Haris (a pseudonym) v The King

[2023] VSCA 205

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Interlocutory appeal
4. › Permanent stay of proceedings
5. › Abuse of process
6. › Whether unavailability of evidence rendered trial necessarily unfair
7. › Whether primary judge entitled to assess credibility and reliability of unavailable evidence
8. › Criminal Procedure Act 2009 (Vic), ss 295(2), 295(3)(b)
1. Criminal Law
2. › Practice and procedure
3. › Permanent stay
4. › Missing evidence
5. › Assessment of prejudice from unavailable evidence
6. › Whether effect of missing evidence to be assessed in context of all evidence at trial
7. › Whether assessment to be made from perspective of defence
1. Evidence
2. › Hearsay
3. › First-hand and second-hand hearsay
4. › Unavailability of maker of representation
5. › Whether second-hand hearsay inadmissible where maker unavailable
6. › Evidence Act 2008 (Vic), ss 62, 65

Quick Take

A judge determining a permanent stay application based on the unavailability of evidence is entitled, if not bound, to analyse the credibility and reliability of the unavailable evidence in order to assess the extent of prejudice to the defence. The principles in Sio v The Queen (concerning the statutory construction of s 65(2)(d) of the Evidence Act) and IMM v The Queen (concerning the assessment of probative value under ss 97 and 137) do not govern the assessment of unavailable evidence in the context of a permanent stay application. An interlocutory appeal is an appeal in the strict sense, and an applicant is not at liberty to advance a different case from that argued below.