and Charles Hinton (a Pseudonym) v The Queen

[2015] VSCA 40

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0041
CHARLES HINTON (A Pseudonym)	Applicant
v
THE QUEEN	Respondent

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JUDGES:	REDLICH, WEINBERG and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	6 March 2015
DATE OF JUDGMENT:	6 March 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 40
JUDGMENT APPEALED FROM:	R v [Hinton] [2015] VSC 64

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CRIMINAL LAW – Admissions obtained – Record of Interview and covert recording – Breach of ss 464A(2)(2a), 464A(3), 464C of the Crimes Act 1958 – Improprieties of police officers – Trial judge refused application to exclude pursuant to ss 90 and 138 of the Evidence Act 2008 – EM v The Queen (2007) 232 CLR 67, DPP v BCR [2010] VSCA 299, applied – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D A Dann	Valos Black
For the Crown	Ms L A Taylor QC with Ms R L Harper	Ms V Anscombe, Acting Solicitor for Public Prosecutions

REDLICH JA

WEINBERG JA

KAYE JA:

1. By way of interlocutory appeal the applicant, who faces a charge of murder, seeks leave to appeal from an interlocutory decision of Forrest J.

2. His Honour refused an application to exclude portions of the applicant’s record of interview, and a covertly recorded conversation that occurred during a break in the interview when the applicant had said that he wished to consult with a legal representative.

3. The applicant sought the exclusion of such evidence pursuant to either s 90, or s 138 of the Evidence Act2008.  Following a two day voir dire, the trial judge found:

   I have identified the following irregularities in the conduct of the police investigation as it related to Mr [Hinton]:

   (a)       Det. Birch deliberately treated Mr [Hinton] as a witness when he was, in fact, a suspect.  Mr [Hinton] was only informed that he was a suspect at 2:59pm (see above at [72]);

   (b)       The detectives failed to comply with s 464A(2)(a) of the Act until Q 740 of the VROI.  In respect of Det. Birch, I consider this failure to have been deliberate and related to irregularity (a); in respect of Det. Roche, I am unable to say whether this failure was deliberate;

   (c) The detectives failed to comply with s 464A(3) of the Act. The form of caution was deficient and that deficiency was not remedied during the subsequent interview. I am unable to say whether this failure was deliberate;

   (d) The detectives failed to comply with s 464C of the Act. Det. Birch failed to defer all questioning once Mr [Hinton] had communicated his wish to obtain legal advice. Det. Birch was not entitled to rely on an implied waiver, withdrawal or qualification of that right.[1]

   [1]Reasons, [127].

4. Having found these irregularities to constitute improprieties for the purpose of s 138, his Honour, in his careful and detailed reasons, undertook the balancing of the competing considerations set out in s 138 and then said:

   Balancing these competing considerations as best I can, I conclude that the desirability of admitting the evidence marginally outweighs the undesirability of admitting evidence that has been obtained in the way in which this evidence has.  Had the evidence been less probative, less significant to the proceeding, or in relation to a less serious offence, I may well have been obliged to exclude the evidence.[2]

   [2]Ibid [132].

5. In rejecting the application for exclusion under s 90, his Honour did not take into account his findings as to the various improprieties by the investigators. His Honour regarded himself as constrained to follow this course in the light of the joint reasons of Gummow and Hayne JJ in EM v The Queen.[3]  Those joint reasons have been applied by the New South Wales Court of Appeal in the subsequent decisions of R v Cooney[4] and R v Ryan.[5]  There are also rulings of single judges in trials, including the ruling of Weinberg JA in Meade,[6] to the same effect.

   [3](2007) 232 CLR 67 (‘EM’).

   [4][2013] NSWCCA 312.

   [5][2013] NSWCCA 316.

   [6]R v Meade (Ruling No 1) [2013] VSC 250, [115].

6. The applicant wishes to contend that it is error to exclude the improprieties of the investigators from the evaluative task under s 90. That would require the applicant to demonstrate that the joint reasons in EM, and the decisions of the New South Wales Court of Appeal, are plainly wrong and should not be followed.  The question which he raises is an important and challenging one that requires fulsome submissions and careful consideration, perhaps before a bench of five judges.

7. As this Court said in Director of Public Prosecutions v BCR:

   We do not consider that leave to appeal should be granted to enable the bench hearing the appeal to consider the correctness of the decisions said by the Crown to be wrong.  All these decisions are very recent.  Although the Court of Appeal is not bound by its own previous decisions, ‘the doctrine of stare decisis remains important’.  To depart from principles laid down in its previous decisions the Court must be satisfied that those decisions are ‘plainly wrong’.  In our view, an appeal against an interlocutory decision would only be an appropriate vehicle for challenging an existing line of authority in exceptional circumstances.[7]

   [7][2010] VSCA 299, [44] (citations omitted).

8. An interlocutory appeal is not, in our view, the appropriate vehicle by which to pursue such an issue.  For that reason leave to appeal should be refused, particularly as the trial is fixed to commence very shortly.

9. In the event that the applicant is convicted of the charges, he may seek to agitate on appeal when this question can be given the due consideration that it merits.

10. Given the manner in which the issue concerning ss 138 and 90 was argued before his Honour, we are not persuaded that there is any error in the conclusion reached by his Honour concerning s 138. However, it became apparent during oral argument that there were arguments which counsel for the applicant acknowledged had not been fully developed before his Honour and upon which the applicant wishes to place greater reliance. In substance, it was contended before us that the vulnerability of the applicant, by virtue of his lack of sleep and his illness, being matters of which the investigators, it is said, would have been cognisant, aggravated the investigator’s degree of impropriety. That, it was contended, increased the likelihood that it was as a consequence of those improprieties that the applicant made the covert admissions that he did. It was submitted that that bore upon whether the record of interview and covert recording matters should have been excluded under s 138.

11. It is clear that his Honour recognised that considerations of fairness were relevant to s 138,[8] but it is not clear from the reasons whether this particular matter was considered by his Honour in dealing with s 138. Much of the argument as to unfairness had been pursued by the trial judge when dealing with s 90.

    [8]See Reasons, [21].

12. As we pointed out to counsel for the applicant during the course of oral argument, there is nothing to prevent the applicant from raising this further argument concerning fairness and the applicant’s vulnerability with the trial judge, and inviting his Honour to revisit his ruling.  We express no view as to whether these matters, if they were not considered by his Honour, should now lead to any different result.

13. For these reasons, the application for leave to appeal is refused.

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