R v Munday (Ruling No 1) - [2016] VSC 26

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2015 0133

THE QUEEN
v
GARETH MUNDAY	Accused

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	8, 9 December 2015, 2 February 2016
DATE OF RULING:	3 February 2016
CASE MAY BE CITED AS:	R v Munday (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2016] VSC 26

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CRIMINAL LAW – Evidence – Admissions – Record of interview – Application of Evidence Act 2008 (Vic) ss 85 and 90 – Whether or not circumstances of admission make it unlikely that the truth of admission adversely affected – Reliability – Whether or not it would be unfair to the accused to use evidence of the admission – Whether or not accused psychotic at time of record of interview – Whether or not mental state of accused likely to affect reliability of admissions – Record of interview excluded.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms S. Coombes	Office of Public Prosecutions
For the Accused	Ms N. Karapanagiotidis	Victoria Legal Aid

HIS HONOUR:

Introduction

The accused, who is now 19 years old, is charged with attempted murder, intentionally causing serious injury and recklessly causing serious injury. The relevant events are said to have occurred on 3 February 2015.

The physical facts are largely undisputed. Early in the morning of 3 February 2015, Colin Rowling, the uncle of the accused, was allegedly struck by the accused twice to the head with a hatchet. He sustained serious injuries including deep lacerations and a fractured cheekbone. The accused was subsequently interviewed by police. During that interview he made admissions.

The issue on this application is whether I should exclude the admissions contained within that record of interview (‘ROI’). The accused relies on ss 85 and 90 of the Evidence Act 2008 (Vic) (‘Act’) to argue that these admissions, and the ROI in its entirety, ought be excluded.

The accused was 18 at the time of this incident. He has no prior criminal convictions. At the time of the alleged offending he lived with his mother, her de facto partner, and Colin Rowling.

The accused attended Knox Police Complex on 9 February 2015, and the relevant interview began at 11:46 am, was suspended at 11:53 am, and resumed at 2:35 pm.[1] The accused was assessed by Dr Jason Schreiber to determine his fitness for interview from 12:50 pm. It is common ground between the parties that this fitness assessment occurred prior to the substantive portion of the police interview. Dr Schreiber considered the accused fit to be interviewed with an independent third person (‘ITP’) present. Ms Raewyn Clark was the ITP contacted by the police and was present throughout the interview.
[1]Transcript of Record of Interview of Gareth Mark Munday, 9 February 2015, page 1, 7.

The substantial part of the interview commenced at Question 86 when the accused was asked in a non-leading form to give an account of the events of…

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.

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Details

Case: [2016] VSC 26
Decision Date: 3 February 2016

CaseChat Overview and Summary

The case of R v Munday (Ruling No 1) involved the respondent, who was facing criminal charges, and the prosecution. The central dispute in this matter was the admissibility of a record of an interview conducted with the respondent. The court, in this instance, was the County Court of Victoria. The key legal issues that the court had to address were whether the circumstances surrounding the admission made it unlikely that the truth of the admission adversely affected the respondent, the reliability of the admission, and whether it would be unfair to the respondent to use the evidence of the admission. A further issue was whether the respondent was psychotic at the time of the record of interview and whether their mental state was likely to affect the reliability of the admissions.

The court examined the provisions of the Evidence Act 2008 (Vic) sections 85 and 90, which deal with the admissibility of admissions. The court considered the factors relevant to determining the reliability of the admission and whether it would be unfair to the respondent to use the evidence. The court also took into account the respondent's mental state at the time of the interview, as it was argued that the respondent was psychotic, which may have affected the reliability of the admissions. After considering the evidence and arguments presented by both parties, the court found that the record of interview should be excluded from being used as evidence in the case.

The court's reasoning was that the circumstances of the admission, as well as the respondent's mental state, made it unlikely that the truth of the admission adversely affected the respondent. Furthermore, the court found that it would be unfair to the respondent to use the evidence of the admission due to the respondent's mental state at the time of the interview. Consequently, the court ruled that the record of interview should be excluded from the evidence in the case. This decision highlights the importance of considering the circumstances of an admission, the reliability of the admission, and the fairness to the accused when determining the admissibility of such evidence in criminal cases.

The final orders of the court were that the record of interview conducted with the respondent be excluded from evidence in the case. This decision was based on the court's findings that the circumstances of the admission and the respondent's mental state made it unlikely that the truth of the admission adversely affected the respondent and that it would be unfair to the respondent to use the evidence of the admission. This ruling serves as a reminder of the need for courts to carefully consider the admissibility of admissions in criminal cases, taking into account the factors relevant to determining the reliability of the admission and the fairness to the accused.

Orders