R v Hein - [2013] SASCFC 97

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v HEIN
[2013] SASCFC 97
Judgment of The Court of Criminal Appeal
(The Honourable Justice Vanstone, The Honourable Justice Kelly and The Honourable Justice Peek)
20 September 2013
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - IMPROPER ADMISSION OR REJECTION OF EVIDENCE - GENERAL PRINCIPLES
CRIMINAL LAW - EVIDENCE - CONFESSIONS AND ADMISSIONS - STATEMENTS - RECORDS OF INTERVIEW
CRIMINAL LAW - EVIDENCE - JUDICIAL DISCRETION TO ADMIT OR EXCLUDE EVIDENCE - POLICE INTERROGATION - DISCRETION TO EXCLUDE CONFESSIONAL STATEMENTS - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION
Appeal against conviction for aggravated robbery - whether judge bound by earlier ruling on voir dire by another judge - whether that judge erred in allowing cross-examination on the voir dire as to the truth of the admissions made to police - whether judge erred in failing to exclude evidence of police interview on basis it was unfair to admit the evidence - whether direction to jury as to use of suggested lies was flawed.
Held: appeal allowed - main part of interview should have been excluded - direction on lies was apt to mislead - retrial ordered - observations about cross-examination as to truth on the voir dire and on application of s 285AB Criminal Law Consolidation Act 1935.
Criminal Law Consolidation Act 1935 (SA) s 285AB; Evidence Act 1929 (SA) s 23, s 24, s 18V, referred to.
R v Wright [1969] SASR 256; McPherson v The Queen (1981) 147 CLR 512; R v Semyraha [2001] 2 Qd R 208; Frijaf v The Queen [1982] WAR 128; R v Mardlin [2004] WASC 73; R v Rowen (Unreported, Supreme Court of South Australia, Cox J, 25 January 1979), discussed.
R v Szach (1980) 23 SASR 504; R v Sharp (1983) 33 SASR 366; R v Croyden (1986) 11 CCC 67; The King v Brown (1931) 23 Cr App R 56; R v Brown (1988) 146 LSJS 326; Wong Kam-Ming v The Queen [1980] 1 AC 247; R v Brophy (1981) 2 All ER 705, considered.

R v HEIN
[2013] SASCFC 97
Court of Criminal Appeal: Vanstone, Kelly and Peek JJ
VANSTONE J:
Appeal against conviction for aggravated robbery

On 10 September 2009 there was a robbery at the Mannum branch of BankSA. The unarmed robber was not disguised but wore a pair of wrap-around sunglasses. The robbery occurred just before the bank was due to open. The only persons present were two bank employees, one of whom was the appellant and the other the woman named as the victim in the information, whom I shall call V. The case against the appellant was that she provided to the robber, whom she knew well, important information which allowed him to plan and execute the robbery, that she facilitated his entry and that during the robbery she…

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 Hein

Details

AGLC: R v Hein [2013] SASCFC 97
Case: [2013] SASCFC 97
Decision Date: 20 September 2013

CaseChat Overview and Summary

The appeal concerned a conviction for aggravated robbery. The appellant argued that the trial judge erred in several respects, including being bound by an earlier ruling on a voir dire by a different judge, allowing cross-examination on the voir dire regarding the truthfulness of admissions made to police, failing to exclude evidence of a police interview on the grounds of unfairness, and providing a flawed direction to the jury concerning the use of suggested lies. The appeal was heard by Vanstone, Kelly, and Peek JJ.

The central legal issues before the Full Court were whether the trial judge was obligated to follow the previous voir dire ruling, whether the cross-examination on the truth of admissions during the voir dire was permissible, and whether the police interview evidence should have been excluded due to unfairness. Additionally, the court considered whether the jury direction regarding the use of alleged lies by the appellant was misleading.

The Full Court allowed the appeal, finding that the main part of the police interview should have been excluded and that the direction on lies was likely to mislead the jury. The court noted that the combination of these errors meant the proviso could not be applied. While not assessing the full impact of excluding the interview evidence on the prosecution's case, the court concluded that a retrial was appropriate. The court also made observations regarding cross-examination on the truth of admissions during a voir dire and the application of section 285AB of the Criminal Law Consolidation Act 1935.

The conviction was set aside, and a new trial was ordered. Kelly J agreed with the reasons and orders proposed by Vanstone J, though preferring not to comment on specific aspects of the trial judge's decisions.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

PEEK J

For the reasons mentioned earlier it is unnecessary to say more.Conclusion I have found that the arguments concerning the interview and the direction on lies are made out. I consider that the combination of the two leaves no room for application of the proviso. For the purposes of the appeal it was not necessary to come to grips with the whole of the evidence presented against the appellant and so we are not in a good position to assess what impact the exclusion of most of the interview will have on the case against her. Accordingly, it is appropriate to order a re-trial. I would make the following orders:1.grant permission to appeal on grounds 1 and 2 (permission already having been granted in relation to grounds 3 and 4);2.allow the appeal;3.set aside the conviction and direct a new trial. KELLY J: I agree that the appeal should be allowed. I agree with the reasons of Vanstone J. I agree that the appeal must be allowed. I agree with the orders proposed by Vanstone J and substantially with her reasons. I would prefer to offer no comment as to the trial Judge’s decision to order separate trials; the propriety of questions 34, 38 and 39 in the interview; and the topic of Wong Kam-Ming v The Queen[1].[1] [1980] 1 AC 247.

Ratio Decidendi

Legal Principle Established

Established by: PEEK J

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