R v Westbrook - [2020] VSC 472

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0267

THE QUEEN	Crown
v
KENT WESTBROOK (a pseudonym)[1]	Accused

[1]This judgment has been anonymised by the adoption of pseudonyms in place of the name of the accused and other persons.

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JUDGE:	BEALE J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 June 2020
DATE OF JUDGMENT:	5 August 2020
CASE MAY BE CITED AS:	R v Westbrook
MEDIUM NEUTRAL CITATION:	[2020] VSC 472

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CRIME — Murder — Public interest immunity claimed by Chief Commissioner Victoria Police — [*REDACTED] — Whether potential weight of evidence of confidential information may be considered in balancing exercise — [*REDACTED] — IMM v R (2016) 257 CLR 300; [2016] HCA 14 — [*REDACTED] — Ryan v State of Victoria [2015] VSCA 353 — Evidence Act 2008 (Vic) ss 18, 130, 131A, 138.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms A Ellis with Ms B Goding	Ms Abbey Hogan, Solicitor for Public Prosecutions
For the Accused	Mr R Richter QC with Ms V Drago	Melasecca, Kelly & Zayler
For the Chief Commissioner of Police	Mr A Dinelli with Mr A James-Martin	Victorian Government Solicitor’s Office

HIS HONOUR:

Background

This is a ruling upholding a public interest immunity (PII) claim by the Chief Commissioner of Victoria Police (CC) in connection with the pending trial of Kent Westbrook (KW) for murder and cultivating a commercial quantity of cannabis.

As well as written submissions[2] and various affidavits,[3] the CC provided me with four volumes of confidential materials in relation to its PII claim. In referring to those materials below, it is convenient to simply give the volume and page number.[4]
[2]CC’s non-confidential written submissions dated [*REDACTED]; CC’s confidential written submissions dated [*REDACTED]; CC’s confidential written submissions dated [*REDACTED].
[3]Confidential affidavit of JC dated [*REDACTED]; second confidential affidavit of JC dated [*REDACTED]; confidential affidavit of GR dated [*REDACTED]; confidential affidavit of GR dated [*REDACTED].
[4]For example, a footnote reference to 1.183 is a reference to Volume 1, page 183 in the four volumes of confidential materials supplied by the CC.

All section references below are to the Evidence Act 2008 (Vic), unless otherwise indicated.

Chronology of the prosecution case against KW

I will begin with a chronology regarding the prosecution case against KW.

In the early hours of [*REDACTED], XY and VW burgled a marijuana crop house in [*REDACTED]. They had with them an iron bar and secateurs.

They unwittingly set off a silent alarm which the prosecution alleges sent a message to a mobile phone used by TU who, at the time, was using telephone number “…465”[5] which in turn contacted a mobile phone used by KW who, at the time, was using telephone number “…531”[6] and was living in [*REDACTED].[7]
[5]This is not admitted by KW.
[6]This is not admitted by KW.
[7]This is not admitted by KW.

Cell tower data for KW’s mobile phone “…531” supports an inference that, having been contacted by TU, KW then travelled 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.

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Details

Case: [2020] VSC 472
Decision Date: 5 August 2020

CaseChat Overview and Summary

The case of R v Westbrook involved a criminal trial where the accused was facing charges of murder. The dispute centred on the admissibility of confidential information held by the Chief Commissioner of Victoria Police, which the prosecution sought to introduce into evidence. The Supreme Court of Victoria was tasked with determining whether this information could be admitted under the provisions of the Evidence Act 2008 (Vic). The court had to assess whether the potential weight of the confidential evidence could be considered in the balancing exercise required by the statutory provisions and case law. This involved interpreting the relevant sections of the Act, specifically sections 18, 130, 138, and 131A, as well as considering the principles established in IMM v R and Ryan v State of Victoria.

The court considered the established legal framework for evaluating the admissibility of confidential information. This involved a two-step process: first, determining whether the information was confidential and thus subject to a statutory presumption against disclosure; and second, assessing whether the probative value of the evidence outweighed the potential prejudice to the accused. The key issue was whether the potential weight of the confidential evidence could be factored into the balancing exercise. The court examined the relevant statutory provisions and the principles articulated in IMM v R and Ryan v State of Victoria to determine if such an approach was permissible.

In its decision, the court held that the potential weight of the confidential evidence could indeed be considered in the balancing exercise. This was based on a detailed interpretation of the statutory provisions and the relevant case law. The court found that the principles established in IMM v R supported the view that the potential probative value of confidential information could be taken into account. This approach was consistent with the objectives of the Evidence Act 2008 (Vic) to ensure that justice is served by admitting relevant and reliable evidence. The court concluded that the potential weight of the confidential information was a relevant factor in the admissibility assessment.

The court's decision resulted in the admission of the confidential evidence in the trial of R v Westbrook. The final orders of the court allowed the prosecution to present the confidential information as part of their case, subject to the protections and conditions outlined in the Evidence Act 2008 (Vic). This ruling clarified the legal framework for evaluating the admissibility of confidential information in criminal trials in Victoria.

Orders