Ridley v The King

[2024] VSCA 308

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2024 0166

LIAM RIDLEY (A PSEUDONYM)	Applicant
v
THE KING	Respondent

---

JUDGES:	TAYLOR JA and FOX AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2024
DATE OF JUDGMENT:	11 December 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 308
JUDGMENT APPEALED FROM:	DPP v [Ridley] (County Court of Victoria, McInerney J, 2 September 2024).

---

CRIMINAL LAW – Interlocutory appeal – Pending trial for aggravated home invasion – Admissions to police undercover operatives in cells and in a record of interview – Admissions alleged to have been made after an earlier, unrecorded interview – Failed police recording – Whether the trial judge erred in refusing to exclude the admissions – No error – Application for leave to appeal refused.

Evidence Act 2008 ss 85, 90.

Em v The Queen (2007) 232 CLR 67 – R v Em [2003] NSWCCA 374 – House v The King (1936) 55 CLR 499 – DPP (NSW) v Sullivan [2022] NSWCCA 183, considered.

---

Counsel
Applicant:		Mr H Rattray
Respondent:		Mr D Porceddu and Mr M Turner
Solicitors
Applicant:	Malkoun & Co Lawyers
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA:

1. Having had the advantage of reading in draft the reasons for judgment of Fox AJA, I agree with them and the order proposed.

FOX AJA:

Introduction

1. The applicant faces trial in the County Court on one charge of aggravated home invasion and six other charges arising from an incident that occurred on 24 April 2023. It is alleged the applicant, together with three co-offenders, forced his way into a house in Melton South. The occupants of the house were assaulted, shots were fired, and a car and other items were stolen.

2. The applicant is jointly indicted with one of the co-offenders, KL. The applicant is also charged with two charges of possessing a drug of dependence, arising from the execution of a search warrant at his premises on 23 May 2023. He intends to plead guilty to those charges.

3. On 23 May 2023, the applicant was arrested in relation to the aggravated home invasion and conveyed to the Geelong police station. During the course of the day, the applicant participated in a record of interview, which occurred in three stages. He was also lodged in the police cells on two occasions, where it is alleged he made certain admissions to two undercover operatives.

4. The applicant applied to exclude what has been called the ‘third interview’. The applicant also applied to exclude the evidence of what he said to the undercover operatives on the two occasions he spoke with them in the police cells.

5. On 2 September 2024, the trial judge refused the applications (‘the interlocutory decision’). On the same day, the trial judge certified the interlocutory decision pursuant to s 295(3)(a) of the Criminal Procedure Act2009 (‘CPA’). The applicant seeks leave to appeal against the interlocutory decision on a single ground formulated as follows:

   The learned trial…