R v Serrano (Ruling No 1) - [2007] VSC 164

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1494 of 2006

THE QUEEN

APOLONIO SERRANO

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	21, 22 May 2007
DATE OF RULING:	23 May 2007
CASE MAY BE CITED AS:	R v Serrano (Ruling No. 1)
MEDIUM NEUTRAL CITATION:	[2007] VSC 164

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CRIMINAL LAW – Evidence – Murder trial – Admissibility of record of interview – Discretion – Delay in conducting interview – Repetition of questions asked in earlier interviews – Questions in form of cross-examination – Parts of interview ruled inadmissible.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr R. Gibson	Office of Public Prosecutions
For the Accused	Mr M. Rochford with Mr D. Hallowes	Victoria Legal Aid

HIS HONOUR:

The accused man, Apolonio Serrano (who is referred to as Tony Serrano) has been charged with the murder of Milica Trailovic on 26 December 2003 at Endeavour Hills. Mr Hallowes, who appears with Mr Rochford for the accused, has taken objection to the admissibility of a record of interview conducted with the accused man on 7 October 2005 at the Homicide Squad Offices. He submitted that I ought to exclude that interview in the exercise of my discretion.

Ms Trailovic was born in May 1942. Approximately 3 years before December 2003 she had commenced a relationship with the accused man, who is now 65 years of age. In the course of that relationship the accused on occasions stayed at Ms Trailovic’s home at 25 Skye Crescent Endeavour Hills.

Ms Trailovic was last seen by someone other than the accused man on or about 26 December 2003. On 5 January 2004 the accused attended at Dandenong Police Station and reported her as a missing person. He was told by the Constable to whom he spoke that he should return if Ms Trailovic remained missing. On 7 January the accused again attended at Dandenong Police Station and reported Ms Trailovic as a missing person. He told Constable McLean, who he spoke to, that he last saw Ms Trailovic when he dropped her at a bus stop at Dandenong Plaza on 26 December 2003. She told him that she was intending to travel to Queensland for a holiday, and that she would return on 5 January 2004.

On 22 January 2004 the police attended at Ms Trailovic’s home and spoke to the accused. The police undertook a brief search of the premises. They noted that the carpet had been removed from the lounge and dining room area exposing the floor boards. It was apparent that the accused was then residing at the home address of Ms Trailovic and the police asked him to vacate the premises which he did.

On 4 March 2004 the Homicide Squad Missing Persons Unit took over the investigation. The accused made a written statement to the police in relation to the disappearance of Ms Trailovic on that date. He told the police that Ms Trailovic had initially told him on…

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 Serrano (Ruling No 1)

Details

AGLC: R v Serrano (Ruling No 1) [2007] VSC 164
Case: [2007] VSC 164
Decision Date: 23 May 2007

CaseChat Overview and Summary

The case of R v Serrano was heard in a relevant Australian court, where the defendant was on trial for the alleged murder of an individual. The prosecution sought to introduce a record of an interview conducted with the defendant, which was taken several days after the alleged offence. The defence objected to the admissibility of the record, citing concerns about the delay in conducting the interview, the repetition of questions from earlier interviews, and the form of questioning, which was in the nature of cross-examination. The court was required to decide whether the record of the interview was admissible in the trial.

The court considered the legal issues pertaining to the admissibility of the record of the interview. The key points of concern were the delay in conducting the interview, the repetition of questions from earlier interviews, and the form of questioning, which resembled cross-examination. The court had to determine whether these factors impacted the admissibility of the record and whether the discretion to exclude the evidence should be exercised in this case. The court was also required to assess the probative value of the evidence against the potential prejudice to the defendant.

After considering the arguments and evidence presented, the court ruled that certain parts of the interview record were inadmissible. The delay in conducting the interview and the repetition of questions from earlier interviews were found to be factors that could potentially impact the reliability and probative value of the evidence. Additionally, the form of questioning, which was in the nature of cross-examination, was deemed inappropriate for an interview record. The court exercised its discretion to exclude those parts of the interview record that were found to be problematic. The remaining parts of the interview record were deemed admissible and could be presented to the jury as evidence.

The final orders of the court were that specific parts of the interview record, which were identified as problematic, were to be excluded from the evidence presented to the jury. The remaining parts of the interview record were to be admitted as evidence in the trial. The court's ruling ensured that the evidence presented to the jury was reliable and fair, and the defendant's right to a fair trial was upheld.

Orders