R. v. Hill - [2006] VSCA 41

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 216 of 2004

THE QUEEN
	v.
SHANE JOHN HILL

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JUDGES:	CALLAWAY, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 - 21 September 2005
DATE OF JUDGMENT:	21 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 41

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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 – Admissibility of scenario evidence – Leave to appeal granted but appeal dismissed – Crimes Act 1958, ss. 398A, 464 ff., 568(1).

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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	Matthew White & Associates

CALLAWAY, J.A.:

I agree with Vincent, J.A., except in relation to ground 3(b).

In my respectful opinion, the learned trial judge misapprehended counsel’s argument that the scenario evidence would involve forensic disadvantage to the applicant.[1] The forensic disadvantage to which counsel was referring was not the disadvantage of the confessional statements, which his Honour rightly held to be irrelevant, but the prejudicial character of the scenario evidence itself, which showed the applicant participating in a great deal of what he believed to be serious criminal activity, including attempted blackmail and a violent assault. That error does not, however, amount to a “wrong decision of any question of law” within the meaning of s.568(1) of the Crimes Act 1958, and the proviso to that sub-section need not be considered, because the decision to admit the evidence of the scenarios was correct. That evidence was necessary to show how the confessional statements came to be made. Applying the test in s.398A of the Crimes Act, in all the circumstances, it was just to admit it despite the prejudicial effect it might have.[2]
[1]The relevant passage of his Honour’s ruling is set out at [119] below.
[2]See R. v. Tofilau [2006] VSCA 40 at [2]-[3] and the last three sentences of [15].

Further, in my view, the argument that the statements should have been excluded in the exercise of the judge’s discretion is strong enough to warrant a grant of leave.[3] The police took statements from the applicant on 17^th February and 14^th March 2002. On 10^th April 2002 Raymond Hill also made a statement, claiming that the applicant had confessed to him on 22^nd February 2002. “Operation Exode” was initiated two months later. Counsel for the respondent conceded that, in the light of the applicant’s statements, both of which were exculpatory, it was unlikely that an admission or confession would be made in any cautioned interview. In those circumstances, there is, to my mind, a serious question whether the confessional statements, made…

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. Hill

Details

AGLC: R. v. Hill [2006] VSCA 41
Case: [2006] VSCA 41
Decision Date: 21 April 2006

CaseChat Overview and Summary

The applicant, in this case, was convicted of murder and was seeking leave to appeal against that conviction. The case involved the applicant's involvement in what was purported to be criminal activity with undercover police operatives. The primary legal issues that the court had to decide involved the admissibility of the applicant's confessions made to undercover operatives and the admissibility of scenario evidence. The court was required to determine whether the confessions were voluntary and whether they were made to persons in authority, as well as whether they were properly admitted considering the discretionary considerations. The admissibility of scenario evidence was also under scrutiny.

The court examined whether the applicant's confessions were voluntary and whether they were made to persons in authority. The court considered the circumstances under which the confessions were made, including the undercover nature of the police operatives and the applicant's state of mind. The court found that the confessions were voluntary and not made to persons in authority. The court also considered the discretionary considerations set out in the Crimes Act 1958, ss. 464 ff., and determined that the confessions were properly admitted. In terms of the admissibility of scenario evidence, the court found that the evidence was relevant and necessary to prove the applicant's involvement in the criminal activity. The court concluded that the scenario evidence was properly admitted.

Ultimately, the court granted the applicant leave to appeal but dismissed the appeal. The court held that the trial judge had not erred in admitting the confessions and scenario evidence, and that the convictions were safe and satisfactory. The court emphasised the importance of ensuring that evidence is obtained lawfully and fairly, but found that this had been achieved in this case. The court dismissed the appeal and affirmed the applicant's convictions.

Orders