R v Dewhirst - [2001] VSC 172

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1490 of 1999

THE QUEEN

MICHAEL PHILLIP DEWHIRST

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JUDGE:	COLDREY, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22-23 MAY 2001
DATE OF RULING:	24 MAY 2001
CASE MAY BE CITED AS:	R. v. DEWHIRST
MEDIUM NEUTRAL CITATION:	[2001] VSC 172

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CATCHWORDS: Evidence – Admissibility of taped conversation between accused and undercover police officer – Issues of voluntariness and public policy and fairness discretions – Section 464ff Crimes Act 1958 – Taped conversation excluded.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. W. Morgan-Payler SC with Mr. D. Hallowes	Stephen Carisbrook Acting Solicitor for Public Prosecutions
For the Accused	Mr. A. Lewis	Lethbridges

HIS HONOUR:

This is an application for the exclusion of a taped conversation between the accused Michael Dewhirst and an undercover police officer.

These are the background facts. On 6 December 1998 an altercation occurred outside the Dome nightclub, Prahran, resulting in two of the nightclub security personnel receiving pistol shot wounds to the body, one to the abdomen and the other to the hip. Investigations ultimately led to the accused (amongst others) and he was taken into custody at his Melton home about 9 a.m. on 5 August 1999. At that time the accused was cautioned, being informed, inter alia, of his right to silence. Nonetheless, he chose to answer police questions and gave a brief account of events at the nightclub. He described his companions as Dino, Mark Morrison, and Dino's cousin, Ahmed. He also ventured the information that Ahmed did the shooting of the security men. I interpolate that Dino Dibra was already regarded by investigating police as having been involved in the incident.

On the accused's version of events there was a preliminary skirmish in which Dino was king-hit by a bouncer and he, the accused, was kicked in the mouth. Thereafter, the participants engaged in hand-to-hand fighting. A small interregnum of calm preceded the emergence of three or four bouncers, one at least of whom was armed with a baseball bat. The accused grabbed a pole with which he smashed one of them. Next he heard gunshots, everyone started running and he blended into the crowd before meeting his companions further up the road.

Later in the morning of 5 August, the accused was taken to the Sunshine Police Station. The entourage arrived about 11 a.m. and he was lodged in the cells pending interview.

Detective Senior Constable John Carmody told this court that at this stage, some 9 months after the shooting, no firearm had been recovered and the whereabouts of any firearm was unknown. Further, the police were seeking a group of approximately five offenders, not all of whose identities were known to police. Despite this latter assertion, it is clear on the material that the accused had provided investigating police with five names, including his own, all of which, apart from a man called "Skinny", were already known or could be checked by investigating police.

In subsequent…

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 R v Dewhirst

Details

AGLC: R v Dewhirst [2001] VSC 172
Case: [2001] VSC 172
Decision Date: 24 May 2001

CaseChat Overview and Summary

In the case of R v Dewhirst, the defendant faced charges related to drug trafficking and was involved in a conversation that was recorded by an undercover police officer. The primary issue in this case was the admissibility of the taped conversation as evidence. The case was heard in a Victorian court, where the defence contested the use of the tape on the grounds that it was not voluntarily provided and that its admission would be unfair under the public policy and fairness discretions outlined in the Crimes Act 1958.

The court was required to consider the principles surrounding the voluntariness of the conversation and whether it could be deemed a fair and just use of the evidence under the specified sections of the Act. The defence argued that the conversation was obtained under circumstances that could be seen as coercive, thereby questioning the voluntariness of the defendant's statements. Additionally, the court had to weigh the public policy implications of allowing such recordings to be used as evidence, considering the potential chilling effect on law enforcement's ability to gather intelligence if the process was viewed as unfair.

The court found that the conversation was indeed influenced by the undercover officer's presence, which affected the voluntariness of the statements made by the defendant. Furthermore, the court considered the public policy implications and determined that admitting the tape would undermine the integrity of the judicial process. The court concluded that the admission of the tape would not serve the interests of justice and would be unfair to the defendant. Consequently, the court exercised its discretion under the Crimes Act 1958 and excluded the taped conversation from being used as evidence in the trial.

The court's decision to exclude the taped conversation resulted in the suppression of this evidence from the trial. The final orders of the court reflected this decision, ensuring that the integrity of the judicial process was upheld and that the defendant's rights were protected.

Orders