Kevin Brain v The Queen - [2010] VSCA 172

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 0986 of 2008

KEVIN BRAIN	Applicant
	v
THE QUEEN	Respondent

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JUDGES:	WEINBERG and MANDIE JJA and COGHLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 December 2009
DATE OF JUDGMENT:	7 July 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 172
JUDGMENT APPEALED FROM	R v Brain (Unreported, County Court of Victoria, Judge Pullen, 19 December 2008)

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CRIMINAL LAW – One count of recklessly causing serious injury – One count of false imprisonment – Whether trial miscarried by admission of applicant’s answers in the Record of Interview where he refused to answer questions – Consideration of R v McNamara [1987] VR 855 – Leave to appeal refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr D.A. Dann	Balmer & Associates Pty
For the Crown	Mr C.J. Ryan SC	Mr C. Hyland, Solicitor for Public Prosecutions

WEINBERG JA:

I have had the advantage of reading, in draft, the reasons for judgment prepared by Coghlan AJA. I agree with those reasons, and with the order proposed.

MANDIE JA:

I agree with Coghlan AJA.

COGHLAN AJA:

The applicant was convicted in the County Court at Melbourne of one count of recklessly causing serious injury, and one count of false imprisonment. He was sentenced to a term of two years and six months’ imprisonment on count 1, and 12 months’ imprisonment on count 2. Six months of the sentence on count 2 was made cumulative upon the sentence on count 1 resulting in a total effective sentence of three years’ imprisonment. A non-parole period of 14 months was fixed.

In his Full Statement of Grounds of Appeal, the applicant relies upon one ground, in the following terms:

The trial of the Applicant miscarried as a result of the admission into evidence of those portions of the Record of Interview where the Applicant had refused to answer questions.

An earlier application for leave to appeal against sentence was abandoned.

This matter has had a somewhat chequered history. It first came on for hearing in the County Court on 3 March 2008. Following an impermissible comment by the prosecutor in his final address, the jury were discharged without verdict. The retrial commenced on 1 December 2008.

On that occasion, the trial judge reaffirmed a ruling that had been made during the first trial as to the admissibility of a series of questions and answers in the record of interview. It is that ruling, subsequently adopted by the trial judge, that forms the basis of this application for leave to appeal.

The particular ruling related to a number of questions which had been answered, in whole or in part, by expressions such as ‘no comment’, or ‘I don’t want to incriminate myself’. Her Honour held, over objection, that these questions and answers were admissible.

There had earlier been discussions between the applicant and the Crown as to the record of interview. These had resulted in some editing. However, the defence sought to have some additional answers excluded, and…

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 Kevin Brain v The Queen

Details

AGLC: Kevin Brain v The Queen [2010] VSCA 172
Case: [2010] VSCA 172
Decision Date: 7 July 2010

CaseChat Overview and Summary

In the matter of Kevin Brain v The Queen, the appellant, Kevin Brain, contested his conviction and sentence for recklessly causing serious injury and false imprisonment. The case was heard in the High Court of Australia. The appellant's contention was that the trial had been compromised due to the admission of his answers in the Record of Interview, despite his refusal to answer questions during the police interview.

The central legal issue was whether the trial miscarried by allowing the Record of Interview to be admitted as evidence. This issue required the court to consider the principles set out in R v McNamara [1987] VR 855, which deals with the admissibility of a defendant’s statements obtained under similar circumstances. The court needed to determine if the appellant's rights were infringed by the admission of the interview record and if this infringement was substantial enough to warrant a retrial.

The court examined the circumstances surrounding the interview and the application of the principles in McNamara. It held that the trial judge had adequately considered the appellant's rights and the potential prejudice caused by the admission of the interview record. The court concluded that there was no miscarriage of justice and that the appellant's rights had not been infringed to the extent that it necessitated a retrial. Accordingly, the appeal was dismissed, and leave to appeal was refused.

Orders