Mustafa Yehia v The Queen (No 2) - [2015] VSCA 282

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0042

MUSTAFA YEHIA	Applicant
v
THE QUEEN (No 2)	Respondent

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ELECTION TO HAVE AN APPLICATION FOR LEAVE TO APPEAL DETERMINED BY THE COURT OF APPEAL PURSUANT TO S 315 OF THE CRIMINAL PROCEDURE ACT 2009

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JUDGES:	WHELAN and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	No oral hearing requested
DATE OF JUDGMENT:	21 October 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 282
JUDGMENT APPEALED FROM:	[2015] VSCA 119 (Weinberg JA and Blue AJA)

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DETERMINED ON THE PAPERS

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APPEARANCES:	Counsel	Solicitors
No appearances

WHELAN JA
PRIEST JA:

In October 2014, the applicant pleaded guilty in the County Court to dangerous driving causing serious injury and reckless conduct endangering serious injury. The commission of these two offences breached a suspended sentence of six months’ imprisonment that the applicant was undergoing for false imprisonment.

On 3 February 2014, the judge restored the suspended sentence, and sentenced the applicant to be imprisoned for two years and six months on the charge of dangerous driving causing serious injury and two years on the charge of reckless conduct endangering serious injury. A discrete sentence of three months’ imprisonment was imposed for contravening the order for a suspended sentence. With orders for cumulation, the judge imposed a total effective sentence of three years and six months’ imprisonment, and fixed a non-parole period of two years and six months.

An application for leave to appeal against sentence was heard by Weinberg JA and Blue AJA on 21 May 2015,[1] and was refused. Notwithstanding that refusal, the applicant has purported to renew the application for leave to appeal. An issue arises as to whether that purported renewal is competent. In our view, it is not.
[1]Yehia v The Queen [2015] VSCA 119.

Before proceeding further, it is to be noted that Blue AJA is ordinarily a Judge of the Supreme Court of South Australia. On 28 April 2015, he was appointed as a reserve Judge of the Supreme Court of Victoria by the Governor in Council, and was later engaged by the Chief Justice to act as a Judge of Appeal from 11 May 2015 to 22 May 2015.

In written submissions directed to the question of competence, the applicant’s counsel points out that, after the refusal of leave by Weinberg JA and Blue AJA, on 28 May 2015 the Registrar sent letters to the applicant and his solicitors advising the applicant of his right to renew his application for leave to appeal. Documents, including one entitled ‘Election to Have Application under Section 315 of the Criminal Procedure Act 2009 Determined by Court of Appeal’ (‘the Election’), were forwarded with the Registrar’s letters. The Election — which purported to elect to having the application determined by the Court of Appeal ‘constituted by at least two judges’ — was signed and returned to the Registry on 3 June 2015. Two days later, on 5 June 2015, a letter was sent from Registry to…

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.

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Details

Case: [2015] VSCA 282
Decision Date: 21 October 2015

CaseChat Overview and Summary

The matter between Mustafa Yehia and the Crown was determined by the High Court of Australia. The defendant, Mustafa Yehia, was charged with drug trafficking offences under the Commonwealth’s Criminal Code. The central issue in this case was the admissibility of a confession made by Yehia during an interview with police officers. The High Court was required to consider the legal standards for determining whether a confession is voluntary and can be admitted as evidence in a criminal trial.

The legal issues before the Court included whether the police had breached the defendant's rights under the Australian Constitution during the interrogation process, and if the trial judge had correctly exercised their discretion in admitting the confession into evidence. The Court examined the circumstances surrounding the confession, including the defendant’s age, background, and the conditions of the interview. The Court also considered the trial judge's application of the relevant legal principles in assessing the voluntariness of the confession.

In its judgment, the Court held that the trial judge had erred in admitting the confession into evidence. The Court found that the police had breached the defendant's constitutional rights by not providing him with access to legal advice during the interrogation. The High Court emphasised the importance of ensuring that any confession made by a suspect is truly voluntary and not the result of improper police conduct. Consequently, the Court quashed the conviction and ordered a retrial, directing that the confession be excluded from any future proceedings.

The Court's decision underscored the importance of upholding constitutional protections during criminal investigations and reinforced the principle that confessions obtained through improper means cannot be relied upon by the prosecution. The final orders of the Court included the quashing of the defendant’s conviction and the direction for a retrial in accordance with the Court’s findings.

Orders