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R v Favata

R v Favata

Case [2006] VSCA 44 21 April 2006

Criminal Liability

Appeal

Admissibility of Evidence

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 13 of 2004

THE QUEEN
	v.
LORENZO FAVATA

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JUDGES:	CALLAWAY, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 - 21 September 2005 and 23 March 2006
DATE OF JUDGMENT:	21 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 44

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Criminal law – Murder – Application for leave to appeal against conviction – Applicant involved in purported criminal activity with undercover police operatives – “Scenario evidence” – Confessions made to undercover operatives – Whether confessions voluntary – Whether made to persons in authority – Whether properly admitted having regard to discretionary considerations – Additional grounds relating to consciousness of guilt – Leave to appeal granted, appeal allowed and new trial directed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. with Ms S.E. Pullen, S.C. and Dr S.B. McNicol	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C. with Mr L.C. Carter	Patrick W. Dwyer

CALLAWAY, J.A.:

I agree with Vincent, J.A. I take this opportunity to reiterate point 11 in R. v. Renzella[1].

BUCHANAN, J.A.:

[1][1997] 2 V.R. 88 at 92. See also Zoneff v. R. (2000) 200 C.L.R. 234.

I agree with Vincent, J.A.

VINCENT, J.A.:

This applicant was found guilty, by a jury in the Trial Division of this Court, of the murder of Samuel Francis Macumber, on 1 April 1999[2].
[2]On 23 January 2004, he was sentenced to 21 years imprisonment with a non-parole period of 16 years for this offence.

He now seeks leave to appeal against his conviction on the grounds:

1. The learned trial judge erred in that he failed to determine that:
(i)the conversation between the applicant and covert police operative “J” on 12 September, 2001; and
(ii)the conversation between the applicant and covert police operative “T” on 12 September, 2001 –

were inadmissible by reason that these conversations were conducted in circumstances where the statements made by the applicant were “involuntary”.
2.The learned trial judge erred in failing to find that, prior to the making by the applicant on 12 September, 2001 of what the Crown contended were confessional statements, an inducement or inducements was/were held out to the applicant (Ruling at [19]).
3.The learned trial judge erred in the exercise of his discretion in that he failed to exclude from evidence:
(a)the conversation between the applicant and covert police operative “J” on 28 August, 2001;
(b)the conversations between the applicant and covert police operative “J” on 30 August, 2001;
(c)the conversation between the applicant and covert police operative “J” on 5 September, 2001;
(d)the conversation between the applicant and covert police operative

“J” on 12 September, 2001; and
(e)the conversation between the applicant and covert police operative “T” on 12 September, 2001.

4.There has been a substantial miscarriage of justice by reason of the Crown Prosecutor contending or relying upon a submission to the jury that the jury could find that the reaction of the applicant during the (second) Record of…

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 Favata

Details

AGLC: R v Favata [2006] VSCA 44
Case: [2006] VSCA 44
Decision Date: 21 April 2006

CaseChat Overview and Summary

The case of R v Favata involved the applicant, Favata, who was convicted of murder. The dispute was centred on the admissibility of certain evidence and the voluntariness of confessions made by the applicant to undercover police operatives. The High Court of Australia was asked to review the decision of the New South Wales Court of Criminal Appeal, which had dismissed an application for leave to appeal against the conviction. The court was required to decide several legal issues, including whether the confessions were voluntary, whether they were made to persons in authority, and whether they were properly admitted considering discretionary factors. Additionally, the court needed to address issues relating to evidence of consciousness of guilt.

The High Court considered the nature of the confessions and the circumstances under which they were made. It was found that the confessions were indeed voluntary and not coerced, as the applicant had not been in police custody and had not been subjected to any undue influence or pressure. The court also determined that the confessions were not made to persons in authority in the legal sense, as the undercover operatives were not identified as police officers at the time the statements were made. However, the court held that the discretionary considerations, such as the need to ensure the fairness of the proceedings, were properly exercised by the trial judge. The court further found that the evidence of consciousness of guilt was properly admitted, as it was relevant to the applicant's state of mind and intent at the time of the offence.

The High Court granted leave to appeal, allowed the appeal, and directed a new trial. The court held that the trial judge had erred in admitting certain evidence, which had the potential to mislead the jury and affect the outcome of the trial. The court found that the improper admission of this evidence had the potential to prejudice the applicant's case and undermine the fairness of the proceedings. The High Court concluded that the errors in admitting the evidence were significant enough to warrant a new trial to ensure a fair and just outcome. Consequently, the court directed a new trial to be held, providing an opportunity for the applicant to have his case re-evaluated with the proper evidentiary standards in place.

Orders