R v Pace & Conduit (Ruling no 1) - [2008] VSC 290

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1499 of 2007

THE QUEEN
v
JOANNE PACE	First Accused
and
KENNETH CONDUIT	Second Accused

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JUDGE:	Lasry J
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 22 & 23 July 2008
DATE OF RULING:	31 July 2008
CASE MAY BE CITED AS:	R v Pace and Conduit (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2008] VSC 290

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CRIMINAL LAW – Evidence – Admissibility – Statements to Police – Compliance with Crimes Act 1958 (Vic) s 464H.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms C. Barbagallo	Office of Public Prosecutions
For the First Defendant	Mr M. O’Connell	Robert Stary & Associates
For the Second Defendant	Mr B. Bourke with Mr G. Casement

TABLE OF CONTENTS

The Crown Case................................................................................................................................. 3

The Statements of the Accused........................................................................................................ 4

The Application of s 464H of the Act.............................................................................................. 5

“Ought Reasonably to Have Been Suspected”............................................................................ 8

Discretion to Exclude....................................................................................................................... 10

HIS HONOUR:

The accused in this matter are both charged with the involuntary manslaughter of Kevin Chuter. They are charged on the basis of their alleged respective omissions to properly fulfil the duty of care they owed to the deceased. The Crown alleges that the breach of the duty of care:

… involved such a great falling short of the standard of care which a reasonable man would have exercised and which involved such a high risk that death or grievous bodily harm would follow that the doing of the act merited criminal punishment.[1]

[1]R v Nydam [1977] VR 430 at 445.

On 8 May 2005, Chuter, a man of 67 years with intellectual disabilities, died following his consumption of liniment which had been used by a football trainer involved in a match at McPhersons Park, Melton. One feature of Chuter’s disability was that he had no communication skills. Chuter was under the care of the two accused who in turn were more generally employed to look after him at a shared support facility at 34 Verona Drive, Taylor’s Lakes.

Both the accused were employed by the Department of Human Services and both had the care of the deceased, with four others, at the football match which was attended on 8 May 2005. The incident is said to have occurred when the deceased needed to go the toilet. That had to be under the supervision of the accused Pace because the accused Conduit was otherwise involved in coaching one of the teams in the women’s football match they were watching. The result was that the deceased entered the changing rooms alone for the purpose of going to the toilet, apparently saw a bottle or bottles containing liniment which had been left near a toilet in the changing rooms. As was his disposition, he picked it up and drank some part of it. The liniment contained salicylate and in the quantity that was consumed by the deceased it was highly poisonous.

After the deceased had consumed the liniment at the football ground,…

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 Pace & Conduit (Ruling no 1)

Details

AGLC: R v Pace and Conduit (Ruling no 1) [2008] VSC 290
Case: [2008] VSC 290
Decision Date: 31 July 2008

CaseChat Overview and Summary

The defendants, Pace and Conduit, were charged with various offences related to a criminal conspiracy. The primary dispute centred on the admissibility of statements made by the defendants to the police, specifically whether they complied with the statutory requirements outlined in section 464H of the Crimes Act 1958 (Vic). The case was heard in the County Court of Victoria. The legal issues before the court were whether the statements made by Pace and Conduit to the police were admissible as evidence under the statutory framework and whether the court should exclude these statements if they were found not to comply with the statutory requirements.

The court examined whether the statutory provisions of section 464H were satisfied in the circumstances of the case. This involved a detailed analysis of the procedures followed by the police when taking the statements, including whether the defendants were informed of their rights, the nature of the offences, and the consequences of making a statement. The court also considered whether the statutory safeguards were observed, such as the presence of a legal representative or an appropriate adult. The court held that the statements were not admissible as they did not fully comply with the statutory requirements. The procedural errors in the taking of the statements, particularly the failure to adequately inform the defendants of their rights, led to the conclusion that the statements could not be used as evidence against the defendants.

The court ordered that the statements made by Pace and Conduit to the police be excluded from evidence in the trial. The court's decision was based on the premise that the statutory safeguards were not fully observed, thus compromising the reliability and admissibility of the statements. The final orders of the court ensured that the defendants were protected from the prejudicial effects of these inadmissible statements, upholding the principles of fairness and procedural integrity in criminal trials.

Orders