R v Vassallo - [2011] QSC 359

SUPREME COURT OF QUEENSLAND

CITATION:

R v Vassallo [2011] QSC 359

PARTIES:

THE QUEEN

v

DARRIN VASSALLO

FILE NO/S:

Indictment No 355 of 2010

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane

DELIVERED ON:

29 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2011, 29 and 30 September 2011

JUDGE:

Dalton J

ORDER:

The record of interview made on 3 December 2008 is not to be received in evidence at the trial of this matter.

CATCHWORDS:

Voluntariness of admissions; inducement by threat or promise.

Criminal Law Amendment Act 1894 s 10

R v Hagan [1966] Qd R 219
R v Q [2003] QCA 421
Wendo v The Queen (1963) 109 CLR 559

COUNSEL:

P J Davis SC with A Donaldson for the applicant/defendant

C Marco for the respondent/Crown

SOLICITORS:

Jacobson Mahoney for the applicant/defendant

Director of Public Prosecutions for the respondent/Crown

DALTON J: This is an application brought by the defendant pursuant to s 590AA of the Criminal Code to exclude an interview between himself and police on 3 December 2008 on the basis that it was not voluntarily undertaken by the applicant. The onus is on the Crown to show that the confession was voluntary on the balance of probabilities.[1] The applicant has been indicted on six counts of supplying the dangerous drug methylamphetamine in 2008.
[1]Wendo v The Queen (1963) 109 CLR 559; R v Hagan [1966] Qd R 219; R v Q [2003] QCA 421.

On 3 December 2008 police arrived at the applicant’s home and conducted a search. They took possession of $6,000 in cash, two mobile phones, a box of financial documents and a red and black notebook. At the beginning of the search police tape recorded the proceedings but, part of the way through the search the tape recording stopped. The officer concerned says he assumes the recording device was inadvertently turned off. During that part of the search which was recorded, the applicant denied any wrongdoing, denied there were drugs in the house, and said that the cash found at the house was received by him as payment for concreting jobs. The applicant ran a concreting business. At the conclusion of the search the police drove the applicant back to the police station and, one hour and 50 minutes later, commenced a record of interview with him. The applicant says that during that time inducements and threats were made to him so that the interview is inadmissible pursuant to s 10 of the Criminal Law Amendment Act 1894:

“No confession which is tendered in evidence on any criminal proceeding shall be received which has been induced by any threat or promise by some person in authority, and every confession made after any such threat or promise shall be deemed to have been induced thereby unless the contrary be shown.”

The police officers say that during the hour and 50 minutes which preceded the record of interview they examined the financial documents and the mobile phones they had obtained from…

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 Vassallo

Details

AGLC: R v Vassallo [2011] QSC 359
Case: [2011] QSC 359
Decision Date: 29 November 2011

CaseChat Overview and Summary

The case of R v Vassallo was before the court, with the respondent facing criminal charges. The primary issue in this case was the admissibility of statements made by the respondent during an interview with law enforcement. The respondent argued that the admissions were not voluntary and were made as a result of threats and promises made by the police during the interview. The court was required to determine whether the admissions were voluntary and could be admitted as evidence under the Criminal Law Amendment Act 1894.

The legal issues before the court included the interpretation and application of section 10 of the Criminal Law Amendment Act 1894, which deals with the admissibility of confessions and admissions. The court needed to assess whether the admissions were voluntary and not obtained through any inducement by a threat or promise. The court considered relevant case law, including R v Hagan, R v Q, and Wendo v The Queen, to guide its decision. The court also had to consider the specific circumstances of the interview and the conduct of the police during the interview process.

The court found that the admissions made by the respondent were not voluntary and were obtained through inducement by threats and promises made by the police during the interview. The court was satisfied that the respondent's will was overborne by the tactics employed by the police, rendering the admissions inadmissible under section 10 of the Criminal Law Amendment Act 1894. As a result, the court ordered that the record of the interview made on 3 December 2008 was not to be received in evidence at the trial of this matter. This decision was based on the court's finding that the admissions were obtained in a manner that compromised their voluntariness, and therefore, they could not be used against the respondent in court.

Orders

Orders of the court

The record of interview made on 3 December 2008 is not to be received in evidence at the trial of this matter.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Vassallo [2011] QSC 359
PARTIES:	THE QUEEN v DARRIN VASSALLO
FILE NO/S:	Indictment No 355 of 2010
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane
DELIVERED ON:	29 November 2011
DELIVERED AT:	Brisbane
HEARING DATE:	6 April 2011, 29 and 30 September 2011
JUDGE:	Dalton J
ORDER:	The record of interview made on 3 December 2008 is not to be received in evidence at the trial of this matter.
CATCHWORDS:	Voluntariness of admissions; inducement by threat or promise. Criminal Law Amendment Act 1894 s 10 R v Hagan [1966] Qd R 219 R v Q [2003] QCA 421 Wendo v The Queen (1963) 109 CLR 559
COUNSEL:	P J Davis SC with A Donaldson for the applicant/defendant C Marco for the respondent/Crown
SOLICITORS:	Jacobson Mahoney for the applicant/defendant Director of Public Prosecutions for the respondent/Crown