R v McNiven - [2011] VSC 397

IN THE SUPREME COURT OF VICTORIA

Not restricted

AT WANGARATTA

CRIMINAL DIVISION

No. 187 of 2010

THE QUEEN

KERRY ANN MCNIVEN

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JUDGE:	LASRY J
WHERE HELD:	Wangaratta
DATES OF HEARING:	15, 16, 17 and 18 August 2011
DATE OF RULING:	22 August 2011
CASE MAY BE CITED AS:	R v McNiven
MEDIUM NEUTRAL CITATION:	[2011] VSC 397

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CRIMINAL LAW – Record of Interview – Whether admissible – section 85(2) of the Evidence Act 2008 – Circumstances of the interview – Whether the truth of the admissions adversely affected – section 189(3) of the Evidence Act 2008 – whether truth of the admissions a consideration - section 464C Crimes Act 1958 – Whether breached – Whether accused was given useful or any legal advice – Record of Interview excluded.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C Thomson	The Office of Public Prosecutions
For the Accused	Mr N Papas SC with Mr J Kantor	Trish Devlin Lawyers

HIS HONOUR:

At about 6:15 pm on 18 November 2009, on the banks of the Ovens River at Wangaratta, the accused Kerry McNiven is alleged to have doused the deceased, Garry Stewart, with fuel and then ignited the fuel with a cigarette lighter causing him injuries that resulted in his death some weeks later on 5 December 2009. The accused is thus charged with the murder of Garry Stewart. At this early point of the outline of the circumstances, it is important to note that Mr Papas SC, who appears with Mr Kantor of counsel for the accused, has indicated that his client accepts that she did apply the fuel to the deceased but that a central issue of fact in the trial will be how and by whom it was ignited.

The accused and the deceased are both Aboriginal people. They had known each other for a number of years. At the time of the incident they were together on the banks of the Ovens River having walked there from nearby premises. They had both been drinking beer and wine during that day from an early hour. Whilst the evidence about their drinking is not uniform, the most likely conclusion for me to draw is that the accused had consumed a great deal of alcohol prior to this incident. Mr Raymond Fleming is the former partner of the accused. Both the accused and the deceased had slept at his place on the night before 18 November 2009. In his evidence at the committal,[1] Mr Fleming said that as soon as the accused and Stewart got up at around 7:00 am they commenced to drink alcohol. He said the accused was drinking all day. Describing the accused and the deceased in the afternoon, the witness Anita Saunders said that the deceased was “pretty pissed” and that the accused was “three quarters of the way there”.[2] The witness Emma Reid, who was then a teenager, went to Ray Fleming’s house on this day and saw the accused and said of her:[3]

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 McNiven

Details

AGLC: R v McNiven [2011] VSC 397
Case: [2011] VSC 397
Decision Date: 22 August 2011

CaseChat Overview and Summary

In the case of R v McNiven, the appellant faced charges related to criminal activities. The key dispute in this matter centred on the admissibility of a record of interview conducted under section 464C of the Crimes Act 1958. The proceedings were heard in the Victorian Court of Appeal, where the appellant sought to exclude the record of interview on several grounds.

The court was tasked with determining whether the record of interview was admissible under section 85(2) of the Evidence Act 2008. Additionally, the court had to decide if the circumstances of the interview were such that the truth of the admissions adversely affected, as outlined in section 189(3) of the Evidence Act 2008. A further issue was whether the truth of the admissions was a consideration when determining admissibility, and whether there was a breach of section 464C of the Crimes Act 1958 due to the appellant not being given useful or any legal advice.

The court found that the record of interview was not admissible as it did not meet the criteria set out in section 85(2) of the Evidence Act 2008. The court held that the circumstances of the interview did not adversely affect the truth of the admissions, and that the truth of the admissions was not a consideration for admissibility under section 189(3) of the Evidence Act 2008. Moreover, the court concluded that there was a breach of section 464C of the Crimes Act 1958 because the appellant had not been given useful or any legal advice during the interview. Consequently, the record of interview was excluded from evidence.

The court's final orders were that the record of interview be excluded from evidence, and the matter was to be remitted to the trial judge for further proceedings. This decision underscores the importance of ensuring that legal advice is provided to accused persons during police interviews to maintain the integrity of the criminal justice system.

Orders