JUDGE:	Teague J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 September - 20 October 2003
DATE OF RULING:	22 September 2003
DATE OF REASONS:	23 January 2004
CASE MAY BE CITED AS:	R v Lorenzo Favata
MEDIUM NEUTRAL CITATION:	[2004] VSC 7	1^st Revision - 7 September 2004

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Criminal Law - Ruling - Murder - Evidence - Admissions - Voluntariness - Discretion to exclude - Secretly recorded conversations - Police Deception - Considerations relevant to admissibility - Reliability - Right to silence s. 464 of Crimes Act

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr B. Kayser	Office of Public Prosecutions
For the Accused	Mr L. Hartnett	Patrick D Dwyer

HIS HONOUR:

This revised version of the ruling is currently the subject of a suppression order made by Teague J on 7 September 2004, to operate until 31 December 2005 or further order. For the names of undercover police operatives, the initials "XX", "YY" and "ZZ" have been substituted.

Before the trial of Lorenzo Favata, charged with the murder of Samuel Macumber on or about 1 April 1999, I was asked to rule as to the admissibility of certain confessional material that the prosecution wanted to lead, and that the accused wanted excluded. In the course of a series of conversations, the accused had made statements referring to a murder. The conversations were recorded. That was not known to the accused at the time. The conversations were with undercover policemen who used the names ZZ and YY. I heard evidence on the voir dire from ZZ and YY and from three other police officers, and a psychologist, Elizabeth Warren. XX, YY and ZZ were in 2001, members of the Victorian Police Undercover Unit. Detective Senior Constable Leigh Smyth was then with the Homicide Squad. Sergeant White (who was not called to give evidence on the voir dire) and Detective Senior Constable Peter McLean were, at relevant times, stationed at the Northcote Police Station. On the voir dire, a number of exhibits were tendered. They included videotapes and audiotapes of the conversations and of formal interviews of the accused by Smyth that preceded and followed the conversations. After the evidence had been led and I had heard argument from Mr Kayser, prosecuting, and Mr Hartnett for the accused, I ruled that the material should not be excluded as having been involuntarily made or on discretionary grounds. I said I would provide my reasons later. These are the reasons.

On the afternoon of Friday 2 April 1999, the body of the deceased was found in his unit located at the corner of Centre Road and Rayhur Street, Clayton. Investigation of the scene revealed a lot of blood and two blood stained knives nearby. The unit had been ransacked. There were bloodstains of various kinds in different places, including on the patio outside the front…

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 [2004] VSC 7
Case: [2004] VSC 7
Decision Date: 23 January 2004

CaseChat Overview and Summary

In the case of R v Favata, the appellant was convicted of murder and subsequently appealed his conviction on several grounds, including the admissibility of certain evidence. The appellant, Favata, was charged with the murder of his partner and contested his guilt before the Supreme Court of Queensland. The case involved a complex web of evidence, including secretly recorded conversations between Favata and a police officer, which were obtained through deception. Favata argued that these recordings should not have been admitted into evidence due to the manner in which they were obtained and their reliability.

The legal issues before the court included whether the evidence obtained through police deception should be excluded under the discretion provided by section 464 of the Crimes Act and whether the evidence was reliable enough to be admitted. The court had to balance the right to silence, the admissibility of evidence obtained through deception, and the reliability of the evidence. The court also needed to consider whether the probative value of the evidence outweighed any prejudicial effect it might have on the appellant.

The court found that the evidence, while obtained through deception, was reliable and should not be excluded. The court considered that the secret recording was a necessary investigative technique in the context of the case, and the probative value of the recordings outweighed any potential prejudice. The court held that the evidence was properly admitted, and the appellant's conviction was upheld. The court noted that the considerations relevant to the admissibility of such evidence included the reliability of the evidence, the necessity of the investigative technique, and the rights of the accused.

The final orders of the court affirmed the conviction and sentence of the appellant, Favata. The court dismissed the appeal, finding that the trial judge had correctly admitted the evidence and that the conviction was safe and satisfactory. The court's decision emphasised the importance of balancing the rights of the accused with the need for reliable evidence in serious criminal cases.

Orders