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R v Tofilau (No 2)

R v Tofilau (No 2)

Case [2006] VSCA 40 21 April 2006

Criminal Liability

Admissibility of Evidence

Confessions

Voluntariness of Confession

Appeal

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 10 of 2004

THE QUEEN
	v.
LEMALUOFUIFATU ALIPAPA TOFILAU

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JUDGES:	CALLAWAY, BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 - 21 September 2005
DATE OF JUDGMENT:	21 April 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 40

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Criminal law – Murder – Application for leave to appeal against conviction – Applicant involved in purported criminal activity with undercover police operatives – “Scenario evidence” – Confessions made to undercover operatives – Whether confessions voluntary – Whether made to persons in authority – Whether properly admitted having regard to discretionary considerations – Admissibility of scenario evidence – Directions to be given to jury – Questions that may be asked on voir dire – Application refused - Crimes Act 1958, ss. 398A, 464 ff., 568(1).

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J.D. McArdle, Q.C. with Ms S.E. Pullen, S.C. and Dr S.B. McNicol	Mr S. Carisbrooke, Acting Solicitor for Public Prosecutions
For the Applicant	Mr O.P. Holdenson, Q.C. with Mr L.C. Carter	Victoria Legal Aid

CALLAWAY, J.A.:

I agree with Vincent, J.A. There are three points I wish to add. One relates to s.398A of the Crimes Act 1958 and the directions that need to be given when the Crown relies on scenario evidence. Neither of those topics was expressly addressed below or on appeal, in this case or the four cases that were heard with it[1], but that is not to say that the prejudicial character of scenario evidence was overlooked or that no warnings were given. The second point relates to s.85 of the Evidence Act 1995 (Cth). The third point is a caveat concerning the majority view in Wong Kam-Ming v. R.[2]
[1]R. v. Hill [2006] VSCA 41, R. v. Marks [2006] VSCA 42, R. v. Clarke [2006] VSCA 43 and R. v. Favata [2006] VSCA 44.
[2][1980] A.C. 247.

Propensity Evidence

Where the Crown relies on a confession obtained by the mode of investigation exemplified by these five cases, attention must be given to the admissibility not only of the confession but also of the evidence of the scenarios leading up to the confession and to the directions that need to be given to the jury relating to the scenarios. The scenario evidence will show the accused as a willing participant in what he or she believed to be criminal activity. As these cases illustrate, that activity may include despicable crimes like blackmail[3] and crimes of violence.
[3]Compare R. v. Hadjou (1989) 11 Cr.App.R. (S.) 29 at 30.

Such evidence is “[p]ropensity evidence” within the meaning of s.398A of the Crimes Act, as that expression was interpreted in R. v. Best.[4] It is for the Crown to show that it is admissible, rather than for the accused to persuade the judge to exclude it pursuant to the Christie[5] discretion.[6] The test of admissibility is whether the probative value of the scenario evidence is such that it is just to…

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 Tofilau (No 2)

Details

AGLC: R v Tofilau (No 2) [2006] VSCA 40
Case: [2006] VSCA 40
Decision Date: 21 April 2006

CaseChat Overview and Summary

The case of R v Tofilau (No 2) was before a court in Australia where the accused, Tofilau, applied for leave to appeal against his conviction for murder. Tofilau was involved in an incident with undercover police operatives and was subsequently charged with the murder of a person. Tofilau's application for leave to appeal focused on several key legal issues, including the admissibility of his confessions made to the undercover operatives, the question of whether those confessions were voluntary, and the admissibility of "scenario evidence" provided by the police operatives. Additionally, the application questioned whether the confessions were properly admitted, given the discretionary considerations under the relevant criminal legislation.

The court was required to determine whether the confessions made by Tofilau to the undercover operatives were voluntary and admissible, considering the nature of his interactions with the operatives and the circumstances surrounding the confessions. Furthermore, the court had to assess whether the confessions were properly admitted, taking into account the relevant statutory provisions and the principles governing the admissibility of evidence obtained from persons in authority. The court also needed to evaluate the admissibility of the scenario evidence presented by the police operatives, which detailed the circumstances of the crime and the role of Tofilau. This involved examining whether the scenario evidence was relevant and whether proper directions were given to the jury regarding its use.

The court found that the confessions made by Tofilau were voluntary and properly admitted, considering the specific facts of the case and the statutory provisions governing such confessions. The court also determined that the scenario evidence was admissible and that appropriate directions were given to the jury. Consequently, the application for leave to appeal was refused. The court emphasised that the evidence provided a clear and compelling account of the events leading to Tofilau's conviction and that no legal errors had been made that would warrant an appeal.

Orders