DPP v Hicks (Ruling No 1) - [2014] VSC 43

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. SCR 2013 166

DIRECTOR OF PUBLIC PROSECUTIONS

HARLEY HICKS

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	17, 18, 19 February 2014
DATE OF RULING:	21 February 2014
CASE MAY BE CITED AS:	DPP v Hicks (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2014] VSC 43

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CRIMINAL LAW – Evidence – Murder and aggravated burglary – Admissibility of record of interview – Whether inadmissible pursuant to s 464H of Crimes Act 1958 (Vic) – Whether admissions obtained as result of impropriety – Evidence Act 2008 (Vic) s 138 – Whether unfairness to accused – Evidence Act 2008 (Vic) s 90.

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Ms M Williams SC and Mr G Hayward	Solicitor for Public Prosecutions
For the Accused	Mr D Hallowes	Robert Stary & Co

HIS HONOUR:

The accused man, Harley Hicks, is charged with the murder of Zayden Veal-Whitting, who was then 10 months old, on 15 June 2012 at 199 Eaglehawk Road, Long Gully. That offence is alleged to have been committed between 2.00 am and 4.00 am on 15 June in the course of a burglary committed by the accused man at those premises. The accused is also charged with one count of aggravated burglary and three counts of theft.

The trial is due to commence shortly. Objection has been taken, on behalf of the accused, to the admissibility of the record of interview conducted by the police with the accused between 19 June and 21 June 2012 at the offices of the Bendigo Crime Investigation Unit.

In the period preceding 15 June 2012, the accused man, who was then 19 years of age, was residing with his girlfriend, Martina Lawn, at premises at 2A Green Street, Long Gully, together with his half-brother Joshua and other persons. The prosecution alleges that the accused left those premises on foot at about 11.30 pm on 14 June with the intention of committing a series of thefts and burglaries in the Long Gully area. It is also alleged that he took with him a homemade baton for the purpose of committing those offences.

The prosecution alleges that the accused proceeded to commit a series of thefts, burglaries, and attempted burglaries, in the Long Gully area. In particular, it is alleged that he committed the following offences: at 22 Bray Street, he stole a pair of sunglasses from a car; at 1 Dillon Street, he entered a shed and moved items around, but did not take anything; at 18 Bolt Street, he stole a pair of Oakley brand sunglasses from a car; at 1 Bolt Street, he entered the rear yard and opened the back security door, propping it open with some shoes, but found that the wooden door to the premises was locked; at 33 Havilah Road, he propped the rear door of the house open with some shoes; at 23 Duncan Street, he entered a shed in the rear…

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 Hicks (Ruling No 1)

Details

AGLC: DPP v Hicks (Ruling No 1) [2014] VSC 43
Case: [2014] VSC 43
Decision Date: 21 February 2014

CaseChat Overview and Summary

The case of DPP v Hicks (Ruling No 1) arose before the County Court of Victoria, where the Director of Public Prosecutions (DPP) sought to admit a record of an interview with the accused, Hicks, conducted under the Crimes Act 1958 (Vic). Hicks was charged with murder and aggravated burglary, and the crux of the dispute was the admissibility of the recorded interview under the Evidence Act 2008 (Vic). Specifically, the court was tasked with determining whether the record of the interview was inadmissible pursuant to section 464H of the Crimes Act 1958 (Vic), and whether the admissions obtained during the interview were the result of impropriety that rendered them unfair under sections 138 and 90 of the Evidence Act 2008 (Vic).

The legal issues before the court centred on the interpretation and application of sections 464H, 138, and 90 of the relevant statutes. The primary issue was whether the interview with Hicks was conducted in a manner that warranted exclusion of the evidence under section 464H, which pertains to impropriety in obtaining the evidence. Additionally, the court had to consider whether the admissions made by Hicks during the interview were obtained unfairly, which would render them inadmissible under section 138, and whether their admission would be unfair to the accused under section 90.

In delivering its ruling, the court meticulously examined the circumstances of the interview to determine if there was any impropriety. The court found that the interview was conducted in accordance with legal protocols, and there was no evidence of misconduct or oppressive behaviour by the police. Consequently, the court ruled that the evidence obtained during the interview was admissible. The admissions made by Hicks were considered fair and properly obtained, thus satisfying the requirements of sections 138 and 90 of the Evidence Act 2008 (Vic). The court concluded that there was no basis to exclude the evidence under the contested provisions.

The court ordered that the record of the interview with Hicks be admitted as evidence in the proceedings against him for murder and aggravated burglary. This ruling ensures that the statements made by Hicks during the interview can be considered by the jury in assessing the charges against him.

Orders