DPP v Hicks

2 The accused was arrested at approximately 4.50 pm on 19 June 2012. He was interviewed by the police between 19 June and 21 June at the offices of the Bendigo Crime Investigation Unit. The interview concluded at 9.17 am on 21 June. On the afternoon of the same date, the accused pleaded guilty to a number of thefts and burglaries, which had been committed in the Bendigo and Long Gully areas on the evening of 14 June and 15 June, but excluding the burglary at 199 Eaglehawk Road. He also pleaded guilty to other thefts and burglaries committed on earlier dates.

3 The prosecution intends to adduce evidence as to the pleas of guilty made by the accused to the thefts and burglaries committed by him on the evening of 14 to 15 June, as admissions by him as to the commission of those offences. Mr D Hallowes, who appears on behalf of the accused, has objected to the admissibility of the evidence of those pleas of guilty. He submitted that I should refuse to admit the evidence pursuant to s 90 of the Evidence Act 2008, on the basis that, having regard to the circumstances in which the pleas of guilty were made, it would be unfair to the accused to use them as evidence against him in the forthcoming trial.

4 The circumstances in which Zayden VealWhitting was killed, and the circumstances in which the accused was arrested and interviewed by the police, have been described in some detail in my first ruling[1] in this matter dated 21 February 2014, and I shall not repeat them. In that ruling, I held that the recorded police interview conducted with the accused is admissible in the trial.

5 As I stated in my earlier ruling, in the trial the prosecution will allege that the accused set out from his home at 2A Green Street, Long Gully at about 11.30 pm on 14 June, with the intention of committing a series of thefts and burglaries in the Long Gully area. The prosecution alleges that the accused then proceeded to commit a series of thefts, burglaries and attempted burglaries, in the Long Gully area.

6 In particular, it is alleged that he committed the following offences: at 22 Bray Street, he stole a pair of sunglasses from a car; at 1 Dillon Street, he entered a shed and moved things around, but did not take anything; at 18 Bolt Street, he stole a pair of Oakley brand sunglasses from a car; at 1 Bolt Street, he went into the rear yard, opened the back security door, and propped open the security door with some shoes, but the wooden door was locked; at 33 Havilah Road, he propped open the rear door of the house with some shoes; at 23 Duncan Street, he went into a shed in the rear of the yard, but was disturbed by the owners, and ran away through a side gate; at 30 Wilson Street, he entered a house and stole an X-box games console, some X-box games, and two mobile telephones - a Samsung and an HTC phone; and at 15 Jackson Street, he stole an Olin brand set top box from a motor vehicle which was parked in the driveway of the premises. The property at 15 Jackson Street is approximately 40 metres from the address at 199 Eaglehawk Road, Long Gully, at which Zayden Veal-Whitting was killed.

7 The recorded interview between the Bendigo Police and the accused concluded at 9.17 am on 21 June. At approximately 11.00 am, Detective Senior Constable Harper, who had conducted the interview, spoke on the telephone with Ms Megan Aumair, a solicitor, who had represented the accused in previous matters, and who was representing the accused in the present matters. Ms Aumair attended at the Bendigo Police Station, and spoke to the accused. Detective Senior Constable Harper emailed to Ms Aumair a copy of the police summary in respect of the charges which had been brought against the accused. In the afternoon of the same day, the accused appeared before the Bendigo Magistrates' Court. He pleaded guilty to all of the 21 charges laid against him. Eleven of those charges were in respect of the thefts, burglaries and attempted burglaries, committed in the Bendigo and Long Gully areas on the evening of 14 to 15 June, which I have described above. The balance of the charges related to similar offences committed on earlier dates. The accused was sentenced to 12 months' detention in a youth justice centre.

The objection to the admissibility of the guilty pleas

8 Mr Hallowes submitted that it would be unfair to use the pleas of guilty by the accused to those charges, as evidence against him in the present trial, in circumstances where the accused pleaded guilty to a large number of charges, and where he had not admitted to the police, nor instructed his solicitor, that he had committed a number of them. Mr Hallowes submitted that the accused pleaded guilty to all of the charges in order to avoid being remanded in custody, in respect of them, in an adult prison, instead of being sentenced to a period of detention in a youth justice centre.

9 The objection made on behalf of the accused was supported by evidence given by the accused's then solicitor, Ms Megan Aumair. Ms Aumair swore an affidavit, and was cross-examined on a voir dire.

10 In her affidavit, Ms Aumair stated that she had been advised by the accused's father that he was in custody on the morning of 21 June. She immediately called the Bendigo Police Station and spoke with Detective Senior Constable Harper. Senior Constable Harper told her that an interview had commenced on 19 June, but had not been completed due to the accused's medical condition. She was told that the accused was tired and had asked for the interview to be delayed until the next day. The accused had seen a doctor and had been given medication.

11 In her affidavit, Ms Aumair stated that Senior Constable Harper told her the extent of the allegations against the accused, which included burglaries, thefts and related driving matters. He told her that the accused had made full admissions. He also told her that there were four outstanding warrants against the accused which were executed that day. Senior Constable Harper told Ms Aumair that the accused denied having anything to do with the murder. However, it was unclear to Ms Aumair whether or not the accused had been formally interviewed about that matter.

12 Ms Aumair was then provided with a summary of the charges relating to the burglary and theft allegations. She read the charges and the summary to the accused. She noted that there was no evidence in support of the allegations other than the extensive admissions made by the accused in his record of interview. No brief had been served in the matter, however (according to her affidavit) the summary "made reference to his extensive admissions".

13 Ms Aumair then conferred with the accused. Ms Aumair advised him that he would be remanded in adult custody until a full brief of evidence was compiled, and that she and the accused could then discuss a plea if the evidence supported it. She informed the accused that, alternatively, the matter would be finalised on that day by way of a plea, and that she might be able to argue in favour of a sentence of youth detention. Having received that advice, the accused instructed Ms Aumair that he wished to plead guilty, and that he did not want to go into adult custody. He told her that he feared retribution for an allegation of rape, that he had made against an inmate at Port Phillip Prison. The accused told Ms Aumair that he wanted the matter finalised, and he instructed her to enter pleas of guilty on his behalf. However, at no time did he make any specific admissions to her relating to the charges brought against him. In particular, he made emphatic denials to her about having anything to do with the murder.

14 In evidence on the voir dire, Ms Aumair stated that on the morning of 21 June, she had conferred with the accused at Bendigo Police Station. The accused was alert and comfortable. She was familiar with him, and he was not anxious about her acting for him. The accused told Ms Aumair that he was adamant that he did not want to be remanded into custody. The conference lasted between 20 and 30 minutes. Ms Aumair had a copy of the charges and the summary, and she read both documents to the accused.

15 In cross-examination, Ms Aumair stated that, before she saw the accused, she had been provided with the summary and the charges, which she had read. She said that, at that stage, she did not have sufficient information to make a proper assessment as to whether the charges should be defended. However, she was confident that, if the matter was to be adjourned, the accused would be remanded in custody. Ms Aumair confirmed that during the conference with the accused, she read the charges, and the police summary, to the accused. Ms Aumair discussed the options with him. Those options were, either that the matter would be adjourned, and he would be remanded in adult custody, or the matter could be dealt with on that day. Ms Aumair advised the accused that, if the matters were dealt with on that day as pleas of guilty, he would have a prospect of receiving a sentence of detention in a youth justice centre, but the decision was ultimately for the magistrate. Ms Aumair confirmed that the accused, knowing the charges and knowing the contents of the summary, clearly instructed her that he wished the matter to be dealt with on that day. He did not, at any time in the conference, deny his involvement in any of the offences that were contained in the charge sheet. Nor did he, during the conference, dispute any part of the summary of the charges that Ms Aumair read to him.

16 Ms Aumair stated that, based on the accused's instructions, when the matter came before the magistrate, she entered a plea of guilty to all charges on behalf of the accused, and consented to the jurisdiction of the court. The summary, prepared by the police, was read to the court, and, on behalf of her client, Ms Aumair accepted it as correct.

17 Ms Aumair, in cross-examination, stated that she did not attempt to negotiate with the police as to which charges the accused should plead guilty. She stated that she was not then in a position to undertake any plea bargaining, and that, usually, it is necessary to adjourn the matter in order for that process to take place.

18 Detective Senior Constable Harper gave brief evidence in relation to this aspect of the case, in the course of his evidence on the earlier voir dire relating to the admissibility of the record of interview, which is the subject of my first ruling.[2] In particular, Senior Constable Harper stated that he did not believe that he had told Ms Aumair that the accused had made full admissions to the burglaries and the thefts, because that was not the case. In that respect, the evidence of Senior Constable Harper is supported by the summary, which he had prepared and provided to Ms Aumair. In that summary, he stated that in the course of the interview conducted with the accused, the accused had admitted the attempted burglary at 23 Duncan Street, the burglary at 30 Wilson Street, and the theft from the vehicle in Jackson Street in which the set top box was stolen, and that the accused had "denied any involvement in any other offences committed that night".

19 Based on that evidence, Mr Hallowes submitted that the evidence of the accused man's pleas of guilty before the Magistrates' Court should be excluded under s 90 of the Evidence Act 2008, on the basis that, having regard to the circumstances in which the admissions, constituted by those pleas, were made, it would unfair to the accused to use the evidence in the forthcoming trial.

20 In particular, Mr Hallowes submitted that the admissions, constituted by the pleas of guilty, were inherently unreliable, taking into account the circumstances which attended the entry of those pleas. The accused, who was then 19 years of age, was facing the prospect of remand in adult custody. Because of his previous experience in adult custody, he had concerns about that prospect. In the course of a lengthy interview with the police shortly before the entry of those pleas, he had denied committing a number of the offences to which he then pleaded guilty. Clearly, the accused knew that, ultimately, he would be convicted of at least some of the charges. Thus, there was an element of futility about following a course in which the case was adjourned, and he was remanded in custody. The plea was made in circumstances of some haste, and without his solicitor having the opportunity to read and examine the evidence upon which the police relied in support of the various charges. Indeed one of the charges (charge number 6) was not even referred to in the summary. In those circumstances, it was submitted that the pleas were fundamentally unreliable as admissions of the accused's commission of the offences which were contained in the charges to which he pleaded guilty.

21 In addition, Mr Hallowes submitted that, if the pleas of guilty were admitted in the trial, it would be necessary for the accused to call Ms Aumair as a witness, to give the evidence which I summarised above. That evidence would reveal that the accused had previously been in adult custody, which in itself would be prejudicial to the accused.

22 In response, Ms M Williams SC, who appears with Mr G Hayward on behalf of the prosecution, submitted that, on the day on which the accused pleaded guilty, he was represented by an experienced solicitor, who was familiar with the accused. The accused was properly informed of the charges to be brought against him, and of the allegations made in the police summary. He did not deny, to Ms Aumair, that he had committed any of those offences, nor did he dispute any of the matters contained in the police summary. The accused discussed the available options with his solicitor, and he made an informed decision as to which course he would adopt. The accused is familiar with the legal system, having had a number of previous court appearances in criminal matters. He well knew how to look after his own interests. In those circumstances, Ms Williams submitted, the admissions, comprising the pleas of guilty to the charges in the Magistrates' Court, were not made in circumstances such that it would be unfair to the accused to admit that evidence in the trial.

23 It is well established, and it is indeed common ground in this case, that, ordinarily, a plea of guilty by an accused person to a charge constitutes an admission, by that person, of the facts and elements essential to the offence to which the plea of guilty is entered.[3] In order that I exclude the evidence pursuant to s 90 of the Evidence Act 2008, I must be persuaded that, having regard to the circumstances in which the relevant admission was made (here, the pleas of guilty entered in the Magistrates' Court), it would be unfair to the accused to use that evidence in the trial against him as an admission that he committed the various offences which were the subject of the charges to which he pleaded guilty.

24 The discretion, contained in s 90, is expressed in terms that are similar to the principles which applied to the common law discretion to exclude relevant evidence on the basis that it would be unfair to the accused to admit the particular evidence.[4] The question of the reliability and truthfulness of the admission, which was sought to be adduced in evidence, was regarded as an important consideration to the exercise of the common law discretion to exclude it.[5] In Em v The Queen,[6] the majority of the High Court was divided as to whether the reliability of the admission is a factor relevant to the exercise of the discretion contained in s 90 of the Evidence Act 2008. In that case, police officers had a conversation with the accused. Unbeknown to the accused, the police had obtained a warrant, which entitled to them to record the contents of the conversation. The accused submitted that the evidence of the confessions, which he made in the course of that conversation, should be excluded under s 90 of the Evidence Act, on the basis that he spoke to the police on the assumption that the conversation was informal and was not being recorded. The High Court, by a majority (Kirby J dissenting) held that the trial judge had correctly admitted the evidence.

25 In the course of argument before the High Court, counsel for the accused had canvassed the question as to whether the reliability of the admission, made by the accused, was a fact of relevance to the exercise of the discretion under s 90 of the Evidence Act. In their joint judgment, Gleeson CJ and Heydon J held that the reliability of the evidence, constituted by the admission, is a factor affecting the fairness of its use in evidence.[7] On the other hand, Gummow and Hayne JJ, in their joint judgment, considered that the issue of the reliability of the evidence is not relevant to the exercise of the discretion contained in s 90.[8] However, their Honours reached that conclusion on the basis that the question of the reliability of the confession, made to the police, was covered by s 85 of the Evidence Act, and the provisions of the Act were mutually exclusive. In the present case, that consideration does not arise. Section 85 does not apply, because the admission, sought to be adduced by the prosecution, was not of a kind covered by s 85 of the Evidence Act.

26 It follows from the foregoing discussion that, in my view, the reliability or otherwise of the admissions, comprising the pleas of guilty made by the accused, is an important factor relevant to the exercise of the discretion contained in s 90 of the Evidence Act.

27 The question, which I must determine, is not a clear cut. On the one hand, there are cogent reasons supporting a conclusion that it would not be unfair to admit the evidence of the guilty pleas, made by the accused, in the Magistrates Court. The accused knew precisely each of the charges that were brought against him. He was represented by an experienced criminal solicitor. She read those charges to him, and she read the police summary to him. The summary sufficiently informed the accused of the allegations contained in each of the charges, except for charge number 6. Ms Aumair stated, in evidence, that the accused was comfortable during her conference with him, and he was not anxious or stressed. There was no evidence, or indication, that the accused had any misconception or misunderstanding of the charges to which he intended to plead guilty. At no time during the conference with Ms Aumair, did he deny committing any of those charges, nor did he take issue with any aspect of the police summary which she read to him. Taken together, those factors, in my view, are strong considerations militating against the application on behalf of the accused.

28 On the other hand, the matters referred to by Mr Hallowes, and relied on in support of the objection, do raise a real doubt as to whether some of the pleas of guilty, made by the accused on 21 June, constituted, or were intended by the accused to constitute, true admissions as to the commission by him of the offences which were the subject of those charges. The accused had been interviewed over three successive days concerning a number of the matters which were the subject of the charges. In the course of that interview, he either did not admit, or denied committing, the offences which were the subject of five of the 11 charges, which related to the events of 14 June to 15 June. As I have already stated, the facts relating to charge number 6 were not the subject of the interview with the police, nor were they described in the police summary.

29 It is relevant, and indeed significant, that the pleas of guilty were entered on behalf of the accused on the same day on which the interview conducted by the police with him concluded. The police brief had not been compiled at that stage. Ms Aumair did not have any material or information, apart from the police summary, upon which to advise the accused. Plainly, as she said in her evidence on the voir dire, she was not then in a position to give the accused any advice as to that matter. The only advice which she could provide to the accused, on 21 June, related to the probable disposition of the accused, if the matter was adjourned, and the probable outcome, if he pleaded guilty to all of the charges. In those circumstances, the accused's solicitor had no opportunity to explore or examine the question of the accused's guilt, or otherwise, of the charges brought against him.

30 It is in that context that the reason given by the accused, for pleading guilty to the charges on that date, is important. Ms Aumair's evidence, which I accept, is that the accused told her that he wished to plead guilty, because he did not want to go into adult custody, which would occur if the matter was adjourned and he was remanded in custody. He informed Ms Aumair that he was concerned about adult custody because he had previously made an allegation of rape against an inmate of Port Phillip Prison. There was no issue, on the voir dire, that the accused was not truthfully stating the reason why he wished to plead guilty on that day. Ms Williams contended that I should take into account the fact that the accused did not himself give evidence on the voir dire. While that factor is relevant, nevertheless the evidence by Ms Aumair, as to the reason, given to her by the accused, why he wished to plead guilty on that day, is admissible pursuant to s 66(2) and s 66A of the Evidence Act. I accept, and indeed there is no issue in this regard, that the accused was telling the truth to Ms Aumair when he said to her that the reason why he wished to plead guilty was so that he could avoid going into adult custody.

31 In considering the accused's reason for pleading guilty, it is important to bear in mind that he was then 19 years of age. He is a man of reasonably small physique, who had a pressing reason for not wishing to be returned to adult custody. On the other hand, it was no doubt clear to him that, based on the admissions which he had made during the recorded interview with the police, and in light of his previous criminal history, there was a strong likelihood that, ultimately, he would receive a custodial sentence. Thus, in the accused's mind, the question of which charges he should, or should not, plead guilty to on 21 June, would have been relatively academic.

32 The factors, to which I have referred, taken together, raise a significant question as to the reliability of the pleas of guilty, made by the accused man, as truthful admissions by him of his guilt of the offences, which are the subject of each of the charges to which he pleaded guilty. It must be remembered that the pleas of guilty were entered shortly after the completion of an interview process with the accused, which had proceeded over a period of three days. The accused, and more particularly his solicitor, did not have any opportunity to properly consider the content of the charges brought against him, and the strength or otherwise of the evidence on which they were based. It would seem clear that the accused pleaded guilty by way of expediency, rather than because he conceded the truthfulness of the allegations made against him.

33 If the guilty pleas were admitted in evidence against the accused, it would be necessary for the defence to call Ms Aumair to give the evidence which she gave on the voir dire. The effect of that evidence would be to reveal to the jury that the accused had previously spent time in adult custody. That evidence, of itself, would be prejudicial to the accused. It may well be that I could offset a substantial part of that prejudice by an appropriate direction to the jury. However, it must be remembered that the case, which is about to commence, involves the brutal, and tragic, killing of an innocent 10month-old infant. It is desirable to avoid the admission of other evidence in the trial which could operate in a manner prejudicial to the accused.

34 Based on those matters, I am satisfied that, having regard to the circumstances in which the accused pleaded guilty to the charges in the Magistrates' Court on 21 June, it would be unfair to the accused to use that evidence as an admission by him of his guilt of the offences, which were the subject of those charges. Accordingly, in the exercise of my discretion under s 90 of the Evidence Act 2008, I shall refuse to admit that evidence in the trial.

[1] DPP v Hicks (Ruling No 1) [2014] VSC 43.

[2] DPP v Hicks (Ruling No 1) [2014] VSC 43.

[3] R v Broadbent [1964] VicRp 94; [1964] VR 733, 735 (O'Bryan J); R v D'OrtaEkenaike [1998] 2 VR 140, 144 (Winneke P); R v Constantinou [2009] VSCA 257 [11].

[4] See Em v The Queen [2007] HCA 46; (2007) 232 CLR 67, 87 [51]-[52] (Gleeson CJ and Heydon J), 103 [108] (Gummow and Hayne JJ).

[5] R v Lee [1950] HCA 25; (1950) 82 CLR 133, 153; R v Swaffield [1998] HCA 1; (1998) 192 CLR 159, 197 [77]-[78] (Toohey, Gaudron and Gummow JJ).

[6] [2007] HCA 46; (2007) 232 CLR 67.