R v Alice
[2006] VSCA 204
•3 October 2006
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 143 of 2005
| THE QUEEN |
| v. |
| DARYL ALICE |
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JUDGES: | VINCENT and NETTLE, JJ.A. and KING, A.J.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 October 2006 | |
DATE OF JUDGMENT: | 3 October 2006 | |
MEDIUM NEUTRAL CITATION: | [2006] VSCA 204 | |
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CRIMINAL LAW – Evidence – Admissibility – Confession – Whether obtained by threat or inducement – Whether judge erred in exercise of discretion – Evidence Act 1958; s.149.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J.D. McArdle, Q.C. | Ms A. Cannon, Solicitor for Public Prosecutions |
| For the Applicant | Mr P.A. D'Arcy | Yianoulatos Lawyers |
VINCENT, J.A.:
I will invite Nettle, J.A. to deliver the first judgment in this matter.
NETTLE, J.A.:
On 12 May 2005, the applicant was convicted in the County Court at Melbourne of one count of armed robbery committed at the First and Last Hotel in Sydney Road, Fawkner on 10 February 2004. He now applies for leave to appeal against conviction on the sole ground that the judge erred in admitting into evidence the record of the applicant's interview with police in which he confessed to the crime.
The judge found that the confession was preceded by threats and inducements made by identified officers of the Armed Robbery Squad, and on that basis the judge determined that he was not satisfied that the confession was voluntary. The judge held that the threats and inducements had a tendency to induce the applicant to make a true confession, not a false confession, and accordingly that the record of interview should be admitted into evidence pursuant to s.149 of the Evidence Act 1958.
Until this morning, it appeared from the Full Statement of Grounds of Appeal and from the applicant's written outline of submissions that the point to be argued was that the judge erred in the application of s.149 of the Evidence Act 1958 by applying the wrong test or tests or, alternatively, in reaching the view that the confession was true or, alternatively, in failing properly to analyse the likely effect of the threat or inducement on the applicant. As the matter was put in argument, however, the sole basis of the application was a contention that the judge erred in failing to consider whether the applicant was subjected to such a level of violence, either upon arrest or subsequently, as to induce him to confess. Thus it was sought to argue that the confession should have been excluded as involuntary, the consequence of violence, a situation to which of course s.149 would not apply.
The way in which the application is thus now put in effect entails an application to amend the grounds of appeal so as to allege that the judge erred by failing to consider the question of whether physical violence induced the applicant to confess, or to consider whether physical violence taken in conjunction with the threats and inducements which were the subject of the judge's determination caused the confession to be involuntary.
In my view, the application for leave to amend should be refused. It is plain from the transcript that the way in which the matter was presented by defence counsel to the judge below was confined to the confession being rendered involuntary by threats and inducements, to which it was said that s.149 of the Evidence Act 1958 applied. Thus, in beginning his argument before the judge, defence counsel said:
"… The application, Your Honour, is based on the provisions of s.149A of the Evidence Act and, although I am mindful of Your Honour's comments at the start of today that in some respects the accused may be better off in some cases seeking to argue that the confession was voluntary but ought be excluded in the exercise of well recognised discretions, unfortunately I don't think I can go so far in the circumstances of this case, ...
... But for my purposes I would seek to confine my submissions to the question of the operation of s.149A of the Evidence Act. Your Honour, obviously there have been previous cases that have dealt with the effect and operation of s.149A, and, in particular, Your Honour, as far as the legal principles as to the effect of that section are concerned, I would commence my submissions by referring Your Honour to what the High Court said in the case of The King v. Lee at page 150."
Thereafter defence counsel made a number of submissions which, as it appears to me, were all directed to the question of whether the threats and inducements were such as to have resulted in a false confession within the meaning of s.149 of the Evidence Act. The point was emphasised a number of times in the course of counsel's argument. A good example appears at page 315 of the transcript, where defence counsel submitted to the judge:
"In the relevant sense, and the relevant sense in this case as far as this particular application being made, is that they are not voluntary because of inducements made."
In the course of his oral submissions this morning, counsel for the applicant submitted that, despite the way in which the application was put below, it was obliquely apparent or, alternatively, it was implicit in defence counsel's argument, that the judge was required to consider the circumstances pertaining to the voluntariness of the confession ranging beyond the question of threats and inducements.
Even if that were so, however, and I do not accept that it was made sufficiently apparent to require the judge to deal with the matter on that basis, it appears to me to be answered by the way in which the judge dealt with the matter in the course of his ruling. First, at page 345 of the transcript, the judge made an express finding that he did not believe that the prisoner had confessed because of fear of physical force; and secondly, at the same page, the judge directed his mind to the question of whether the circumstances were such as to enliven the general discretion to exclude the confession and concluded that they were not. His Honour said:
"Having come to this conclusion, the confessional statement is admissible and no other discretions are opened up. Accordingly, Mr Traczyk did not argue the general discretion. Had he done so, I would have taken a great deal of convincing that the recorded interview is anything other than a true confession, a consideration which would be relevant to the exercise of the general discretion."
In other words the judge did direct his attention to the circumstances of the arrest and also to the application or possibility of application of the general discretion to exclude the confession, as well as to the specific provisions of s.149 of the Evidence Act 1958 and the matters which were urged in support of the application (namely, whether the effect of the threats and inducements which were found to have been made and given was such as to cause a confession which was untrue).
In those circumstances, I would refuse the application for leave to amend and I would refuse the application for leave to appeal.
VINCENT, J.A.:
I agree.
KING, A.J.A.:
I agree.
VINCENT, J.A.:
The application for leave to amend the grounds of appeal is refused.
The application for leave to appeal is refused.
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