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R v Weaven (Ruling No 1)

R v Weaven (Ruling No 1)

Case [2011] VSC 442 27 July 2011

Admissibility of Evidence

Compensatory Damages

Criminal Liability

Criminal Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2010 0169

THE QUEEN

GLENN MATTHEW WEAVEN

JUDGE:	WEINBERG JA
WHERE HELD:	Melbourne
DATE OF HEARING:	25, 27 & 28 July, 2-5, 8-12 & 15-18 August 2011
DATE OF RULING:	27 July 2011
DATE OF REASONS:	7 September 2011
CASE MAY BE CITED AS:	R v Weaven (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2011] VSC 442

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CRIMINAL LAW – Murder – Admissibility of confession made to police covertly engaged in ‘scenario’ investigation – Whether admission of ‘scenario evidence’ unfairly prejudicial to accused – Whether probative value outweighed by danger of unfair prejudice – Whether evidence improperly obtained – Evidence admitted – Evidence Act 2008 ss 90, 135, 137, 138

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr M Rochford SC with Mr B Sonnett	Mr C Hyland, Solicitor for Public Prosecutions
For the Defendant	Mr GF Meredith with Mr N Goodenough	Leanne Warren & Associates

HIS HONOUR:

Prior to the jury being empanelled in this trial, counsel for the accused sought to have certain confessional evidence excluded. I rejected that application. I indicated that I would publish my reasons at a later time. These are those reasons.

On Sunday 14 December 2008, shortly before 1:00 a.m, the deceased, Mary Lou Cook, was stabbed to death at her home in Darling Way, Narre Warren. The premises were subsequently set on fire. Within a few days, the accused, who had had a longstanding relationship with the deceased, was suspected by police of having been involved in her murder.

On 18 December 2008, the accused willingly participated in an interview with Sergeant Ronald Iddles of the Homicide Squad. He denied any involvement in the murder. He claimed to have been at his parents’ home, some two kilometres from the scene of the crime, at the relevant time. Sergeant Iddles considered that, although the accused was a suspect, there was insufficient evidence to charge him with murder at that stage.

The investigation continued for some months. Eventually, in July 2009, the police began a covert operation, using what is colloquially termed a ‘scenario’ method of investigation. Between July and September 2009, the accused met with undercover police on a number of occasions. Throughout that period, the accused took part in some 17 different ‘scenarios’, a number of them involving what he was led to believe was criminal activity. His belief was that he was participating in the activities of an organised criminal gang, and that he was being groomed for possible membership of that gang. The accused was paid various amounts of money for his assistance in these ‘criminal’ activities, and was led to believe that there was opportunity to earn a great deal more.

On 18 September 2009, the accused met a man whom he knew as ‘Gary’ (in fact, an undercover police operative) in a room at Crown Towers Hotel. He believed that Gary was the ‘Mr Big’ of the organisation. Gary told the accused that…

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 Weaven (Ruling No 1)

Details

AGLC: R v Weaven (Ruling No 1) [2011] VSC 442
Case: [2011] VSC 442
Decision Date: 27 July 2011

CaseChat Overview and Summary

In the case before the court, the accused, Weaven, faced charges of murder. The prosecution intended to present evidence of a confession made by the accused to police officers who were covertly involved in a 'scenario' investigation. The dispute centred around the admissibility of this confession. The court was required to decide whether the admission of this 'scenario evidence' would unfairly prejudice the accused, whether the probative value of the evidence outweighed the danger of unfair prejudice, and whether the evidence had been improperly obtained.

The legal issues before the court were whether the evidence obtained through the covert operation was admissible under the Evidence Act 2008 and whether it unfairly prejudiced the accused. The court considered sections 90, 135, 137, and 138 of the Act, which deal with the admissibility of evidence obtained unfairly, the exclusion of evidence if its probative value is substantially outweighed by the danger of unfair prejudice, and the discretion of the court to exclude evidence on other grounds. The court found that while the method of obtaining the confession was unconventional, it did not render the evidence inadmissible if it was relevant and its probative value was not substantially outweighed by the danger of unfair prejudice.

The court concluded that the evidence was properly obtained and its probative value was not outweighed by the danger of unfair prejudice. The court held that the evidence was relevant and could assist in establishing the accused's guilt. Despite the unconventional method of obtaining the confession, the court found that the probative value of the evidence outweighed any potential prejudice to the accused. Therefore, the evidence was admissible under the Evidence Act 2008. The court allowed the prosecution to present the confession as part of their case against the accused.

Orders