Asling v The Queen

[2018] VSCA 132

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Conviction
4. › Unreasonable verdict
5. › Whether verdict unreasonable or cannot be supported having regard to evidence
6. › Evidence of witnesses whose credibility subject to significant attack
7. › Whether jury must have entertained doubt about guilt
8. › Criminal Procedure Act 2009 (Vic), s 276(1)(a)
1. Evidence
2. › Hearsay
3. › First-hand hearsay in criminal proceedings
4. › Maker of representation not available
5. › Whether representation made in circumstances making it likely to be reliable
6. › Co-offender's representations to friend
7. › Whether co-offender hearsay necessarily unreliable
8. › Evidence Act 2008 (Vic), s 65(2)(d)(ii)
1. Evidence
2. › Admissibility
3. › Exclusion of prejudicial evidence in criminal proceedings
4. › Whether probative value outweighed by danger of unfair prejudice
5. › Adequacy of judicial directions to address prejudice
6. › Evidence Act 2008 (Vic), s 137

Quick Take

Hearsay representations by a co-offender are not categorically inadmissible under s 65(2)(d)(ii) of the Evidence Act 2008 (Vic); the inquiry is directed to the circumstances in which the particular representation was made, not the classification of the representor. The circumstances in Sio v The Queen (statement to police by co-offender with motive to shift blame) are distinguishable from representations made by a co-offender to a trusted friend in circumstances where the representor ascribed a more significant role to himself. Detailed judicial directions can adequately address the risk of unfair prejudice from such evidence under s 137.