R v Dunn (Rulings 1-5) - [2020] VSC 372

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0213

Between
THE QUEEN
-and-
PHILLIP DUNN	Accused

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JUDGE:	Croucher J
WHERE HELD:	Melbourne
DATE OF HEARING:	18-25 May 2020
DATE OF JUDGMENT:	23 June 2020
CASE MAY BE CITED AS:	R v Dunn (Rulings 1-5)
MEDIUM NEUTRAL CITATION:	[2020] VSC 372

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CRIMINAL LAW — Evidence — Murder trial — Pre-trial applications to exclude Crown evidence — Crown alleges deceased murdered inside home of co-accused on or about 26 July 2018 — Deceased’s body found buried in co-accused’s garden on 5 September 2018 — Crown case expected to be put three ways: (1) accused himself murdered deceased (with co-accused encouraging or assisting him); (2) accused, from within house, encouraged or assisted co-accused to murder deceased; (3) accused, while outside co-accused’s front door, encouraged or directed him to murder deceased — Crimes Act 1958 (Vic), ss 323(1)(a), 324 & 324B.

RULING 1 — Application to exclude oral admissions by accused to police officer on 30 August 2018 — Accused a “person of interest” in disappearance of deceased (then missing) — Whether accused was or ought to have been suspected of involvement in offence — Whether accused should have been cautioned and advised of rights — Whether any impropriety by police — Evidence not excluded— Evidence Act 2008 (Vic), ss 90 & 138; Crimes Act 1958 (Vic), ss 464A & 464C.

RULING 2 — Application to exclude accused’s signed handwritten statement to police on 1 September 2018 — Police had information implicating accused in homicide of deceased — Whether accused was or ought to have been suspected of involvement in offence — Whether accused should have been cautioned and advised of rights — Whether questioning and anything said ought to have been recorded or subsequently confirmed by recording — Whether exceptional circumstances in failing to record or confirm by subsequent recording — Statement excluded— Evidence Act 2008 (Vic), ss 86, 90 & 138; Crimes Act 1958 (Vic), ss 464A, 464C & 464H(1)(e).

RULING 3 — Application to exclude audio-visual record of interview of accused by police (“VROI”) conducted on 5 September 2018 — Previous day, accused arrested for being drunk — Accused told police knows deceased (still missing) murdered by co-accused — While in custody at police station for being drunk, police questioned accused without caution or rights explained — Questioning covertly recorded only in part as device malfunctioned — During questioning, accused made admissions — Accused kept in custody for next 30 hours before VROI conducted at different police station — Accused spoke to solicitor when drunk on 4 September 2018 — Solicitor spoke to police next morning, but not to accused — Commencement of VROI deferred from lunchtime to allow accused to speak to solicitor — VROI nevertheless conducted in evening without accused consulting solicitor — Accused made largely same admissions in VROI as made in drunken interview the day before — Whether VROI obtained in consequence of impropriety — Whether police used…

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: [2020] VSC 372
Decision Date: 23 June 2020

CaseChat Overview and Summary

In the matter of R v Dunn, the respondents faced trial for the murder of an individual, whose body was discovered buried in the garden of one of the respondents' homes on 5 September 2018. The Crown anticipated presenting its case in three different ways: (1) that the respondent had personally murdered the deceased with the co-respondent encouraging or assisting; (2) that the respondent, from within the house, encouraged or assisted the co-respondent to murder the deceased; and (3) that the respondent, while outside the co-respondent's front door, encouraged or directed the co-respondent to murder the deceased. The court had to decide various pre-trial applications to exclude Crown evidence, including the admissibility of oral admissions made by the respondent to a police officer, a signed handwritten statement, an audio-visual record of an interview, utterances made around the time of arrest, and alleged threats by the respondent to kill the deceased.

The court examined the admissibility of various pieces of evidence, including oral admissions, a signed handwritten statement, and an audio-visual record of an interview. The court considered whether the respondent was or ought to have been suspected of involvement in the offence, whether the respondent should have been cautioned and advised of rights, and whether there was any impropriety by the police. The court also considered whether the desirability of admitting the evidence outweighed the undesirability of the way in which it was obtained, and whether it was unfair to use the evidence at trial. The court applied the provisions of the Evidence Act 2008 (Vic) and the Crimes Act 1958 (Vic) in making its decisions.

The court ruled that the oral admissions made by the respondent to a police officer were admissible, as the respondent was a "person of interest" in the disappearance of the deceased and was therefore suspected of involvement in the offence. The court also ruled that the signed handwritten statement made by the respondent was inadmissible, as the respondent was suspected of involvement in the offence and should have been cautioned and advised of rights. The court ruled that the audio-visual record of an interview was inadmissible in part, as the questioning was conducted without caution or explanation of rights, and the respondent had made admissions during an earlier partly unrecorded questioning when he was drunk. The court also ruled that evidence of the respondent's utterances around the time of arrest for being drunk was inadmissible, as it would be unfair to do so. Finally, the court ruled that evidence of alleged threats by the respondent to kill the deceased was admissible, as its probative value outweighed the danger of unfair prejudice to the accused.

The court made several orders, excluding certain evidence from the trial. The signed handwritten statement made by the respondent was excluded in its entirety, as was part of the audio-visual record of an interview. Evidence of the respondent's utterances around the time of arrest for being drunk was also excluded. However, the oral admissions made by the respondent to a police officer were admitted, as were the alleged threats to kill the deceased.

Orders