DPP v Azzopardi - [2006] VSC 29

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6776 of 2005

Director of Public Prosecutions	Plaintiff
v
Alfred Azzopardi	Defendant

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JUDGE:	Bell J.
WHERE HELD:	Melbourne
DATE OF HEARING:	5 February 2006
DATE OF JUDGMENT:	8 February 2006
CASE MAY BE CITED AS:	DPP v Azzopardi
MEDIUM NEUTRAL CITATION:	[2006] VSC 29

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CRIMINAL LAW – civilian investigator – not “investigating official” under Crimes Act 1958 – store inspectors, loss controllers and security officers – power to question suspects – failing to inform suspects of legal rights – failure to caution - prudent to call police or at least inform suspects of legal rights.

MAGISTRATES’ COURT – evidence of civilian investigator – suspect not informed of legal rights – suspect not cautioned - illegal search - excluding evidence under general unfairness discretion – charge of theft dismissed – appeal – no error of law – Crimes Act 1958 ss 458(1), 464(1), 464(2), 464A(2), 464(3), 464C(1) and 464H(1) – Magistrates’ Court Act 1989 s 92(1).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr Christopher Beale	Mr Adrian Castle Acting Solicitor for Public Prosecutions
For the Defendant	Mr Christopher Boyce	Victoria Legal Aid

HIS HONOUR:

INTRODUCTION

In 2004 Mr Alfred Azzopardi was working at Mannway Transport and Distribution Centre in Hampton Park doing cleaning and other general duties. On the way out of work one day he was asked to come into an interview room where he was questioned by three managers. They suspected him of theft of a screwdriver set. He had no lawyer and no union representative with him. He denied the allegations. The managers searched his bag and found the screwdriver set. He said he knew nothing about it.

The managers told Mr Azzopardi the matter would be dropped if he resigned. He refused and the police were called. He was charged with theft.

At all times Mr Azzopardi protested his innocence. He said the company had set him up because they were trying to get rid of him – he was on light duties due to a workplace injury and was not very productive.

The charge came before the Magistrates’ Court at Dandenong in 2005. After hearing the evidence of the managers and a summary of the evidence of the police informant, the Magistrate expressed concern about the way the managers had questioned Mr Azzopardi and searched his bag. His Honour found they had not cautioned Mr Azzopardi about his rights before interviewing him. He described the bag search as “illegal”. He exercised his discretion to exclude the evidence of the managers (and the police informant) from the case. There was no other evidence, which meant the prosecution had to fail. The Magistrate made an order dismissing the charge.

The Director of Public Prosecutions now appeals to this Court upon the ground that the Magistrate committed an error of law in excluding the evidence.[1]
[1]Section 92(1) of the Magistrates’ Court Act 1989 allows a party to a criminal proceeding to appeal…

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 DPP v Azzopardi

Details

AGLC: Director of Public Prosecutions v Azzopardi [2006] VSC 29
Case: [2006] VSC 29
Decision Date: 8 February 2006

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Azzopardi, the case arose from a theft incident in a retail store, with the defendant being investigated by a civilian store inspector who failed to inform the suspect of their legal rights and did not caution the suspect before questioning. The matter was heard in the Magistrates’ Court and subsequently appealed to a higher court. The central legal issues revolved around whether the civilian investigator qualified as an "investigating official" under the Crimes Act 1958, and if the failure to inform the suspect of their legal rights and the lack of a caution led to the exclusion of evidence obtained during the investigation. The court also needed to determine if the search conducted without proper authority was legal.

The court addressed these issues by first examining the definition of "investigating official" under the Crimes Act 1958, concluding that store inspectors, loss controllers, and security officers do not fall under this category. Consequently, they are not required to caution suspects or inform them of their legal rights before questioning. Despite this, the court found that the failure to provide such information and the lack of a caution rendered the search illegal. Under the general unfairness discretion, the court excluded the evidence obtained from the illegal search. Given the exclusion of key evidence, the charge of theft against the defendant was dismissed. The Director of Public Prosecutions appealed the decision, but the appeal was dismissed as there was no error of law in the original decision.

The court upheld the dismissal of the charge against Azzopardi, affirming that the failure to inform the suspect of their legal rights and the absence of a caution from the civilian investigator were critical factors in the exclusion of evidence. The final order of the court was the dismissal of the charge against the defendant due to the exclusion of evidence obtained in an illegal search.

Orders