R v Kypri [2002] VSCA 196

[2002] VSCA 196

Court of Appeal (Vic)|2002-12-06|Before: ORMISTON and CALLAWAY, JJ.A. and O'BRYAN, A.J.A.

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Source facts

Court

Court of Appeal (Vic)

Decision date

2002-12-06

Before

ORMISTON and CALLAWAY, JJ.A. and O'BRYAN, A.J.A.

Source

Original judgment source is linked above.

Judgment (75 paragraphs)

[1]

[ 2002] VSCA 196

[2]

CRIMINAL LAW - EVIDENCE - Attempt to obtain property by deception - Accused alleging that police improperly imposed pressure to force him to make admissions in otherwise undisputed record of interview by threatening to charge and arrest brother for complicity in offence - Whether McKinney-type direction required - Whether direction required as to element of "presence" in relation to brother's complicity - Application dismissed.

[3]

The applicant for leave to appeal against conviction, Peter Ioannis Kypri, was found guilty earlier this year by a jury in the County Court of one count of attempting to obtain property by deception. That single count alleged that he "at Lorne and other places ... between [6 and 12 March 1999] attempted to dishonestly obtain from Ricky John Munday the sum of $50,000 with the intention of permanently depriving the said Ricky John Munday of the said money by deception namely by falsely representing that he had a quantity of alcohol available to sell at certain prices". As a result of his conviction, after admitting a number of prior convictions for offences of dishonesty, he was sentenced to a term of 15 months' imprisonment which was suspended as to ten months for a period of three years. Although the original application contained some nine grounds of appeal, counsel on his behalf has confined his argument to two only of those grounds, namely grounds 2 and 6, together with a general argument as to "miscarriage". The second ground complains that the judge "failed to direct the jury on accessories" and the sixth ground complains that the judge "failed to warn the jury about the difficulty facing the accused who said that improper pressure caused his untrue confession". At the end of his argument counsel on this application sought also to add a ground that "an aggregation of errors has led to a miscarriage of justice". The Court reserved its decision also on that application.

[12]

The principal issue raised (by ground 6) depended upon an allegation by the applicant that he had been unfairly and improperly persuaded to make the admissions contained in his record of interview. In other words, although there was no dispute that he had been interviewed and that he had given the answers to the questions recorded in the record of interview, he alleged that pressure was unfairly placed upon him by the police involved in the investigation so as to force him to make untrue admissions as to his guilt of the offence charged and in particular as to his intentions when conducting his dealings with Mr Munday at the rear of Dan Murphy's Caulfield store. The pressure was alleged to have arisen from a threat to charge his brother, Kypros Kypri, with complicity in the offence. The evidence revealed, and there was no dispute as to the fact, that Kypros Kypri had driven his brother, the applicant, in the applicant's own car to the service station in Caulfield where he had met Mr Munday. He had then driven off to a TAB agency somewhere in Caulfield to conduct some betting transactions. Some time after the applicant's arrest Kypros Kypri was also found by the police in Dandenong Road and taken for questioning to the St. Kilda Road police station. There was no other evidence against him, so, in due course, according to the police, he had been allowed to depart and no charges had been laid against him. The police records indicated that he had been interviewed between 6.45 and 7.32 on the evening of 12 March and had been released at 7.50 that evening. The police also agreed that he had been allowed to speak to his brother privately in the break in his brother's interview, which on the face of that document was somewhere between 4.30 and 6.30 p.m., though the applicant and his brother suggested it may have been somewhat later. The relevant officers stated that, although this may have been somewhat unusual, they had no reason by this stage to believe that Kypros Kypri was in fact involved in the deception and his brother's plans for it. Doubtless they delayed their final interview with him until they had completed the interview with the applicant.

[24]

Counsel sought to apply this principle by analogy but there are a number of obstacles facing his contention. One may accept that warnings may be required of a trial judge in circumstances where there is a real risk of injustice if none were given, but the circumstances in McKinney were significantly different from those in the present case. On a more general level, it is uncertain whether and to what extent the mandatory requirement was intended to apply generally in Victoria[11] either at the time McKinney was decided or at the present time. It is possible that some such circumstances might arise but, as the members of the High Court recognised[12], there was already provision in Victoria for the tape recording (and video recording) of most interviews and s.464H already imposed significant restraints on the interview of suspects. In describing how confessional statements were obtained in New South Wales at the relevant time the majority asserted, by way of introduction to their statement of principle set out above, that[13]: "The contest established by a challenge to police evidence of confessional statements allegedly made by an accused while in police custody is not one that is evenly balanced." The reason for this followed in the joint judgment[14] and appeared elsewhere therein. What their Honours described as "a heavy practical burden ... involved in raising a reasonable doubt as to the truthfulness of police evidence of confessional statements" was said[15] to be imposed on accused persons because "a reasonable doubt entails that there be a reasonable possibility that police witnesses perjured themselves and conspired to that end". The majority then pointed out[16] the "other forensic constraints and disadvantages" in terms which already appear in the passage cited in paragraph [18] above. The reference there to the holding of the accused "in police custody without access to legal advice or other means of corroboration" was essentially the reason given by the majority both in this passage and earlier in the judgment for imposing the rule of practice.

[42]

I should add that by reaching this conclusion I am not suggesting that, where there is a real risk of a miscarriage of justice, that is, in circumstances where there is a need for the judge to give an appropriate direction to warn the jury of potential dangers which may not otherwise be apparent to them, there should not be some appropriate direction. What is clear enough here, nevertheless, is that there was no such risk. The issues had been distinctly and vigorously raised in detail, both in cross-examination and evidence-in-chief (in the defence case), and later in the addresses, in a way that the jury could have had no doubt about what was being alleged and what was being asserted was the basis of the applicant's making some false confession because of improper or unfair pressure being placed upon him. An examination of the facts, which I shall not refer to further in detail, makes clear why it is that the jury would have found it highly unlikely that the applicant's and his brother's version was sufficient to raise a reasonable doubt in their minds. The times at which the interview was conducted, especially of the break between the first and last stages of it, and the times at which both the brother and the applicant were released, show how difficult it was for the applicant to raise a sufficient likelihood of his story being true to justify the jury having any doubt. Although many issues were raised in evidence, the times of the brother's departure from the St. Kilda Road police station and of the critical phone call seem to have been at or after about 7.50 in the evening, whereas the applicant's admissions had concluded at about 6.55. Many aspects relating to the timing of the interview and the departure of both the applicant and his brother were raised, but their cross-examination, in particular, showed how uncertain their recollection was as to that timing. Moreover, the form of the applicant's record of interview and the nature of the answers given by him - most of the relevant admissions were made in the last five or ten minutes - made it unlikely that he had immediately succumbed to the threat of the brother's likely arrest and the fear that he might be killed if he were returned to gaol. Indeed, the first three-quarters of the interview was largely unhelpful to the prosecution case and it was only at the end that he eventually saw fit to make the necessary admissions as to his intent on the day. That was not surprising having regard to the fatuous answers he had earlier given in his record of interview (repeated later in his evidence-in-chief) as to what precisely he was doing at the rear of Dan Murphy's on the day and what arrangements, if any, he had made to sell liquor to Mr Munday in the curious way he alleged took place.