CL) and the cases there citied.

[16] Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549, 561 (Isaacs J); Scott v Pauly [1917] HCA 60; (1917) 24 CLR 274, 279 (Isaacs J); Londonbank of Australia Ltd v Kendall [1920] HCA 53; (1920) 28 CLR 401, 407 (Isaacs and Rich JJ).

[17] House v R [1936] HCA 40; (1936) 55 CLR 499, 505 (Dixon, Evatt and McTiernan JJ).

[18] CGL v DPP [2010] VSCA 24, [11]-[13], [20]; R v DG [2010] VSCA 173, [5]-[10].

Indictable Offences Act 1848

DPP v B B; DPP v Q N [2010] VSCA 211

At a glance

Court

Decision date

Before

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Judgment (73 paragraphs)

DPP v B B; DPP v Q N [2010] VSCA 211 (25 August 2010)

Legislation Cited (4)

Cases Cited (7)