Clarke, Archie (a Pseudonym) v The Queen; Director of Public Prosecutions [DPP] v Stanley, Stephen (a Pseudonym) and Wells, Nicholas (a Pseudonym) [2017] VSCA 115

Judgment type: 
Victorian Court of Appeal
Judge(s): 
Redlich JA, Beale AJA
Parties: 

Clarke, Archie (a Pseudonym) v The Queen; Director of Public Prosecutions [DPP] v Stanley, Stephen (a Pseudonym) and Wells, Nicholas (a Pseudonym)

Judgment Date: 
18 May 2017
Catchwords: 

CRIMINAL LAW - Evidence - Interlocutory appeals - Complainant unavailable to give evidence - Ruling that representations by unavailable witness were admissible pursuant to s65 the Evidence Act 2008 - Inability of accused to fully cross-examine witness - Whether danger that representations would be given undue weight - Complainant's representation supports evidence of principal witness for prosecution - Refusal to exclude evidence in the trial of Clarke and exclusion of the evidence as unduly prejudicial in the trial of Stanley and Wells - Representations having substantial probative value - s137 of the Evidence Act 2008 - Application for leave to appeal by Clarke refused - Applications for leave to appeal by the Director granted and the appeals allowed.

CRIMINAL LAW - Evidence - Reliability of representations of unavailable witness - s65(2)(c) of the Evidence Act 2008 - Reliability to be evaluated by reference to the circumstances in which each representation was made - Irrelevant that representations tend to support other evidence as to facts in issue - Sio v The Queen (2016) 90 ALJR 963; Azizi v The Queen 224 A Crim R 325.

Citation: 
[2017] VSCA 115