Prosecution v Accused

2 The accused was tried by jury, with the trial commencing on 19 March 2026. The key issues were whether the prosecution could prove, beyond reasonable doubt, firstly, that Mr Devlin caused the death of Mr Chaaban, and secondly, that he was not acting in self-defence.

3 With respect to the second issue, the prosecution sought to lead evidence of comments made by the accused at the time of his arrest. The interaction between the accused and police is captured on the body-worn cameras of First Constable ('FC') Rebekah Brough and Constable Emily Dimech, and contained in the statements of those witnesses.

4 To the extent that the prosecution relied upon these comments as admissions, the defence challenged their admissibility under s 85(2) of the Evidence Act 2008 (Vic) ('the Act'). In any event, the defence argued that the evidence should be excluded under s 137 of the Act, on the basis that it was unfairly prejudicial.

5 On 19 March 2026, I heard submissions from both parties on these matters. I ruled that the evidence was admissible and indicated that reasons would follow. These are my reasons.

6 Mr Devlin, then aged 40, and Mr Chaaban, aged 49, were previously known to each other.

7 Mr Chaaban lived in a house on the corner of Alamein Road and Ramu Parade in Heidelberg West. On the morning of 15 June 2025, he was at home with his partner, Crystal Cinciruk, and a friend, Jason Williams.

8 CCTV footage shows Mr Devlin in the vicinity of Mr Chaaban's house at approximately 11.18am. Not long afterwards, he walked to the front door of the house and placed his red bag at the front gate. He knocked on the door and, when Mr Chaaban asked who was there, he identified himself as 'Danny'. Mr Chaaban told Mr Williams that he should leave, which he did, walking past the Mr Devlin as he exited.

9 According to Ms Cinciruk, Mr Chaaban spoke to Mr Devlin through the door before going outside into his front yard, telling the accused that he was not welcome. At around 11.41am, the two men moved from the front yard onto the nature strip. Punches were thrown, although it is unclear how many of them landed. They wrestled in the gutter for the next 14 minutes until police arrived. The fight was partially captured on CCTV and observed by several witnesses.

10 FC Rebekah Brough and Constable Emily Dimech arrived at the scene at 11.57am. They found the two men lying in the gutter. Mr Devlin was on his back, with his arms around Mr Chaaban, who was lying face down on top of him.

11 Almost immediately, Mr Devlin made a series of comments to police which were captured on the body-worn cameras of the attending police officers. Some of these comments are the subject of this ruling and are detailed below.

12 FC Brough attempted to move Mr Chaaban - who was semi-conscious and in a floppy state - off of Mr Devlin. As she did so, Mr Devlin kicked Mr Chaaban to the head, sat up, and began punching him to the head. Mr Devlin was then restrained, arrested and cautioned, and moved across the road. From there, he made further comments, one of which is relevant to this ruling.

13 Mr Chaaban was initially breathing and conscious, but dazed and only able to make some vocalisations. He was bradycardic and stopped breathing. He was taken to the Austin Hospital and admitted to the intensive care unit, where he developed multiorgan failure and continued to deteriorate. He died just before 9am the following morning.

14 Mr Devlin was taken to Heidelberg Police Station, and never formally interviewed.

15 Following an autopsy, Mr Chaaban's cause of death was identified as 'multi-organ failure complicating blunt force trauma in the setting of methylamphetamine use'. He had a number of injuries to his head, signs of compressive injury to his neck, and abrasions to his torso.

16 There were two key issues at trial. The first was whether Mr Devlin's conduct was a substantial and operating cause of the deceased's death, noting the evidence that the methylamphetamine in Mr Chaaban's system may have contributed to his death. The second is whether the prosecution could prove, beyond reasonable doubt, that Mr Devlin had not acted in self-defence.

17 As outlined above, the defence took issue with a number of comments made by Mr Devlin at the time of his arrest. They included:

(a) 'He got me...so I owed him one';

(b) 'I got him';

(c) 'You fuckin' cunt. You remember this'; and

(d) 'Losing your biggest fight. Losing your biggest fight, you fuckin' mug. You're a loser'.

18 All of the comments, save for the last, were made before the accused was placed under arrest and cautioned.

19 The defence submitted that the comments should be excluded under s 85(2) of the Act, on that basis that they were admissions made by Mr Devlin in circumstances where he was suffering from an Acquired Brain Injury ('ABI'), was unfit to be interviewed, did not have a third person present, and had neither been cautioned about his rights nor understood them when he was later cautioned. In those circumstances, the defence said the likelihood of the truth of the admissions was adversely affected.

20 Alternatively, the defence submitted that the evidence ought to be excluded under s 137 of the Act, on the basis that its probative value was outweighed by the danger of unfair prejudice to the accused. It was asserted that it would be inherently prejudicial for Mr Devlin's comments to be put before a jury in the circumstances described above, and that there was risk that a jury might place undue weight on his comments or misuse the evidence for an improper purpose.

21 The defence further submitted that that the comments occurred after the alleged acts said by the prosecution to have caused the deceased's death, that no notice of intention to rely on them as incriminating conduct or lies had been filed, and that their probative value in those circumstances was low.

22 The prosecution submitted that the comments were made during, or at least very immediately after, the altercation. They were said to have been made spontaneously, not in response to any questioning, not while the accused was in custody, and in close temporal proximity to the accused's violent acts, which occurred after police had arrived on the scene. In that context, the prosecution submitted that the circumstances were such that the truth of the admissions was not compromised.

23 In relation to s 137, the prosecution submitted the evidence had little, if any, danger of unfair prejudice, and that the probative value of the evidence was high, noting that the comments were relevant to the issue of self-defence. The evidence was said to be probative because it went to whether the accused's conduct amounted to a reasonable response in the circumstances as he perceived them.

Section 85(2)

24 Section 85(2) of the Act applies to admissions made by an accused in a criminal proceeding to an investigating officer who, at the time, was performing functions in relation to the investigation of the commission, or possible commission, of an offence.[1] In short, it renders the admissions inadmissible unless the prosecution satisfies the Court, on the balance of probabilities, that the circumstances in which the admissions were made were unlikely to adversely affect the truth of the admission.[2]

25 Section 85(3) goes on to list certain factors that the Court must take into account for the purposes of sub-s (2), including any relevant condition of the accused (such as age, personality, education or disability) and the nature and manner of the questioning.

26 The question for the Court to determine is not whether the admissions were in fact truthful, but rather, whether the circumstances in which they were made were likely to render them untruthful.

27 The test under s 85(2) allows for consideration of both subjective and objective matters.[3] Further, the 'circumstances' are not confined to those known to the interrogator, or to the conduct of the interrogator.[4]

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused.

29 Put simply, this section requires the Court to engage in the following:

(a) an assessment of the probative value of the evidence, taken at its highest, and in view of all the evidence;

(b) identification of the danger of the unfair prejudice; and

(c) a balancing exercise to determine if the probative value is outweighed by the danger of unfair prejudice, having regard to any warnings or directions that may be given to a jury, and whether they would remove or reduce the danger.

30 It is not in dispute that each of the relevant police officers were investigating officials who were, at the time that Mr Devlin made admissions to them, performing functions in relation to the investigation of the commission, or possible commission, of an offence.

31 The circumstances in s 85(1)(a) being established, the burden then falls to the prosecution to establish, on the balance of probabilities, that the circumstances in which the admissions were made were such that it is unlikely the truth of the admission was adversely affected. If they are unable to satisfy this burden, the admissions are not admissible.

32 The prosecution has raised a number of relevant circumstances in endeavouring to meet their burden. It was submitted that the remarks were made very shortly after police arrived at the scene, and while they were attempting to intervene in the altercation between Mr Devlin and Mr Chaaban. There was no suggestion Mr Devlin had been placed under any undue pressure or influence by police at the time. The prosecution said his comments were entirely spontaneous; he was not in custody, and it was not apparent that he would be arrested. Importantly, Mr Devlin's comments were accompanied by further violent conduct occurring in the presence of police, during the course of their efforts to separate Mr Devlin from Mr Chaaban, who at that stage appeared defenceless and largely unresponsive.

33 I accept that Mr Devlin has an ABI. I had regard to this, as well as the other matters put to me by the defence: that Mr Devlin was unfit to be interviewed, that he did not have an independent third person present, and had not been cautioned or given his rights (at least in relation to three of the comments). However, it is difficult to see how the likelihood of the truth of the admissions was adversely affected.

34 The only evidence of Mr Devlin's ABI came from the Bar table. There was no expert evidence addressing the nature, severity or extent of his brain injury. The Court was not provided with any medical reports or similar material dealing with Mr Devlin's capacity to tell the truth, or whether or not he was prone to confabulation or embellishment.

35 It is well-established that ABIs produce a wide range of symptoms that vary significantly in severity and presentation, depending on the type and location of the injury within the brain.[5] Brain injuries are regrettably common, yet no two are exactly alike. On the state of the available evidence, I was unable to draw any conclusions on the connection between Mr Devlin's ABI and the truthfulness of his comments. In other words, I did not consider his remarks less likely to be true because of his impairment. On the contrary, I was inclined to accept the prosecution's submission that the spontaneity, timing and nature of the comments was consistent with their truthfulness being unaffected. Mr Devlin appeared lucid and alert to his surroundings at the time, and it seems improbable that he would have had the opportunity to mispresent the truth in the heat of the moment.

36 Having considered this, I did not conclude that the comments should be excluded under s 85(2) of the Act.

37 Turning to s 137, I was of the view that Mr Devlin's comments were highly probative in relation to self-defence, an issue very much at large in this trial. That is, whether Mr Devlin thought it was necessary to do what he did in self-defence, and whether it was a reasonable response in the circumstances. The jury will have to draw inferences from this evidence, which constitutes one of a number of factors upon which the prosecution will rely to disprove self-defence.

38 In light of these matters, I did not form the view that the comments were unfairly prejudicial to the accused. They are prejudicial, of course, but not unfairly so. It is difficult to see how the jury would place undue weight or misuse the evidence. Further, I considered that a clear direction could be given to the jury that the comments were evidence that could be considered in relation to the issue of self‑defence, together with all the other evidence.

39 As to the defence's argument that the prosecution failed to file a notice of incriminating conduct, I note that it was not submitted that the comments were lies or implied admissions. Rather, the prosecution asserted that the comments were admissions, and that Mr Devlin was not acting in self-defence. As such, I did not consider the fact that a notice of incriminating conduct was not filed as probative to this application.

40 In conclusion, I considered that the evidence was admissible.

[1] Evidence Act 2008 (Vic) s 85(1)(a).

[2] FMJ v The Queen [2011] VSCA 308, [43]; DPP v DT (Ruling No 1) [2024] VSC 344, [110].

[3] Headland v The King [2023] VSCA 174, [59].

[4] R v Munday (Ruling No 1) [2016] VSC 26, [9].

[5] Bugmy Bar Book Committee, 'Acquired Brain Injury' in Bugmy Bar Book (online, November 2019), [13].