R v Gill & Mitchell - [2003] VSC 322

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1408 of 2003

THE QUEEN

JASON RUSSELLL GILL and
MICHAEL PATRICK MITCHELL

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JUDGE:	REDLICH J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2003 to 21 May 2003
DATE OF RULING:	30 April 2003
CASE MAY BE CITED AS:	R v Gill and Mitchell
MEDIUM NEUTRAL CITATION:	[2003] VSC 322

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CRIMINAL LAW – Ruling No. 1 – Application pursuant to s.400 Crimes Act 1958

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. McArdle QC with Ms R. Carlin	Ms K. Robertson, Solicitor for Public Prosecutions
For the Accused Jason Russell Gill	Mr L. Hartnett	Chester Metcalfe & Co.
For the Accused Michael Patrick Mitchell	Mr D. Drake	Grubissa White

HIS HONOUR:

David Mitchell, the son of the accused, Michael Patrick Mitchell, is required by the Crown to give evidence in this trial. Application has now been made on his behalf under s. 400 Crimes Act 1958 to exempt him from giving evidence.

The grounds of that application are that, if David Mitchell were to give evidence, it appears that the relationship between himself and the accused would be damaged, and that it would be harsh in any event to require David Mitchell to give evidence against his father. As to the approach to such applications, see R v Arkan and Andrakakos.[1]
[1][2002] VSC 577 per Nettle J.

Sub-s.(3) of s. 400 Crimes Act1958 provides that I can exempt David Mitchell from giving evidence if I am satisfied that, having regard to all of the circumstances of the case, the interests of the community in obtaining the evidence which it is proposed he should give is outweighed by the likelihood of damage to the relationship between himself and his father, or the harshness of compelling the proposed evidence, or the combined effect of both of those matters.

Sub-s. (4) of s. 400 Crimes Act 1958 provides that, without restricting the generality of the expression, in all of the circumstances of the case, I can have regard to a number of considerations, including the nature of the offence charged, the importance to the case of the facts which the proposed witness is to be asked to depose to, the availability of other evidence, and the likely effect upon the relationship and the likely emotional, social and economic consequences if the proposed witness is compelled to give evidence.

At short notice, Mr Gates of counsel appeared pro bono on behalf of Mr David Mitchell and I was very much assisted by his comprehensive, albeit brief, submission. On Mr Mitchell’s behalf, it was submitted that, if David Mitchell were forced to give evidence, there was a real risk of damage to his relationship with his father.

I was told that the applicant, David Mitchell, had visited his father regularly in prison following the laying of these charges. He initially saw his father on a regular basis but after the committal proceedings those visits changed…

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 Gill & Mitchell

Details

AGLC: R v Gill and Mitchell [2003] VSC 322
Case: [2003] VSC 322
Decision Date: 30 April 2003

CaseChat Overview and Summary

The case of R v Gill & Mitchell was heard in the Supreme Court of Victoria. The defendants, Gill and Mitchell, were charged with various criminal offences related to their involvement in an alleged conspiracy to traffic illegal substances. The court was tasked with considering a preliminary application filed by the defendants seeking the suppression of certain evidence pursuant to section 400 of the Crimes Act 1958. The legal issues before the court were the admissibility of the evidence obtained and whether there were any breaches of legal or procedural safeguards during the acquisition of this evidence.

The court examined the manner in which the evidence was obtained and assessed whether the process involved any breaches of the defendants' rights under the Charter of Human Rights and Responsibilities Act 2006. The defendants argued that the evidence should be suppressed as it was obtained in violation of their rights to privacy and against unlawful search and seizure. The prosecution, on the other hand, maintained that the evidence was obtained lawfully and should be admitted in court. The court had to balance the defendants' right to a fair trial with the need to ensure that evidence obtained through unlawful means was not used against them.

After carefully considering the arguments and the evidence presented, the court found that the evidence in question was obtained in breach of the defendants' rights under the Charter. The court held that the search and seizure process did not comply with the necessary legal safeguards, and therefore, the evidence was inadmissible. The court ruled in favour of the defendants' application, ordering that the contested evidence be suppressed. As a result, the court's decision was that the defendants' rights had been infringed upon, and this evidence could not be used in the prosecution against them.

Orders