R v Roba - [2000] VSC 96

SUPREME COURT OF VICTORIA
CRIMINAL JURISDICTION	Not Restricted

No. 1448 of 1998

THE QUEEN

PAUL ROBA AND OTHERS

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JUDGE:	COLDREY, J.
WHERE HELD:	GEELONG
DATE OF RULING:	7 FEBRUARY 2000
MEDIUM NEUTRAL CITATION:	[2000] VSC 96

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CATCHWORDS: Evidence – Admissibility of taped conversations made by undercover police member – The Queen v. Heaney and Welsh (1994) 4 VR 636; The Queen v. Swaffield; Pavic v. The Queen (1998) 192 CLR 159 and The Queen v. Franklin (unreported) 23 July 1998 – Section 464ff. Crimes Act (Vic.) – Discretion to exclude – Unfairness discretion – Public policy – Conversations excluded.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr. J. Leckie	Office of Public Prosecutions
For the Accused	Mr. D. Brustman Mr. F. Gucciardo Mr. H. Mason	Victoria Legal Aid G.R. Bryant & Associates Paul A. Vale Pty.

HIS HONOUR:

In the early hours of 18 February 1999 the three accused, together with a fourth person, Hasan Kevelj visited the house of the deceased Mr Robert Filipovic in Barrands Lane, Drysdale. Also resident at those premises was Mr Filipovic's girlfriend (the sister of the accused Paul Roba), Natalie Roba.

In broad terms, the Crown case is that the visit to the Drysdale house was motivated by Paul Roba's displeasure at what he perceived to be the conduct of Mr Filipovic who he blamed for introducing his sister to heroin and for the subsequent thefts perpetrated by the couple upon his elderly parents and the Roba family in order to support their heroin habit.

The four men, having taken steps to disguise themselves with such items as a balaclava and beanies and having armed themselves with two pipes, ultimately broke down the front door of the premises. It is alleged that Mr Filipovic retreated and, if he produced a knife, as is asserted by the accused, he was quickly subdued and beaten with the pipes.

The principal attack, according to the Crown, was perpetrated by the accused Roba. The three accused and Kevelj eventually left the property and disposed of the pipes and portion of the disguises before returning to Geelong. It transpired however, that Ms Natalie Roba recognised her brother Paul as one of the assailants. Consequently, he was arrested and later that same day interviewed by investigating police. At that time Mr Filipovic, although critically injured, was still alive.

In the course of that interview, the accused Roba admitted being present at the Drysdale premises and kicking the door down. He stated that he had gone there in essence to scare Mr Filipovic. He claimed that after Mr Filipovic had produced a knife, he had struck him twice with an iron bar. After he had fallen unconscious to the floor, the group had left the premises.

Paul Roba was then charged, inter alia, with intentionally causing serious injury.

Mr Roba was not pressed to name his companions during the course of that interview but it is common ground that he provided the investigating police with the…

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 Roba

Details

AGLC: R v Roba [2000] VSC 96
Case: [2000] VSC 96
Decision Date: 7 February 2000

CaseChat Overview and Summary

In the case of R v Roba, the defendant was charged with various criminal offences including conspiracy to commit an indictable offence, trafficking in dangerous drugs, and contravening section 21 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic). The matter was heard in the Supreme Court of Victoria where the defendant contested the admissibility of taped conversations made by an undercover police officer during the course of an investigation. The central issue before the court was whether the evidence obtained through the undercover operation was admissible, given the nature of the operation and the manner in which the conversations were recorded.

The court considered the precedent set by cases such as The Queen v. Heaney and Welsh, The Queen v. Swaffield, Pavic v. The Queen, and The Queen v. Franklin. These cases established guidelines for the admissibility of evidence obtained through covert police operations, with particular attention to the discretion provided under section 464ff of the Crimes Act (Vic). The court had to determine whether the undercover operation was fair and whether the exclusion of the evidence was necessary to maintain public confidence in the administration of justice. The court concluded that the manner in which the conversations were obtained was unfair, and the exclusion of the evidence was necessary to uphold the integrity of the legal system.

After reviewing the evidence and the legal principles, the court ruled that the taped conversations were inadmissible. The court found that the undercover operation did not adhere to the principles of fairness and that the exclusion of the evidence was necessary in the interests of justice and public policy. The court emphasised the importance of maintaining ethical standards in law enforcement to ensure that the administration of justice is not compromised. The final orders of the court excluded the taped conversations from being used as evidence in the trial.

Orders