Martin (a pseudonym) v The Queen

Martin applied for an interlocutory appeal to the Victorian Court of Appeal, challenging the refusal of the trial judge to exclude evidence obtained from a forensic procedure. The evidence was obtained without Martin’s informed consent and was sought to be excluded under the Crimes Act 1958. Martin claimed that the police officer who obtained his consent to the procedure used language that he could not understand. The central issue before the Court of Appeal was whether the trial judge erred in not excluding the forensic evidence, considering whether Martin gave informed consent and whether the police officer used language that Martin could understand.

The Court of Appeal considered whether the trial judge correctly assessed whether Martin gave informed consent and whether this consent was obtained in accordance with the Crimes Act. The Court noted that s 464ZE(1) of the Crimes Act renders evidence obtained from a forensic procedure inadmissible if the suspect did not give their informed consent, unless certain exceptions apply. The Court held that the trial judge erred in concluding that Martin gave informed consent. The Court found that the police officer did not use language that Martin could understand, and therefore, Martin could not have given informed consent. The Court further held that the trial judge reversed the onus of proof on the issue of informed consent by requiring Martin to prove that he did not give informed consent. This was an error of law as the onus should have been on the prosecution to prove that Martin gave informed consent.

The Court of Appeal allowed Martin’s appeal, quashed the decision of the trial judge, and remitted the matter back to the County Court for further proceedings. The Court further directed that the evidence obtained from the forensic procedure be excluded from the prosecution case unless the prosecution could prove that Martin gave informed consent or that an exception under s 464ZE applied.