CGL v DPP (No 2) - [2010] VSCA 24

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 24 of 2010

CGL
	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS (NO 2)	Respondent

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JUDGES:	MAXWELL P, BUCHANAN and BONGIORNO JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	19 February 2010
DATE OF JUDGMENT:	19 February 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 24

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CRIMINAL LAW – Appeal – Interlocutory appeal – Confessional evidence – Admission by accused to complainant – Whether admissible – Whether exclusion of evidence ‘would eliminate or substantially weaken the prosecution case’ – Whether certificate of trial judge warranted – Leave to appeal refused – Evidence Act 2008 (Vic) s 85, Criminal Procedure Act 2009 (Vic) ss 295(3), 297.

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APPEARANCES:	Counsel	Solicitors
For the Respondent	Ms C Barbagallo	Mr C Hyland, Office of Public Prosecutions
For the Applicant	Mr P Tehan QC with Mr B Newton	Paul Vale

MAXWELL P:

By notice dated 17 February 2010 the applicant (who is the accused in criminal proceedings in the County Court) has applied for leave to appeal under s 295 of the Criminal Procedure Act 2009 (Vic) (‘CPA’) against a decision made in the proceeding on 15 February 2010 by the trial judge, his Honour Judge Pilgrim. The decision was that evidence of an admission, made by the applicant to the complainant on 7 October 2008, was admissible against him in the trial. This is the trial of the counts based on the allegations of the complainant whom we shall identify as Complainant B, a separate trial of those counts having been ordered by His Honour.

The issue sought to be ventilated if leave to appeal were granted concerns the conclusion arrived at by the trial judge in applying s 85(2) of the Evidence Act 2008 (Vic). It has been conceded by the prosecution that s 85 is applicable, by reason of sub-s (1)(b). In the course of a recorded conversation, it is common ground, the accused is heard to make an admission of sexual offending against Complainant B, though it is an admission in the most general of terms. The question debated before the judge was whether ‘the circumstances in which the admission was made were such as to make it unlikely that the truth of the admission was adversely affected’. The judge was satisfied that the truth of the admission was unlikely to have been adversely affected, and it is that conclusion which is sought to be challenged.

An application for leave to appeal against an interlocutory decision is not available unless a certificate has been given under the applicable part of s 295(3). Since the interlocutory decision concerned the admissibility of evidence, the judge was required to decide whether the evidence ‘if ruled inadmissible would eliminate or substantially weaken the prosecution case’. Accordingly, when counsel for the applicant told the trial judge that he had instructions to make an application for leave to appeal, he sought from the judge the necessary certificate under sub-s (3) of CPA s 295. His Honour evidently considered that the evidence had…

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.

Continue reading CGL v DPP (No 2)

Details

AGLC: CGL v DPP (No 2) [2010] VSCA 24
Case: [2010] VSCA 24
Decision Date: 19 February 2010

CaseChat Overview and Summary

The respondents, CGL, sought an interlocutory appeal against a decision to admit confessional evidence obtained by the police from the respondents. The appeal was heard by the Court of Appeal, with the Director of Public Prosecutions (DPP) as the respondent. The respondents argued that the confessional evidence, which included admissions made to the complainant, should not have been admitted as it was obtained in an unfair manner. The respondents contended that the evidence should have been excluded under the provisions of the Evidence Act 2008 (Vic), which allow for the exclusion of evidence obtained in an unfair manner, or where its admission would substantially weaken the prosecution case.

The legal issues before the court were whether the confessional evidence obtained from the respondents should be admitted, and if the exclusion of this evidence would eliminate or substantially weaken the prosecution case. The court also had to consider whether a certificate from the trial judge was warranted under the Criminal Procedure Act 2009 (Vic). The respondents argued that the evidence was inadmissible due to its unfair procurement and that its exclusion would significantly undermine the prosecution's case. The DPP, on the other hand, submitted that the evidence was properly obtained and its admission would not unfairly prejudice the respondents.

The Court of Appeal found that the evidence was obtained in a manner that did not contravene any statutory or common law principles, and therefore did not warrant exclusion. The court further found that the exclusion of the evidence would not eliminate or substantially weaken the prosecution case, as there was other evidence available to support the prosecution's case. The court concluded that the trial judge's certificate was not warranted as the evidence was properly admitted. As a result, the appeal was dismissed, and leave to appeal was refused. The court determined that the evidence was admissible and its admission did not unfairly prejudice the respondents.

Orders