R v Mitchell and Brown - [2005] VSC 42

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1450 of 2004

THE QUEEN

JEFFREY KEVIN MITCHELL AND
GAVIN JAMES BROWN

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JUDGE:	WHELAN J
WHERE HELD:	MELBOURNE
DATE OF RULING:	2 March 2005
CASE MAY BE CITED AS:	R v Mitchell and Brown (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2005] VSC 42

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr C. Ryan	Solicitor for the Office of Public Prosecutions
For the First Defendant	Mr I. Crisp	Geoffrey Tobin Pty
For the Second Defendant	Mr D. Whitchurch	Kieran S. Cox

HIS HONOUR:

In this matter I have been asked to rule on the admissibility of a taped conversation between the accused Jeffrey Mitchell and his former de facto wife, Leanne Brown. Mr Mitchell is accused of murdering one Andrew Preston on 29 April 2002. Ms Brown’s brother, Gavin Brown, is charged with being an accessory to that murder.

At the request of investigating police, Ms Brown wore a listening device on an occasion when she met Mr Mitchell for the purpose of collecting their children for an access visit.

Evidence in relation to the circumstances of the recording of the conversation was given on a voir dire. An audio CD of the conversation was tendered as Exhibit A. A transcript of the conversation appears in the depositions at pp.762-775.

At the time of the alleged murder, Ms Brown and Andrew Preston had been living together in a caravan at the Pine Hill Caravan Park in Lilydale.

The first witness on the voir dire was the informant, Sergeant McWilliam. At the relevant time, Sergeant McWilliam was a detective senior constable with the Homicide Squad. Sergeant McWilliam said that he first became involved in this investigation on 1 January 2003. He said that, at that time, police held statements from Gavin Brown, Leanne Brown and notes of a conversation with Mr Mitchell. The position as it appeared at that time was that Mr Preston had left the caravan on Saturday 27 April 2002 and had not been seen again. Sergeant McWilliam said that a record of interview was conducted with Gavin Brown on 29 April 2003. The interview was interrupted whilst Gavin Brown spoke to his sister, Leanne Brown, by telephone. When the interview resumed, Gavin Brown gave an account of the killing of Mr Preston by Mr Mitchell near Powelltown, after he and Mr Mitchell had gone to the caravan and left in the company of Mr Preston on Monday 29 April 2002. Sergeant McWilliam said that Gavin Brown had taken them to locations in Powelltown, in an attempt to locate the body, but that no body had been found. Sergeant McWilliam said that the police then approached Leanne Brown. He said they had conflicting stories and no corroboration of Gavin Brown’s record of interview of 29 April 2003. He said at that stage the police were still investigating the matter and trying to corroborate what Gavin Brown had told them.

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 Mitchell and Brown

Details

AGLC: R v Mitchell and Brown [2005] VSC 42
Case: [2005] VSC 42
Decision Date: 2 March 2005

CaseChat Overview and Summary

In this case, the Crown sought to adduce the evidence of a taped conversation between the accused, Jeffrey Mitchell, and his former de facto wife, Leanne Brown. The Crown alleged that Mitchell murdered Andrew Preston on 29 April 2002, and that Brown’s brother, Gavin Brown, was an accessory to that murder. The admissibility of the tape was challenged by Mitchell’s counsel on the basis that the conversation was not voluntary, that it was unreliable, and that it was obtained in an unfair manner. The court considered the arguments from both counsel and examined the relevant legal principles.

The legal issues for the court to decide were whether the taped conversation was voluntary, whether it was reliable, and whether it was obtained in a manner that was unfair to the accused. The court had to consider the relevant authorities, including the High Court decisions in R v Swaffield; Pavic v R and R v Carter, as well as the Victorian Court of Appeal decision in R v Carter. The court had to determine whether the conversation amounted to an interrogation, and whether the use of Brown as an informant was proper. The court also had to consider whether the conversation was voluntary and reliable, and whether its admission would be unfair to the accused.

The court found that the conversation was voluntary and that there was no reason to doubt its reliability. The court found that the conversation did not amount to an interrogation, but rather flowed naturally given the relationships between the parties. The court considered that the use of Brown as an informant was proper, and that her conduct did not amount to an unfair advantage over the accused. The court found that the conversation was not obtained in a manner that was unfair to the accused, and that its admission would not occasion an unacceptable price having regard to prevailing community standards.

The court ruled that the taped conversation was admissible as evidence in the trial. The court found that the conversation was voluntary and reliable, and that its admission would not be unfair to the accused. The court noted that the conversation did not amount to an interrogation, and that the use of Brown as an informant was proper. The court found that the conversation was not obtained in a manner that was unfair to the accused, and that its admission would not occasion an unacceptable price having regard to prevailing community standards.

The court's final orders were that the taped conversation between Mitchell and Brown was admissible as evidence in the trial. The court found that the conversation was voluntary and reliable, and that its admission would not be unfair to the accused. The court noted that the conversation did not amount to an interrogation, and that the use of Brown as an informant was proper. The court found that the conversation was not obtained in a manner that was unfair to the accused, and that its admission would not occasion an unacceptable price having regard to prevailing community standards.

Orders