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: |
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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…
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- Case
- [2015] VSCA 40
- Decision Date
CaseChat Overview and Summary
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.
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Evidence
Evidence Before The Court
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Decision
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