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Hinneberg v Brannaghan

Hinneberg v Brannaghan

Case [2009] VSC 356 17 August 2009

Discretion to exclude unlawfully obtained evidence

Onus and standard of proof

Appeal

Criminal Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 4023 of 2009

MERVYN ROBERT HINNEBERG	Appellant
v
JAMES WALTON BRANNAGHAN	Respondent

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2009
DATE OF JUDGMENT	17 August 2009 (Ex tempore); Revised reasons published 20 August 2009
CASE MAY BE CITED AS:	Hinneberg v Brannaghan
MEDIUM NEUTRAL CITATION:	[2009] VSC 356
DECISION APPEALED FROM:	Police (Brannaghan) v Hinneberg (Magistrates’ Court of Victoria, Chief Magistrate Gray, 28 November 1998).

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CRIMINAL LAW – Drink-driving offence – Discretion to exclude unlawfully obtained evidence – Police enter accused’s dwelling and administer preliminary breath test – Conflict of evidence as to whether police invited in – Onus and standard of proof of facts relevant to discretionary exclusion of evidence – Whether “Bunning v Cross factors” appropriately taken into account – Appeal against conviction allowed and matter remitted for rehearing.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P F Tehan QC Mr F Andrighetto	Wakefield & Vogrig Lawyers
For the Respondent	Mr C Ryan SC	Office of Public Prosecutions

HIS HONOUR:

This is an appeal on questions of law under s 92 of the Magistrates’ Court Act 1989 against a decision of the Chief Magistrate to convict the appellant of a drink-driving offence under s 49(1)(f) of Road Safety Act 1986 (“the Act”).

There were really only two issues below, namely whether evidence sought to be adduced by the informant by way of a certificate under s 55 of the Act of the result of an analysis of the appellant’s breath was obtained illegally by trespass by the police into the appellant’s home; and, if so, whether the certificate should be excluded in the exercise of the public policy discretion referred to in Bunning v Cross.[1] The Chief Magistrate ruled in favour of the appellant on the first point but against him on the second.
[1](1978) 141 CLR 54. R v Ireland (1970) 126 CLR 321 and Director of Public Prosecutions v Moore (2003) 6 VR 430 were also referred to and relied upon below by counsel for the appellant.

I am satisfied that both aspects of the decision below were vitiated by errors of law and that the matter should be reheard afresh.

For several hours on the evening of Thursday 26 June 2008 the appellant and his partner, Ms Lahogue, were at a hotel in Korumburra, drinking wine. At about 10 pm they left the hotel, crossed a road, entered a car park and got into the appellant’s utility van. The appellant drove the van towards their home at the corner of Queen Street and Lapin Lane, Korumburra, a journey of a few hundred metres. Two police officers on mobile patrol, namely the respondent/informant Senior Constable Brannaghan and Senior Constable Smith, had observed the couple cross the road and head toward the car park. Shortly afterwards the police car followed the appellant’s vehicle along Lapin Lane, which was dimly lit. The van…

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 Hinneberg v Brannaghan

Details

AGLC: Hinneberg v Brannaghan [2009] VSC 356
Case: [2009] VSC 356
Decision Date: 17 August 2009

CaseChat Overview and Summary

In the case of Hinneberg v Brannaghan, the defendant was convicted of a drink-driving offence. The crux of the dispute was the admissibility of evidence obtained during a police entry into the defendant's home, where a preliminary breath test was administered. The conflict centred on whether the police had invited themselves into the dwelling or had forced their way in. This dispute led to an appeal against the conviction, focusing on the discretion to exclude unlawfully obtained evidence.

The legal issues before the court included determining the onus and standard of proof for establishing the facts pertinent to the discretionary exclusion of evidence. Additionally, the court had to consider whether the "Bunning v Cross factors" were appropriately weighed in making the decision to exclude the evidence. The "Bunning v Cross factors" refer to the principles established in Bunning v Cross, which guide the exercise of discretion in excluding evidence obtained in breach of legal rights.

The court held that the onus lies on the prosecution to establish, on the balance of probabilities, that the evidence was not obtained in a manner that infringed the defendant's legal rights. Furthermore, the court found that the "Bunning v Cross factors" should be taken into account when deciding whether to exclude the evidence. In this instance, the court determined that the evidence was unlawfully obtained and should have been excluded. Consequently, the appeal was allowed, and the matter was remitted for a rehearing.

The final orders of the court were to allow the appeal, set aside the conviction, and remit the matter to the lower court for a rehearing in accordance with the principles outlined in the judgment.

Orders