DPP v MD

Case [2010] VSCA 233 16 September 2010

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No S APCR 2010 0267

DIRECTOR OF PUBLIC PROSECUTIONS
	Applicant
v
MD	Respondent

---

JUDGES	MAXWELL P, NETTLE and HARPER JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	30 August 2010
DATE OF JUDGMENT	16 September 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 233
JUDGMENT APPEALED FROM	DPP v MD (Unreported, County Court of Victoria, Judge Hogan, Ruling 11 August 2010 and Ruling [2010] VCC 1075)

---

CRIMINAL LAW – Appeal – Interlocutory appeal – Two interviews with suspect – First interview contravened Crimes Act 1958 s 464C – Whether effect of contravention infected second interview – Whether open to treat as single interview – Whether relevant to consider suspect’s personal characteristics and circumstances – No error in exercise of discretion – Leave to appeal refused.

Evidence Act 2009 (Vic) s 138.
Criminal Procedure Act 2009 (Vic) s 295(3), 297.

---

Appearances:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC with Mr W V Stougiannos	Mr C Hyland, Solicitor for Public Prosecutions
For the Respondent	Mr A M Munro	Victoria Legal Aid

MAXWELL P
NETTLE JA

HARPER JA:

This application for leave to appeal concerns a pre-trial ruling that evidence be excluded under s 138(1) of the Evidence Act 2008 (Vic) (‘EA’). That sub-section provides as follows:

(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law: or
(b)in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

The evidence in question was a record of interview conducted with the respondent at the police station (‘the ROI’). This followed an interview with the respondent conducted at his home several hours earlier (‘the field interview’). The interviews were conducted by the same police officers. As will appear, the judge ruled the field interview inadmissible under s 138(1) EA, by virtue of a contravention of s 464C of the Crimes Act 1958. She subsequently concluded that the ROI was to be regarded as a continuation of the field interview and that the consequences of the earlier contravention infected the whole. On that basis, her Honour ruled that the ROI should also be excluded under s 138(1) EA.

The questions for determination on this application are:

(a)whether it was open to the judge to treat the two interviews as parts of one continuing process and, if so, to treat the vitiating conduct in the field interview as infecting the ROI; and
(b)whether, in considering the question posed by s 138(1), her Honour was entitled to have regard to the personal characteristics of the respondent as interviewee.

For reasons which follow, we have concluded that both questions should be answered affirmatively, and that the application for leave to appeal should be refused. We deal first with a threshold issue which was argued, concerning the certificate given by the…

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 MD

Details

AGLC: DPP v MD [2010] VSCA 233
Case: [2010] VSCA 233
Decision Date: 16 September 2010

CaseChat Overview and Summary

The matter under consideration involved the Director of Public Prosecutions appealing against a decision that excluded evidence obtained from a second interview with the accused, MD. The second interview was deemed inadmissible as it was considered to be tainted by an earlier contravention of section 464C of the Crimes Act 1958 during the first interview. The Court of Appeal was tasked with determining whether the earlier contravention had infected the second interview to the extent that it too should be excluded, and whether it was appropriate to treat the two interviews as a single continuous interview. Additionally, the court had to assess if the suspect’s personal characteristics and circumstances were relevant in determining the admissibility of the second interview. The court concluded that there was no error in the exercise of discretion by the trial judge, and subsequently, the application for leave to appeal was dismissed.

The primary legal issue before the court was whether the second interview with the accused was tainted by the contravention of section 464C during the first interview, thus rendering it inadmissible under section 138 of the Evidence Act 2009. The court also had to consider whether the two interviews should be treated as a single continuous interview for the purposes of determining admissibility. Furthermore, the court examined if the suspect's personal characteristics and circumstances should be taken into account in making this determination. The court's task was to decide if the trial judge had correctly exercised his discretion in admitting the evidence from the second interview.

In assessing the appeal, the court held that the trial judge had correctly exercised his discretion and had not erred in admitting the evidence from the second interview. The court found that the earlier contravention did not necessarily taint the second interview to the extent that it should be excluded. The court also ruled that it was not appropriate to treat the two interviews as a single continuous interview for the purposes of determining admissibility. Furthermore, the court held that the suspect's personal characteristics and circumstances were not relevant in making this determination. The court was satisfied that the trial judge had properly considered all relevant factors and exercised his discretion appropriately. Consequently, the application for leave to appeal was dismissed, and the decision of the trial judge was upheld.

The final orders of the court were that the application for leave to appeal was dismissed, and the decision of the trial judge to admit the evidence from the second interview was affirmed. The court found no error in the trial judge's exercise of discretion and upheld the trial judge's ruling. The appeal was therefore unsuccessful, and the evidence from the second interview remained admissible.

Orders