R v KS & Said - [2003] VSC 418

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1402 of 2003

THE QUEEN

KS AND MAGID SAID

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JUDGE:	COLDREY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14-15 OCTOBER 2003
DATE OF RULING:	16 OCTOBER 2003
CASE MAY BE CITED AS:	R v KS & ANOR
MEDIUM NEUTRAL CITATION:	[2003] VSC 418

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Ruling – Admissibility of conversation recorded via listening device – "No comment" record of interview made by fifteen year old accused who was thereafter charged with the offence of murder and detained in a Juvenile Justice Centre – Installation of listening device in room occupied by accused pursuant to warrant – Evidence gathering exercise – Inmate placed in room with accused to stimulate conversation – Psychological pressure on accused to talk about offence – Fairness and public policy discretions enlivened – Conversation with inmate containing admissions excluded from evidence.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr T. Gyorffy	Kay Robertson Solicitor for Public Prosecutions
For the First Accused	Mr M. Taft	Robert Stary & Associates
For the Second Accused	Mr S. Grant	Lethbridges

HIS HONOUR:

The accused, KS, and co-accused Magid Said face trial on a charge of murder. Application has been made by the accused KS for the exclusion of a conversation recorded via a listening device which conversation occurred at the Juvenile Justice Centre, Parkville, "the Centre" on 31 May 2002, with a fellow inmate, Robert Wilson.

An examination of the impugned material was undertaken by way of voir dire with both the prosecution and defence adducing evidence. Before considering the relevant law in this case it is desirable to summarise broadly the factual matrix in which it must be applied.

On 23 February the deceased, Roy Nicol, went to the home of the accused, KS and his mother, Debra Charles, at Unit 1, 479 Clayton Road, South Clayton. It was the Crown case that he was assaulted at that location by the accused, using a baseball bat for the purpose. Although substantially injured the deceased was still alive and remained at the garage of the South Clayton premises until 3 March 2002 when he was removed from the garage by friends of Debra Charles, and left in the driveway of the premises. Ms Charles then anonymously had an ambulance called through triple 0. Mr Nicol was later located by police in the intensive care unit of the Monash Medical Centre on 5 March. He remained unconscious until his death on 25 April 2002.

In the meantime on 26 February, the accused was the subject of a citizen's arrest while attempting to steal a motor car. He was charged with that offence and remanded in custody at the Juvenile Justice Centre.

It is not necessary to detail the ensuing events save to note that, pursuant to the granting by the Children's Court of an application brought by investigating police under s.464B of the Crimes Act 1958 "the Act", the accused was interviewed on 8 May 2002 by Homicide…

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 KS & Said

Details

AGLC: R v KS & Said [2003] VSC 418
Case: [2003] VSC 418
Decision Date: 16 October 2003

CaseChat Overview and Summary

The case of R v KS & Said involved two defendants, both of whom were being tried for the murder of an individual. The defendants, who were juveniles at the time of the offence, were subject to an investigation that included the installation of a listening device in the room they occupied at a Juvenile Justice Centre. The device was placed pursuant to a warrant, and an inmate was placed in the room with the accused to stimulate conversation about the offence. The defendants were later charged with murder and gave no comment interviews. The primary legal issue before the court was whether the conversations recorded via the listening device were admissible in evidence. The court was required to consider whether the fairness of the proceedings and public policy discretions justified the exclusion of the evidence.

The court found that the installation of the listening device and the use of an inmate to elicit conversation placed significant psychological pressure on the accused. This pressure was considered to be coercive and unfair. The court also found that the public policy considerations, which include the protection of the rights of children and the maintenance of the integrity of the criminal justice system, outweighed any potential benefits of admitting the evidence. The conversations were therefore excluded from evidence, as they were obtained in a manner that was unfair to the defendants and in breach of public policy considerations.

The court's decision was based on a careful consideration of the circumstances in which the evidence was obtained. The court held that the use of a listening device and the placement of an inmate in the room with the accused created an environment that was inherently coercive and unfair. The court also noted that the defendants were juveniles at the time of the offence and that their rights needed to be protected. The public policy considerations were also significant in the court's decision, as the court needed to ensure that the criminal justice system was not compromised by the admission of evidence obtained in an unfair manner.

The final orders of the court were that the conversations recorded via the listening device were excluded from evidence. This decision was made in the interests of fairness to the defendants and to uphold public policy considerations. The court's ruling ensures that the rights of juveniles are protected and that the integrity of the criminal justice system is maintained.

Orders