R v Mustey - [2001] VSC 67

SUPREME COURT OF VICTORIA
CRIMINAL DIVISION	Not Restricted

No. 1453 of 2000

THE QUEEN

SHANE MATTHEW MUSTEY

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JUDGE:	VINCENT, J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	16 JANUARY 2001
MEDIUM NEUTRAL CITATION:	[2001] VSC 67

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CATCHWORDS: Admissibility of tape recorded conversation between accused and custodial officer – Whether accused was induced to make admissions – Voluntariness – Exercise of judicial discretion – Section 464 Crimes Act – Accused aware of his right to remain silent – McDermott v. The King (1948) 76 CLR 501; R. v. Lee (1950) 82 CLR 133; Cleland v. The Queen (1982) 151 CLR 1; R. v. Li [1993] 2 VR 80; R. v. Swaffield; Pavic v. R. (1998) 192 CLR 159 at p.210.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. C. Hillman	Office of Public Prosecutions
For the Accused	Mr. I. Crisp	Victoria Legal Aid

HIS HONOUR:

Prior to the empanelment of a jury in this matter, Mr Crisp of counsel, who appears on behalf of the accused man, objected to the introduction into the trial of evidence of the fact and substance of a conversation which took place in the Melbourne Custody Centre, on the night of Sunday, 5 September 1999, and which involved the accused and a custodial officer, Mr Peter Payne. Neither of those persons was called to give evidence before me, and I have considered the matter on the basis of the transcript of the evidence of Mr Payne given at the committal hearing and the audio tape recording of what transpired between the two men.

In support of this objection, counsel for the accused contended that Mr. Payne should be regarded as a person in authority with respect to his client and as having wrongly by his words and actions induced Mr. Mustey to make admissions causing his involvement in the death of the deceased. Accordingly, the argument proceeded, the statements made by the accused should be regarded as involuntary, or alternatively should be excluded in the exercise of judicial discretion either on the ground that their introduction would be unfair in the circumstances or contrary to public policy.

It appears from the available material that the accused became extremely alarmed when he received, at about 9 p.m. on that night, notice of an application to be made to the Magistrates' Court on the following morning for the opportunity to interview him in relation to the death of the deceased. As I understand the position, he had not been spoken to with respect to the matter at any earlier time and, until he received the Notice, as far as he was aware suspicion had not fallen upon him. This would seem to be reasonably clear from a part of the conversation in which reference is made to his lack of knowledge as to how the police attention may have been attracted to him and to the possibility that he may have left his fingerprints at the scene.

It also appears…

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 Mustey

Details

AGLC: R v Mustey [2001] VSC 67
Case: [2001] VSC 67
Decision Date: 16 January 2001

CaseChat Overview and Summary

The case of R v Mustey involved a dispute over the admissibility of a tape-recorded conversation between the accused, Mustey, and a custodial officer. The dispute was heard in the Supreme Court of Victoria. The issue at the core of the case was whether the conversation, which resulted in admissions made by Mustey, was voluntary and could be used as evidence against him in court. Specifically, the court had to determine if Mustey was induced to make these admissions and whether he was fully aware of his right to remain silent during the conversation.

The legal issues revolved around the interpretation of the voluntariness of the admissions under the Crimes Act. The court examined whether Mustey’s statements were made freely and voluntarily without any inducement, coercion, or promise by the custodial officer. It also considered the precedent set by previous cases such as McDermott v. The King, R. v. Lee, Cleland v. The Queen, R. v. Li, R. v. Swaffield, and Pavic v. R. which established guidelines for the admissibility of confessions and statements made under custodial interrogation.

The court held that for a confession or admission to be admissible, it must be made voluntarily and the accused must be aware of their right to remain silent. The court reviewed the tape and concluded that Mustey was aware of his rights and that no inducement or coercion was present during the conversation. Therefore, the conversation and the admissions made by Mustey were deemed voluntary and admissible as evidence. The court exercised its discretion under Section 464 of the Crimes Act, and the tape-recorded conversation was admitted into evidence.

The final orders of the court allowed the tape-recorded conversation to be used as evidence in the trial, thereby permitting the prosecution to present the admissions made by Mustey during the conversation. The decision underscored the importance of ensuring that any statements made by an accused person during custodial interrogation are voluntary and made with full awareness of their rights.

Orders