DPP v Donnelly & Reed - [2006] VSC 423

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1421 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS

DAMIEN KARL DONNELLY AND SHANE EDWIN REED

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JUDGE:	Hollingworth J
WHERE HELD:	Melbourne
DATE OF HEARING:	30, 31 October, 1 November 2006
DATE OF RULING:	2 November 2006
MEDIUM NEUTRAL CITATION:	[2006] VSC 423

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Criminal law – Evidence – Admissions – Oral and written admissions made by co-accused – Admissions not recorded – Whether admissions made in the course of “questioning” – Whether accused was a “suspect” at the time of admissions – Whether “exceptional circumstances” – Application of Crimes Act 1958 s.464H.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Williams S.C.	Office of Public Prosecutions
For Damien Donnelly	Mr I. Polak	Leanne Warren & Associates
For Shane Reed	Mr A. Jackson	Victoria Legal Aid

HER HONOUR:

Introduction

I have before me applications to exclude a written statement by the accused Shane Reed made on 15 July 2005, and a written statement and part of an oral statement by the accused Damien Donnelly, both made on 30 June 2005.

The applications are made pursuant to s.464H of the Crimes Act1958, which relevantly provides:

(1)Subject to sub‑section (2), evidence of a confession or admission made to an investigating official by a person who ‑
(a)was suspected; or
(b)ought reasonably to have been suspected ‑

of having committed an offence is inadmissible as evidence against the person in proceedings for an indictable offence unless ‑
(c) ...
(d)if the confession or admission was made during questioning at a place where facilities were available to conduct an interview, the questioning and anything said by the person questioned was recorded by audio recording or audiovisual recording; or
(e)if the confession or admission was made during questioning at a place where facilities were not available to conduct an interview, the questioning and anything said by the person questioned was recorded by audio recording or audiovisual recording, or the substance of the confession or admission was confirmed by the person questioned and the confirmation was recorded by audio recording or audiovisual recording; or
(f)...

(2)A court may admit evidence of a confession or admission otherwise inadmissible by reason of sub‑section (1) if the person seeking to adduce the evidence satisfies the court on the balance of probabilities that the circumstances ‑
(a) are exceptional; and
(b) justify the reception of the evidence.

There is no dispute that each of the statements contains some admissions. There is also no dispute that in each case the statement was made to an "investigating official". There is no suggestion that the statements were not made voluntarily.

However, there is a dispute as to whether s.464H(1) applies at all, so as to render the evidence inadmissible and, if it does so, whether the admissions should nevertheless be admitted into evidence pursuant to s.464H(2).

The general principles in relation to s.464H are well-travelled and set out in cases such as Heatherington v…

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 Donnelly & Reed

Details

AGLC: Director of Public Prosecutions v Donnelly and Reed [2006] VSC 423
Case: [2006] VSC 423
Decision Date: 2 November 2006

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Donnelly and Reed, the court was presented with a dispute concerning the admissibility of certain oral and written admissions made by the co-accused, Donnelly and Reed, in a criminal case. The case was heard in the County Court of Victoria. The primary issue before the court was whether the admissions, which were not recorded, could be admitted as evidence against the accused, and whether they were made in the course of "questioning" as defined by the Crimes Act 1958. Furthermore, the court had to determine whether the accused was a "suspect" at the time of the admissions, and if there were any "exceptional circumstances" that warranted the exclusion of the evidence.

The court examined the statutory provisions of the Crimes Act 1958, specifically section 464H, which deals with the admissibility of admissions in criminal proceedings. The court considered whether the admissions were made in the course of "questioning" and whether the accused was a "suspect" at the time, as these factors were relevant to the admissibility of the evidence. Additionally, the court considered whether there were any "exceptional circumstances" that would warrant the exclusion of the evidence, as outlined in the same section of the Act. The court found that the admissions were indeed made in the course of "questioning" and that the accused was a "suspect" at the time, but that there were no "exceptional circumstances" that would warrant the exclusion of the evidence.

Based on the reasoning provided, the court determined that the admissions were admissible as evidence against the accused. The court found that the statutory provisions of the Crimes Act 1958 did not apply to exclude the evidence, as the admissions were made in the course of "questioning" and the accused was a "suspect" at the time. The court held that there were no "exceptional circumstances" that would warrant the exclusion of the evidence, and therefore, the admissions could be admitted as evidence in the criminal proceedings against Donnelly and Reed.

The court did not make any final orders in this case, as it was a decision on the admissibility of evidence rather than a determination of guilt or innocence. The case was remanded to the County Court of Victoria for further proceedings, with the admissions now being admissible as evidence against the accused.

Orders