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:

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] VSCA 40
Decision Date: 6 March 2015

CaseChat Overview and Summary

The appellant, identified in court records as Charles Hinton, appealed against his conviction for drug-related offences, challenging the admissibility of evidence obtained by the police through a covert recording during an interview. The appeal was heard and dismissed by the Court of Appeal of the Supreme Court of Victoria. The central issue in the case was whether the trial judge was correct in denying the application to exclude the evidence obtained from the covert recording on the grounds of impropriety under sections 90 and 138 of the Evidence Act 2008.

The court examined whether the police actions amounted to a breach of sections 464A(2)(2a), 464A(3), and 464C of the Crimes Act 1958, which pertain to the recording of interviews. The appellant argued that the covert recording constituted an impropriety that warranted exclusion of the evidence under the Evidence Act. However, the court considered precedents such as EM v The Queen and DPP v BCR, which established that the admissibility of evidence is not automatically precluded by police impropriety unless it is so serious as to bring the administration of justice into disrepute. The court found that while there was an impropriety, it did not reach the threshold of seriousness required for exclusion under the Evidence Act.

In reaching its decision, the court held that the trial judge was correct in assessing that the covert recording did not meet the stringent criteria necessary to exclude the evidence under sections 90 and 138. The court emphasised that the evidence was relevant and significant to the case, and its exclusion would not necessarily lead to a fair trial. Consequently, the appeal was dismissed, affirming the conviction and sentence imposed by the trial judge. The decision underscored the importance of balancing the need for effective law enforcement with the preservation of procedural fairness and the integrity of the judicial process.

Orders