R v Robb (Ruling No 2) - [2015] VSC 481

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2014 0123

THE QUEEN

KRISTY ROBB

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JUDGE:	RUSH J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 and 8 September 2015
DATE OF RULING:	9 September 2015
CASE MAY BE CITED AS:	R v Robb (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 481

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CRIMINAL LAW – Evidence – Challenge to admissibility of part of the record of interview of the accused – Evidence of incriminating conduct.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Rose QC with Ms S. Coombes	Ms V. Anscombe, Acting Solicitors for Public Prosecutions
For the Accused	Mr C. Mylonas	Paul Vale Criminal Law

HIS HONOUR:

I deferred a ruling on an issue concerning the admissibility of part of the record of interview of the accused and the notice of incriminating conduct filed by the prosecution until this morning so I could raise specific matters of concern with Mr Rose QC at yesterday’s hearing. That issue concerns answers in the accused’s record of interview relied upon by the prosecution as evidence of incriminating conduct. I will deal with this issue later in this ruling.

Challenge to admissibility of part of the record of interview

Mr Mylonas, on behalf of the accused, submitted that the record of interview had been conducted improperly and that investigating police had failed to comply with s 464C of the Crimes Act 1958. It is submitted that, contrary to that section, the accused was not afforded her right to speak to a solicitor, despite being informed by police conducting the record of interview she could do so if she wished.

By way of background, the record of interview commenced at 4.50pm on 30 January 2014 and stopped at 5.50pm. The accused had indicated she needed something to eat and specifically requested a cold Milo drink to assist with what she described as an iron deficiency.

The record of interview was recommenced at 8.50pm. Apparently, one reason for the substantial break was that the accused fell asleep. Also it is apparent during the break police conducted further investigations.

Immediately on recommencement of the record of interview, the accused was reminded that she had been told she could contact a legal practitioner. The accused agreed that she had been told that she could contact a legal practitioner.[1] The accused was asked if she wished to contact a legal practitioner ‘at this point in time’. She replied, ‘It’s a bit late. I can’t do anything about it now’.[2] Then, the following questions and answers are recorded in the transcript of the record of interview:
[1]Record of Interview (‘ROI’), Q537.
[2]ROI, Q538.

Q539:O.K. Is that a yes or a no? Do you want to contact a solicitor?
A:Yes.
Q540:You do?
A:(NO AUDIBLE REPLY)
Q541:O.K.
A:What’s the time anyway?
Q542:The time is 5 to 9. Yep. So you want me - - -
A:I wanna talk to my mum. She doesn’t know I’m here.
Q543:Your mum does know…

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 Robb (Ruling No 2)

Details

AGLC: R v Robb (Ruling No 2) [2015] VSC 481
Case: [2015] VSC 481
Decision Date: 9 September 2015

CaseChat Overview and Summary

The case of R v Robb (Ruling No 2) involved the Crown seeking to introduce part of a recorded interview with the accused, who was on trial for serious criminal charges. The defence objected to the introduction of specific parts of the interview, claiming it was unfairly prejudicial and not relevant to the issues before the court. The decision was made by a lower court judge in the Supreme Court of Victoria.

The legal issues that arose in this case centred on the admissibility of the contested parts of the interview, focusing on whether the probative value of the evidence outweighed any potential prejudice it might cause. The court had to consider whether the incriminating conduct, which the Crown sought to introduce, was relevant to any material fact in issue and whether its admission would be unfairly prejudicial to the defendant.

The court found that the contested parts of the interview, while prejudicial, contained significant evidence of the accused's incriminating conduct which was directly relevant to the charges against him. The judge concluded that the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice. Therefore, the evidence was admissible. The court provided clear reasoning as to why the evidence was necessary for a fair trial and how it directly related to the facts of the case.

The final orders were that the contested parts of the recorded interview were to be admitted into evidence at the trial. The judge provided a detailed analysis of the balance between the prejudicial impact and the probative value, ensuring that the rights of the accused were protected while also allowing the presentation of critical evidence.

Orders