Director of Public Prosecutions v Vlahos (Ruling No 2)
[2021] VCC 1519
•13 October 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case Nos. CR-18-00582 and CR-19-01032
Indictment No. G13086039.A
| THE DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| WILLIAM VLAHOS |
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JUDGE: | HIS HONOUR JUDGE TRAPNELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 & 16 October, 17, 20, 23 & 24 November, | |
DATE OF RULING: | 13 October 2021 | |
CASE MAY BE CITED AS: | DPP v Vlahos (Ruling No 2) | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1519 | |
REASONS FOR DECISION
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Subject:Criminal law – Evidence – Admissibility – Alleged breach of Charter rights
Catchwords: Criminal proceedings – Sentencing hearing – Court ordered psychological assessment conducted in prisoners’ contact visits area of Melbourne Assessment Prison by Forensicare employed clinical psychologist – Alleged interruptions occurring during assessment process – Notice of objection filed by prisoner under Sentencing Act 1991 s 8D – Whether psychological report improperly or unlawfully obtained – Charter of Human Rights and Responsibilities Act 2006 –Whether public authority acted in a way incompatible with prisoner’s human rights – Right to privacy – Right to humane treatment when deprived of liberty – Whether alleged breach of Australian Psychological Society Code of Ethics constitutes ‘impropriety’ under Evidence Act 2008 s 138 – Discretion to exclude evidence of admission – Whether evidence of court ordered psychological report ‘adduced by the prosecution’ – Whether ‘unfair’ to admit evidence of admissions contained in report – General discretion to exclude evidence – Whether probative value of psychological report substantially outweighed by danger evidence might be unfairly prejudicial – Exclusion of prejudicial evidence in criminal proceedings – Whether evidence of court-ordered psychological report ‘adduced by the prosecutor’ – Whether probative value outweighed by danger of unfair prejudice to prisoner
Legislation Cited: Evidence Act 2008 ss 90, 135, 137 and 138; Sentencing Act 1991 ss 8A and 8D; Charter of Human Rights and Responsibilities 2006
Decision:Application to exclude evidence of court ordered psychological report dismissed
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APPEARANCES: | Counsel | Solicitors |
For the DPP | Ms D Mandie with Mr L Cameron | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Prisoner | Mr J P Wheelahan with Mr S N Andrianakis | Stary Norton Halphen |
HIS HONOUR:
1 This is an application by William Vlahos for the exclusion from evidence in the present sentencing hearing of a court ordered psychological report[1] prepared by Mr Christopher Robert Drake, dated 13 March 2020 (‘the Drake report’).[2] At the relevant time, Mr Drake was, and remains, an employee of the Victorian Institute of Forensic Mental Health (‘Forensicare’).
[1] Ordered by me pursuant to Sentencing Act 1991 s 8A on 5 February 2020. See (Exhibit (‘Ex’) C2).
[2] Ex C1.
2 On 1 April 2020, Mr Vlahos filed a notice of intention to dispute the whole of the Drake report pursuant to s 8D of the Sentencing Act 1991.[3]
[3] Ex D6.
3 The background to this application is set out in my ruling in relation to the Charter issues proceeding[4] (‘Ruling No 1’) and need not be repeated here.
[4] Vlahos v DPP (Vic) & Anor. (Ruling No 1) [2021] VCC 1520.
4 Exclusion of the Drake report is sort on a number of bases:
(1) Under s 138 of the Evidence Act 2008 (‘the Act’) on the ground the report was obtained improperly or in contravention of an Australian law on the ground Forensicare, being a public authority, acted in a way that is incompatible with ss 13(a), 22(1) and 38 of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) in conducting the investigation directed by this Court in preparing the Drake report (‘the assessment’).
(2) Under s 138 of the Act on the ground the Drake report was obtained in consequence of an ‘impropriety’ because the assessment was conducted in a manner which breached the Australian Psychological Society (‘APS’) Code of Ethics.
(3) Under s 90 of the Act on the basis the Drake report contains admissions and, since the report is ‘evidence … adduced by the prosecution’, having regard to the circumstances in which the admissions were made, it would be unfair to Mr Vlahos to use the evidence in the plea hearing.
(4) Under s 135 of the Act on the basis that by reason of the circumstances in which the report was obtained its probative value is slight and is substantially outweighed by the danger the evidence might be unfairly prejudicial to Mr Vlahos or be misleading to the Court.
(5) Under s 137 of the Act on the basis the Drake report is ‘evidence adduced by the prosecutor’ and by reason of the circumstances in which the report was obtained its probative value is outweighed by the danger of unfair prejudice to Mr Vlahos.
5 In my opinion, none of these bases for exclusion of the Drake report is made out. These are my reasons.
6 In Ruling No 1,[5] I found Mr Vlahos had not established any breach of the Charter by Forensicare and, accordingly, I am not satisfied it (or Mr Drake) has acted improperly or in contravention of an Australian law under s 138 of the Act.
[5] [2021] VCC 1520.
7 Moreover, in light of my finding in Ruling No 1 that I am not satisfied on the balance of probabilities the Vlahos version should be accepted by me in preference to the Drake version to the extent the two versions are in conflict,[6] I am not satisfied the Drake report was obtained in consequence of an ‘impropriety’. If I were to accept the Drake version, in my opinion the circumstances of the assessment do not elevate to the level of constituting an impropriety. I am not satisfied Mr Drake breached the APS Code of Ethics in the manner he conducted the assessment.
[6] Ibid [47].
8 Accordingly, there is no proper basis to exclude the Drake report under s 138 of the Act.
9 So far as s 90 of the Act is concerned, in my opinion the Drake report is not ‘evidence adduced by the prosecution’. It is a court-ordered report and it is introduced into evidence by the Court. This is clear from the provisions of s 8D of the Sentencing Act, which provide that the ‘prosecution or the defence may file with the court a notice of intention to dispute the whole or part of a pre-sentence report’. Simply because the prosecutor may ultimately rely on some aspect of the Drake report in the plea hearing against Mr Vlahos’s interests, does not make it evidence ‘adduced’ by the prosecution, anymore than one party to a proceeding relying on evidence adduced by another party would make that evidence adduced by the first party. Moreover, the prosecution has no control over the decision whether or not to introduce the evidence of the Drake report into the plea hearing.
10 For the same reason the application to exclude the Drake report under s 137 must fail. The Drake report is not evidence ‘adduced by the prosecutor’. In any event, I am not satisfied the probative value of the Drake report is outweighed by the danger of unfair prejudice to Mr Vlahos. Mr Vlahos concedes the Drake report has probative value as ‘evidence clarifying [his] mental state and the application of the Verdins principles is important in this proceeding’.[7] In my opinion, the reliability of the Drake report has not been adversely affected by the manner in which the assessment was conducted.
[7]Prisoner’s Amended Charter Submissions, dated 16 December 2020 (Ex V19) [309].
11 So far as ‘unfair prejudice’ is concerned, in my opinion there is no risk I will improperly use the evidence or give it too much weight in sentencing Mr Vlahos.
12 For similar reasons, there is no basis to exclude the Drake report under the general discretion to exclude evidence under s 135 of the Act. The probative value of the Drake report is not substantially outweighed by the danger the evidence may be unfairly prejudicial to Mr Vlahos or that it will mislead me.
13 Accordingly, I find Mr Vlahos has not established any basis for exclusion of the Drake report as evidence in the plea hearing. The Evidence Act application is dismissed.
I will hear the parties on the question of costs.
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